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Would you shoot an intruder if you didn't have to?

Discussion in 'Strategies, Tactics, and Training' started by valnar, Oct 7, 2013.

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  1. tarosean

    tarosean Member

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    Legally I can use deadly force for someone spray painting my gate in the middle of the night. Would I? No.

    I hope to never take a life while I walk this earth.
     
  2. CA Raider

    CA Raider Member

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    "Asking, in essence, "When can I shoot someone?" is IMHO a completely wrong approach to the moral aspect of self defense"

    let's look at it slightly differently.
    What everyone needs is ROE.
    Rules of Engagement.
    They MUST be very clearly defined - because in a critical situation you will not have time to think.

    Therefore, what everybody needs to do is to carefully work out those ROE now.
    e.g. In "this" situation, I will respond this way. In "that" siutation, I will handle it that way.

    What I'm saying is that the ROE that home owners use inside their houses are very different from what you will apply on the streets. But a lot of people are just getting CCW permits and assuming its all the same thing. it is not.

    The street does not belong to us - but our home does. Lots of people have a right to be on the street (besides us), and some of them might be behaving very stangely. That does not establish the fact that they are dangerous, or a threat. That decision time on whether they are a threat may be a few seconds, or less. Hence the need for better training on threat assessment, and a clear set of ROE.

    Now is the time for you to decide your Rules of Engagement.
    The law does give you a window where you can protect yourself legally - but it may be a very narrow window and require a high level of mental and physical skill.

    CA R
     
  3. Jim K

    Jim K Member.

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    Hi, Tarosean, I don't know where you live, but I doubt very much that you may legally use deadly force against the guy painting your gate.

    But common law and the laws of most states allow use of deadly force against an unlawful intruder in your home. The logic is that someone who has unlawfully entered your home would be unlikely to do so without the intent of harming anyone attempting to stop him from doing whatever he came to do. Generally, there is no need for the legal occupant to first determine that a threat exists; he can presume the threat from the fact that the intruder illegally entered the home.

    That does not mean you (the home owner/occupant) should just shoot blindly without any thought. There have been too many cases where the "intruder" turned out to be a family member coming home late, a person who got the wrong address, a lawful entrant like a meter reader, etc. But it also does not mean that if you awake at 3 AM and see a smashed-in door and a man with a knife and a ski mask, you have to ask him his intentions before using deadly force.

    (Not every home defense shooting is serious or tragic. An acquaintance thought he heard a noise in his living room. He crept down the stairs, gun in hand. In the half light from a street light, he saw a man who appeared to be pointing a gun at him, so he fired and nailed the intruder dead center. No cries, no screams, just the sound of breaking glass. After which he remembered the antique mirror his wife had purchased for a very high price and had delivered the day before. Needless to say, he has not been allowed to forget his "home defense" shooting.)

    Jim
     
  4. GJSchulze

    GJSchulze Member

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    That reminds me of what happened after we bought a house, but hadn't moved in. I was working in the bedroom. There's a long hallway leading into the bedroom and its lights were off. It's a suburban neighborhood with no street lights, so it's dark. I finished up and turned to leave when I saw someone at the end of the hall. Scared the crap out of me for a second until I remembered that there's a full length mirror covering the end of the hallway.

    You may have the right to shoot an intruder in your home, but you better identify them first.
     
  5. tnxdshooter

    tnxdshooter Member

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    The way I understand it and I may understand it wrong but here in TN if dude is in your house whether it's to steal your tv or he broke in to pet your dog. If he is in your house you can shoot him whether he had a weapon or not. I've seen many cases here in tn where a home owner has shot and killed an intruder who was unarmed and they were never charged with any crime.

    Personally,

    I think if he is in my home he us a threat to me and i'm going to shoot him whether he has a weapon or not. I think any reasonable person on a jury would feel threatened if someone broke into their home. I seriously doubt you'd be convicted of anything under the circumstances.
     
    Last edited: Oct 8, 2013
  6. Sam1911

    Sam1911 Moderator Emeritus

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    Jeez the "If he's in my house I CAN shoot him" stuff gets tiresome. It is NOT a correct application or understanding of the various "Castle Doctrine" laws.

    Those laws don't give you ANY more justification to shoot someone than you would have ANYWHERE else. On the street, in your bathroom, in the woods, or on a flippin' Ferris wheel.

