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October 1, 2015, 07:22 AM | #51 |
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Well then, your law is unfortunate. Mine is not. It's perfectly acceptable to say "I killed him because he was a burglar". Before, after, during, whenever. You're immune from prosecution (not just an affirmative defense - no trial at all) as long as the prongs of the legal test are made. You're also immune from civil liability.
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October 1, 2015, 07:53 AM | #52 |
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What state is that Big D?
I know in Texas, its not like that legally. However, in reality, juries have no billed home owners in the past who defended themselves against intruders in their garage. I am paraphrasing but I think its safe to say, in Texas when in doubt, you can show a reasonable fear of death or harm you can use self defense to stop the threat (but not if you're a BG yourself committing a crime). Note stopping the threat is the level of force. Once that threat has stopped, anything further and claim of self defense will not hold. Indeed Texas law provides for nighttime defense of autos and a variety of other items that could be used in that circumstance. Having said that, I don't think Any state would permit the scenario we had awhile back where someone intentionally left a purse out and effectively ambushed a thief. Despite what my wife says, I've yet to find the statue she cited where wives can take out their husbands if they really deserve it-I've not found the "he needed killin your honor" defense claim yet. But just to be safe, I'm always very polite around her when she's armed. Last edited by zincwarrior; October 1, 2015 at 08:11 AM. |
October 1, 2015, 08:11 AM | #53 |
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CO.
The relevant statute Case law has effectively rendered the 3rd prong of the test in 18-1-704.5 (2) irrelevant although it could conceivably come up if the intruder was a quadriplegic beamed in by Scotty who somehow none the less managed to commit a crime (perhaps menacing?!?). |
October 1, 2015, 08:13 AM | #54 |
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Not working on my end. May be worked blocked.
Colorado eh? I didn't know they were so defense oriented. Cool. |
October 1, 2015, 08:14 AM | #55 |
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Hmm, works for me from a different device. It may be your work.
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October 1, 2015, 08:18 AM | #56 |
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That does happen.
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October 1, 2015, 08:25 AM | #57 |
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If I know its a intruder.
I will barricade and call the Cops. Nothing out there worth me killing any one to keep. let alone me getting killed. I have dogs and security cameras. But I do spend a bit of time investigating noises and unknown dog barking. So when I go out I go prepared. Ran face to face with a timber wolf one time. Raccoon, Bob cats. And of course the occasional scuff muffin trying to steal gas. I wont shoot a scruff Muffin I run into unless he posses a threat. Almost every time its HEY!!!! What are you doing!!! " Oh Sh..!!!" Run away run away!!!
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October 1, 2015, 09:23 AM | #58 | ||
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Posted by The Big D:
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Do not disregard "and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant". Any evidence showing that such a belief on the part of the occupant had not been reasonable at the time could be devastating. John provided a list of possible examples. The list is not exhaustive. Quote:
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October 1, 2015, 09:37 AM | #59 |
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From BigD:
CO. The relevant statute While I like the Colorado statute, and am pleasantly surprised, be prepared to go to trial. And with the ever increasing anti-gun mentality there, it may be a rough ride. "Trial court is authorized to dismiss criminal prosecution at pretrial stage when conditions of statute are satisfied, and this does not infringe upon prosecution's discretion to file charges. People v. Guenther, 740 P.2d 971 (Colo. 1987); Young v. District Court, 740 P.2d 982 (Colo. 1987)." "Defendant may still raise immunity as defense at trial when pretrial motion to dismiss is denied. People v. Guenther, 740 P.2d 971 (Colo. 1987)." "Where pretrial motion to dismiss on grounds of statutory immunity provided in this section is denied, defendant may raise it as an affirmative defense at trial. In such case, the burden of proof which is generally applicable to affirmative defenses would apply. People v. Malczewski, 744 P.2d 62 (Colo. 1987)." |
October 1, 2015, 09:58 AM | #60 |
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Suffice to say I'll trust advice from actual lawyers over advice from internet lawyers, and I'll continue to exercise my right to speak freely about what I believe should happen to criminals. This "tut tut, don't say that. The lawyers will get you." routine is not convincing. Beyond that it's harmful to society.
