The Pre-Emptive Strike, The Law and The 3rd Party View.

[MJS]

http://www.cga.ct.gov/2007/rpt/2007-R-0052.htm

My theory is simple. I didn't invite someone into my home, at 3am. You use force to enter my residence with the intent to rob and possibly cause serious bodily harm to me and my wife. That being said, you get what you deserve and if that means a dog bite, or hit with a blunt object or my hands, then so be it. In light of the home invasions that have happened in my state, I'm not taking the chance that the same will happen to me.

 

[kwaichang]

Indeed I wouldn't take a chance either. However, what all have been pointing out here is the vagueness of the law in many states and the duty to retreat in others.
Thus post # 39 which was handed down for generations in my family and others I grew up with.:supcool:

 

[allenjp]

With very few exceptions, you cannot use lethal force to defend property; even a dirtbag's life outweighs most mere "stuff." The premise in the Castle Doctrine isn't that you're defending your home -- it's a presumption that a person who breaks into your house intends to do you harm, and you're entitled to protect yourself from that harm. Even in Texas (the most liberal codification I'm aware of is Texas law), I still wouldn't suggest simply blasting someone breaking into your house or trying to take your stuff. You might win the criminal trial -- but you'll probably have an uphill battle in the wrongful death case.

In California this is one area where the law is actually quite clear. When I say property crime I am more talking about your car, or something outside of your home. For example if someone is stealing something out of your back yard, or vandalizing your car in your driveway you cannot shoot him. However, the minute he forcibly enters your house you have every right to shoot him immediately because the law presumes that you have a reasonable fear of great bodily harm at that point.

 

[FearlessFreep]

Ah

In California this is one area where the law is actually quite clear. When I say property crime I am more talking about your car, or something outside of your home. For example if someone is stealing something out of your back yard, or vandalizing your car in your driveway you cannot shoot him. However, the minute he forcibly enters your house you have every right to shoot him immediately because the law presumes that you have a reasonable fear of great bodily harm at that point.

Ahh... the "Hansel and Gretel" Defense

 

[allenjp]

Ah

Ahh... the "Hansel and Gretel" Defense

uhhhh, wha???

 

[kwaichang]

Ah

Ahh... the "Hansel and Gretel" Defense

no, no, that's where you stone him to death with batches of ginger bread cookies stashed inside a heavy purse.:wink:

 

[FearlessFreep]

no, no, that's where you stone him to death with batches of ginger bread cookies stashed inside a heavy purse.:wink:

I just thought it was when you cook the intruders because they've started eating your house

 

[allenjp]

I said "entering", not "eating" lol...

 

[kwaichang]

I just thought it was when you cook the intruders because they've started eating your house

Oh, yeah, right; the "push them in the oven" defense.:supcool:

 

[sgtmac_46]

With very few exceptions, you cannot use lethal force to defend property; even a dirtbag's life outweighs most mere "stuff." The premise in the Castle Doctrine isn't that you're defending your home -- it's a presumption that a person who breaks into your house intends to do you harm, and you're entitled to protect yourself from that harm. Even in Texas (the most liberal codification I'm aware of is Texas law), I still wouldn't suggest simply blasting someone breaking into your house or trying to take your stuff. You might win the criminal trial -- but you'll probably have an uphill battle in the wrongful death case.

That's perfectly legal in Texas and Missouri......oh, and the statute ALSO grants CIVIL immunity, so no 'wrongful death lawsuits'. Even attempting one in Missouri results in the plaintiff being responsible for all attorney's fees on both sides, court costs.....AND any cost I incur defending myself. Meaning fishing expeditions aren't real likely when A) The odds of winning are stacked and B) You have to pay all costs for even trying. The uphill battle becomes THEIRS.....as it should be.

In fact, Missouri law makes it 'PRESUMED' that if someone 'Enters, attempts to enter or remains unlawfully in your residence OR vehicle OR temporary residence (including a tent or motel room) they are PRESUMED to be a threat to your LIFE'. So any discussion of whether they just want your property is moot and irrelavent.

The reasonable man sets out to adapt himself to fit the world around him......Texans and Missourians aren't reasonable people.......we set out to adapt the world (or at least our state laws) to fit us! Imagine that.....government OF the PEOPLE, FOR the PEOPLE, and BY the PEOPLE! What a concept!

Use of force in defense of persons.

563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

(1) The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:

(a) He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or

(b) He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or

(c) The aggressor is justified under some other provision of this chapter or other provision of law;

(2) Under the circumstances as the actor reasonably believes them to be, the person whom he or she seeks to protect would not be justified in using such protective force;

(3) The actor was attempting to commit, committing, or escaping after the commission of a forcible felony.

2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:

(1) He or she reasonably believes that such deadly force is necessary to protect himself or herself or another against death, serious physical injury, or any forcible felony; or

(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person.

