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Old 06-30-2006, 08:13 PM   #1
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Home Defense Laws

I have been wondering this for some time and have yet to find a good answer. Here's the situation.

You wake up to find a man in your house and you are armed with a handgun. You turn on the lights and say "stop" in a commanding voice and you are 15 feet away from him. He stops. He appears to be completely unarmed, but he was robbing your house (he has a bag of stuff) and you definitely don't know him. He has a large build and looks dangerous. You have your handgun aimed at center mass, and it is loaded with appropriate JHP bullets in an acceptable self-defense caliber, so you will likely kill him if you fire.

Obviously, if he chooses to run you have to let him go. If he complies, you call the cops or get somebody else to.

My question is, what do you do if an unarmed robber begins approaching you while you have the gun leveled at him. Obviously he is unarmed, but also, obviously, if he gets close to you and gets your gun he will pose a deadly threat. Do you have the right to shoot an unarmed intruder who is coming for your gun? Would it hold up in court that you felt your life was in danger because you knew if he got your gun that you would probably die, or would a judge/jury say you shouldn't have had the gun (or some other such thing)?

What if the same situation happened in your garage, where you could stay in the house, but the robber would get away with a bunch of stuff because the cops would never get there on time.

As far as location, let's say it is in a moderate state (Not Texas and not Massachusetts or California).
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Old 06-30-2006, 08:31 PM   #2
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Each state has there own law on the use of deadly force. Here in Maine the requirement that needs to be meet to use deadly force is that you have to be " IN FEAR" the law does not say of what. Other states require you to retreat or try to first.

My simply answer to your question if I wake up and there is a stranger in my house I would shoot first and ask questions later. My family comes first.

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Old 07-01-2006, 02:55 AM   #3
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Re: Home Defense Laws

Quote:
Originally Posted by M1A_Owner
My question is, what do you do if an unarmed robber begins approaching you while you have the gun leveled at him. Obviously he is unarmed, but also, obviously, if he gets close to you and gets your gun he will pose a deadly threat. Do you have the right to shoot an unarmed intruder who is coming for your gun? Would it hold up in court that you felt your life was in danger because you knew if he got your gun that you would probably die, or would a judge/jury say you shouldn't have had the gun (or some other such thing)?
Those who have attended a GOOD modern training course such as Mas Ayoob's LFI-I KNOW the answer to this question and know what to do. And if you can prove that you have been trained for the appropriate response in this situation, your defense should hold up in court quite nicely.

I long ago made the decision that I would brook NO movement of any kind at any speed toward myself or any member of my family in the above situation. That decision is MADE and gives me one less thing to worry about. But then I have been through LFI's "Tueller Drill" training twice (as well as the disarming drills of LFI-II).

Get trained. If you can't swing that, read everything you can find about the Tueller Drill and keep copies of your reading so you can show you are familiar with the situation.
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Old 07-01-2006, 05:09 AM   #4
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Texas is one of the states where I'm neither required to retreat nor prevented from using deadly force.
  • 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person
    is justified in using deadly force against another:

    (1) if he would be justified in using force against the
    other under Section 9.31;

    (2) if a reasonable person in the actor's situation
    would not have retreated; and

    (3) when and to the degree he reasonably believes the
    deadly force is immediately necessary:
    [list:d3kheld1] (A) to protect himself against the other's use or
    attempted use of unlawful deadly force; or

    (B) to prevent the other's imminent commission of
    aggravated kidnapping, murder, sexual assault, aggravated sexual
    assault, robbery, or aggravated robbery.
(b) The requirement imposed by Subsection (a)(2) does not
apply to an actor who uses force against a person who is at the time
of the use of force committing an offense of unlawful entry in the
habitation of the actor.[/list:u:d3kheld1]

Texas Penal Codes
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Old 07-01-2006, 06:31 AM   #5
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Re: Home Defense Laws

