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'Home intruder' law vague to judge
Lexington Herald-Leader (Kentucky) ^ | 7/27/06 | Brandon Ortiz

Posted on 07/31/2006 9:30:57 AM PDT by kiriath_jearim

'Home intruder' law vague to judge

Refuses to dismiss murder charge

By Brandon Ortiz HERALD-LEADER STAFF WRITER

A Fayette judge struggled to make sense of Kentucky's new "home intruder" law yesterday, calling the National Rifle Association-backed legislation confusing, vague and poorly written.

"I'm not quite sure that the drafters had even a marginal knowledge of criminal law or Kentucky law," Circuit Judge Sheila Isaac said. "It is absolutely silent on the court's role."

Isaac rejected James Adam Clem's request to have his murder charges dismissed because of the recently enacted law, which grants immunity to homeowners who use deadly force to defend themselves from robbers or intruders.

The law says a person has the right to use lethal force if he has "reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred." It also applies if a person is attacked in a public place "where he or she has a right to be."

Clem, 27, says he killed Keith Newberg, 25, in self-defense after Newberg allegedly attacked him upon entering Clem's apartment early in the morning of Aug. 9, 2004.

Isaac sided with prosecutors, who said that whether Newberg was an intruder or had committed a crime is a factual question that jurors must decide.

"To go into whether he is immune clearly requires fact-intensive decisions" that judges should not make, Isaac said.

Prosecutors around the state have expressed concerns about the law, which they say is difficult to interpret and raises numerous questions.

In an interview yesterday, University of Kentucky law professor Robert Lawson, widely considered the state's foremost expert on criminal law, sharply criticized the law. It was approved overwhelmingly by the General Assembly this spring, and it took effect this month.

"It is the worst legislation I have ever seen in 40 years," said Lawson, the principal drafter of Kentucky's penal code, which was adopted in 1975.

Supporters of Senate Bill 38, also called the castle doctrine, said that previous law required Kentuckians to retreat from robbers breaking into their home or car.

Not so, Lawson says: Unlike many states, Kentucky never had such an obligation.

When drafting the penal code, the General Assembly voted down such a requirement, he said.

A 1931 Kentucky Supreme Court decision, Gibson vs. Commonwealth, bluntly spells out the right of self-defense without retreat.

"It is the tradition that a Kentuckian never runs," the opinion states. "He does not have to."

May be state's 1st such case

Lawson said the home intruder law "is aimed at a problem that didn't exist" and will create "huge problems of interpretation."

The politically powerful NRA has convinced 15 states to pass castle-doctrine laws since 2005. The doctrine has its origins in English common law.

Supporters in the legislature, who acknowledge the NRA's influence in drafting the bill, say it is needed to protect homeowners from being sued or prosecuted for shooting intruders.

Yesterday, Judge Isaac and attorneys on both sides debated what the law means to Clem's case. It was the first time in Fayette County, and possibly the state, that the home intruder law has reached the courts.

The Kentucky Supreme Court has never ruled on the law, giving Isaac no precedent to follow. Because she is a circuit judge, her ruling does not create precedent, and it applies only to Clem's case.

Isaac said the law provides no guidance for how courts should apply the immunity provision, which bars police from even arresting somebody who defends himself.

It's not clear what the standard of proof is or how the burden of proof shifts, she said.

"We are all kind of treading on unknown water," she said.

Clem's trial starts Monday. Isaac said defense attorneys could refile their motion after prosecutors have presented their evidence.

Change in judges

Isaac is now presiding over the case. Judge Mary Noble recused herself this week.

A written order of recusal has not yet been entered. But Tucker Richardson, one of Clem's defense attorneys, contributed to Noble's Supreme Court campaign against Justice John Roach.

Noble previously has said she does not track who contributes to her campaign. Her campaign manager has said Noble learned of Richardson's donations only after the family of a victim in another case criticized her for not recusing herself in the trial of Keita Hayden, who was acquitted of murder charges.


TOPICS: Constitution/Conservatism; Crime/Corruption; Government; US: Kentucky
KEYWORDS: badjudge; banglist
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1 posted on 07/31/2006 9:30:58 AM PDT by kiriath_jearim
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To: kiriath_jearim
If Judge Sheila can't understand this law then she needs to step down and let someone else preside.
2 posted on 07/31/2006 9:34:01 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: BenLurkin
BTW, a factual question need be submitted to a jury ONLY when there is a factual dispute.

