An intruder in your garage, what would YOU do?

[zincwarrior]

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 won't shoot you but I may definitely cut you over a piece of delicious chocolate cake...

Sorry, trying to lighten things up. The thread has gotten a bit hostile. Not sure why.

[Glenn E. Meyer]

I would caution folks not to say they are the definitive source of legal wisdom (as some is flat out incorrect). Also, blood lust and insults can cause you to go elsewhere. Some of that content was deleted.

[Frank Ettin]

I'm going to touch on a few additional details regarding both Colorado law and comments on social media.

Originally Posted by The Big D

Case law has effectively rendered the 3rd prong of the test in 18-1-704.5 (2) irrelevant...

Then cite the case or cases.

On the other hand, the cases cited by 2ndsojourn in post 59 (People v. Guenther, 740 P.2d 971 (Colo. 1987); Young v. District Court, 740 P.2d 982 (Colo. 1987); and People v. Malczewski, 744 P.2d 62 (Colo. 1987)) establish clearly that --

1. A defendant claiming immunity under C.R.S. 18-1-704.5 is entitled to a pretrial hearing on the question of immunity;
   
   
2. At such pretrial hearing, a defendant claiming C.R.S. 18-1-704.5 immunity has the burden of proving by a preponderance of the evidence that the predicate conditions set out in C.R.S. 18-1-704.5(2) have been satisfied. As the Colorado Supreme Court stated in Guenther (at 981):

   ...We thus hold that when section 18-1-704.5(3) is invoked prior to trial as a bar to a criminal prosecution, the burden is on the defendant seeking the benefit of the statutory immunity to establish by a preponderance of evidence that: (1) another person made an unlawful entry into the defendant's dwelling; (2) the defendant had a reasonable belief that such other person had committed a crime in the dwelling in addition to the uninvited entry, or was committing or intended to commit a crime against a person or property in addition to the uninvited entry; (3) the defendant reasonably believed that such other person might use physical force, no matter now slight, against any occupant of the dwelling; and (4) the defendant used force against the person who actually made the unlawful entry into the dwelling....

3. Note that in Malczewski, the Colorado Supreme Court overturned a dismissal by the trial court at a 18-1-704.5(3) pretrial hearing. The Colorado Supreme Court found that as a matter of law the defendant had neither established by a preponderance of the evidence that the person against whom force was used entered the dwelling unlawfully nor that the other predicate conditions of 18-1-704.5(2) had been satisfied (Malczewski, at 66 -- 67):

   ...In addition to the lack of evidentiary support for the court's finding of an illegal entry, there is another reason why the judgment of dismissal must be reversed. The record is devoid of any evidence supporting the district court's finding that the defendant reasonably believed that Officer Gragg intended to commit the crime of kidnapping or violation of a custody order after his entry into the apartment. ...There is not a scintilla of evidence to support the finding that the defendant under these circumstances harbored a reasonable belief that the officer's purpose in entering the apartment was to kidnap the child or to unlawfully take the child from its lawful custodian, whoever that might have been....

4. If a charge is not dismissed at a 18-1-704.5 pretrial hearing, the defendant can raise his claim at trial as an affirmative defense (Guenther, at 981):

   ...if the pretrial motion to dismiss on grounds of statutory immunity is denied, the defendant may nonetheless raise at trial, as an affirmative defense to criminal charges arising out of the defendant's use of physical force against an intruder into his home, the statutory conditions set forth in section 18-1-704.5(2). In such an instance, the burden of proof generally applicable to affirmative defenses would apply to the defense created by section 18-1-704.5(2)....

Originally Posted by The Big D

...I'll continue to exercise my right to speak freely about what I believe should happen to criminals....

By all means do as you wish. What happens to you is of no concern to us. What does concern us would be folks who might get themselves into trouble by being unwise enough to pay any attention to your specious, ignorant opinions.

So while you might not care, for the benefit of people who want to understand how the world really works so that they can make the best decisions for themselves, I'll point out that while speech may be free, it still has social and legal consequences. It can be evidence of motivation, predisposition, state of mind, intent, character, etc.

