WHAT?!

[Duke of Doubt]

WC: "You make a lot of assumptions for a lawyer. You are ASSUMING that it wouldn't be ruled a justified shoot in Maine and you are ASSUMING that the homeowner WOULD be convicted in Mass."

Nope. I'm describing the state of the law, based on statutory and judicial precedent. A runaway jury is always possible. That doesn't mean you advise based on that possibility. And I specifially stated that a ME jury would be unlikely to convict on those facts, even though under the law they probably should. I say that because of my experience with ME juries.

 

[Duke of Doubt]

Daniel: "And he wouldnt be conviced, he would be tried. I would expect you to know the difference. You can't speculate whether or not a jury would convict."

Of course you can. I do it all the time. Very necessary part of the job.

And in MA, he would be convicted if tried.

 

[rbernie]

i'd have left via front door took g/f with me

That presumes that you know that the guy at the back door is a lone actor in all of this. How do you know that?

You don't.

Most folks, armed or not, won't react to somebody banging on a door by fleeing the house thru another door. The house represents a known; the outdoors represents an unknown, and most folks instinctively know that.

Most folks reactions would be to bunker down and wait for the cavalry. If the violent guy at the back door breaches the door, they have to deal with the situation that is present to them at that instant in time.

Trying to paint folks as bloodthirsty for that seems rather haughty.

 

[rhoggman]

I think it is wrong to blow away a hand reaching into a window. I don't think it is wrong to shoot an assailant inside one's home. But I think it is preferable to avoid the shooting and get him out of there another way, if practical. Some on this forum are so bloodthirsty it's creepy. I doubt they've ever used firearms in civilian self defense. If they have, and enjoyed it so much, they ought to be evaluated for committal.

1. You are suffering from testicular derangement syndrom.

2. Bloodthirsty people have no reason to wait on a Home Defense situation to get what they need.... Those people are called criminals.

3. I would enjoy the results (not the act) of ridding the world of a felonious, muderous, criminal.

 

[si vis pacem]

The legal concepts Duke of Doubt has presented are entirely sound. He has pointed out jurisdictional differences regarding defense of habitation, generally. That should not be reason for alarm, nor should it be grounds for an ad hominem attack against someone just because they would defend their home differently.

As for case synthesis, it's a tricky thing. What differentiates an attorney from a lay person is not knowledge of black letter law, but the ability to synthesize rules from cases through their determinative facts, make sure they comport to the particular jurisdiction, and apply them to the facts at hand.

For example, you can cite United States v. Peterson until the cows come home, but you have to be willing to scrutinize every determinative fact, every slightly ambiguous word (e.g. "honestly entertained" belief, an "actual and apparent" and "immediate" threat, and, perhaps the bane of law students, what would be "objectively reasonable in light of the surrounding circumstances").

Duke's posts are simply indicia of his (and my soon-to-be) profession. Hair splitting is a required skill, and ought not to be taken as hostile, rude, or condescending. Very few chefs like to come home after working at the restaurant and then cook dinner. Even fewer attorneys come home and want to present case synthesis and not get any billable hours.

 

[WC145]

Nope. I'm describing the state of the law, based on statutory and judicial precedent. A runaway jury is always possible. That doesn't mean you advise based on that possibility. And I specifially stated that a ME jury would be unlikely to convict on those facts, even though under the law they probably should. I say that because of my experience with ME juries.

I guess that's why we have juries, the law isn't always as black and white as you would apparently like to believe, nor is it always right. Of course, the fact remains that it is always the law and so you will always have a job trying to convince a jury that what you want them to believe is the truth. Hopefully all of the jury boxes you face will be filled with good, honest Americans that were blessed by God with a healthy dose of common sense.

 

[Duke of Doubt]

rhoggman: "1. You are suffering from testicular derangement syndrom."

No idea what that is.

rhoggman: "2. Bloodthirsty people have no reason to wait on a Home Defense situation to get what they need.... Those people are called criminals."

Shooting someone in your home without legal justification is a crime.

rhoggman: "3. I would enjoy the results (not the act) of ridding the world of a felonious, muderous, criminal."

Tell me when you find one. But you may find the results can be unhappy. For example, the dead criminal may have a family, and criminal associates, who will make you and your family pay for hours for your act before they finally dispatch you.

 

[Robert]

Good thing you are not the DA here Duke. Our DA cleared the homeowner, and since we are in Colorado and not any other state all the talk of what would happen in Mass. is moot. Just curious where do you practice law? Is it in Colorado? And if it was asked and answered before forgive me for missing it in the preceding 6 pages.

 

[Shytheed Dumas]

For example, the dead criminal may have a family, and criminal associates, who will make you and your family pay for hours for your act before they finally dispatch you.

