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Attempted burglary raises self-defense issue(VT) ^ | 20 November, 2011 | Brent Curtis

Posted on 11/21/2011 10:46:05 AM PST by marktwain

When Patricia Billings fired a handgun at an intruder reportedly breaking through her bedroom window in Rutland Town last week, the legal ramifications were probably the furthest thing from her mind.

“No one thinks of self-defense law when they’re in a dangerous incident,” said Michele Martinez Campbell, an associate professor at Vermont Law School. “When you’re in harm’s way, you do what you have to do.”

In Billings’ case, police say the 49-year-old fired three rounds from a handgun at a man trying to enter her home on Tuesday. The intruder fled the property on Quarterline Road leaving behind no evidence that any of the bullets found the mark.

As police continue to search for the home invader, state police Lt. Charles Cacciatore said the Rutland County State’s Attorney’s office has indicated that no charges should be brought against Billings for her actions during the incident. Billings could not be reached for comment.

But Cacciatore said it is possible that police may be called on to investigate the attempted use of deadly force if the intruder — once found and arrested — files a complaint.

The idea that a homeowner like Billings — who bought the handgun she used after her home was burglarized in August — could be at fault in the incident may appear strange.

But provisions for self-defense claims in Vermont — and nationwide — require that certain elements exist to be justifiable uses of deadly force.

Perhaps the most important element that must be proved in self-defense claims is that the person exercising deadly force had a “reasonable belief” that they were in jeopardy of being seriously harmed or killed, said Martinez Campbell and Assistant Attorney General John Treadwell.

But deciding what’s “reasonable” in such incidents can be difficult to pin down.

“It varies according to the situation,” Martinez Campbell said. “A person’s fear of bodily harm or death is a very subjective point of view. What’s “reasonable” has to be decided through an analysis of what a reasonable person would have thought.”

A tricky process to be sure, she said, and one that requires — to a certain extent — that police and prosecutors put themselves in the shoes of the person making a self-defense claim.

In Billings’ case, for example, any analysis of reasonable use of force would have to factor in the fear generated by the earlier burglary at her home four months ago.

Histories between individuals, including issues such as prior domestic assault, could also be factors during reviews of self-defense claims, she said.

But fear of serious harm alone isn’t enough to justify the use of lethal force, Cacciatore said.

In the same way that police officers must prove their own decisions to use deadly force, homeowners and anyone else in Vermont who kill to defend themselves must show that the threatening individual had the ability to do harm, the opportunity to carry out the threat and the threat of harm must be “imminent.”

“Just because someone is in your house doesn’t mean you’re in jeopardy,” Cacciatore said. “The question that is key in these things is ‘what is the immediacy of the threat?’”

Cacciatore, who said he has conducted self-defense discussions in classroom settings, says he has often asked students to measure the threat in inches. Is a man brandishing a knife 5 feet away from your position a threat? What about if the same person is 10 feet away? Or what if there is a locked door between you and your assailant?

“It comes down to when are you in immediate danger of harm to yourself and when does that immediacy no longer exist,” he said. “And if you can articulate how afraid you are in a given situation then you could be in jeopardy.”

But the analysis is further nuanced by the fact that Vermont, unlike some other states, does not have a so-called “duty to retreat” — a concept that requires a person to exercise nonlethal means of escaping a dangerous situation before resorting to force.

“Say someone came up to you in your car and they were presenting an immediate threat to your life,” Martinez Campbell said. “A duty to retreat would require you to drive away first if you’re able rather than use a firearm if one were available.”

In the context of a person’s home, the discussion becomes even more clouded under the language of a Vermont law that defines justifiable homicides in part as killings that take place “in the suppression of a person attempting to commit murder ... burglary or robbery with force or violence.”

In the context of an attempted burglary carried out through forced entry into a home — an act often involving the use of some tool — the statute would seem to apply to a broad number of incidents reported regularly in the state.

And the statute has been the cornerstone of more than one self-defense claim involving interrupted burglaries — including a well-known case in Rutland County involving the death of a 17-year-old high school junior in 1991.

In that case, 46-year-old Robert Bizon of Clarendon shot and killed James Ashcroft during a burglary in which Ashcroft and several other high school students were breaking into Bizon’s garage to steal a bottle of whiskey.

Bizon, whose case went to trial, was acquitted of a manslaughter charge brought against him even though evidence presented at the trial indicated that Ashcroft and the other intruders were running away when Bizon fired four shots from a .357 Magnum handgun.

During the trial, Bizon’s attorney, Peter Langrock, argued that his client believed his life was in danger when he saw the youths running out of his garage in the dead of the night — one of them with a tire iron in his hand.

But the same argument has failed homeowners in other cases, including Chittenden County resident Frederick A. Little, who was found guilty of second-degree murder for the 1993 shooting of a friend he mistook as an intruder when the man entered his bedroom and began crawling toward the bed in the middle of the night.