NO mention in this article of any testimony other than that of the victim who acted in self defense.

3 posted on 07/31/2006 9:35:36 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: kiriath_jearim
"To go into whether he is immune clearly requires fact-intensive decisions" that judges should not make, Isaac said.

That's true, to an extent. For instance, whether the dead man was genuinely an intruder, or was invited in and then killed by the occupant, is a question of fact that is extremely relevant.

4 posted on 07/31/2006 9:36:25 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: kiriath_jearim
If the judge and the prosecutor cannot understand that one is allowed to defend oneself in ones home then they have a very low IQ or they are anti-American left-wing Democrats who support the criminals and not the victims.
5 posted on 07/31/2006 9:39:05 AM PDT by YOUGOTIT
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To: Tax-chick

Agreed. It would be interesting to see a the text of the law. There are a lot of poorly written statutes on the books. They are hard to interpret, and often make bad precedent when they are.


6 posted on 07/31/2006 9:39:41 AM PDT by Huntress (Possession really is nine tenths of the law.)
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To: kiriath_jearim
"Circuit Judge Sheila Isaac said. "It is absolutely silent on the court's role."

What a maroon.

The "Court" has no business in the law whatsoever; it's their to facilitate the rights of the accused and the offended parties, coupled with a JURY who determines the outcome based on the facts.

This Judge has the mis-conception that she is some sort of God or something, and only THE JUDGE can properly determine right and wrong..........

7 posted on 07/31/2006 9:39:41 AM PDT by traditional1
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To: Tax-chick

People seems at times that they don't have any basic rights that supposedly were guranteed in the Constitution.


8 posted on 07/31/2006 9:40:09 AM PDT by rovenstinez (,)
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To: kiriath_jearim

Dear Sheila,
Ever hear of "a man's home is his castle"? He/she has a right to protect it including with the use of deadly force. Got it?


9 posted on 07/31/2006 9:42:22 AM PDT by vox_freedom
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To: kiriath_jearim
First problem for *this particular" guy is that the law in question was passed after he committed the act(s) that resulted in him being charged.
10 posted on 07/31/2006 9:43:08 AM PDT by Gay State Conservative
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To: kiriath_jearim

Funny. The perp ended up understanding the law quite clearly.


11 posted on 07/31/2006 9:45:22 AM PDT by Niteranger68 (I gigged your peace frog.)
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To: kiriath_jearim

How is a sincere criminal, trying hard, going to get ahead in his profession if his victim fails to cooperate?
Almost all crime depends on the cooperation of the victim.
If the victim refuses his assigned role, the criminal is placed at a disadvantage, one so severe that it usually takes an understanding and compassionate judge to set right.

LAZARUS LONG


12 posted on 07/31/2006 9:46:12 AM PDT by HuntsvilleTxVeteran ("Remember the Alamo, Goliad and WACO, It is Time for a new San Jacinto")
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To: kiriath_jearim
Supporters of Senate Bill 38, also called the castle doctrine, said that previous law required Kentuckians to retreat from robbers breaking into their home or car.

Not so, Lawson says: Unlike many states, Kentucky never had such an obligation.

If the Professor is correct, then why was James Adam Clem arrested and why is he now being prosecuted? The new law didn't create a requirement to arrest and prosecute folks defending their property.

13 posted on 07/31/2006 9:46:26 AM PDT by <1/1,000,000th%
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To: kiriath_jearim

Not a very informative article as to the facts of the case.


14 posted on 07/31/2006 9:47:10 AM PDT by Smogger (It's the WOT Stupid)
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To: Tax-chick
That's true, to an extent. For instance, whether the dead man was genuinely an intruder, or was invited in and then killed by the occupant, is a question of fact that is extremely relevant.

Unless I'm mistaken (and that's a real possibility) a judge presiding over a jury trial in a criminal case has the power to unilaterally declare a defendant not guilty or to dismiss the charges against said defendant due to what *he/she* believes to be insufficient evidence and has the power to do that at any point in the proceedings...even after a jury declares that defendant to be guilty.