As outlined here by Massad Ayoob:

...I know for a fact that we DO have the technology to pull things out of your hard drive that you thought were deleted. We DO have the right to ask you, under penalty of perjury, whether you post on any Internet forum, and under what name, and we DO have the power to subpoena any posts via your IP from the Internet hosts, who under law have no choice but to "give you up." Don't let the seeming anonymity of the Internet delude you: when things get serious, you won't be anonymous anymore....

He was trying to make the point, in general terms, that any notion you might have that you can't get caught for what you write over the Internet is hooey. Some folks would be very surprised by the amount of useful information the police and prosecutor can get from your computer and your Internet presence. Note that he mentions a subpoena. That is another form of compulsory process used to gather evidence. Or sometimes the police will need a search warrant, which they'll be likely to get; and sometimes they won't. But however they have to get it, if it's there they can and will get it.

The "take-home message" is that plaintiff lawyers, law enforcement and prosecutors know all about social media and have been learning to use it effectively in civil litigation, criminal investigations and prosecutions. See this article headlined "Bay Area prosecutors increasingly using social media posts in criminal cases" from the 16 August 2013 edition of the Contra Costa Times:

PLEASANTON -- A teenage driver originally accused of vehicular manslaughter now faces a murder charge in the death of a bicyclist, partly because prosecutors say he bragged on Twitter about driving dangerously.

His case is part of a growing trend of social media posts being used as evidence against suspects, authorities said Friday.

....

As suspects feel compelled to post their misdeeds online for audiences to see, investigators have taken advantage, using the online quasi-confessions to bolster their cases, Bay Area prosecutors said.

In San Francisco, a cyclist in March fatally struck a 71-year-old pedestrian in a crosswalk after speeding through three red lights in the Castro District. Chris Bucchere, who eventually pleaded guilty to felony vehicular manslaughter, received a stiffer charge after he posted his explanation of the crash on a cycling group's website....

Originally Posted by The Big D

These never go to trial if the tests are met....

Yes, if the tests are met. But you won't be the one who will be deciding if the tests have been met. As the Colorado Supreme Court spelled out (People v. Guenther, 740 P.2d 971 (Colo. 1987)), if charged it would be your burden at a pretrial 18-1-704.5 hearing to convince the judge by a preponderance of the evidence that the tests have been met.

Originally Posted by The Big D

...I'm not in the least bit concerned about some mythical consequence an internet lawyer thinks is going to happen...

No one cares whether or not you're concerned about anything. And I certainly don't care what you do or what kind of trouble you get yourself into. I'm just trying to make sure that others here understand that you don't know what you're talking about so that they can avoid getting themselves into trouble by following your lead.

[SocialAnarchist]

zincwarrior

I won't shoot you but I may definitely cut you over a piece of delicious chocolate cake...

I like chocolate cake. Especially if it has a really good homemade chocolate frosting.

[zincwarrior]

Quote:
zincwarrior

I won't shoot you but I may definitely cut you over a piece of delicious chocolate cake...
I like chocolate cake. Especially if it has a really good homemade chocolate frosting.

Exactly.

[4runnerman]

I would just open the door to the Garage, just enough to let my Very Friendly, Large Ugly Black dog come and visit you. While he is not as fast as a bullet, he is faster then any human. If you make it to the property line-You are safe. He will not cross that line with out a go from one of us.--- Yes the dog knows all the neighbor kids and loves them.

[44 AMP]

The first step is to avoid doing anything that makes the presence of valuable property known to potential thieves.

This was posted early on, and is sound advice.

I always enjoyed the wisdom of the Redneck sage, Foxworthy, to paraphrase him here,

Thief sees a nice house, well tended yard, flower lined walk, he thinks Hmmm might be something worth taking in there...

When he sees a house with weeds four feet high, cars up on blocks, engine block hanging by a chain from a tree, he thinks...that's a house where a GUN lives!!!

