80 Year old Man attacked by burglars, One shot.

[JohnKSa]

At what point, and who determines, when a deadly encounter is over? Can someone shoot you, and then turn his back, and you can't shoot him back?

You are NEVER allowed to "shoot someone back". That implies retaliation or vengeance and that is not a valid justification for the use of deadly force.

Deadly force is for PREVENTING or STOPPING an attack, it is not for punishment, vengeance or retaliation.

If the person shoots and flees, then the attack is over and the justification for the use of deadly force is over too.

If they shoot and then run/maneuver to cover to better their position and to put you at a further disadvantage, you would be justified in shooting to dissuade/prevent them from continuing their attack.

Someone stabs you with a knife and then puts it in the sheath, and claims to be pregnant, and you aren't allowed to defend yourself from further attack?

The claim of pregnancy is totally irrelevant. If a person is a threat then their being pregnant doesn't change that.

The question is worded in a quasi-contradictory manner. It makes it sound like the attack has ended because the person has stopped attempting to harm you but then asks about the legality of defense. If the person has stopped attacking then you have no need to defend yourself and therefore, of course, you aren't allowed to defend yourself with deadly force.

If a person stabs you and then immediately stops attacking, you are not justified in using deadly force. Since the attack is over, there's no justification for the use of deadly force.

However, if a reasonable person in your situation would feel that the person still posed a deadly threat and still intended to do you harm (after you passed out or were sufficiently weakened from blood loss, for example), and there was no other way to deal with that deadly threat other than using deadly force, then using deadly force would be justified.

 

[aarondhgraham]

I fear for the old man,,,

I fear for the old man,,,
I believe they will prosecute him.

They will all be shedding great big crocodile tears,,,
But I am afraid that he will be used as an example of blind justice.

<RANT>

Our society claims to be enlightened and justice oriented,,,
But at what point does a violent criminal give up all rights under the law.

At what point does an innocent victim of an invasion/assault,,,
Have absolute immunity from anything that happens to the assailant.

How ridiculous on the surface is the idea,,,
That an assailant can cry "uncle",,,
And expect his victim to stop.

How lazy and uncompassionate a justice system,,,
That expects a victim in the heat of a personal attack,,,
To make the fine distinctions of when the threat is over or not.

