An intruder in your garage, what would YOU do?
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OldMarksman
Staff
Posted by The Big D:
Do not assume that all lawyers are equally competent in all subjects.
And make sure your correspondence is confidential and is protected as privileged attorney-cilient communication.
The problem is that statements made long before the occurrence of a alleged criminal confrontation can be taken out of context and used at trial to paint a very negative picture of a defendant.
In the case of Larry Hickey in Arizona, the oft repeated but unwise saying, "be polite, be professional, but have a plan to kill everyone you meet" was contained in instructional materials possessed by defendant.
The words in question were used to try to describe state of mind--to convince the jurors that the use of those statements indicated that Hickey was the type of person who was predisposed to violence.
What that did was weaken his case by casting doubt on the reasonableness of his belief that his actions had been immediately necessary.
One can look (1) beyond Internet postings (and downloads and Google search records, for that matter) and training materials, and consider email, letters, memoranda, handwritten notes, social network postings, cell phone and text message records, and yes, wiretapped telephone conversations; and (2) beyond cases that involve crimes of violence, and consider any other kind of accusations that one might think of.
Excellent thinking.
Do not assume that all lawyers are equally competent in all subjects.
And make sure your correspondence is confidential and is protected as privileged attorney-cilient communication.
You can do that if you like, but it could come back to bite you.
Is it just that you are not aware that statements, writings, insignia, and other items can be used and have been used as evidence pertaining to state of mind in a court of law?
The problem is that statements made long before the occurrence of a alleged criminal confrontation can be taken out of context and used at trial to paint a very negative picture of a defendant.
In the case of Larry Hickey in Arizona, the oft repeated but unwise saying, "be polite, be professional, but have a plan to kill everyone you meet" was contained in instructional materials possessed by defendant.
The words in question were used to try to describe state of mind--to convince the jurors that the use of those statements indicated that Hickey was the type of person who was predisposed to violence.
What that did was weaken his case by casting doubt on the reasonableness of his belief that his actions had been immediately necessary.
One can look (1) beyond Internet postings (and downloads and Google search records, for that matter) and training materials, and consider email, letters, memoranda, handwritten notes, social network postings, cell phone and text message records, and yes, wiretapped telephone conversations; and (2) beyond cases that involve crimes of violence, and consider any other kind of accusations that one might think of.
How so?
Larry Hickey's case was dismissed with prejudice. No harm came from him from quoting General Mattis, nor should it (thanks to that whole 1st amendment thing).
The reason such tut tutting is harmful to society is that it reinforces the absurd notion that we should be unable to say things that are true and moral, simply out of fear of a sneak attack by lawyers. Instead we should be normalizing the idea that committing crimes leads to being shot dead, and that's a good thing for everyone but the criminal. We should be people of conviction, willing to stand up for our convictions publicly, and deal with any (incredibly unlikely) consequences later. Had the founding fathers behaved with respect to the law like you suggest, there would be no USA.
The reason such tut tutting is harmful to society is that it reinforces the absurd notion that we should be unable to say things that are true and moral, simply out of fear of a sneak attack by lawyers. Instead we should be normalizing the idea that committing crimes leads to being shot dead, and that's a good thing for everyone but the criminal. We should be people of conviction, willing to stand up for our convictions publicly, and deal with any (incredibly unlikely) consequences later. Had the founding fathers behaved with respect to the law like you suggest, there would be no USA.
OldMarksman
Staff
Posted by The Big D:
All this after Hickey had endured considerable time in jail, two long and expensive trials, court orders to stay away from his house, loss of income, and expenses that bankrupted him.
Do you have some kind of insight that tells you that one jury, or the other one, might not have acquitted him but for the state of mind issue?
The justification of the use of deadly force to defend life but not property goes back many centuries. The idea that an individual has the legal power to decide guilt, decide punishment, and administer punishment is not accepted in a civilized society.
I "suggest" abiding with the law; choosing to avoid the use of deadly force whenever safely possible; and conducting oneself in a manner that does not exacerbate the consequences of the aftermath, criminal or civil or both.
The case was most assuredly not dismissed with prejudice. After failing to obtain a conviction in the second trial, the state decided to not pursue a third.
All this after Hickey had endured considerable time in jail, two long and expensive trials, court orders to stay away from his house, loss of income, and expenses that bankrupted him.
