PDA

View Full Version : Rochester, NY man charged with murder, claims self defense


mikejonestkd
April 7, 2009, 10:43 AM
A local story from last weekend:

http://www.msnbc.msn.com/id/30075521/

Greece Police were called to Baneberry Way this weekend because they say 17-year-old Christopher Cervini and two other teens were going through unlocked vehicles in that neighborhood.

A neighbor, Roderick Scott, says he called 911, grabbed his gun and went outside. Scott told police he confronted the teens and when he did, Cervini came at him and he fired three shots.

I heard the defense attorney on the radio this morning. The homeowner was awake at 3:30 am and saw three youths going through several cars in the neighborhood. Girlfriend calls 911, he goes outside with a registed handgun to detain the kids. Two kids flee, one apparently comes at the homeowner, three shots fired and a 17 year old kid is dead.

One thing that is very disturbing ( other than the tragic death of a kid over a petty crime ) is that the homeowner has been charged with murder and is already going before a grandjury tomorrow. The defense attorney claims he is being railroaded because the kid was a good kid from a good neighborhood and that the local DA is going to make an example of him..

Please discuss your thoughts on this, and hopefully it can serve as a lesson to remind homeowners to not go outside to defend property in states where it is clearly not allowed....

Kmar40
April 7, 2009, 10:49 AM
Kid is clearly not a good kid from a good neighborhood.

One less thief. Good job.

besafe2
April 7, 2009, 10:49 AM
None of us were there to really know what happened, but based on your post if some one was going through cars it disturbs me that he would go outside with a hand gun.

KLRANGL
April 7, 2009, 10:51 AM
Without knowing all the facts you can only say so much.
Homeowner made a mistake by going outside... Kid made a mistake by moving towards an armed man :(
Murder no, manslaughter maybe...

Kid is clearly not a good kid from a good neighborhood.

One less thief. Good job.
Come on man, you saying you were a perfect kid? Robbing cars definitely deserves more than a slap on the wrist, but to be killed for it?

mikejonestkd
April 7, 2009, 10:54 AM
Poor decisions on the part of the homeowner IMO:

1. he went outside after he knew the police were on the way.
2. he brought a gun to a situation that gave no indication that it was going to be violent.
3. he went to defend someone else's property ( not justifiable in NYS )
4. he attempted to detain the youths
5. he did not retreat when one youth approached him ( duty to retreat in NYS )


probably a few more bad decisons on his part that I missed..

ar15chase
April 7, 2009, 10:54 AM
If I got somebody trying to steal my car or anything in it I would go outside with a handgun also. I have the right to defend my property. If the guy would have charged at me, I would have fired on him too. For all that guy knew the BG could have had a knife.

Brian Pfleuger
April 7, 2009, 10:55 AM
He's got a tough road ahead.

Here's the NY law on the subject, so we can keep this informed:

S 35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use
physical force upon another person when and to the extent he reasonably
believes such to be necessary to defend himself or a third person from
what he reasonably believes to be the use or imminent use of unlawful
physical force by such other person, unless:
(a) The latter`s conduct was provoked by the actor himself with intent
to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case his
use of physical force is nevertheless justifiable if he 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 imminent use of unlawful physical force; or
(c) The physical force involved is he product of a combat by
agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless:
(a) He reasonably believes that such other person is using or about to
use deadly physical force. Even in such case, however, the actor may not
use deadly physical force if he knows that he can with complete safety
as to himself and others avoid the necessity of so doing by retreating;
except that he is under no duty to retreat if he is:
(i) in his dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police
officer or a peace officer at the latter`s direction, acting pursuant to
section 35.30; or
(b) He reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible sodomy or
robbery; or
(c) He reasonably believes that such other person is committing or
attempting to commit a burglary, and the circumstances are such that the
use of deadly physical force is authorized by subdivision three of
section 35.20.

S 35.20 Justification; use of physical force in defense of premises and
in defense of a person in the course of burglary.
1. Any person may use physical force upon another person when he or
she reasonably believes such to be necessary to prevent or terminate
what he or she reasonably believes to be the commission or attempted
commission by such other person of a crime involving damage to premises.
Such person may use any degree of physical force, other than deadly
physical force, which he or she reasonably believes to be necessary for
such purpose, and may use deadly physical force if he or she reasonably
believes such to be necessary to prevent or terminate the commission or
attempted commission of arson.
2. A person in possession or control of any premises, or a person
licensed or privileged to be thereon or therein, may use physical force
upon another person when he or she reasonably believes such to be
necessary to prevent or terminate what he or she reasonably believes to
be the commission or attempted commission by such other person of a
criminal trespass upon such premises. Such person may use any degree of
physical force, other than deadly physical force, which he or she
reasonably believes to be necessary for such purpose, and may use deadly
physical force in order to prevent or terminate the commission or
attempted commission of arson, as prescribed in subdivision one, or in
the course of a burglary or attempted burglary, as prescribed in
subdivision three.
3. A person in possession or control of, or licensed or privileged to
be in, a dwelling or an occupied building, who reasonably believes that
another person is committing or attempting to commit a burglary of such
dwelling or building, may use deadly physical force upon such other
person when he or she reasonably believes such to be necessary to
prevent or terminate the commission or attempted commission of such
burglary.
4. As used in this section, the following terms have the following
meanings:
(a) The terms "premises," "building" and "dwelling" have the meanings
prescribed in section 140.00;
(b) Persons "licensed or privileged" to be in buildings or upon other
premises include, but are not limited to:
(i) police officers or peace officers acting in the performance of
their duties; and
(ii) security personnel or employees of nuclear powered electric
generating facilities located within the state who are employed as part
of any security plan approved by the federal operating license agencies
acting in the performance of their duties at such generating facilities.
For purposes of this subparagraph, the term "nuclear powered electric
generating facility" shall mean a facility that generates electricity
using nuclear power for sale, directly or indirectly, to the public,
including the land upon which the facility is located and the safety and
security zones as defined under federal regulations.

