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Old July 7, 2020, 02:45 PM   #26
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There's a little bit of a "gun rights" connection with this trespassing law point.

Disclaimer: I am not a lawyer nor a legal expert of any kind.

You cannot shoot somebody that is merely trespassing on your property. They are there, you don't want them there, but you just cannot shoot them.

The connection to gun rights is this: in Minnesota when our legislature was having a discussion about "gun free" zones some of our reps were totally gobsmacked that if a permit holder wandered into a "gun free" department store/restaurant/etc. the ONLY thing that would happen to them would be that they would be asked to leave. Some just couldn't get their mind around it. One of the reps tried to explain that it would be a simple case of trespass. They still couldn't hide their indignation that the permit holder wouldn't be arrested, have their permit pulled, be tarred and feathered and put in the public stocks for a day for illegally violating a "gun free" zone.

Trespass...IMhO in MN it's a law with reasonable consequences.
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Old July 7, 2020, 09:33 PM   #27
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Blue Duck covered my thoughts on the matter. Avoidance of the areas is best, if at all possible.
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Old July 7, 2020, 09:50 PM   #28
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I think DaleA's summary is a bit over-simplified, but it may be consistent with his state's laws. My understanding (disclaimer: I am not a lawyer), based on my state's laws, is that there are two degrees of trespass: simple trespass, and criminal trespass. Simple trespass is whern you go somewhere you don't have permission to be ... such as entering a shopping mall that prohibits weapons while you are carrying.

If you get spotted and an authorized agent of the property asks you to leave, if you then leave that's as far as it goes. However, if you decline to leave after having been explicitly told to do so, it then escalates to criminal trespass, and for THAT you can be arrested.

Also, if an agent of the property kicks you out and tells you not to come back ... if you return the next week after having been told that you are persona non grata, that's automatically criminal trespass. They don't have to tell you a second time.

Remember, there are fifty states plus the District of Columbia. There is no way that any answer that will fit in an Internet forum post can possibly cover all the nuances of all the states plus D.C.
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Old July 8, 2020, 02:54 PM   #29
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Here in NC you can't legally shoot trepassers. Even if they are damaging your yard or fence or whatever. And you can't legally shoot people stealing your property either.

But, in NC, you can shoot people to prevent them from entering your home so long as you believe the intruder(s) intend to do great bodily harm, murder, rape, kidnap, or commit armed robbery.
Again, you don't have to wait until your door has been kicked down, you can shoot to stop them from kicking your door down.
This also applies to the workplace and motor vehicles.
When driving through a mob (an extremely stupid notion) the mob can hit your car, kick your car, block your car, shake your car, etc..and you cannot use deadly force in NC.
However, should they attempt to break your windows or pry the door(s) open, then you can use deadly force to prevent entry if you believe they intend to do great bodily harm, murder, rape, kidnap, or commit armed robbery.

So for the scenario we're talking about, I would lock my home up and call the police.
I would only shoot if they actually tried to force their way in to my home.

Last edited by peacefulgary; July 8, 2020 at 03:03 PM.
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Old July 8, 2020, 07:10 PM   #30
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If the couple had opened fire from their front yard would someone on the street been justified in returning fire?
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Old July 8, 2020, 10:27 PM   #31
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Potentially. It depends on the exact circumstances.

But yes, if a person fires on another when there is no legal justification for doing so, they are committing a crime that is almost certain to justify a deadly force response by the person under fire.
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Old January 23, 2021, 06:28 PM   #32
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It all depends on your ability to convince a jury that you were in imminent danger of death or serious bodily injury at the moment you fired. If they agree, you're good to go. If they don't, 20 years in prison.
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Old January 24, 2021, 12:05 PM   #33
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Since 2009, the TXAZ "Law of Bullet Ownership" has stated:
Every bullet you fire has 2 items attached:
1) A blank check - yours.
2) An angry lawyer - not yours.

Corollary to the above:
Be careful where your bullets land.

