An incident I heard about on the radio

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Doug.38PR

Moderator
Sunday after church I was sitting in my car listening to a local radio host (and apparently some kind of legal advisor) talking to a caller about a local constable who had entered teh man's house at night and awoke the man as he lay practically naked in bed. The constable came in (without a warrant), awoke the man and told him to keep his hands where he could see them aond forced him out of bed and the man could barely get a towel to put over himself to proceed with the constable. From the man's perspective, a man had broken into his house, that's all he knew, I think he thought he was being robbed, after a moment in the dark (maybe also with a flashlight in his face) he could see that the man in his house had stripes running down his pants and could make out a gunbelt thus finally seeing it was a policeman of some kind. He told the constable later that it was fortunate that he had put his pistol up in the front of the house away from his bedroom a week ago due to Hurricane Rita otherwise, this could have been a lot uglier situation. From the constable's perspective, he had found a stolen car in front of the man's house and saw keys in a door of the house (think the man said it was some patio door or something...didn't quite understand that part of the story) and shined the flashlight in the living room window to see the room practically empty (the man had in fact been doing some renovations or something and had moved the funiture from the room). He policeman entered the house without a warrant I supposed thinking himself to have probable cause.

NOW, to me I don't see how the constable would think that a carthief would stop and rob a living room of all articles, truck them off, walk back and take a nap in somebody's house. Should the officer have handled this differently...like maybe call for a little backup to cover the back of the house and him and knock on the door and talk to the guy saying he found a stolen car? (of course over the radio, I just heard it all from the home owner not the constable. The man felt his rights under the 4th amendment had been violated since the constable didn't have a warrant and wanted to know what he could do)

ALSO, what if the guy did have the gun in his bedroom and had shot the unknown guy holding a flashlight in his face in his bedroom at night (who turned out to be a constable acting as he understood it carrying out his duty) Would the home owner be in trouble?

What this boils down to is, what if my door gets kicked open one night or wake up and hear someone shuffling through my house at night and I pull my gun from the holster and shoot them. It turns out to be the police (whether they have a warrant or not). Am I in trouble? or are they in trouble? I am defending my home. I don't know who this is shuffling around in the dark or of there are more than one of them. Seems to me, the police (even with a warrant) have to serve it to me in person before they can just come in.
 
Tricky legal situation.

A lot of the police use "knock notice" when serving a warrant. That is, they kick down the door (the "Knock") and yell "police, we have a warrant" as they barge in.

This tends to get a lot of bullets fired on occasion. Universally the courts have said that if you have notice of a warrant and you shoot, you could be liable for attempted murder of a police officer. At the very least it'll be resisting arrest and assault on a police officer.

Should you be residing in your home and the cops come barging in WITHOUT a warrant and you shoot; Maybe a different situation, maybe not. My thoughts are that you'll spend a few years behind bars while the appeals systems sorts it out - and not necessarily in your favor either. There's also the chance you won't get the opportunity to have your day in court too. Depending of course on how accurately the cops can shoot back.

As for the radio program caller's problem. Anyone who leaves their keys in the door is asking for a nighttime visitor and should be thankful it WAS a cop who came calling.
 
right, but I'm saying if I DON"T KNOW they have a warrant (or even that they're the police, all I know is that somebody has entered my house at night uninvited) and I shoot. I have not seen any warrant produced.

For that matter, if they break in without a warrant...that is breaking and entering isn't it? Of course there is probable cause (if they have it) but even then, all I KNOW is that somebody is breaking in my house.
 
These are interesting questions and hearing from practicing attorneys would also be interesting.

My take on it is this -- It's somewhere just after oh-dark-thirty in the morning when you hear your front door crashing in and several people yelling. From a sound sleep to corornary defibrillation in about 0.7 seconds you roll out of bed, arm yourself. What happens in the next 15 seconds may decide the rest of your life -- or end it.

How the cops or legal system expect a person to understand the yells through the noise and commotion when waking from a dead sleep and getting adrenaline pumped into their bodies is beyond me.

In this scenario, however, I think that a prosecutor would have a hard time obtaining a grand jury indictment. The officer won't be there to provide his view of the incident. If he is, he will have to articulate how he came to be in an place unrelated to the incident he was investigating and what measures he took to identify himself. He'll also have to articulate what he believes a reasonable person would do in the homeowner's shoes (er..bedclothes) when faced with an intruder. He'll also have to describe how this situation formed an exigent circumstance that negated the need for a search warrant.

For what it's worth, I think cops over-use the dynamic entry tactic far too much. I think it should be reserved only for the most high-risk scenarios. We've seen civilians die due to the police hitting the wrong house. Or a clerical error on the warrant, such as interposed house numerals or wrong street names. And, sadly, we've seen too little prosecution for those negligent mistakes.