S 35.25 Justification; use of physical force to prevent or terminate
larceny or criminal mischief.
A person may use physical force, other than deadly physical force,
upon another person when and to the extent that he reasonably believes
such to be necessary to prevent or terminate what he reasonably believes
to be the commission or attempted commission by such other person of
larceny or of criminal mischief with respect to property other than
premises.

35.30

4. A private person acting on his own account may use physical force,
other than deadly physical force, upon another person when and to the
extent that he reasonably believes such to be necessary to effect an
arrest or to prevent the escape from custody of a person whom he
reasonably believes to have committed an offense and who in fact has
committed such offense; and he may use deadly physical force for such
purpose when he reasonably believes such to be necessary to:
(a) Defend himself or a third person from what he reasonably believes
to be the use or imminent use of deadly physical force; or
(b) Effect the arrest of a person who has committed murder,
manslaughter in the first degree, robbery, forcible rape or forcible
sodomy and who is in immediate flight therefrom.
5. A guard, police officer or peace officer wo is charged with the
duty of guarding prisoners in a detention facility, as that term is
defined in section 205.00, or while in transit to or from a detention
facility, may use physical force when and to the extent that he
reasonably believes such to be necessary to prevent the escape of a
prisoner from a detention facility or from custody while in transit
thereto or therefrom.

Glenn E. Meyer
April 7, 2009, 10:55 AM
Not enough info. The homeowner will have to demonstrate a lethal threat - but what do we know.

chemgirlie
April 7, 2009, 10:58 AM
From the news clip:
They say there was about 20 feet between the two.
I always thought the 21 foot rule was a good one to follow.

Obviously, the kids weren't "good kids". Last I checked petty thievery took you out of the "good kid" category.

The new clip didn't say anything about the kid having any kind of weapon. If he had a knife/gun/baseball bat I could see this being actual self defense. However, the guy could have easily avoided being in that situation by staying in his house and not going outside to look for trouble (face-palm).

-Thumbs up for having his girlfriend call 911
-Thumbs WAYYY down for going outside looking for trouble

Flat Tire
April 7, 2009, 11:03 AM
were there any witnesses ??????

Dingoboyx
April 7, 2009, 11:05 AM
Not to break into cars.... where were the "good kid's" parents? Why was this "good kid" breaking into cars at 3am? Why was he in a gang? (is 3 a gang?):eek:

A good kid would have been at home in bed, and his good parents would have made sure he was there?:rolleyes:

Kids today have all the power and no responsibility, IMO. Yes I feel sorry for the kid and his family, however, home owners getting robbed, I feel sorry for too. :(

I guess the moral of the story is, if you are going to break into someone's car outside their house at 3am, run away from the owner if he comes out, not AT him :eek:

I hope if the home owner was in the right, and gets off..... if he was in the wrong........ Bugga

Not good, condolences to the parents, control your kids would be my advice

David Armstrong
April 7, 2009, 12:48 PM
For all that guy knew the BG could have had a knife.
Few jurisdictions allow the use of deadly force based on "for all he knew the BG could have" as a justification.

As others have said, wrong solution to the problem. The incident could have been handled far better by simply opening the door and yelling "I've called the police, you better get out of here."

Vanya
April 7, 2009, 12:58 PM
What Glenn said:
The homeowner will have to demonstrate a lethal threat - but what do we know.

One thing I do know is that no one deserves to die because they broke into a car. A lethal threat is one thing; lacking that, and based on the information supplied, this is pure vigilantism, and the homeowner deserves whatever he gets.

Dingoboyx
April 7, 2009, 01:00 PM
Only thing is, some teenagers are big, these days, & if off their face on drugs could run up to the shooter and rip his head off, knife or no knife.

I guess no one but the shooter knows, coz we weren't there. I guess we'll have to wait and see.....

Swampghost
April 7, 2009, 01:01 PM
A warning shot into the ground might have deterred the kid and would have provided witnesses.

Without knowing all of the circumstances, the HO seems to have provoked the situation.

Brian Pfleuger
April 7, 2009, 01:05 PM
Obviously, the kids weren't "good kids".


You guys just don't understand the modern definition of "good kid".

If they are not/have not:

1) Committed a Columbine-type shooting

2) "Hate mongers" out doing terrible things like Christian evangelism in their neighborhoods

then they are "good kids" in the media circles.

Housezealot
April 7, 2009, 01:05 PM
I agree its to bad the kid died over something so petty, but...... I hate the idea that the law protects thiefs (and in a lot of cases it does) It just lets criminals feel like they have a safety net while committing crimes, and the idea that its some how worse becuse the kid was seventeen doesn't fit well with me, I was in basic training with several seventeen year olds, the goverment had no problem letting them make the decision to join the army before they were "adults" and many of them faced combat immediatly after turning 18.

Shorts
April 7, 2009, 01:17 PM
One thing I do know is that no one deserves to die because they broke into a car. A lethal threat is one thing; lacking that, and based on the information supplied, this is pure vigilantism, and the homeowner deserves whatever he gets.


So then you know the details of how the thief lunged at the homeowner? Fill us in. Can you say with absolutely certainty and fact that the homeowner was not in danger? You know exactly what the homeowner has going through his mind and what he felt at the exact moment the thief lunged at him?



A warning shot into the ground might have deterred the kid and would have provided witnesses.

Without knowing all of the circumstances, the HO seems to have provoked the situation.


A warning shot is stupid. One should never fire warning shots for a variety of reasons. Different topic for another thread, but no, no warning shots. :rolleyes:


The thief provoked the situation. The HO has every right to protect what is his. The strength of force was his decision he is now defending.


As for the grand jury, they can no bill him. The same way there have been past questionable events, if the jury wants to vote not guilty, they will. From the way the article reads, the neighbors weren't too broke up about the homeowner taking car of the thief. Callus yes, but if all homeowners on jury feel that, well, there it is.

