# Guns, Dope, Dead People.  Little Something for Everybody



## Bill Mattocks (Oct 6, 2011)

I thought this story would give anyone a chance to wax wroth.  It's got everything.

http://www.kxly.com/news/29389620/detail.html



> Attorney: Woman Who Shot Robber Acted In Self-Defense
> Jeff Humphrey | KXLY4 Reporter
> 
> Posted: 5:13 pm PDT October 4, 2011Updated: 6:37 pm PDT October 4, 2011
> ...



Here's the story.  Woman is a medical marijuana user; she grows pot legally (by Washington state law, still illegal under federal law) in her back yard.  She hears a noise, sees a man pulling up her pot plants.  She rushes out and defends her pot with a 2x4.  Pot-robber takes the 2x4 from her and proceeds to begin beating both her and her developmentally-disabled brother with it.  She runs into the house, retrieves a pistol, and shoots the pot-robber dead.  In the back of the head.  In _'self-defense'_.

Oh where to begin?

* As a medical marijuana user, the federal government has just (last week) come out and said that she does not have the legal right to possess a firearm.
* Marijuana planted in one's backyard tends to attract crime.  Imagine that.
* I have to wonder if she would have rushed out and attacked the robber with a 2x4 if he had been stealing, say, her radishes instead of her pot?
* How do you shoot a bad guy in the back of the head in self-defense?
* Defending one's home with a gun seems pretty clear-cut;  defending one's pot?
* If she had not taken a 2x4 to the pot-robber, he would not have been able to take it from her, right?
* If a 2x4 is a deadly weapon in the hands of the pot-robber, then it was a deadly weapon when she started whacking the pot-robber with it.  Can you use deadly force to stop someone from stealing your garden crops legally?

Well...let's see where this goes...


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## Steve (Oct 6, 2011)

Sounds like a mess.
This question is interesting to me: "Defending one's home with a gun seems pretty clear-cut; defending one's pot?"  Had pot not been involved, I suspect you wouldn't think twice.  Protecting one's home and protecting one's property are often used interchangeably by gun advocates.   

Without knowing the details, I don't know if she lawfully owned the weapon or what happened.  But by your description, isn't it possible she shot the bad guy in the back of the head while he was beating her brother?


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## Bill Mattocks (Oct 6, 2011)

stevebjj said:


> Sounds like a mess.
> This question is interesting to me: "Defending one's home with a gun seems pretty clear-cut; defending one's pot?"  Had pot not been involved, I suspect you wouldn't think twice.  Protecting one's home and protecting one's property are often used interchangeably by gun advocates.



Well, I guess it depends on the state laws in question.  "Castle Doctrine" generally includes the inside of the home, not the outside.  Even the garage, if it is not attached to the house, cannot automatically be defended by deadly force using the Castle Doctrine as defense.

Also, there is a question as to what the threat is.  If the man was not armed and was uprooting pot plants in the back yard, what was the threat to the occupants of the house?  No threat, no right to self-defense with deadly force.  The right to defend one's property?  Yes.  With deadly force, hmmm.



> Without knowing the details, I don't know if she lawfully owned the weapon or what happened.  But by your description, isn't it possible she shot the bad guy in the back of the head while he was beating her brother?



Ah, yes, I guess that could be possible.  Or he could have been mule-kicking her.


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## Carol (Oct 6, 2011)

> Spokane Major Crimes detectives apparently believe that Bates was armed  at some point during the altercation because they asked that he be  charged with armed robbery.



"We continue to be exasperated by the view, apparently gaining momentum  in certain circles, that armed robbery is okay as long as nobody gets  hurt!  The proper solution to armed robbery is a dead robber, on the  scene." -- Col. Jeff Cooper


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## Bill Mattocks (Oct 6, 2011)

stevebjj said:


> Had pot not been involved, I suspect you wouldn't think twice.



Oh, and that's not true, at least in my case.  I have many times stated that while everyone has the right to defend themselves, their family, and their property, that does not mean they have the right to use deadly force to defend their property.  This is in accordance with general theories regarding self-defense:

http://en.wikipedia.org/wiki/Right_of_self-defense



> The defense of justification would fail, for example, if a defendant deliberately killed a petty thief who did not commit robbery and who did not appear to be a physical threat. However, the owner or lawful possessor of property has a privilege to use any degree of non-deadly force necessary to protect his possession or recover his property, regardless of no physical threat to his person.



