Home defense

[A pause for the COZ]

I dont know, ever watch a Utube of a police shooting? 4 guys empty their Glocks into the guy.

Seriously though. My rule of thumb. Minimum of three rounds. Thats what i practice. So I know thats the minimum that will be expended.

Too, until I no longer feel threatened.

 

[SamNavy]

I spend a bit of time discussing the "bump in the night" with people who watch too much TV and have visions of running downstairs to catch a "bad guy" carrying his TV out the back door. My advice tends to bring some focus to the scenario.

"Any sunnofabich that breaks.into my house is gonna have a 9mm hole in his head when I find him!!

So... do you think you are more safe trying to clear your house room-by-room in the dark with zero training or more safe assuming a defensive position at the top of the stairs or end of the hall (keeping yourself between the bad guys and your loved ones) while you cover the entry points and dial 911?

I know plenty.of cops, and in addition to a long list of dangerous stuff they do, room clearing is an almost unanimous "least favorite". When speaking of your house, there is no way you're going to be quiet enough that a bad guy cant tell you're coming... se he has the advantage, and if he wants you dead, you're dead... and then likely so is your family. And if you're being "quiet", neither you or your wife is calling 911.

Also... if your home-defense plan relies on your gun as the first line of defense, you're clearly looking for a fight. A cheapo home security system costs less than a Ruger 10/22 with an alarm that will wake the dead and come with a remote you can activate from your bed. A dog, reinforced locks, motion lights, laser beams, etc...

 

[Frank Ettin]

This is the Law & Civil Rights Forum, and the OP's question focuses an legal issues. So let's not take a side trip to the tactics of dealing with intruders.

I responded to one specific question from the OP touching on tactics, and I linked to some past threads on the subject. Let's leave it at that.

 

[Oysterboy]

SamNavy has a point there. Your first line of defense should be the deterrent devices, lights, alarm, cameras, dog, etc.

The gun is the last resort.

 

[Aguila Blanca]

3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.

a. ...

b. If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.[/b]​

Overall, Frank's summation is (as usual) excellent. But it behooves us to remember that the laws of the fifty states (plus D.C.) differ. Frank lives in a state where, if I understand correctly, self-defense is an "affirmative defense" against a charge of murder. This means the prosecution doesn't have to prove that you committed a crime, YOU have to prove that your actions satisfy the criteria for the self-defense exception.

If I read the law of my state correctly, self-defense is a permissible use of deadly force, NOT an affirmative defense. This would mean that it is still the prosecution's job to prove that the act was criminal, rather than the defendant's job to prove it wasn't.​

 

[Colorado Redneck]

Intruder shot by resident

A year or so back, a couple in Boulder, CO was asleep in their house. The woke up to the sound of someone in their house. They man of the house yelled that he had a gun, but the intruder kept walking toward the bedroom. When the intruder came into the bedroom, the man shot the intruder.

Turns out the shot was not fatal. The intruder was a drunk college girl that had gotten lost and thought she was in her own home. She recovered, and the resident was not charged under the "Make my Day Law."

Frank--if the young women had died from the gun shot, what is the likelihood the resident would have been charged with manslaughter? The intruder posed no actual threat---the threat was "perceived." And the homeowners admitted they did not lock the front door that night.

 

[JohnKSa]

Is there a limit to the "amount" of protection one can use to protect themselves and their family? I could probably explain a kill shot to the head, for example. Am convinced I'd have a hard time explaining why I emptied a 15 round clip from a 9 mm three times into the same target. Especially after it fell to the floor.

The limit to the amount of protection one can use to protect themselves and their family is what is reasonably necessary to accomplish the protection.

Shooting someone as many times as is necessary to stop their deadly attack against you or a family member is necessary and therefore within the limit.

Shooting someone more times than is necessary to stop their deadly attack against you or your family is more than is necessary and therefore outside the limit.

It's not how much you shoot, it's whether or not it's done to protect against a deadly attack and is therefore necessary or whether it's done when it's not necessary to protect against a deadly attack.

