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.