Quote:
Originally Posted by Snake45
Quote:
Originally Posted by M1A_Owner
My question is, what do you do if an unarmed robber begins approaching you while you have the gun leveled at him. Obviously he is unarmed, but also, obviously, if he gets close to you and gets your gun he will pose a deadly threat. Do you have the right to shoot an unarmed intruder who is coming for your gun? Would it hold up in court that you felt your life was in danger because you knew if he got your gun that you would probably die, or would a judge/jury say you shouldn't have had the gun (or some other such thing)?
Those who have attended a GOOD modern training course such as Mas Ayoob's LFI-I KNOW the answer to this question and know what to do. And if you can prove that you have been trained for the appropriate response in this situation, your defense should hold up in court quite nicely.

I long ago made the decision that I would brook NO movement of any kind at any speed toward myself or any member of my family in the above situation. That decision is MADE and gives me one less thing to worry about. But then I have been through LFI's "Tueller Drill" training twice (as well as the disarming drills of LFI-II).

Get trained. If you can't swing that, read everything you can find about the Tueller Drill and keep copies of your reading so you can show you are familiar with the situation.
The above response shows the high esteem you hold for your personal training and a bit of name-dropping, but you in no way answered the gentlemans question in my honest opinion.
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Old 07-01-2006, 08:07 AM   #6
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I kinda hate this kind of question because self defense is a "justification" type defense and is almost purely subjective. It is very, very difficult to give an objective answer, so take the below with a healthy grain of salt. I am going to analyze the question under current Michigan self-defense law at common law. However, the governor is about to sign into law statutory "castle doctrine" and "stand your ground" laws which will supplant the common law rules. This analysis is NOT legal advice but is here simply for informational puposes on how traditional self-defense laws work.

In michigan the standard for self defense is:

Quote:
did the accused, under all the circumstances of the assault, as it appeared to him, honestly believe that he was in danger of [losing] his life, or great bodily harm, and that it was necessary to do what he did in order to save himself from such apparent threatened danger?
[People v Lennon, 71 Mich. 298, 300-301; 38 N.W. 871 (188.]

Once again, it is subjective. I personally would certianly feel that I was at risk of losing my life or suffering great bodily harm if an intruder approached me. I would also see shooting him as necesary. I believe that this is what Snake was getting at: that training would make it clear that you are in grave danger in these circumstances. As always YMMV.

It is at this point that the inevitable "retreat" question pops up. This is because justified self-defense is inherently based upon "necessity". As the Michigan Supreme Court said:

Quote:
We reaffirm today that HN15the touchstone [***17] of any claim of self-defense, as a justification for homicide, is necessity. An accused's conduct in failing to retreat, or to otherwise avoid the intended harm, may in some circumstances-other than those in which the accused is the victim of a sudden, violent attack-indicate a lack of reasonableness or necessity in resorting to deadly force in self-defense. For example, where a defendant "invites trouble" or meets non-imminent force with deadly force, his failure to pursue an available, safe avenue of escape might properly be brought to the attention of the factfinder as a factor in determining whether the defendant acted in reasonable self-defense.
People v. Riddle, 467 Mich. 116, 127 (Mich. 2002)

Consequently, if retreat will eliminate the necessity, it may be required. The rules for retreat in Michigan are as follows:*

Quote:
First. That a man who, in the lawful pursuit of his business, is attacked by another under circumstances which denote an intention to take away his life, or do him some enormous bodily harm, [**40] may lawfully kill the assailant, provided he use all the means in his power, otherwise, to save his own life or prevent the intended harm; such as retreating as far as he can, or disabling his adversary without killing him, if it be in his power. n21

Secondly. When the attack upon him is so sudden, fierce and violent, that a retreat would not diminish, but increase his danger, he may instantly kill his adversary without retreating at all.