In my view, should a "raid" go wrong -- wrong house or person -- then all the people responsible should be facing the gallows. Each member of the raid team, the team leader and the supervisory officer (Lt. or Captain). Failure to double-check the details is unacceptable. This goes for clerks, prosecutors and judges too. The checks and balances in our Constitution and the Bill of Rights must have substantial teeth with which to bite government officials who fail to safeguard citizens liberties.

Whoops. Didn't mean to rant or try to hijack the thread.
 
but I'm saying if I DON"T KNOW they have a warrant (or even that they're the police, all I know is that somebody has entered my house at night uninvited) and I shoot. I have not seen any warrant produced.

For that matter, if they break in without a warrant...that is breaking and entering isn't it? Of course there is probable cause (if they have it) but even then, all I KNOW is that somebody is breaking in my house.
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You don't have to "see" the warrant for it to be valid and enforceable (so long as it's correctly issued with proper cause).

If someone breaks into your house at zero dark thirty, FIRST call 911, then get behind cover behind a locked door and point a weapon at the door. If someone tries to get through the door, yell at them whatever words you want but MAKE THEM UNDERSTAND you are armed and you WILL defend yourself and that you DON'T CARE if they say they are police. Untill 911 or they can verify that they ARE police, they are just intruders. UNLESS they have a warrant - which in these circumstances they should be happy to slip under the door for you to see along with some sort of ID. At which point everyone can calm down and get things sorted out.

You WILL BE cuffed and your weapons siezed. Ask for a receipt and then shut up.

Remember, you only have a right to self defense. That means you can only shoot the BG's and you must make sure that they ARE BG's before you shoot them. That means you're required to take that half second to ID your target and if it looks like a swat team and there are badges everywhere then they are most likely NOT the BG's. If you just shoot anything that comes in the door, you're gonna be in trouble real fast.

If they are LEO but don't have a valid warrant, then the courtroom is the place to extract your pound of flesh.
 
How the cops or legal system expect a person to understand the yells through the noise and commotion when waking from a dead sleep and getting adrenaline pumped into their bodies is beyond me.

In this scenario, however, I think that a prosecutor would have a hard time obtaining a grand jury indictment. The officer won't be there to provide his view of the incident.
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I have little difficulty imagining that the situation would be written about in the newspaper with details as follows:

- The situation will be described as "police serving a warrant were ambushed and fired upon by a man 'barricaded in his house' as they they entered. :rolleyes:

- Homeowner's past -- ANYthing he ever did -- will be mentioned, so if he had any arrest or conviction for any crime, that will be made "relevant" even though it has nothing to do with this event

- The man, it will be noted, had umpteen hundreds of rounds of ammo in the house, and sixty-four guns, some of them "assault weapons" -- ooooooh! :rolleyes:

- IF there is any mention of this being the wrong house, etc., it will be minimized and the quote from the police spokesperson will be, "That is something we are investigating..." :rolleyes:


It is scary and infuriating how the press can twist the perception of real events so that they don't resemble what actually happened. If you're a gun owner, pilot, or skydiver, you know what I mean. You read the paper story about an event, and some knownothing reporter has shredded the truth because of his limited or nonexistent understanding of the subject. All plane crashes are due to "the engine stalling"; all skydiving accidents are due to the "parachute didn't open"; all gun owners are described as having an "arsenal" of "assault weapons" and a "stockpile" of ammunition. :rolleyes:

-blackmind
 
Rob P. said:
Remember, you only have a right to self defense. That means you can only shoot the BG's and you must make sure that they ARE BG's before you shoot them.
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Actually, you need only "reasonably believe" that they are bad guys (who intend to cause grievous bodily harm or death). It's for this "reasonable belief" reason that people who shoot someone who stuck them up with a cap-gun don't face manslaughter charges. Certainly you are not required to "make sure" that it's just an Airsoft gun that's pointed at your wife's head in a street robbery before you shoot the guy.

So correlating this to the execution of the no-knock warrant, I figure that if you shoot cops who storm into your house, you could be upheld because you feared for your life and could not know they were cops. Especially nowadays when people are posing as cops in order to do home invasion robberies; one hopes that the cops will phase out this kind of thing being used as S.O.P.

No-knock warrants work only when the overpowering force can get into the house while confusion still reigns and the occupant hasn't the ability to reach his weapon. If such a warrant is served on someone who is prepared against a home invasion and keeps his gun at the ready, then suddenly the warrant becomes simply an excuse to execute the guy.

Cops should not be able to create a situation in which a person can mistake them for invaders, grab a gun, and then get himself shot for doing what is reasonable when you are invaded.