I'm still enough of a counter culture rebel that my place looks ...poor.. (because I am) and I deliberately don't make it look better. Sure, this hurts its market value, but I'm not selling, so who cares? And you know what? I generally get left alone, which is just the way I like it.

[Sequins]

IMO insurance is a racket. I'm home at night and my local statutes authorize lethal force for any felony, and in WA property theft of $750+ is a felony. Why would I pay $50 a month for the protection a single $25 investment in speer gold dot will provide?

I cannot imagine watching someone steal my stuff and not doing anything, insurance or not whether or not I get compensated isn't the point.

Edit: I forgot a critical digit on the value that qualifies as a felony and have added the correct amount.

[OldMarksman]

Posted by Sequins:

I'm home at night and my local statutes authorize lethal force for any felony, and in WA property theft of $50+ is a felony.

First, the local statutes in Washington are irrelevant; state law governs. Second, the law does not "authorize lethal force"--it defines circumstances under which the use of force would be justified. Third, a defense of justification will only succeed if others, after the fact, decide (to the standard of proof covered in the law) that what the actor did was both necessary and reasonable, knowing what he knew at the time.

Why would I pay $50 a month for the protection a single $25 investment in speer gold dot will provide?

Cost, convenience, and risk. Your attorney, and you will need one, will charge you several times that $50 for each billable hour, and quite a number of hours will likely be involved, leading to expenses that you may not be able to imagine. You will endure all kinds of inconvenience, from the time of the shooting forward; most of us dislike going to the station, and few of us relish the idea of having our gun taken for evidence. And there is a real chance that the triers of fact all not agree that your actions had in fact been necessary and reasonable under the circumstances; loss of freedom, loss of personal fortune, and permanent loss of gun rights are not things to risk willfully except in the gravest extreme.

I cannot imagine watching someone steal my stuff and not doing anything, insurance or not whether or not I get compensated isn't the point.

Work on improving your imagination.

[A pause for the COZ]

IMO insurance is a racket. I'm home at night and my local statutes authorize lethal force for any felony, and in WA property theft of $50+ is a felony. Why would I pay $50 a month for the protection a single $25 investment in speer gold dot will provide?

I cannot imagine watching someone steal my stuff and not doing anything, insurance or not whether or not I get compensated isn't the point.

On the surface I agree with every thing you just said. You should be able to protect your property. And in essence you can.

BUT...

It would be best to consider the use of deadly force as a life changing event.
Because thats exactly what its going to be. Even if you win the fight.
Its getting real rare to find a case were some one shoots another person and the cops come in and say.
Yup you did good and leave.

More likely they are going to go through your life with a fine tooth comb.
They will learn more about you than your wife knows.
Plus if your a suspect they may load up all your fire arms. ammo and other stuff for safe keeping. Of course they will report your arsenal to the media.

My self, They can have the chain saw before I want some one looking up my butt.
And I dont have any thing to hide, but they have a way of making any one look bad.
Nope not me, unless I have too.

[Frank Ettin]

Originally Posted by Sequins

...I'm home at night and my local statutes authorize lethal force for any felony, and in WA property theft of $50+ is a felony....

Really? Care to cite the law?

In any case, here's an interesting overview by a Seattle lawyer of Washington State use of force law. As he writes:

...In Washington State there is a self-defense argument (RCW 9A.16.020), which states when it is lawful to use force. This affirmative defense may be used when the defendant was preventing another from being injured by an assailant often referred to as “defense of others.” There are other exceptions that involve detaining burglars and using force to subdue a mentally ill person from doing harm to themselves or others.

None of these defenses allow a person to become a vigilante crime fighter, but allow citizens to protect themselves and the people around them if necessary. ... An affirmative defense essentially allows the defendant to admit to the crime but also to explain the circumstances behind the event and to justify the use of force in their case.

The affirmative defense does not give a cart blanch approach but rather shifts the burden on the defense to prove that the force used is justified in that particular instance. ...Not all force is justifiable and some uses of force can even be seen as excessive. The threshold is often a “reasonable person” argument that looks at what a reasonable person would do in a situation....