This is not a perfect example.  Is pot value when it is being legally grown for medical reasons valuable?  If it is judged on 'street value' as an illicit drug, then stealing it might fall into the felony range; and laws differ with regard to a person's right to use deadly force to stop a felony versus a misdemeanor.  However, if we're talking about a basic farm crop, as if the pot were radishes, then the value is pretty low, clearly not a felony to steal it.  Hmmm.  How do you figure this one out?

Whether the woman was protecting her pot crop or her rutabagas, though, she had the right to *defend her property from theft*.  But not necessarily using deadly force. However, it gets interesting in that she chose to go after the guy with a 2x4.  She may not have seen that as a 'deadly weapon', but when he took it from her and began beating her and her brother with it, then apparently is *was* a deadly weapon, authorizing her (her lawyer claims) to then use deadly force to defend herself and her brother.

It's almost like tossing a shoplifter a knife and then shooting him because he had a deadly weapon.  Not sure it really flies, but it will be interesting to see what comes of all this.


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> "We continue to be exasperated by the view, apparently gaining momentum  in certain circles, that armed robbery is okay as long as nobody gets  hurt!  The proper solution to armed robbery is a dead robber, on the  scene." -- Col. Jeff Cooper



He wasn't armed until he took the stick she was hitting him with.  If I stop a shoplifter, hand him my knife, and he lunges at me with it, can I shoot him?


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## Monroe (Oct 6, 2011)

She shouldn't have shot him the back of the head. When I was mugged, the guy just wanted my weed, I didn't have much cash on me. I handed it over and he took off. I don't like a knife pointed at me anymore than the next person, but weed isn't worth my life. Someone digging around stealing pot out of my back yard isn't worth risking my life over. Turn on a light outside, get a good view for your description and call the cops. 

The lady had to be an idiot confronting him with the 2X4. It's just weed. Put up with some crappy pain killers with their side affects until you can get a new crop. I don't care what happens to her.

She wasn't smoking enough of her pot.


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## Monroe (Oct 6, 2011)

Originally Posted by *Carol* 

 
 				"We continue to be exasperated by the view,  apparently gaining momentum  in certain circles, that armed robbery is  okay as long as nobody gets  hurt!  The proper solution to armed robbery  is a dead robber, on the  scene." -- Col. Jeff Cooper

I completely disagree with this. Armed robbery isn't okay, but possessions aren't worth more than human life. Victim or perpetrator.


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## Carol (Oct 6, 2011)

Monroe said:


> Originally Posted by *Carol*
> 
> 
> "We continue to be exasperated by the view,  apparently gaining momentum  in certain circles, that armed robbery is  okay as long as nobody gets  hurt!  The proper solution to armed robbery  is a dead robber, on the  scene." -- Col. Jeff Cooper
> ...



Yet an armed robber is dictating exactly that -- possessions ARE worth more than human life.


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## Carol (Oct 6, 2011)

Bill Mattocks said:


> He wasn't armed until he took the stick she was hitting him with.  If I stop a shoplifter, hand him my knife, and he lunges at me with it, can I shoot him?



Not seeing how the statement corresponds with the story.  

Is a 2x4 a "stick" ?  I don't see it as such.  Did she hand him the garden shears?  Or the 2x4?


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## Monroe (Oct 6, 2011)

Carol said:


> Yet an armed robber is dictating exactly that -- possessions ARE worth more than human life.



The armed robber can have my possessions, I'm not taking a life over "stuff."


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> Not seeing how the statement corresponds with the story.
> 
> Is a 2x4 a "stick" ?  I don't see it as such.  Did she hand him the garden shears?  Or the 2x4?



I was using a euphemism.  A 2x4 is a stick; it's also a reasonably hefty piece of wood.  A deadly weapon, in other words.  And my point stands; if she was beating him with the 2x4, but it wasn't deadly force, and he took it away from her and commenced beating her with the same 2x4, now it suddenly is deadly force?  Again I am simply asking - if I arm a bad guy and then shoot him because he is armed, is that self-defense?  He would have had the 2x4 if she hadn't whacked him with it, would he?  As to the garden shears, that seems to be a variable at this time.  I'm not sure how they play into it.


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> Yet an armed robber is dictating exactly that -- possessions ARE worth more than human life.



