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Colorado self defense law eyed in home shooting
Denver Post ^ | 31 December, 2008 | AP

Posted on 01/01/2009 12:56:02 PM PST by marktwain

Related Articles

Dec 30: Pounding on the wrong door a fatal mistake in Springs

Springs homeowners kill burglary suspect Dec 29:

COLORADO SPRINGS, Colo.—Prosecutors are considering whether a Colorado law meant to protect homeowners against intruders applies in the case of a man killed outside a house he thought was his.

The parents of 22-year-old Sean Kennedy said detectives have told them their son, who had been drinking, was shot Sunday night after breaking a window to try to get in through the back door of a house a block away from where he lived.

-------------------cut-----------------------------

"It gets murky if the door is broken but not open," he said. Investigators are also likely to consider whether Kennedy was warned before being shot.

While the people at the house called police to report that they believed a burglary was occurring, police have not said how long after the call the shots were fired.

"The time frame will be key," Webster said. "It sounds like they were trying to do the right thing and get law enforcement there."

(Excerpt) Read more at denverpost.com ...


TOPICS: Crime/Corruption; Culture/Society; Extended News; US: Colorado
KEYWORDS: banglist; colorado; coloradosprings; homedefense; shooting
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More information than we had before. I think it is very relevant that he actually broke the window on the door, rather than just pounding on it.
1 posted on 01/01/2009 12:56:03 PM PST by marktwain
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To: marktwain

Here is the link to the previous story:

http://www.freerepublic.com/focus/f-news/2156196/posts


2 posted on 01/01/2009 12:58:09 PM PST by marktwain
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To: marktwain

You’re right. I had no idea the drunk man broke a window.


3 posted on 01/01/2009 12:59:52 PM PST by vladimir998 (Ignorance of Scripture is ignorance of Christ. St. Jerome)
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To: marktwain

Breaking into someone elses house is the definition of a burglar. How do they know he thought it was his house. Maybe he just thought their stereo should be his.


4 posted on 01/01/2009 1:01:06 PM PST by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: marktwain

Ah, the fickle of fate. Sometimes, things are really murky. If this kid had been sober and intent on home invasion, we’d not be having this conversation. Of course, the homeowner probably couldn’t have known either way.


5 posted on 01/01/2009 1:02:43 PM PST by umgud (I'm really happy I wasn't aborted)
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To: umgud

If you’re so drunk that you get your home confused with someone elses you are in pretty darn bad shape.

Sad but based on the story I’d have to support the people that actually lived there vs the drunk who may have thought he did.


6 posted on 01/01/2009 1:04:21 PM PST by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: driftdiver
Ever see a housing development where every single house looks identical to every other house? Kind of like 1987 and you own a Caravan and you go to the grocery store and lose your car in a sea of gray Caravans.
7 posted on 01/01/2009 1:07:00 PM PST by muawiyah
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To: vladimir998
Yeah. . .drunk or not, dumbest mistake he ever made, or will make.

Compare the numbers: How often do drunks try and break into the wrong home, versus how many criminal break-ins and home invasions are there?

If you wish to play the odds and allow the guy to effect entry, that is your choice (not saying you would). However, once in, I am sure he can be reasoned with, and if not, shooting at close quarters at a moving target is so easy, I see it done all the time on TV.

So, the situation is basically, bet your life and the life's of your family that it is some poor drunk just lost, or bet that the insane idiot on the other side of the door, breaking said door, is a determined criminal. In fact, he IS a criminal, as he would be breaking into a home that is not his.

I feel sorry for the homeowner.

8 posted on 01/01/2009 1:08:21 PM PST by Hulka
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To: vladimir998
You’re right. I had no idea the drunk man broke a window.

Yea that was left out of the first article posted earlier.

The parents of this poor soul have no idea what the son's intent was or no reason to think he was just at the wrong house. The owner of the house, however, had every reason to believe that somoneone was trying to get into his house. That is enough of a threat to warrant self defense.

9 posted on 01/01/2009 1:08:55 PM PST by PistolPaknMama (Al-Queda can recruit on college campuses but the US military can't! --FReeper airborne)
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To: muawiyah

“Ever see a housing development where every single house looks identical to every other house?”

yes I have seen those. Never been so drunk that I couldn’t figure out where I lived though. If he was that drunk he shouldn’t have been driving.

Regardless, doesn’t really matter. He broke into a home that was not his. The only part that really matters is he evidently had not entered the home yet.


