Would lethal force be justified?

[Kleanbore]

Posted by mgkdrgn: The only way the BG is "clearly fleeing" is if they are out of my house and headed down the road. In my house, they are a threat, and the law here very clearly recognizes that if they break into a home while it is occupied.

One might believe that and be proven very wrong. Read Sam's Post #21 slowly and carefully and digest it.

The testimony of the intruder, and perhaps that of the accomplice that one did not see, can combine with earwitness testimony and forensic evidence to bring about the conviction of a defender should others judge that the defender did not have reason to believe, based on what he or she knew at the time, that the use of deadly force had been immediately necessary under the circumstances to prevent death, great bodily injury, or the commission of a violent crime.

By the way, one's having made such a statement publicly would not help one's defense of justification at all.

 

[fallout mike]

If you feel you and your family are truly threatened, you should not even consider whether or not it is or will be justified. Your families safety comes first.

 

[JRH6856]

One might believe that and be proven very wrong. Read Sam's Post #21 slowly and carefully and digest it.

As usual, the actual text and application of any law varies from state to state and the law in one state may be very different from the law in another state, even when the laws are called by the same name.

 

[Sam1911]

As usual, the actual text and application of any law varies from state to state and the law in one state may be very different from the law in another state, even when the laws are called by the same name.

True! And yet, as I said, NO Castle Doctrine law is carte blanche to kill any person found in your home. There are still conditions and mitigating factors which apply, always. Someone clearly fleeing is not presenting a lethal threat, and evidence that suggests that you shot when there was not (or no longer) an immediate and credible threat will negate your ability to claim Castle Doctrine "justification."

 

[JRH6856]

Someone clearly fleeing is not presenting a lethal threat,

And yet, in some states, it is the person's presence in your home that is presumed by law to present a lethal threat, not the person's actions. So once again, it is imperative that you know the laws in your state and how they apply rather than relying on how residents in other states interpret the law there.

 

[Onward Allusion]

Here's a different take.

Whether or not the shoot is justified will depend on many factors, including the value system of the officer in charge on the scene. The report can be spun in different ways...

I've had my eyes opened recently. The opinions on stopping a perp runs the gamut. I've heard statements ranging "Shoot 'em if the 'cause who knows...they could have gotten a knife from your kitchen (nod nod wink wink)" to "You can NOT shoot a BG if they are unarmed."

The latter comment made me wonder what a 5'1" 100lb woman confronting a 6'2" 250lb guy trying to do harm to her should do.

Best course of action - Officer "I was in fear for my life (or loved ones) and I had to stop the threat." Second sentence should be - "I want to speak with my lawyer and do not wish to say anything else at this time."

 

[Sam1911]

And yet, in some states, it is the person's presence in your home that is presumed by law to present a lethal threat, not the person's actions.

I understand what you are saying. What I am pointing out is that this is a rebuttable presumption that can indeed be affected (altered and even negated) by that person's actions. It is never quite so simple as saying that the person was in your house so, therefore, you could shoot them.

There is a presumption. That presumption is not the absolute last word. It is subject to review and refutation.

 

[Kleanbore]

Posted by MicroTecniqs: And yet, in some states, it is the person's presence in your home that is presumed by law to present a lethal threat, not the person's actions.

Actually, that is true in most states. "Presumed" is the key word, whether or not it actually appears in the code, and as Sam points out, any presumption is rebuttable under the law. If there are indications that someone who has entered one's house unlawfully has surrendered or is attempting to escape, and presumption that the person (still) constitutes a lethal threat goes right out the window.

So once again, it is imperative that you know the laws in your state and how they apply rather than relying on how residents in other states interpret the law there.

Yes indeed.

Here is a case in point: in a state just west of IL, the law states very clearly that if one encounters someone who has entered or is attempting to enter one's occupied home unlawfully, the resident is justified in the use of deadly force. (Actually, the words say that deadly force may not be used unless, among other things, a person unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by [the actor]; unlawful entry is defined as entering without license or permission).

