An Avoidable Tragedy

[Sharkbite]

With all due respect if you sneak into my house in the middle of the night that's a risk you assume.

Being stupid does not rate the death penalty. Even if it should

[Moonglum]

Originally Posted by Sharkbite

Being stupid does not rate the death penalty. Even if it should

First, let me say that I'm not going to just fire blind but my first responsibility is to my family not to some neighbor kid who had to have broke in to get there.

I wake up in the middle of the night and the first thing I do is reach over and touch my wife. If she's there anyone else in my home isn't supposed to be there.

Again I'm not going to open fire blindly but if the unidentified person in my home makes any threatening move or gesture the identification process is over.

Several years ago there was an incident in Colorado Springs in which the home owner found an intruder in his basement and ordered him out of the house. According to the home owner the intruder turned around and started walking back towards the room he'd come from, took 3 steps, turned and fired at the homeowner. Homeowner fired back and the guy took off.

You broke into my home, I don't owe you a damn thing

[OldMarksman]

With all due respect if you sneak into my house in the middle of the night that's a risk you assume.

Well, yeah and the resident may well avoid criminal and civil liability.

BUT--if it is a wrong address (typo in a text message) or a plain clothed police officer chasing a man with a gun or an unexpected relative or someone coming in to warn yo about a fire, the resident would never live it down.

And his having posted such a sentiment in a public forum could well put him in a rather bad light in criminal or civil court

[stagpanther]

He recounted later how incredibly large the hole was in the end of the 1911 that met him held in my mother's hands

Unfortunately I know exactly what that feels like--it's amazing how incredibly focused you can become on the twitching of the finger on the trigger.

[Moonglum]

Originally Posted by Old Marsman

And his having posted such a sentiment in a public forum could well put him in a rather bad light in criminal or civil court

18-1-704.5 Use Of Deadly Physical Force Against An Intruder ("Make My Day Law")

1. The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute
safety within their own homes.
2. Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any

degree of physical force, including deadly physical force, against another person when that other person has
made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other

person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends
to commit a crime against a person or property in addition to the uninvited entry, and when the occupant

reasonably believes that such other person might use any physical force, no matter how slight, against any
occupant.
3. Any occupant of a dwelling using physical force, including deadly physical force
(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

Or , you know, not.

Again I am addressing Pax' hypothetical specifically. The neighbor kid who snuck into my home in the middle of the night uninvited.

The Colorado state legislature says I have the right to expect absolute safety with in my home.

1. The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

If you go out of your way to illegaly enter my home without my permission you assume 100% of the liability for your actions. Not me.

[pax]

If your kid invited him, he's not legally an intruder.

pax

[Moonglum]

If your kid invited him, he's not legally an intruder.

It's not my kid's home it's mine

And remember he doesn't have to be an intruder I just have to reasonably believe he's an intruder.

Middle of the night, you snuck in my back door, while you're making your way through my living room to the basement stairs you hear my bedroom door open and you don't call out "Hey Mr. Glum it's me neighbor kid, Glum kid said I could come over!" ? Explain how I wouldn't have a reasonable belief that you're an intruder.

And in your hypothetical you said he snuck into my home.

Now you explain to me a scenario where my kid invited him and then went back to sleep instead of going upstairs to meet him when he got there.

Again, if you enter my home illegally in the middle of the night (which would include any method other than someone in my family opening a door and letting you in) you assume all responsibility for the danger you placed yourself in.

[2damnold4this]

If you can afford to own a gun and ammunition, you ought to be able to afford a flashlight or some night lights.

Shining a bright light into a possible intruder's face isn't putting you at a tactical disadvantage, it's allowing you to identify whether there is a threat.

Home defense and self protection isn't tossing grenades at noises we hear in the brush on the other side of the wire. We need to identify a threat before we use force.

[Branko]

Just woke up, high on adrenaline and shooting people you can't see well enough to identify is a recipe for disaster.

Sure, a "who is there" or using a light might mean you lose the element of surprise or give away your position, but most of us don't live in an action movie and an unknown in the house is more likely to be an unexpected guest (eg. friend of the kids or the wife), or kids sneaking in, then some ninja assasin shooting at the light.