I have no problem with an armed robber ending up dead.  I do have a problem with turning an unarmed robber into an armed robber so that you can shoot him legally.  Not quite cricket, IMHO.


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## Buka (Oct 6, 2011)

A man is stealing her medication. Good for her. I hope she walks and I hope her brother is okay.


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## Carol (Oct 6, 2011)

Bill Mattocks said:


> I was using a euphemism.  A 2x4 is a stick; it's also a reasonably hefty piece of wood.  A deadly weapon, in other words.  And my point stands; if she was beating him with the 2x4, but it wasn't deadly force, and he took it away from her and commenced beating her with the same 2x4, now it suddenly is deadly force?  Again I am simply asking - if I arm a bad guy and then shoot him because he is armed, is that self-defense?  He would have had the 2x4 if she hadn't whacked him with it, would he?  As to the garden shears, that seems to be a variable at this time.  I'm not sure how they play into it.



Google found 3 news articles on the story, none of them say that she was beating the robber or that she whacked him with the 2x4.  Perhaps he was, but the flow seems to be that she armed herself with the 2x4, the robber grabbed it and then began beating her brother, that's when she went in to the house to get the gun and shot the perp.  No mention that she struck the perp.   

As far as defending herself in general with the 2x4, might want to look at what Masaad Ayoob says about disparity of force, specifically a male attacker on female victim.


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## Carol (Oct 6, 2011)

Bill Mattocks said:


> I have no problem with an armed robber ending up dead.  I do have a problem with turning an unarmed robber into an armed robber so that you can shoot him legally.  Not quite cricket, IMHO.



You think the homeowner planted a weapon in the perps hands simply so she could go shoot him?


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## Carol (Oct 6, 2011)

EDIT -- double post.


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> You think the homeowner planted a weapon in the perps hands simply so she could go shoot him?



No, I'm not saying that.  I'm just noting that the man wasn't armed with a deadly weapon until she attacked him with it.


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## Carol (Oct 6, 2011)

Bill Mattocks said:


> No, I'm not saying that.  I'm just noting that the man wasn't armed with a deadly weapon until she attacked him with it.



So how did the weapon come in to his possession?


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> So how did the weapon come in to his possession?



Is some part of this unclear?  Are you trying to make a point?  She came outside with the weapon, began hitting him with it.  He took it away and began hitting her with the same weapon.

He was then armed with a deadly weapon and she had legal permission to defend herself with deadly force.  Except that he would not have had the weapon if she hadn't been beating him with it first.


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## Carol (Oct 6, 2011)

Bill Mattocks said:


> Is some part of this unclear?  Are you trying to make a point?  She came outside with the weapon, began hitting him with it.  He took it away and began hitting her with the same weapon.
> 
> He was then armed with a deadly weapon and she had legal permission to defend herself with deadly force.  Except that he would not have had the weapon if she hadn't been beating him with it first.



A few points, actually.  One, nothing in the news reports say she struck him.  Two, the dude had plenty options.  He didn't have to rob her place.  He didn't have to take the weapon, he could have chosen some sort of escape/evasion.    Once he did take the weapon he could have chosen to thrown it clear of the altercation point or done something other than choosing to beat her brother with it.   I don't think the perp would have been shot, or even caught, had he chosen to run back to the getaway car and told his  driver to hightail it out of there at instant he saw the robbery going south, instead of later on in the game.


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> A few points, actually.  One, nothing in the news reports say she struck him.  Two, the dude had plenty options.  He didn't have to rob her place.  He didn't have to take the weapon, he could have chosen some sort of escape/evasion.    Once he did take the weapon he could have chosen to thrown it clear of the altercation point or done something other than choosing to beat her brother with it.   I don't think the perp would have been shot, or even caught, had he chosen to run back to the getaway car and told his  driver to hightail it out of there at instant he saw the robbery going south, instead of later on in the game.



Regarding her hitting him with the stick, you're right, I'm wrong:



> The incident started when Kapfer spotted a man wearing a hoodie pulling up mature marijuana plants in her back yard. Kapfer, who has a medical marijuana card, picked up a two by four and tried to stop the thief.
> 
> That's when the man, now identified as Raymond Bates, took the two-by-four away from her and beat both her and her brother with the lumber.



However, this still leave the issue that a person is generally not authorized to use deadly force to stop a non-violent property crime.  The thief apparently posed no violent threat to her or her brother until she tried to stop him from stealing property, using a weapon that was later used on her and her brother.

