An intruder in your garage, what would YOU do?

[The Big D]

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.

[zincwarrior]

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.

[The Big D]

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?!?).

[zincwarrior]

Not working on my end. May be worked blocked.

Colorado eh? I didn't know they were so defense oriented. Cool.

[The Big D]

Hmm, works for me from a different device. It may be your work.

[zincwarrior]

That does happen.

[A pause for the COZ]

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!!!

[OldMarksman]

Posted by The Big D:

It's perfectly acceptable to say "I killed him because he was a burglar". Before, after, during, whenever.

It may be "acceptable" to "say" that, but that would not be at all sufficient for a defense of justification.

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.

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.

"The prongs of the legal test" are that the court agrees that the evidence produced by the actor show, by a preponderance of the evidence, that all of the conditions of the law had been met.

[2ndsojourn]

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)."

[The Big D]

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.

[The Big D]

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.

These never go to trial if the tests are met. They're dismissed at a preliminary hearing, or at worst upon an appeal of the decision at that hearing.

[OldMarksman]

Posted by The Big D:

Suffice to say I'll trust advice from actual lawyers over advice from internet lawyers, ...

Excellent thinking.

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.

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

You can do that if you like, but it could come back to bite you.

This "tut tut, don't say that. The lawyers will get you." routine is not convincing.

Is it just that you are not aware that statements, writings, insignia, and other items can be used and have been used as evidence pertaining to state of mind in a court of law?

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.

Beyond that it's harmful to society

How so?

[The Big D]

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.

[OldMarksman]

Posted by The Big D:

Larry Hickey's case was dismissed with prejudice.

The case was most assuredly not dismissed with prejudice. After failing to obtain a conviction in the second trial, the state decided to not pursue a third.

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.

No harm came from him from quoting General Mattis, nor should it (thanks to that whole 1st amendment thing).

Hickey did not quote Mattis. The statement was on a chart he had obtained from someone else.

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?

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.

Many, if not most people, will question the belief that statements such as "at the slightest provocation or sight of a weapon or commission of any crime on the intruder's part including picking up or holding any piece of property I'd shoot", or "Burglars don't deserve to live, and I've got no problem sorting it out" are moral in any sense of the word.

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.

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.

I much prefer the approach specified in the Sixth Amendment to the Constitution of the United States.

We should be people of conviction, willing to stand up for our convictions publicly, and deal with any (incredibly unlikely) consequences later.

Your assessment of the likelihood of an investigation after the use of force is unrealistic. Your professed willingness to act in a way that would lead you to have to deal with the cnsequnces is indicative of a lack of understanding of the consequences.

Had the founding fathers behaved with respect to the law like you suggest, there would be no USA.

Your understanding is flawed.

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.

[The Big D]

Ohh, I've been internet lawyered. Time to go hide somewhere until the terror passes

[JC57]

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.

[OldMarksman]

Posted by The Big D:

Ohh, I've been internet lawyered. Time to go hide somewhere until the terror passes

Regarding some posts that you have already made, you cannot hide.

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.

[The Big D]

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.

[OldMarksman]

Posted by The Big D:

I'm not trying to hide. I don't want to.

"Hide" was your word.

I'm not sad I passed up the opportunity to....

What opportunity to do what?

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

You need not be concerned about anything until something happens that makes it relevant.

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:

Everyone who posts here or anywhere else on the Internet should understand that such posts are permanent, and they may be subject to discovery in legal proceedings at any time in the future. Should any member ever find himself or herself involved in such proceedings, posts containing comments that could be interpreted unfavorably could prove damaging.

You do not want to publish anything ... where it may be made available to plaintiffs and investigators, that you should more properly tell only to an attorney in confidence in a privileged legal communication.

For those who may not be well versed in the reasons behind this, some additional explanation my be helpful.

First, everyone should understand that if one posts in a public forum on the Internet for anyone in the world with Internet access to read, or when one sends a company email for that matter, one can have no expectation of privacy. Second, electronic postings can be and have been traced back to the originator, authenticated, and used both to facilitate further investigations and as evidence. One's computer may be seized, or subpoenas may be issued to others. Also, investigators can use search engines as well as anyone else.

There are two kinds of situations in which a statement made on the Internet or put in email or posted on one of the various social networks can come back to haunt the originator.

The first involves posts of the "this happened to me" genre. If an incident that could lead to an investigation and/or additional legal proceedings has occurred, anything said about it on the Internet could either be used as evidence or to lead investigators to other facts or information that could be used as evidence that could prove damaging to the originator. For that reason, it is very important to exercise caution in terms of what one posts.

This can apply to either criminal or civil proceedings or both.

It is important to understand that the risks involved may even apply in cases that have not yet been pursued by law enforcement. A statement such as "I drew my gun and told him to get off my property" may be all that is needed to start or provide additional evidence for an investigation that might otherwise have gone nowhere.

In case it is not understood by some, the fact that the investigation of an incident appears to have been "closed" does not mean that the actor is free of risk. A statement by an officer that one "did the right thing", or even a decision by a prosecutor or grand jury to not pursue charges, is not a guarantee against further action. For one thing, new persons may replace others. More importantly, however, new evidence can be brought to light, and a posting here or anywhere on the Internet may just be the thing to make that happen.

