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Posted on 12/22/2006 1:18:08 PM PST by neverdem
HOUSEHOLDERS can attack a burglar without fear of the law unless they act maliciously or with excessive force, the Criminal Court of Appeal said in a fresh ruling on the rights of victims yesterday.
The ruling — upholding the rights of victims to defend themselves and their property — came a week after Mayo farmer Pádraig Nally was cleared of the manslaughter of burglar John ‘Frog’ Ward, whom he shot dead in self defence in October 2004.
Yesterday an Appeal Court judge said burglars must expect to be lawfully met with force to drive them off, while householders had no legal obligation to retreat from their home during a burglary.
Mr Justice Adrian Hardiman said: “Although (the burglar) is not liable to be killed by the householder simply for being a burglar, he is an aggressor and may lawfully be met by retaliatory force.”
But Mr Justice Hardiman stressed it was “ridiculous” to suggest that a citizen, “however outraged”, may deliberately kill a person simply for being a burglar.
It was “an elementary proposition” that a burglar cannot lawfully lose his life simply because he trespasses in the home of another person with intent to steal.
But the judge conceded that it was impossible to lay down any formula with which the degree of force used by the householder can be instantly calculated.
It would be unjust to judge a burglary victim against the standards of a hypothetical “reasonable person” as they are not in the position of an ordinary person deciding what course of action is best in the circumstances. Yet it could not be left to individuals to lay down for themselves how much force they are entitled to use, the court said.
“In many cases, it will in practice take the deployment of grossly disproportionate force, or evidence of actual malice... to fix the householder with liability,” the judge said.
There must be both a subjective and objective component in the assessment of the degree of force which may properly be used by the victim, the court held.
Mr Justice Hardiman made the remarks while dismissing an appeal by 20-year-old burglar Anthony Barnes against his conviction for the murder of elderly horsebreeder Richard “Dick” Forristal at the Carrigavantry Stud, Co Waterford, in 2005.
Barnes claimed he killed Mr Forristal in self-defence but the court said burglars who kill could not enjoy the full protection of the law as they had initiated the “grave” aggression by breaking in.
The court said a burglar could “never be regarded as wholly blameless” in such a killing and intruders would at the very minimum be convicted of manslaughter.
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Even if good ole' Padraig was half in the bag, I support him defending his home! Go, Padraig Nally, go!
~ Blue Jays ~
Define excessive force - loophole for the thugs.
How the Hell they can complicate such an obviously simple situation is beyond me.
So; firearms are allowed in the Irish Republic ?
Warning: Do not assume that at my house
Like there was any doubt on my end.
BLAMMO.
Wow, that's a lot of words and a whole lot of nothing said.
Very few and highly regulated.
Pity. They'd have fewer burglars with a few more guns in circulation.
But can they eat burgers with forks?
It might also be worthwhile to read up on the Briney Trapgun Case from Iowa back in the early 1970s. Never set a trap or spring gun and never shoot at something you can't see.
"Officer, it was dark and I thought he had a gun, but I just tried to shoot it out of his hand. I wasn't trying to kill him or even hurt him. I must have missed since there are two holes in his forehead and two in his heart. I'm going to have to spend more time practicing."
Interesting that this is from Ireland. My father is from Galway and he tells the story of what happened when some tinkers (homeless Irish vagabonds) came to his uncle's farmhouse one day in the 1920's. The men were working in the fields so it was the lady of the house and some daughters at home when the tinkers entered the house. They demanded food before they would leave. Not taking kindly to the demand as opposed to a request, the woman stated that they'd get nothing and to be on their way. They refused to leave and started looking menacingly at the women. Then the uncle returned from the field thru the back door and asked what was going on. The wife explained. The uncled asked the tinkers "Did anyone see you come in here?". They replied "no". My uncle then reached up for the ax on the wall and said "Good, then no one will see you leave unless you get the F%^#K out now.".... Needless to say, they left and never came back...
To me it's a very reasonable position. There is some uncertainty regarding 'excessive force', but that is needed (force against an unarmed kid just getting in a house could and should be very different from the force against a pair of armed adult robbers). We have juries to determine what is excessive force on a case by case basis.
No it shouldn't. A kid can kill you just as dead as a grownup can.
L
The law in other countries is not obvious to me, and it's often vastly different from the law in the U.S.
I'm glad this court in Ireland has said homeowners can defend themselves and their property -- that isn't what the law says in a lot of other places (like the UK).
Interesting how homeowners are now supposed to be mind-readers.
Good. But the left doesn't like that and will do all that it can to take this right away.
Not so here in Florida. The new law states that if I perceive that my life may be in danger....I have a right to defend it before it happens.
So pretty much shooting him would be excessive force but regular force would be holding up your hand and yelling 'Stop!'?
And the term 'burglars' always makes me think of the scene in A Christmas Story when those goofballs try to come at Ralphie's house in his daydream. What a dumb term is that anyway? "Oh my God, Janet, why are you crying?" "My house has just been burglared!!"
If they have broken into your home then they have already initiated violence against you.
If someone breaks into you your home while you are there, then there is no way to know what their intentions are. You and your families life is at serious risk.
If the person who broke in is armed, and there is no way to know, it only takes a fraction of a second to become another murder statistic.