As far as what constitutes felony theft under Washington law, theft of property of a value less than $750.00 is a gross misdemeanor (Theft in the Third Degree, RCW 9A.56.050). Only when the value of the property stolen is $750.00 or more, or is an automobile or firearm, does the theft become a felony (Theft in the Second Degree, RCW 9A.56.040).

[garryc]

Watching this thread and I come to my original position. I don't care what the law says I am not killing someone over a piece of property. Their life is not less valuable than mine unless they threaten mine.

[Sequins]

Frank, RCW for you here on justifiable force by a non LEO: http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.16.050

You're right about the value of theft, though. I was reading the 2nd degree statute and the way it's written with the value in plain english after the parenthese confused me, it's definitely $750 and I misread it. I'll edit my prior post with a note so as to prevent misinformation.

Now, I'm hardly bloodthirsty although I think I gave off that perception. I meant to challenge the philosophy of many that watching calmly while thugs load your stuff onto a truck and drive off is the way to live. That's just crazy to me. I was a bit flippant it's so crazy to me, so I apologize for my tone.

I believe evil prevails when good men fail to act and I think a lot of the problems in the world today stem from a "not my job, not my fight, not my problem" ethos. I certainly wouldn't just run out and blithely shoot someone for taking my stuff, but I would stop them from taking my stuff come what may. What kind of world are we building where "ehhhh the insurance will take care of it" is our response to crime? Maybe that's why we need so much insurance these days.

I know case law trumps statute, and that the way it is and the way it should be diverge especially in court, so I'm not under any illusion that that statute insulates me. I'm sure my life would be very negatively impacted if I ever shot someone over a property crime. I also would never forget that time I had a chance to do the right thing and instead hid and let the insurance take care of it .

[Glenn E. Meyer]

but I would stop them from taking my stuff come what may.

But the question is how would you stop them?

Do you put yourself at risk of death and serious injury for property alone when you don't have to?

You can lose the fight.

[OldMarksman]

Posted by Sequins:

....I would stop them from taking my stuff come what may.

You might come through it uninjured--or not.

If someone else is harmed as the result of your action, then another set of people will judge, based on the evidence, whether a reasonable person, knowing what you knew at the time, would have found your action both necessary and appropriate at the time.

At that point you undoubtedly will be incurring far more costs than the value of what most people have in their garages.

You could still end up a free man with a clean record--or not.

And you could also could end up avoiding a hefty civil judgment--or not.

But your "balance sheet", as it were, would very probably be impaired, perhaps very significantly indeed.

I wouldn't even think about it. An insurance claim is a much better idea.

[Frank Ettin]

Originally Posted by Sequins

...I'm sure my life would be very negatively impacted if I ever shot someone over a property crime. I also would never forget that time I had a chance to do the right thing...

Going to prison certainly would count as being "negatively impacted." I submit that your contemplation of doing "the right thing" would most likely be small comfort as you sit in prison.

Originally Posted by Sequins

...I know case law trumps statute, and that the way it is and the way it should be diverge especially in court, so I'm not under any illusion that that statute insulates me....

Indeed case law is determinative, and the statute will not insulate you.

See, for example, State v. Brightman, 122 P.3d 150, 155 Wn.2d 506 (WA, 2005). Brightman appealed his conviction for second degree murder. While the Washington Supreme Court ordered an new trial on other grounds, the Court rejected Brightman's claim that the trial court erred in refusing to give a jury instruction on justifiable homicide.