Justifiable (legal) deadly force is all about necessity and prevention. If you don't need to protect yourself or family member than there is no necessity and therefore no justification. If an attacker ceases to pose a deadly threat (e.g. falling to the floor and ceasing all hostilities) then using further deadly force against the person won't prevent anything and therefore deadly force is not justifiable.

...if the young women had died from the gun shot, what is the likelihood the resident would have been charged with manslaughter? The intruder posed no actual threat---the threat was "perceived."

If a reasonable person in the homeowner's position would perceive the intruder to be a deadly threat then that would usually constitute justification.

It's not necessary that an actual threat exist--just that a reasonable person in the defender's position would believe that an actual threat existed. If, for example, you rob a store with a realistic-looking toy gun and the clerk shoots you, that would be considered justified. Even though the toy posed no threat, a reasonable person would assume that the realistic-looking toy was a deadly weapon and therefore that a deadly threat existed.

 

[Aguila Blanca]

I heard from an acquaintance a couple of nights ago that there was a home invasion in Hartford, Connecticut. Two armed men broke into a house. They made a mistake -- the homeowner was armed, and both robbers were shot. The way it was related to me, the pro-gun faction in Connecticut is using the incident as an example to show why guns are necessary. They contrast the recent Hartford incident with the murders of the Pettit family a few years ago in Cheshire, Connecticut. In that one, the husband wasn't armed. He was badly beaten, his wife was raped and strangled, and his two teen-aged daughters were killed when the robbers burned the house down around them.

Basically, anyone who is in your house who doesn't belong there is a threat ... until you know he/she/they isn't/aren't a threat.

 

[Frank Ettin]

...Frank lives in a state where, if I understand correctly, self-defense is an "affirmative defense" against a charge of murder. This means the prosecution doesn't have to prove that you committed a crime, YOU have to prove that your actions satisfy the criteria for the self-defense exception....

Not really. Basically in California, as most States, the defendant claiming doesn't have the burden of proving self defense. But he does have the burden of producing evidence of the element of self defense, i. e., a prima facie case. The the burden shifts to the prosecution to prove it was not justified self defense.

...If I read the law of my state correctly, self-defense is a permissible use of deadly force, NOT an affirmative defense. This would mean that it is still the prosecution's job to prove that the act was criminal, rather than the defendant's job to prove it wasn't....

But I think if you do the research you'll see that the prosecution doesn't have to prove that the use of force was criminal and not permissive unless and until the defendant has made a prima facie showing of justification. And the less convincing the defendant's evidence of self defense is, the easier it will be for the prosecution to overcome the self defense plea.

Remember that pleading self defense require the defendant to admit that he intentionally used force. Once he pleads self defense he can no longer raise any other defenses to the criminal charge. He can't claim an alibi. He can't claim that it wasn't him. He can't claim it was an accident.

Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1:

...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....

 

[Hal]

Originally Posted by gyvel
Quote:
...and that you intended to shoot the decedent.
This is confusing. If the situation is self defense, how can it be said that you intended to shoot the decedent?...

Read the first part of that...
"But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. "
Yes - you were there.
Yes - you shot the SOB.
Yes - you intended to stop him and if it meant killing him then so be it.

You just have to keep your wits about you enough that you don't come across as the "bad guy" or cause some other confusion as to your intentions.

What I posted above is fine for point one (you were there).
Point two becomes a bit of an attention getter - how do you know the dead guy was an SOB? Was there something personal?
Point three is where any cop worth their salt was sit up and take notice...
It comes across that you were somehow proud of the fact you killed the guy.

OTOH - the opposite sounds just as bad if not worse.
Yes - I intended to stop him, but, I never meant to kill him.

For point three - Just leave it at - I intended to stop him..

Side note,,,,

That's such an excellent post by Frank that it should be a sticky....