Does anyone here believe that one would be justified in shooting someone who has entered unlawfully and who is attempting to leave? Hint: don't believe it for a minute.

Notwithstanding the apparent meaning of the wording in the statute to the layman , there's the case law, and there are the jury instructions, with which the judge explains the meaning of the law to jurors. Said instructions add a number of very important caveats, and they have been approved by the State Supreme Court.

 

[dayid]

I always like to test "Lethal Force" questions with:

"Does it matter?"

Ultimately, if you have the need to rid another person of their life, do you care if you're in jail? Naturally, no one would like to be in jail. But, if it cost you some jail time to save your life, your child's life, etc... isn't it worth it? I know I'd rather be alive and in jail than dead because I was worried about the worth of some scumbag.

 

[Kleanbore]

Posted by fallout mike: If you feel you and your family are truly threatened, you should not even consider whether or not it is or will be justified. Your families safety comes first.

That sounds pretty good at first blush, but it is really necessary to tighten it down quite a bit to avoid having someone get the wrong impression.

First, the threat must be imminent--right now, not past or future, and not potential. Second, the threat must be one of death or serious bodily harm. Third, deadly force must be immediately necessary.

Castle laws in most jurisdictions, including that of the OP, do reduce the burden on the defender as it relates to presenting evidence about the threat, but as Sam has pointed out, NO Castle Doctrine law is carte blanche to kill any person found in your home.

Yes, if in one's best judgment, it is immediately necessary to employ deadly force to defend against imminent threat of deadly force or serious bodily harm, that is not the time to go through a checklist of justification.

That will happen after the fact if one does employ deadly force.

 

[mgkdrgn]

And yet, in some states, it is the person's presence in your home that is presumed by law to present a lethal threat, not the person's actions. So once again, it is imperative that you know the laws in your state and how they apply rather than relying on how residents in other states interpret the law there.

And South Carolina is just such a state.

If someone breaks into a home, while that home is occupied, the law =presumes= that intruder IS there to do the occupants grievous bodily harm. No other proof, evidence, or action on the BG's part is needed. There is no responsibility on the part of the occupant to give any warning, any quarter, or retreat from their home. They are being presented with a prima facia deadly threat and may respond accordingly.

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A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or a violent crime as defined in Section 16-1-60.
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Can some overzealous DA attempt to twist the facts around and try to bring charges? I suppose they could, theoretically.

Will that case stand a ghost of a chance with a SC jury? About the same as a snowball in hell ... which will also be the likely length of of that DA's career.

And the next thing I'll hear is "Well, the BG's family can still sue you in Civil court for wrongful death ... yadda yadda yadda". Again, not in South Carolina ... by law. No criminal charges in a lawful SD shooting, no civil charges can be brought.

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A person who lawfully uses deadly force is immune from criminal prosecution and civil action, unless the person against whom deadly force was used is a law enforcement officer acting in the performance of his official duties and he identifies himself in accordance with applicable law or the person using deadly force knows or reasonably should have known the person is a law enforcement officer.
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Not every state rewards it's criminal population more rights and protections than it's law abiding citizens.

 

[ns66]

fire a gun should be the very last resort, if nothing else, the gun shot sound will cause permanent damage to your baby's hearing for life, you don't want to do that unless it's absolutely necessary
if you feel your house is not secure, the first thing to think of is not how you will shoot, but to think of how you can set up the house so intruders can't get in in the first place
change your house to prevent this kind of scenario from ever happening will be my suggestion

 

[Sam1911]

"Does it matter?"

Ultimately, if you have the need to rid another person of their life, do you care if you're in jail? Naturally, no one would like to be in jail. But, if it cost you some jail time to save your life, your child's life, etc... isn't it worth it? I know I'd rather be alive and in jail than dead because I was worried about the worth of some scumbag.

If you truly saved your child or spouse's life through your actions and yet the evidence was weighed by the jury and they did not believe your story or the evidence showed that you broke the law with your response -- but you KNOW you had to act in that way in order to save those lives -- then surely no, it does not "matter." The very strong chances are you will lose your home, your savings, your livlihood, your job, your marriage, and likely most other relationships you value, and you'll lose your firearms (and some other) rights for the rest of your life. But if you HAD to take the action you did, all that may be worth it, in the balance.