Let's say that the guy was jaywalking and she rushed up to him with a board and tried to stop him from jaywalking.  He takes the board away from her and hits her with it, and she shoots him.  He should not have hit her with the board, true.  But he would not have had the board if she had not threatened him with it, and if she had simply called the police, he would have represented no threat to her at any time.

He committed the first crime, that of theft of property.  That would have been the end of it, but she committed the second crime, employing deadly force to try to stop him from committing a non-violent crime.  You seem offended that I would object to her defending himself against an 'armed robber', but he would not have BEEN an armed robber if she had not provided him with the weapon (willingly or not).

What was her risk of injury if she had gotten his description and called the police?


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## Nomad (Oct 6, 2011)

Bill Mattocks said:


> Regarding her hitting him with the stick, you're right, I'm wrong:
> 
> However, this still leave the issue that a person is generally not authorized to use deadly force to stop a non-violent property crime.  The thief apparently posed no violent threat to her or her brother until she tried to stop him from stealing property, using a weapon that was later used on her and her brother.



So wait... I'm confused.  Is brandishing a weapon or threatening someone with one considered (legally) the same as using it on them?  Otherwise, I don't think your question holds water.  

I see a big difference between holding a baseball bat and requesting that someone leave your yard immediately and actually beating the intruder with said bat.  In other words, the difference between the threat of violence and actual physical violence.

Can you "employ deadly force" without actually using your weapon?  Or is it more likely that she brought it along as "insurance" and was surprised (to say the least) when he took it away from her and used it against her?  Still not a great move, IMO.


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## Carol (Oct 6, 2011)

Bill Mattocks said:


> Regarding her hitting him with the stick, you're right, I'm wrong:
> 
> 
> 
> ...



This may be an area where we disagree, but I'm by no means offended.   What good is an argument if you don't have a good sparring partner?  :asian:  
(cue Monty Python's Argument Clinic)

I disagree with the fact that the perp was "provided" with a weapon.  He took it and attacked her brother.  He didn't have to take the weapon, let alone attack her brother...but he did.  Don't do the crime, if ya can't do the time.


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## Bill Mattocks (Oct 6, 2011)

Nomad said:


> So wait... I'm confused.  Is brandishing a weapon or threatening someone with one considered (legally) the same as using it on them?  Otherwise, I don't think your question holds water.



Brandishing is assault.  Hitting is battery.



> I see a big difference between holding a baseball bat and requesting that someone leave your yard immediately and actually beating the intruder with said bat.  In other words, the difference between the threat of violence and actual physical violence.



The bat is a deadly weapon.  Yes?  If a person is in reasonable fear that you are about to hit them with it, you have in fact already assaulted them.  Actually hitting them is a separate crime.



> Can you "employ deadly force" without actually using your weapon?  Or is it more likely that she brought it along as "insurance" and was surprised (to say the least) when he took it away from her and used it against her?  Still not a great move, IMO.



Once again I ask the obvious, but no one seems to want to answer it.  As to her right to self-defense; what danger was she in BEFORE she chose to confront the pot-thief with a two by four?  When you put yourself in danger, it is possible you will have to defend yourself; you may even be legally entitled to do so; but it's not like she was in danger inside her house; she wasn't.

And I also ask again; what if the thief had been stealing her radishes instead of her pot?  Is there a difference in how she would have been expected to respond?


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> I disagree with the fact that the perp was "provided" with a weapon.  He took it and attacked her brother.  He didn't have to take the weapon, let alone attack her brother...but he did.  Don't do the crime, if ya can't do the time.



We're playing chicken and egg.  She was not in danger UNTIL she came outside with a weapon in her hands.  He took it and used it on her, which then entitled her to defend herself with deadly force; except that if she had not confronted him with the board, he would have been unable to threaten her life or safety in any way.


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## Monroe (Oct 6, 2011)

Why was it that she couldn't have just called the police? It didn't make any sense to leave the house. She sounds like an idiot.