3. A person does not have a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining.

4. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

5. The defendant shall have the burden of injecting the issue of justification under this section.

http://www.moga.mo.gov/statutes/C500-599/5630000031.HTM

And THIS LITTLE SECTION HERE!

Justification as an absolute defense, when.

563.074. 1. Notwithstanding the provisions of section 563.016, a person who uses force as described in sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061 is justified in using such force and such fact shall be an absolute defense to criminal prosecution or civil liability.

2. The court shall award attorney's fees, court costs, and all reasonable expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant has an absolute defense as provided in subsection 1 of this section.

http://www.moga.mo.gov/statutes/C500-599/5630000074.HTM

 

[sgtmac_46]

Two court cases I know of. One was a deputy who worked in corrections (who was off duty at the time) and used to get into fights with his wife. I knew someone who knew both parties and it was fighting it wasn't an abuse situation, it was a two way street. His wife had diagnosed psych issues and would fly off the handle and start hitting him. One day when they are fighting, she calls the police, one thing leads to another and he is arrested and jailed. The court set a HUGE bond amount because part of their logic was being a trained officer he was trained in hand to hand and could seriously hurt someone more than the average citizen.

The other case was a regular citizen who punched his girlfriend and cracked her orbital socket. He was charged quite high with a huge bond and part of the court's reasoning was that the guy took kickboxing and he was a "trained fighter" who would hurt someone more seriously than the average person.

Is there something on the books that says if you're a LEO or MA that your hands are "deadly weapons", no but in my experience where I live it does play a big part on how you're charged and your bond while awaiting trial.

PS: We found out about the fighting AFTER this incident happened. Most people in the dept. did not know this was happening. Long story, but someone knew the guy's wife and she would always talk about them fighting and that she would just start hitting him.

You WILL be held to a higher standard as a police officer, and that doesn't have to be codified. A prosecutor of whatever jurisidiction your incident occurred in will be PRESSURED by public interest to take a 'special' interest in your case. The PERCEPTION by the public is that you will get 'special favor' because you are a cop. The opposite is true....in an effort to show that they aren't biased TOWARD you because you a police officer, the Prosecutor WILL give you BOTH barrels of the criminal justice system.

 

[sgtmac_46]

Unfortunately, there is NO Castle Doctrine in Virginia. It was defeated in the Senate in 2007. However, the following may be of interest.
Brandishing a Deadly Weapon In Defense of Personal Property is A Criminal Act
Virginia case law, found here has several excellent examples of situations and their legality.
http://www.virginia1774.org/Page5.html


The threat to use deadly force by brandishing a deadly weapon has long been considered an assault. Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). In Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935),

No, not yet....but a number of folks are fighting for an enhanced castle doctrine to pass in Virginia so I think it's only a matter of time. Anyone living in Virginia should call their representatives.

 

[KenpoTex]

That's perfectly legal in Texas and Missouri......oh, and the statute ALSO grants CIVIL immunity, so no 'wrongful death lawsuits'. Even attempting one in Missouri results in the plaintiff being responsible for all attorney's fees on both sides, court costs.....AND any cost I incur defending myself. Meaning fishing expeditions aren't real likely when A) The odds of winning are stacked and B) You have to pay all costs for even trying. The uphill battle becomes THEIRS.....as it should be.

In fact, Missouri law makes it 'PRESUMED' that if someone 'Enters, attempts to enter or remains unlawfully in your residence OR vehicle OR temporary residence (including a tent or motel room) they are PRESUMED to be a threat to your LIFE'. So any discussion of whether they just want your property is moot and irrelavent.

The reasonable man sets out to adapt himself to fit the world around him......Texans and Missourians aren't reasonable people.......we set out to adapt the world (or at least our state laws) to fit us! Imagine that.....government OF the PEOPLE, FOR the PEOPLE, and BY the PEOPLE! What a concept!

beat me to it...while I'm originally from Texas, I can't complain too much about living in MO when we have laws like the above.
I just wish they'd done what Fl. did and extended the protection to include "anywhere you have a legal right to be" (not just at home or in the car).

 

[sgtmac_46]

beat me to it...while I'm originally from Texas, I can't complain too much about living in MO when we have laws like the above.
I just wish they'd done what Fl. did and extended the protection to include "anywhere you have a legal right to be" (not just at home or in the car).

That was the way it originally read.....but a couple of the interests groups managed to get the language modified. Still, not bad as it stands!

 

[kwaichang]

Anyone living in Virginia should call their representatives.

Indeed and join the NRA-ILA as both help get laws that protect honest citizens.

 

[Andy Moynihan]

I like Texas and Missouri.

 

[kwaichang]

 

[Andy Moynihan]

MINE!!!!!!!!!!!

 

[KenpoTex]

I like Texas and Missouri.

If you ever decide to move to to the US, they're hard to beat

 

[sgtmac_46]

Indeed and join the NRA-ILA as both help get laws that protect honest citizens.

Thanks for saying what I should have said.


I AM THE NRA!