Home Invasion Aftermath Scenario Question?

A criminal investigator will have no legitimate reason to sieze other property including firearms, unless he has a reason to believe they constitute an ongoing threat or are a danger to others, or the well being of the subject.
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I posted this in it's own thread, but based on what is being said in here I thought it applied here too. It seems that the law doesn't care who was the good guy and who was the bad guy sometimes...

http://www.foxnews.com/us/2012/02/2...ge-after-firing-gun-into-ground-near-burglar/
 
Sponge14 said:
... It seems that the law doesn't care who was the good guy and who was the bad guy sometimes...
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The law does indeed care -- once everything is finally sorted out. And someone who fires a gun if not appropriate or justified might just not be entirely a "good guy", if doing so is illegal.
 
I don't want to add noise to the information here, but I do feel that one perspective has been overlooked. If your home is being invaded and you can fort up, being forted up and keeping 911 on the line seems to have worked in a few recent cases. This is especially true for the mother who held up in her bedroom and had 911 on the phone when the invader came crashing in causing her to kill him with the shotgun she was holding (this has been covered on the national news and many posts on this site and others). The other was is the report (a number of threads up from this one but in the Tactics forum) of the mother who had to fumble around looking for a weapon that she knew was around somewhere while her son, hiding in a closet, called 911 and got repeatedly disconnected. In either case, only a DA who was politically suicidal would have prosecuted. All this supposes that you can fort up in some room and maintain contact of some sort with 911.
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This was the advice on an NRA video. Hold up if possible, inform 911 of your situation, location, and that you are threatened. Keeping 911 on the line while you loudly shout you have the police on the line, have a firearm, and will defend yourself were recommended. The view is that you now have evidence supporting your actions.
 
Two things
"and of course all weapons used in the fight will be conficated by the police as evidence, and may or may not ever be returned to the citizen."

seriously I may not get my gun back? Im not mocking the post, just had never thought of that possibility, kinda scary. Def need to take my sig 1911 off the nightstand.

As for the posters posting what you should say, I would hope you don't use whatever you typed as your response, for if a DA gets a hold of the 911 tape and what you type here and its verbatim, theyll say its either a boiler plate statement or youve put a lot of thought into shooting someone in your own home. Which i see nothing wrong with running scenarios in your mind but the good ol legal system sure can mangle words. Remember clinton and "is".....
 
I live I central MS and we are pretty PRO firearms around here and there wasa case about 2 years ago in the neighborhood behind my old John where a home owner wok up to a man coming through a window an another breaking into his vehicle... He shot the man coming through the window, stepped out the front door as perp #2 was getting out of his vehicle and shot him also.... The outcome was when the police showed up they asked what happened and apprehended the 2 men... I never found out if either thieves died but the man was never charged and no guns were confiscated... We have a pretty legit castle law in my state and I have also been told personally by a LEO that if second I trying to force ably enter your home just step back wait for them to get in and drop them.. Quote " we don't mind cleaning up the mess" unquote was what is was told directly when I had someone kicking my apartment door one evening.... Again this is in what the rest of the country calls backward and hillbilly but the law around here really favors innocent people that defend what's thierS..
 
As far as the basics, from my experience, people seem to be confused on the right to remain silent. The Supreme Court has stated that, "when Miranda warnings are properly given, a person wishing to invoke the right to remain silent must do so unambiguously."

By unambiguously, it means, according to my memory and from legal updates, that a person must state that they wish to remain silent and want to speak with a lawyer. Being silent, in and of itself isnt enough to invoke your right to remain silent. I know others say do not say anything to police, but you should at the very least state this.

True self defense situations are rare, but for the most part there is no reason not to identify who you are, or give your photo ID or drivers license, that you ARE the victim, and that otherwise you are invoking your right to remain silent until you speak with your lawyer.

Refusing to say anything at all may give you some issues in the long run.
 
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RamItOne said:
Two things
"and of course all weapons used in the fight will be conficated by the police as evidence, and may or may not ever be returned to the citizen."

seriously I may not get my gun back? Im not mocking the post, just had never thought of that possibility, kinda scary. Def need to take my sig 1911 off the nightstand.
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Seriously, you may not get your gun back. It will depend on how the legal machinery works. At the very least, your gun will be seized as evidence. It will be examined, checked for finger prints, very likely test fired and bullets compared to those removed from the deceased or wounded. If it's a clean defensive shooting, the court may order your release along with all property confiscated. But with some metro agencies, actually getting your gun back will be made as time-consuming, expensive and difficult as possible.

If you are charged and the prosecution's initial case falls apart in pre-trial motions, they may retain the gun while dithering over whether to bring "other charges". In that case, the gun is still on an evidence-hold. Prosecutors may not notify you that they've elected not to prosecute and after a year or two, the gun destroyed.

