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KingEdward
May 12, 2009, 11:00 AM
Here in my state, there is castle doctrine law. There is also "stand your ground" law which says you are not required to retreat in your home and also if the intruder is committing a felony on the property and he is injured/killed, the homeowner cannot be sued as a result.

Here are a few questions I'd like for others to consider and answer:

1) if someone breaks in the home via door or window, obviously that is B & E and is that by ITSELF a felony?

2) IF (not smart) but IF the door is opened and someone forces their way into the home and touches the homeowner (pushes down) or threatens (I'll kill you now where is the cash) what crime is committed? is it Unlawful entry or Forced Entry? Making a threat?

3) Is Unlawful entry a felony?

4) is the mixture of unlawful entry and threats a felony?

I do not want this thread to get off track with "hey don't open the door" or "if they are in your home unwelcome you could shoot".

The interest here is the explanation of what B & E encompasses and also what the legal term/penalty are for access gained via an OPEN door or window.

Viking Josh
May 12, 2009, 03:49 PM
The OP specifically requested you not to use such arguments in this discussion.

Antipitas

OldMarksman
May 12, 2009, 04:15 PM
Castle laws vary all over the map. Some permit deadly force in the event of unlawful entry; others specify unlawful entry "by force or by stealth"; others require entry to be forcible and unlawful; others include the word "tumultuous". Many include other conditions.

There's no one answer for any of your questions.

Depends on where you live.

Don't rely on a lay interpretation of the dictionary definitions of the words in the code. The meaning must be interpreted in the context of all of the relevant laws and will depend on case law.

Consult an attorney.

Wildalaska
May 12, 2009, 04:38 PM
What does the statute say...exactly :)

WildandilltellyouwhatitmeansifyousetitforthverbatimAlaska ™

Capt_Vin
May 12, 2009, 10:48 PM
Castle Doctrine, Duty To Retreat, man, these subjects really burn my rear sometimes. I totally agree with Viking Josh, but unfortunately, the gun-grabbing, hanky stomping, take-a-punk-to-lunch screaming liberals who run this country don't agree and make it so criminals have more rights than law abiding citizens.
It really kills me how, if you kill or injure a criminal who has broken into you home, you can and in 99% of the cases, be arrested, charged, prosecuted and convicted, and then SUED by either the victim or his surviving family. What is worse is, if a crook gets hurt on your property, say for example, he trips and falls down the stairs and breaks a leg, he can sue you for injuries because (as it was explained to me by a lawyer I know), "even though the person is committing a criminal act, he has reasonable expectation of safety while on your property and should not have any fear of being injured, either on purpose or by accident". I don't know about alot of folks here, but laws like this get me ****** off. In my opinion, a law abiding citizen should be able to defend his or her property, his or her loved ones or him or her self, without the fear in any manner of prosecution or lawsuit. To me, a criminal gives up his rights the second he commits any part of a crime and if some law abiding citizen drops hammer on him or gives him a beating he'll never forget, then, well, so be it. The punk should have thought twice about committing the crime. On the same page (but another paragraph, LOL), today's courts are far to easy on the punks. When a criminal is caught, and finally goes before a judge or to trial, everything except for the facts are brought up. His past (he had acne as a teenager, how he was brought up, the fact the prom queen wouldn't kiss him or the coach wouldn't let him play first string, his parents beat him, his panties were too tight, ect) has nothing to do with why he decided to steal a car, break into a house or mug, kill or rape someone. The lawyers have turned our legal system into nothing more than a bad joke, with whoever puts on a better show winning. Forget the facts, just give the punk a slap on the wrist, buy him a Pepsi and set him loose or plea bargin down to a lesser charge and give the minimal sentence. Face it folks, our legal system is in dire need of a backbone. Instead of coddling the criminal and forgetting the victims, why can't crime and the results, no matter how small be made undesirable to those who choose to commit them, that the criminal thinks twice about committing it, make the punishment severe, eliminate any plea-barging, make prison as unpleasant as possible, remove a criminal's ability to sue the victims, and give every law abiding citizen back their right to defend themselves, loved ones and their property! Make crime so unappealing, it isn't reduced, it is eradicated. And if it means eradicate the criminal, then, unfortunately, so be it. I think most of the law abiding citizens would loose somewhere in the area of 1 1/2 minutes of sleep over things going that way.
I apologize for going off on a rant, but, the law abiding citizens of this country are getting the short end of the stick with the laws and it needs to be changed!

Bud Helms
May 12, 2009, 11:04 PM
Moving to Law & Civil Rights.