Where I live, I know of a few examples of tragedies like this which happened over the past few decades, and I know of a number of examples of home owners defending themselves and their property with guns (typically, without having to shoot anyone) but I sure as hell don't know an example where someone was killed because he took the extra half-second to check who he is shooting at.

While the law might allow you in some jurisdictions to shoot an intruder without asking any questions, few people live in such circumbstances where any unknown in the house is 100% guaranteed to be an intruder, meaning you're still required to check whether the unknown is an intruder or not. Where I live you're additionally required to determine if the intruder is a threat, which, while not ideal for every situation, does entice people to use force when they actually have to.

[Sharkbite]

AND when the occupant has a reasonable belief that such other

person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends
to commit a crime against a person or property in addition to the uninvited entry, andwhen the occupant

reasonably believes that such other person might use any physical force, no matter how slight, against any
occupant.

Youve missed some mighty important elements in that law

[Frank Ettin]

Originally Posted by Moonglum

...my first responsibility is to my family...

So to protect your family you kill your teenage son or someone your son invited into your (and his) home?

Originally Posted by Moonglum

...18-1-704.5 Use Of Deadly Physical Force Against An Intruder ("Make My Day Law")...

Obviously you don't understand the law. CRS 18-1-704.5 reads (emphasis added):

18-1-704.5. Use of deadly physical force against an intruder.

(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

Those conditions specified in paragraph (2) of 18-1-704.5 must be satisfied in order to justify the use of lethal force. So if your child comes home unexpectedly --

1. State each and every fact and basis in law for your determination that he has made an unlawful entry to your (and his) home.
   
   
2. State each and every fact and basis in law for your reasonable belief that he has committed, or intends to commit, a crime in your (and his) home.
   
   
3. State each and every fact and basis in law for your reasonable belief that he intends to use force against you or someone else in your (and his) home.

Originally Posted by Moonglum

....I just have to reasonably believe he's an intruder....

No, that's not what the law says. CRS 18-1-704.5(2) says:

...against another person when that other person has made an unlawful entry into the dwelling....

There's nothing there about a reasonable belief. The reasonable belief language applies to the issue of the intruder having committed or intending to commit a crime (other than the uninvited entry) and the intruder's intent to use force against a person.

See also People v. Phillips, 91 P.3d 476 (Colo. App., 2004), at 481:

...there was no evidence the victim's entry into the house was unlawful, and therefore, no basis on which a reasonable jury could have acquitted defendant under the make-my-day statute.....

See also People v. McNeese, 892 P.2d 304 (Colo., 1995), at 309 -- 310, emphasis added:

...A prerequisite for immunity under the "make-my-day" statute is an unlawful entry[/B] into the dwelling. Id.; [B]People v. Drennon, 860 P.2d 589, 591 (Colo.App.1993);.... The explicit terms of the statute provide the occupant of a dwelling with immunity from prosecution only for force used against a person who has made an unlawful entry into the dwelling, but not against a person who remains unlawfully in the dwelling. Drennon, 860 P.2d at 591.

The Guenther reasonable belief standard relates only to the defendant's state of mind once the intruder is inside the dwelling:

There is nothing in section 18-1-704.5 suggesting that the General Assembly intended to broaden the conditions for statutory immunity to include a home occupant's right to use any degree of physical force against another person solely on the basis of an appearance, rather than the actuality, of an unlawful entry into the dwelling by that other person. The legislature adopted a "reasonable belief" or "appearance" standard in section 18-1-704.5 only with respect to those other statutory criteria for immunity relating to the intruder's conduct inside the dwelling. Under these circumstances, we are satisfied that the failure to include a similar "reasonable belief" or "appearance" standard with respect to the unlawful entry element of immunity was the result of deliberate legislative choice.....

[Mr. Hill]

The Colorado Springs DA will certainly charge you with homicide for shooting your kid's friend because you are too stupid to identify the child before you shoot him. The DA won't care about your Dirty Harry attitude, and neither will a jury.

[Moonglum]

The problem I have with these scenarios is that they're not one size fits all. I have to be able to take any given scenario and adapt it to my reality.

My wife and I are the only people living in our home. Our youngest child moved out 14 years ago.

I wake up, reach over and put my hand on my wife and I've just accounted for everyone who is supposed to be in my home. Under those conditions any reasonable person would assume that anyone else in the house is an intruder who was there illegally.