 

[A pause for the COZ]

The best advice I had read if your involved in a indecent was:

" Shut up! and let your lawyer do your talking"

He is the one that is paid to know what to say. Anything your likely to ad will only make things worse.

Cooperating with the investigation does not mean you need to make ANY statements.
The best thing is to tell them I will cooperate with your investigation but I will make no statements until I have a lawyer present.
Because ANY thing you say on site WILL be used against you.
Think about it, Your all jacked up because you just had a life threatening experience. Should you be answering life changing questions at that time.

NO!! So Shut up.

 

[Aguila Blanca]

...If I read the law of my state correctly, self-defense is a permissible use of deadly force, NOT an affirmative defense. This would mean that it is still the prosecution's job to prove that the act was criminal, rather than the defendant's job to prove it wasn't....

But I think if you do the research you'll see that the prosecution doesn't have to prove that the use of force was criminal and not permissive unless and until the defendant has made a prima facie showing of justification. And the less convincing the defendant's evidence of self defense is, the easier it will be for the prosecution to overcome the self defense plea.

As Frank knows, I am not a lawyer. I know how to read legalese just well enough to get myself in trouble. Here's what the law (in my state) says:

Sec. aa-bb. Use of reasonable physical force or deadly physical force generally. The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:

(1) A parent, guardian or other person entrusted with the care and supervision of a minor or an incompetent person, except a person entrusted with the care and supervision of a minor for school purposes as described in subdivision (6) of this section, may use reasonable physical force upon such minor or incompetent person when and to the extent that he reasonably believes such to be necessary to maintain discipline or to promote the welfare of such minor or incompetent person.

(2) An authorized official of a correctional institution or facility may, in order to maintain order and discipline, use such physical force as is reasonable and authorized by the rules and regulations of the Department of Correction.

(3) A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use reasonable physical force when and to the extent that he reasonably believes such to be necessary to maintain order, but he may use deadly physical force only when he reasonably believes such to be necessary to prevent death or serious physical injury.

(4) A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use reasonable physical force upon such person to the extent that he reasonably believes such to be necessary to thwart such result.

(5) A duly licensed physician or psychologist, or a person acting under his direction, may use reasonable physical force for the purpose of administering a recognized form of treatment which he reasonably believes to be adapted to promoting the physical or mental health of the patient, provided the treatment (A) is administered with the consent of the patient or, if the patient is a minor or an incompetent person, with the consent of his parent, guardian or other person entrusted with his care and supervision, or (B) is administered in an emergency when the physician or psychologist reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

(6) A teacher or other person entrusted with the care and supervision of a minor for school purposes may use reasonable physical force upon such minor when and to the extent he reasonably believes such to be necessary to (A) protect himself or others from immediate physical injury, (B) obtain possession of a dangerous instrument or controlled substance, as defined in subdivision (9) of section 21a-240, upon or within the control of such minor, (C) protect property from physical damage or (D) restrain such minor or remove such minor to another area, to maintain order.


Sec. xx-yy. Use of physical force in defense of person. (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.

(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he or she is in his or her dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he or she is a peace officer, a special policeman appointed under section 29-18b, or a motor vehicle inspector designated under section 14-8 and certified pursuant to section 7-294d, or a private person assisting such peace officer, special policeman or motor vehicle inspector at his or her direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.

(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.

Of course, this is one of those states that imposes a duty to retreat "... if it can be done in complete safety" -- which I think most of us agree is an impossibly vague standard, but I'm subject to it nonetheless.

I'm not sure. The first section I quoted doesn't apply to self-defense. The second section is less clear (to me) about who has the burden of proof. Do I have to prove that my fear of death or serious injury was reasonable, or does the State have to prove that it wasn't?

 

[Spats McGee]

The best advice I had read if your involved in a indecent was:

" Shut up! and let your lawyer do your talking"

If SD were a garden-variety defense, this might be true. Ordinary defenses are often best met with a response of "prove it." SD works more along the lines of "Yep, I shot him. I had a REALLY good reason, though."