KingEdward
May 13, 2009, 10:16 AM
I will check on the statutes in Tennessee. It's probably better to
know the law than to assume things and hope for the best.

David Armstrong
May 13, 2009, 10:28 AM
...and make it so criminals have more rights than law abiding citizens.
No. Criminals do NOT have more rights than the law abiding citizens. They have the SAME rights. Criminals may need to exercise those rights more often, but we all have them. That is one of the things that makes them rights.
It really kills me how, if you kill or injure a criminal who has broken into you home, you can and in 99% of the cases, be arrested, charged, prosecuted and convicted, and then SUED by either the victim or his surviving family.
Again, no. In a minority of cases where homeowners defend their home will the homeowner be arrested. Fewer will be charged, and even fewer convicted. In fact, it would be more accurate to say that in 99% of the cases you will NOT be arrested, charged, prosecuted and convicted.
On the same page (but another paragraph, LOL), today's courts are far to easy on the punks. When a criminal is caught, and finally goes before a judge or to trial, everything except for the facts are brought up.
Once again, no. Trials tend to focus on facts. Aggravating and mitigating circumstances will often figure into the sentencing phase, but even those must be shown to be factual.
I apologize for going off on a rant,
Nothing wrong with a good rant, but not much sense in ranting about stuff that isn't true. That is a part of the problem in the system, way too many folks get all worked up about stuff they think that turns out not be right.

Dingoboyx
May 13, 2009, 10:33 AM
The BG has just committed a BIG mistake :D

a7mmnut
May 13, 2009, 10:56 AM
Yes, it depends upon the state statutes and their definitions of criminal trespass, B & E, and forcible entry. Forcible entry also has legal purposes, such as firefighters, LEO's, and EMS/Rescue personnel. Generally, forcible entry offers inclusions of breaching the doorway or windows of dwellings, whereas unlawful entry requires no force to be used, only an unwilling occupant or owner to make allowances. As for the penalties, there are varying degrees of each. See your local statutes.

-7-

KingEdward
May 13, 2009, 10:58 AM
I am wondering if there is any prejudice in the system towards the homeowner if he/she opens the door and then bad things happen.

But I would think that unlawful entry would account for that when the "facts" are sorted out later.

Brian Pfleuger
May 13, 2009, 11:13 AM
Tennessee Code:

39-14-402. Burglary. —

(a) A person commits burglary who, without the effective consent of the property owner:

(1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;

(2) Remains concealed, with the intent to commit a felony, theft or assault, in a building;

(3) Enters a building and commits or attempts to commit a felony, theft or assault; or

(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.

(b) As used in this section, “enter” means:

(1) Intrusion of any part of the body; or

(2) Intrusion of any object in physical contact with the body or any object controlled by remote control, electronic or otherwise.

(c) Burglary under subdivision (a)(1), (2) or (3) is a Class D felony.

(d) Burglary under subdivision (a)(4) is a Class E felony.


39-14-403. Aggravated burglary. —

(a) Aggravated burglary is burglary of a habitation as defined in §§ 39-14-401 and 39-14-402.

(b) Aggravated burglary is a Class C felony.

[Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 23.]


39-14-404. Especially aggravated burglary. —

(a) Especially aggravated burglary is:

(1) Burglary of a habitation or building other than a habitation; and

(2) Where the victim suffers serious bodily injury.

(b) For the purposes of this section, “victim” means any person lawfully on the premises.

(c) Especially aggravated burglary is a Class B felony.

(d) Acts which constitute an offense under this section may be prosecuted under this section or any other applicable section, but not both.


39-11-504. Duress. —

(a) Duress is a defense to prosecution where the person or a third person is threatened with harm that is present, imminent, impending and of such a nature to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The threatened harm must be continuous throughout the time the act is being committed, and must be one from which the person cannot withdraw in safety. Further, the desirability and urgency of avoiding the harm must clearly outweigh the harm sought to be prevented by the law proscribing the conduct, according to ordinary standards of reasonableness.

(b) This defense is unavailable to a person who intentionally, knowingly, or recklessly becomes involved in a situation in which it was probable that the person would be subjected to compulsion.


39-11-611. Self-defense. —

(a) As used in this section, unless the context otherwise requires:

(1) “Business” means a commercial enterprise or establishment owned by a person as all or part of the person's livelihood or is under the owner's control or who is an employee or agent of the owner with responsibility for protecting persons and property and shall include the interior and exterior premises of the business;

(2) “Curtilage” means the area surrounding a dwelling that is necessary, convenient and habitually used for family purposes and for those activities associated with the sanctity of a person's home;

(3) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, that has a roof over it, including a tent, and is designed for or capable of use by people;

(4) “Residence” means a dwelling in which a person resides, either temporarily or permanently, or is visiting as an invited guest, or any dwelling, building or other appurtenance within the curtilage of the residence; and

(5) “Vehicle” means any motorized vehicle that is self-propelled and designed for use on public highways to transport people or property.