Now, that doesn't give me the right to blindly open fire if I go out of the my bedroom and find some unknown person in my living room but it does bolster my reasonable assumption that the unknown person is a threat to me and it lowers the threshold on my decision to fire or not to fire considerably.

[Frank Ettin]

Originally Posted by Moonglum

The problem I have with these scenarios is that they're not one size fits all....

No, your problem is that you're not looking at what the law is. You're looking at what you want it to be.

Originally Posted by Moonglum

...I have to be able to take any given scenario and adapt it to my reality....

We're not discussing your reality. We're discussing reality, whatever that might be at the time.

Whatever your particular situation is at this moment might not be the way things will be when/if you find yourself facing a use-of-force decision. You might have house guests. You might be a house guest. You might be on vacation with a bunch of people in a cabin somewhere.

I've been in those situations and will likely be again -- and in variations on those sorts of situations. Tonight, it'll just be me and my wife here in our home -- as it is most of the time. But over Christmas we had a number of folks sleeping over. And several months ago, we were at a family cabin in the mountains sharing it with seven other people.

We can not predict the future. We don't know where we'll be or what the "scenario" will be if/when we've got a critical incident on our hands. We need to understand the applicable laws and have the requisite skills to be able to assess the situation and make appropriate decisions, whatever that particular situation might be.

[Moonglum]

Hey Frank, there's more case law than that to look at. Look at the case of the drunk coed in Boulder who walked through an unlocked front door, ended up in the bedroom an got shot no charges filed


http://abcnews.go.com/US/drunk-woman...ry?id=16435998

Sean Kennedy never even made it all the way into the house before being shot no charges filed


http://www.foxnews.com/story/2009/01...-intruder.html

My biggest problem with the moderation here (and at the high road) is arrogance of the moderators. You guys assume you're always right and you get bent out of shape if anyone dares to question your "expert opinion".

I never said I'd blast anyone I found in my home no questions asked I said (Quite specifically) that if you're sneaking around my house uninvited (the idea that my hypothetical kid invited the neighbor kid wasn't introduced until later) in the middle of the night that you assumed that risk not me. If you don't believe me ask Zoey Ripple, I'm pretty sure she's out on parole by now.

[Frank Ettin]

Originally Posted by Moonglum

Hey Frank, there's more case law than that to look at. Look at the case of the drunk coed in Boulder who walked through an unlocked front door, ended up in the bedroom an got shot no charges filed


http://abcnews.go.com/US/drunk-woman...ry?id=16435998

Sean Kennedy never even made it all the way into the house before being shot no charges filed


http://www.foxnews.com/story/2009/01...-intruder.html....

First, that's not case law. Case law is what courts of appeals say in their decision. You're looking at incidents.

Every incident is different and will have different legal consequences depending on exactly what happened and how it happened.

Originally Posted by Moonglum

....My biggest problem with the moderation here (and at the high road) is arrogance of the moderators. You guys assume you're always right and you get bent out of shape if anyone dares to question your "expert opinion"....

All opinions are not equal. The opinions of professionals with appropriate education and experience in the subject are one thing. Opinions plucked out of the air by persons without relevant qualifications are quite another. You've certainly given me no reason to take your opinions on matters of law seriously.

Understand that we don't care what you think or believe. You're certainly free to act on whatever you think or believe, no matter how wrong you might be. What might happen to you as a result of your choices in not our concern.

But your infirm opinions and specious reasoning will be vigorously challenged. Others should understand that they pay attention to your opinions at their peril and that if they do pay attention to your opinions on points of law they might well get themselves into a lot of trouble.

[OldMarksman]

Posted by Moonglum:

Again, if you enter my home illegally in the middle of the night (which would include any method other than someone in my family opening a door and letting you in) you assume all responsibility for the danger you placed yourself in.

"Again" is the operative word. We have been over that.

And remember he doesn't have to be an intruder I just have to reasonably believe he's an intruder.

The issue will be the evidence that supports the reasonableness of your belief, which will be judged by others on the basis of that evidence.

Hey Frank, there's more case law than that to look at. Look at the case of the drunk coed in Boulder who walked through an unlocked front door, ended up in the bedroom an got shot no charges filed

http://abcnews.go.com/US/drunk-woman...ry?id=16435998

Sean Kennedy never even made it all the way into the house before being shot no charges filed

http://www.foxnews.com/story/2009/01...-intruder.html

That is not case law at all. That is a particular incident.