ATW525
April 7, 2009, 01:27 PM
You guys just don't understand the modern definition of "good kid".

If they are not/have not:

1) Committed a Columbine-type shooting

"Everybody" knows that kids who commit Columbine-type shootings are good kids, too... they're just victims of the "evil guns" that make them do horrible things. :barf:

cerberus65
April 7, 2009, 01:43 PM
no one deserves to die because they broke into a car

The kid didn't die because he broke into a bunch of cars. He died because he was too stupid to run away when discovered.

I'll be curious to hear:
a) if the kid had a weapon
b) if the kid was high on anything
c) if the man had the gun concealed or plainly visible

In general, though, the idea of going out to detain some criminals is a pretty bad idea. The police are empowered and trained to do that. The rest of us, not so much on either count.

I'd be sorely tempted to pocket one of my guns and go out with a camera, though. We're supposed to be the best witnesses possible, right? :-)

yourang?
April 7, 2009, 01:43 PM
the district attorney handling this case was on the tube with a very strong statement

he said he was not averse to people carrying

he did say that if you choose to carry, you best know the
laws of the state of ny about when to legally use lethal force

as peetzakilla posted above, part 35 of nystate law outlines
when you can and cant escalate to using lethal force

we have to know the law...that is all there is to say

it is not something to run over once or twice....it is something
that we have to read and re-read and digest it so that it becomes
ingrained in our brain

the question isnt: are you willing to accept the responsibility of
using lethal force?

the question first is: do you know when you can legally use it?

even if we do know, (and are justified) there will be lots of action in the courts

(as some one said: every bullet has a lawyer attached to it)

Shorts
April 7, 2009, 01:45 PM
The gun wasn't used until the thief made a move towards the homeowner.

OldMarksman
April 7, 2009, 01:46 PM
If I got somebody trying to steal my car or anything in it I would go outside with a handgun also. I have the right to defend my property. If the guy would have charged at me, I would have fired on him too. For all that guy knew the BG could have had a knife.

In Texas at night, maybe. I wouldn't. However, this happened in New York. You obviously did not have the benefit of reading mikejonestkd's Post No. 5, which was posted at the same time as yours.

To my knowledge, there are two states that permit the use of deadly force to protect property, other than castle situations when you are inside your dwelling or car: Georgia, and Texas at night. I am not at all sure that someone "going through cars" would meet the standard of necessity. One would have to ask a local attorney.

Whether the deceased was a good kid or not is likely not going to prove relevant to the outcome.

As peetzakilla said, the shooter has a tough road ahead.

This is disturbing; someone has died, and someone has been charged with murder. Both could have been easily avoided by following David Armstrong's advice. This should serve as a reminder that we all need to know the laws in our jurisdictions before arming ourselves.

Here's some relevant advice from another thread on this forum:

http://www.thefiringline.com/forums/showpost.php?p=3420416&postcount=73

David Armstrong
April 7, 2009, 01:46 PM
So then you know the details of how the thief lunged at the homeowner? Fill us in. Can you say with absolutely certainty and fact that the homeowner was not in danger?
I think we can say with near 100% certainty that if the homeowner would have stayed inside and called the police he would not have been in danger. Once again we have an example of the GG turning what was a simple robbery into a gunfight, when there was no need.

djohn
April 7, 2009, 01:47 PM
Thats why god gave us fingers and man made telephones for things like this.I would have called the police why try to protect a outside material object.


The Home owner was not in immediate danger until he put him self in a position to be in danger by trying to protect a material object that most of us have insurance for.


Was he wrong for defending him selfs, well thats up to the jury know but I dont see this turning out so well for the home owner.


Parents need to take control of there children unless they snuck out while parents sleep but there is solutions for that as well.

curt.45
April 7, 2009, 01:52 PM
maybe instead of debating this we should take up a collection for the home owners defense?

I suspect in the end he will wish he had just yelled out the door he was calling the cops and stayed inside.

Shorts
April 7, 2009, 01:59 PM
I think we can say with near 100% certainty that if the homeowner would have stayed inside and called the police he would not have been in danger. Once again we have an example of the GG turning what was a simple robbery into a gunfight, when there was no need.

Or we can say if the thief had actually been acting like a good kid and not committed a provocative and illegal act that with 100% certainty he wouldn't have put himself in the position that night to be confronted with any authority let alone the homeowner of the place he attempts to burglarize.


There was no "gun fight".

The homeowner confronted the thief (still no mention of gun). Thief moved towards homeowner. THEN there was discharge of the firearm.

If you want to skew the story and continue to imply the guy went out guns a'blazing, you're only doing all homeowners with firearms a disservice.

Since it is NY, no doubt there are plenty of 'sit and wait' subscribers. Obviously this homeowner didn't drink that tainted koolaid. He went out to stop the thieves. From the info provided, it sounded like he did.

Then a thief made a move towards him.


I'm saying, I want to see the facts and events that took place. Because I can very easily put myself in that homeowners shoes. In fact I have chased people out from our property, from inside our trucks. I have called the Constables while tailing these criminals and we have filed reports. We don't sit and wait to be victims multiple times a year. All this time I've had a weapon and there hasn't seemed to be problem since the bad guys are running the other way.

I don't buy in to the "because a weapon was present that person was wrong" bologna. We don't buy into 'wait to be a victim'. We are the good guys. And good guys stop bad guys from doing bad guy things.

Demonizing homeowners...simply pathetic.

Brian Pfleuger
April 7, 2009, 02:06 PM
The thing is, the SMART and PRUDENT move would have been to stay inside and call the police with a good description of the perps.


Legal or illegal, there was no good reason to go outside.

Why on earth would you EVER insert yourself into a lethal force situation unless you are defending an innocent person? It's just plain stupid.


This is VERY similar to the recent case in Texas, the man whose name escapes me.