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October 1, 2015, 10:01 AM | #61 | |
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Quote:
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October 1, 2015, 10:22 AM | #62 | ||||
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Posted by The Big D:
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Do not assume that all lawyers are equally competent in all subjects. And make sure your correspondence is confidential and is protected as privileged attorney-cilient communication. Quote:
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The problem is that statements made long before the occurrence of a alleged criminal confrontation can be taken out of context and used at trial to paint a very negative picture of a defendant. In the case of Larry Hickey in Arizona, the oft repeated but unwise saying, "be polite, be professional, but have a plan to kill everyone you meet" was contained in instructional materials possessed by defendant. The words in question were used to try to describe state of mind--to convince the jurors that the use of those statements indicated that Hickey was the type of person who was predisposed to violence. What that did was weaken his case by casting doubt on the reasonableness of his belief that his actions had been immediately necessary. One can look (1) beyond Internet postings (and downloads and Google search records, for that matter) and training materials, and consider email, letters, memoranda, handwritten notes, social network postings, cell phone and text message records, and yes, wiretapped telephone conversations; and (2) beyond cases that involve crimes of violence, and consider any other kind of accusations that one might think of. Quote:
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October 1, 2015, 10:37 AM | #63 |
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Larry Hickey's case was dismissed with prejudice. No harm came from him from quoting General Mattis, nor should it (thanks to that whole 1st amendment thing).
The reason such tut tutting is harmful to society is that it reinforces the absurd notion that we should be unable to say things that are true and moral, simply out of fear of a sneak attack by lawyers. Instead we should be normalizing the idea that committing crimes leads to being shot dead, and that's a good thing for everyone but the criminal. We should be people of conviction, willing to stand up for our convictions publicly, and deal with any (incredibly unlikely) consequences later. Had the founding fathers behaved with respect to the law like you suggest, there would be no USA. |
October 1, 2015, 11:18 AM | #64 | ||||||
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Posted by The Big D:
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All this after Hickey had endured considerable time in jail, two long and expensive trials, court orders to stay away from his house, loss of income, and expenses that bankrupted him. Quote:
Do you have some kind of insight that tells you that one jury, or the other one, might not have acquitted him but for the state of mind issue? Quote:
The justification of the use of deadly force to defend life but not property goes back many centuries. The idea that an individual has the legal power to decide guilt, decide punishment, and administer punishment is not accepted in a civilized society. Quote:
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I "suggest" abiding with the law; choosing to avoid the use of deadly force whenever safely possible; and conducting oneself in a manner that does not exacerbate the consequences of the aftermath, criminal or civil or both. |
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October 1, 2015, 11:24 AM | #65 |
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Ohh, I've been internet lawyered. Time to go hide somewhere until the terror passes
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October 1, 2015, 11:25 AM | #66 |
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To the original question: I have a carport, not a garage, so people can wander in and out without hindrance if they wanted to.
If I saw someone out there (through the windows in the kitchen door) I would call the police. Then I would bang on the door to let them know they were seen and hope they would run off. If they are stealing my property, there's not much I can do about it since I can't use lethal force to protect property in my state, and going out to confront them physically, which may be justifiable if the amount of force used is the minimum sufficient to prevent the crime, would be risky since it's hard to figure out how that might play out. I'd rather lose a bike or lawnmower or my car than risk being injured in a scuffle with one or more thieves likely to be younger and fitter than me. I have homeowners insurance. The only situation where a firearm would come into it would be if the person, upon seeing me, decided to try to break into the house and assault me physically or was clearly armed with a deadly weapon and was trying to break in. I will happily hide in the house and wait for police before trying to engage, unless they get in and I have no alternative. Last edited by JC57; October 1, 2015 at 12:20 PM. |
October 1, 2015, 11:36 AM | #67 | |
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Posted by The Big D:
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Just hope that, in the terrible event that you ever have to shoot someone, the evidence that you can produce afterward is very strong indeed and is not effectively countered by evidence produced by someone else. |
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October 1, 2015, 11:38 AM | #68 |
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You don't get it. I'm not trying to hide. I don't want to. I'm not sad I passed up the opportunity to, and I'm not in the least bit concerned about some mythical consequence an internet lawyer thinks is going to happen.