I'll patient await any lawyer's post telling me that I'm full of beans.

15 posted on 07/31/2006 9:49:27 AM PDT by Gay State Conservative
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To: BenLurkin
People who offer the same conclusion are, I'd bet, the same folks who scream when judges interpret a stautue in a way they don't like. Then it becomes the case of''...an activist judge making law instead of applying what the legislature has enacted...blah, blah...''

Special interest legislation drafted by lobbyists and passed quickly by legislators anxious to appear fighting crime, or whatever the subject may be, is often the worst drafted, least precise and inarticulate mess that shows up in state and federal statues. When anyone schooled in statutory interpretation looks at a jumbled mess of words such as this it's easy to recognizes that it is unintelligable. The langusge of the Ky. statute is just that. Does the judge find immunity? His job is not as a fact finder unless a party waives a jury trial.

The law professor is an objective and learned observer whom I would trust to make such a conclusion vis-a-vis a kneejerk reaction.

16 posted on 07/31/2006 9:51:44 AM PDT by middie
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To: Tax-chick
That's true, to an extent. For instance, whether the dead man was genuinely an intruder, or was invited in and then killed by the occupant, is a question of fact that is extremely relevant.

And this report does not make that clear or that the shooter was in fear of his life.

17 posted on 07/31/2006 9:52:40 AM PDT by Hazcat
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To: middie

This judge is refusing to apply the law. That makes her the 'activist'.

Do you happen to know the citation for this law? I'd like to take a look at it for myself.


18 posted on 07/31/2006 9:55:49 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: Gay State Conservative
A judge can direct a verdict, true, but the decision is appealable. I'm not sure a judge can dismiss a case during proceedings for lack of evidence. Evidentiary rulings are appealable in any case.
19 posted on 07/31/2006 9:58:14 AM PDT by 1rudeboy
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Here is California Penal Code section 198.5. Judges haven't had an trouble interpreting it.

"Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred."
20 posted on 07/31/2006 10:00:02 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: kiriath_jearim
The law says a person has the right to use lethal force if he has "reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred."

Isaac sided with prosecutors, who said that whether Newberg was an intruder or had committed a crime is a factual question that jurors must decide.

The law, as stated above, clearly says that the homeowner, not a jury, is to decide if a crime was being committed. Furthermore, according to the article, Issac herself admitted the law bars the police from even arresting Clem. So, why was he arrested, & why didn't Issac throw out the case, as she should.

Could it be the Issac & the prosecutor refuse to uphold the law as it is written? I suspect they prefer those 500 page laws, chock full of loopholes, so they can administer "justice" as they see it.

What was it Lincoln said? "...of the lawyers, by the lawyers, for the lawyers".
21 posted on 07/31/2006 10:10:48 AM PDT by Mister Da (The mark of a wise man is not what he knows, but what he knows he doesn't know!)
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To: kiriath_jearim
"It is the worst legislation I have ever seen in 40 years," said Lawson, the principal drafter of Kentucky's penal code, which was adopted in 1975.

Supporters of Senate Bill 38, also called the castle doctrine, said that previous law required Kentuckians to retreat from robbers breaking into their home or car.

Not so, Lawson says: Unlike many states, Kentucky never had such an obligation.

When drafting the penal code, the General Assembly voted down such a requirement, he said.

So if the homeowner already had the right of self defense without obligation to retreat even before the new law was passed, how is this a big conundrum for the judge?

22 posted on 07/31/2006 10:14:34 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: Gay State Conservative

But according to the law prof qutoed, KY never had a duty to retreat.


23 posted on 07/31/2006 10:17:14 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: kiriath_jearim

Sounds like the judge is miffed that he can't spin the case or just make stuff up that sounds like an "interpretation of the law" as he gives instructions to the jury.


24 posted on 07/31/2006 10:20:40 AM PDT by jiggyboy (Ten per cent of poll respondents are either lying or insane)
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To: BenLurkin

There's not a single judge known to me, and I know many both personally and before whom I appear regularly, who could interpret the Ky. confusion any differently than the judge in question. What is there about ''due process of law'' that bothers you? Before a person can either be adversely subjected to or benefit from a statue it must be capable of clarity and that such a person must know that he is either criminally subject to it or protected by it. In neither instance is the Ky. statute possesed of that clarity and sufficient to make a person knowlegable of what it means when applied to him.