Shorts
April 7, 2009, 02:08 PM
Joe Horn. And I made reference to it earlier.

He was no billed by the jury.

Homeowners can insert themselves in any dang place they want in regards to their property. Its too bad the rest of the nation has seen fit to mentally cripple anyone who stands up for right.

Glenn E. Meyer
April 7, 2009, 02:10 PM
I always thought the 21 foot rule was a good one to follow.


FYI - there have been recent cases against police where the Tueller rule hasn't been convincing to juries if the dead guy isn't waving a clear weapon and also some DA came up with expert testimony against the Tueller rule and then not allowing presentations of video explanations like Surviving Edge Weapons.

Someone can google the debate but I think you can't count on a jury necessarily buying a Tueller defense if you aren't being charged by the Headless Horseman.

Brian Pfleuger
April 7, 2009, 02:11 PM
Joe Horn. And I made reference to it earlier.

He was no billed by the jury.


Ah yes, Joe Horn.

He was exonerated because he became some sort of cult-like hero.

He was guilty of murder. He told the 911 operator "You wanna bet? I'm gonna kill them."


Now, I can't say this guy was of that mind set, I hope he wasn't, but I can say that he had no more business going outside than did Joe Horn.

Like I said, legal or illegal it was CERTAINLY stupid.

Shorts
April 7, 2009, 02:15 PM
Ah yes, Joe Horn.

He was exonerated because he became some sort of cult-like hero.

He was guilty of murder. He told the 911 operator "You wanna bet? I'm gonna kill them."


Now, I can't say this guy was of that mind set, I hope he wasn't, but I can say that he had no more business going outside than did Joe Horn.

Like I said, legal or illegal it was CERTAINLY stupid.


There is no law against 'stupid'.



I still would like to know the motivation for "no business going outside" comes from. Why do you say that?

Brian Pfleuger
April 7, 2009, 02:16 PM
There is no law against 'stupid'

That is true.

This guy may end up wishing that there was, I'll bet the sentence would be shorter.

Shorts
April 7, 2009, 02:19 PM
That's what trial is for. Joe Horn did what many frustrated, burglarized, vandalized, victimized homeowners have probably in the deep down recesses of their minds have felt at some point or another. I'm not saying Joe Horn was right, cause I think he was flat out wrong for shooting the guys in the back. I have no problem however, with confronting the criminals when he saw it happening.

Geography matters in regards to local attitudes and the general public opinion at large. What one segment of the country finds acceptable is not necessarily well received in another area.

My husband is from Rochester NY. There is some sense of familiarity.

2edgesword
April 7, 2009, 02:25 PM
In Texas he might a chance. In NY his goose is cooked and the only question will be how well done the goose is cooked.

mikejonestkd
April 7, 2009, 02:27 PM
Joe Horn did what many frustrated, burglarized, vandalized, victimized homeowners have probably in the deep down recesses of their minds have felt at some point or another.

So did Bernard Goetz, and Charles Bronson in " Death Wish "

regardless of the state of residence...death is not a just punishment for stealing an ipod or pocket change out of someone else's car...

Latest reports state that the youth did not advance before being shot, that may play our poorly for the homeowner.

Shorts
April 7, 2009, 02:34 PM
FYI - there have been recent cases against police where the Tueller rule hasn't been convincing to juries if the dead guy isn't waving a clear weapon and also some DA came up with expert testimony against the Tueller rule and then not allowing presentations of video explanations like Surviving Edge Weapons.

Someone can google the debate but I think you can't count on a jury necessarily buying a Tueller defense if you aren't being charged by the Headless Horseman.


Which is basically to say all elements of the confrontation matter when drafting the defense. From the setting to the weather to the people to even the tiniest detail.

In this day where there is a massive mindset that 'gun = bad' it's already an uphill battle. You know the media isn't doing the gun owner any favors.

OldMarksman
April 7, 2009, 02:35 PM
He went out to stop the thieves. From the info provided, it sounded like he did.

Actually, according to the report, he went out to detain persons who had "been going through cars". Not something a civilian can employ a gun for in most jurisdictions or under most circumstances. He evidently didn't know that.

Then a thief made a move towards him.

"Made a move"? At that point he had a duty to retreat. If he could not retreat, he could not use deadly force unless the other person was about to use deadly force. He evidently didn't know that, either.

We are the good guys. And good guys stop bad guys from doing bad guy things.

It's likely that just about every defendant believes that! However, it remains to be established who the "good guy" is. The court will not assume that because a man was outside with a gun and has seen a lot of westerns he is "the good guy."

Going way back before the common use of firearms, learned judges faced the problem of determining when an otherwise felonious act of homicide might not constitute a crime. Self defense is such a circumstance, but how does one determine who was defending and who was attacking, determine whether the "bad guy" happened to win, etc. How would one determine who is the "good guy?"

The law that peetzakilla posted evolved over time from The English Common Law that was developed to address those questions in a just manner. There have been changes--in some cases the old duty to retreat has been removed, and in others the castle doctrine has been lost and sometimes reinstated, but in general, a man with a weapon is not going to be remembered as a "good guy" if he kills someone without a weapon out doors.

Joe Horn. And I made reference to it earlier. He was no billed by the jury.

No, by a grand jury. I'd be interested in knowing that, since he has not been tried and found innocent in a trial court, whether a future grand jury could still indict him. I understand that there is no statute of limitations.

Joe's actions were seen as morally lacking by a lot of people, and I think he may someday be remembered as the man who gave the antis the ammunition they needed to limit our rights.

OldShooter
April 7, 2009, 02:49 PM
Somehow this all fits under "Tactics and Training"

flippycat
April 7, 2009, 02:52 PM
Though I do not agree with the home owners route he took but who knows how many kids are saved now though right????????????????????????? He can play that card also ??