Hickey did not quote Mattis. The statement was on a chart he had obtained from someone else.
Do you have some kind of insight that tells you that one jury, or the other one, might not have acquitted him but for the state of mind issue?
Many, if not most people, will question the belief that statements such as "at the slightest provocation or sight of a weapon or commission of any crime on the intruder's part including picking up or holding any piece of property I'd shoot", or "Burglars don't deserve to live, and I've got no problem sorting it out" are moral in any sense of the word.
The justification of the use of deadly force to defend life but not property goes back many centuries. The idea that an individual has the legal power to decide guilt, decide punishment, and administer punishment is not accepted in a civilized society.
I much prefer the approach specified in the Sixth Amendment to the Constitution of the United States.
Your assessment of the likelihood of an investigation after the use of force is unrealistic. Your professed willingness to act in a way that would lead you to have to deal with the cnsequnces is indicative of a lack of understanding of the consequences.
Your understanding is flawed.
I "suggest" abiding with the law; choosing to avoid the use of deadly force whenever safely possible; and conducting oneself in a manner that does not exacerbate the consequences of the aftermath, criminal or civil or both.
To the original question: I have a carport, not a garage, so people can wander in and out without hindrance if they wanted to.
If I saw someone out there (through the windows in the kitchen door) I would call the police. Then I would bang on the door to let them know they were seen and hope they would run off.
If they are stealing my property, there's not much I can do about it since I can't use lethal force to protect property in my state, and going out to confront them physically, which may be justifiable if the amount of force used is the minimum sufficient to prevent the crime, would be risky since it's hard to figure out how that might play out.
I'd rather lose a bike or lawnmower or my car than risk being injured in a scuffle with one or more thieves likely to be younger and fitter than me. I have homeowners insurance.
The only situation where a firearm would come into it would be if the person, upon seeing me, decided to try to break into the house and assault me physically or was clearly armed with a deadly weapon and was trying to break in.
I will happily hide in the house and wait for police before trying to engage, unless they get in and I have no alternative.
If I saw someone out there (through the windows in the kitchen door) I would call the police. Then I would bang on the door to let them know they were seen and hope they would run off.
If they are stealing my property, there's not much I can do about it since I can't use lethal force to protect property in my state, and going out to confront them physically, which may be justifiable if the amount of force used is the minimum sufficient to prevent the crime, would be risky since it's hard to figure out how that might play out.
I'd rather lose a bike or lawnmower or my car than risk being injured in a scuffle with one or more thieves likely to be younger and fitter than me. I have homeowners insurance.
The only situation where a firearm would come into it would be if the person, upon seeing me, decided to try to break into the house and assault me physically or was clearly armed with a deadly weapon and was trying to break in.
I will happily hide in the house and wait for police before trying to engage, unless they get in and I have no alternative.
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OldMarksman
Staff
Posted by The Big D:
Just hope that, in the terrible event that you ever have to shoot someone, the evidence that you can produce afterward is very strong indeed and is not effectively countered by evidence produced by someone else.
Regarding some posts that you have already made, you cannot hide.
Just hope that, in the terrible event that you ever have to shoot someone, the evidence that you can produce afterward is very strong indeed and is not effectively countered by evidence produced by someone else.
OldMarksman
Staff
Posted by The Big D:
But since something could always happen, the only thing to do now is try to avoid an unfavorable eventuality.
Nothing mythical about the use of prior statements as evidence.
No one says that anything is "going to happen."
Obtain your own professional advice, and don't write about it afterward.
This is from another internet board:
That material was prepared with the help of, and reviewed by, some of the attorneys on the TFL staff.
"Hide" was your word.
What opportunity to do what?
You need not be concerned about anything until something happens that makes it relevant.
But since something could always happen, the only thing to do now is try to avoid an unfavorable eventuality.
Nothing mythical about the use of prior statements as evidence.
No one says that anything is "going to happen."
Obtain your own professional advice, and don't write about it afterward.
This is from another internet board:
That material was prepared with the help of, and reviewed by, some of the attorneys on the TFL staff.
OldMarksman
Staff
It was nice to see this thread get through 47 posts before anyone suggested shooting anyone for pilfering something in a garage.
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.