Thirdly. When from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or [***20] commit any felony upon his person, the killing of the assailant will be excusable homicide, although it should afterwards appear that no felony was intended. [Emphasis supplied.]
People v. Riddle, 467 Mich. 116, 129 (Mich. 2002)

These rules are summed up nicely by the court:

Quote:
if the defendant honestly and reasonably believed that it was immediately necessary to use deadly force to protect himself from an [imminent] threat of death or serious injury, the law does not require him to retreat. He may stand his ground and use the amount of force he believes necessary to protect himself.
People v. Riddle, 467 Mich. 116, 141 (Mich. 2002)

However, these rules are modified by the "castle rule" which states:

Quote:
It is universally accepted that HN19retreat is not a factor in determining whether a defensive killing was necessary when it occurred in the accused's dwelling:

Regardless of any general theory to retreat as far as practicable before one can justify turning upon his assailant and taking life in self-defense, the law imposes no duty to retreat upon one who, free from fault in bringing on a difficulty, is attacked at or in his or her own dwelling or home. Upon the theory that a man's house is his castle, and that he has a right to protect it and those within it from intrusion or attack, the rule is practically universal that when a person is attacked in his own dwelling he may stand at bay and turn on and kill his assailant if this is apparently necessary to save his own life or to protect himself from great bodily harm. [40 Am Jur 2d, 167, p 636.]
People v. Riddle, 467 Mich. 116, 134 (Mich. 2002)

Consequently, retreat is not a factor in the house hypothetical. However, in regard to garages, the michigan courts have held:

Quote:
that the castle doctrine, as it applied in this state and as was codified in our murder statute in 1846, applies solely to the dwelling and its attached appurtenances. Although many courts have extended the castle exception to other areas, n26 we conclude that there is simply no basis in the case law of this state, contemporaneous with the enactment of our initial murder statute, to justify extending the rule in this manner.
People v. Riddle, 467 Mich. 116, 135 (Mich. 2002)

Therefore, in Michigan the garage retreat question is dependent upon whether it is an attached garage. However, even if it was unattached, retreat would only be necesary if required under the 3 part retreat rules above.

SUMMARY



The general prerequisite for self-defense is:

"did the accused, under all the circumstances of the assault, as it appeared to him, honestly believe that he was in danger of [losing] his life, or great bodily harm, and that it was necessary to do what he did in order to save himself from such apparent threatened danger?"

If "No", then there is no justification for deadly force. END OF STORY.

If "Yes" then we consider whether there is actual "necessity" or whether retreat is appropriate. We also note that in the home, retreat is not an issue. We also note that the duty to retreat is not absolute and only is appropriate where retreat would de-facto remove the necesity. *

In the hypo above, I would opine that there are reasonable grounds to fear death/grave harm. In the house, retreat is not an issue. In the garage, I would still opine that since he is presently attacking you after breaking in, it is possible that you would still be justified since retreat would not remove the necesity. (see: People v Macard, 73 Mich. 15; 40 N.W. 784 (188, for a somewhat similar case) However, there are so many underlying circumstances and contingencies in the case of the garage that I cannot give any sort of real answer because there certainly are circumstances where you would not be legally justified.

AS NOTED ABOVE, THIS IS PURELY FOR INFORMATIONAL PURPOSES. I AM NOT A LAWYER AND THIS IS NOT LEGAL ADVICE. THE LAW FREQUENTLY CHANGES AND VARIES WIDELY FROM JURISDICITON TO JURISDICTION. THIS AREA OF LAW IS LIKELY TO CHANGE IN MICHIGAN WITHIN THE MONTH.

*: The only time there is an affirmative requirement to "retreat to the wall" in Michigan is in a mutual combat setting where one party has escalated.

Hope this helps

All the best,


Joe
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Old 07-01-2006, 08:58 AM   #7
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Re: Home Defense Laws

Quote:
Originally Posted by M1A_Owner
You wake up to find a man in your house and you are armed with a handgun. You turn on the lights and say "stop" in a commanding voice and you are 15 feet away from him. He stops. He appears to be completely unarmed, but he was robbing your house (he has a bag of stuff) and you definitely don't know him. He has a large build and looks dangerous. You have your handgun aimed at center mass, and it is loaded with appropriate JHP bullets in an acceptable self-defense caliber, so you will likely kill him if you fire.