10 posted on 01/01/2009 1:10:28 PM PST by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: driftdiver
True enough, he didn't get in, but he did get shot. He lived in the neighborhood in an otherwise identical house.

I think the homeowner is in some difficulty here.

11 posted on 01/01/2009 1:14:11 PM PST by muawiyah
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To: marktwain

I’m with the homeowners on this one. It’s a tragic story, but the homeowners did nothing wrong. They didn’t know the kid was so drunk that he thought their house was his. They had no way of knowing what his intent was, and its not incumbent upon the homeowners to determine an invader’s motives.


12 posted on 01/01/2009 1:14:47 PM PST by JamesP81 (Let the Great RINO Hunt of 2009 begin)
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To: marktwain; kms61; thefrankbaum; Mark was here; YdontUleaveLibs; Tijeras_Slim; thackney; cups; ...

More information than we had before. I think it is very relevant that he actually broke the window on the door, rather than just pounding on it.


13 posted on 01/01/2009 1:16:53 PM PST by marktwain
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To: marktwain
I stand with the home owner. It is sad the young man was shot, but he was so drunk he did not know it wasn't his house.....really?
Bottom line he broke a window to get in the house, defines burglary/robbery.
14 posted on 01/01/2009 1:17:26 PM PST by svcw (Great selection of gift baskets: http://baskettastic.com/)
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To: marktwain

The broken window demonstrates clearly his intent to enter the dwelling. It will be interesting to see if the homeowner is indicted, and if so, convicted.

Thanks for the update.


15 posted on 01/01/2009 1:18:33 PM PST by Tijeras_Slim
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To: marktwain
BTTT

16 posted on 01/01/2009 1:22:03 PM PST by Uri’el-2012 (Psalm 78:35 And they remembered that God was their ROCK, And the Most High God their Redeemer.)
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To: muawiyah
I think the homeowner is in some difficulty here.

Agreed--our society has gone mad.

17 posted on 01/01/2009 1:22:41 PM PST by Gondring (Paul Revere would have been flamed as a naysayer troll and told to go back to Boston.)
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To: marktwain

Thanks for the update. This does make it more difficult. Still not 100% sure where I stand on it though.


18 posted on 01/01/2009 1:23:22 PM PST by NinoFan
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To: muawiyah

“True enough, he didn’t get in, but he did get shot”

Sure he got in, when he broke the window he broke the plane between inside and outside. Good shot for the homeowner


19 posted on 01/01/2009 1:26:01 PM PST by Figment ("A communist is someone who reads Marx.An anti-communist is someone who understands Marx" R Reagan)
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To: marktwain

It does not matter what Mr. Kennedy thought, it matters what the homeowners thought was happening in the middle of the night. Sad story, but sometimes mistakes are fatal Mr. Kennedy.


20 posted on 01/01/2009 1:26:36 PM PST by Lockbox
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To: marktwain
Kennedy was an assistant golf pro at a Colorado Springs golf course. He was going to compete next month in The Gateway Tour, a developmental golf league for the PGA Tour.

Must have been going for the John Daly school of drunks. Too drunk to know where he lived? That's plenty damn drunk. Too drunk to call his mama and papa? Where did he get drunk at? The corner bar? How did he make his way to this house, on foot, by cab?

21 posted on 01/01/2009 1:29:29 PM PST by csvset
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To: driftdiver

Okay, I confess... I’ve been sloshed a time or two but have NEVER mistaken my house for someone else’s. And never would.

Heck, a person doesn’t even mistake someone else’s car in a public parking lot for his even when it’s the same color, year, make and model. Never mind the license plate, there’s always something about someone else’s car that tells you it’s not your car. It may look pretty similar at a distance, but as you get closer you can tell it’s not yours. Never fails — for me at least. And a whole house? Fuhgeddaboudit.

No, I think this drunk was very likely actually trying to break into his neighbor’s house.


22 posted on 01/01/2009 1:34:17 PM PST by LibWhacker
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To: marktwain

“It gets murky if the door is broken but not open,”

Not really.

It seems very likely he was reaching in to unlock the door after he broke the glass.

Case closed.