However, the much more common situation that causes folks legal problems is when someone who takes up a weapon to defend him/herself and really doesn't understand the legal principles involved. When they are ignorant of how the law works they tend to make really bad judgments based on either their own organic assumptions about what their "natural" rights should be, or the sorts of things they've seen on TV and in the movies -- or heard on the news.

When the question can be distilled down to, "When MUST I shoot?," "When do I HAVE TO shoot?," or "When do I have no choice BUT to shoot to save life?," folks are on the right track.

Unfortunately one side effect of the Castle Doctrine laws seems to be the growth of a different line of thinking: "When CAN I shoot?," "When am I ALLOWED to kill?," and "When am I cleared hot to waste this scumbag?" The checklist mindset -- that once someone does x,y, or z, you have permission to plug 'em -- is very dangerous.

 

[JRH6856]

No criminal charges in a SD shooting, no civil charges can be brought.

A civil suit can always be filed, the law notwithstanding. All the law really does is give you grounds to move for immediate dismissal, which the judge may or may not grant. That denial may be subject to appeal. All of which will still entail legal fees.

 

[Sam1911]

If someone breaks into a home, while that home is occupied, the law =presumes= that intruder IS there to do the occupants grievous bodily harm. No other proof, evidence, or action on the BG's part is needed. There is no responsibility on the part of the occupant to give any warning, any quarter, or retreat from their home. They are being presented with a prima facia deadly threat and may respond accordingly.

Certainly. And, as I pointed out, that presumption is rebuttable. It is a starting point, not an irrefutable conclusion. If there is evidence to contradict that presumption, that presumption will NOT stand.

Can some overzealous DA attempt to twist the facts around and try to bring charges? I suppose they could, theoretically.

Or a very good DA could discover facts which point out that the deceased did not present or no longer presented the threat that was initially presumed to exist. Now, that in itself might not be compelling, but if the defender knew or had clear reason to know that the threat had ended or was not realistic, the DA is RIGHT to refute that presumption.

Will that case stand a ghost of a chance with a SC jury?

That depends on how credible any of the evidence and testimony may be. Certainly there are plenty of folks in SC honest enough to listen to testimony and a judge's instructions and render a verdict based on those factors. Surely you are not claiming that South Carolinians lack the integrity to do so.

 

[ns66]

When the question can be distilled down to, "When MUST I shoot?," "When do I HAVE TO shoot?," or "When do I have no choice BUT to shoot to save life?," folks are on the right track.

Unfortunately one side effect of the Castle Doctrine laws seems to be the growth of a different line of thinking: "When CAN I shoot?," "When am I ALLOWED to kill?," and "When am I cleared hot to waste this scumbag?" The checklist mindset -- that once someone does x,y, or z, you have permission to plug 'em -- is very dangerous.

totally agree

 

[Kleanbore]

Posted by mgkdrgn: No criminal charges in a SD shooting, no civil charges can be brought.

No.

The law in SC and in many other jurisdictions states that a person who lawfully uses deadly force is immune both from criminal prosecution and civil action.

The state may decide that it would not be able to prove beyond a reasonable doubt that a suspect had committed a crime, and thus may decline to prosecute. That will not stop civil action, however because the plaintiff must only show by a preponderance of the evidence that the defendant was liable. A decision by the state to not undertake prosecution does not indicate that a preponderance of the evidence did not support a civil plaintiff.

In either kind of case, a defendant may request that the courts stop legal action by presenting facts showing that a preponderance of evidence indicates that a shooting had ben justified. Those requests may or may not be granted, depending upon the respective judges' reviews of the evidence presented by the defendant.

 

[ns66]

if intruder sees your gun, most sane one will run, don't shoot in the back, it may be your life and your loved ones' life as you know it that you are saving

 

[mgkdrgn]

No.

The law in SC and in many other jurisdictions states that a person who lawfully uses deadly force is immune both from criminal prosecution and civil action.

