Model12Win
Moderator
I carry an M1911A1 in .45 ACP, so I won't need to fire that many rounds in a defensive situation.
Home defense
- Thread starter MINSH101
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Frank Ettin
Administrator
If you didn't intend to shoot him, why did you intentionally point a loaded gun at him and intentionally pull the trigger? If you don't intend to shoot someone, all you need to do to not shoot him is not point a loaded gun at him and not pull the trigger. That is how the law looks at intent.gyvel said:
In law, an intentional act is:
An intentional act is distinguished from an accidental cause (emphasis added):
How would you prove intent . It tends to be the hardest thing to prove in CA . I'm aware of at least one case where the perp put a gun in someones face and said give me the BLANK or I'll kill you . The perp then put a pillow over the other persons face and pulled the trigger .
There were members of the jury that would not believe the perp ever intended to kill the other person . The case was about a druggie stealing from the drug dealer . The two on the jury believed the perp only intended to rob the drug dealer not kill her .
My point , It's not to comforting thinking I would have to prove what the bad guy was thinking when it comes to the pool the jury would be picked from or even the local LEO . Here in CA there are MANY people that believe if a bad guy puts a gun in your face and says give me your money or else . He never had the intention of shooting you , only robbing you . How am I supposed to know the guy pointing the gun at me is not intending to shoot me ?
In reality that's likely true . I don't have any stats but would think most armed robbers don"t shot the victim if they get what they want . I could see a DA here in CA put up some stats showing most robbers don't shoot there victims therefore if you would have just given him what he wanted he would have just left . How ever since you the victim fought back or refused to comply to the bad guys "requests" . You the victim escalated the likely hood of deadly force .
Now I'm not sure how other areas work but here on the LEFT coast you will have an up hill climb . Proving intent seems like it would be pretty tough regardless of the crime .
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kilimanjaro
New member
That's the "He was a thief, but not a killer" defense. Everyone in prison is innocent.
The reasonable and prudent test is the key. 200 pound burglar, 100 pound homeowner, it's reasonable to conclude self-defense, provided the burglar was inside the house and not shot in the back.
The reasonable and prudent test is the key. 200 pound burglar, 100 pound homeowner, it's reasonable to conclude self-defense, provided the burglar was inside the house and not shot in the back.
I can easily believe this, and in a legal matters, it even makes some sense. BUT, you are talking about two different matters of "intent".
I can easily see where a robber turned murderer would jump at the chance to claim the shooting was accidental, that they didn't intend to actually shoot their victim. If the court buys that, they face manslaughter, rather than murder charges.
On the other hand, they clearly DID intend robbery and included the threat of deadly force.
Personally, I think those jurors ought to conduct an experiment. Have them point a gun at a CA cop, and see what the cop thinks their intent is....
(of course I mean for them to ASK a cop(s), not actually do it, but if they did actually do it, I would not shed tears over their stupidity - I'm just mean and cold hearted that way
.) Face it, in this world, there are only two possible categories a shooting can be put in, either accidental, or deliberate. There is no third option.
So, if its not one, it HAS to be the other. WHY you pulled the trigger is a much variable thing, but that is a different matter. One either pulls the trigger intentionally or one does not.
In a self defense situation, if you have to shoot,you pull the trigger intending to do so.
If the situation is anything else, then it's not self defense.
Frank Ettin
Administrator
You don't prove intent. You can't prove intent because you can't read the mind of another person. What you might need to convincingly show it that the observed acts of another person would cause a reasonable and prudent person to conclude that person had a particular intent. One's intent must be inferred from his manifest conduct.Metal god said:
So if you approach me with a snarl on your face and holding an upraised crowbar, I can argue that a reasonable and prudent person would conclude that you intended to hit me with the crowbar.
I'm not going to try to speculate on why or what a particular jury might have thought in a particular case -- especially without documentation. We just can't know enough.Metal god said:
But this can be an issue if you have to plead self defense. It's not just a California thing. Harold Fish had a problem along those lines in Arizona.
Be that as it may, the bottom line is that in our world one can not expect to commit violence against another person without consequences. And if you're going to try to justify your intentionally hurting or killing someone because you decided that you need to do that to defend yourself, you need to expect that a reasonable person would have believed that the alleged assailant was going to hurt you, so you had to hurt him first.Metal god said:
None of that is new, and none of that is limited to one State. It's the way things have been in Western Civilization for a long time. And so strong is our society antipathy to intentionally hurting someone that no one needs to just take your word for it that you needed to defend yourself.