    What these laws do is give the resident a lowered burden of proof when they're in the courtroom pleading an affirmative defense. These laws say that because the guy had forcibly entered your home you don't have to PROVE to the court that he intended to harm you. The court will accept that one factor of your defense prima facie. That's all these laws do.

    They DON'T prescribe that you MAY take a life when otherwise you couldn't. They just help you mount your defense in court.

    Further, that presumption is REBUTTABLE. In other words, just because the court normally would accept that portion of your defense, doesn't mean that decision is written in stone. If the prosecution can show that for some reason the intruder should have been known to be no threat, OR was trying to retreat, OR was surrendering, OR some other thing that casts doubt on your decision, that automatic portion of your defense may be not accepted and you're back to proving your case as best as you can.

    So you KNEW he wasn't armed? You could be facing rebuttal of your justification depending on the totality of circumstances.

    This is a mindset we need to embrace. We've accepted the "OK, NOW I CAN SHOOT" mentality for far too long.
     
    Last edited: Oct 8, 2013
  7. sota

    sota Member

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    I unfortunately have the whole "duty to retreat" 50 ton weight on me as well in my decision tree. As such (and being that i'm in NJ.. the Sue Me State) I'm not willing to discuss my decision tree on a public forum, but suffice to say it grants the Bad People plenty of opportunity to cease, desist and vacate before use of deadly force becomes a factor.
     
  8. HexHead

    HexHead Member

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    Maybe you need to read the TN law, like this passage...

    http://www.state.tn.us/sos/acts/105/pub/pc0210.pdf
     
  9. Kleanbore

    Kleanbore Moderator Staff Member

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    Hex, the operative words are "is presumed to have had a reasonable belief....". As in the case of all presumptions in law, that presumption is rebuttable. It is quite similar to the law in many states.

    Sam is quite correct in saying



    Such laws are often misinterpreted. That is why we have stickied this.

    Here is a relevant excerpt:



    Those who read Post #3 already saw this.
     
  10. beatledog7

    beatledog7 Member

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    And all that is why I often respond to posts like this one with something like, "Another, 'Please tell me the minimum justification I need to shoot someone' tread."

    Our goal should not be to find a way to legally shoot; rather it should be to find a way to not shoot at all.

    That said, I return to my previous post--legal ramifications will not stop me from taking a shot if I have to take it, and I will not take a shot I could avoid taking, legal or not. So the law has no effect on my ROE, only on the aftermath.
     
  11. tarosean

    tarosean Member

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    My location is below my user name just as its always been... :)

    TX is rather unique in this regard.


     
  12. Deus Machina

    Deus Machina Member

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    If you don't have to, don't shoot.
    This will save you a whole lot of headache and money.
    I make it a very large part of my life to not harm anyone if I can help it.

    To simplify it, if I discover someone in my home, I will make myself known with firearm loaded, aimed, and finger beside the trigger. I am forced to assume that he is able and willing to harm me.
    If he attempts to--and no man in his right mind will, for what that's worth--I have a great advantage.
    If he very quickly demonstrates otherwise, than this is a great benefit for everyone involved.
     
  13. Sauer Grapes

    Sauer Grapes Member

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    My hope has always been that the dog would persuade an intruder to change his mind.

    Oh, BTW, to answer the Op's question, no, why would I ever shoot someone I didn't have to. If the intruder complies with my command to ''GET OUT OF MY HOUSE', I'm good with that!
     
    Last edited: Oct 8, 2013
  14. taliv

    taliv Moderator Staff Member

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    i believe this is actually the consequence of antigun lies

    this misunderstanding didn't originate from the firearms community or the NRA, nor the legislators writing these laws. It is a result of the blatant misrepresentation by the left while politicking against guns.

    if gun enthusiasts are this confused about the law, imagine what your average non-gun person thinks. they probably just accept it as fact when somebody like a biden or pelosi gets up and says "you can shoot anybody for any reasons as long as they're in your home".

    the anti-gun crowd is doing a tremendous disservice to their constituents
     
  15. Outlaw Man

    Outlaw Man Member

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    And we'll probably never know how the intruder managed to break his shot at the exact same time. If the homeowner had hesitated only a bit longer, who knows what would have happened??

    :D :D

    It makes you wonder how a weapon-mounted light would have changed things.

    On the matter of shoot/don't shoot when you have the gun pointed at them, I think people that make firm statements either way tend to ignore or underplay the amount of time that takes place between identifying a threat and pulling the trigger.