My question is, what do you do if an unarmed robber begins approaching you while you have the gun leveled at him. Obviously he is unarmed, but also, obviously, if he gets close to you and gets your gun he will pose a deadly threat. Do you have the right to shoot an unarmed intruder who is coming for your gun? Would it hold up in court that you felt your life was in danger because you knew if he got your gun that you would probably die, or would a judge/jury say you shouldn't have had the gun (or some other such thing)?

What if the same situation happened in your garage, where you could stay in the house, but the robber would get away with a bunch of stuff because the cops would never get there on time.

As far as location, let's say it is in a moderate state (Not Texas and not Massachusetts or California).
Well if a large dangerous looking criminal aproched me in my own bedroom after I had drawn down on him, I would with latter regret shoot him down. The reason being as while I am trained in several martial arts, fighting for a handgun with someone larger is the last thing I want to do. I can do firearms disarm's and they can work very well, thus I wish to keep the perp far away from myself. Shooting to stop would be the safest option.

As far as being in a garage goes: Property can be replaced, Life cannot.
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Old 07-01-2006, 09:15 AM   #8
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Georgia and Florida have adopted the "no retreat" law. If you are threatened, you have no duty to retreat before defending yourself. Disparity of force is also a standard yardstick in defensive situations. A trained boxer, or martial arts expert, approaching you with intent to harm, or kill, is reason enough to use deadly force. A person who is obviously big enough to overwhelm you, still advancing upon you in the face of deadly force, is also enough of a threat to your life and quality of life to justify deadly force.

By the way, the trite little saying that "objects can always be replaced" isn't at all true. There are any number of heirlooms that, once gone, cannot be replaced. There are several things in this house that cannot be replaced, and would be fought over before letting them go.

Anyway, the fact that the "robber" has chosen to escalate the situation is indicative of a greater threat to you and yours. Dropping the loot and leaving would ensure a non-violent solution, but he chose to disregard that, and advanced upon his obviously armed challenger. Such unusual behavior should be construed as a serious physical threat, and dealt with as such. At that point, retreat could trigger a violent pursuit, with a lost tactical advantage for you.
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Old 07-01-2006, 09:46 AM   #9
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Re: Home Defense Laws

Quote:
Originally Posted by Powerkicker
The above response shows the high esteem you hold for your personal training and a bit of name-dropping, but you in no way answered the gentlemans question in my honest opinion.
I absolutely did answer his question. I am sorry that you were not able to discern the answer.