You will need to explain what the alleged assailant was doing, and you would need to explain why and how a reasonable and prudent person would have inferred from the actions of the alleged assailant that the alleged assailant intended to kill or gravely injure an innocent.
leadcounsel
Moderator
Best I can include, briefly, is that you need to understand the valid use of force in your state. There is ample information out there so go find it.
Very generically, you can defend yourself with equivalent levels of force (non-lethal attack warrants a non-lethal defense; lethal attack warrants a lethal response, etc.). In theory and practice, you can move your legal status defender to attacker if you "over-respond." For instance, if you're at the grocery store and an old lady hits you with a purse you cannot shoot her; a child throws a stone at you at the park, you cannot stab the child; a car swerves to hit you (lethal force) and misses but keeps driving, you cannot draw and shoot at it (the threat has passed). An attacker comes at you, you stop the attack and the threat is over, and he's laying on the ground incapacitated, you cannot continue to attack him since you are no longer in danger/threatened.
Unless you know what you're doing and why - don't talk to the cops about details. Yes, I know and agree that there are certain things you should say which include statements that you were attacked, you feared for your life, fired only in self defense to stop the threat, point out exonerating evidence, etc. That's all fine and dandy...
Problem is, unsophisticated people tend to talk too much and dig their grave in doing so. Lulled into a sense of justification and are soon granting searches, making really dumb statements, etc. I've seen it plenty of times. There is psychological research out there that shows that people (esp those with no economic means) tend to think they can be their own mechanic, doctor, accountant, and lawyer... the latter example is where they want to talk to the cops, talk their way out of allegations, defend themselves, etc. That's just not how it works.
So, understand the law, act within it, have a plan and know precisely what to say, have a lawyer on retainer now and know when to lawyer up.
And to answer the OP, if you do a mag dump on a body on the floor to "finish him off" you're likely going to prison since the act has clearly moved from self defense to homicide.
Very generically, you can defend yourself with equivalent levels of force (non-lethal attack warrants a non-lethal defense; lethal attack warrants a lethal response, etc.). In theory and practice, you can move your legal status defender to attacker if you "over-respond." For instance, if you're at the grocery store and an old lady hits you with a purse you cannot shoot her; a child throws a stone at you at the park, you cannot stab the child; a car swerves to hit you (lethal force) and misses but keeps driving, you cannot draw and shoot at it (the threat has passed). An attacker comes at you, you stop the attack and the threat is over, and he's laying on the ground incapacitated, you cannot continue to attack him since you are no longer in danger/threatened.
Unless you know what you're doing and why - don't talk to the cops about details. Yes, I know and agree that there are certain things you should say which include statements that you were attacked, you feared for your life, fired only in self defense to stop the threat, point out exonerating evidence, etc. That's all fine and dandy...
Problem is, unsophisticated people tend to talk too much and dig their grave in doing so. Lulled into a sense of justification and are soon granting searches, making really dumb statements, etc. I've seen it plenty of times. There is psychological research out there that shows that people (esp those with no economic means) tend to think they can be their own mechanic, doctor, accountant, and lawyer... the latter example is where they want to talk to the cops, talk their way out of allegations, defend themselves, etc. That's just not how it works.
So, understand the law, act within it, have a plan and know precisely what to say, have a lawyer on retainer now and know when to lawyer up.
And to answer the OP, if you do a mag dump on a body on the floor to "finish him off" you're likely going to prison since the act has clearly moved from self defense to homicide.
As a defender, you don't have to prove intent, you just have to show that there's sufficient evidence that a reasonable person would assume that they are in imminent/immediate danger of being killed or seriously injured.
In some cases, the law lays out a set of circumstances and says that if those circumstances are met, you can assume you're in danger of serious injury or death.
If you can prove that a person has means, motive and opportunity to kill you or cause you serious injury that's a good way to establish that you acted reasonably (legally) by using deadly force in your defense.
Means: Is able to cause serious injury or death. Perhaps with a weapon or maybe due to an obvious and significant disparity in physical strength.
Motive: Has some reason to seriously injure or kill you. e.g. Wants something you have and has made it clear that he will use deadly force to make you give it up.
Opportunity: Can actually make it happen right now. Someone who calls you on the phone from another state doesn't have opportunity even if they have a knife and the strong desire to kill you. The knife won't reach from there.