(b) (1) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.

(2) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.

(c) Any person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.

(d) The presumption established in subsection (c) shall not apply, if:

(1) The person against whom the force is used has the right to be in or is a lawful resident of the dwelling, business, residence, or vehicle, such as an owner, lessee, or titleholder; provided, that the person is not prohibited from entering the dwelling, residence, or occupied vehicle by an order of protection, injunction for protection from domestic abuse, or a court order of no contact against that person;

(2) The person against whom the force is used is attempting to remove a person or persons who is a child or grandchild of, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;

(3) Notwithstanding § 39-17-1322, the person using force is engaged in an unlawful activity or is using the dwelling, business, residence, or occupied vehicle to further an unlawful activity; or

(4) The person against whom force is used is a law enforcement officer, as defined in § 39-11-106, who enters or attempts to enter a dwelling, business, residence, or vehicle in the performance of the officer's official duties, and the officer identified the officer in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(e) The threat or use of force against another is not justified:

(1) If the person using force consented to the exact force used or attempted by the other individual;

(2) If the person using force provoked the other individual's use or attempted use of unlawful force, unless:

(A) The person using force abandons the encounter or clearly communicates to the other the intent to do so; and

(B) The other person nevertheless continues or attempts to use unlawful force against the person; or

(3) To resist a halt at a roadblock, arrest, search, or stop and frisk that the person using force knows is being made by a law enforcement officer, unless:

(A) The law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt; and

(B) The person using force reasonably believes that the force is immediately necessary to protect against the law enforcement officer's use or attempted use of greater force than necessary.

[Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 8; 2007, ch. 210, § 1; 2008, ch. 1012, § 1.]


39-11-614. Protection of property. —

(a) A person in lawful possession of real or personal property is justified in threatening or using force against another, when and to the degree it is reasonably believed the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person who has been unlawfully dispossessed of real or personal property is justified in threatening or using force against the other, when and to the degree it is reasonably believed the force is immediately necessary to reenter the land or recover the property, if the person threatens or uses the force immediately or in fresh pursuit after the dispossession:

(1) The person reasonably believes the other had no claim of right when the other dispossessed the person; and

(2) The other accomplished the dispossession by threatening or using force against the person.

(c) A person is not justified in using deadly force to prevent or terminate the other's trespass on real estate or unlawful interference with personal property.

KingEdward
May 13, 2009, 11:16 AM
thanks Peetza

of your many "kills", what gives you more satisfaction, pepperoni or
italian sausage?

Brian Pfleuger
May 13, 2009, 11:20 AM
of your many "kills", what gives you more satisfaction, pepperoni or
italian sausage?

My favorite is what I call "Dead Pig Pie". Pepperoni, "ribbon" sausage, ham, meatballs and bacon. Topped with extra mozzarella, parmesan and garlic.:eek::) It's not my doctor's favorite but it's mighty tasty.

KingEdward
May 13, 2009, 11:23 AM
excellent answer.

mine is canadian bacon with italian sausage and a little parmasean sprinkled on top.

Wildalaska
May 13, 2009, 11:54 AM
Based on the statute above:

1) if someone breaks in the home via door or window, obviously that is B & E and is that by ITSELF a felony? NOPE AND NOPE

2) IF (not smart) but IF the door is opened and someone forces their way into the home and touches the homeowner (pushes down) or threatens (I'll kill you now where is the cash) what crime is committed? is it Unlawful entry or Forced Entry? Making a threat? BURGLARY

3) Is Unlawful entry a felony? I DONT SEE THE WORDS UNLAWFUL ENTRY IN THE STATUTES CITED

4) is the mixture of unlawful entry and threats a felony? SEE ABOVE

WildhopethathelpsAlaska ™

buzz_knox
May 13, 2009, 12:07 PM
2) IF (not smart) but IF the door is opened and someone forces their way into the home and touches the homeowner (pushes down) or threatens (I'll kill you now where is the cash) what crime is committed? is it Unlawful entry or Forced Entry? Making a threat? BURGLARY


It's a home, so that would be aggravated burglary, a class C felony.

Bartholomew Roberts
May 13, 2009, 05:55 PM
1) if someone breaks in the home via door or window, obviously that is B & E and is that by ITSELF a felony? NOPE AND NOPE

How do you figure NOPE and NOPE? It may not be "Breaking & Entering" since I don't see that term defined in the statute; but based on the statutes quoted above, it sure looks like Aggravated Burglary and a Felony.