23 posted on 01/01/2009 1:35:59 PM PST by DB
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To: marktwain
Personally I would have done the same thing that the homeowner has done. I did a study ion college and the average time for the police to respond to a 911 call was 17 minutes. A lot can happen during that time. We as a nation have been lulled to sleep with the “Protect and Serve” rhetoric. The police always seem to show up after all is said and done and their duties are essentially to write a report after the fact. Hence my tag-line
24 posted on 01/01/2009 1:36:44 PM PST by NY Attitude (You are responsible for your own safety until the arrival of law enforcement officers)
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To: marktwain

I think it was very relevant that it wasn’t his house. The price of being drunk, belligerent and stupid is often very high.
Unfortunately, there has always been the division between the outside world and your castle, called the threshold. It has meaning in both the the common law and the statutes. A policeman who may not cross the threshold without consent or a Warrant is the reverse side of this coin. To feel particularly sorry for these “victims” is a slippery slope.


25 posted on 01/01/2009 1:37:16 PM PST by Steamburg ( Your wallet speaks the only language most politicians understand.)
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To: Tijeras_Slim

If the homeowner is a sympathetic character- normal, average good neighbor with a cute dog and kids, he’s probably safe.


26 posted on 01/01/2009 1:38:46 PM PST by Krankor (SH.)
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To: Figment
He wasn't inside, and inside means inside.

I know that if one of my loved ones had been shot like this just a block away the perpetrator(s) would need to relocate where I couldn't track them down.

27 posted on 01/01/2009 1:44:17 PM PST by muawiyah
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To: Figment
Did you catch this part: "The street numbers of the house, 3212, were the same as the house where Kennedy lived.".
28 posted on 01/01/2009 1:50:13 PM PST by muawiyah
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To: muawiyah

Don’t break a window in my house—you won’t stand a chance.


29 posted on 01/01/2009 1:53:09 PM PST by basil (Outlaw gun free zones!)
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To: basil

Don’t shoot my kids. They’ll never find your body.


30 posted on 01/01/2009 1:55:01 PM PST by muawiyah
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To: muawiyah
I know that if one of my loved ones had been shot like this just a block away the perpetrator(s) would need to relocate where I couldn't track them down.

Fine, be prepared to join your loved ones.

Break a door window in my house, with intent to enter, and prepare to meet a hail of lead.

His friends said he was in no state to notice the difference after spending the evening drinking and watching the Denver Broncos game at a friends house.

I would be more angry at 'friends' that let a blind drunk loose on society.

31 posted on 01/01/2009 1:59:41 PM PST by TC Rider (The United States Constitution - 1791. All Rights Reserved.)
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To: muawiyah

Keep your kids sober and from breaking a window in my house, and they’ll be just fine.


32 posted on 01/01/2009 2:00:59 PM PST by basil (Outlaw gun free zones!)
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To: marktwain

Breaking in a window is very different from pounding on the door. Still a lot of details to come out but It’s looking more like the homeowner was justified.


33 posted on 01/01/2009 2:04:01 PM PST by InABunkerUnderSF (Illegal Immigration is not about the immigration. Gun control is not about the guns.)
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To: muawiyah
Did you catch this part: "The street numbers of the house, 3212, were the same as the house where Kennedy lived.".

Yeaah, the next time someone is breaking into my house I'll ask for picture ID with street address. While I'm at it, I'll do a breathalyzer to make sure I'm not dealing with a stupid drunk. Maybe once I get 911 on the phone they can give me a criminal background check.

/s

34 posted on 01/01/2009 2:04:08 PM PST by TC Rider (The United States Constitution - 1791. All Rights Reserved.)
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To: TC Rider
TC, you can talk big but think about it ~ you just shot somebody's kid because he thought he was trying to get into his own house ~ you have the same street number, and live less than a block away.

Do you really expect to hang around that neighborhood long?

Do you really expect your neighbors, whose kid you just shot and killed, to exhibit more patience than you did when you shot him through the door?

Give me a break ~

If you weren't already on the road getting outta' that place you're just sitting yourself up for a "His presence and persistent cowering behavior, always looking at us, starring at us, we had to defend ourselves before he killed the rest of us. The man was insane and the police refused to do anything."

You might well be innocent in the eyes of Colorado law, but not likely that family. You're just a second funeral waiting to happen as far as they're concerned.

35 posted on 01/01/2009 2:05:15 PM PST by muawiyah
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To: marktwain
A slightly different story , from a Colorado Springs newspaper.

Case could test state’s ‘Make My Day’ legislation

LANCE BENZEL and SUE McMILLIN

December 30, 2008 - 10:27PM

Detectives have privately conceded Sean Kennedy was shot while drunkenly trying to enter what he thought was his apartment, the parents of the man slain in north Colorado Springs on Sunday night said.

