[The fact that] The other day in Rochester, NY, an upstanding citizen with a firearms license took it upon himself to take a gun outside to investigate and detain persons who were going through parked cars....Does not apply. Public property. Was not even the dude's car. No castle doctrine. I could go on and on but you are talking about something completely different. Keep your melodrama.
Let's start there:
First, just to be clear, New York does in fact have a castle law. I won't cut and paste, since it is not relevant:
http://law.onecle.com/new-york/penal/PEN035.20_35.20.html
Second, and I do not mean for this to be taken unkindly, if you really think that a manslaughter charge will hinge in any way on whether the shooting occurred in one's private driveway or yard or on public property, you need to consult an attorney...
soon, before taking a gun out for any purpose other than hunting or targets.
Wow. Again being charged for drawing a weapon? Where do you live Chicago? DC? NYC?
No. I live in Missouri. One may not point a gun at someone unless justified in using it for self defense, nor may one exhibit one in a threatening manner. That of course does not apply to law enforcement officers.
But let's take some other states. In Arizona, the State CCW website advises that if a citizen draws a gun when someone has not put put said citizen in imminent danger of death or serious bodily harm, the charge is aggravated assault. In Florida, a citizen may not point an empty gun at someone unless justified in using it for self defense. In Texas, the law permits a citizen to draw a gun
if and only if force is legally justified; it goes on to clarify that such an action does not in itself constitute the use of deadly force.
Those are just some examples. I believe that Texas is the most lenient in the country, but there may be others on which the effect of case law is similar.
There are no distinctions regarding whether or not the action takes place on private property in any of those states.
But what's the law in Georgia?
O.C.G.A. § 16-11-102
Pointing or aiming gun or pistol at another
A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.
Nothing about private property.
Now, that
does say "
points or aims". But:
Roman G. Adams was charged with 7 felonies for brandishing a firearm while trying to defuse a life threatening situation. Judge Haywood Turner of Columbus, GA, was charged with pointing a gun in almost the exact scenario. There was no physical injury in either incident. Judge Turner was charged with misdemeanors. Search; Roman G. Adams or Hoy G. Adams for more info.
Optional Information:
Jasper, Georgia
Already Tried:
Ask Law, Roman was convicted and sentenced to 1 year in a max sec prison. Both apeals were denied by 3rd circuit, Atl., GA.
I'm sure you have found that one cannot search for trial court records. The details are not posted. This came indirectly from appellate court findings. There's a comment that Roman displayed the gun but did not point it at anyone.
And here's the castle law in Georgia; applies
within an occupied residence, place of business, or automobile, not just "on one's own property":
O.C.G.A. § 16-3-23
Use of force in defense of habitation
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.
Now, if one is not within an occupied habitation:
O.C.G.A. § 16-3-24
Use of force in defense of property other than a habitation
(a) A person is justified in threatening or using force [note the important omission of the term "deadly]against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with real property other than a habitation or personal property:
(1) Lawfully in his possession;
(2) Lawfully in the possession of a member of his immediate family; or
(3) Belonging to a person whose property he has a legal duty to protect.
(b) The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.
But, notwthstanding whether the citizen may be at risk of criminal prosecution simply for having a gun in his hand on private property, what would he do if he were to encounter someone in the yard? He cannot shoot. He cannot threaten to shoot. He may choose to effect a citizen's arrest,
if and only if he sees a misdemeanor being attempted or committed or if a felony has actually been committed and the citizen has good reason to believe that the person committed the felony. But that is fraught with serious risk of major civil liability. Most attorneys advise against it. Not for me, thank you!
And here's the real rub: suppose that someone does appear, the citizen sees him and raises his gun, and the person who appears, who has not intitiated any confrontation, now reasonably believes that he
himself is in imminent danger of death or serious bodily harm and shoots, blowing the lower jaw off the citizen. Wouldn't it just be something if that shooting were judged to be justifiable? Don't think that couldn't happen.
Do not take any of this as legal advice, but more importantly, do not rely on anecdotal information or the comments of any lay persons that may seem indicate that a citizen may legally resort to the use of a gun unless he or is loved ones are not in imminent danger and such use is necessary, or that an unlawful attempt is made to enter his occupied habitation. Georgia law does not impose a duty to retreat, and it does allow a citizen to defend himself within his habitation. That does not bestow police powers on a citizen.