Since the word home is used, it meets the definition of a habitation. Since the door or window has been broken, that means there has been an intrusion into the habitation without the consent of the owner. At this point, the only issue remaining is whether there is intent to commit a theft, assault or felony.

David Armstrong
May 13, 2009, 08:12 PM
That is the key...what is the intent. No intent to committ a crime, no felony burglary as I read it.

Wildalaska
May 13, 2009, 08:30 PM
No intent to committ a crime, no felony burglary as I read it.

Yep, you got the esssence of the whole gig.

The better definition of burglary is as set forth in modern penalk codes as opposed to the common law style:

Enter or remain unlawfully...with intent to commit a crime therein.

WildfreshbackfromthelandofpolitenessricewierdfishandskinnychickswithminskirtshighheelsandthighhighstockingsAlaska ™

OuTcAsT
May 13, 2009, 08:58 PM
How do you figure NOPE and NOPE? It may not be "Breaking & Entering" since I don't see that term defined in the statute; but based on the statutes quoted above, it sure looks like Aggravated Burglary and a Felony.


This might clear it up a bit, Actually Ken is correct. The crime would be Criminal Trespass.

The appropriate statute is provided below, (emphasis mine)

Note that it is only a misdemeanor.


39-14-405. Criminal trespass. —





(a) A person commits criminal trespass who, knowing the person does not have the owner's effective consent to do so, enters or remains on property, or a portion thereof. Knowledge that the person did not have the owner's effective consent may be inferred where notice against entering or remaining is given by:




(1) Personal communication to the person by the owner or by someone with apparent authority to act for the owner;




(2) Fencing or other enclosure obviously designed to exclude intruders;




(3) Posting reasonably likely to come to the attention of intruders; or




(4) Posting the property, in accordance with the requirements of § 70-4-106(b)(1)(B)(ii).




(b) It is a defense to prosecution under this section that:




(1) The property was open to the public when the person entered and remained;




(2) The person's conduct did not substantially interfere with the owner's use of the property; and




(3) The person immediately left the premises upon request.




(c) For purposes of this section, “enter” means intrusion of the entire body.




(d) Criminal trespass is a Class C misdemeanor.

I would think that the persons actions after being told to leave would be the deciding factor as to when, and if, it escalates to a different crime.


私はアジア女性を愛する

OuTcAsT
May 13, 2009, 09:17 PM
Also for your information;

39-14-406. Aggravated criminal trespass. —





(a) A person commits aggravated criminal trespass who enters or remains on property when:




(1) The person knows the person does not have the property owner's effective consent to do so; and




(2) The person intends, knows, or is reckless about whether such person's presence will cause fear for the safety of another.




(b) For purposes of this section, “enter” means intrusion of the entire body.




(c) Aggravated criminal trespass is a Class B misdemeanor unless it was committed in a habitation, in a building of any hospital, or on the campus, property, or facilities of any private or public school, in which event it is a Class A misdemeanor.




(d) (1) A person also commits aggravated criminal trespass who enters or remains on the real property, including the right-of-way, of a railroad:




(A) With the intent to do harm to the property or to railroad property located on the property; or




(B) With the intent to do harm to another person or knowing that their presence will harm another person.




(2) Aggravated criminal trespass on railroad property is a Class A misdemeanor.




This would be the next step up.

Wildalaska
May 13, 2009, 10:45 PM
Actually Ken is correct

You forgot the word "again":p:D

Wildineedredmeatafter8daysofriceandwierdstuffAlaska TM

PS

私はアジア女性を愛する

I love asian women too and have a live in translator ;)