The evidence suggested that Brightman killed Villa in defense against Villa's attempt to steal money by fraud and his following assault. In rejection Brightman's contention that he was entitled to a 9A.16.050 jury instruction the Washington Supreme Court noted (122 P.3d 150, at 158 -- 159):

...Justifiable homicide, and indeed all self-defense, is unmistakably rooted in the principle of necessity. Deadly force is only necessary where its use is objectively reasonable, considering the facts and circumstances as they were understood by the defendant at the time. See RCW 9A.16.010; Read, 147 Wash.2d at 242, 53 P.3d 26; Walker, 136 Wash.2d at 772, 966 P.2d 883. For example, in State v. Nyland, this court held that adultery did not justify taking a human life:

"The class of crimes in prevention of which a man may, if necessary, exercise his natural right to repel force by force to the taking of the life of the aggressor, are felonies which are committed by violence and surprise; such as murder, robbery, burglary, arson, . . . sodomy, and rape."

47 Wash.2d 240, 242, 287 P.2d 345 (1955) (quoting State v. Moore, 31 Conn. 479 (1863) (first emphasis added)). In all of these felonies, human life could be presumed to be in peril. Id. at 243, 287 P.2d 345. But the Nyland court also noted that "a killing in self-defense is not justified unless the attack on the defendant's person threatens life or great bodily harm." Id. (emphasis added).¹⁰ Thus, the Nyland court contemplated an individualized determination of necessity, even where an attack on the defendant's person occurred. See also State v. Griffith, 91 Wash.2d 572, 576-77, 589 P.2d 799 (1979) ("A self-defense instruction, or a justifiable homicide instruction, is appropriate only where the slayer has used such force as is reasonably necessary under the circumstances." (emphasis added).

In State v. Brenner, Division One of the Court of Appeals read Nyland and Griffith to establish that even where a homicide is committed in defense of a felony or attempted felony, "the attack on the defendant's person [must threaten] life or great bodily harm." 53 Wash.App. 367, 377, 768 P.2d 509 (1989), overruled on other grounds by State v. Wentz, 149 Wash.2d 342, 68 P.3d 282 (2003)....

and (at 159, italicized emphasis in original, bold emphasis added):

...The Nyland, Griffith, Brenner, and Castro cases support a conclusion that a justifiable homicide instruction based on either .050(1) or .050(2) depends upon a showing that the use of deadly force was necessary under the circumstances. All of these courts implied that an individualized determination of necessity is required, contradicting the notion that deadly force is per se reasonable whenever a robbery or other violent felony is attempted....

Originally Posted by Sequins

...but I would stop them from taking my stuff come what may...

And then maybe your stuff will still be there if you get out of prison -- unless you had to sell it all to pay your legal bills. Are you familiar with the term "Pyrrhic victory"?

[Sequins]

There was once a case in Washington where a man ran into his garage and saw a thief taking his SUV. He pursued the SUV into the street and fired through the back windshield, killing the thief.

He was charged, but he was found not guilty. I am sure despite the verdict his life is certainly worse and I have no desire to join his company and become a killer. 300k would ruin me, as well.

I couldn't find a better article after a brirf google but this is the case.

http://www.freerepublic.com/focus/f-news/3143156/posts

In Washington state I would trust 12 of my fellow citizens, good and decent people whom also value their life, home, and property to acquit me if I were to defend my life, home, or property during the actual commission of a crime.

If I went after the guys who did it post-facto ala "Deathwish" that would be insane, but doing nothing because you think 12 of your peers are pro-crime is equally insane.

I don't want to live in a society where people are more scared of the law as citizens than as criminals. I refuse to do so.

[OldMarksman]

Posted by Sequins:

There was once a case in Washington where a man ran into his garage and saw a thief taking his SUV. He pursued the SUV into the street and fired through the back windshield, killing the thief.

He was charged, but he was found not guilty.

Gerlach was able under the circumstances to present convincing evidence indicating self defense. Nothing whatsoever to do with shooting a thief.

Any idea how much that year cost him?

Bad idea.

...doing nothing because you think 12 of your peers are pro-crime is equally insane.

So is committing a crime.

Do not pursue a thief, and do not shoot a fleeing felon.

[manta49]

There seems to be a lack of common sense among some, avoid confrontation if possible.

[OldMarksman]

By the way, Gerlach was entitled to be reimbursed by the taxpayers for his legal costs, but not for loss of income, or for the effects of one really bad year.

