September 11, 2015, 10:12 PM | #26 |
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Intruder shot by resident
A year or so back, a couple in Boulder, CO was asleep in their house. The woke up to the sound of someone in their house. They man of the house yelled that he had a gun, but the intruder kept walking toward the bedroom. When the intruder came into the bedroom, the man shot the intruder.
Turns out the shot was not fatal. The intruder was a drunk college girl that had gotten lost and thought she was in her own home. She recovered, and the resident was not charged under the "Make my Day Law." Frank--if the young women had died from the gun shot, what is the likelihood the resident would have been charged with manslaughter? The intruder posed no actual threat---the threat was "perceived." And the homeowners admitted they did not lock the front door that night. |
September 11, 2015, 11:16 PM | #27 | ||
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Shooting someone as many times as is necessary to stop their deadly attack against you or a family member is necessary and therefore within the limit. Shooting someone more times than is necessary to stop their deadly attack against you or your family is more than is necessary and therefore outside the limit. It's not how much you shoot, it's whether or not it's done to protect against a deadly attack and is therefore necessary or whether it's done when it's not necessary to protect against a deadly attack. Justifiable (legal) deadly force is all about necessity and prevention. If you don't need to protect yourself or family member than there is no necessity and therefore no justification. If an attacker ceases to pose a deadly threat (e.g. falling to the floor and ceasing all hostilities) then using further deadly force against the person won't prevent anything and therefore deadly force is not justifiable. Quote:
It's not necessary that an actual threat exist--just that a reasonable person in the defender's position would believe that an actual threat existed. If, for example, you rob a store with a realistic-looking toy gun and the clerk shoots you, that would be considered justified. Even though the toy posed no threat, a reasonable person would assume that the realistic-looking toy was a deadly weapon and therefore that a deadly threat existed.
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September 11, 2015, 11:40 PM | #28 |
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I heard from an acquaintance a couple of nights ago that there was a home invasion in Hartford, Connecticut. Two armed men broke into a house. They made a mistake -- the homeowner was armed, and both robbers were shot. The way it was related to me, the pro-gun faction in Connecticut is using the incident as an example to show why guns are necessary. They contrast the recent Hartford incident with the murders of the Pettit family a few years ago in Cheshire, Connecticut. In that one, the husband wasn't armed. He was badly beaten, his wife was raped and strangled, and his two teen-aged daughters were killed when the robbers burned the house down around them.
Basically, anyone who is in your house who doesn't belong there is a threat ... until you know he/she/they isn't/aren't a threat. |
September 12, 2015, 02:13 AM | #29 | |||
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Remember that pleading self defense require the defendant to admit that he intentionally used force. Once he pleads self defense he can no longer raise any other defenses to the criminal charge. He can't claim an alibi. He can't claim that it wasn't him. He can't claim it was an accident. Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4. As Ms. Steele explains the unique character of a self defense case in Part 1:
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September 12, 2015, 06:50 AM | #30 | |
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"But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. " Yes - you were there. Yes - you shot the SOB. Yes - you intended to stop him and if it meant killing him then so be it. You just have to keep your wits about you enough that you don't come across as the "bad guy" or cause some other confusion as to your intentions. What I posted above is fine for point one (you were there). Point two becomes a bit of an attention getter - how do you know the dead guy was an SOB? Was there something personal? Point three is where any cop worth their salt was sit up and take notice... It comes across that you were somehow proud of the fact you killed the guy. OTOH - the opposite sounds just as bad if not worse. Yes - I intended to stop him, but, I never meant to kill him. For point three - Just leave it at - I intended to stop him.. Side note,,,, That's such an excellent post by Frank that it should be a sticky.... |
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September 12, 2015, 07:32 AM | #31 |
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The best advice I had read if your involved in a indecent was:
" Shut up! and let your lawyer do your talking" He is the one that is paid to know what to say. Anything your likely to ad will only make things worse. Cooperating with the investigation does not mean you need to make ANY statements. The best thing is to tell them I will cooperate with your investigation but I will make no statements until I have a lawyer present. Because ANY thing you say on site WILL be used against you. Think about it, Your all jacked up because you just had a life threatening experience. Should you be answering life changing questions at that time. NO!! So Shut up.