Cave illos in guns et backhoes
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Old January 24, 2021, 12:11 PM   #34
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Much depends on what you knew and when you knew it. Did the occupants know that the protestors broke through the gate? Did they see it happen or could the gate have been open already or opened by someone with access? Was it broken prior to the event?

Did the occupants have reason to think the protestors were headed somewhere else or did they believe they were the target?

In any event, I wouldn't start shooting at anyone on my lawn unless they were firing at me. I'd lock the doors and windows and keep out of sight and not do anything to agitate the mob further. After calling the police I'd prepare myself to do whatever I needed to do to protect myself if anyone broke through the door while waiting for law enforcement.
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Old January 24, 2021, 01:15 PM   #35
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I wont speak to what is legal or illegal but to what is my personal moral code

Generally speaking, I am not going to even consider the use of deadly force unless it is what I must do to preserve life which is in jeopardy RIGHT NOW or to address life threatening jeopardy which is obviously imminent in the next few breaths.

A person or (persons) either have the ability and opportunity to harm me or they dont, they have acted purposefully toward harming me or they havent and jeopardy exists or it doesnt.

Most property crimes, crimes relating to trespassing, theft or damage to property is not likely to meet my qualification for deadly force.
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Old January 24, 2021, 01:44 PM   #36
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I am going to state, right now, with NO lack of specificity or equivocation:

I believe the McCloskeys were totally and completely justified in arming themselves against the mob who WERE articulating threats against them.

Though their gun handling was about on par with what I see as the "general level of (in)competence of most gun owners"...the presence of their guns was enough to dissuade the crowd from taking further violent action against I call it a win.

But let's look at the totality of the circumstances...

Their whole neighborhood was de facto "private property". All the neighbors "owned" the common areas, so when the gate TO their neighborhood was broken that was a "violent and tumultuous entry". The crowd had literally broken and entered a privately owned space and were committing an act of criminal trespass.

By sheer force of numbers, the crowd created a condition where "disparity of force" comes into play as justification for the threat of use of force, and even lethal force even if none of the crowd had a per se weapon, their numbers were enough so that a reasonable person would believe that the crowd was capable of inflicting "death or grave bodily harm".

Members of the crowd were articulating threats against the couple and the homes in the neighborhood. Though damage to property may or may not pertain as a justification for the use of force, the threat of "burning you out" or "burning this mofo down" sounds a lot like the threat of "arson of an occupied structure" which IS reasonably considered in most places a threat of "death or grave bodily harm".

Warren On Homicide (The Bible Of Justifiable Homicide by Earl Warren) also holds that "Every member of the mob (crowd) shares the common jeopardy of those who created the fear to begin with". Which means...every member of that crowd, by continuing to remain WITH the crowd, was a de facto target of any use of force that was forced by other members of that crowd.

Again...The McCloskeys were JUSTIFIED in their threat to use force to protect themselves and their property even against a crowd that was "apparently" unarmed (refer back to disparity of force and the threat to "burn this mofo down").

I have seen "Stand Your Ground" mentioned by some woefully ignorant people as a defense FOR the mob...SYG does NOT pertain to anyone who is committing a crime, or who is not in a place where they are trespassing at any level, or in a place where they have no legal right to be.

I could go down dozens of different paths of justification, but I just hit highlights on this one as far as why the homeowners were justified and why the mob was not...but I am not going to. The verbiage may/will be different in other places...but where the rubber meets the road is the general standard for use of force:

"Immediate and otherwise unavoidable danger of death or grave bodily harm to yourself or other innocents"

So, let's look at what a smarter move that standing out in the front yard with their guns waving would have been....

Number one...that big, stone, mortar, and brick porch would have offered both cover and concealment for the McCloskeys. Had it been my house, I would have taken my challenge position on the porch. It offered a much faster avenue of retreat to the cover of heavy door sills and locking doors and presumably...more ammo which I did not see in evidence on the person of Mr McCloskey.

Number Two...Final Warning: You are trespassing and threatening our lives. We will defend ourselves!