Little,who leapt out of bed and wrestled with the victim, Robbie Pasho, argued in an appeal to the state Supreme Court that he acted to interrupt a burglary when he chased Pasho — who he told police he didn’t recognize — outside and shot him in his car.

In their decision rejecting Little’s appeal, the high court wrote, “It is clear that it requires evidence that the victim acted ‘with force or violence.’ ... There was no evidence of force or violence on Pasho’s part until he was attacked by defendant.”


TOPICS: Crime/Corruption; Culture/Society; News/Current Events; US: Vermont
KEYWORDS: banglist; burglar; defense; vt
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To: MontaniSemperLiberi

actually in Texas we still have the sundown law you can legally shoot someone just for steeling property after sundown written back in the cattle rustling days. And the Texas Castle law does say now for defense of property. There was a case in Dallas where a guy killed someone robbing his garage and he got no-billed.

41 posted on 11/21/2011 5:06:47 PM PST by pwatson
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To: eccentric

So let’s hear your wording for a law that will always prevent those honestly defending themselves from ever going to court, while also protecting innocent people from being murdered by those falsely claiming self defense. Honestly, I want you to provide the example.

42 posted on 11/21/2011 5:10:20 PM PST by SampleMan (Feral Humans are the refuse of socialism.)
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I beg to differ.

“Reasonable” means that the jury can use their own judgement as to “If they were in that person’s shoes at that time, with that situation, would they have shot him?”

I’d rather put my trust in the jury in this case, rather than a bunch of pinhead lawyers, especially the DA and the judge.

43 posted on 11/21/2011 6:25:33 PM PST by NVDave
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To: pwatson

I just looked it up. Thanks for the clue about Dallas and the garage. In my mind the guy was dumb. Police were coming and he decided to put himself in a bad situation, in the yard with the burglars. Yes, he had a right to go into his yard and a right to defend himself but it was a bad place to be. If he had sniped them from a distance just to protect his property, I think we’d be looking at another USSC case.

44 posted on 11/21/2011 7:22:42 PM PST by MontaniSemperLiberi (Moutaineers are Always Free)
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To: 21twelve; FreedomPoster; marktwain
There is a video on the web with some lawyer making some GREAT points about not saying ANYTHING, EVER to a cop without a lawyer. Very interesting too. It was amazing how he could put up scenarios on how even the most innocuous statements could be used against you.

Here you go - it is very good:

It's about 45 minutes of good info, well worth the time to watch. Enjoy!

45 posted on 11/21/2011 10:31:40 PM PST by brityank (The more I learn about the Constitution, the more I realise this Government is UNconstitutional !!)
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To: SampleMan

On this post? lol Laws are not made in less than 10,000 words increments.

46 posted on 11/21/2011 11:26:47 PM PST by eccentric (a.k.a. baldwidow)
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To: eccentric
On this post? lol Laws are not made in less than 10,000 words increments.

I'm not laughing. Please share with us how you are going to write a law that automatically determines innocence or guilt, but doesn't allow the guilty to walk (without a trial).

And criminal laws are rarely long. Shorter and clearer is best, with juries deciding the issue of applicability. Only regulatory laws run more than a few paragraphs.

The 10 Commandments and the Bill of Rights are both prime examples of concise brevity.

Here is the Pennsylvania self-defense law in its entirety. It is accompanied by background statements and a list of definitions, but here is the law:
The General Assembly finds that:
(1) It is proper for law-abiding people to protect themselves, their families and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.
(2) The Castle Doctrine is a common law doctrine of ancient origins which declares that a home is a person's castle.
(3) Section 21 of Article I of the Constitution of Pennsylvania guarantees that the "right of the citizens to bear arms in defense of themselves and the State shall not be questioned."
(4) Persons residing in or visiting this Commonwealth have a right to expect to remain unmolested within their homes or vehicles.
(5) No person should be required to surrender his or her personal safety to a criminal, nor should a person be required to needlessly retreat in the face of intrusion or attack outside the person's home or vehicle.

Short and sweet, but a DA and possibly then a jury must still decide whether a homicide was self-defense. It is impossible to write laws that do not require human judgment to enforce.

47 posted on 11/22/2011 5:49:34 AM PST by SampleMan (Feral Humans are the refuse of socialism.)
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To: MontaniSemperLiberi

I agree very dumb idea.

48 posted on 11/22/2011 10:23:14 AM PST by pwatson
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To: pwatson; MontaniSemperLiberi

I have to disagree. MSL, as you stated upthread, he had the right to go into his yard, and he had the right to defend his property. In this case, he also set an example to a demographic that requires instantaneous punishment for transgressions, or it just doesn’t sink in to their heads. I feel it was a good move, however callous others may see that.

49 posted on 11/22/2011 6:57:03 PM PST by Sarajevo (Is it true that cannibals don't eat clowns because they taste funny?)
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