The Police Just Left My House, Part II

[TexasJustice7]

rha600: however I live in florida where if someone is standing in my house (my garage is part of my house) and I am not shooting them in the back as he's running away, I have every right to put a really big hole in him.


So no, I would not be committing murder.

I think it makes a great deal of difference in Texas whether the garage is part of the house or not, or a separate building. As far as it being murder,
murder is the taking of innocent life, taking the life of an intruder who has broken into your house, is not murder in Texas nor should it be. In any case it is the legal definitions that count in the state, not the morals ones. I have no garage, no alarm system, if they break in and I am gone I have insurance, and as far as breaking in on me through a deadbolt lock and I don't know them, I will stop the theat with deadly force. Neighbors do have dogs, which do warn me if a stranger approaches.

But if you go outside your house and shoot him and he is unarmed, even in your garage you could be charged.

I have enough trouble staying up on the laws in Texas that it is very hard to
stay up on the laws in other states.

 

[OldMarksman]

Scrubcedar, there is a very big difference between excusing the use if deadly force when there is reason to believe that such force is immediately necessary to defend against a threat of imminent death or serious injury, and permitting the shooting of someone who is "on your property with or without your approval."

The part of Colorado law that addresses the lawful use of deadly force outdoors is very similar to the law in most other states; it is essentially what the common law has held for centuries; there's nothing even relatively new in it.

The so called "make my day" provision greatly reduces the threshold for justification in the even of an unlawful entry into the home (any force, no matter how slight) and reduces the evidentiary burden on the actor. A number of other states have adopted rather similar provisions, but laws do vary among jurisdictions.

As fiddletown and MLeake have pointed out, is not correct to characterize either a decision in a trial court or a decision by a charging authority as "case law". Neither has any precedential value. The next one can always go the other way.

On other thing: the statement "By your reading of the law they should have been charged. They were not!" needs to be addressed. When one has taken a life, there are two ways of characterizing the possible outcomes regarding charges: the actors were charged, or the actors have not been charged. Unless and until there has been a trial and acquittal or a full pardon, charges can always be filed against a living person when a homicide has occurred. Either new evidence or a new District Attorney can bring that about, as can political pressure.

And I would not go so far as to contend that a reasonable person would not believe that an intoxicated person posed an imminent threat of force against the occupants.

 

[TexasJustice7]

FrankEtin: The first thing you're not understanding is that I'm a lawyer and I've done this sort of a thing for a living for more than 30 years. I can read a statute.

I read your comment here, and I would like to ask since you are an experienced attorney with these matters, that if someone is breaking into your house, (in my case I would probably be 10 to 12 feet away from the door), how would one know whether they were drunk, on crack, or some other substance. If they were two or three feet away, I would know they had been drinking alcohol. I have to stop them at the point of entry, as I
also care for a disabled adult child. I have noted in some posts some maintain that a lost drunk does not pose a threat. I doubt the intruder would be close enough for me to determine what the problem was if he is breaking in before I fire to stop the intruder. In face where I live it would be more likely the intruder was high on crack. There is only one door, one way in and one way out. Retreat is not an option.

 

[dayman]

I would think yelling "go away, I have a gun" would effectively separate the lost drunks from the determined criminals.

 

[Double Naught Spy]

Christmas morning I posted that someone had tried to break into my house.

Well, this morning, about 3:30 am, I had someone else attempt to break in. The guy that tried to break in early Christmas morning broke a pane of glass out of the door that leads out to the carport. I'm assuming he was trying to unlock the deadbolt, which is keyed on both sides, so he wasn't successful. I just filled the hole with cardboard as I wasn't sure whether I was going to replace the glass with wood or another pane of glass.

This time the scum punched the cardboard out of the hole.

So it has been 6 months and you have not repaired the door, just leaving cardboard in place of the broken glass? That does make for an inviting target. I would not be surprised of others try as well. The lack of proper maintenance makes it look like you are a soft target.

 

[Ronbert]

Back to the idea of going outside with a holstered gun....

WHY?

You surrender all tactical and legal advantage when you leave the interior of the house.

Besides the unknown number and location of the bad guys the police responding might decide that YOU are the prowler they were called about and you won't like how they treat you until things are sorted out.

Only reason I can see to leave the house is if it's on fire.

 

[MTT TL]

Wow, lots of forays into bad ideas in this thread. Other than not fixing the door and hardening it IMO you did exactly as you should have. Too bad they did not catch the trespassers but you might have scared them off enough to try an easier target next time. Two break-ins in six months? Might consider where you are living too and see if you can afford a nicer place.

I second the suggestion for camera system if you don't move. You can get one with a DVR to cover the main entries for under $400. It will help the police considerably when trying to find the criminals.

 

[Mr Budha]

Good to hear you're okay after both ordeals. I think you definitely did the right thing. Killing someone should be the last resort (assuming your life isn't directly in danger, then it should be the first).

 

[Frank Ettin]

...I would like to ask since you are an experienced attorney with these matters, that if someone is breaking into your house, (in my case I would probably be 10 to 12 feet away from the door), how would one know whether they were drunk, on crack, or some other substance....