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October 1, 2015, 11:56 AM | #69 | ||||
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Posted by The Big D:
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But since something could always happen, the only thing to do now is try to avoid an unfavorable eventuality. Nothing mythical about the use of prior statements as evidence. No one says that anything is "going to happen." Obtain your own professional advice, and don't write about it afterward. This is from another internet board: That material was prepared with the help of, and reviewed by, some of the attorneys on the TFL staff. |
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October 1, 2015, 12:12 PM | #70 |
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It was nice to see this thread get through 47 posts before anyone suggested shooting anyone for pilfering something in a garage.
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October 1, 2015, 12:35 PM | #71 | |
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Quote:
Eventually you'll figure out that while I care about what the law ACTUALLY says, I don't care one whit about what someone one the internet says someone on some other board says some attorney who worked for someone else says. |
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October 1, 2015, 12:52 PM | #72 |
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I think the bottom line is to not post stuff on the Internet you wouldn't want to hear read out loud on CNN if you are involved in some unfortunate situation, and then your lawyer has to work hard to pry that out of the juror's minds in some possible future court proceeding.
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October 1, 2015, 01:42 PM | #73 | ||||
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Let's look at the applicable Colorado statute, C.R.S. 18-1-704.5: So --
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October 1, 2015, 01:43 PM | #74 |
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It amazes me the people that seem so eager to shoot someone for a property crime. Seriously what are you thinking? I have more than enough insurance to cover the property that any thief would walk away with. That doesn't mean I won't defend my family and my animals against harm.
I sincerely hope that I make it through my entire life having only pointed and fired guns at targets and at animals I have hunted. Don't mistake that for weakness and an inability to protect the people in my life. I just don't have a need or desire to shoot someone unless the circumstances leave me no choice, and stealing something doesn't fit my criteria for leaving me no choice. |
October 1, 2015, 02:52 PM | #75 | |
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Posted by The Big D:
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The product of the discussion was made a sticky in a forum on another site. They are attorneys, but they are not my attorneys. Nor were they providing legal advice about a specific legal issue. Had they been, their words would never have been posted on a public forum. They were discussing some very basic facts about how what someone has written, posted, put on his wall, or worn on a T-shirt can come up in evidence later. So--you say you care about "what the law actually says" as it pertains to shooting someone in your garage.. I was not discussing that. I was discussing the pitfalls of creating evidence that could prove damaging later. But when it comes down to "what the law actually says", trying to interpret a particular law in isolation by using lay dictionary definitions can lead to erroneous conclusions. Case law—decisions rendered by high courts in the interpretation of the laws in appellate cases— can have more to do with the real meaning of the law as the words in a statute. So can an understanding of the underlying legal principles, of relationships among other pertinent laws, and of constitutional principles. Such an interpretation can be particularly dangerous when it comes to justifying the use of deadly force. We should never be reading a statute, or a jury instruction, or an appellate ruling, or an article about the law, for the purpose of finding out when shooting would be lawfully justified. All of the deadly force laws in the country boil really down to one basic question: whether a reasonable person, knowing what the actor knew at the time, would have believed deadly force to have been immediately necessary. In forty-nine states and in all of the territories, "immediately necessary" would not extend to keeping a thief from absconding with some hand tools. One of the things that can influence how the triers of fact might answer that question is evidence regarding the actor's beliefs, attitudes, and mens rea--state of mind. Two issues relevant to the Colorado law that you mentioned (and to many others) that had become woven into the legal fabric over the centuries have been the subject of evolutionary amendment in recent decades: (1) the centuries-old duty to retreat, the very purpose of which was to establish proof of immediate necessity, came into question, and that's a good thing; and (2), the concept that "a man's home is his castle", which goes back at least as far as the Code of Hammurabi, has regained its importance. Neither of those changed the principles of justification in use of force. They do not permit someone to shoot someone else. They simply, but importantly, have provided the actors with certain presumptions, changing the burden of evidence. But presumptions in law can be rebutted. It is not a good idea to do anything that can make that happen. |
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