Use of deadly force not justifed defending Private Property

[LOOON]

I'm fairly confident in most other states she'd be in the pen right now.

Yep.

Does Oklahoma still have the 'make my day' law?

[Abn1SG50S]

but ultimately, you must ensure that a jury of your peers would put you in the "right" for doing so... and I think the line is somewhere within your own property boundaries......

That jury is the key. If I shoot and possibly kill an intruder in my home, I know that I'm probably going to trial. If I'm tried in Coryell or Bell county Texas, where the majority of the jury pool is active or retired military and ranchers, I'd say that there's a 95% chance that I'd walk out of there a free man. If I were tried in California or the Northeast, I'd probably end up doing hard time.

[VoTrooper99]

Okay. I believe I see where you are coming from. I had always understood that there was an investigation right then and there to determine if it was a good shooting or not.

Now you bring up another question. If a person has had repeated thefts of his property e.g. his car, how does he protect his property if he doesn't lay in a 'bush for the bastards?

I cannot recall the name of the case off the top of my head, but there was an "ambush" case decided by the US Supreme Court that handles exactly this kind of situation.

It goes a little something like this...

A farmer has a barn/shed. This barn has been broken into on a routine basis and the farmer is fed up with having his stuff continually stolen. He decides to do something about it. He rigs a shotgun so that when the barn door is opened it will discharge and shoot the opener point blank. The thief once again goes to break into the barn, the shotgun discharges as planned, and the thief is shot and killed.

The Supreme Court ruled that the laying of a deadly ambush (or one likely to cause serious bodily harm), mechanical or otherwise in the defense of property does not constitute a justifiable homicide. The farmer was convicted of murder.

Tennessee v. Garner (USSC, 1985) dealt with the fleeing felon rule. This was a law in many states that allowed police and citizens to shoot a felon fleeing a scene contemporaneously with the felonious act. In the case, there was a burglary in progress of an unoccupied dwelling. The burglar fled out of the house and attempted to jump a fence. The burglar never displayed a weapon, but did in fact commit burglary, which was a felony.

The cops shot him and he jumped the fence. (he survived) The shooting was justified under the law at the time, so no charges were ever filed. However, the Supreme Court held that three things must be present in order to justify the use of deadly force.

1.) A weapon

2.) A reasonable threat of death or other serious bodily harm to ANYONE.

3.) The ability to follow through on the threat (delivery)

This is all determined according to the "reasonable person" standard. The circumstances are viewed at the instant of the decision to shoot or not to shoot, not monday morning quarterback style. For example, if someone makes a threat to shoot someone and reaches into his coat as if he is drawing a firearm and a person shoots him, then it is a good shoot. It does not matter that the person doing the threatening was actually reaching for his cigarettes in his inside coat pocket. A reasonable person in the moment would assume that he was reaching for a gun. Get it?

Under this holding, shooting a fleeing felon for simply being a fleeing felon is not permissable. However, lets change the scenario a bit. Let us assume that the home being burglarized is occupied and the burglar brandishes a weapon once inside. He then flees the home and as he is jumping the fence he is shot by the cops or any other person lawfully authorized to posess a firearm.

It's a good shoot. The person has a weapon, has threatened to use it, and is now fleeing with the weapon. How are we to believe that he will not attempt to harm someone else with it? We can't therefore a shoot is justifiable.

As to the "Castle" rule, we have it here in RI. In RI, when confronted with a threat to yourself or others, all citizens (save for police) have a duty to make all reasonable efforts to retreat from the situation. Only after they take reasonable efforts to do so can they meet force with force. Trust me, most police are willing to give the law abiding a little wiggle room on this one. The exception to this is if the victim is in his own home. As the saying goes, "a man's home is his castle", and he has no duty to retreat from his own home. Therefore, he can skip the retreat phase and meet the threat with the appropriate level of force as necessary.

If someone breaks into my occupied home at 2am, suffice it to say he's not coming over for dinner. Depending on circumstances (most of the time you are gtg) deadly force is authorized if you are in legitimate fear of harm coming to you or any other occupants of the home. However, if you spook the burglar, and he runs away, you cannot shoot him in the back as he climbs into a getaway car in the street without some other mitigating circumstance.

In any case, it is in everyone's best interest to contact their local PD or state AG/county DA office to get clarification on the rules as they apply to your locality.