As for the posters posting what you should say, I would hope you don't use whatever you typed as your response, for if a DA gets a hold of the 911 tape and what you type here and its verbatim, theyll say its either a boiler plate statement or youve put a lot of thought into shooting someone in your own home. Which i see nothing wrong with running scenarios in your mind but the good ol legal system sure can mangle words. Remember clinton and "is".....
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I might hope a DA would be so foolish. My attorney would shred the prosecutor's hide and turn it into gerbil bedding.

He would be lambasting the prosecutor's attempt at denying the defendant the right to seek and discuss the best possible legal advice with others, determine a correct and legal course of action to ensure his rights were protected and to use the advice he received. If said advice relies on a generic statement to avoid unintentional admissions or omissions during a period of high-stress, he is well within his rights to use such a statement under the 5th Amendment.

Moreover, he'd point out that the prosecutor's insistence that the defendant "putting a lot of thought [or training] into shooting someone in his home" somehow automatically implies some kind of mens rea, borders on prosecutorial misconduct. Using such logic, the prosecutor would indict airline pilots who survive a crash, NASA personnel for the Challenger and Discovery disasters and automotive safety engineers for any fatality.

At the same time, using the prosecutor's logic in reverse; had the defendant had informed officers that he owned a gun but never thought about using it in the home, this same prosecutor would crucify the defendant as irresponsible, grossly negligent and failing to perform the slightest due diligence with regard to keeping a firearm. He wants the jury to convict not because the defendant erred legally, but because he was too diligent to fall into any legal pitfalls.

A good defense attorney would turn the DA's criticism into a positive advantage by showing the court or jury that the defendant sought advice and/or training to remain within the law. He would argue that taking a human life is an abnormal, high-stress event for the defendant and he was legally advised to use a memorized generic ("boilerplate") statement as the best method to avoid legal quibbling over the exact intent and meaning of a single word or statement.

Rather than worry about the above, it's more important to worry about public statements on forums, emails and in statements to neighbors that anyone breaking in "is gonna leave feet first in a body bag" or "ain't leaving with a pulse". Those kinds of statements are far more damning to a person's attitude than attacking an initial statement.
 
The question of what to do has been covered in detail in many post.

Since the Miranda warning has been mentioned.

Cops don't have to issue the warning until you are in custody. Basically, until they tell you you're underest or prevent you from leaving anything you say is fair game.

Spats can give you an excellent explanation.
 
I won't get my gun back? Really?
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Think about this. You just used a gun to save your life or that of another innocent person. Maybe the gun cost you $1,750 because it's a gee whiz custom special. You may not ever see it again because it's been taken into evidence.

So what? Maybe it was the finer features of this precision instrument that saved your life, enabling you to shoot it well enough to out perform your attacker. That's why you bought it, right?

If so, it has served its purpose in the infinite complexity of the cosmos. Your legal fees are going to be much more significant than the gun. You'll probably have to sell it to pay for the lawyer anyway.

It's a detail. A trinket. You are alive and able to buy another one. Let it go.
 
For those thinking you will not get the gun back you are very, very wrong. In fact most cases you would get it back withing 24 hours of a grand jury deeming justifiable use of force. They have to by law regardless of the state.

I personaly know someone that shot and killed an armed intruder. The day after he was cleared by the grand jury he drove to the county sherriff's office, and withing 30 minutes he was driving away with his gun. He did not get the remaining 5 rounds of ammo that were in it the night it was turned over to the LEO's.
 
Your firearm is your private property. As long as you have the legal right to posses it... The police can NOT take it permenantly. However as long as it holds some criminal evidentiary value it may be held. A person who is no true billed, or cleared by a coronors jury should get his property back forthwith. Local jurisdictions may have some rules allowing them to hold on to the property for a period of time... In one jurisdiction the firearm may end up being destroyed before it can be returned. That same jurisdiction will usually remove any permission to posses the firearm (Revoke the permit) A person could make a civil case I guess.

While IMO you will probably get the gun back, but it may be marked by the vouchering officer, and may not have been stored well or taken care of.
 
Since the Miranda warning has been mentioned.

Cops don't have to issue the warning until you are in custody. Basically, until they tell you you're under[arr]est or prevent you from leaving anything you say is fair game.
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Unless the rules have changed (yet again) recently, that's not quite true.
The have to issue the Miranda warning before they interrogate your or ask you questions . Typically the warning is given at the time of arrest or shortly thereafter. However, if the cops don't ask you questions, they don't need to recite the Miranda warning. You can be cuffed, transported and booked into jail before you hear the warning.

If they haven't issued the Miranda warning and haven't asked questions, if you make a voluntary utterance about the crime, it will be admissible.
 
One Big Mess

In all probability, all cartridge firing firearms at the scene will be taken as evidence until the ballistics boys identify which firearms were used or discharged. As an investigator, you don't want to be flayed on the witness stand for assuming that only the gun in the home owner's actual possession was used.