Sorry if you thought it was name-dropping, but it's not, any more than discussing a gun by make and model or an ammunition by brand name and stock number would be.
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Old 07-01-2006, 09:51 AM   #10
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Powerkicker seems to have two problems. First, a bad case of over-quoting and second, a case of envy. Before he gritches too much, maybe he should dwell on his handle and what that implies to his training.
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Old 07-01-2006, 01:40 PM   #11
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Look, if anyone you do not know comes in your house in the middle of the night, you give that person a warning to get out and they start comming after you I say shoot'em dead. I would rather spend a few years in jail than have to look at myself in the mirror knowing I could have prevented harm to my wife and kids. You guys keep talking about all these different laws, wether the intruder is armed or whatever. Damn my kids are more important to me than some law a bloated politician came up with. People please get some balls!!!!!!!!!!!!!! I'd rather be wrong and get visited by my kids in jail than be dead or have to live with the fact I was too worried about shooting some POS criminal for fear of going to jail.
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Old 07-01-2006, 02:47 PM   #12
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Quote:
Originally Posted by Pigpen
I'd rather be wrong and get visited by my kids in jail than be dead or have to live with the fact I was too worried about shooting some POS criminal for fear of going to jail.
Get yourself trained, do the right thing, stand your ground in court and PREVAIL. That's better yet.
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Old 07-01-2006, 02:52 PM   #13
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Been trained, try to do the right thing, always stand my ground. Unless, it's the wifes' turn to win the argument.
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Old 07-02-2006, 03:33 AM   #14
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Quote:
Anyway, the fact that the "robber" has chosen to escalate the situation is indicative of a greater threat to you and yours. Dropping the loot and leaving would ensure a non-violent solution, but he chose to disregard that, and advanced upon his obviously armed challenger. Such unusual behavior should be construed as a serious physical threat, and dealt with as such. At that point, retreat could trigger a violent pursuit, with a lost tactical advantage for you.
Here in Oklahoma, there have been a few cases where an intruder, after being warned by an armed homeowner, began or continued to advance upon that homeowner. The intruder was subsequently killed or incapacitated by the armed homeowner. The homeowner was brought up on charges that were dimissed ie. the shooting was found justified. The homeowner was out only God knows how many thousands of dollars defending himself. (I don't have any court cites, but will look them up if anyone is interested.) Each case is decided on it's own individual merits and is looked at subjectively. Then there is the attitude of the D.A. involved. Is he more willing to go after a law abiding citizen that was attacked in his own domicile than to go after pos criminals? Is he looking for publicity to help with a re-election campaign? Is he looking for a "showcase" trial against a law he disagree's with? What is the attitude of the local law enforcement? Are you in a municipality or county jurisdiction? Is the investigating officer's attitude favorable to you? (I know several officers that would do everything in their power to have you charged, convicted, and jailed; including slanting their investigative report against you!) Is the head of the law enforcement agency favorable to self defense? Is there a scum sucking attorney that is willing to attack you on behalf of the poor deceased criminal's family?

Unfortunately, there are just too many unknown points in the posed question to provide a valid answer.

That said, I do know of two cases where an armed business or homeowner shot and killed a burglar that was running away from him (both involved rifle shots at quite a distance; one about 50 yards-shooting a suspect off of the property fence as he was escaping-one hell of a shot; at night, moving target, almost non-existent lighting, iron sights). In both cases the D.A. (now retired) refused to file charges against the home/business owner. DO NOT COUNT ON THAT HAPPENING IN YOUR CASE
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Old 07-04-2006, 10:50 AM   #15
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Florida has the Castle Doctrine.

If someone breaks into your house you can shoot them dead. No warning needed. Your home is your castle and you have the right to defend it without hesitation. This only applies to the interior of your home. It doesn't flow into your yard or your car. The new stand your ground law takes care of that.

It comes down to being able to use deadly force to stop or prevent a forcable felony. Robbery, Rape, Murder, ETC. At least hear in Florida, that's what the story is.

Like others have said you need to check your own state laws.
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Old 07-04-2006, 03:19 PM   #16
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While I hope I don't offend the question asker......If you have to ask this question ......you're already dead!! Holding an intruder at gun point is something most people aren't trained to do and most criminals are. They know that if they haven't been shot by you already that their chances of survival have increased tenfold. They're always thinking of a way out while your standing there terrified at something that doesn't occur to you everyday but does to them as a occupational hazard. Why do you think criminals always run when the cops hold them at gunpoint? They know they can't be shot if they're unarmed. Civilians do not have an obligation to capture and hold a criminal. Some states require you to retreat and not even hold them at gun point. These things you should already know before you've pulled down on the BG or you're in deep do do. A cornered criminal is not something to toy around with. You should've already had a plan in place before you walked out of your bedroom with your piece in your hand!! The Oh S#%t is not a plan....nor is hiding in a closet while your wife and kids are screaming for their lives!! As Snake said....get proper training by a compentent instructor. And that doesn't mean your ex-special forces buddy or your local pal who's a cop! Your training has to be documented in a court of law and the instructor should be certified and bonded to cover his techniques. If not.....then figure on being a guest at the honeymoon suite at your state's expense and you being the bride with a cousin/homie of the perp you shot as your cellmate/groom! Hint; They don't care if you don't kiss on the first date either!!
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