There are no pat answers. Everything depends on exactly what happens and how it happens. The challenge for you will be to assess the situation and (1) conclude that your use of lethal force was immediately necessary to defend yourself and other innocents in the house; (2) be able to articulate why; and (3) be able to establish that your use of lethal force satisfied the legal requirements for justification.

...I have noted in some posts some maintain that a lost drunk does not pose a threat....

I don't think that anyone has said exactly that. But a distinction can be made between someone who posses and actual threat and some poor guy who stumbles into the wrong place at the wrong time because he's too drunk to know what he is doing.

In the latter case, if you shoot the guy you may well be able to get off if your mistaken conclusion was nonetheless reasonable that your use of lethal force was necessary, and the legal requirements for justification were still satisfied. You might thus be able to avoid jail. You will not be able to avoid your conscience or the judgments of your friends, neighbors and co-workers.

 

[scrubcedar]

Mr. Ettin, I was trying to say in my last post that I have been and was at the time around attorneys who disagree with your interpretation of this law. Some of them being people who helped draft it. Your quote that you used to help me understand self defense is very convincing and may even match the Colorado law on the matter for other situations I don't know. Notice the language of this Colorado law differs greatly from what you used. "when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant." Prove that it's not reasonable that ANY intruder, even that drunk girl, might use "PHYSICAL FORCE NO MATTER HOW SLIGHT" in open court. I'll ask you with your experience what odds the DA has (provided the intruder was awake at the time)? You're right that I can't immediately put my hands on case law or refute what you said about presumption in self defense. When many lawyers have one opinion and one has another, providing you're not a lawyer who would you believe? All of these guys at the time explained it to me as I explained it to you. Not trying to rile you up again but is it possible they knew Colorado law specifically better than you? The boulder DA obviously didn't want to try it in this particular case and that seems to agree with my points more than it agrees with yours. All that being said let's get real. You didn't identify your target well enough to see it was a harmless drunken coed and you fired anyway?
Surely there was some way to figure that out without endangering yourself or nearly killing her. I don't know, I wasn't there. I do know I'd be second guessing myself for the rest of my life over the incident.

I'm VERY tired of debate and flame wars. I log on to these forums to relax. I yield the field to you sir. In this particular case I would be surprised if I were wrong, but it sounds safe to listen to your advice. I'll stop posting about the law and you can stop being so angry. The reduction in your blood pressure will be my parting gift to you.

 

[Joe_Pike]

Two break-ins in six months? Might consider where you are living too and see if you can afford a nicer place.

Well, I'm not letting some scum run me out of my house. It's a pretty decent neighborhood anyway. My house is 2 houses south of a street that splits a neighborhood into two types. My side is made up of two and three bedroom homes that are small but not dumps by any means. A literal stone's throw from my house to the north are houses that probably start in the $200,000 range (very nice in the town I live in) up to homes that are a $1,000,000+ (really nice homes in the town I live in). So, I really don't think where I live has a lot to do with it.

 

[Bartholomew Roberts]

I think it makes a great deal of difference in Texas whether the garage is part of the house or not, or a separate building. As far as it being murder, murder is the taking of innocent life, taking the life of an intruder who has broken into your house, is not murder in Texas nor should it be.

Texas law allows you to use deadly force when there is a reasonable belief of an immediate threat of death or serious bodily injury. If the person who was shot entered your home forcibly and unlawfully, it will be presumed that you had such a belief, however, presumptions are rebuttable if there is evidence to the contrary.

If you are holding someone at gunpoint, and they say something you don't like, and you shoot them for it, that is murder/manslaughter. There was no immediate threat of death or serious bodily injury. It may be hard to prove; but in that set of facts it is still murder/manslaughter despite the fact that the intruder broke into your home.

And scrubcedar, what I believe Frank Ettin and others are trying to avoid is incidents like this one: http://thefiringline.com/forums/showthread.php?t=492497

People repeat things without a solid understanding of the underlying law (like for example saying you can shoot someone for being on your property without your approval) and you get squirrelly incidents like this one when someone else reads that and believes it to be true.

 

[Frank Ettin]

...I'll stop posting about the law and you can stop being so angry. The reduction in your blood pressure will be my parting gift to you...

It's not a matter of my being angry, and my blood pressure is just fine.

What concerns me, staff here in general, and many of our members like OldMarksman and Bartholomew Roberts is that too many people have extravagant notions about Castle Doctrine/Stand Your Ground laws.

We need to understand that our society frowns on one human intentionally hurting or killing another. However, our laws, going back to the Common Law of England on which our system is based (and even before then in other systems), recognize that there are situations in which an intentional act of extreme violence against another person can be justified -- for example when absolutely necessary to defend an innocent (whether oneself or another) against an otherwise unavoidable threat of being killed or gravely injured by another person's intention act.

Castle Doctrine/Stand Your Ground laws can be an enormous help establishing justification for someone forced by circumstance to use extreme violence against another human. But they are neither licenses to shoot nor "get out of jail free" cards.

As Bartholomew Roberts put it in post 21:

...Is there some kind of contest of the ridiculous that I missed? How are these little pieces of bad legal advice helpful in a Tactics or Training perspective?...