I agree 100% I just don't understand why some don't see it that way .
So I've been thinking about this . I think I may understand where my confusion came from . I'm really not confused on the general issue but more to the specifics . As the victim/defender you don't need to prove intent . How ever in a court of law the DA does ?? Is that right ? Is that why you can have opposing views on the incident and them both be reasonably accurate ? I as the victim believed the bad guy intended to inflict great bodily harm so I was with in my right to repel with force . How ever The DA to convict would need to prove the bad guy intended to kill or gravely injure ???? Assuming the charge was murder or attempted murder ?
You don't have to "PROVE" it beyond a shadow of a doubt, but a successful defense will need to at least demonstrate that your assumption of the attacker's intent was reasonable.
Close. It's necessary that the jury feels that your belief was reasonable when they put themselves in your shoes.
For example, the honestly held belief that any and all red-haired persons wearing green shirts intend to kill you won't exonerate you if you shoot a redhead with a green shirt. The jury won't feel that is a reasonable thing to believe.
If you shoot a small, weak, wheelchair-bound, person armed with a tack hammer who is legitimately doing his/her level best to kill you, the jury probably won't feel that your belief that deadly force was necessary was reasonable. They will likely believe that you could have easily avoided the attack without resorting to deadly force.
Depends on what charge he's trying to support. Some charges require intent to be proved, some don't.
If the DA is trying to prove premeditated murder then intent is certainly part of the equation. That's hard and that is why it's not uncommon to see lesser charges brought even when there may not be a lot of doubt that the murder was premeditated.
leadcounsel
Moderator
Disclaimer: I am a former prosecutor and current defense trial lawyer. I have defended clients raising self defense. I have observed and studied cases where self defense is raised, beginning when I was about 20 years old when I completed an internship in the Philadelphia District Attorney's office in the homicide unit. I've worked in extremely busy prosecution and defense offices for much of my legal career, including a lot of assault, aggravated assault, and homicide cases. I've been studying, observing, and trying these types of cases now for over 20 years, & am an licensed in 3 jurisdictions.
Regarding the conversation of proving the intent of the attacker, here's how this plays out in a criminal investigation and really if it goes to trial.
The prosecutor will review an investigation and discuss it with the detectives, as to who was the aggressor, was this self-defense or homicide, and make a determination based on probable cause whether it was homicide that would not likely be self-defense, or go beyond self-defense to homicide (e.g. shooting someone once they are no longer a threat). This glosses over the grand jury which varies dramatically across jurisdictions - in essence it's a panel or individual that does a probable cause or preponderance of evidence determination (these are largely one-sided reviews of just enough evidence by the prosecution to head to trial and are not really very balanced).
If it goes to trial, the defendant is charged with XYZ crime such as homicide (1st, 2nd murder, negligent manslaughter, whatever is in the jurisdiction). The prosecution will put on evidence to convince the jury beyond a reasonable doubt that the defendant killed the victim. The defendant can sit silently and hope that the evidence is not sufficient, and that is the defendant's 5th and 6th amendment rights at play. He may also try to raise self defense, but that requires some affirmative actions and evidence/witnesses.
The defense may raise an affirmative defense, what we generally consider "self-defense." It may be what we call a "burden shift" for the defense to offer some proof or a preponderance of evidence to be entitled to that instruction to the jury. Or it may be in some jurisdictions that, once raised, the prosecution must overcome the burden. In essence, was the murder/homicide justifiable.
At the end of the trial, what will occur is that the jury (or panel in the military) will hear instructions from the judge on the law of murder and self defense, and make a decision 1) whether the facts demonstrate murder/homicide by the defendant and if so, 2) whether it was justifiable as self defense.
So, a defendant "sort of" must show some evidence of self-defense because that's an affirmative defense and the prosecution is unlikely to show that evidence.
Edited: If it's not obvious, jurisdictions and facts vary and this is extremely generic legal information. Always consult with your lawyer on the facts/laws in your state.
Regarding the conversation of proving the intent of the attacker, here's how this plays out in a criminal investigation and really if it goes to trial.