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## Bill Mattocks (Oct 6, 2011)

Found some more information.  Not holding out on anyone, I just looked for this a few minutes ago:

http://www.khq.com/story/15617259/update-burglary-suspect-shot-in-the-head-in-northeast-spokane



> According to a probable cause affidavit victims Darcee Kapfer and Jason Kirby saw a man they didn't know stealing Kapfer's mature marijuana plants from her backyard area. Kapfer then "armed herself with an eight food 2x4 board" but at some point, the man proceeded to take the board away from Kapfer and hit Kirby in the rib cage with the 2x4 instead. At that point the documents state Kapfer went inside her rental home to get a .38 caliber Revolver.
> 
> Then the documents state Kapfer saw the man carrying at least one of the marijuana plants over a three foot chain link fence and into the alley way. Both Kapfer and Darby saw another man sitting in a nearby truck, which was parked next to the backyard fence. The man then got into the truck and the truck sped away, but not before Kapfer fired five times toward the unknown man in the truck who had been carrying the marijuana plant.



OK, so now things look even less like self-defense.

1) Robber takes pot plants.
2) She goes out with a 2x4 and confronts him.
3) He takes the board and hits her with it.
4) She goes back into her house (he does not pursue) and arms herself with a pistol.
5) She goes BACK OUT and confronts robber a second time.
6) He flees.
7) She shoots at him as he drives away, hitting him in the head.

Self-defense?  I don't think so.  If there was a question about it, it's pretty much gone now. 

Oh, and:


> Deruwe said Kapfer could potentially face criminal charges as well. According to police, Kapfer may have had more plants than permitted under Washington's new medical marijuana law. Deruwe said Kapfer claims she was growing solely for personal use and not maintaining a garden.
> 
> Authorities in Spokane have cracked down on medical marijuana recent months. In April and May, federal agents working with local law-enforcement raided at least seven dispensaries the city. Several dispensary owners now face federal charges.


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## Carol (Oct 6, 2011)

Bill Mattocks said:


> Found some more information.  Not holding out on anyone, I just looked for this a few minutes ago:
> 
> http://www.khq.com/story/15617259/update-burglary-suspect-shot-in-the-head-in-northeast-spokane
> 
> ...



Counterpoints:

http://www.spokesman.com/blogs/sirens/2011/oct/04/police-identify-pot-thief-shot-woman/




> Kapfer said she armed herself with a 8-foot piece of wood, but the thief  grabbed it and struck Kirby, so she retrieved a .38 caliber revolver  from her home and fired it at him five times, according to  court documents.






> Police found 11 plants in her  yard, which is under the legal limit.


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> Counterpoints:
> 
> http://www.spokesman.com/blogs/sirens/2011/oct/04/police-identify-pot-thief-shot-woman/



Again, it's not self-defense when she retreats to safety, gets a gun and comes out to confront him a second time.  Her right to self-defense ended when she retreated to her house and he did not pursue her.

And if she did not shoot him in the head while he was in the truck, it will be interesting to find out how he got hit in the back of the head.


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## Carol (Oct 6, 2011)

Bill Mattocks said:


> Again, it's not self-defense when she retreats to safety, gets a gun and comes out to confront him a second time.  Her right to self-defense ended when she retreated to her house and he did not pursue her.
> 
> And if she did not shoot him in the head while he was in the truck, it will be interesting to find out how he got hit in the back of the head.



She still has a right to protect a developmentally delayed family member, eh?  Providing she shot him while he was beating up her brother.


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> She still has a right to protect a developmentally delayed family member, eh?  Providing she shot him while he was beating up her brother.



Yes, I suppose in that scenario, she would.  I didn't see that described anywhere, but it will be interesting to see how this plays out.


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## Monroe (Oct 6, 2011)

Carol said:


> She still has a right to protect a developmentally delayed family member, eh?  Providing she shot him while he was beating up her brother.



She shot him in the back of the head while he was in a truck. She was not defending anyone as her brother wasn't even in the truck. That's revenge, not self-defence.


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## Nomad (Oct 6, 2011)

It will indeed be interesting to see how this plays out.  Obviously, if she shot him in the head as he was driving away, that's definitely not self defense, and she should (and likely will) be charged for it.  Even if these are the facts of the case, I also completely understand why _her lawyer_ is spinning it this way.

As to your other question; if someone were in my backyard rooting around, there is a strong likelihood that I'd confront them and politely ask them to leave (ignoring for now the fact that my two dogs would likely be doing likewise well before I got there).   I'd likely also have an equalizer of some kind in hand to deter the intruder (or his unseen friends) from rushing me.  It might well be a stick (though not a 2 x 4; more likely a jo or rattan stick).  It would not be held in a threatening manner, but the meaning is pretty universal.  The difference is that it's very unlikely that the intruder would be able to take it from me and use it against me since I've actually trained quite a bit with this type of weapon.