The fact that this underage school age kid had the gun and was committing a felony by having it and that said gun is no longer on the streets is a good thing. I mean if you think about it in terms of , who knows if this kid would of brought it to school and shot other kids with it. This guy may have a chance swinging a jury.

David Armstrong
April 7, 2009, 02:52 PM
Or we can say if the thief had actually been acting like a good kid and not committed a provocative and illegal act that with 100% certainty he wouldn't have put himself in the position that night to be confronted with any authority let alone the homeowner of the place he attempts to burglarize.

OK, not sure if anyone disagrees with that idea. Also not sure what that has to do with a GG escalating a situation and making it worse when there is no need.
There was no "gun fight".
Let's see now...GG claims he is being attacked, shoots BG with gun. Sure sounds like there was a gunfight to me.
If you want to skew the story and continue to imply the guy went out guns a'blazing, you're only doing all homeowners with firearms a disservice.
As I often say, it generally works better if one responds to what is actually said instaed of trying to make thigns up. There are no implications in the statement, there is no skew. It is simple and direct. If the homeowner has sayed inside the situation could have been resolved a lot better than it was.
I don't buy in to the "because a weapon was present that person was wrong" bologna. We don't buy into 'wait to be a victim'.
I'm not aware of anyone suggesting any such thing, so the strawman you are attacking is of your own design. Some of us are saying there are better ways to not be a victim than making things worse.
We are the good guys.
And we should act like good guys. Getting into shootings when there is no need is not a good thing, IMO. Getting into shootings where the law specifically prohibits it is a bad thing, IMO.

Shorts
April 7, 2009, 02:54 PM
Well if the thief is a "good kid", I'm certainly a good guy...err girl.

David Armstrong
April 7, 2009, 03:01 PM
The fact that this underage school age kid had the gun and was committing a felony by having it and that said gun is no longer on the streets is a good thing.
As I understood it, the homeowner had the gun, not the kid.

pax
April 7, 2009, 03:05 PM
Somehow this all fits under "Tactics and Training"

OS,

The moderators are listed at the top of the forum, and that's a great type of question to PM us about. We don't bite ... usually. ;)

To answer the remark, I was just debating whether to move this one down to General or over to Law & Civil Rights. Neither seems quite appropriate, as so far the discussion has centered on whether the homeowner used the appropriate tactic in choosing to go outside and confront the thief, and whether he used the appropriate tactic in firing when he did. Keeping in mind that the goal is to choose tactics that will help you survive the immediate encounter and also survive the legal aftermath, there's always going to be some overlap between a discussion of physical tactics and the legal situation those physical tactics will land you in. Any good trainer knows that both aspects are important, and will discuss both aspects with their students. (Free advice: BEWARE!! of any trainer who downplays either half of this equation, especially those who actively make fun of concerns about legal entanglements...)

So for now, I think this discussion belongs here in Tactics and Training.

pax

mikejonestkd
April 7, 2009, 03:20 PM
Well said Pax,

My intent was to discuss the tactics that the homeowner used in this situation, and hopefully we can keep it on that track.

Just a heads up...The homeowner's car had not been broken into, he witnessed kids around other neighbor's cars and went outside to confront/ detain them. He was NOT defending his own property. The youth was not armed and did not claim to have a weapon.

Deadly force in defense of another person's property in NYS is a big NO NO..

Back to tactics everyone...

doh_312
April 7, 2009, 03:23 PM
It really says something about our society when all we do to help a neighbor is call 911. Sure that is what 911 is for, to summon additional help.

I certainly hope that my neighbors would confront someone stealing from me with the bussiness of a gun. Hopefully a large gun. I know I am willing to help my neighbor. If I peek out my window and see someone other than my neighbor going through my car, the wife calls 911, then the neighbor. While I head out with the shotgun to find out what is going on.

The fact that most of you would stay inside speaks loudly to the kind of person you are. However if that is what you would do then fine, I just hope your not my neighbor.

The fact that many of you are raining fire and brimstone on this good man speaks loudly to our society. Never lift more than a finger unless it is to help yourself. If this is the way American thinks then I am truly ashamed. When did we loose touch with our neighbors to the point we wont rally to protect their hard earned propert?

Brian Pfleuger
April 7, 2009, 03:27 PM
I certainly hope that my neighbors would confront someone stealing from me with the bussiness of a gun. Hopefully a large gun. I know I am willing to help my neighbor. If I peek out my window and see someone other than my neighbor going through my car, the wife calls 911, then the neighbor. While I head out with the shotgun to find out what is going on.


I hope my neighbors DO NOT confront someone stealing from my car with a gun. Why do people feel that calling 911 is doing little or nothing? Why do neighbors have to take the risk upon themselves to protect property in a car? It's not as if the guy walked up on a kidnapping or rape. It was crap in a car. UNLOCKED cars no less. They weren't even breaking in.

PLEASE, if you are my neighbor DO NOT SHOOT PEOPLE who rummage around in my car!

flippycat
April 7, 2009, 03:32 PM
A neighbor, Roderick Scott, says he called 911, grabbed his gun and went outside. Scott told police he confronted the teens and when he did, Cervini came at him and he fired three shots.

Ahh my bad, I totally read that wrong lol....Cervini (the kid) came at him and he fired three shots.

I thought he implied the kid came at him and fired 3 shots.

I did not agree with his route when i thought the opposite happened. I now think he was wrong all together besides calling 911.

doh_312
April 7, 2009, 03:35 PM
SO be cause a car is unlocked personal property becomes puplic? I do not lock my car and I still don't want people to steal stuff from it. Besides a locked door just means a window needs to be broken. Or a lock picked.

I never said I want my neighbors to shoot. Just confront. Walk up, gun in hand, ask what the person is up to, ask if I know they are going through my stuff, and inform them police are on their way. Is that really to much to ask of a neighbor?

doh_312
April 7, 2009, 03:37 PM
Evil only triumps when good men stand by and do nothing.