25 posted on 07/31/2006 10:21:05 AM PDT by middie
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To: BenLurkin

So self defense is an affirmative defense where the burden of proof still falls to the state. Is that about it?


26 posted on 07/31/2006 10:21:35 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: kiriath_jearim

This judge is intentionally ignorant. This law codifies the common law maxim that retreat is not required in ones own home.

The judge does not like the law so the judge says it is controversial. Sooooo big brother.


27 posted on 07/31/2006 10:23:57 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: kiriath_jearim
The judge would know what a home intruder was if she woke up one night with a large figure looming over then end of her bed.
28 posted on 07/31/2006 10:28:37 AM PDT by Beckwith (The dhimmicrats and liberal media have chosen sides and they've sided with the Jihadists.)
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To: middie

"In neither instance is the Ky. statute possesed of that clarity and sufficient to make a person knowlegable of what it means when applied to him."

How did that happen and, more important, how can it be rectified?


29 posted on 07/31/2006 10:29:46 AM PDT by Panzerlied ("We shall never surrender!")
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To: Gay State Conservative

I don't know.


30 posted on 07/31/2006 10:33:10 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: Hazcat
And this report does not make that clear or that the shooter was in fear of his life.

I don't think that "fear of his life" is required for it to be considered a self-defense shooting. However, there must be some evidence available, other than "two men, one dead"! Damage indicating forced entry, perhaps, or the dead man was armed. These would support the occupant's report of what happened.

That's why it's a question of fact, to me, rather than of law.

31 posted on 07/31/2006 10:36:38 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: Smogger
Not a very informative article as to the facts of the case.

I think that's the real issue. People on this forum are arguing other topics, but what are the facts?

Scenario 1 (assumed by most posters to this board): Intruder breaks into house and gets shot. End of argument, and the judge should let the innocent self-defender off.

Scenario 2: Two friends, well known to each other, sit around drinking in an apartment belonging to one of them. They have an argument, and the apartment dweller shoots the other guy, then declares him to have been an intruder.

I know which one I think is more likely, but the whole point is that determining which of those two (or other) scenarios really happened is the job of the jury, not the judge. However, I don't find the law as written all that unclear, so I'm siding with the common sense interpretation once the facts are established.
32 posted on 07/31/2006 10:37:21 AM PDT by Gorjus
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To: Gorjus

Good post - just what I was trying to say, only more clear!


33 posted on 07/31/2006 10:38:25 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: middie
"There's not a single judge known to me, ... who could interpret the Ky. confusion any differently than the judge in question."

What do you base that on? Do yo have the text of the statute? If so, kindly share it with us so we can decide for ourselves.

I've known a few judges myself and . . . I'll put it this way . . . a judge is just a another lawyer -- but with too much power.

34 posted on 07/31/2006 10:38:39 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: Tax-chick
I don't think that "fear of his life" is required for it to be considered a self-defense shooting. However, there must be some evidence available, other than "two men, one dead"! Damage indicating forced entry, perhaps, or the dead man was armed. These would support the occupant's report of what happened. That's why it's a question of fact, to me, rather than of law.

Agreed on all points. I knew when I posted it some one would point that out but I'm just too lazy to type out "fear of bodily harm, theft, defense etc." :)

35 posted on 07/31/2006 10:39:25 AM PDT by Hazcat
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To: kiriath_jearim
A Fayette judge struggled to make sense of Kentucky's new "home intruder" law yesterday, calling the National Rifle Association-backed legislation confusing, vague and poorly written.

She forgot nebulous and well-financed.

36 posted on 07/31/2006 10:40:17 AM PDT by hschliemann
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To: Hazcat

All clear, then :-). I'm usually posting in haste, myself!


37 posted on 07/31/2006 10:40:29 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: Panzerlied

http://www.lrc.ky.gov/record/06RS/SB38.htm

Still researching.


38 posted on 07/31/2006 10:46:33 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: BenLurkin
BTW, a factual question need be submitted to a jury ONLY when there is a factual dispute.