I'm curious... at what point does it officially become assault?  I get that it's pretty clear if you tell someone you're going to take his head off with it; but if you're just holding it in a non-threatening manner, is that still assault?  I certainly would have motive (protecting property) and opportunity to assault someone, but I'm not sure you can show intent unless I give it away by saying something dumb, or start swinging it in their general direction.


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## Steve (Oct 6, 2011)

Do we know if she was the lawful owner of the gun?


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## Carol (Oct 6, 2011)

Nomad said:


> It will indeed be interesting to see how this plays out.  Obviously, if she shot him in the head as he was driving away, that's definitely not self defense, and she should (and likely will) be charged for it.  Even if these are the facts of the case, I also completely understand why _her lawyer_ is spinning it this way.
> 
> As to your other question; if someone were in my backyard rooting around, there is a strong likelihood that I'd confront them and politely ask them to leave (ignoring for now the fact that my two dogs would likely be doing likewise well before I got there).   I'd likely also have an equalizer of some kind in hand to deter the intruder (or his unseen friends) from rushing me.  It might well be a stick (though not a 2 x 4; more likely a jo or rattan stick).  It would not be held in a threatening manner, but the meaning is pretty universal.  The difference is that it's very unlikely that the intruder would be able to take it from me and use it against me since I've actually trained quite a bit with this type of weapon.
> 
> I'm curious... at what point does it officially become assault?  I get that it's pretty clear if you tell someone you're going to take his head off with it; but if you're just holding it in a non-threatening manner, is that still assault?  I certainly would have motive (protecting property) and opportunity to assault someone, but I'm not sure you can show intent unless I give it away by saying something dumb, or start swinging it in their general direction.



If I am recalling correctly, assault occurs when there is criminal intent.   (I'm an engineer, not an attorney....don't trust your freedom to my words)  

Scenario 1:  you're walking up to me while I'm raking leaves.  You ask for directions to city hall, I don't drop the rake.   This likely isn't assault, keeping the rake in my hands doesn't demonstrate criminal intent.  

Scenario 2:  Lets say I'm out raking leaves, and I decide to put on a blond pigtailed wig, a viking hat, and I start tossing the rake around my yard singing exerpts from Wagner operas.  You're in the house across the street and call the cops, thinking I have truly lost my mind.  Might be a bit....strange, might even meet a definition of reckless behaviour.   But probably not enough intent to prove assault, even with my spear and magic helmet 


Scenario 3:  I'm out raking leaves, you're in the street walking by and ask me for the time.  I come charging at you swinging my rake around.  That sort of thing is assault, even if I don't hit you (if I do, its battery).


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## Carol (Oct 6, 2011)

Monroe said:


> She shot him in the back of the head while he was in a truck. She was not defending anyone as her brother wasn't even in the truck. That's revenge, not self-defence.



The accounts don't agree that he was definitely shot in the head while in the truck.   If that turns out to be the case, then I would agree with you and Bill -- that is indeed revenge.  The police action in this case is consistent with her actions being self-defense, and not revenge.  Without more information, I'm willing to give the Spokane Police detectives the benefit of the doubt in thinking that they know the difference between the two and took appropriate action.


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## Bill Mattocks (Oct 6, 2011)

Carol said:


> If I am recalling correctly, assault occurs when there is criminal intent.   (I'm an engineer, not an attorney....don't trust your freedom to my words)
> 
> Scenario 1:  you're walking up to me while I'm raking leaves.  You ask for directions to city hall, I don't drop the rake.   This likely isn't assault, keeping the rake in my hands doesn't demonstrate criminal intent.
> 
> ...



Not quite.  Criminal intent is not required for there to be assault.  The victim merely has to be reasonably in fear of their life.  In 'Scenario 1', if I feel you are about to attack me, the 'reasonable and prudent man' argument will say that I am incorrect.  There is no assault because even if I claim to be in fear, a 'reasonable and prudent man' would not be.

I'll leave the Viking situation alone for now.

In 'Scenario 3', you are correct, but it is not down to whether or not you actually intend to hit me with the rake.  Perhaps you only intend to frighten me.  Perhaps you think it's a funny joke.  Perhaps you're just a nut.  In any case, what YOU intend is not the issue; it's whether or a not a 'reasonable and prudent man' would be in fear.  That hypothetical person would, so this is probably an assault.