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September 12, 2015, 09:28 AM | #32 | |||
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I'm not sure. The first section I quoted doesn't apply to self-defense. The second section is less clear (to me) about who has the burden of proof. Do I have to prove that my fear of death or serious injury was reasonable, or does the State have to prove that it wasn't? |
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September 12, 2015, 10:21 AM | #33 | |
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The reality, though, is that an SD shooter is unlikely to have his attorney on scene for the initial contact, and may need to make some statements to get the investigation off on the right foot. Otherwise, witnesses and evidence critical to the defense may be lost.
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September 12, 2015, 11:05 AM | #34 |
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I agree, but the less we say the better, the more we say is not.
Explain: "I was afraid for my life" Then shut up. Explain: " I am willing to sign a complaint" Then shut up " There is his gun" Then Shut up. " These people saw the attack" Then Shut up. Explain: " Officer, I will cooperate 100%. But 1st I need to speak to my attorney" Call your Attorney. I have one I can call if I am involved in an event. If you think you may some day be involved in one of these life changing events. Best to have that part worked out in advance. I suspect the 1st thing he will tell you is. " Shut up" The police are not there to decide if what you did was right or wrong. They collect data. the county, city Attorney is the one who decides to charge or not charge. They are not on site ether. Worse that can happen is the police cant figure out what happened and you get arrested. Your Lawyer can get you out. Keeping your mouth shut and letting the police do their jobs. Will not make any thing worse. You will always have the chance to explain in detail what happened. On the other hand Flapping your Gums when your all jacked up. Has more potential to just create more questions you will need to answer latter.
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September 12, 2015, 11:28 AM | #35 | ||||
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In general who has the burden of product or burden of proof (the distinction can be somewhat technical) will follow (1) who has something positive, rather than something negative, to show; and (2) who has best access or control of evidence on the question. So if you're charged with battery (an unconsented to harmful or offensive touching), and you claim you shouldn't be held criminally liable because you thought the guy was committing suicide and you wanted to stop him (your aa-bb(4)) you know what you believed and why you believed it, so so you have control of the best evidence on that point. So you will need to at least come forward and say, "I thought the guy was committing suicide because ..., and so I tried to stop him. Quote:
On one hand, if one is legally justified in using lethal force, what happens to the person against whom the force was used is irrelevant. So if the prosecutor in that case declined to prosecute, believing that the resident was justified, that death of the girl would change things. On the other hand, if the girl had died, and if the question of justification was a close call legally, the prosecutor would have been under more pressure to prosecute.