The second risk involves the possible use of a statement posted on the Internet before an incident has occurred.

One way that such messages may be used is to indicate state of mind.

In the event that a person becomes involved in an incident in which the evidence supporting justification is sparse or is contradicted in part by other evidence, or an inconsistency casts doubt upon the credibility of the actor, anything that might be used to indicate that the actor had been predisposed to the use of deadly force could prove very damaging indeed.

Statements such as "anyone on my property is fair game", "in my state the law allows me to shoot anyone who...", "if he gets away he might harm someone else", "shoot the loudest one", etc., to cite a few hypothetical examples, can be discovered and used in court years after they were made.

This is not just conjecture. For a real example, consider that in a highly publicized case the defendant, who was a firearms instructor, had used training materials containing words such as “always cheat; always win,” and a statement to the effect that one should treat every one else in a polite manner while simultaneously having a plan to kill them. These statements may serve with a proper effect in an instructional setting, but taken out of context, they can be and have been used with damaging effect in a trial setting.

A second, and perhaps more common, way that pre-existing messages may impact an investigation or trial involves the establishment of a prior relationship between the parties. That evidence could either be used to establish motive or, if an actor claiming self defense has denied that such a relationship existed, to raise questions about the actor's credibility.

There may be those who will consider this, or any other tactics used in a case in which an actor who has used deadly force and who believes his actions to have been justified, to be unfair or perhaps characterize such tactics as those of an "overzealous prosecutor". It is important to keep in mind three things: (1) an investigation and/or a subsequent trial will involve anything relevant that can be gathered after the event and nothing else, and such statements may well be relevant; (2) the fact that the actor considers himself to be an upstanding citizen who is therefore a "good guy" will have little bearing on the case; and very importantly, (3) if the totality of the evidence does indicate that a shooting was not justified under the law, we expect our prosecutors to obtain a conviction.

It is impossible to list everything that could be taken out of context and used against one in a criminal or civil proceeding. We can only urge the use of caution in posting.

That material was prepared with the help of, and reviewed by, some of the attorneys on the TFL staff.

[OldMarksman]

It was nice to see this thread get through 47 posts before anyone suggested shooting anyone for pilfering something in a garage.

[The Big D]

That material was prepared with the help of, and reviewed by, some of the attorneys on the TFL staff.

Oh boy, you found internet attorneys on another site. They're everywhere

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.

[JC57]

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.

[Frank Ettin]

Originally Posted by The Big D

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.

Hogwash! That is not what Colorado law says. You simply aren't reading the statute properly. (And I'm a real lawyer.)

Let's look at the applicable Colorado statute, C.R.S. 18-1-704.5:

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.

So --

1. Subsection (3) provides that an occupant of a dwelling will be immune from prosecution for the use of deadly force, but in order for that immunity to attach, the the occupant's use of deadly force must be in accordance with the provisions of subdivision (2).
   
   
2. So let's take a closer look at subsection (2), which reads (emphasis added):

   (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.

   So subsection (2) defines a number of conditions which must be satisfied in order for the immunity of subsection (3) (or subsection (4)) to apply, specifically ---
   
   
   1. The person against whom force was used entered the dwelling illegally; and
      
      
   2. The occupant reasonably believed that the person against whom force was used committed, was committing or intended to commit a crime, in addition to the unlawful entry, and
      
      
   3. The occupant reasonably believed that the person against whom force was used might use force, even slight force, against any occupant.
   
   
3. If those three conditions set out in subsection (2) aren't satisfied, the occupant doesn't get immunity under subsection (3) (or subsection (4)). So --
   
   
   1. If the prosecutor (or grand jury) concludes that the evidence shows that those conditions were satisfied, there will be no prosecution. That's pretty much the way it is in every State: if the prosecution is satisfied that the evidence established justification, he won't bother prosecuting.
      
      
   2. But if the prosecutor, after considering the evidence, concludes that he could convince a jury beyond a reasonable doubt that any one of those conditions were not satisfied, he can charge the occupant (now the defendant) and prosecute.
      
      
   3. It will then be up to the defendant to either put on a prima facie case that all conditions were satisfied (or otherwise defend against the charges based on C.R.S. 18-1-704, Colorado's general self defense law:

      18-1-704. Use of physical force in defense of a person
      
      (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
      
      (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
      
      (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
      
      (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or
      
      (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.
      
      (3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:
      
      (a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
      
      (b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or
      
      (c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
      
      (4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes.

   
   
4. Note that with regard to the conditions set out in subsection (2), the person against whom force was used must have, in fact, entered the dwelling unlawfully. It is not stated as a matter of the occupant's belief.
   
   
5. Note that for the purposes of the conditions set out in subsection (2), the occupant's beliefs regarding the actions and intentions of the person against whom force was used must be reasonable. This is thus an objective, reasonable person standard.
   
   
6. So saying, "I killed him because he was a burglar" won't, by itself, get you off the hook. Unless the evidence has led the prosecutor to conclude that the person you killed entered your house unlawfully and you reasonable believed that he was going to commit another crime inside and use some force against an occupant, you'll have to make your case at your trial.

[SocialAnarchist]

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.

[OldMarksman]

Posted by The Big D:

Oh boy, you found internet attorneys on another site. They're everywhere

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.

When I referred to attorneys on the TFL staff, I meant The Firing Line.

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.