Capt_Vin
May 14, 2009, 12:19 AM
Dave,
No offense to what you said, but have you actually watched an actual criminal trial lately? There are more theatrics going on than 'business'. Lawyers using every excuse as to why someone committed a crime, except for the truth, they had o respect or regard for another person or their property. Like I said, The punks childhood, backround, ect. should have no meaning. Only the facts. I'm sorry, I believe that everyone is responsible for their own destiny and actions. Lawyers have turned our judicial system into a joke. They all try to get reduced charges, less time, ect. And they use every trick they can get. Case in point: Research the antics of the defense lawyer representing the accused and parents in the Erin Maxwell murder case in Mexico, NY. This should say it all. Or, the defense lawyer representing the home invasion/triple murder from Cheshire, CT last summer. What the first case I mentioned doesn't say, this one will.
And yes, criminals do have more rights than victims. They have the right to free medical care, free lawyers, the best rec equipment and so forth. What do the victims get? Usually nothing.
As far as punks or their families suing, there have been plenty of cases where this has happened. The punk was committing a crime, and as a result, got injured or killed. What right does he or his family have to recover damages? NONE!
It is past time our country gets as tough as they can on criminals. Like I said, make crime so unappealing, that noone wants to commit it due to the consequinces. Give the law abiding citizen the power to unconditionally defend themselves, loved ones and property and watch how many punks think twice about committing a crime. Make prisons hell instead of a place where a criminal can become a better criminal. Stop all of the lawyers from using loopholes and trickery to get punks off the hook. Pass severe sentences without parole or time off for good behavior. Reinstate the death penelty for crimes that warrent it.
It sounds tough, but like I said, Irradicate crime, and irradicate the criminal if it has to be.

Wildalaska
May 14, 2009, 12:52 AM
Pass severe sentences without parole or time off for good behavior. Reinstate the death penelty for crimes that warrent it.

Hear hear! Bring back the Bloody Assizes!

The hell with trials, arrest equals guilt! Everyone is guilty!

WildexceptthatguyshootingtheguystealinghisstereoAlaska TM

Bartholomew Roberts
May 14, 2009, 06:47 AM
This might clear it up a bit, Actually Ken is correct. The crime would be Criminal Trespass.

Actually, intent can be inferred by external evidence (he is dressed head to toe in black, wearing a mask and carrying a crowbar and sack of silverware from other houses). Based on the facts we have, we know we have at least Criminal Trespass; but we might have Aggravated Burglary as well.

The better definition of burglary is as set forth in modern penalk codes as opposed to the common law style:

Enter or remain unlawfully...with intent to commit a crime therein.

Makes it better from the prosectuor's point of view since you don't have to deal with the Defendant claiming he had broken in to use the phone or wrap the toilet in ClingWrap.

KingEdward
May 14, 2009, 09:07 AM
injustice....

here in TN, you may have heard about the preacher's wife (Mary Winkler)

She shot her husband while he was in bed. She shot him in the back with a shotgun. Then she fled the scene with the kids and they found/arrested her at the beach in alabama.

Her defense team claimed years of physical abuse. I watched every minute of the trial. Not one piece of evidence of physical abuse was presented. Not one photo, not one doctor's report, not one women's shelter photo, nothing.
It was all "emotionally based" testimony.

The jury gave her voluntary manslaughter with time served. She was locked up for about 7 months total.

Sorry to side rail from the OP and thanks all for the responses.

David Armstrong
May 14, 2009, 09:49 AM
No offense to what you said, but have you actually watched an actual criminal trial lately? There are more theatrics going on than 'business'.
No offense taken, Capt, and I watch (and participate in) criminal trials regularly. The court has always been a place for theatrics, but that is part of the business and does not mean we don't get a good trial.
Like I said, The punks childhood, backround, ect. should have no meaning. Only the facts.
But those are part of the facts. That sort of stuff has always been part of the judicial system we use.
Lawyers have turned our judicial system into a joke. They all try to get reduced charges, less time, ect. And they use every trick they can get.
It is not a joke, far from it. And that is the defense attorney's job, to try to get their clients charges reduced, less time, etc. And those "tricks" happen to be a little thing known as "due process."
As far as punks or their families suing, there have been plenty of cases where this has happened. The punk was committing a crime, and as a result, got injured or killed. What right does he or his family have to recover damages? NONE!
There have been a few cases of it happening. They are rare, and it is even rarer for them to win unless the victim has done something fairly outrageous. As for what right they have? It is called the law, and they have the same right to sue as you have. No difference.
It is past time our country gets as tough as they can on criminals.
We are already one of the toughest in the world, with a higher incarceration rate than virtually any other modern country. We are tougher now than we have been in the past. FWIW, states with the highest incarceration rates (toughest on criminals) also tend to have some of the highest crime rates.
Like I said, make crime so unappealing, that noone wants to commit it due to the consequinces.
How would you do that? Societies have tried pretty much everything, including the death penalty for things like stealing a loaf of bread, and crime never went away.
the law abiding citizen the power to unconditionally defend themselves, loved ones and property and watch how many punks think twice about committing a crime.
Unconditionally? So I should get to blow away my neighbor's six year old girl because she keeps coming over here trespassing on my property? Might want to think a little bit about that one.
Make prisons hell instead of a place where a criminal can become a better criminal.
Haven't been in many prisons lately, I would assume. Of course, we can look at history and see where such an idea doesn't work. Crime rates in France did not go down when they were sending folks to Devils Island, for example.
Stop all of the lawyers from using loopholes and trickery to get punks off the hook.
As mentioned, those loopholes and trickery are what we call due process, and are designed to keep the government from running roughshod over you. Am I to understand that if you were accused of a crime, rightly or wrongly, you DON'T want your attorney to look for every loophole he can find, or use every legal trick he can, to help you?
It sounds tough, but like I said, Irradicate crime, and irradicate the criminal if it has to be.
It sounds a whole lot like the old Soviet Union and a host of Third World dictatorships. Which still have a lot of crime, BTW.