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September 12, 2015, 12:11 PM | #36 | |
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Do not over think this. At the time when you pulled the trigger, you absolutely intended to shoot them, right??? because, if you didn't INTEND for it to happen, then it is an accident, and NOT self defense. As explained in detail by our legal experts, claiming self defense as a defense means you are telling the court that you meant to shoot, and you did shoot, and you believed you had no other choice. This is allowed in the laws. You are admitting to the "crime" of shooting someone on purpose, but you are justified in doing so, because of x, y, and z (to stop a deadly threat) As to talking to the police, the advice to say no more than the minimum needed before talking to a lawyer is sound. If you wish a good (theatrical) example of how your statements can be used against you, watch My Cousin Vinney" Note particularly how something said in the sheriff's office sounds entirely different when read back in court, despite being the exact same words... I would also advise against saying anything like "I was only trying to wound him..." This could get you in a world of trouble. Because of the fact that deadly force is justified ONLY when absolutely necessary. Essentially, you have to believe there is no other option. If there is doubt in your mind that deadly force is needed, you are not justified in using it. I cannot recommend talking to a lawyer, before making anything beyond bare statements of fact, highly enough. If you speak conversationally with the police (or any officer of the court) your words can, and will be interpreted by their literal, legal meaning. And in the direct aftermath of the incident, I can virtually guarantee you will not be thinking about the exact words and phrases you use as clearly as you will be later. For example, you tell officers something like this "I waited, and a minute later, I...." In a court, that means you paused for 60 seconds. NO more and NO less. So, if it turns out that the evidence shows it was only 20 seconds, or 3 minutes, then, you have (unintentionally?) lied about what happened, and then ALL your statements become questionable. Things like this are the main reason you need to talk to a lawyer, first. Not so you can cover up something, or fabricate a story, but so that your official statements are made in language that cannot be easily construed to be anything other than the actual facts of what happened. The only point to stopping an attack is to stop the attack. What happens to the attacker as a result of being stopped is incidental. If they die as a result of being stopped, the loss of life is regrettable. Tragic, and most of us will feel badly that someone had to die. Even though we had no choice, we will be expected to be remorseful about the death. Not appearing that way could be a strike against you in the court of public opinion. However, the way you express that natural human reaction might be a strike against you in a court of law. Saying "I didn't mean to kill him" as a way of expressing your regret that they died, while clear to you in your own mind, can be something quite different to the prosecutor. That single statement (taken at face value, without the context you meant it in) could be used to show that you had doubts, and be the basis of "disproving" your claim to justified self defense. The words you say matter much more than you realize when the law is involved. What "everyone" knows you mean in general conversation can mean something quite different in legal matters. If you don't open your mouth, it is more difficult to get your foot in it.
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September 12, 2015, 05:49 PM | #37 | |
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September 12, 2015, 06:09 PM | #38 | ||
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September 12, 2015, 08:08 PM | #39 | |
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Ahh. OK. Thanks for that clarification.
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September 12, 2015, 09:56 PM | #40 | |
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Last edited by Aguila Blanca; September 13, 2015 at 09:34 AM. |
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September 12, 2015, 10:37 PM | #41 |
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I carry an M1911A1 in .45 ACP, so I won't need to fire that many rounds in a defensive situation.
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September 13, 2015, 01:42 AM | #42 | |||
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In law, an intentional act is: If you intentionally point a loaded gun at a person and intentionally pull the trigger, you (1) have manifest a desire that the gun discharge and that the bullet fired from the gun strike the body of the person at whom it is pointed; or (2) know that it is substantially certain that the gun will discharge and that the bullet fired will strike the body of the person at whom the gun is aimed. In othe words, by intentionally pointing a loaded gun at someone and intentionally pulling the trigger you have manifest an intent to shoot him. An intentional act is distinguished from an accidental cause (emphasis added):
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September 13, 2015, 06:59 AM | #43 | |
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September 13, 2015, 08:07 AM | #44 |
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^^^ LOL ^^^
Yeah, and I have Hornady 165 FTXs in my 40sw so one shot is all I need to stop the threat. |
September 14, 2015, 02:01 AM | #45 | |
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There were members of the jury that would not believe the perp ever intended to kill the other person . The case was about a druggie stealing from the drug dealer . The two on the jury believed the perp only intended to rob the drug dealer not kill her . My point , It's not to comforting thinking I would have to prove what the bad guy was thinking when it comes to the pool the jury would be picked from or even the local LEO . Here in CA there are MANY people that believe if a bad guy puts a gun in your face and says give me your money or else . He never had the intention of shooting you , only robbing you . How am I supposed to know the guy pointing the gun at me is not intending to shoot me ? In reality that's likely true . I don't have any stats but would think most armed robbers don"t shot the victim if they get what they want . I could see a DA here in CA put up some stats showing most robbers don't shoot there victims therefore if you would have just given him what he wanted he would have just left . How ever since you the victim fought back or refused to comply to the bad guys "requests" . You the victim escalated the likely hood of deadly force . Now I'm not sure how other areas work but here on the LEFT coast you will have an up hill climb . Proving intent seems like it would be pretty tough regardless of the crime .
