Would you donate money for legal defense of self-defense shooter?

[Duke of Doubt]

Here was my original response and the text to which I was responding:

71Commander: "If someone is in your house who doesn't have permission, you can shoot them without fear of a civil suit, in "Stand your ground" states. You no longer have a duty to retreat. It matters not if they intended you harm or not."

Me: "Name one such state, with citation to governing statutory immunity.

You can't, because they don't exist."

71Commander is asserting above that he can shoot without fear of suit anyone he may find in his house without his permission, whether they meant him harm or not. That would be blanket immunity. It doesn't exist in reality, whatever the fantasies of the Gecko45s.

 

[JWarren]

DoD,

What you were referring to certainly does skirt onto the edge (and maybe crosses over) into "blanket immunity." I stand partially corrected. I say "partially" at this point due to one consideration....

Mississippi’s official state website, in short-handing what Senate Bill 2426 accomplished, indicates that the bill creates a presumption of the right to use defensive force and immunity from civil liability for actions taken when a person feels threatened by an intruder to the home, place of business or employment, or occupied vehicle.

Under that line of reasoning, the determination is dependent upon what the person "feels" is the case. There has certainly been a plethra of caselaw where a persons feeling or interpretation has been the relevant issue.

I'm going to make a serious S-T-R-E-A-C-H here in looking at 71Commander's post for the purpose of playing Devil's Adovocate:

71Commander wrote:

If someone is in your house who doesn't have permission,...

This statement could well be describing a situation much like your drunken daughter. I read that where a person has entered your home without your permission. In the example of your drunken daughter, a homeowner would not be liable if they took actions based upon what they percieved as a break-in.

...you can shoot them without fear of a civil suit, in "Stand your ground" states.

There is a basis for saying this. Again, using the example of your drunken daughter. The homeowner would likely not find a DA wanting to push that case in all but the most activist DA's, the Grand Jury would likely not true bill if he DID try, and if they did, it must then reach a conviction in a criminal court-- all BEFORE a civil suit can be considered.

He could have worded his thoughts better, but I really (IMO) don't think he is talking about inviting someone over and shooting them. What he seems to be suggesting is the protections afforded to homeowners from OTHER PEOPLE'S stupidity.

You no longer have a duty to retreat. It matters not if they intended you harm or not."

There is a basis for saying this as well. It is an impossible expectation to ask one person to know with certainty what is going on in another person's mind. I can BELIEVE a person is a threat that is -- in reality-- not a threat, but whose actions (being in my house at 3AM) give me reason to believe there is a threat.

It hinges on what the precieved threat is, not what is in the other person's head (which I am not privy to).


So, I don't really like the way he worded it, but there is a foundation of truth behind his statement-- if a person isn't trying to read their own arguements into what he said.


-- John

 

[akodo]

I would donate money to put in a pool where a select group (known to the THR community or larger gun community ) would review gun cases and give them funds if everything seemed on the up-and-up

I'd really like one that was THR based, maybe restricted to members with significant post counts, and you have to pay into it for a year before any incident you were involved in could possibly be covered.

I'd basically see it as a THR members 'insurance' program, and gladly toss in $20 per month.

 

[Duke of Doubt]

Pre-paid legal plans and associations are nothing new -- truckers use them to deal with all the tickets they get for logbook errors and equipment violations. If they had to appear in every local court over every ticket, truckers would spend their lives travelling the country and appearing in court. Perhaps a prepaid gun plan makes sense. I even know local counsel.

Back to the castlers, the point remains that the homeowner's fears or apprehension of imminent felony must be objectively reasonable in order for the presumption of immunity to attach. And in the hypothetical case of the drunken sorority girl, at least around here you'd have a hard time convincing a jury that the homeowner was acting reasonably when he opened fire on her. You might very well escape criminal liability, but civil liability almost certainly would attach. The castle statutes are not meant to immunize the homeowner in these situations. They are meant to protect the homeowner who must shoot a criminal assailant. One may be sued successfully in some jurisdictions even where no criminal liability possibly could attach to a shooting. That's somewhat undesirable, but the opposite is equally undesirable.

The so-called "castle doctrine" is not a people-hunting license.

 

[Flyboy]

Oklahoma says:

§21-1289.25. Physical or deadly force against intruder.
PHYSICAL OR DEADLY FORCE AGAINST INTRUDER
A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes.
B. A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, or occupied vehicle; and
2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
C. The presumption set forth in subsection B of this section does not apply if:
1. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not a protective order from domestic violence in effect or a written pretrial supervision order of no contact against that person;
2. The person or persons sought to be removed are children or grandchildren, or are otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
3. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity.
D. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
E. A person who unlawfully and by force enters or attempts to enter the dwelling, residence, or occupied vehicle of another person is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
F. A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term “criminal prosecution” includes charging or prosecuting the defendant.
G. A law enforcement agency may use standard procedures for investigating the use of force, but the law enforcement agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
H. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection F of this section.
I. The provisions of this section and the provisions of the Oklahoma Self-Defense Act, Sections 1290.1 through 1290.26 of this title, shall not be construed to require any person using a pistol pursuant to the provisions of this section to be licensed in any manner.
J. As used in this section:
1. “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people;
2. “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest; and
3. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

By strict reading, if your daughter enters my property forcibly, I can shoot and you will not only have no case, but under (H), you'll be receiving a bill for my legal expenses, lost income, etc. That is a shall-issue award by the court, not discretionary. Oklahoma's law is quite generous to the victim of home invasion or other violent crime.