OldMarksman
May 14, 2009, 10:49 AM
Excellent post, David!

Societies have been trying to irradicate crime since time immemorial. The Code of Ur-Nammu, which predated the Code of Hammurabi, specified death for robbery and adultery, among other things. Does anyone think it worked?

The problem with the simplistic approach ("Give the law abiding citizen the power to unconditionally defend themselves, loved ones and property and watch how many punks think twice about committing a crime...Stop all of the lawyers from using loopholes and trickery to get punks off the hook") is that in many cases it is not all that clear just who the criminal is.

John sees James in his house and shoots to kill. Was John justified? Well, it depends on the facts. Wrong house? Lawful entry due to an initation by John's wife? Was James a detective trying to arrest a home invader? Or had John broken in unlawfully? Well, maybe John was justified, but on the other hand, maybe John committed murder. The facts will be brought out by the judicial process.

That's why we have due process, and to make it work, we have a system of judicial advocacy. The state's attorney makes a case and the defendant's attorney makes his.

Some people in these discussions automatically presume that if they shoot someone, they will be automatically presumed to be the "good guy." Were that the case, all murders would go unpunished.

How about he fellow in Washington State whose wife came home to find a highly impaired man in the house and called her husband, who came home and killed the man. Murder charges were filed. By the way, case law establishes a castle doctrine in Washington State.

Anyone think the charge was inappropriate? Well, if so, would that person also think it wrong for the homeowner's attorney to try to defend him?

Capt_Vin hears a noise in the other room and is alarmed. He grabs a gun and goes to investigate. There's a man at arms' reach walking in his direction. Capt_Vin fires immediately, thinking his life to be in danger.

Scenario one: evidence shows that the man had entered forcibly and unlawfully. Justified shooting? I think so, and so, I think, will the authorities.

Scenario two: unknown to Capt_Vin, the man had entered the house lawfully. Justified shooting? Most likely, Capt_Vin will be prosecuted for murder in one degree or other; that he fired is not in question, and the evidence shows that the victim was not breaking the law. Do we not expect Capt_Vin's attorney to try bring about the most favorable trial outcome and sentence possible, or should he be prevented from vigorously defending the person now identified as the "punk"?

No, these things are not black and white.

skydiver3346
May 14, 2009, 01:34 PM
Some bad guy pushes in your door when you open it and he knocks you down. He is now in your home and threatens you and/or demands money from you.... Uh, that is not a home invasion (felony) scenario?

I sure as heck don't won't to live in a state that says you can't respond to that kind of threat because it actually wasn't a real "break in" like knocking out your window or door. The results are still the same, he is in your home and the intimidation and threat is real.
Don't know what the rest of you plan to do about this situation but I know what I would do if that happened to me or my wife when we answered the door. By the time you tried to figure out what the "rules/regs" are in your particular state, this guy could have not only robbed you but worse! Just may be a little too late to do anything about it. Bottom line: "You tell the story"....

Deerhunter
May 14, 2009, 02:13 PM
What is the intent. No intent to committ a crime, no felony burglary. This is the problem here. The lawyer is going to say that the punk that broke into your house had no intent to committ a crime. My thoughts are, well then he shouldn't have broken into my house. If he broke in he has already commited a crime. The problem is that is not how the lawyers and courts see it all the time. We need to get it to where if you are in someones residence, illegally (you weren't invited) then you get what you get. Im my house that is either a Remington 870 with a 1oz slug or my Sig 229 - 40 Corbon Hollow points. Good luck getting out......alive.

David Armstrong
May 14, 2009, 03:17 PM
We need to get it to where if you are in someones residence, illegally (you weren't invited) then you get what you get. Im my house that is either a Remington 870 with a 1oz slug or my Sig 229 - 40 Corbon Hollow points. Good luck getting out......alive.
I'm going to tell a little story here. Long ago, when I was 16 (before cell phones and all that neat stuff) and living in the country, while on my way to school one morning I came on a pretty bad wreck. One person dead on the scene, 3 with severe injuries. Right up the road was a house. I drove up there, jumped out of hte car, and ran up to the house. I knocked on the door (actually pounded on it) several times, got no answer. So I bum rushed the door, broke it in, and got on the phone to get some help. About the time I was finishing up the call an elderly man came out of the back room wondering what all the ruckus was about. Think I needed to "get" anything from his 870? Or his pistol?