[VoTrooper99]

Florida has a good law. They lost the retreat factor last year, I think it was. The state has calmed down a lot.

Yes, in Florida there is no longer a duty to retreat. That is the way things ought to be. However, a threat of deadly force or serious bodily harm still must be present to use deadly force.

[VoTrooper99]

In point of fact, the legal deprecation of the value of private property is a fairly recent trend. Our Founding Fathers were quite adamant in their belief in the sanctity of Private Property. So much so that the deprivation of the individual of his private property was one of the key causes of the Revolution.

The 5th Amendment clearly shows the support of protection of private property:
The 14th Amendment expands these protections to the several States:

The tension is here is that the legitimacy of the state is predicated on the Government holding EXCLUSIVE control of the right of Legally Sanctioned Violence. I disagree with this concept, simply because in the US, we the people are sovereign, and therefor that exclusive monopoly is endowed not only in the state, but in the people severally.

The right to protect one's property can easily be intimated from the words of the Declaration of Independence, and a simple deduction. We state unequivocally that we have the right to "Life, Liberty, and the Persuit of Happpiness." However, if we have the RIGHT to persue happiness, this implies that we have the right to seek to improve our lot in life. We improve our lot in life by the seeking of wealth and property. If we are denied our right to protect our property, we are de facto being denied our right to the pursuit of happiness.

John Locke (along with Thomas Hobbes) was one of the principle shapers of our Founding Father's theoretical framework. Locke's ideas on a "social contract" and property overturn centuries old ideas about the legitimacy of Kings and Governments. (Divine Right). In a nutshell, Locke says that we collectively enter into and agreement among ourselves, to form Governments, in order to protect our lives, liberties and properties. When the Government FAILS to protect these things, we retain unto ourselves the NATURAL Right to protect them ourselves.

Now, Locke has a lot more to say about Property, such as "How can anyone own any thing?" (When a man improves the condition of something, such as land, through his labor, he makes it his property). But the important idea is this: We free men, while agreeing to band together for mutual benefit, do not lose our rights to defend our own when the collective fails.

In the case of the man in California, I believe he was well within his rights. These young hoodlums attempted to deprive him of his property. There was not a Law Enforcement Agent near, nor could one be expected to respond before the hoodlums were gone. He exercised his NATURAL Right to defend his property. The lesson here should be that a free people are an armed people, and that criminals should beware.

You forget a very important detail. The US Constitution is a granting of rights, by the people, to the federal government. The Bill of Rights is an enumerated guarantee of certain rights that are held in particularly high esteem. It is a specific guarantee against GOVERNMENT infringement upon those rights.

It's kind of like when a country music station bans the Dixie Chicks and they cry "1st Ammendment rights". The Chicks don't have a leg to stand on because the station isn't the government. Therefore, the can not play their music for whatever reason, if they so choose.

[VoTrooper99]

One more thing...I would get clarification before I trusted laws (as they are written) in my area regarding deadly force. In RI, we still have a Fleeing Felon law (RIGL 12-7-9) that predates the Tenn. v Garner decision. It has not been updated. However, if I use force in accordance with 12-7-9 without being mindful of updated case law, then I'm up shits creek.

Talk to local authorities to get the law in your area. Best to get it in writing as well. That way you can prove what you were told if you ever need to in a court of law.

[Falschirmjaeger]

You forget a very important detail. The US Constitution is a granting of rights, by the people, to the federal government. The Bill of Rights is an enumerated guarantee of certain rights that are held in particularly high esteem. It is a specific guarantee against GOVERNMENT infringement upon those rights.

Excellent point, but I didn't in fact forget. I was trying to show, by example, the value that the founders placed on private property, without going into the rabbit warren of Constituitional Law vs. Common Law, Criminal vs Tort Law, or Federal vs State Protections. What I was actually trying to point out the shift that has occurred in our value system over time. Even Scalia would be considered a left winger by the standards of 18th Century.

Remember, the Founder's were laying a case for when a people should rebel. The illegal seizure of a man's property was so egregious, that it was grounds for REBELLION when a government does it. The idea that a man should be restrained from killing a thief would have seemed ludicrous to them, and not even worthy of addressing. In point of fact, I think many of the founders would have considered it a civic duty to remove such a pox on society. Kill the miscreant, or have your servants do it.

But great post, and thanks for actually reading by drivel.