Here's the rub, though:

§21 1431. Burglary in first degree.
Every person who breaks into and enters the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either:
1. By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house or the lock or bolts of such door, or the fastening of such window or shutter;

...

§21 1438. Entering building or other structure with intent to commit felony, larceny or malicious mischief - Breaking and entering dwelling without permission.
A. Every person who, under circumstances not amounting to any burglary, enters any building or part of any building, booth, tent, warehouse, railroad car, vessel, or other structure or erection with intent to commit any felony, larceny, or malicious mischief, is guilty of a misdemeanor.
B. Every person who, without the intention to commit any crime therein, shall willfully and intentionally break and enter into any building, trailer, vessel or other premises used as a dwelling without the permission of the owner or occupant thereof, except in the cases and manner allowed by law, shall be guilty of a misdemeanor.

My protections are based on it being a forcible entry, but I didn't find a clear statutory definition for that term. Based on the burglary statutes (1431.1), I'd say that "forcibly bursting...the lock or bolts" constitutes forcible entry, but that's just my opinion (it also presumes that my door was locked, which you may count on). You would probably argue 1438(B), that she wasn't there with the intent to commit a crime, which would muddy things a bit, given that she wasn't there to commit a crime, but avoid one. Unfortunately, I (presumably) couldn't have known that, so I suspect you wouldn't be able to rebut the underlying presumption on that basis alone. It would still be a tragedy, but I think I would come out legally in the clear (psychologically is another matter entirely).

Now, if you were to go after the would-be rapist, I'd go out of my way to help you; in fact, after you were done with him, I'd probably try to recover my own expenses as well, given that he was the original cause. I'd probably also put a bug in the prosecutor's ear about charging him under the felony murder rule.

Then again, I have very little tolerance for rapists.

(And these discussions are fun. I got to dig through all sorts of things I hadn't looked at before. One of these days I'm going to have to go looking for case law to supplement the statutory law.)

 

[Duke of Doubt]

Flyboy: "By strict reading, if your daughter enters my property forcibly, I can shoot and you will not only have no case, but under (H), you'll be receiving a bill for my legal expenses, lost income, etc."

I don't think so. The Oklahoma statute you cite (I am not admitted in Oklahoma) requires that the entry be both forceful AND UNLAWFUL. If under the doctrine of necessity or competing harms it is found that the drunken sorority girl was not breaking the law by entering your dwelling to escape a rapist, her entry is not unlawful and the presumption of immunity does not attach.

 

[daniel1113]

I would consider making such a donation if the fund remained open for THR members and was not passed on at some point to the NRA or any similar organization. However, there are too many factors involved to make a definite statement.

 

[Flyboy]

Duke, it'd be a hell of a case, to be sure. As the hypothetical defendant, I'd be asking how I was supposed to know that her entry wasn't unlawful. Actually, I'd probably be arguing that it was unlawful, merely excusably so.

The bottom line here is that nobody wins in situations like this. I think I've heard about a case or two like this, and if memory serves, the homeowner wasn't held liable (but, again, we're trusting my memory here; I'll go poke around and see what I can dig up for facts).

Don't take this as me channeling Gecko45; I don't ever want to have to pull the trigger on another human, and I certainly don't want it to be on somebody innocent-but-unlucky as you describe. I'm just saying that as the homeowner--with the limited information available to me--it would seem that I'd be protected from damages, as my actions would have met the "reasonable man" standard.

Definitely a (hypothetical) tragedy all around, though.

 

[JWarren]

DoD wrote:

You might very well escape criminal liability, but civil liability almost certainly would attach. The castle statutes are not meant to immunize the homeowner in these situations.

D,

Actually that is EXACTLY what you fail to realize about many states outside of your own.

UNLESS you are CONVICTED in the criminal case, you are IMMUNE from civil suit.

That is the very premise of the statutes of states such as mine in protecting the homeowner. To be open for a civil suit, you MUST have been convicted and found guilty in a criminal trial.


That ends it. Game over.

While I have no basis for arguing when you say

the point remains that the homeowner's fears or apprehension of imminent felony must be objectively reasonable in order for the presumption of immunity to attach. And in the hypothetical case of the drunken sorority girl, at least around here you'd have a hard time convincing a jury that the homeowner was acting reasonably when he opened fire on her.

I am certainly glad I don't live in your state.

I am very comfortable that, in my state, a person standing INSIDE your home at 3AM WOULD EASILY be considered justification to view said intruder as a threat.


When you made your challenge, it was met. And it has since come full-circle to where you are now qualifying your statements with "In MY state."

