San Francisco Homeowner Sued by Home Invader

[zukiphile]

Wow!!

Doesn't all that potentially put someone in a low income bracket at an immediate disadvantage however strong their case might be?

Not really. Having modest resources may put an individual at a disadvantage in many ways, but a general rule that people pay their own attorney's fees does not put someone with few resources to a disadvantage in any peculiar way.

A real danger in a "loser pays" scenario is that the parties overspend on litigation because the greatest financial risk is associated with spending one dollar less than might have won the case. This puts an individual with few resources at even greater risk. He is faced with three terrible choices: 1) avoid all litigation costs by settling the claim before suit is filed, 2) spend only what he can afford on litigation and hope that the strength of his case means that being wildly outspent does not put him at a disadvantage, or 3) borrow vast resources to fund the best litigation he can buy and hope that he wins, then hope the opposing party has assets sufficient to pay off their own legal bills and his legal bill.

Attorneys fees provisions are very often of little consequence for a potential plaintiff. They really matter where the suit is against a defendant who has resources to pay a very large judgment and who is not disposed to hiding resources.

 

[rebs]

Wow!!

Doesn't all that potentially put someone in a low income bracket at an immediate disadvantage however strong their case might be?

Unless the lawyer takes the case based on his getting about 1/3 of the settlement, you will need money up front. If your low income and no available cash you will have a hard time finding a lawyer.

On the other side if you are defending a law suit you will need money up front. No money no lawyer unless you have a counter suit and the lawyer agrees to take about 1/3 of that money.

 

[weblance]

The INSTANT the threat ends, you are no longer justified to shoot. That means if they fall down, or turn their back to run, even if they don't run.

Falling down after being shot at, is VERY different than turning their back to run, even if they dont run. Im not giving a perp the chance to shoot me after hes fallen down, whether he is injured, or not. Falling down after being shot at DOES NOT mean the threat has ended.

 

[44 AMP]

Falling down after being shot at DOES NOT mean the threat has ended.

Oh, you're absolutely right, it means the situation has changed, and the threat MAY be ended, or it may not. Another situation was a diner robbery where the bad guy kept shooting back over his shoulder as he ran out.

Every situation has to be looked at as an individual, the only hard and fast rule is that the jury will be instructed to rely on what a reasonable person would consider the threat to be.

 

[Frank Ettin]

...the only hard and fast rule is that the jury will be instructed to rely on what a reasonable person would consider the threat to be.

And sometimes the jury won't buy the claim that the guy who was down continued to be a threat. That happened in the Ersland case referred to in post 12.

 

[4V50 Gary]

Unless you're in a state that grants civil immunity for self defense in the home...

this case is proof that even if there are no criminal charges, civil charges can always follow. The entire purpose may have been to seek an out of court settlement.

 

[MurBob]

I've heard similar ridiculous things, up to and including "if you shoot them outside, drag them inside"...

That kind of fine advice, if followed, could get you a murder conviction!

LOL.. drag them inside.. I've heard that too.. as if forensic evidence wouldn't give you away.. Really dumb advice.. agreed.

The INSTANT the threat ends, you are no longer justified to shoot. That means if they fall down, or turn their back to run, even if they don't run.

Ah.. This is closer to what I was asking about.. more below..

Check the threads, check the news, find the stories how a shopkeeper/clerk justifiably uses a gun defending themselves, and then faces charges, gets convicted and goes to jail because they shot at the fleeing criminal, or worse yet, chased them out into the street and fired.

Yes.. this one is easy.. no threat = no more defensive actions. Why some people don't understand this is beyond me.. but I do.

If a bad guy dies as a result of the justified use of deadly force it's a sad thing, but defender did nothing wrong. If the defender "makes sure they die", THAT is a COMPLETELY DIFFERENT MATTER, and the law generally calls it murder,

I agree with everything you said.. The thing is, is it better to shoot once and see if it has an affect and stops the guy? Or is it better to shoot 5 or 6 times in rapid succession and then see if it has an affect?

My thoughts on this go like this.. (tell me if I'm mistaken)..
If a bad guy enters my home and I get my gun because I fear for my life, I have a better chance of survival if my first defensive action is the last defensive action required. IE: If I'm going to pull the trigger using my handgun, I'm going to empty half of the clip, or more.. in rapid fire.. then check to see if its all clear.

Is that sound advice or is there a flaw in there?

 

[SHR970]

Depends on the laws of your state first.

Depends on your statements to the investigators second.

Depends on DA's office and what THEY think.

If Grand Jury involved.. depends on THEIR interpretation of what reasonable force is...and also see #1.

If all else fails.. depends on what a JURY of your "Peers" thinks was reasonable using 20/20 hindsight, monday morning quarterbacking, and their personal, religious, and political/socialogical bend.

 

[44 AMP]

is it better to shoot once and see if it has an affect and stops the guy? Or is it better to shoot 5 or 6 times in rapid succession and then see if it has an affect?

Lets be clear, this is a question about TACTICS, not about if you are justified in shooting. This question applies only AFTER you have made the decision to shoot in defense of your life.

And there is no right answer. Different schools of thought are argued constantly. Single shot and assess, double tap and assess, shoot until slide lock, and other ideas are all out there, and all correct for some cases and incorrect for others.

Complicating matters is the speed with which a competent shooter can get off 5-6shots from a DA or semi auto. What to you might seem a precision application of high speed firepower could be seen a spray and pray by someone else.

We're all deadeye dick who never misses at our keyboards and some of us are even that good on the range. People that good in an actual shooting are extremely rare. A six shot center of mass "burst" could be 2 misses, 3 flesh wounds and one round that puts the attacker out of the fight. Or is could be something else entirely. And it might be seen as something else again, AFTER the fact.