I would also already have made my decision of where my DO NOT CROSS line was. Once that threshold was passed, then the final warning would be given, then the first one to cross it would be taking the Ambient Air Temperature Challenge and do what you need to do.

Every situation will be different, but in justification, there have to be some common things in play. Would a reasonable person, knowing what you knew at the time, do the same thing in the same circumstances?

Had I been one of the responding officers, especially in the role of supervisor, to the McCloskey Incident as it played out...there is no way, based upon the totality of the circumstances, would I have been able to fault them for their actions in threatening the use of (lethal) force to defend their lives against the mob. I believe they were legally, and morally justified in their actions.

Had the street and sidewalk NOT been privately owned in a private might be a slippery slope to argue justification for pointing a weapon AT a member of the mob UNLESS a visible per se weapon had been introduced by the mob (Molotov Cocktail, Firearm, Bludgeoned Instrument, etc...), but having them at the ready for immediate use would be justifiable and even advisable, because remember...the mob DID make threats to "burn this mofo down". So, even in those circumstances, I would NOT be able to fault the McCloskeys.
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Old January 24, 2021, 03:02 PM   #37
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I pass no judgement on the McCloskeys and I wont pretend to know what they were thinking or feeling in the moment. I will say that if I had been concerned for my safety and a angry mob of people were currently occupying a seemingly private thoroughfare just outside my home, I would not have exited my home to stand on my front stoop or yard, waving a gun around.

Speaking in the most general sense, I do not think it is often a good idea to exit the relative safety of your home to confront a danger which remains outside. Might there be some pressing condition which convinces me to go outside and confront a mob? sure.. but it would have to be quite extreme.

If people force their way into my home or try to burn it down ( with me in it), that is quite a different circumstance than people essentially standing on a private sidewalk, yelling and raising a ruckus.

On a personal level, I tend to give people minding their own business quite alot of latitude in regard to how they address a problem that sought them out( especially on their own land). That said, a person should probably be very careful about any conduct which involves the display of weapon opening in hand.
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Last edited by FireForged; January 24, 2021 at 04:02 PM.
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Old January 24, 2021, 03:04 PM   #38
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The crowd had literally broken and entered a privately owned space and were committing an act of criminal trespass.
Video taken by crowd members of the initial entry to the area shows that the gate was not broken or forced open. It was broken at some point, but not at the point of initial entry.

At any rate, since the McCloskeys could not have known the circumstances of the initial entry at the time they were pointing guns at the crowd, it's probably moot.

That's all assuming that breaking the gate down changes the level of the offense of trespassing--I"m not saying it does or doesn't, just pointing out the facts.
By sheer force of numbers, the crowd created a condition where "disparity of force" comes into play as justification for the threat of use of force...
There has to be a legally justifiable threat before disparity of force comes into play. It's not legal to point guns at people simply because they outnumber you, disparity of force alone isn't sufficient justification.

Again, I'm not saying that they were or weren't justified, just pointing out that the fact that they were outnumbered would not, in and of itself, justify them committing aggravated assault against the crowd.
the threat of "burning you out" or "burning this mofo down" sounds a lot like the threat of "arson of an occupied structure" which IS reasonably considered in most places a threat of "death or grave bodily harm".
From the video I've seen, this threat came after the aggravated assault by the McCloskeys. Even if it had not, verbal threats, in and of themselves, don't generally justify aggravated assault.

I do agree that if the crowd had come down the street threatening to burn houses, especially if they demonstrated the willingness and ability to do so, things would be much more clearcut.

But the fact that they responded to having guns pointed at them by making threats isn't nearly the same thing.

Again, I'm not saying that the McCloskeys were justified or weren't. I just think that the situation isn't nearly as clearcut as some have made it seem.
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Old January 25, 2021, 08:36 PM   #39
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Frisco, your post #36 was almost painful to read. No offense but considering your logic or lack thereof as expressed in your post in this thread I'm a little surprised as to how you've managed to keep yourself out of prison over the course of your duties as a police officer within the State of California.
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