That would have been the best way to qualify your statements to begin with rather than make blanket statements.


I really don't think there is anything else to consider here.


-- John

 

[Duke of Doubt]

JWarren, I'll repeat the pertinent section of MS 97-3-15 which you cited above:

"(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling house in which such person shall be;

(f) When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;"

The hypothetical drunken sorority girl wasn't assaulting you, nor could you have "reasonable ground to apprehend a design to commit a felony [even to include the felonies of tax evasion, insider trading, racketeering or counterfeiting] or to do some great personal injury ..." She was unarmed, not advancing on you, and presented no threat. Blowing her away would be unreasonable, probably not privileged under criminal law (though few juries would vote to convict) and NOT immunized under the MS "castle" statute. You're a highly intelligent, experienced guy. I don't see why this one is going over your head (or maybe between your shins).

 

[JWarren]

Duke,

Let me get back to you after looking up a couple things.

In particular, I am going to look up the statute on illegally entering someone's home-- as it stands in MS.

The part you have cited has not gone over my head. I have -- and continue to assert-- that it WOULD be a reasonable assumption that a person inside your home at 3AM would be intending the felony that you are harping on.

By your logic, one cannot take action inside thier own home until AFTER that person has committed or attempted to commit a felony. Where I come from, after the fact is usually too late.

Since what you percieve to be the situation is pertinent, I am comfortable that 1.) Practically any DA in this state walks away from this knowing there is no chance of a conviction, 2.) Practically no Grand Jury in this state would true bill this, and 3.) No jury would find fault.

By those three criteria, there IS immunity.

What I think is going over YOUR head is that we all recognize that there is no absolutes. However, I have shown you that the criteria that MUST be present to allow a civil suit in such a case is strictly dependant upon:

A.) DA bringing charges

THEN

B.) Grand Jury true billing the case

THEN

C.) Jury reaching a guilty verdict.

THEN a civil suit would be allowed. Without ALL of the above criteria being met, there CAN BE NO civil suit in this state.

The above is a series of safeguards to the homeowner, but obviously - and rightly- they have left an avenue to reach a civil suit. I think most of us are completely comfortable with the idea that failing the three tests that I have outlined, someone SHOULD be open to a civil suit.

I'll leave it for now with this...

Wherein you cited the pertinent section of MS 97-3-15, I'd like to offer this for consideration...

When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling house in which such person shall be;

Let's cut to the chase here....

In the above citation, if I see a person in my house at 3AM, I cannot KNOW the motive in their mind. I can, however, have a REASONABLE assumption that it is in a felonous manner.

Even if I an ABSOLUTELY wrong in that, I can easily show that that assumption was one that a REASONABLE person WOULD make, and therefore within the provisions of the statute.

When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;"

I feel VERY comfortable that a jury would find a person in your home at 3AM to be "reasonable" grounds since it is IMPOSSIBLE to know with certainty what is in another person's thoughts.

Hell, I could win that case with LegalZoom.com.


And that is what I am getting at...

You are a lawyer, so you relish in debating the nuances and caveats of statutes. However, I think we BOTH can agree that


1.) There are no absolutes

but

2.) There are things that are a hell of a lot closer than others.


I'm a retired stockbroker. Unlike you, I have spent my life in the world of probablities, and I am very comfortable in a world where there are no absolutes.

Where I think we cross each other is that I can safely say that the risk in such a case as we have been discussing approaches an insignificant level based upon what is reasonable and what the statute states.


-- John

 

[Bill_Rights]

As OP slowly declines into irrelevancy, ....

.... OP looks at his poll answers and notes that the "Yes" answers gradually decline relative to the "Maybe"s and the "No"s the longer this legal discussion goes on.

Ah, no, really, this is great. I had some other involvements this Easter weekend and could not really follow and participate in the detailed exchanges posted above. But I will digest them in due time.

As for the poll numbers changing, the change/trend is small and and cannot be attributed to the legal discussion. Just a hypothesis. And not one I care about or am inclined to test.

JW,

In RE an earlier statement I made

In an unfortunate case like DoD posed, there is plenty of blame on the person who got shot and ideally some responsibilty on the shooter, if not technically blame, fault, liability, etc. Even though it is very costly, it may take a civil jury decision to "split the baby" (Ref. to King Solomon in the Bible, citation upon request) best as may be done.

your post of 10:10 AM Sunday 12 Apr makes a good point, that the Solomon/split baby illustration or analogy doesn't work. I will think of a better analogy and edit the post where I first introduced Brother Solomon to add it. (However, I will leave the original wording available such that our subsequent posts about it make sense.)

To briefly address your other points:
- Of course, a civil ruling can only result in money changing hands, or not.
- A civil case that gets as far as being argued in front of a jury gets rather expensive in its own right, not including any money settlement that might result between plaintif and defendant.
- A jury decision does not necessarily deliver justice. Trying to assure so, however, does make it more expensive, in terms of legal fees, for our shooter/defendant.
- When I ended my post by throwing the matter to a jury, I probably shouldn't have; there was obviously more to think and say....