Shoot until you believe the immediate threat to your life is ended. Don't shoot after that point, even if it means the bad guy gets away. As soon as they stop attacking, you must stop defending with deadly force. Catching them and bringing them to justice is a matter for the police, not you, or I.

 

[MurBob]

We're all deadeye dick who never misses at our keyboards

+1 on that..

 

[62coltnavy]

California does not have a Castle Doctrine per se; instead it has a presumption that an occupant of a residence is presumed to be acting in self defense when someone forcibly" enters. Hence criminal charges are quite rare. The only reason that his guy had large legal bills is that he was merely a guest at his in-laws home, and the homeowners carrier took the position that he was not an "insured" under the terms of its policy. And maybe he didn't have his own homeowner's or renter's insurance that would have picked it up.

Ersland was a special circumstance, and his conviction was no surprise. Two robbers (one unarmed) entered his pharmacy. He shot one (the unarmed one who couldn't even see out of his mask), and then chased the other out of the store and down the street, until his revolver was empty. He returned to the store, retrieved a second revolver, and stood over the unconscious body of the robber he'd shot and shot him at point blank range. There being no immediate threat of physical harm or death, he was unable to claim self defense.

 

[ATN082268]

Shoot until you believe the immediate threat to your life is ended.

I agree 100 %. As you pointed out the problem is you may not know which shots hit. And you may not have the luxury to determine, after firing each shot, which shot stopped the threat. I pray I am never in a home invasion scenario but if I am, I can guarantee that I will not risk my life in order to help preserve the life of someone threatening my/my family's life.

 

[Justice06RR]

The thing is, is it better to shoot once and see if it has an affect and stops the guy? Or is it better to shoot 5 or 6 times in rapid succession and then see if it has an affect?

The general advice is to shoot until the threat stops.

Each situation is different, so it may take 1 shot or more to stop the threat.

 

[Gary L. Griffiths]

I always taught, "Shoot to stop; shoot until it stops!" Maximizes your safety, albeit at the expense of opening yourself up to liability if your use of force is deemed "excessive." It also makes it more likely that you'll fire a round or even two into the perp's back as (s)he falls before you realize the threat is over!

No easy answer, but I always default to the "tried by twelve" mode.

 

[g.willikers]

It's a shame that this kind of discussion about self defense is even necessary.
In a perfectly sane world, anyone who initiates the kind of force necessary to commit a home invasion should have forfeit all their rights to be treated with civilized behavior.
No different than they had in mind for their intended victims.
Guess when ya' live in La-La land, it should be expected to have such discussions, though.
And a sad day for the prevalence of reason and justice.

 

[Bartholomew Roberts]

The general advice is to shoot until the threat stops.

But when has the threat stopped? During a Simunitions course that replicated a real-life robbery, I once got a bit carried away. I shot the robber and he fell down but he was still moving (which come to think of it hasn't been all that unusual for animals I've killed either). Reasoning that he had a revolver and could shoot me from his back just as easy as he could standing, I poured rounds into him until the instructor called an end to the scenario (which all happened in a lot shorter space than it sounds).

As a lawyer, I'd have hated to answer for that forensic evidence at trial - something like 1-2 standing hits and an additional 6 hits as he lay on the ground (including an accidental crotch shot with sims )

 

[44 AMP]

But when has the threat stopped?

This is one of the "eternal" questions, and one of the questions that will be debated in court, if you go to trial.

Everyone will have their own opinion, and the usual standard is what a "rational (or reasonable) person" would think.

GENERALLY, this means that the threat is over when your attacker cannot physically threaten you with a weapon.

The individual details of each situation will be the major determining factor.

Some would consider a bad guy down with a gun in his hands to still be a threat, if he was still conscious and capable of moving his arms.

Same situation with a knife in the bad guy's hand would be a much different thing (unless he tries to throw the knife...)

GENERALLY, fleeing, with no weapon pointed /firing at you isn't seen as an "immediate threat". (no, you cannot legally shoot him in the back, to keep him from coming back later...etc.)

Down and "out" is not an immediate threat, either. Down and awake with no weapon within reach is another "no shoot" from a legal standpoint, again, generally.

The instant the immediate threat is gone (based on what a "reasonable person" would think), also gone is your legal justification for the use of deadly force.

The devil is in the details, and what YOU think is reasonable might not be what the jury thinks, so it is a good idea to be familiar with what a "reasonable person" would think. And do your best to act accordingly, while preserving life and limb.

 

[43mauser]

one can read till the cow bones walk home on there own.
and you will still get a headache.

best way is to start with a strong perimeter, making it were the bg has to work at it to get in. never trust in "stock" doors or there jambs.

have way over priced insurance.

lawyer on speed dial.
and NEVER say anything to the police. except

"i was in fear of my life, and i want to speak to my lawyer".

then shut your trap.


.

 

[Skans]

The home invader lost this case as well; but the home owner racked up considerable legal fees in defending the case (another forum mentioned $85,000).

I'm not all that familiar with California law, but in some other states, there is a chance that where a plaintiff's lawfirm brings an unjustified case against someone and looses, and if the defense lawyer sets it up correctly, the loosing firm may be responsible for paying attorney's fees to the winner.

 

[zincwarrior]

Quote:
The home invader lost this case as well; but the home owner racked up considerable legal fees in defending the case (another forum mentioned $85,000).
I'm not all that familiar with California law, but in some other states, there is a chance that where a plaintiff's lawfirm brings an unjustified case against someone and looses, and if the defense lawyer sets it up correctly, the loosing firm may be responsible for paying attorney's fees to the winner.

That never happens in the real world.