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## Carol (Oct 6, 2011)

Bill Mattocks said:


> Not quite.  Criminal intent is not required for there to be assault.  The victim merely has to be reasonably in fear of their life.  In 'Scenario 1', if I feel you are about to attack me, the 'reasonable and prudent man' argument will say that I am incorrect.  There is no assault because even if I claim to be in fear, a 'reasonable and prudent man' would not be.
> 
> I'll leave the Viking situation alone for now.
> 
> In 'Scenario 3', you are correct, but it is not down to whether or not you actually intend to hit me with the rake.  Perhaps you only intend to frighten me.  Perhaps you think it's a funny joke.  Perhaps you're just a nut.  In any case, what YOU intend is not the issue; it's whether or a not a 'reasonable and prudent man' would be in fear.  That hypothetical person would, so this is probably an assault.



Ahhh that makes sense.  Thanks for the clarification


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## Bill Mattocks (Oct 6, 2011)

stevebjj said:


> Do we know if she was the lawful owner of the gun?



According to the federal government, even if she is the lawful owner of the gun, the fact that she is a medical marijuana user means she has forfeited her right to own a firearm.  So whether she was the owner or not, she is not allowed to possess the weapon.


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## Big Don (Oct 6, 2011)

There were ZERO law abiding people involved in this incident.
If you're going to threaten a bad guy with a weapon, threaten them with a GUN.
Do not, under any circumstances be beaten with the weapon you bring to the party.


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## David43515 (Oct 6, 2011)

This is going to be an interesting one to watch. Her lawyer says she shot him in her yard during the fight. The police report she filed (if I read the news links already provided correctly) says she shot him while he was fleeing in his truck. All we know for sure right now is that we don`t have enough info to make an informed opinion.

I don`t even know the details of Washington`s laws for using deadly force. Do they extend to protecting property from theft, like the laws of Texas? Or would it only be justified if her brother was still being beaten when she returned, like my home state of Ohio? Does she have a duty to retreat if she can, like some New England  states require? Who`s gun is it?Odds are even if she makes a self defense case, she`s screwed because she can`t own one legally and I don`t think her mentally handicapped brother can either.

In my own opinion they should have just called the cops from inside. If her brother is developmently handicapped and she`s in some condition that allows her to be on medical marijuana, they had no business getting anywhere near a theif if they were already safe inside. Two points no one else has brought up are 1)Why didn`t she call the cops after the shooting? And why did it take the cops 20 minutes to respond to a 911 call about shots fired? The house didn`t look like it was in a rural area, and the news called them local police instead of county sheriff`s deputies. So many questions.(why did those idiot theives try to do this in broad daylight instead of at night?)


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## Big Don (Oct 6, 2011)

Criminals probably hesitate to call the police when other criminals victimize them...


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## JohnEdward (Oct 7, 2011)

In Texas, you steal you can be shot dead standing there or running away. That simple.  The pot plant is her property. All she had to do is shoot him in the first place, no 2x4 required. I agree with Bill it is a messy situation in another state that doesn't have a cut and dry law. 1. she is protecting otherwise illegal hallucinogenic plants which probably totaled under $1000.00.  2. Does she have the legal right to own a hand gun.  3. Shooting him in the head while he was driving away claiming self defense.  Boy is the prosecuting attorney going to have fun with that case. It is a cake walk. It will have a rippling effect among those who grow pot for medical purposes.


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## Big Don (Oct 7, 2011)

JohnEdward said:


> It will have a rippling effect among those who grow pot for medical purposes.


 In direct violation of federal law.
Fixed that for you...


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## Buka (Oct 7, 2011)

And while this is in California rather than Washington state, it certainly could add some fuel to the fire.

http://hosted.ap.org/dynamic/stories/U/US_MEDICAL_MARIJUANA?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2011-10-06-15-51-35


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## Bill Mattocks (Oct 7, 2011)

Buka said:


> And while this is in California rather than Washington state, it certainly could add some fuel to the fire.
> 
> http://hosted.ap.org/dynamic/stories/U/US_MEDICAL_MARIJUANA?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2011-10-06-15-51-35



I'm not terribly surprised; it's happening in Michigan also; but it's the state actually cracking down.

