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