KingEdward
May 14, 2009, 03:39 PM
well, herein lies some of my dilemma with defending home and harth.

On the one hand, I see and kind of agree with "they get what they get"

Then I see David's story which brings to mind there can be (fairly rare I would guess) situations where there is a break in but either the person who is in is not a threat (or committing or attempting to commit a felony) or is trying to do something good.

In David's story, if the elderly person had shot David as he "did break in", that would have been an interesting court case.

Living on a very busy intersection near a major unversity, if someone needs the phone to call something in or to do something good. I sure hope they don't bum rush and get in my door. Hopefully I'll be asleep and I'll hear them
doing good deeds over the phone and we'll calm down after I lower my HD weapon and have a good story to tell. But something like that could turn ugly fast if I awake and someone crashes through a door.

I guess it all goes back to target ID, threat assessment, control, etc etc.

OuTcAsT
May 14, 2009, 03:49 PM
Some bad guy pushes in your door when you open it and he knocks you down. He is now in your home and threatens you and/or demands money from you.... Uh, that is not a home invasion (felony) scenario?

I believe that would fall under aggravated burglary

Deerhunter
May 14, 2009, 04:15 PM
David

I see what your saying and maybe I should have gone into more detail in my post. I am not one that is just going to start shooting at someone right away if they break in my door. You were in probably a rare situation. I would hope that you would be telling the guy right quick what you were up to if he had a gun, well even if he didn't.

You are also going back to when there were no cell phones. That probably would be back far enough where we don't have the kind of things going on that we do now. When I was growing up we almost never locked our back door. That wasn't all that long ago as I am 33, but those were different times.

OldMarksman
May 14, 2009, 04:21 PM
We need to get it to where if you are in someones residence, illegally (you weren't invited) then you get what you get. Im my house that is either a Remington 870 with a 1oz slug or my Sig 229 - 40 Corbon Hollow points.

When a castle law came up for consideration in the Missouri legislature, opponents, editorialists, and attorneys writing guest columns said it would "legalize murder." The bill was enacted in law, and what is says (in plain English) is, among other things, that "a person may not use deadly force upon another person ... unless ... 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".

"Unlawful entry" is defined as entry "without license" (read: uninvited). There's no mention of forcible entry.

Does that mean that if someone is in my house uninvited for whatever reason, I am permitted to kill him? I do not know. I don't know the case law. I certainly wouldn't want to test it from either the moral nor the legal standpoint, unless the presence of the "uninvited" person appeared to constitute a likely danger.

The law in Tennessee reads a little differently: "any person using force intended or likely to cause death orserious bodily injury within their own residence is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to self, family or a member of the household whenthat force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

Is that reasonable, or should it read "uninvited"? Points to be made on both sides, I think. Guy comes in through an open window and endangers me, why should I be obligated to look for signs of force? But do we really want to shoot someone simply because he is uninvited? Wrong house, person with dementia...and see below for a discussion of situations in which a person enters by necessity.

Good luck getting out......alive.

That ups the ante a lot more. It's one thing to defend against an intruder. To shoot him to prevent his egress is murder. In Missouri, the law reads that I can shoot if he remains after unlawfully entering, but it does not say I can shoot him to make sure that he remains after unlawfully entering.:( That's great publicity for the antigun movement. Keep it up.

But the original question had nothing to do with that. The question was about what kinds of entry constitute felonies.

Well, as it happens, there is in Tennessee such a thing as a necessity defense. A man trespasses to avoid death or serious injury (snowstorm, for example) and he will not be convicted of the crime of trespass. Goes back to the common law and my therefore apply in most places. Sounds reasonable to me. And shooting the man does not. David Armstrong's experience further illustrates the idea. Did he commit a crime?

But I'm not sure why one would really care at all about whether someone in one's house has committed a felony or a misdemeanor. The Tennessee self defense law does not hinge on that distinction--at all (lay interpretation). The issue isn't even mentioned in the statute.

By the way, did someone say that if "someone pushes in your door when you open it and he knocks you down" that the entry is not unlawful and forcible? Really?

KingEdward
May 14, 2009, 05:10 PM
Good points Old Marksmen.

