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View Full Version : Gun rights in regards to self defense


Rotgut
August 28, 2009, 08:51 PM
As stated in my other thread I'm moving to a bad area and will have nice things in my home. What are my rights in regards to intrusion defense. I checked with the police department and they were less than helpful.

ΜΟΛΩΝ ΛΑΒΕ
August 28, 2009, 09:02 PM
Depends on where you live.

Rotgut
August 28, 2009, 09:10 PM
California. I tried to google it but seemed like I kept getting the run around. Anyone have any good links or information?

That's for helping with my newbie questions

olddrum1
August 29, 2009, 12:11 AM
Best option would be not to move there if you are going to put your self in harms way.

BillCA
August 29, 2009, 02:03 AM
As stated in my other thread I'm moving to a bad area and will have nice things in my home. What are my rights in regards to intrusion defense. I checked with the police department and they were less than helpful.
Here's the lowdown for California.

First, California does not have a duty to retreat in one's home any longer.

To read the text of California laws regarding Homicide and justifiable homicide, click here (http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=52728523264+5+0+0&WAISaction=retrieve).

In short, you're justified if someone enters your home by means of violence, surprise or force, presents a credible threat (see §198) to do violence, great bodily harm or commit a felony. (see §197 below)

The standard warnings apply.
- Never shoot through a closed exterior door
- Always identify your target (not a cop/rescue/ems worker)
- Use only that force necessary to stop the person from harming you or others
- Stay inside your home where practical. Do not pursue subjects down the street.


The California Penal Code sections that are relevant include:
§ 197 Justifiable homicide. Homicide is justifiable in the following cases;

When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,
When committed defending your home, property or person from someone who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or,
Defending another person or of a wife or husband, parent, child, master, mistress, or servant of such person when there is reasonable to believe a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished. But if the defended person was the assailant, he first must have made a good faith effort to decline any further struggle before the homicide was committed.


§198 says "bare fear" is not sufficient to justify homicide. The fear must be sufficient to excite the fears of a reasonable person. Meaning a guy who walks into your house, sits down in your Lazy-boy, drinks your beer and changes the TV channels is not suffciently dangerous to justify shooting him. You could be afraid of what he might do but lacking any observations towards violence, you can't shoot him.

California's "Castle Doctrine" gives a homeowner/resident the benefit of the doubt in a shooting. I'll just quote the whole thing.
§198.5. Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that 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.

As used in this section, great bodily injury means a significant or substantial physical injury.

Footnotes....
If you invite someone into your home - a neighbor, acquaintance, serviceman, landlord, etc., then all the wording about unlawful entry or forced entry doesn't apply to them. You can still resist an attack, but the protections of §198.5 don't apply.

In general, outside your home on your property, you must be in imminent danger of great bodily harm (§197) without deliberately putting yourself into such a position (i.e. between the perp and his only escape route).

Hope that helps.

Glock_fan
September 1, 2009, 10:31 PM
Wow BillCa, that was a lot more helpful then the smart alec "Don't move there" response above.

Lee Lapin
September 2, 2009, 05:05 AM
Doesn't really have much to do with 'gun rights.' What you want to know is re. self defense in your residence in your jurisdiction. You need to be specific to your jurisdiction, police department, sheriff's office or whatever. Things vary a lot sometimes between black letter law, case law and actual enforcement from place to place. You need to know the situation in the place where you live.

Call a couple of bail bond establishments in your police jurisdiction. Ask them who the best criminal defense attorney in your area is.

Then set up an appointment with the most likely candidate. First appointments with most any attorney (around here anyway) are free. Ask the attorney your questions. Ask about a retainer while you're at it, and ask how much they bill per hour. At minimum, walk away with a couple of his/her cards to keep handy, and some legally dependable answers to your questions.

Then start looking at ways to harden your residence so you can cut down on the likelihood of ever having to employ your newfound information. I like John Farnam's statement - Winning a gunfight, or any other potentially injurious encounter, is financially and emotionally burdensome. The aftermath will become your full-time job for weeks or months afterward, and you will quickly grow weary of writing checks to lawyer(s). It is, of course, better than being dead or suffering a permanently disfiguring or disabling injury, but the "penalty" for successfully fighting for your life is still formidable. - http://www.defense-training.com/quips/2003/19Mar03.html

I'd also suggest spending some time studying the lecture notes at http://www.teddytactical.com/archive/MonthlyStudy/2006/02_StudyDay.htm . That two hour lecture was some of the best classroom training I've ever had.

Chances are it won't matter. Odds are you'll never have to find out the hard way. But IMHO it's th stakes that matter with this stuff, not the odds. People don't buy fire extinguishers because they want to have a fire.

The main thing you should never forget - if you do not successfully solve Problem One (winning the gunfight), then Problem Two (the legal aftermath) is not likely to be much of an issue.

Stay Safe,

lpl

SeekHer
September 2, 2009, 06:19 AM
When we were living in the USA, I was told totally different things by various LEOs (FBI, DEA, highway, city and state police) but one of them said the best advise I'd ever heard...

"Never ask your defense attorney, ask your state DA or ADA what they will or won't prosecute"

A defense attorney will always be on your side, the DA won't...

But, like Lee Lapin has advised, check with a lawyer as well -- but never ask a cop...

Keep his card handy and after calling 911 call him and DON'T GIVE the responding officers anything, nada, zip, zilch, bupkis -- some say not even your name, until you have legal counsel at your side! Under no circumstances!
There is a reason for that phrase:
"Anything you say can and will be used AGAINST you" -- notice it doesn't say FOR you!

BillCA
September 3, 2009, 02:16 AM
Thank you Glock Fan.

Lee Lapin has some good points. But rather than say "harden" your house (you're probably renting), I would say make your house "less attractive" to the criminal element.

Do some on-line research via newspaper archives and talk to police about the kinds of burglaries and troubles in your area. How do they typically get in? Are home invasions a problem? Or burglaries? What property attracts them?

That also means installing a motion detector light socket in the porch lights. Bright porch lights too. If windows are vulnerable to approach, some large clay pots with cactus plants in them placed under the windows should keep them away. Or simply place a semi-circle of nice crunchy gravel or lava-rock under the window.

Read up on how to increase the strength of your door jambs, locks and hinges. Keep plants in front trimmed so they can't easily hide people from view - from your driveway and/or the street.

Buy a cheap wireless webcam and mount it under the eaves of your house, looking at the porch and into the street.¹ Don't hide it. Let them think twice.

The best gunfight is the one you avoid. If you can avoid it by spending $200 over time to make your house less attractive to thieves, that's money well spent.

¹ Some states require you to post a sign indicating the area is under video survelliance. Sometimes a sign is enough deterrent (especially with small cameras today). If the signage is required, you have to post it before its images are viable in court. Or you could be ticketed for unlawful recording. Silly but that's it.

ebutler462
September 3, 2009, 10:36 AM
We have been trying for decades to get a Castle Doctrine in NC but to no avail. In my state, you can only shoot to defend yourself in certain circumstances. No way can you shoot to prevent a theft.

We are still trying but it look less like we will ever get a Castle Doctrine law.

Lee Lapin
September 3, 2009, 08:33 PM
"Never ask your defense attorney, ask your state DA or ADA what they will or won't prosecute"

But then, the DA/ADA will be wondering what it is you're trying figure out how to get away with.... :D

lpl (at least, any one I've ever known would be...)

A_McDougal
September 8, 2009, 09:10 PM
If you can get a lawyer to give you a straight answer, congratulations on becoming a judge. :)

Every competent lawyer I've ever tried to pin down "can't answer hypothetical questions" and can only give provisional answers for particular cases.