Vanya
April 7, 2009, 03:37 PM
As I understood it, the homeowner had the gun, not the kid.

Yes, according to this report (http://rochesterhomepage.net/content/fulltext/?cid=82531), the boy who was shot was unarmed, and was "a considerable distance" from the homeowner.

Police say the suspect Roderick Scott walked out of his house and confronted the group of teenagers across the street. Investigators say they found the victim dead in a driveway about 50 feet diagonally from Scott's house.

Police say they're not aware of any recent break ins in the neighborhood. "We talked to a lot of people on the street. We have nothing that was stolen," said Lt. Wise.

So he was off his property, it wasn't his car, and there's no evidence that the three boys had committed any crime -- the two fifteen-year-olds who were with Mr. Cervini have not been charged with anything. Whether or not Mr. Scott had any justification for "feeling threatened," it seems pretty clear that he (Mr. Scott) provoked the confrontation.

This was hardly self-defense, and I don't think "vigilantism" is too strong a word for it.

Brian Pfleuger
April 7, 2009, 03:39 PM
I never said I want my neighbors to shoot. Just confront. Walk up, gun in hand, ask what the person is up to, ask if I know they are going through my stuff, and inform them police are on their way. Is that really to much to ask of a neighbor?


Yes, it is. If I was your neighbor and you asked me to do that if someone was stealing things out of your car I'd politely tell you to pound salt. I will not confront someone with a gun unless I have no choice. I will not confront someone stealing things from MY OWN CAR with a gun, say nothing of yours.

Lets say this guy gets off scott free. Do you think he'll try the same thing again? That should give you some idea of how good of a plan it turned out to be.

SO be cause a car is unlocked personal property becomes puplic?
Evil only triumps when good men stand by and do nothing.

Nooooo.... they did call the police after all. Once again, how is calling the police "standing by and doing nothing."?

David Armstrong
April 7, 2009, 03:44 PM
While I head out with the shotgun to find out what is going on.

OK, it "Tactics and Training", so what tactical purpose does this serve that cannot be served in a safer and less confrontational manner?
Never lift more than a finger unless it is to help yourself.
Why is it that many seem to feel the only way to "lift a finger" is to put it on a trigger? There are lots of things one can do that do not involve starting a gunfight.

Vanya
April 7, 2009, 03:49 PM
I hope my neighbors DO NOT confront someone stealing from my car with a gun. Why do people feel that calling 911 is doing little or nothing? Why do neighbors have to take the risk upon themselves to protect property in a car? It's not as if the guy walked up on a kidnapping or rape. It was crap in a car. UNLOCKED cars no less. They weren't even breaking in.

PLEASE, if you are my neighbor DO NOT SHOOT PEOPLE who rummage around in my car!

Exactly. Leaving aside the issue of what's legal in different states, the idea that it could ever be ethical to take a life over a minor property crime is just... astonishing. :mad:

Wagonman
April 7, 2009, 03:54 PM
If the kid didn't have a gun or knife the GG is wrong and going to pay retail.

Deadly force is only permitted to prevent death or GBH.

The GG should've called police given good description and stayed on the line.

Do not advance on thieves, stuff can be replaced.

It is not doing nothing if you call in the calvary.

I feel for the GG and wish him well.

Vanya
April 7, 2009, 04:00 PM
GG

Wagonman, I agree with everything you wrote except this. If this is an abbreviation for "Good Guy," it seems misplaced in this instance. I feel for him as well, but "Good Guy?" No.

How does that line go? "The road to Hell is paved with good intentions..." It seems to me that acts, not intentions, define "GG" and "BG."

OldMarksman
April 7, 2009, 05:00 PM
I never said I want my neighbors to shoot. Just confront. Walk up, gun in hand, ask what the person is up to, ask if I know they are going through my stuff, and inform them police are on their way. Is that really to much to ask of a neighbor?

Why the gun? In all but very few all jurisdictions you may not use deadly force to protect property outside. Would you expect your neighbor to perform a citizen's arrest? Well, in most places citizens may not do so for suspicion of minor crimes, and they sure can't fire the gun to prevent the persons from leaving. Do you really think your neighbors would expose themselves to expensive civil suits? And simply pointing it may be unlawful unless a self defense situation exists.

Yes, that is asking too much of a neighbor. And you won't find me trying to perform a citizen's arrest because someone was going through anyone's car, including my own.

No, I'm not the sort who would "do nothing." I would call the authorities.

There's a reason for that. There's one of me. I am neither trained nor sworn to uphold the law. Where I live a policeman can exhibit a firearm without actually being in a self-defense situation (imminent threat of death or serous bodily harm) but I cannot. I am not indemnified against civil suits, and there are enough lawyers out there to come after me.

The police know what to do and are trained to do it. They will likely wait for backup before doing anything. For the citizen, there's just too much risk-risk of getting jumped, disarmed, and hurt or killed; risks of being sued for false arrest, use of excessive force, you name it; and risk of criminal prosecution, which is exactly what the shooter found out in this instance.

Hondo11
April 7, 2009, 05:25 PM
Deleted by Hondo11 so as not to hijack and turn it into a discussion about Joe Horn.

DMMikey
April 7, 2009, 05:40 PM
I lived in this town, and I think this particular neighborhood, until two years ago. (A lot of small side streets, I may have the street name confused.)
It has one of the lowest crime rates of any town of similar size in the entire country. I believe it was 3 years ago, it was rated fifth safest, two years before that, second or third.
I lived there for 15 years. In that time, I had my front door egged once on halloween when I ran out of candy, and once, some kid stole a water sprinkler from my front yard. (It was a pretty funky sprinkler, I understand the attraction. LOL)
There is no evidence that there has been any problems with vandalism. I don't buy the pent up anger argument.
It really appears to me that someone really over reacted.
A death over some junk in a car, or a car radio, is pretty tragic.
That someone will undoubtedly go to jail adds to the tragedy.
Please learn your local gun laws.
The need to retreat is very clearly delineated in NY law. I realize other parts of the country may have different rules on this, and the arguments either way can be very powerful.
The law is the law however. Just because you think it should be different doesn't mean you are going to get off.