    At any point - reflexively reacting to the threat (squaring up, hand going to a gun if holstered, drawing the gun, shouting orders if that's your choice - the intruder could realize this isn't a soft target and commence retreating. Until you squeeze that trigger, you're not committed to firing at him.

    At the same time, pointing the gun at him and continually yelling, "stand down" to him while he backs you into a corner with his knife isn't exactly wise, either. Just because he is currently unarmed doesn't mean he can't become armed by taking yours. If he's strung out on meth or worse, he just might try.
     
    Last edited: Oct 8, 2013
  16. WardenWolf

    WardenWolf member

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    If someone breaks into my house while I am there, I am going to presume they are prepared for an encounter with any occupants. Unless I catch him dead-to-rights, he's going down. No questions asked. I have already mentally prepared for this.

    If I WERE to catch someone with their back to me, the orders would be, drop their weapon, move away from it, hands on their head, get down on their knees, then lie down on the floor. Hands on their head the whole time while I called 911 and until the police arrived.

    If the person tried to flee, I would let him go, unless he was headed towards a room with weapons. In most states, it is grounds to use deadly force in order to prevent an intruder from becoming armed.
     
  17. Frank Ettin

    Frank Ettin Moderator Staff Member

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    However, you need to pay particular attention to paragraph (3) of that statute (which is Texas Penal Code 9.42, BTW).

    Note that in Texas one must still be able to justify the use of lethal force by demonstrating that he reasonably believed that:
     
  18. CAPTAIN MIKE

    CAPTAIN MIKE Member

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    ...legally speaking

    Okay. I'm taking off my CCW Instructor hat and putting on my Lawyer hat for a moment. Under the law of most states, a Home Invasion falls under the general heading of 'Burglary'. It's one thing to break into your home when you and none of your wife & kids are home - and quite another to break in when you ARE home. The law generally considers 'certain felonies' to be "Inherently Dangerous Felonies" - meaning that it can be presumed by prosecutors that your life was / is in danger of Imminent Death or Serious Bodily Injury. You can easily remember these inherently dangerous felonies by using the Acronym "BARRKS". Here they are: Burglary, Arson, Rape, Robbery, Kidnapping, and Sodomy. Carjacking for example is really a combination of both Robbery & Kidnapping. These are 'Inherently Dangerous Felonies' - and would give rise to the use of Deadly Force in defending yourself and/or your Family Members. I hope this helps you. If needed, you can always consult a criminal defense attorney who has handled self-defense cases. I'd be glad to share with any of our fellow Forum members an article I co-authored with a SWAT buddy of mine for Concealed Carry magazine entitled "After the Shooting Stops: the Aftermath of a Lethal Encounter". For a copy of the article, drop me an e-mail at [email protected].
     
  19. Kleanbore

    Kleanbore Moderator Staff Member

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    "it can be presumed by prosecutors" is more accurately stated "the actor is presumed to have reasonably believed...."

    But the question was about shooting "if you didn't have to".

    If there is any evidence on that point, the presumption would be negated.

    Such evidence could include indications that the intruder had been departing, earwitness testimony to the effect that the intruder had given up or had entered the wrong house without malice, and so on.

    But there are no absolutes when it comes to juries. A coupe of years ago, a Texan found a young man in his house. The youth left, and the resident chased him outside and killed him.

    Not surprisingly, he was charged with murder, but surprisingly, he was not convicted.

    Two trials left him completely destitute.
     
  20. sota

    sota Member

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    perhaps it's too specific a question but it just popped into my head...
    if after confrontation with a criminal (apparently armed or not), if said criminal departs without further interaction but as he departs with his back to you points a firearm backwards (obviously not aiming, just firing blindly) does that qualify for a shoot-back response? he's technically running away but is actively attempting to bring harm to your person, if not in a very effective manner.

    my gut tells me "yes, shoot back damnit!" but it also tells me "damn that's going to be a hard one to sell to the jury."
     
  21. Sam1911

    Sam1911 Moderator Emeritus

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    1st rule: Do what you MUST to save your life (or that of a loved one).

    That doesn't mean "shoot if you CAN." It simply means do what you MUST do to save your life.

    If this idiot is shooting blindly behind himself as he flees, then he's still presenting some kind of a threat...at least a minor one. If you can't find any other way to preserve your life than to shoot him, then that's what you must do. (I'd imagine there would be other ways to get out of that danger, but this is all hypothetical...and a bit dumb.)