I'm sure that Gail will be the first to say privately that he did a really dumb thing.

Even though he's out, and even though he didn't get shot

[Frank Ettin]

Originally Posted by Sequins

...He was charged, but he was found not guilty...

But as OldMarksman pointed out:

Originally Posted by OldMarksman

...Gerlach was able under the circumstances to present convincing evidence indicating self defense. Nothing whatsoever to do with shooting a thief....

Which also meant that Gerlach's jury receive an instruction from the judge regarding self defense.

But as ruled in Brightman (122 P.3d 150, at 158, quoting State v. Nyland, 47 Wash.2d 240 (1955)):

...a killing in self-defense is not justified unless the attack on the defendant's person threatens life or great bodily harm....

unless you put on evidence that standard was satisfied, you won't even get a self defense jury instruction.

Originally Posted by Sequins

...In Washington state I would trust 12 of my fellow citizens,...

Except that won't matter if you don't get your self defense jury instruction.

Originally Posted by Sequins

....I don't want to live in a society...

Many people want things they don't have. Our world is what it is. You're free to pretend you live somewhere else, but pretending doesn't make it so.

[AK103K]

Except that won't matter if you don't get your self defense jury instruction.

Perhaps the people of Washington are more educated and aware about jury nullification than other parts of the nation.

Not that I'd want to bet the farm on it.

From my personal experience having been on both local and federal juries, the thought of having to go through the justice system as a defendant, is one of the scariest things I can think of. As the old joke goes, youre life is in the hands of 12 people too stupid to get out of it. Funny, but really not to far off.

In all seriousness, most of the people who where there in the pools with me, only wanted to go home, and wanted nothing to do with being on a jury. Most see it as a burden, and are only there under threat of the system themselves. Not a real reassuring thing.

[OldMarksman]

Posted by Sequins:

I don't want to live in a society where people are more scared of the law as citizens than as criminals.

In my case, I am not "scared of the law". I have some understanding of it, and I certainly intend to comply with it.

Regarding the extent to which some criminals may or may not be "scared of the law, I cannot say. I would imagine that it varies significantly.

It does concern me that respect for the law in some circles seems lacking. I take that into account in a number of ways.

I refuse to do so.

What is that supposed to mean?

[SocialAnarchist]

Seriously, there is nothing I own, whether of monetary, or sentimental value, that I believe is worth killing someone over. Property is only stuff and all of mine is protected by insurance. It seems foolish beyond all reason to risk my life over stuff.

Threaten my wife or kids and that's a different story. That would be game on and I would do whatever I have to to protect them.

[44 AMP]

Property is only stuff and all of mine is protected by insurance.

This is the attitude of the modern age, both social and legal. There is some conflict with the attitude held over from the previous age in many people's minds, but we are in the modern age, and we must follow both the law, and societal rules.

The past is a dimly remembered thing, or a compete fantasy to some, indeed we have left behind many of the social attitudes from those days, and justly so.

HOWEVER, traces remain, like the desire to protect property. Mere "stuff", including money. Insurance will replace it all, right? so there's no reason to ever shoot someone over mere property.

But that wasn't always the case, and in fact was NEVER the case until the 20th century's creation of the social safety net, and FDIC.

Why do you think the good townfolks didn't even hesitiate to arm, gather in a posse and ride out after the bandits who robbed the bank? Because it was the only remote chance they had of ever getting their money back.

The bandit who stole your horse didn't just inconvenience you, he threatened your survival, and maybe your family's as well.

if you were robbed of the most important things (money, tools & stock needed to make a living, etc.), only the charity of friends (if you had any) and the Church was all there was to keep you & family from starving.

So, it was considered both right, AND proper to shoot that villain dead on the spot. You and your family were less of a burden on society if you did that.

Things have changed a lot, but old attitudes die hard, and only slowly.

You can't legally shoot someone over "mere property" (there are, possibly a VERY few legal exceptions, ask lawyer if you think you can handle the answer)