Brian Pfleuger
April 7, 2009, 05:46 PM
delete

jjyergler
April 7, 2009, 07:14 PM
First, what is right. Second what is legal. You can argue whether or not confronting and detaining someone is the RIGHT thing to do. What is not arguable is that in New York, it is not LEGAL for a civilian to introduce a weapon into a situation such as this.

In fact, even in Florida with our strong Castle Doctrine, as I read this story, he would be acting illegally. I left my home with a gun once, because I believed a RAPE was taking place IN MY YARD. I discovered that there was, to be polite, a combination of alcohol and sexual fantasy occurring just over my fence. I capitalize for emphasis. I believed a crime of violence was occurring on my property. I was acting to protect life and bodily integrity.

That's the only defining issue. Kids breaking into cars. No life in danger, no reason to introduce firearms. As a civilian, it's not this guy's job to "confront and detain." Once he leaves his role and responsibilities, he's in deep kimche.

djohn
April 7, 2009, 07:21 PM
Evil triumps when men do nothing.Can also be said when men try to do to much more then needed.


My wife and I report any suspicious activity going on outside and yes I may even go outside and yell what are you doing there while we call the police and even let them know we have called the police.



The american way is not risk to my life for the neighbors benz or Audio, thats what the police are for to make a arrest if warranted with out bodily harm to the perp or them selfs.Do you have theft on the car did you leave your laptop on the front seat.The Bottom line it is material stuff No more,No less.
The Last time I checked, I have Insurance on my car and any thing of great Value left inside well then.


I like to see the American Way neighbor that comes to help with this fellows legal fees,Yea sure not going to happen.chances are the man probably at most would get thanks for watching out for my car and good luck with jail,I bet not though.


Now If you where my neighbor being attacked physically,Darn skippy I would get involved physically thats a whole different story.


In conclushion If the guy had retreated and waited for the police IMHO it wouldn't have turned out with such Grizzly out come.

James K
April 7, 2009, 07:29 PM
I think there should be a lesson here for those who come out with stuff like "I'm gonna shoot any SOB I want if he pi$$es me off because I got my Second Amendment rights and nobody can do nuttin' about it....."

Realize that a claim of self defense (highly dubious in this case) is NOT a means of "getting away with" killing someone. It is a "positive defense" against a charge of murder. In court, that means that it is OK to make a plea of self defense, but a jury or judge may refuse to accept it and convict the accused of murder.

I would say that the shooter is in a lot of trouble and that he brought it on himself.

Jim

longcall911
April 7, 2009, 07:31 PM
It is NY. And, regardless of whether a person agrees with the law or not, you *must* know the law. I'm no lawyer, but I think the homeowner will have a very difficult time proving himself not guilty.

I live in NJ and wouldn't dream of pulling a gun on anyone who has not broken into my house *and* who poses an absolute threat to me or my family.

In NJ, you go to jail for unlawfully defending your property. I don't like it, but I live by it.

jjyergler
April 7, 2009, 07:35 PM
In almost every state (except Texas:D) you may introduce a firearm into a situation for one reason and one reason only: to prevent death or great bodily harm. THAT IS IT. What you wish your neighbor to do is irrelevant. You can think you are in the moral right as much as you wish, but you will be in the legal wrong if you don't have a situation in which death or great bodily harm is imminent.

To use deadly force requires threat. Unfortunately, this is a grey area. What a jury will believe constitutes a threat to me, mid-thirties, army veteran, physically fit, and what constitutes a threat to my girlfriend, or my mother, or an eighty-year old, wheelchair bound, one-armed, asthmatic grandmother are all completely different. A twenty-five year old heroin addict isn't a threat to me, but she might be to my mother or the asthmatic granny.

That's what the Castle Doctrine is intended to do. If someone is in your house, there is considered to be an implicit threat to you or your family. That way, you don't have to figure out who is in your house. The Castle Doctrine doesn't give you a right to use deadly force because someone is in your home. The fact that someone is in your home is considered an imminent threat to your safety. In public, at a restauraunt, for example, someone with a weapon or committing an act of violence is considered a threat. In your home, someone breaking in at 4am is considered a threat. The act of breaking in sort of becomes the equivalent of having a weapon.

More importantly in this case, if you act in a manner that unjustifiably escalates the situation. YOU will be held accountable for what transpires later. Just like a car thief that causes a fatal accident during a chase, if you engage in a course of action that causes a death, murder is the charge. Most states use a definition that includes a reasonable chance, i.e. if you engage in an activity that could reasonably end in a death, and death does occur, your decision to engage in that activity is where the problem lies. If you inject yourself in a situation that you have no reason to be in, if you bring a firearm into a situation that does not require deadly force, most states then consider your unjustifiable escalation to be the problem.

Sorry to go on so long, but to finish...If there is no threat of violence against you or someone else, YOU CANNOT INTRODUCE A FIREARM!

Wagonman
April 7, 2009, 07:46 PM
Wagonman, I agree with everything you wrote except this. If this is an abbreviation for "Good Guy," it seems misplaced in this instance. I feel for him as well, but "Good Guy?" No.

How does that line go? "The road to Hell is paved with good intentions..." It seems to me that acts, not intentions, define "GG" and "BG."

One of the elements of a crime is intentionally committing the act.

The Good guy did not intentionally break the law he intentionally tried to defeat a theft.

The Bad Guy intentionally tried to steal another person's belongings.

The Good Guy broke the law and is looking at jail time and I still feel for him.

jjyergler
April 7, 2009, 07:55 PM
The good guy DID intentionally break the law. He brandished (apparently) a firearm when there was no justification (apparently). That someone died in consequence of this action is what makes this murder.

