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Old January 5, 2010, 11:52 AM   #26
hillbillyshooter
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it seems to me that once you are inside your home, you have already retreated!
Exactly, in my interpretation of the Castle Docterine, it is an assumption that any person unlawfully entering your home is doing so with the intention of causing great bodily harm or death to the occupants.
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Old January 5, 2010, 11:58 AM   #27
madmag
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it is an assumption that any person unlawfully entering your home is doing so with the intention of causing great bodily harm or death to the occupants.
Actually, that's how I interpret our SC Castle Law. It's implied that the act of illegally entering your home is in itself a threat to life.
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Old January 5, 2010, 09:17 PM   #28
wpcexpert
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ยง55-7-22. Civil relief for persons resisting certain criminal activities.

(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder's or attacker's unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
(b)A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.
(e) The full and complete civil defense created by the provisions of this section is not available to a person who:
(1) Is attempting to commit, committing or escaping from the commission of a felony;
(2) Initially provokes the use of force against himself, herself or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or
(3) Otherwise initially provokes the use of force against himself, herself or another, unless he or she withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
(f) The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct.
(g) Nothing in this section shall authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty.

So basically while in your home, must be able to reasonably believe that the intruder is going to kill or commit a felony. In WV, stealing anything worth over $1K is a felony.
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Old January 26, 2010, 10:52 AM   #29
DogoDon
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(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.
Paragraph (d) is a critical part of the statute posted by wpcexpert! Some states (like NC, for example), have statutes providing that the homeowner does not have to retreat, and providing a presumption that someone attempting to forcibly enter one's residence is a threat justifying use of force up to deadly force in self defense. However, that covers only the criminal aspect of the use of deadly force. The civil aspect is equally if not more important. Escaping criminal prosecution is nice, but you could still be ruined financially by civil liability, as others have noted.

Florida's statutues provide that the justifiable use of deadly force in defense of self is a complete defense to criminal and civil liability:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
The sections referred to in section 776.032 pertain to (a) use of force in defense of person, (b) home protection, and (c) use of force in defense of others.

I think Florida's statutes are a model that we (firearm owners) should advocate in our own states.

Maybe I'll just move to Florida.

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Old January 27, 2010, 09:26 AM   #30
DogoDon
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Below is the text of a message that I have sent to my senators and representatives. I would encourage others to do likewise if you are in a state that does not have Florida-type statutes providing immunity from criminal and civil liability for a person who lawfully uses deadly force in defense of self/home/others:

As a citizen concerned about efforts by some to gradually erode Americans' right to own and use firearms for self defense, I am writing to urge you to do all you can to support legislation similar to Florida's statutes (section 776.013 and related sections). As I'm sure you know, Florida (and other states) provides immunity against both criminal AND CIVIL prosecution for a person who lawfully uses deadly force in defense of self, home, and others.

North Carolina needs similar laws. As the law currently stands, a person who lawfully uses deadly force in defense of self may escape criminal liability, but may still be subject to potentially ruinous civil liability. This has the effect of removing the consequences of a violent offender's volitional act from where it rightfully belongs (on the offender) and placing it on the innocent victim. This is plainly wrong.

Please do what you can to facilitate passage of legislation to correct this situation. I will not vote for any NC senator or representative who opposes such legislation. Thank you, sir.

[signed, xxxxxx]


Contact your state legislatures about this! Thanks!

DogoDon

Last edited by DogoDon; January 27, 2010 at 03:14 PM. Reason: correction of post
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Old January 27, 2010, 01:04 PM   #31
brickeyee
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(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
This is the real phrase that is needed in the law.

Quote:
...full and complete defense to any civil action brought by an intruder or attacker against a person using such force.
Is not going to get your legal expenses paid for the defense.

Prohibiting filing suit will not go very far, but the adoption of the 'British rule' of loser pays will discourage even the most abusive attorney from bothering to file.
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Old January 27, 2010, 03:16 PM   #32
DogoDon
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Great point, brickeyee. The "loser pays" provision is a big deterrent against filing suit, and that is a critcal aspect. Thanks.
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Old January 27, 2010, 03:21 PM   #33
Bartholomew Roberts
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This is the real phrase that is needed in the law.
Eh... good luck collecting from any of the people who are likely to be the subject of that provision.
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Old January 28, 2010, 11:58 AM   #34
brickeyee
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Eh... good luck collecting from any of the people who are likely to be the subject of that provision.
No attorney will get involved, and dirtbags rarely have the wherewithal to file much more than habeas petitions from their cell (and an occasional request for a re-hearing).
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