Oh my freaking farg, Duke! You make a case out of being victimized further by the aggressor?!? Absolutely not. Don't break in, don't get shot. How hard is that? How morally corrupt is that? I'm joining the "done with this discussion" crowd, because you have fallen victim to everything I am devoted to fighting against, and if you think that I'm bloodthirsty you are completely wrong...

 

[alsaqr]

For example, the dead criminal may have a family, and criminal associates, who will make you and your family pay for hours for your act before they finally dispatch you.

WOW!! What a statement coming from a lawyer. You must defend a lot of home invading criminals and their buds.

In my lifetime I have twice defended my family from gun armed home invaders. The thought of their criminal buds "getting even" never crossed my mind.

 

[3pairs12]

Duke the last sentence of the first paragraph section 8a clearly says There shall be no duty of said occupant to retreat from such person unlawfully in said dwelling. So in fact if lived in Mass and somebody broke into my home I wouldn't have duty to retreat. Earlier you said that Mass requires that you retreat before using deadly force. It does go on say that you have be threatened, a threat could be different things to different people. For instance if somebody broke in to my home and did not retreat upon becoming aware of my occupancy I would perceive this as a threat. Now if they did retreat than there is no threat.

 

[Sato Ord]

Very few chefs like to come home after working at the restaurant and then cook dinner. Even fewer attorneys come home and want to present case synthesis and not get any billable hours.

If that is the case, don't give the guy who is cooking the dinner a hard time about how it's spiced.

If you aren't willing to back up an argument then pour yourself a nice big cup of Shut the H*** Up. If you aren't willing to provide the statutes and case law, don't try to use your status as an attorney to back up your arguments. Credentials like that just don't particularly impress me enough to just take your word for it.

I work with the law, too. I'm a trained paralegal assistant, and I work with several defense attorneys doing crime scene reconstruction. I know a very little about Colorado Law because I lived there for years. I know a great deal about Florida Law because I studied here, I live here, and I help prepare criminal defenses here.

The shooting in question took place in Colorado. The state's attorney decided that this shooting occurred within the law, and he didn't prosecute.

As far as whether or not someone would be prosecuted in some other state for the same thing, it's definitely speculative. I choose not to live in a state where I can't defend myself and my family.

That doesn't make me blood thirsty, or violent, or even a bad person. It makes me someone who understands that the police can't protect me, and it means that I take that responsibility on myself.

Florida accepts Castle Doctrine, and since I am not clairvoyant and can't read the mind of someone who is breaking into an obviously occupied dwelling, so do I. Anything else here is just jaw jacking for the sake of hearing ourselves talk.

 

[Sato Ord]

In my lifetime I have twice defended my family from gun armed home invaders. The thought of their criminal buds "getting even" never crossed my mind.

It's crossed mine, that's why I never go anywhere unarmed if it is legal to carry.

I don't like looking over my shoulder, but when the alternative is taking a dirt nap, you can live with it.

 

[WC145]

Shooting someone in your home without legal justification is a crime

Someone breaking into your house in spite of numerous warnings and causing you to fear for your life and those of your loved ones is legal justification, isn't it? Sounds like it to me.

 

[Duke of Doubt]

3pairs: "Duke the last sentence of the first paragraph section 8a clearly says There shall be no duty of said occupant to retreat from such person unlawfully in said dwelling. So in fact if lived in Mass and somebody broke into my home I wouldn't have duty to retreat."

Correct -- you need not leave just because he entered. That does NOT mean you may shoot him.

 

[alsaqr]

As far as whether or not someone would be prosecuted in some other state for the same thing, it's definitely speculative. I choose not to live in a state where I can't defend myself and my family.

Excellent post. I choose not to live in or visit any state where I cannot legally defend myself and my family.

In OK the prosecutor does not have to take a good shoot to the grand jury. In the past two years the prosecutor of Comanche County, OK declined to prosecute in three righteous shooting cases. The family and buds of the deceased home invader could petition for a grand jury but that will go nowhere in OK. The family of the deceased perp is prohibited from filing a civil suit in OK. I love this state.

 

[Duke of Doubt]

al: "In my lifetime I have twice defended my family from gun armed home invaders. The thought of their criminal buds "getting even" never crossed my mind."

It ought to have. Doesn't mean you wouldn't shoot them if you had to, but it's another reason to avoid shooting unless you really have to. The things one of my favorite clients did to the guy who ratted him out ... would pale by comparison to what he would do to the family of someone who killed a member of his family. Not saying that's right; it's not. That's why he's the criminal. But he certainly exists.

 

[Justin]

This thread has gone completely [strike]stupid[/strike] off-topic.