Brian Pfleuger
April 7, 2009, 08:07 PM
The Good Guy broke the law and is looking at jail time and I still feel for him.

I agree. I have no doubt that he intended to do the right thing. His lack of knowledge or understanding of the law is the real problem. A good man did a bad thing and will probably pay for it in a bad way.

KLRANGL
April 7, 2009, 08:08 PM
Would a debate of whether it should be manslaughter or murder not be appropriate for T&T?

Wagonman
April 7, 2009, 08:33 PM
Exactly Peetzakiller

Dingoboyx
April 8, 2009, 05:38 AM
to me, sounds me like it in this case? Had the good kid have not opened an unlocked car (at 3am) with 2 other good kids, none of this would have happened.

There is the possibility that the kids didn't even open any cars and the kid was coming up to the home owner to explain they werent committing a crime, and HO was just intent on shooting first, asking questions later?

We weren't there, hopefully the legal system will get it right, punishment to those it is due, and not to those who do not deserve to be punished.....

Lets wait and see when all the facts are on the table :confused:

Double Naught Spy
April 8, 2009, 06:04 AM
think we can say with near 100% certainty that if the homeowner would have stayed inside and called the police he would not have been in danger. Once again we have an example of the GG turning what was a simple robbery into a gunfight, when there was no need.

It wasn't a gun fight. It was a shooting.

Ah yes, Joe Horn.

He was exonerated because he became some sort of cult-like hero.

He was guilty of murder. He told the 911 operator "You wanna bet? I'm gonna kill them."

The statement does not make what he did illegal. The event was witnessed by a peace officer. Horn was not guilty of murder under Texas law and that is the only law that applies in that case. Whereas the law in this NY case is completely different.

OldMarksman
April 8, 2009, 08:06 AM
RE: Post 65...

Excellent post, JJ

Brian Pfleuger
April 8, 2009, 10:34 AM
Horn was not guilty of murder under Texas law and that is the only law that applies in that case.

That's not necessarily true. Many people believe that Horn was not indicted due to the cult-like celebrity status he garnered after the shooting. The failure of the grand jury to indict him doesn't mean he's not guilty. Don't go about thinking that conviction or acquittal by a jury, grand or otherwise, is a true indication of guilt or innocence.

David Armstrong
April 8, 2009, 10:58 AM
It wasn't a gun fight. It was a shooting.
Again, that depends on one's definition. Using a gun to defend yourself from an attack is certainly a gunfight under many normal definitions.

Vanya
April 8, 2009, 11:01 AM
The failure of the grand jury to indict him doesn't mean he's not guilty. Don't go about thinking that conviction or acquittal by a jury, grand or otherwise, is a true indication of guilt or innocence.

We may think he's morally culpable, and we may not approve of the grand jury's decision, but under the law, it's the only indication we have. Given that someone accused of a crime is presumed innocent until proven guilty, the failure of a grand jury to indict someone means that legally, he is innocent.

Whether it's still possible for a second grand jury to indict is another question. I'm not positive, offhand, as to whether or not this would count as double jeopardy, although I don't think it would.

Brian Pfleuger
April 8, 2009, 11:09 AM
...the failure of a grand jury to indict someone means that legally, he is innocent.

I agree. Technically, legally, he is currently "innocent".

A quick review of Texas law makes it fairly clear, IMO, that his innocence is in the technical legal sense only.


Very much like I expect the situation in the OP to end up the opposite.

Personally, I think he is morally justified in his actions but I believe that legally he's SOL.

I think, logically he shouldn't have done what he did.

I think, morally, he was justified, so long as he didn't go out there with the INTENT of shooting that kid. Morally speaking I have no problem with him confronting the kids and bringing a gun to protect himself. Stupid? Yes. Moral? Yes.

Legally, he's up the creek without a paddle, I think.

Hondo11
April 8, 2009, 11:09 AM
That's not necessarily true. Many people believe that Horn was not indicted due to the cult-like celebrity status he garnered after the shooting. The failure of the grand jury to indict him doesn't mean he's not guilty. Don't go about thinking that conviction or acquittal by a jury, grand or otherwise, is a true indication of guilt or innocence.

People believe lots of things. The moon landings were faked, 9/11 was an inside job, etc, etc.

The fact is that Horn was not indicted because he didn't break Texas law as it is written. The threshold for a Grand Jury indictment is VERY low. All they have to do is think that an offense was committed, then they send it to trial to find out. The defense does not present to the Grand Jury, so it's the prosecutions case to make. They did not even think there was enough to go to trial to find out if an offense was committed, so they returned a no-bill. Simple as that.

I agree. Technically, legally, he is currently "innocent".

A quick review of Texas law makes it fairly clear, IMO, that his innocence is in the technical legal sense only.

Why put "innocent" in quotes as if to imply that he's really not? A quick review of Texas makes it fairly clear that he did not commit a criminal offense. Saying that he's innocent because of a technicality implies that he was guilty, but got off due to some trivial detail. He didn't "get away with" anything. His actions did not constitute an offense, plain and simple.

Brian Pfleuger
April 8, 2009, 11:20 AM
Why put "innocent" in quotes as if to imply that he's really not? A quick review of Texas makes it fairly clear that he did not commit a criminal offense.

Because I believe he's NOT innocent in a moral sense. You believe he is. Why should either of us be concerned about the others opinion?


Just like I feel that the guy in Rochester is morally innocent but doomed under NY law.

pax
April 8, 2009, 11:23 AM
And at this point, we've gotten far afield from the original topic, which was the tactics used by Roderick Scott in Rochester, NY. While what Joe Horn did in Texas is really interesting, it has almost no bearing on the legal or tactical situation in New York.

With that in mind, I'm going to close this one. I think we've gotten as much tactical meat out of it as we can. If you guys want to keep up the discussion, feel free to start up again down in Law & Civil Rights.

pax