    2nd rule: There are no guarantees that what you MUST do will be found to be excusable under the law by a fair and impartial jury. The more circumspect your force response, the less likely you are to be found to have acted in a way that is not justified, generally, but even what is in the moment a perfectly clear case of shoot-or-die you have no guarantee that you won't end up destitute and imprisoned.

    Shooting someone IS better than death, and certainly better than the death of a loved one.

    But it is an AWFUL, TERRIBLE thing. Once you draw that gun and pull that trigger, your fate is not your own and your life hangs in the balance. Better than dying, but sometimes only just so.
     
  22. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Which is why most States have a law very much like the Tennessee law quoted in post 33 (Tennessee Code 39-11-611(c), emphasis added):

    Other States have laws to exactly the same effect and expressed in pretty much the same terms. (Note also that under the Tennessee statute and the laws of other States there are important exceptions which negate the presumption.)

    What does that mean?

    1. The statute first creates a presumption.

      • A presumption is a rule that affects evidence and burden of proof in court.

        • Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true.

        • So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

        • If the party claiming fact A is true has established the threshold conditions required to receive the benefit of the presumption, the burden shifts to the other side to prove that fact A is not true (i. e., "rebut the presumption").

      • So under this statute a defendant will be presumed to have held a reasonable belief of imminent death or serious bodily injury if he can show:

        • The person he used force against unlawfully and forcibly entered (or was entering); and

        • The defendant knew or had reason to believe that was the case.

    2. So if one needs the benefit of the presumption, he will need to establish those threshold facts.

      • That will be pretty straight forward if the guy you used force against kicked in your door in front of you.

      • It might be another thing if --

        • You hear a strange voice in the hall. Is it a stealthy burglar who unlawfully and forcibly entered by picking the lock on the back door? Or is it your daughter's boy friend who entered at her invitation?

        • a party guest gets rowdy or a repairman turns robber.

    These sorts of laws provide very useful legal protection for someone who really must use force to defend himself or a loved one from death or serious injury. They help the innocent person establish the legal justification for his act of violence. But they are not "licenses to kill", nor are they "get out of jail free cards."
     
  23. GJSchulze

    GJSchulze Member

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    I actually think it's useful. People need to understand what they can and can't do when someone enters their house unlawfully. I think there has been a lot of bravado and people showing that they don't understand the laws correctly. There have been cases of people shooting BG's as the BG retreats, or shooting them when they are trying to steal their parked, empty car. I scratch my head when they get acquitted. It happened here in Rochester a few years back.

    We must understand that there are consequences to shooting someone, even if you don't get arrested. Is someone really doing the right thing by their family when they get sued up the wazoo for a justified shooting?

    Shoot if the life of you and yours is truly threatened. Don't shoot if not. If you take reasonable steps to avoid shooting an intruder, you don't need to think about what the law says; you will have done everything a reasonable man could do.
     
  24. Kleanbore

    Kleanbore Moderator Staff Member

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    That's a slight variation on one of the rules of safety, but it most certainly does not mean that if you have drawn you should necessarily shoot.

    That is a terrible way to look at things, and one's having posted it in a public forum could have disastrous consequences should he or she ever end up in a use of force stituation in which the facts are not clear cut. Let no one follow that advice.

    The problem is, things can change quickly between the time one decides to draw and one has to decide to shoot. If someone is running at you with a knife, you will want to draw as quickly as possible, and you will be justified in doing so. But if the sight of your firearm causes him to drop the knife and throw up his hands, and if you shoot anyway, your only defense would be a claim that it all happened so quickly that you could not react.

    That might have been true, or not.

    The evidence may support that, or not.

    If the answer is "not", prepare to lose everything you have, including your personal freedom.

    I have been in a position of having to present a firearm in two forcible home invasion incidents and one attempted murder by someone who had entered the home unlawfully without force. I was certainly prepared to shoot, but in each incident, the violent criminal actor decided upon a different strategy when he saw the firearm. No, I did not "have to" shoot, and I did not do so.

    Time to reconsider that....

    There is a distinct difference between the presentation of a firearm in a use of force encounter and the actual use of deadly force.

    Should the former occur, and should it be decided that the act had not been justified, the crime would likely be some kind of assault.

    In the case of the latter, if the act had been intentional but ruled unjustified, the crime would be manslaughter or worse.
     
  25. Sam1911

    Sam1911 Moderator Emeritus

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    Many states even specifically recognize a difference between the two in the text of their use-of-force laws.

    The law itself recognizes a difference and when there might be a time for one but not the other. YOU'D better be able to recognize a difference, yourself.
     
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