A failure to appreciate the limitations of Castle Doctrine/Stand Your Ground laws is a good way for someone to get himself into what will be a terrible legal situation for him and his family.

 

[johnbt]

"I wasn't sure whether I was going to replace the glass with wood or another pane of glass."

I have glass in all 3 doors as well as the front door sidelights; and double keyed deadbolts. Every time a pane is broken I replace it with Lexan. I used to use Plexiglass. They will scratch easily, but that's about the only downside other than the cost.

John

 

[Aguila Blanca]

Be careful about using Lexan. Yes, it is polycarbonate, and yes it is very impact-resistant. But it has drawbacks:

1. A punk with a Bic lighter will be through Lexan in a nanosecond or three. Even a semi-professional crook knows this by now -- the stuff has been used as "security" glazing for over 30 years and counting.

2. Compared to glass and wood, Lexan has a very high rate of thermal growth. That means, when the temperature goes up the stuff gets larger, and when it gets cold the stuff gets smaller. A LOT bigger, and a LOT smaller. Simply replacing glass with Lexan is not at all secure, because the depth of the overlap of the "stops" on the glass is okay for glass but it's not enough for Lexan -- and especially not if you leave enough clearance for expansion in hot weather. Besides, the dinky wood stops in a wood door aren't strong enough to hold anything against a half-decent whack anyway.

A better use of Lexan (albeit somewhat unattractive) is to use it on the inside as a back-up to a wood or glass panel. You mount it on the surface, using screws spaced 3 to 4 inches on center. The holes in the Lexan are larger than the screw shank to allow for thermal expansion/contraction, and you put a large washer under the screw head to ensure that the hole is always fully covered.

 

[dos0711]

Steel door.

 

[OldMarksman]

Posted by Frank Ettin: What concerns me, staff here in general, and many of our members like OldMarksman and Bartholomew Roberts is that too many people have extravagant notions about Castle Doctrine/Stand Your Ground laws.
.....
A failure to appreciate the limitations of Castle Doctrine/Stand Your Ground laws is a good way for someone to get himself into what will be a terrible legal situation for him and his family.

That, and the possibility that someone without the knowledge or inclination to decode otherwise just might believe a grossly incorrect interpretation of the law such as

Had you lived in Colorado the only fact that is important is were they on your property with or without your approval. If the answer is without you may open fire no other facts needed as long as they stayed on your property.

...AND the potentially adverse impact on public opinion that such a statement may have.

 

[Joe_Pike]

I, too, am always a little concerned about the "shoot first, hope my butt doesn't get in a sling" responses. I don't ever want to have to shoot, and hopefully this will be the last time anyone will try to break in. I've hardened the area considerably, so, maybe I'll be left alone.

 

[TexasJustice7]

Bartholmew Roberts: Texas law allows you to use deadly force when there is a reasonable belief of an immediate threat of death or serious bodily injury. If the person who was shot entered your home forcibly and unlawfully, it will be presumed that you had such a belief, however, presumptions are rebuttable if there is evidence to the contrary.

As I stated previousy taking of innocent life is murder, shooting a burglar forcably entering ones house is not murder. I stated that as to what I think is murder in the eyes of God. However, it is the legal defintion of murder that counts in whatever State. Someone entering my house by force,
(do understand that there is one way in, one way out of my house, there is no retreat and no back door), I will use deadly force to stop them and will not be holding them at gunpoint. I probably will not know whether they were breaking in to murder me, to burglarize my house, or to rape my disabled daughter, or because they were on crack, or because they were high on other drugs, or drunk. I have a solid door, and deadbolt lock. I do not have a safe room to retreat too. If I were not prepared to fire when they break the door in, I would sell my guns. Thats me.

I do not maintain that it is right to shoot someone because you get mad at what they say. If they are breaking my door in, I will stop them at the door as they enter. If I discovered them burglarizing my house and got the drop on them as I was entering, and they were not a threat, of course I would not shoot them, unless they made a sudden movement going for a weapon. My main concern is that during any such gunfight that a stray bullet does not travel and hit an innocent person. The intruder is not an innocent person, if he breaks through a deadbolt lock. If you live in Texas you know that you do not have to retreat if someone is breaking your door in.

But as I stated, if your garage is separate from your house (I don't have a garage myself), but if I did I would check the law, to know where I stood.
Point is, though, if they are breaking my door in I don't have a half acre house, and no way to exit, and if they are breaking my door in I will be getting behind something to shoot as they come in. I told a social worker
a few months back who asked me if I had a gun safe, no I don't and no children. The day I can no longer protect my disabled daugher, then the taxpayers of Texas can do it. I am an old disabled vietnam veteran, and I do not intend to let me or her become someone's victim in my own house.

 

[FireForged]

A lot of peope seem to experience a sort of "road rage" syndrome when it comes feeling the effects of crime. They feel violated and are compelled to confront the bad guy at all cost. I have no reservations about defending myself or my family with force if that is what I must do to prevent grievious injury (that is clearly imminient). I am not so inclined to leave the safety of my home to run outside and confront a badguy who is trying to get in.