Whether that tragedy was criminal remains to be seen. The case could test the boundaries of Colorado's so-called "Make My Day" law that allows home owners to use deadly force in self-defense.

Kennedy, a 22-year-old golf pro in Colorado Springs, became the 25th homicide victim of the year in the city, in what police spokesman Lt. David Whitlock called a "terribly tragic event."

Police, who say Kennedy was trying to break in, say they will defer to the 4th Judicial District Attorney's Office on whether the shooter is protected under the Make My Day law. Their investigation will be completed and sent to the prosecutor's office "no later than the week of Jan. 5," police said in a statement.

Under the law, the occupants of a home may resort to force if someone has entered unlawfully to commit a crime. Kennedy never got inside, police said.

The shooting happened about 10 p.m. Sunday at 3212 Virginia Ave. Kennedy lived in an apartment with the same number, at 3212 N. Institute St., one block to the west in a squat, ranch-style house similar to the one where he was shot.

"He had broken the window and was trying to get in the back door, thinking he was getting in the back of his own house," Kennedy's mother, Lisa Kennedy, said she was told by police. "The detectives agreed from everything we told them and from the way things looked that was pretty much what happened."

Property records indicate the home is owned by James R. Parsons.

Police said two adults were home at the time, but did not provide the name or gender of the shooter. Parsons could not be reached for comment, and no one answered the door on Tuesday. A phone message was not returned.

The Virginia Avenue home has a chain-link fence closing off the backyard. Kennedy's apartment had a wooden privacy fence. Friends said Kennedy had spent the day drinking while watching the Denver Broncos game at a friend's house and was likely in no condition to spot the differences.

Whitlock wouldn't to comment on Lisa Kennedy's account, but acknowledged the case will likely hinge on a homeowner's right to self-defense.

"Obviously, there are several nuances in this investigation," Whitlock said.

David Webster, a defense attorney who spent 10 years as a prosecutor, said that not enough information is available to know if the shooter has a case under the Make My Day law.

"It gets murky if the door is broken but not open," Webster said, adding that it might also depend on whether the resident shot through the door.

Other factors that investigators likely will consider: the age of the residents, their physical size, whether they warned Kennedy to get away and Kennedy's actions and demeanor while he was on the property.

The residents called 911 and reported a burglary in progress, but police have not said how much time elapsed between the call and the shooting.

"The time frame will be key," Webster said. "It sounds like they were trying to do the right thing and get law enforcement there."

The public's heightened awareness of recent home invasion type-robberies has people worried about their safety, he said.

Although some people might suggest that residents retreat into the safest place they can find in the house and hope police arrive before an intruder finds them, Webster said people have "no duty to retreat" under Colorado law.

"The idea behind the Make My Day law is that people should feel secure in their house or home," he said. "Why should a homeowner have to retreat into their home?"

If the Make My Day law doesn't apply, the general self-defense statutes might, Webster said.

While the shooting was debated in public, Kennedy's family mourned.

He is survived by his parents, Grant and Lisa Kennedy, and two older siblings: Travis, 30, and Rebekah, 25.

Friends and relatives gathered at his parents' home Tuesday, remembering Kennedy as a "wonderful kid" who loved hunting and fishing and "would have done anything for anybody," his mother said.

"He was this kind-hearted, courteous young man who loved life," she said. "He loved his Lord, and he's with him now."

Sean Kennedy, who worked as a golf pro at Patty Jewett and Kissing Camels golf courses after graduating from Coronado High School in 2004, never had a professional lesson, Grant Kennedy said. He refined his natural talent on a family ranch in Falcon, where night after night, Sean Kennedy, his father and his brother would drive balls into the pasture until dark.

"The reason he played golf was to get a ranch of his own some day," he said.

The viewing will be from 4 to 8 p.m. Thursday at The Springs Funeral Services, 3115 E. Platte Ave. The memorial service is at 10 a.m. Friday at Woodmen Valley Chapel, 250 E. Woodmen Road, and a burial at Fairview Cemetery, 1000 S. 26th St. After the burial, there will be a potluck at Flying W Ranch, 3330 Chuckwagon Road.

-

Contact the writer: 636-0366 or lance.benzel@gazette.com


Colorado's Homeowners Protection Act

The text of Colorado's Homeowners Protection Act (Colorado Revised Statute number 18-1-704.5 - Use of Deadly Physical Force Against An Intruder), otherwise known as the "Make My Day" Law:

(1) The General Assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

36 posted on 01/01/2009 2:06:39 PM PST by csvset
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To: basil

Change your street number, paint it a different color, replace your glass with stronger 1” plexiglas, and learn to recognize your neighbors (like I always do) and you won’t be so subject to irrational paranoia.