-blackmind
 
(edit feature not working, or I'd have appended this to my previous post)


In the case of a no-knock warrant, and then the occupant shoots the cops who enter...

Isn't the police expectation of compliance at odds with their actions? They enter yelling, "POLICE, DON'T MOVE! GET YOUR HANDS UP!" when at the same time they have thrown in a flash-bang grenade that is supposed to DiSOrIenT you?!

So the raidee can easily say (if he survives), "Well, I shot at the cops because I didn't know they were cops in the first place! They threw in a grenade to blind/deafen me, and then expected me to hear, throught the bang, the deafness, and the noise, them screaming, 'We're police'?! They shouldn't have tried to disorient, blind and deafen me if they wanted me to know they were police and not raiders."


-blackmind
 
These are called "no knocks" in Colorado and were a practice until recently. In the last few years several have resulted in raids on the WRONG HOUSE or based on BAD INTELLIGENCE. Needless to say, there have been many wrongful deaths from shooting the homeowners who come to investigate. The police always settle these for hundreds of thousands of tax payer dollars. This is not practiced in Colorado any more to my knowledge.

If it were practiced, the police will always win and if you shed blood, you'll likely be killed. Because the police are prepared with body armor, numbers, and military weapons and the raids are generally done in the late night/early a.m. hours when you're sleeping, and they can often get blueprints from the city before-hand, they have a significant upper-hand.

It will likely take the police seconds to knock in your door, possibly throw a flashbang through the window to disable you, and have many guns on you in moments. At best it would probably take you much longer to awaken, realize the situation, and get a gun. It would be near impossible to beat them to the draw because of their advantages. At best you'd likely be taken into custody until the mistake can be resolved without firing a shot. At worst you'd likely be shot dead. Although possible for you to shoot an officer under this situation, it's highly unlikely. And, if you did shoot one with a common HD weapon, he'd likely survive because they were significant armor.

As far as the liability goes, it's likely that if you came out guns blazing to defend your home, liability would be the least of your worries. You'd be facing the business end of no fewer than 4 military grade weapons and LEOs authorized to use them given any lethal resistence by the homeowner.

Bottom line, in a "no knock" tensions are high and trigger fingers are ready. You have a gun, you'll be in a pine box.
 
Blackmind, anyone in a self defense situation is required to only defend against what they believe to be a life threatening attack. The reality of discerning if the pistol is an "airsoft" or real is irrelevant. If someone is holding a pistol against your family members head, you are justified in lethal force even if it's a fake pistol so long as you believe that the attack was life threatening.

What you cannot do is shoot a police officer even if he's breaking the law UNLESS your life is proveably in danger at the time AND he was attempting to kill you in violation of the law. In other words, unless the cop is on a killing rampage, has shot several people already and is now coming after you, you can't defend yourself against him AT ALL. If there were such a situation, the cop would no longer be a cop, he's just a BG. Any other level of violence or actions on the cops part is part of his job and YOU must be able to tell the difference and not shoot.

It's not a question of fake or real, it's a question of white hats and black hats.
 
Here in the "Police Atate" they attempt to get around this by saying that even someone breaks into your house you have to be able to determine they intend to do you harm before using deadly force! Would that be just before, or just after I am shot?
 
One more thing to add. It is a crime to resist an arrest, even if it is an unlawful arrest with no probable cause or a mistaken identity. You are legally compelled to follow the law and cooperate with the police. Taken a step further, that probably means that you cannot shoot at them even in self defense.
 
You have a gun, you'll be in a pine box.
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I hope the swat team breaking into my house has that kind of mistaken confidence if they plan on some kind of midnight raid at MY house. Besides all the gear, which I have as much of as they do, and enough bars, locks and steel security gates to slow them down for a minute or so, I have more training and likely more experiance. And a hometurf advantage. Don't get me wrong it would be a tragedy, i would not enjoy killing honest cops, but I have done nothing wrong and I value my life. Better to be tried by 12 than carried by six.
 
Blackwater: no offense meant here, but I think it's a fantasy to think you'll even get a fighting chance in the "no knock" scenario for these reasons, no matter how much SEAL or SAS or whatever training you may have:

1) You are likely asleep and will take a few moments to rise, become alert, realize what the heck is going on and get your gun. Fair to say at least 10seconds? Maybe 5 seconds at best? This clocks starts ticking the moment you hear the door bust in and police charging into the home.

2) Meanwhile, the cops are wide awake and have been preparing for this for hours with blueprints to your home.

3) There will probably be a dozen or more heavily armed and armored cops, with a squad entering your house with ballistic shields, armor, and full auto SMGs in a true military raid.