Apparently we have different understandings of the meanings of words in the English language.

In any case, if someone breaks into my home, while I am there, I won't be thumbing through any law books trying to decide if I'm allowed to defend myself or not.

 

[Bubba613]

From this scenario presented I see no reason for a rebuttable presumption. The intruder was still potentially a threat to the man's family.

It also depends on the state. We had an incident here where a homeowner awoke at 2AM to find two men attempting entry through a window. Homeowner grabs shotgun. Men run. Homeowner runs after them. Catches up with one, holds him at gunpoint, brings him back to his yard and makes him lie down to wait for police. Other BG comes driving up in PU truck, calling for first BG. Homeowner trains shotgun on second BG and orders him out. BG2 turns to drive away and homeowner shoots at him, wounding him.
What should happen to the homeowner? Fine? Jail time? Loss of privileges?

Nothing. DA refused to charge him. Of course this is TN.

 

[Kleanbore]

Posted by mgkdrgn: Apparently we have different understandings of the meanings of words in the English language.

I think the difference is in understanding how the law works. Your comment was "no criminal charges in a SD shooting, no civil charges can be brought"; that 's not at all the same thing as "a person who lawfully uses deadly force is immune both from criminal prosecution and civil action".

Let me try one more time to explain it.

first, it is possible for a judge to stop criminal proceedings, and for (another) judge to stop criminal proceedings under the law. The actor must present facts that convince the judge(s) that a preponderance of the evidence indicates that the shooting was justified under the law.

To understand how the civil process can proceed in the absence of criminal prosecution, suppose that the defendant is not able to provide evidence that meets that threshold, or just that the judge(s) do not agree.

The state may or may not decide to proceed with criminal charges. For a criminal prosecution to succeed, the state must prove beyond a reasonable doubt that the defendant was guilty of a crime. The state may try and succeed, or the state may try and fail, or the state may elect to not proceed with criminal charges because they believe that conviction is unlikely.

Neither of the latter two outcomes prevents the civil process from proceeding. That's because the burden of proof in a civil trial is much lower than in a criminal trial. The plaintiff must only show that a preponderance of the evidence (think 51%) indicates that the defendant is liable for damages.

So, one more time, a decision by the state to not file criminal charges does not stop civil proceedings.

Is it clear now?

 

[Colonel]

Would shooting him in the back when he's at a point that he can only leave or end up in son's room be justified?

Sounds like a good way to serve a looooooong prison sentence in the gun-loving paradise of Chi-Town.

 

[SpringfieldArmoryXD]

I'm a little confused on how someone Breaking entry into your house leaves them with any rights in the court of law...Leaving out the whole "shooting the BG" scenario. Your telling me a Bad guy breaks into my house, trips and falls breaks his arm, he is liable to sue me in civil court??

Am I missing something?

 

[JRH6856]

Your telling me a Bad guy breaks into my house, trips and falls breaks his arm, he is liable to sue me in civil court??

Yes, he can sue you. Doesn't mean he can win, or even get to trial, but he can sue you.

 

[Kleanbore]

Posted by Bubba613: The intruder was still potentially a threat to the man's family.

Yes indeed.

The question, and we cannot answer it, is whether there is reason to conclude that the intruder's movement would reasonably negate the presumption that the resident had reason to believe that the family was (still) faced with an imminent threat of death or serious injury.

His testimony, that of an accomplice, evidence indicating exactly where he was relative to the doors when he was shot, whether his hand had been on the door handle, expert testimony to the effect that the resident could well have decided to fire before the intruder had reached the exit, would all have to be weighed. It could never go to court, or it could take two or three trials.

A father would not worry about that at the time; his concern would and should be focussed on the safety of the child.

Just for clarification, however, deadly force is not justified simply because someone constituted a potential threat. The threat must be imminent and very serious.

"Castle doctrine" laws make the defense of justification mush less burdensome, in that they establish evidence of unlawful entry as evidence, not necessarily fully determinative but important nonetheless, of an imminent threat. The question is whether there is any significant evidence that indicates that the threat had ceased.