</RANT>

But that's the type of society we live in.

~~~hanging head in despair~~~

So what lesson do we take from this sad event?

After any self defense incident,,,
Do not talk to anyone,,,
Except your lawyer.

Aarond

.

 

[manta49]

I fear for the old man,,,
I believe they will prosecute him.

They will all be shedding great big crocodile tears,,,
But I am afraid that he will be used as an example of blind justice.

Do you think that anyone that shoots someone and then claims self defense should not be investigated and charged if necessary. ? I know I would not want to live in a country that the police turned a blind eye to such incidents. People should be careful what they wish for.

At what point does an innocent victim of an invasion/assault,,,
Have absolute immunity from anything that happens to the assailant.

They should never have absolute immunity.

After any self defense incident,,,
Do not talk to anyone,,,
Except your lawyer.

What I would take from it is you are going to shoot someone make sure you can justify it, and don't shoot them in the back when they are running away.

 

[aarondhgraham]

Hello manta49,,,

I never said what you are implying.

There is no question (after the initial police response) that the man was assaulted.

I said and mean that in a saner society than the one we live in now,,,
There would be a point that violent attackers cross,,,
That gives a victim carte blanche immunity.

They should not be able to cry "time out",,,
I do wish for that type of reasoning.

A victim of a violent assault should not be held to a set of standards,,,
That prove difficult for people under normal situations to define.

That really is the place where I want to live,,,
I'm tired of criminals having more rights than their victims.

Aarond

.

 

[manta49]

I said and mean that in a saner society than the one we live in now,,,
There would be a point that violent attackers cross,,,
That gives a victim carte blanche immunity.

The police have to investigate and then its up to the prosecutors to prosecute or not. All the things you talk about should be taken into account before a decision is taken. You can't have a situation just because someone was in the wrong stealing from someone for example that its OK to shoot them in the back when they are running away. Everyone should have equal rights under the law even the ones that break it. If he had shot them when they were attacking him and he was in fear for his life we would not be having this discussion. For example in the UK if you find someone in your house and you kill them , even if its clear that in the heat of the moment that you overacted you will be investigated but it would be unlikely that you would be charged. Chase them out of the house and kill them you will be prosecuted, it went from self defence to vengeance .

UK someone who is confronted by a burglar and has reason to fear for their safety, or the safety of their family, and in the heat of the moment uses force that is reasonable in the circumstances but in the cold light of day seems disproportionate they will not be guilty of an offence".

 

[JohnKSa]

You can't have a situation just because someone was in the wrong stealing from someone for example that its OK to shoot them in the back when they are running away.

That's generally correct although there are some very limited situations in TX where it is legal (although HIGHLY inadvisable) to shoot someone escaping with stolen property.

I said and mean that in a saner society than the one we live in now,,,
There would be a point that violent attackers cross,,,
That gives a victim carte blanche immunity.

It's possible to search old versions of the Texas statutes online, and on one occasion I was curious about the origins and evolution of the current laws, particularly those relating to the defense/recovery of property.

Here are two interesting excerpts from the 1879 version of the TX Penal code regarding justifiable homicide.

Please note that the quote below is NOT from current TX law.​

If homicide takes place in preventing a robbery, it shall be justifiable if done while the robber is in the presence of the person robbed, or is flying with the money or other article taken by him.
...
In cases of burglary and theft by night, the homicide is justifiable at any time while the offender is in the building, or at the place where the theft is committed, or is within reach of gunshot from such place or building.​

So in the 1879 version of the TX Penal Code, one was allowed to use deadly force to recover property lost as a result of burglary or theft at nighttime or as the result of an armed robbery as long as the deadly force was used in relatively close proximity to the place where the crime took place. Because the crime is still in progress (person is fleeing with stolen property) deadly force was still justified.

One might look at that law and assume that the same kind of proximity clause applied to defense of person during that timeframe. Not so. Because, in the case of a crime against the person, the crime is already committed and completed when the criminal flees, there was no justification for use of deadly force once the criminal fled. There was one interesting exception.

Please note that the quote below is NOT from current TX law.​

Homicide is permitted in the necessary defense of person ... under the circumstances and subject to the rules herein set forth.
...

The killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense.

It must take place before the offense committed by the party killed is actually completed; except that, in case of rape, the ravisher may be killed at any time before he has escaped from the presence of his victim...​

Apparently, in 1879, it was felt that a rapist could be killed even after the offense was complete as long as the rapist was still in the presence of his victim. I suppose that would equate to your comment about a threshold that, once crossed gave the victim carte blanche. It should be noted that even in this situation the victim didn't really have true carte blanche since once the rapist left the victim's presence the justification disappeared.

However, even during that timeframe (135 years ago) it's clear that in the cases of other offenses against the person, once the crime was completed the justification for justifiable homicide no longer existed.

Although the specifics are different in the current TX law, the gist is still fairly similar. If the crime is over, so is the justification for deadly force.

 

[OldMarksman]

Posted by aarondhgraham: But at what point does a violent criminal give up all rights under the law.

Surely you are aware that a felon gives up certain rights upon conviction for his crime.

At what point does an innocent victim of an invasion/assault,,,
Have absolute immunity from anything that happens to the assailant.

Under certain circumstances, always defined by necessity, a victim may be excused for harming an assailant.

How ridiculous on the surface is the idea,,,
That an assailant can cry "uncle",,,
And expect his victim to stop.