I, like David (having read other posts) will try to assess the situation and believe it is extremely important that the BG leave the room / home however that can be accomplished.

Not going to get into all the "don't yell, or yell, but don't turn on light" discussions here.

Where for me I think this gets very very complex is middle of the night, an "univited" person has forced entry (whether violently with tools / kicks or "quietly" via cutting the screen window out) and they are in the dining room and my dog knows it and what's next.

I have already planned (if time) to hunker down in BR and wait for the pros while guarding family.

But however it were to happen, if I do confront or come in close quarters with a person in my home in this situation, am I really going to be thinking of
all the things he/they could be (car accident victim / lost elderly person / teen who ran away and is cold seeking shelter).

Common sense would say I'm thinking just the opposite and it's me/family vs.
danger and home invader.

KingEdward
May 14, 2009, 05:14 PM
a good friend thinking about all this and the law and loved ones always says,

"If one doesn't want to get harmed or shot at, then one doesn't need to break in to my home".

David Armstrong
May 14, 2009, 07:52 PM
You are also going back to when there were no cell phones. That probably would be back far enough where we don't have the kind of things going on that we do now. When I was growing up we almost never locked our back door. That wasn't all that long ago as I am 33, but those were different times.
If you are 33, crime in the U.S. is now at one of the lowest points it has been in your entire life. But cell phones or not, my point is simple...people break into houses for a number of reasons that do not involve any criminal intent. Kids sneak into their friends homes at night, drunks get the wrong house, Alzheimer's sufferers go back to the house they lived in 20 years ago, and so on.

Wildalaska
May 14, 2009, 10:24 PM
drunks get the wrong house

:) :)

http://www.thefiringline.com/forums/showthread.php?t=241344&highlight=sleep+spiff

WildatrueexampleAlaska TM

David Armstrong
May 15, 2009, 10:54 AM
"A University of Arizona Police Department officer reported that he had finished working around 5 a.m. and headed home. After being there for approximately five minutes, he heard a knock at his door. The officer had not locked his door behind him, and when he looked to see who was there, he saw a girl with no shoes and unkempt hair.

She yelled at the officer to let her in because she had to use the bathroom. The officer said no, that he did not know her and she should use the public bathroom at the Circle K convenience store down the street. She replied, "No, I really have to pee, and this is where the party is at."

The woman attempted to make her way into the house. She pushed the door open and said, "I really need to use your bathroom," as she tried to push the officer aside so she could get past him."
***************************************************
OK, let's assume you are not an officer. What are you going to do? Do we have a felony?

csmsss
May 15, 2009, 11:01 AM
"A University of Arizona Police Department officer reported that he had finished working around 5 a.m. and headed home. After being there for approximately five minutes, he heard a knock at his door. The officer had not locked his door behind him, and when he looked to see who was there, he saw a girl with no shoes and unkempt hair.

She yelled at the officer to let her in because she had to use the bathroom. The officer said no, that he did not know her and she should use the public bathroom at the Circle K convenience store down the street. She replied, "No, I really have to pee, and this is where the party is at."

The woman attempted to make her way into the house. She pushed the door open and said, "I really need to use your bathroom," as she tried to push the officer aside so she could get past him."
***************************************************

OK, let's assume you are not an officer. What are you going to do? Do we have a felony?That's certainly a trespass, and given that she attempted to forcibly enter, very likely a felony. That it didn't happen at night, and that she wasn't an obvious threat to the homeowner's life work in her favor, but it's still a crime and I believe the homeowner would be justified in drawing a firearm to prevent her entry. Not enough there to say he'd be justified in a shooting, however - what is presented is not enough to satisfy the reasonable person test.

OldMarksman
May 15, 2009, 01:10 PM
The woman attempted to make her way into the house. She pushed the door open and said, "I really need to use your bathroom," as she tried to push the officer aside so she could get past him." OK, let's assume you are not an officer. ..... Do we have a felony?

A lay person cannot do any more than speculate, and I'm not sure that a prospective defense attorney would answer in writing. On the face of it, it sounds like Criminal Trespass in the First Degree, which as I understand it is a Class 6 Felony. But: is it conceivable that the person could successfully mount a necessity defense? Did she have no reasonable alternative to prevent injury greater than the damage she would cause (say, indecent exposure to someone under fifteen, also a felony)? I have absolutely no idea what the case law is in Arizona or what a court might decide.

However, I don't see how it matters to anyone but the girl.

What are you going to do?

Sorry, I lock the door automatically--wouldn't happen.

If it did--how old, how big, does the behavior change...I'd stay wary and would be armed.

The only thing I know for sure is that I would not think "castle law" and shoot.