37 posted on 01/01/2009 2:07:03 PM PST by muawiyah
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To: muawiyah

Give it a break!


38 posted on 01/01/2009 2:11:22 PM PST by basil (Outlaw gun free zones!)
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To: basil
You give up?

Entirely too easy ~ no perseverence ~ just pull your gun, shoot through the door, make the noise stop.

Doggone, did I ever peg you right.

Notice in that latest revision of the story the people lived in the place are gone!

They are smart.

39 posted on 01/01/2009 2:13:04 PM PST by muawiyah
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The drunk bastard couldn't read. He's dead now and the world is better off without him.

Did the world really need yet another drunk golfer?

40 posted on 01/01/2009 2:13:48 PM PST by csvset
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To: muawiyah

“He wasn’t inside, and inside means inside.”


It seems quite likely that at least part of him ( his arm as he tried to reach the door latch) was inside as he attempted to complete the break in.

So, how much has to be inside for him to be inside?


41 posted on 01/01/2009 2:14:13 PM PST by marktwain
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To: JamesP81

“and its not incumbent upon the homeowners to determine an invader’s motives.”

Actually it is. For them to consider him a threat, they have to determine the motive. Thats not to suggest that they can’t error in there determination, but they do have to make one.

There could actually be valid non criminal reasons to break into somebody’s house. Suppose you were driving along and saw a fire in and upstairs window... knocked or rang the bell and nobody answered?

Or suppose you knocked on the window and for some reason it broke. You do ned to make a reasonable determination before you open fire if the person is outside your house.


42 posted on 01/01/2009 2:15:00 PM PST by babygene (It seems that stupidity is the most abundant element in the universe)
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To: marktwain
Haven't seen anything about arm through broken window except suppositions here. You have a newspiece that specifically says that?

Maybe they shot him through the glass ~ I did look for something about which way the glass was scattered but the cops haven't yet said. Could make a lot of difference.

43 posted on 01/01/2009 2:16:41 PM PST by muawiyah
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To: marktwain
Frankly, I don't see what the problem is. He was breaking into a home that wasn't his own. Drunkeness and confusion don't excuse that. After all, it is the intent of the homeowner, not the breaker-inner (is that a word?) that counts.
44 posted on 01/01/2009 2:18:15 PM PST by chesley (A pox on both their houses. I've voted for my last RINO.)
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To: babygene

“Actually it is. For them to consider him a threat, they have to determine the motive.”


I believe that you are referring to the “reasonable person” doctrine. If that is the case, they do not actually have to determine the motive, only determine what a reasonable person might consider the motive to be. There is a big difference there. Actual motivation is one of the murkiest subjects that there is. A reasonable person has to act on what they observe and know.


45 posted on 01/01/2009 2:19:22 PM PST by marktwain
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To: muawiyah
Why? The home-owner had no way to determine his intent or sobriety, did he?
46 posted on 01/01/2009 2:19:54 PM PST by chesley (A pox on both their houses. I've voted for my last RINO.)
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To: chesley

Sometimes a cigar is just a cigar.


47 posted on 01/01/2009 2:24:26 PM PST by muawiyah
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To: muawiyah

You misinterpreted my message. I meant for YOU to give it up. I will defend myself and my home from criminal intrusion. If a “kid” is that drunk, that’s too bad, but he made the choice to get drunk. Once someone invades my home by breaking a window, and I’m in that home, I will protect me and mine. If you choose to do otherwise—I have no problem with that, either.


48 posted on 01/01/2009 2:26:08 PM PST by basil (Outlaw gun free zones!)
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To: driftdiver
When you drink enough to not even know which house is your own.....you are drinking way too much!

I think the grief-stricken father is keeping this thing going and wants the blame deflected away from his kid.

I feel bad for the father losing his son in such a way, but the homeowners had every right to believe the kid was a burglar and acted in self-defense, IMO.

49 posted on 01/01/2009 2:27:56 PM PST by moondoggie
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To: marktwain

“I believe that you are referring to the “reasonable person” doctrine.”

I covered that when I said “Thats not to suggest that they can’t error in there determination, but they do have to make one.”


50 posted on 01/01/2009 2:28:06 PM PST by babygene (It seems that stupidity is the most abundant element in the universe)
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