Goes back around a millennium as a basic tenet of law.

How lazy and uncompassionate a justice system,,,
That expects a victim in the heat of a personal attack,,,
To make the fine distinctions of when the threat is over or not.

The fact of obvious retreat is not a "fine distinction".

So what lesson do we take from this sad event?

After any self defense incident,,,
Do not talk to anyone,,,
Except your lawyer.

Well, yeah, but it is very doubtful that that advice would have helped this jasper much at all.

The forensic evidence is most likely sufficient to nail him.

Perhaps a criminal state of mind would have been herder to prove, but the facts would have been sufficient to prevent a successful defense of justification.

 

[aarondhgraham]

It absolutely is a fine distinction,,,

The fact of obvious retreat is not a "fine distinction".

It absolutely is a fine distinction,,,

Especially in the heat of the moment,,,
When a person is in the middle of being assaulted,,,
How can he or she be expected to care about anything but defense?

Victims are thrust into a situation of violence,,,
They do not ask to be victimized by violent assault,,,
So why does our society expect them to act rationally in that scenario.

I know what the law says,,,
But the law errs on the side of the criminals rights.

Just a few years ago I read a story about a man who was attacked,,,
The assailant knocked the man flat on his back,,,
The victim was able to draw is gun and fire.

He was charged with manslaughter,,,
Because he hit the assailant in the back,,,
The assailant saw the gun and turned to flee,,,
But the victim was already pulling the trigger in defense.

How in the heck do we expect people to act that calmly,,,
Our society lets a uniformed officer kill a young teenage boy,,,
Because the kid had an airsoft rifle and the cop "thought" it was real.

No one demanded such a high level of discretion from the officer,,,
And he is supposed to be a highly trained professional.

Why do we even consider demanding a higher level of discretion from a victim.

In 1961 in Oklahoma City a woman woke up in the middle of the night,,,
She heard someone in the living room and thought it might be her son or daughter.

She got her pistol and went to investigate,,,
She encountered a man and immediately shot him dead.

It was enough that the man was an illegal intruder in her home.

No further justification or explanation was necessary.

The shooting was documented and she was not charged with a crime,,,
But in our society now the authorities would be asking her,,,
Did the person threaten or point a weapon at you?

That is the difference I have seen develop in my 62 year lifetime,,,
All because of a misguided tendency to be more "civilized",,,
Society has given criminals more right than their victims.

I think it's wrong,,,
It's as simple as that.

My thought is that people who enforce/legislate these policies,,,
Have never been the victim of a violent assault.

They wrongly believe they would react calmly and rationally,,,
So they decide our judicial policies on that false basis.

It's as wrong as disarming a populace for "the common good".

Look people, I'm not trying to change anyone's mind,,,
I'm simply stating what my opinion of the current state of affairs is.

Aarond

.

 

[OldMarksman]

Posted by aarondhgraham: Especially in the heat of the moment,,,
When a person is in the middle of being assaulted,,,
How can he or she be expected to care about anything but defense?

He or she is not so expected.

Once the assailant has fled, however, the person is no longer "in the middle of being assaulted."

Victims are thrust into a situation of violence,,,
They do not ask to be victimized by violent assault,,,
So why does our society expect them to act rationally in that scenario.

"Our" society? The concepts you are questioning are rooted in the English Common Law, which goes back about a century before Geoffrey Chaucer wrote "The Lawyer's Tale". They go back to the Code of Hammurabi.

I know what the law says,,,
But the law errs on the side of the criminals rights.

The mission of the legal system is to determine who is a criminal and who is not. In this case, the question at hand is whether the resident, who chased two other criminals down an alley and shot one of them in the back, is a criminal.

That he had been victimized earlier is largely irrelevant to that question, though it could conceivably serve as a mitigating factor regarding the severity of the criminal charges.

How in the heck do we expect people to act that calmly,,,
Our society lets a uniformed officer kill a young teenage boy,,,
Because the kid had an airsoft rifle and the cop "thought" it was real.

No one demanded such a high level of discretion from the officer,,,
And he is supposed to be a highly trained professional.

Why do we even consider demanding a higher level of discretion from a victim.

We do not. Had this civilian in Long Beach shot someone threatening him with a toy gun, he would have received the same benefit of the doubt.

In 1961 in Oklahoma City a woman woke up in the middle of the night,,,
She heard someone in the living room and thought it might be her son or daughter.

She got her pistol and went to investigate,,,
She encountered a man and immediately shot him dead.

It was enough that the man was an illegal intruder in her home.

No further justification or explanation was necessary.

The shooting was documented and she was not charged with a crime,,,
But in our society now the authorities would be asking her,,,
Did the person threaten or point a weapon at you?

In what US jurisdiction do you believe that would happen?

 

[aarondhgraham]

In what US jurisdiction do you believe that would happen?

In any US jurisdiction that does not have a strong castle defense law.

You can cite all of the examples of common law origins that you can find,,,
Knowing the reasons behind a situation does not automatically justify it.

But bottom line is,,,
I believe these justifications are wrong.

I'll not debate you,,,
I've stated my opinions,,,
That's all I am trying to do here.

I think I'll go mow my lawn now.

Aarond

.

 

[jeager106]

Quote:
I said and mean that in a saner society than the one we live in now,,,
There would be a point that violent attackers cross,,,
That gives a victim carte blanche immunity.

No one should ever be given carte blanche immunity.
When a homocide is committed there must be a thorough investigation of the homocide.
No matter the circumstances a homocide has been committed, homocide implies
the death of human. Even in a very righteous shoot a homocide has happened.
It's up its a grand jury to determine if that homocide was justifiable or not.
Jusitifiable does not negate that fact a homocide occured.
A ruling of justifiable homocide does not relieve the actor from civil redress either.
My opinions are based of over 2 decades of real world experience.

 

[MTT TL]

If a person stabs you and then immediately stops attacking, you are not justified in using deadly force. Since the attack is over, there's no justification for the use of deadly force.