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September 14, 2015, 10:17 AM | #46 |
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That's the "He was a thief, but not a killer" defense. Everyone in prison is innocent.
The reasonable and prudent test is the key. 200 pound burglar, 100 pound homeowner, it's reasonable to conclude self-defense, provided the burglar was inside the house and not shot in the back. |
September 14, 2015, 10:41 AM | #47 | |
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I can easily see where a robber turned murderer would jump at the chance to claim the shooting was accidental, that they didn't intend to actually shoot their victim. If the court buys that, they face manslaughter, rather than murder charges. On the other hand, they clearly DID intend robbery and included the threat of deadly force. Personally, I think those jurors ought to conduct an experiment. Have them point a gun at a CA cop, and see what the cop thinks their intent is.... (of course I mean for them to ASK a cop(s), not actually do it, but if they did actually do it, I would not shed tears over their stupidity - I'm just mean and cold hearted that way .) Face it, in this world, there are only two possible categories a shooting can be put in, either accidental, or deliberate. There is no third option. So, if its not one, it HAS to be the other. WHY you pulled the trigger is a much variable thing, but that is a different matter. One either pulls the trigger intentionally or one does not. In a self defense situation, if you have to shoot,you pull the trigger intending to do so. If the situation is anything else, then it's not self defense.
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September 14, 2015, 01:22 PM | #48 | |
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If Jesus had a gun , he'd probably still be alive ! I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again . |
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September 14, 2015, 03:17 PM | #49 | ||||
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So if you approach me with a snarl on your face and holding an upraised crowbar, I can argue that a reasonable and prudent person would conclude that you intended to hit me with the crowbar. Quote:
But this can be an issue if you have to plead self defense. It's not just a California thing. Harold Fish had a problem along those lines in Arizona. Quote:
None of that is new, and none of that is limited to one State. It's the way things have been in Western Civilization for a long time. And so strong is our society antipathy to intentionally hurting someone that no one needs to just take your word for it that you needed to defend yourself. You will need to explain what the alleged assailant was doing, and you would need to explain why and how a reasonable and prudent person would have inferred from the actions of the alleged assailant that the alleged assailant intended to kill or gravely injure an innocent.
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September 14, 2015, 04:02 PM | #50 |
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Best I can include, briefly, is that you need to understand the valid use of force in your state. There is ample information out there so go find it.
Very generically, you can defend yourself with equivalent levels of force (non-lethal attack warrants a non-lethal defense; lethal attack warrants a lethal response, etc.). In theory and practice, you can move your legal status defender to attacker if you "over-respond." For instance, if you're at the grocery store and an old lady hits you with a purse you cannot shoot her; a child throws a stone at you at the park, you cannot stab the child; a car swerves to hit you (lethal force) and misses but keeps driving, you cannot draw and shoot at it (the threat has passed). An attacker comes at you, you stop the attack and the threat is over, and he's laying on the ground incapacitated, you cannot continue to attack him since you are no longer in danger/threatened. Unless you know what you're doing and why - don't talk to the cops about details. Yes, I know and agree that there are certain things you should say which include statements that you were attacked, you feared for your life, fired only in self defense to stop the threat, point out exonerating evidence, etc. That's all fine and dandy... Problem is, unsophisticated people tend to talk too much and dig their grave in doing so. Lulled into a sense of justification and are soon granting searches, making really dumb statements, etc. I've seen it plenty of times. There is psychological research out there that shows that people (esp those with no economic means) tend to think they can be their own mechanic, doctor, accountant, and lawyer... the latter example is where they want to talk to the cops, talk their way out of allegations, defend themselves, etc. That's just not how it works. So, understand the law, act within it, have a plan and know precisely what to say, have a lawyer on retainer now and know when to lawyer up. And to answer the OP, if you do a mag dump on a body on the floor to "finish him off" you're likely going to prison since the act has clearly moved from self defense to homicide. |
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