Posted by Winchester_73: I stated several times "...if the home defender/defendant followed all laws, acted in SD..." and you apparently dismiss that premise.
Absolutely not.
The problem is that the investigators, the charging authority, and the triers of fact have to determine both guilt and civil liability on the basis of just what pieces of evidence can be gathered after the fact. They do not have a complete sound stage cinematic record, shot from all angles and recording every relevant fact, that can be replayed until everything is known and thoroughly understood and agreed upon. Thus, even if the defender
did act entirely within the law, that will have to be determined on the basis of incomplete piecemeal evidence.
That's the nature of SD investigations and trials.
My question to you is how could there be "preponderance of evidence" in favor of the perp if the home owner acted within the law and everything supported that?
If "everything supported that", no problem.
How often do you think it turns out that way? "Everything" is very seldom available after the fact, and what is available may be contradictory.
If the home owner does something questionable, of course the perp could have recourse.
Or if enough of what evidence that could be reconstructed seemed to so indicate.
I am asking about the home owner who did everything right, and every piece of evidence supports their claim.
Again, if all of the evidence sorts the claim, no problem. But therein lies the rub.
I am suggesting that the castle doctrine would protect the defendant if they acted within the specific laws, correct?
It does reduce the evidentiary burden on the defender in a criminal case. See the thread in LC&R.
Nothing you said can I disagree with necessarily, but isn't the perp suing the home owner HIGHLY unlikely?
Depends upon the evidence.
AND isn't it HIGHLY unlikely that it would become a civil suit when the perp has no evidence to support their story? I mean, how could that happen?
It won't happen under those circumstances. A plaintiff will have to have some evidence.
How much evidence does a perp need in this specific scenario, to go make a civil suit of the matter? If I am reading you right, you are saying very little evidence is needed?
A "preponderance of the evidence" is one straw over 50% of the evidence that can be pieced together after the fact.
You can't honestly tell me that civil suits against home owners are common in states with a castle doctrine. Can you cite anything? I am saying if that it was a clear cut case of a SD act protected by the castle doctrine, the perp then will not have enough evidence of a civil suit to take it to trial. In addition, if the home owner followed the laws, what recourse does a criminal have in a state with castle doctrine? If I am wrong about this, I'd like you to explain. You evidently are saying that if the police report, and every piece of evidence supported the SD shooting, but the perp lived, he could find a lawyer who would attempt to get damages in a state with a castle doctrine?
It has been said more than once before, but apparently it has to be reiterated.
The castle doctrine provides a defender with certain presumptions that make a defense in criminal court somewhat easier in a case involving the shooting of someone who has unlawfully (and in some jurisdictions, with force) entered a domicile. Read the post on the subject in LC&R, and re-read Frank Ettin's post #24 in this thread.
The castle doctrine per se does not have anything whatsoever to to do with civil suits.
Some states, such as Florida and Missouri, to name two just examples, do have laws that reduce the likelihood of someone suing a defender after a lawful use of force incident. Most of them provide the defender with a means for asking the court to prevent further civil action. Another thing they do is establish that the standard for reasonable force in a civil case is the same as that in the criminal code. Some of them go further by making a plaintiff who fails in a suit pay for all of the costs, and in some states, even compensate defendant for expenses and lost wages.
Such laws have materially reduced the number of frivolous lawsuits. That was the intent.
Has this happened in a state with castle doctrine, where the home owner/defendant followed all laws?
Yes. Again,
castle doctrine has nothing to do with it.
Let's discuss how things might work. A defender hears someone banging on the door, calls 911, puts on his glasses, grabs his gun and flashlight, and unwisely heads out into the hall to investigate, rather than staying in a safe place.
He is suddenly surprised by a moving shadowy figure who should not be there and, fearing harm himself and to his family, fires. The police arrive.
Did he do everything "right" from a legal perspective, according to the statute and case law, and considering the natural right of self preservation? I should think so.
The wounded man and his accomplice both testify that they were looking for valuables and both testify that they were in the process of trying to leave when the resident shot one of them. No weapons are found. An earwitness who heard shots and screams is
certain the she heard what sounded like "don't shoot"
before the shots rang out; that does
not mean she was right, but it will likely be credible. Perhaps the investigators are unable to say with certainty that the door had in fact been opened forcibly. Perhaps the burglars' account differs from the defender's account in terms of where he was when he fired, and where they were and what direction they were going.
Things would not look really good for the defender, whose justification for using deadly force was provided for in law on the basis of a presumption that is rebuttable, but it is nonetheless quite conceivable that under the castle doctrine (or even without it), either the charging authority will conclude that they would be unlikely to get a conviction, or the triers of fact will decide that there is a reasonable doubt regarding criminal action. They might well decide that the evidence admitted into testimony does
not prove beyond a reasonable doubt that the defender did
not have reason to believe that deadly force had been immediately necessary.
But, with testimony that the wounded man was trying to flee,with testimony that the shots were fired after someone had asked someone else not to shoot, with no weapons having been found, and with some question about the location of the shooter and the victim casting possible doubt on the credibility of the defender, the defender's case may not be supported by a preponderance of the evidence. That would be decided by others.
Once again, I am talking a black and white case ONLY.
...which is so rare that such discussion would be of academic interest only. If
all of the evidence favored the defender, there would be no case, criminal or civil.