Maybe. Maybe they are waiting for you to bleed out and attack you further.

Once the assailant has fled, however, the person is no longer "in the middle of being assaulted."

If they have truly fled that is and not running to try to grab another weapon.



Keep in mind there are no absolutes. Every situation has to be taken into the context of which it is and what can be explained to a jury. The less explanations the better. The key point being are you reasonably in fear of your life and the attacker has the means and ways to end it.

In a lot of states even fear of life is not the total litmus. In Alabama for example you can use deadly force to stop an arson or rape among other things.

 

[OldMarksman]

Clarifcation on Post #69

There was a time when the use of deadly force to stop a fleeing felon was excusable. Things have changed.

First, and most important, in the days of Blackstone, all felonies were subject to the death penalty. That is no longer true. The decedent in the Long Beach incident would not have been charged with having committed a capital crime.

Second, in the days of yore, a felon who escaped was as good as gone. Today, he or she will most likely be apprehended. Radio, patrol cars, helicopters, fingerprints, DNA, and surveillance video make escape a dubious proposition.

The decedent's accomplice has been apprehended and charged. And so would she have been, had she not been killed.

 

[OldMarksman]

One of the basic tenets of the justification of the use force by one person against another are that the actor had had a basis for a reasonable belief that:

• he or she had been faced with an immminent threat of harm--not a possible future threat, or a threat that had ceased to exist, but an imminent threat;
• he or she had had no reasonable alternative than the use of force; and
• he or she had used no more force than had been necessary.

Nuances involving a duty to retreat enter into the last of the above.

There are a few others that do not seem relevant to the Long Beach incident:

• the defender had not instigated the confrontation, or had attempted to withdraw from it;
• the defender had not agreed to enter into combat; and
• in the event that the defender had been defending a third person, the defender had at leaast had reason to believe that the third person would have been lawfully justified in using force to defend himself or herself.

There are, in some jurisdictions, some additional and very strict conditions that may, under some very limited circumstances, justify the use of force against a fleeing felon.

A person who knowingly and willfully uses force against another person or persons in the absence of a basis for a reasonable belief that all of the relevant factors existed is, by definition, what the law defines as a criminal. The severity of the criminal charges will vary depending upon the circumstances at hand.

That is true even if the person who uses force is....

• a sympathetic character;
• a "nice guy";
• or a person with a clean record.

It is also true even if the person against whom force had been used is a very unsympathetic character, or one with a very long "rap sheet", or just one who had just been involved in a crime.

We know that there are those who do not agree that the above truly reflects justice. But in reality, we must live by these constructs if we are to have a just society.

 

[Frank Ettin]

...But bottom line is,,,
I believe these justifications are wrong.

I'll not debate you,,,
I've stated my opinions,,,
That's all I am trying to do here...

But as we've stated many times here, your opinion about how things ought to be doesn't mean anything here. We're trying to help people understand what the laws regarding the use of force are so they can make appropriate, real world decisions.

The bottom line is that under the norms of our society intentional violence is repugnant. The default response to intentional violence is that it is a criminal act. So it becomes a question of when your intentional act of violence against another person can nonetheless be justified as legitimate self defense.

...Keep in mind there are no absolutes. Every situation has to be taken into the context of which it is and what can be explained to a jury. The less explanations the better. The key point being are you reasonably in fear of your life and the attacker has the means and ways to end it...

And you will need to hope that a jury will buy your explanation. It's going to be a much tougher sale if the assailant was fleeing.

 

[MTT TL]

And you will need to hope that a jury will buy your explanation. It's going to be a much tougher sale if the assailant was fleeing.

We should all hope that we need not be in front of a jury doing any explaining. I always get the feeling in these type threads that the vast majority of the people thumping their chests expressing how blood thirsty they are have never had to deal with the actual decision of possibly of taking a life.

 

[manta49]

We should all hope that we need not be in front of a jury doing any explaining. I always get the feeling in these type threads that the vast majority of the people thumping their chests expressing how blood thirsty they are have never had to deal with the actual decision of possibly of taking a life.

I would agree. It concerns me the number of people presumably armed for self defence are as you say thumping their chests expressing how blood thirsty they are , saying he deserves a pat on the back for example. I expected people to have a more responsible attitude to self defence and taking a life, I was obviously expecting too much.

 

[OuTcAsT]

Frank Ettin Wrote;

And you will need to hope that a jury will buy your explanation. It's going to be a much tougher sale if the assailant was fleeing.

Unfortunately, it is very likely that this homeowner is gonna have to face this challenge. Given what he has already said to the media, it doesn't look promising for him.

Had he kept his mouth shut it certainly would have helped his defense however, his statements and, the sketchy situation paint him in a very bad light IMHO.

This reminds me a lot of Jerome Ersland.

 

[jeager106]

Similar case I had.
A lone woman comes home to find burglars inside her home.
She goes for her husbands 12 ga. in a closet. Crooks flee with her t-v.
She shoots one outside the home liberally peppering him with 1 1/4 oz of #4
shot, mostly in head, face, neck, shoulder.
He lived, both sent to jail.
I feel the elderly man will be charged.
Is is right? That's up tp a court.

 

[OldMarksman]

About the Tactics

It turns out that the mother of the male burglar was outside acting as a lookout, and that she has been charged as an accomplice.

What can we learn from this? There may be more of them.

Had she been armed and so inclined, the homeowner may well have been shot. The presence of that .22 in his hand would not have warded off evil spirits or caused bullets to veer off course.

One more reason to wonder what he was thinking, or to conclude that he was not thinking clearly at all.