Frank Ettin
Administrator
Hogwash! That is not what Colorado law says. You simply aren't reading the statute properly. (And I'm a real lawyer.)The Big D said:
Let's look at the applicable Colorado statute, C.R.S. 18-1-704.5:
So --
- Subsection (3) provides that an occupant of a dwelling will be immune from prosecution for the use of deadly force, but in order for that immunity to attach, the the occupant's use of deadly force must be in accordance with the provisions of subdivision (2).
- So let's take a closer look at subsection (2), which reads (emphasis added):So subsection (2) defines a number of conditions which must be satisfied in order for the immunity of subsection (3) (or subsection (4)) to apply, specifically ---
- The person against whom force was used entered the dwelling illegally; and
- The occupant reasonably believed that the person against whom force was used committed, was committing or intended to commit a crime, in addition to the unlawful entry, and
- The occupant reasonably believed that the person against whom force was used might use force, even slight force, against any occupant.
- The person against whom force was used entered the dwelling illegally; and
- If those three conditions set out in subsection (2) aren't satisfied, the occupant doesn't get immunity under subsection (3) (or subsection (4)). So --
- If the prosecutor (or grand jury) concludes that the evidence shows that those conditions were satisfied, there will be no prosecution. That's pretty much the way it is in every State: if the prosecution is satisfied that the evidence established justification, he won't bother prosecuting.
- But if the prosecutor, after considering the evidence, concludes that he could convince a jury beyond a reasonable doubt that any one of those conditions were not satisfied, he can charge the occupant (now the defendant) and prosecute.
- It will then be up to the defendant to either put on a prima facie case that all conditions were satisfied (or otherwise defend against the charges based on C.R.S. 18-1-704, Colorado's general self defense law:
- If the prosecutor (or grand jury) concludes that the evidence shows that those conditions were satisfied, there will be no prosecution. That's pretty much the way it is in every State: if the prosecution is satisfied that the evidence established justification, he won't bother prosecuting.
- Note that with regard to the conditions set out in subsection (2), the person against whom force was used must have, in fact, entered the dwelling unlawfully. It is not stated as a matter of the occupant's belief.
- Note that for the purposes of the conditions set out in subsection (2), the occupant's beliefs regarding the actions and intentions of the person against whom force was used must be reasonable. This is thus an objective, reasonable person standard.
- So saying, "I killed him because he was a burglar" won't, by itself, get you off the hook. Unless the evidence has led the prosecutor to conclude that the person you killed entered your house unlawfully and you reasonable believed that he was going to commit another crime inside and use some force against an occupant, you'll have to make your case at your trial.
SocialAnarchist
Moderator
It amazes me the people that seem so eager to shoot someone for a property crime. Seriously what are you thinking? I have more than enough insurance to cover the property that any thief would walk away with. That doesn't mean I won't defend my family and my animals against harm.
I sincerely hope that I make it through my entire life having only pointed and fired guns at targets and at animals I have hunted. Don't mistake that for weakness and an inability to protect the people in my life. I just don't have a need or desire to shoot someone unless the circumstances leave me no choice, and stealing something doesn't fit my criteria for leaving me no choice.
I sincerely hope that I make it through my entire life having only pointed and fired guns at targets and at animals I have hunted. Don't mistake that for weakness and an inability to protect the people in my life. I just don't have a need or desire to shoot someone unless the circumstances leave me no choice, and stealing something doesn't fit my criteria for leaving me no choice.
OldMarksman
Staff
Posted by The Big D:
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.
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.
zincwarrior
New member
I won't shoot you but I may definitely cut you over a piece of delicious chocolate cake...
Sorry, trying to lighten things up. The thread has gotten a bit hostile. Not sure why.
Glenn E. Meyer
New member
I would caution folks not to say they are the definitive source of legal wisdom (as some is flat out incorrect). Also, blood lust and insults can cause you to go elsewhere. Some of that content was deleted.
Frank Ettin
Administrator
I'm going to touch on a few additional details regarding both Colorado law and comments on social media.
On the other hand, the cases cited by 2ndsojourn in post 59 (People v. Guenther, 740 P.2d 971 (Colo. 1987); Young v. District Court, 740 P.2d 982 (Colo. 1987); and People v. Malczewski, 744 P.2d 62 (Colo. 1987)) establish clearly that --
So while you might not care, for the benefit of people who want to understand how the world really works so that they can make the best decisions for themselves, I'll point out that while speech may be free, it still has social and legal consequences. It can be evidence of motivation, predisposition, state of mind, intent, character, etc.