Another point to remember is that once you have defeated the intruders, you are now responsible for them and you may not permit further harm to be inflicted upon them by family members. It is wise to call 911 and advise them that medical assistance is needed. That 911 tape will be entered as evidence so choose your words carefully and do what you can to prevent the wounded intruder from dying if you can safely do so.
 
JoneeMan: What is deemed reasonable largely depends on people in your area. Police in your area may or may not have a positive attitude towards civilian gun overship. The same goes for District or County Attorneys, Sheriffs, and Judges, except they're elected officials, and they will likely side with the popular opinion of the people around you. Politics should not be underestimated in this regard.
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While this may be true regarding the attitude toward civilian gun ownership, my opinion is (and I have 2 brothers in law enforecement, one deceased), any law enforcement officer who is opposed to civilian gun ownership is in my opinon not a legitimate law enforcement officer. I believe that part of their duty as a police officer is to protect and defend the Constitution of the United States. If he does not support the right to keep and bear arms then
it is my opinion that person should never have been allowed to wear a badge in the first place. If I knew of such a one, I would attempt to garner support to have them removed. But then I don't know of any, and I live in Texas.
 
TexasJustice7 said:
...my opinion is ..., any law enforcement officer who is opposed to civilian gun ownership is in my opinon not a legitimate law enforcement officer. I believe that part of their duty as a police officer is to protect and defend the Constitution...
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That's very nice. But the topic of this thread is dealing with a difficult situation in real life. So one's notions about how things should be in an ideal world are off topic.
 
I learned of a different twist on a local case today from a friend in the local PD.

A man defended his home when a young gang banger kicked in his front door, and came into the home. The home owner was in the kitchen cooking dinner when he heard the noise of the door being kicked in. He had his CCW on his person. Upon him coming into the living room another intruder with the mentioned gangbange came into the door. Both turned and charged the home owner. The homeowner then fired 2 shots from his .38 spcl. snubnosed revolver. One intruder was hit the shoulder, and the second round grazed him under the left arm. Both suspects fled on foot.

The homeowner called 911 imediately afterwards. He told the responding officers he was dead sure he hit one. There was a bit of a blood trail in his driveway. The police never took his gun away. He had a cabinet full of vintage revolvers, and shot guns. None were taken into evidence.

A few minutes later the ER staff of the local hospital contacted the police there was a young male being treaded for GSW.

The bullet in the gangbanger's shoulder was recovered. The homeonwner turned his gun into the local PD for then to send in for ballistic testing. After it was tested it was photographed and returned to the homeowner.

Results were the fired bullet in gangbanger's shoulder matched the ones from the ballistic testing. Gangbanger is county awaiting trial. The acomplice was captured two days ago. Acomplice is being arraigned tomorrow.
 
Is there a resource available for 2nd-amendment-inclined lawyers in our particular areas?
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I'd be more interested in a lawyer who regularly defends those charged with or detained during the investigation of criminal offenses.

That's what we're really talking about here; preparation for the possibility that you may be charged with a crime when you believe you were acting in self defense.

If you've ever used a lawyer for real estate or whatever you can use them as a starting point. Ask them for a referral to someone who handles criminal cases. Lawyers network just like the rest of us.
 
lawnboy said:
Is there a resource available for 2nd-amendment-inclined lawyers in our particular areas?
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I'd be more interested in a lawyer who regularly defends those charged with or detained during the investigation of criminal offenses...
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And actually, you're looking for a lawyer with some even more specialized experience. Defending a case based on a plea of self defense is fundamentally different from defending the usual criminal case. So you will really want a criminal defense lawyer with some experience putting on a self defense case.

In an ordinary criminal prosecution, the defendant doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

For example, if the crime the defendant is charged with is manslaughter, the prosecution must prove that the defendant were there, fired the gun (if that was the weapon used), intended to fire the gun (or was reckless), and the guy the defendant shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that he wasn't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

But if you are going to be claiming self defense, you will wind up admitting all the elements of the crime. You will admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified. So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense.

Most criminal defense lawyer, including some of the top ones and generally including public defenders, have had little or no experience handling a self defense case. It's such a different animal from the usual "I didn't do it and you can't prove I did" defense in most criminal cases. If you are claiming self defense, you will want a lawyer with experience handling self defense cases.
 
Skadoosh the story got about two paragraphs in the back section of the small local paper. The part that the home owner managed to hit him made it in. As well as the fact that perp #1 was caught at the hospital. Other than that the only other media coverage was a pargraph in the back of the paper the other day when perp #2 was caught, taken to jail, and charged. Oh and what his bail was set at. (Lets just say unless he has very wealthy family he is staying in jail till his court date.)

The home owner comes out the range that I am a member of usualy every couple of months and shoots several guns over the space of a few hours.
 
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