See, Michigan passed a 'medical marijuana' law a couple years ago, but it almost instantly became exactly what the people who started the ballot initiative said it would NOT become; which was simply legalized recreational use.  "Medicine" my ***.  Yes, I am sure that there were some few people using it for actual medical needs, but the majority are just potheads who want to get high.  Huge companies popped up overnight with monster paintings of pot leaves and bongs on the sides of the buildings, big signs saying _"GET YOUR MARIJUANA CARD INSTANTLY!  DOCTOR ON PREMISES!"_  It just nothing more than a complete lie.  The public in Michigan were conned into voting for what they thought was marijuana for legitimate medical use, but which turned out to be nothing more than legalized dope.  So the state is cracking down and I'm glad.


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## oftheherd1 (Oct 7, 2011)

I don't have time to read the whole thread at this point, so what I say may have already been covered.

First, self defense does not usually apply to property.  I know of no jurisdiction in the USA that would allow that, but stand to be corrected if there is one.  If I shoot a person trying to set my house on fire, and I and my family are in the house, I can make a good arguement that I am not defending my property so much as myself and my family.  Defending my family is not self defense, but most state laws allow defense of someone you are obligated, or allowed to defend, as justification to use deadly force against deadly force.  But just to defend property, it isn't going to be a justification for using deadly force.

Bill, if you hand someone a knife and they attack you with it, legally you can reply with deadly force if you have no means of retreat.  Practically, you would probably be made to look pretty stupid in court, as to why you handed someone a knife.  You would also probably have to explain why you had the knife if there was any question as to that legality.  If you weren't authorized to have the knife, you might find yourself labled a felon participating in a crime, and not have any defense.  And if the local law, as most, require a proof there was no retreat, you will have to answer for that, proving you had none.

As to retreat or using a 2x4 to begin with, I would need more facts, such as was she in a position where she felt she had to protect her brother or herself.  If so, some jurisdictions allow that a person of small stature, or facing someone who appears to have superior fighting ability and the inclination to use it, may use deadly force.  They will have to convince a DA and/or a jury they feared for their life, or the life of someone they are authorized to protect, and had no retreat.  Some allow that a victim fearing they could not escape an attack or imminent attack, for instance, being disabled, or not a fast runner, might be justified in using deadly force in defense.  If it isn't very obvious, they still may find themselves defending it in court.

Once a thief, or even an assaulting attacker, breaks off the commission of the crime, deadly force is not justified in any jurisdiction I am aware of.  If she reasonably feared her brother had been killed, or in fact knew he had been, I don't know that most DA would prosecute.  However, as I have read up to the end of the second page of the thread, that wasn't so.  When the thief/robber broke off his attempts/attacks, he was still game for a citizens arrest, but not to be shot and killed.  Worse, he not only broke off his attack, he was fleeing.  She could have stopped and called the police.  She had no legal right to shot him in defense of property, even though his possession of the property may have constituted another crime besides theft.

Sorry for the long post, but I wanted to cover everything I thought was necessary.


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## RandomPhantom700 (Oct 7, 2011)

Bill Mattocks said:


> No, I'm not saying that. I'm just noting that the man wasn't armed with a deadly weapon until she attacked him with it.



This doesn't matter.  What's important is whether the criminal became armed at any point during the crime.  I've seen a case where a burglary of a dwelling became an armed burglary of a dwelling because...you guessed it...one of the items stolen was a gun.  In other words, the thieves didn't show up armed.  (Note: no residents were there at the time, so self-defense was not an issue).  

As for the rest of the thread, the original post is way too loaded.  Sorry.


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## JohnEdward (Oct 7, 2011)

Ok, I didn't read everything. The case is in California, well she is going to jail. Not for the pot, because she shoot someone stealing. See California has lots of criminal rights. Like when a criminal is in your home, if you wound him, you get sued by the criminal you shot, and go to jail for 10-20.  If you kill him, you go to jail for life. California is full of cases like that. California has a low tolerance for the victim defending themselves. Far as the pot is concerned, California being a pot friendly place, well that is just being a bogart, and no one should be shot for that to put it in pot smoking vernacular.  The women and the 2x4 assaulted and or battered the thief, and the thief was just protecting himself - welcome to California justice. Again in Texas, she has a right to protecting herself and her property. That is it.  The issue for me is how the Texas Supreme Court would see the pot plants. or the laws surrounding growing for and medical use.  I don't smoke pot, I don't know stuff like that.


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