The reality, though, is that an SD shooter is unlikely to have his attorney on scene for the initial contact, and may need to make some statements to get the investigation off on the right foot. Otherwise, witnesses and evidence critical to the defense may be lost.

 

[A pause for the COZ]

I agree, but the less we say the better, the more we say is not.

Explain: "I was afraid for my life" Then shut up.

Explain: " I am willing to sign a complaint" Then shut up

" There is his gun" Then Shut up.

" These people saw the attack" Then Shut up.

Explain: " Officer, I will cooperate 100%. But 1st I need to speak to my attorney"

Call your Attorney. I have one I can call if I am involved in an event.
If you think you may some day be involved in one of these life changing events.
Best to have that part worked out in advance.
I suspect the 1st thing he will tell you is. " Shut up"

The police are not there to decide if what you did was right or wrong.
They collect data. the county, city Attorney is the one who decides to charge or not charge.
They are not on site ether.
Worse that can happen is the police cant figure out what happened and you get arrested. Your Lawyer can get you out.

Keeping your mouth shut and letting the police do their jobs. Will not make any thing worse. You will always have the chance to explain in detail what happened.

On the other hand Flapping your Gums when your all jacked up. Has more potential to just create more questions you will need to answer latter.

 

[Frank Ettin]

...If I read the law of my state correctly, self-defense is a permissible use of deadly force, NOT an affirmative defense. This would mean that it is still the prosecution's job to prove that the act was criminal, rather than the defendant's job to prove it wasn't....

But I think if you do the research you'll see that the prosecution doesn't have to prove that the use of force was criminal and not permissive unless and until the defendant has made a prima facie showing of justification. And the less convincing the defendant's evidence of self defense is, the easier it will be for the prosecution to overcome the self defense plea.

As Frank knows, I am not a lawyer. I know how to read legalese just well enough to get myself in trouble. Here's what the law (in my state) says:

Those statutes really just set out the elements of a justification/excuse defense, i. e., what would need to be true for me to get off the hook for using force. They really don't address who has the burden of producing evidence or proving that the exculpatory circumstance existed.

In general who has the burden of product or burden of proof (the distinction can be somewhat technical) will follow (1) who has something positive, rather than something negative, to show; and (2) who has best access or control of evidence on the question.

So if you're charged with battery (an unconsented to harmful or offensive touching), and you claim you shouldn't be held criminally liable because you thought the guy was committing suicide and you wanted to stop him (your aa-bb(4)) you know what you believed and why you believed it, so so you have control of the best evidence on that point. So you will need to at least come forward and say, "I thought the guy was committing suicide because ..., and so I tried to stop him.

....The intruder was a drunk college girl that had gotten lost and thought she was in her own home. She recovered, and the resident was not charged under the "Make my Day Law."

Frank--if the young women had died from the gun shot, what is the likelihood the resident would have been charged with manslaughter?...

It's impossible to know.

On one hand, if one is legally justified in using lethal force, what happens to the person against whom the force was used is irrelevant. So if the prosecutor in that case declined to prosecute, believing that the resident was justified, that death of the girl would change things.

On the other hand, if the girl had died, and if the question of justification was a close call legally, the prosecutor would have been under more pressure to prosecute.

 

[44 AMP]

Quote:
...and that you intended to shoot the decedent.
This is confusing. If the situation is self defense, how can it be said that you intended to shoot the decedent?...

If the situation is self defense, and you shoot someone, how can you claim that you DIDN'T intend to shoot them????

Do not over think this. At the time when you pulled the trigger, you absolutely intended to shoot them, right???

because, if you didn't INTEND for it to happen, then it is an accident, and NOT self defense.

As explained in detail by our legal experts, claiming self defense as a defense means you are telling the court that you meant to shoot, and you did shoot, and you believed you had no other choice. This is allowed in the laws.