And "will not be charged" can be a very temporary thing.

I said (Quite specifically) that if you're sneaking around my house uninvited (the idea that my hypothetical kid invited the neighbor kid wasn't introduced until later) in the middle of the night that you assumed that risk not me.

Well, what risk the unknown-to-you guest may have assumed is one thing and may not matter to you, but it certainly does not free you from the risk of becoming a pariah for the rest of your life.

[j3ffr0]

The way the law reads, even in Colorado, the home owner does assume a lot of risk if shooting an intruder. It says the intruder has to be uninvited AND there has to be reasonable belief the intruder has or will commit a crime in addition to the intrusion AND you have to reasonable believe the intruder intends to use physical force against you. It is up to law enforcement, judge, jury to determine if all these criteria are met.

You are right that your first responsibility is to protect yourself and your family. We all weigh the risks in our heads. Like you said, I loose big if my family or I get killed. I also loose pretty darned big if I am in the wrong in a shooting incident and get jail time. I also loose big if i'm in the right as far as criminal law is concerned, yet I loose everything I've ever worked for in a civil case. I also loose a lot of money if I'm in the right in the shooting and win the civil case -- the lawyer will get paid. The best winning scenario is a no shoot. In a shooting scenario even if no charges are filed, and there is no civil case, there will be publicity, additional worry and stress -- it's still a loss.

[Moonglum]

I refuse to defend a position I never took.

I said it before, I'll say it again and then I'm done.

If you are sneaking (Pax' word not mine) around my home in the middle of the night (invited people do not sneak) then you took that risk upon yourself I didn't force it on you.

[Brit]

Every incident, is different, but some things are different only because of the members in a residence, and who is identifiable.

In our case, a Husband and Wife, 80 year old Husband 71 year old Wife.

Our bedroom second floor, to enter as a criminal, you would need to make noise. I have a Glock 19 with TruGlo sights, and three LED lights upstairs, two at the side table.

My thought, such a bright light might identify me, but also potentially blind a person creeping around in the dark.

I do well shooting one handed, and really do feel you need to identify persons first and foremost. Before we fire lethal bullets at them.

It is so easy to identify enemy's in my house! The one behind me is not one, any in front will be in bright white light.

[Model12Win]

Calling out to a potentially armed and dangerous intruder is folly, IMHO.

That being said, a weapons light of some kind or a switch of the lights is absolutely vital before firing on the target.

ID the target.

But don't ID yourself.

[OldMarksman]

Posted by Moonglum:

If you are sneaking (Pax' word not mine) around my home in the middle of the night (invited people do not sneak) then you took that risk upon yourself I didn't force it on you.

I'm not sure just what you think that means, but it may not prove to be very important to you at all.

I have two very strong recommendations for you.

First, quit making statements that could come back to haunt you and weaken or maybe even destroy a defense of justification, should you ever have to mount one.

Second, vastly improve your knowledge of use of force law as soon as you can. Find out when and were Massad Ayoob will be presenting MAG-20, and make arrangements to go there and to attend.

And do pay attention.

[Frank Ettin]

Originally Posted by Moonglum

...If you are sneaking (Pax' word not mine) around my home in the middle of the night (invited people do not sneak)...

Actually, I would expect an invited houseguest off to the bathroom or to the kitchen for a glass of milk late at night to be moving slowly (in an unfamiliar and dark house) and quietly (as a courtesy to others). That sounds like "sneaking" but is normal and expected houseguest behavior.

[Boogershooter]

It's 4:00 am and you hear something in the living room. U wake up and grab your gun. As you walk into the living room you see someone in a Scary Movie costume complete with mask. What do you do? Answer quickly now as anything could happen at this point. Got your answer yet? Did you shoot? Well I told my son to take that dog gone costume off and go back to bed. This could have ended badly for alot of people.

[Moonglum]

Actually, I would expect an invited houseguest off to the bathroom or to the kitchen for a glass of milk late at night to be moving slowly (in an unfamiliar and dark house) and quietly (as a courtesy to others). That sounds like "sneaking" but is normal and expected houseguest behavior.

Then there's that awkward moment when you're twisting my words to make yourself right.