Your statement is incorrect: As a general rule, the jury is responsible for determining whether the use of deadly force was reasonable under the factual circumstances, even if those circumstances are not in dispute. IMO, the judge made the legally correct decision.

39 posted on 07/31/2006 10:47:17 AM PDT by Labyrinthos
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To: traditional1

ALL judges get the "black robe fever".

Judicial colleges DO teach them that they are the "god" of their courtroom. Remember MOST have criminal contempt powers.

Most judge KNOW they can get away with ANY misinterpritation of the law because VERY FEW cases go up on appeal. This is due to the cost, the need for bonds in civil cases, or the fact the person placed in jail ends the matter since they are financially destroyed.


40 posted on 07/31/2006 10:47:45 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: kiriath_jearim

Liberal judges strike again. Are you a member of the NRA?


41 posted on 07/31/2006 10:48:28 AM PDT by Leftism is Mentally Deranged (Leftism is the ideology of nihilism, despair, nothingness and death.)
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To: Mister Da

"The law, as stated above, clearly says that the homeowner, not a jury, is to decide if a crime was being committed."

So let's say I invite you over to my house, then when you step across the threshold, I shoot you dead, then claim you were breaking in.

In your view, I get to decide if a crime is being committed by you. In fact, you claim I can't even be arrested.

See any problems with that?

In criminal law, the judge decides matters of law. The jury decides matters of fact.

In this case, the shooter killed someone. That constitutes the crime of 'murder' or 'homicide', if done intentionally, or manslaughter (if the intent was not to kill).

Now under the new law, the shooter can claim the defense of self-defense. Like any other defense, it is the jury's right and duty to decide if the accused is guilty or not.

One part of the law does say as follows:
"(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful."

So you can indeed be arrested if the agency thinks there is probable cause you were not really defending your 'castle'.

I don't know a LOT about criminal law, but there are some real Grade-A wingnuts screaming on this thread already who clearly don't know ANYTHING (and don't care).

--R.


42 posted on 07/31/2006 10:48:57 AM PDT by RustMartialis
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To: kiriath_jearim; Panzerlied; Still Thinking; traditional1; Huntress; vox_freedom

Scroll down to 503.055 and 503.085 http://72.14.203.104/search?q=cache:HffQPwvPAyQJ:docjt.jus.state.ky.us/forms/legal/2006%2520statute%2520changes.pdf+krs+503.050&hl=en&gl=us&ct=clnk&cd=15


43 posted on 07/31/2006 10:51:39 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: Labyrinthos
The victim here has an immunity under statute. Once he has made a showing that he is entitled to that immunity, what factual dispute remains?
44 posted on 07/31/2006 10:56:28 AM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
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To: middie
"There's not a single judge known to me, and I know many both personally and before whom I appear regularly, who could interpret the Ky. confusion any differently than the judge in question."

Well, that's a shame for the people of Kentucky.

Either:

You don't know many Judges, or

Kentucky Judges don't understand English....

45 posted on 07/31/2006 10:58:35 AM PDT by traditional1
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To: RustMartialis
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

But that doesn't make any sense. Is that to say that in other cases police can arrest someone absent probable cause to believe a crime has been committed. That doesn't seem right.

46 posted on 07/31/2006 10:59:17 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: BenLurkin

Whether a person acted reasonably under a given set of facts is a jury question. The role of the jury here is not to detemine the facts because the facts are not indispute, but to detemine whether the defendant acted reasonably. This is nothing new, at least not since the days of Blackstone.


47 posted on 07/31/2006 11:02:22 AM PDT by Labyrinthos
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To: Tax-chick
But isn't that question normally decided by a grand jury?
48 posted on 07/31/2006 11:37:31 AM PDT by taxcontrol
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To: taxcontrol

That's a good point. It also might be resolved at the scene by the police.


49 posted on 07/31/2006 11:45:06 AM PDT by Tax-chick (I've always wanted to be 40 ... and it's as good as I anticipated!)
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To: BenLurkin
I especially liked the sentence in the law that reads:

A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

Is Judge Sheila too dense to understand that language?

50 posted on 07/31/2006 1:42:21 PM PDT by vox_freedom
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