The prosecutor will review an investigation and discuss it with the detectives, as to who was the aggressor, was this self-defense or homicide, and make a determination based on probable cause whether it was homicide that would not likely be self-defense, or go beyond self-defense to homicide (e.g. shooting someone once they are no longer a threat). This glosses over the grand jury which varies dramatically across jurisdictions - in essence it's a panel or individual that does a probable cause or preponderance of evidence determination (these are largely one-sided reviews of just enough evidence by the prosecution to head to trial and are not really very balanced).
If it goes to trial, the defendant is charged with XYZ crime such as homicide (1st, 2nd murder, negligent manslaughter, whatever is in the jurisdiction). The prosecution will put on evidence to convince the jury beyond a reasonable doubt that the defendant killed the victim. The defendant can sit silently and hope that the evidence is not sufficient, and that is the defendant's 5th and 6th amendment rights at play. He may also try to raise self defense, but that requires some affirmative actions and evidence/witnesses.
The defense may raise an affirmative defense, what we generally consider "self-defense." It may be what we call a "burden shift" for the defense to offer some proof or a preponderance of evidence to be entitled to that instruction to the jury. Or it may be in some jurisdictions that, once raised, the prosecution must overcome the burden. In essence, was the murder/homicide justifiable.
At the end of the trial, what will occur is that the jury (or panel in the military) will hear instructions from the judge on the law of murder and self defense, and make a decision 1) whether the facts demonstrate murder/homicide by the defendant and if so, 2) whether it was justifiable as self defense.
So, a defendant "sort of" must show some evidence of self-defense because that's an affirmative defense and the prosecution is unlikely to show that evidence.
Edited: If it's not obvious, jurisdictions and facts vary and this is extremely generic legal information. Always consult with your lawyer on the facts/laws in your state.
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Referring to the OP's post, emptying a magazine of 15 rounds into someone who fell on the floor after the first one or two rounds is just plain gross. I really don't know how else to say it? If someone is shot, on the floor and is no longer trying to hurt anyone STOP SHOOTING!!! No law, legal defense or jury is going to give anyone a license to execute (or mutilate!) a defenseless human.
VERY dependent on the situation.
DOWN is not automatically OUT of the fight. Much of the time, yes, it is, and that's the way we talk about it in general conversation, BUT as long as the attacker has access to / control of a weapon, they are still a THREAT.
there are standing jokes about it, most with stereotypes, but actually based on real incidents, and how we perceive them.
Classic comedy skit, bad guy is shot down, defender gives gun to wife/clerk, "cover him, if he moves, shoot him! I'm calling the cops" Husband/storemanager goes for a phone, there is a series of shots (slightly spaced) he rushes back, is met with "he moved! so I shot him, and he moved again, so I...."
Another stereotypical image is the cops closely questioning the guy for emptying the gun, while a distraught woman can be standing over the body still pulling the trigger on an empty gun when the cops get there, and they give her an automatic "pass". Often includes a line like "sorry Mrs Smith, we were fine with it being self defense, UNTIL you emptied the SECOND CLIP!...."
A tank with a broken tread doesn't move well, but the guns still shoot.
An attacker can go down, and still be a threat. "Reasonable" to me means when the attacker goes down, you check fire, and assess. You MAY have to shoot again, you may not.
At this point, it is VERY, very dependent on the exact situation, and self defense can turn into assault or murder with a single unjustified shot.
And remember, its the "reasonable" jurors who decide justification, well AFTER the fact. They may decide that you should have run away, rather than shoot, or they may decide something else. They have limitless time to consider decisions you had to make in fractions of a second.
Basically if the bad guy is down, does not visibly have a (ranged) weapon, cannot chase you, he's no longer an immediate threat, and you will NOT be approved putting more rounds in him.
Despite the very human, and understandable desire to keep shooting, and end the threat, permanently, the law does NOT allow you to do that, and still claim self defense. Remember that what something IS, and what it can be made to look like to a jury can be quite different things.
Suppose you've got your hi cap wonder9, you have to shoot, fire several shots, bad guy goes down, still has gun in his hands, points it at you, and you dump the rest of the mag into his prone body in 1.5seconds, and THEN he drops the gun. Good shoot? maybe.
OR maybe they claim you are lying when you say he pointed the gun at you after already being shot, that you are using that as an excuse for murdering a (now) defenseless man....
Defense is allowed. Vengeance, is not.
Dreaming100Straight
New member
There is a difference between intending to shoot and intending to kill. When stopping an intruder you best be intending to shoot to stop a threat and not intending to kill, even if shot to an area that is most likely to kill just happens to be most likely to end the threat.