You are admitting to the "crime" of shooting someone on purpose, but you are justified in doing so, because of x, y, and z (to stop a deadly threat)

As to talking to the police, the advice to say no more than the minimum needed before talking to a lawyer is sound. If you wish a good (theatrical) example of how your statements can be used against you, watch My Cousin Vinney" Note particularly how something said in the sheriff's office sounds entirely different when read back in court, despite being the exact same words...

I would also advise against saying anything like "I was only trying to wound him..." This could get you in a world of trouble. Because of the fact that deadly force is justified ONLY when absolutely necessary. Essentially, you have to believe there is no other option. If there is doubt in your mind that deadly force is needed, you are not justified in using it.

I cannot recommend talking to a lawyer, before making anything beyond bare statements of fact, highly enough. If you speak conversationally with the police (or any officer of the court) your words can, and will be interpreted by their literal, legal meaning. And in the direct aftermath of the incident, I can virtually guarantee you will not be thinking about the exact words and phrases you use as clearly as you will be later.

For example, you tell officers something like this "I waited, and a minute later, I...." In a court, that means you paused for 60 seconds. NO more and NO less. So, if it turns out that the evidence shows it was only 20 seconds, or 3 minutes, then, you have (unintentionally?) lied about what happened, and then ALL your statements become questionable.

Things like this are the main reason you need to talk to a lawyer, first. Not so you can cover up something, or fabricate a story, but so that your official statements are made in language that cannot be easily construed to be anything other than the actual facts of what happened.

The only point to stopping an attack is to stop the attack. What happens to the attacker as a result of being stopped is incidental. If they die as a result of being stopped, the loss of life is regrettable. Tragic, and most of us will feel badly that someone had to die. Even though we had no choice, we will be expected to be remorseful about the death. Not appearing that way could be a strike against you in the court of public opinion.

However, the way you express that natural human reaction might be a strike against you in a court of law. Saying "I didn't mean to kill him" as a way of expressing your regret that they died, while clear to you in your own mind, can be something quite different to the prosecutor.

That single statement (taken at face value, without the context you meant it in) could be used to show that you had doubts, and be the basis of "disproving" your claim to justified self defense.

The words you say matter much more than you realize when the law is involved. What "everyone" knows you mean in general conversation can mean something quite different in legal matters.

If you don't open your mouth, it is more difficult to get your foot in it.

 

[gyvel]

If the situation is self defense, and you shoot someone, how can you claim that you DIDN'T intend to shoot them????

Do not over think this. At the time when you pulled the trigger, you absolutely intended to shoot them, right???

because, if you didn't INTEND for it to happen, then it is an accident, and NOT self defense.

I freely admit I am simple minded when it comes to things like this, but my point is that it is a situation one is forced into to defend their own life. I don't see that as "intent to shoot someone." To me, that implies you are out deliberately looking for someone to shoot.

 

[Spats McGee]

If the situation is self defense, and you shoot someone, how can you claim that you DIDN'T intend to shoot them????

Do not over think this. At the time when you pulled the trigger, you absolutely intended to shoot them, right???

because, if you didn't INTEND for it to happen, then it is an accident, and NOT self defense.

I freely admit I am simple minded when it comes to things like this, but my point is that it is a situation one is forced into to defend their own life. I don't see that as "intent to shoot someone." To me, that implies you are out deliberately looking for someone to shoot.

Intent is not the same as premeditation. Intent can be formed in an instant. Either you intend to shoot an attacker (self defense), or you do not (accident).

 

[gyvel]

Intent is not the same as premeditation. Intent can be formed in an instant. Either you intend to shoot an attacker (self defense), or you do not (accident).

Ahh. OK. Thanks for that clarification.

 

[Aguila Blanca]

Intent is not the same as premeditation. Intent can be formed in an instant. Either you intend to shoot an attacker (self defense), or you do not (accident).

I remember reading about a case a few years ago in which the prosecutor claimed that "premeditation can be formed in an instant." That really puzzled me -- I thought people had to be able to speak and write English in order to get into law school.