As outlined here by Massad Ayoob:
He was trying to make the point, in general terms, that any notion you might have that you can't get caught for what you write over the Internet is hooey. Some folks would be very surprised by the amount of useful information the police and prosecutor can get from your computer and your Internet presence. Note that he mentions a subpoena. That is another form of compulsory process used to gather evidence. Or sometimes the police will need a search warrant, which they'll be likely to get; and sometimes they won't. But however they have to get it, if it's there they can and will get it.
The "take-home message" is that plaintiff lawyers, law enforcement and prosecutors know all about social media and have been learning to use it effectively in civil litigation, criminal investigations and prosecutions. See this article headlined "Bay Area prosecutors increasingly using social media posts in criminal cases" from the 16 August 2013 edition of the Contra Costa Times:
Then cite the case or cases.The Big D said:
On the other hand, the cases cited by 2ndsojourn in post 59 (People v. Guenther, 740 P.2d 971 (Colo. 1987); Young v. District Court, 740 P.2d 982 (Colo. 1987); and People v. Malczewski, 744 P.2d 62 (Colo. 1987)) establish clearly that --
- A defendant claiming immunity under C.R.S. 18-1-704.5 is entitled to a pretrial hearing on the question of immunity;
- At such pretrial hearing, a defendant claiming C.R.S. 18-1-704.5 immunity has the burden of proving by a preponderance of the evidence that the predicate conditions set out in C.R.S. 18-1-704.5(2) have been satisfied. As the Colorado Supreme Court stated in Guenther (at 981):
- Note that in Malczewski, the Colorado Supreme Court overturned a dismissal by the trial court at a 18-1-704.5(3) pretrial hearing. The Colorado Supreme Court found that as a matter of law the defendant had neither established by a preponderance of the evidence that the person against whom force was used entered the dwelling unlawfully nor that the other predicate conditions of 18-1-704.5(2) had been satisfied (Malczewski, at 66 -- 67):
- If a charge is not dismissed at a 18-1-704.5 pretrial hearing, the defendant can raise his claim at trial as an affirmative defense (Guenther, at 981):
By all means do as you wish. What happens to you is of no concern to us. What does concern us would be folks who might get themselves into trouble by being unwise enough to pay any attention to your specious, ignorant opinions.The Big D said:
So while you might not care, for the benefit of people who want to understand how the world really works so that they can make the best decisions for themselves, I'll point out that while speech may be free, it still has social and legal consequences. It can be evidence of motivation, predisposition, state of mind, intent, character, etc.
As outlined here by Massad Ayoob:
He was trying to make the point, in general terms, that any notion you might have that you can't get caught for what you write over the Internet is hooey. Some folks would be very surprised by the amount of useful information the police and prosecutor can get from your computer and your Internet presence. Note that he mentions a subpoena. That is another form of compulsory process used to gather evidence. Or sometimes the police will need a search warrant, which they'll be likely to get; and sometimes they won't. But however they have to get it, if it's there they can and will get it.
The "take-home message" is that plaintiff lawyers, law enforcement and prosecutors know all about social media and have been learning to use it effectively in civil litigation, criminal investigations and prosecutions. See this article headlined "Bay Area prosecutors increasingly using social media posts in criminal cases" from the 16 August 2013 edition of the Contra Costa Times:
Yes, if the tests are met. But you won't be the one who will be deciding if the tests have been met. As the Colorado Supreme Court spelled out (People v. Guenther, 740 P.2d 971 (Colo. 1987)), if charged it would be your burden at a pretrial 18-1-704.5 hearing to convince the judge by a preponderance of the evidence that the tests have been met.The Big D said:
No one cares whether or not you're concerned about anything. And I certainly don't care what you do or what kind of trouble you get yourself into. I'm just trying to make sure that others here understand that you don't know what you're talking about so that they can avoid getting themselves into trouble by following your lead.The Big D said:
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SocialAnarchist
Moderator
I like chocolate cake. Especially if it has a really good homemade chocolate frosting.
zincwarrior
New member
Exactly.
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