4) You'll likely receive a few flashbangs which will disorient you;

5) Since they know they have the element of surprise, I think they'll quickly rush through the house to disarm or disable every person. You'll either be disarmed or disabled. If you fire a single shot you'll be shot and have probably not badly injured any police. And, they will have been wrong to come into your house, but it will be poised as a clean shooting.
 
No knocks are just plain wrong and a bad idea.. This is
one of the preferred methods of break-ins around here...
I would end up dead, and possibly a cop too...:( There
was a case just south of Jackson, MS about a year or so ago,
Where a cop got killed on a no knock and the bad guy got
off.. There was drugs all over the place.
The evidence got thrown out and the scum walked...Imagine that....
I can see both sides of this..But, the element of surprise
can work both ways..
 
Actually you have to REASONABLY BELIEVE they are badguys. You don't have to be absolutely certain, and you can be wrong as long as the belief was reasonable. Shooting a teenager with a toy gun, for example.

I've said before when this topic came up that if I were inclined to commit home-invasion robberies I might use the tacitic of kicking in the door and screaming "Police, Warrant!" etc.

Colorado law gives residents the right to shoot intruders without warning and wihout retreating. Belief that the intruder poses a deadly threat is not required.

Since _I_ know that there is no reason for the cops to be kicking in my door _MY_ first thought is going to be that it's criminals invading my house, regardless of what they are yelling, and I will react accordingly unless I can clearly identify them as police officers.

Leadcounsel: I'd be interested to see black-letter OR case law that indicates it is illegal to resist an illegal arrest. Illegal to shoot an officer in true self-defense? A crime is a crime whether the criminal wears a badge or not.

Remember, you only have a right to self defense. That means you can only shoot the BG's and you must make sure that they ARE BG's before you shoot them.
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lead counsel

the point you are missing is that I have very strong 2 3/4 in steel doors with a security bar bolted to my cement floor and a security gate outside, in side my house they would have to go through two oak 2 1/4 in doors before they get to me. By then I will be VERY awake and pointing a 7.62mm battle rifle w/ AP rounds at the only door/entrance into my bedroom, I know how to avoid the effects of flash bangs which mostly rely on overpressure and loud noise. I have timed how long it takes me to set up w/ rifle and Body Armor, and be fully awake; about 30 seconds. Bottom line if it really is a well trained swat team I will probably be dead but not CERTAINLY, there is a very good chance they will back off when they realize I am not so easy to take out. Also, BTW, I don't expect a situation like this to ever happen, but I would not be surprised if robbers used these tactics and acted like a swat team, and for that, I am prepared.
 
One time I saw an episode of America's Most Wanted, and the profile was of a COP who had raped numerous women after pulling them over in the boonies.

Now, say this cop is raping a woman after placing her (wrongly) in custody. Who here wants to maintain that once a cop is raping her, the woman still may not defend herself with lethal force?!


And now take it to a case where a cop is going batty and shooting, or threatening to shoot, someone who knows he is just as innocent as the raped woman... Still claim that he can't defend his life by shooting back at a cop who -- it would come out later at a trial, perhaps -- had gone off the deep end and was clearly acting with deadly criminal intent?


I don't go in for the notion that you could never be in the right to be shooting at a cop. Surely there are some situations where you are not obligated to prostrate yourself to them.


-blackmind
 
Amen Blackmind,
That badge doesn't make anyone God. If someone is assulting me I am going to defend myself, that is not a right given to me by the state, that is just a fundamental right by God.
Any jury in their right mind (granted this isn't always the case...OJ simpson for example) would see to a person's release who defended themselves against a wrongful assult even if that person was wearing a badge. The protection of the citizens should come first, not the LEOs.
 
leadcounsel said:
One more thing to add. It is a crime to resist an arrest, even if it is an unlawful arrest with no probable cause or a mistaken identity. You are legally compelled to follow the law and cooperate with the police. Taken a step further, that probably means that you cannot shoot at them even in self defense.
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This is a tricky one. Realistically speaking if a person of the law comes for you in capacity anything you do to thwart their task is considered hindrance (even resisting arrest). What is supposed to happen is that you let him/her carry out their duty and then let the next stage of the legal system sort it out.

However, I do recall women who have been prayed upon traditionally by false police have been known to call 911 from their homes or cell phones stating that they are being pulled over or that an officer is at their door and then submitting to the officers request, but that carries a lot of risk and is also case by case in nature.

In the long run, no matter what the case or cause unless your life is threatened resisting is a bad idea. As from that point on the officer is in the right by what means he/she believes necessary in subduing you, even if the arrest was invalid, as you moved up the scale from his probably cause investigation to active resistance or hindrance of his duties. .
 
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