This seems like a reasonable point of view until one examines the premise. It is simply this - the homeowner is, under this policy, placed in the position of determining the burglar's intentions and penalized for being incorrect - for "overreaction" with jail time, for "underreaction," with physical injury or death. There is nothing reasonable in this at all. To demand that the citizen react by giving the criminal the benefit of the doubt is to place the citizen at hazard and the criminal in safety. There's nothing "fair" or "reasonable" about that, it is simply wrong.
And beyond me too. Even the bible authorizes using deadly force to defend your home, Exodus ch 22:2.
But you have to give the Irish judge credit for one thing, his ruling puts Ireland light years ahead of the Brits in that regard. If a household occupant kills a burglar in the UK he or she will be on the road to prison before the burglar's blood dries.
Are you a Democrat a Republican or a Redneck?
Here is a little test that will help you decide:
You're walking down a deserted street with your wife and two small children. Suddenly, an Islamic terrorist with a huge knife comes around the corner, locks eyes with you, screams obscenities, praises Allah, raises the knife, and charges at you.
You are carrying a Glock cal 40, and you are an expert shot. You have mere seconds before he reaches you and your family. What do you do?
~~~~~~~~~~~~~~~~~~~
Democrat's Answer:
Well, that's not enough information to answer the question! Does the man look poor! Or oppressed? Have I ever done anything to him that would inspire him to attack? Could we run away? What does my wife think? What about the kids?
Could I possibly swing the gun like a club and knock the knife out of his hand? What does the law say about this situation?
Does the Glock have appropriate safety built into it? Why am I carrying a loaded gun anyway, and what kind of message does this send to society and to my children?
Is it possible he'd be happy with just killing me?
Does he definitely want to kill me, or would he be content just to wound me?
If I were to grab his knees and hold on, could my family get away while he was stabbing me?
Should I call 9-1-1 ?
Why is the street so deserted?
We need to raise taxes, have paint and weed day and make this a happier, healthier street that would discourage such behavior.
This is all so confusing!
I need to discuss with some friends over a latte and try to come to a consensus.
~~~~~~~~~~~~~~~~~~~~~
Republican's Answer:
BANG!
~~~~~~~~~~~~~~~~~~~~~
Redneck's Answer:
BANG! BANG! BANG! BANG! BANG! BANG! BANG! BANG! BANG! Click.....(sounds of reloading)
BANG! BANG! BANG! BANG! BANG! BANG! BANG! BANG! BANG! click ...
Daughter: "Nice grouping, Daddy! Were those the Winchester Silver Tips or Hollow Points?" Son: "You got him, Pop! Can I shoot the next one?"
Wife: "You are not taking that to the taxidermist!"
I have to assume you bloodthirsty folk have never killed a human being. If you should kill an unarmed kid who meant you no physical harm, you will be surprised at what a sh&t you will feel you are, whatever the Law says.
Shooting him - not excessive.
Knocking him out, dragging him to my basement, putting him in a cage and calling my house North Gitmo - maybe excessive.
Juries are only involved after the fact. To expect someone in the panic of defending themselves against an intruder to parse all the consequences of pulling the trigger as against going to prison for trying to stay alive is asking a lot.
Ping!
All that is a function of state law. It varies considerably from state to state. In Texas we can use deadly force to stop "theft during the nighttime", and a host of other crimes, regardless of the threat to life and limb, but of course for that reason as well.
I recall a case about 5 years ago in San Antonio. A kid, about 14 IIRC, broke in to a guys chicken coop, unarmed. Chicken owner shot him dead. Grand jury no billed. Theft during the night time.
YMMV.
Still it's a good idea to "fear for your life", just in case of civil proceedings by the relatives of the departed.
The case I cited was actually quite sad, given the totality of the kid's circumstances, BUT the relatives blamed the kid, not the guy who shot him, basically for terminal stupidity.
Agreed, but a competent jury will recognize that. To shoot a would-be burglar in the back when he's fleeing without any loot might be understnadable or it might be excessive force. Who better to determine that than a jury of your peers? Certainly not a politician writing a potential addition to the Criminal Code in his office.
And maybe not, if he's a Jihadie.
Best example of that sort of thing I can think of is fictional, but it involves creative use of a decompression chamber. (Without Remorse) (Never PO Tom Clancy, he's got a very devious mind)
Depends on the jury. Would much rather have legislation allowing home or personel defense than letting a jury decide.
I should hope the jury in question to be a grand jury. Cases of self defense involving a home and illegal intrusion should never survive long enough to go to trial. Happily, that's the usual case in Texas and is now code in Florida.
Theoretically, that sounds good on the face of it, but then you have loonies like Judge Jack B. Wienstein and prosecutors like District Attorney Mike Nifong out there. Do you want to reconsider?
You have two wrong assumptions.
L
Exactly! One must assume if a burglar breaks in that s(he) will do physical harm, including killing the occupants. So shoot to kill the intruder before s(he) kills you, your spouse or your children. If you don't have a gun, use an ax.
That is sound advice, found in many texts regarding self-defense. If you say something else, expect it to be brought out in a trial, and the consequences could be dangerous to your freedom. Ignore this advice at your peril.
Criminy- next we'll learn car owners can drive as long as they don't use excessive speed or malicious intent. http://sacredscoop.com
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