Skip to comments.Attempted burglary raises self-defense issue(VT)
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 theyre in a dangerous incident, said Michele Martinez Campbell, an associate professor at Vermont Law School. When youre in harms 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 States Attorneys 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 whats reasonable in such incidents can be difficult to pin down.
It varies according to the situation, Martinez Campbell said. A persons fear of bodily harm or death is a very subjective point of view. Whats 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 isnt 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 doesnt mean youre 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 youre able rather than use a firearm if one were available.
In the context of a persons 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 Bizons 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, Bizons 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 didnt recognize outside and shot him in his car.
In their decision rejecting Littles 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 Pashos part until he was attacked by defendant.
As an aside, it is comes the closest, of any case that I know of, where a homeowner was charged and convicted of shooting someone who was breaking into their home. American juries believe that a person's home is their castle, and they act accordingly.
“I feared for my life”.. Say it often, like every other sentence.
Come into my home uninvited in the dead of night if you will. The night won’t be the only thing dead.
In case of an armed robber or intruder, a reasonable person would assume that the weapon is intended to be used. That includes a crow bar or tire iron being used for breaking and entering, as far as I am concerned.
Just because someone is in your house doesnt mean youre in jeopardy, Cacciatore said.”
You’re in my house uninvited in the middle of the night - I’m looking at being in jeopardy and I’m thinking deadly force.
What idiots some of these people are.
The fact that they broke in while I was at home is clearly an intent to do violence. They believe that they will be able to subdue me, or kill me. They can only assume that I would resist. Therefor I am not going to see what weapons they brought till I drop them.
I may be old, but I am not stupid.
Come into my home uninvited in the dead of night if you will. The night wont be the only thing dead.
I considered how safe my family was while cleaning the shotguns and handguns. We have a dog, alarm, fence and capable shooters with loaded firearms in touch safes from the sleeping position. Though I have ended up on the front lawn on a couple of occasions when the dog went nuts in the middle of the night, I feel pretty safe too.
I also have 6 fire extinguishers in the house, one next to my bed. I hope to never have to use any of my protection devices for protection.
Exactly! Only an attorney could ask how you could be sure you were in danger with a straight face.
I would love to ask that attorney where he lives and send someone over to his house in the middle of the to steal a gallon of milk from his fridge. "How did you know he wasn't breaking into your house to steal some milk?"
But in the Vermont case, the woman did not use deadly force. No one died. She fired three rounds from a firearm. It might as well have been firecrackers.
What if she was loaded with blanks? Would it be deadly force then?
Note to Santa: Phone this guy before you get there.......
More proof that we are in more danger because of lawyers than criminals breaking into our houses.
If, as these mental midgets claim, it is too difficult to determine if one is in danger from someone breaking into their house, then it is proof positive the greatest evil are the lawyers.
Once you enter my house, uninvited, in the middle of the night, I don’t care what your intent is, you will be laying in a pool of your own blood. And if some JBT tries to arrest me for such an action then From My Cold Dead hands come to mind.
Does one have to prove that they have not an ounce of common sense to be a law professor or DA in Vermont?
(2.1) Except as otherwise provided in paragraph (2.2), an actor is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat if both of the following conditions exist: (i) The person against whom the force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within, a dwelling, residence or occupied vehicle; or the person against whom the force is used is or is attempting to unlawfully and forcefully remove another against that other's will from the dwelling, residence or occupied vehicle. (ii) The actor knows or has reason to believe that the unlawful and forceful entry or act is occurring or has occurred.
“Reasonable” is arbitrary and capricious and has no place in American law. It is an invitation to abuse.
“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. “
More range time needed.
I disagree. It is the very basis of our law of self defense. A jury gets to decide if you, knowing what you knew at the time, in the situation that you were in, acted reasonably in believing that you were under a serious threat.
It is not perfect, but it works pretty well most of the time.
The full statement is “I feared for my life and fired to stop the threat. That is all I will say until I have my lawyer present.”
Oh, and then be sure to say nothing else, just to make it explicit.
Just because someone is in your house doesnt mean youre in jeopardy, Cacciatore said. The question that is key in these things is what is the immediacy of the threat?
Texas=Castle Doctrine. Come on down!
"Reasonable" is open for subjective judgment, which is precisely the purpose of a jury. It would be nice if it could be more specific, but that would create unreasonable loopholes for murder, and any specificity you might write into the law, would be up to a DA and jury to apply validity to.
Did the man break into your home with the knife or was he invited in, shot, and a knife placed in his hand?
Not many break in’s into occupied homes have happy endings for all concerned. Better to make sure it is a happy ending for society with one less piece of human detritus floating about.
The burgler broke into the BEDROOM window. Not the living room or kitchen window, the BEDROOM window.
That should be enough right there.
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.
I imagine he could could tear even this most staightfoward sentence apart. Pretty sad really.
Yes, it does.
Anyone who forces their way into a house or is attempting to do so should be thought of as a clear and present threat. This includes any dwelling such as a trailer, tent, tar-paper shack or anywhere people live.
His story was that he saw an armed man had broken into his house, he had his own firearm, he told the man to stop, the man ‘lunged’ at him, and he fired his weapon and killed him.
Some FReepers thought he should have just wasted the guy, and then told the nice law officers how smart he was by laying in wait and executing him without exposing himself to greater danger via warning the armed intruder.
I like how he added how the armed intruder “lunged” at him. That was a perfect story. Why an armed man would need to ‘lunge’ at someone instead of firing a projectile is unknown - but it makes a perfect story - whereas the “smart” thing to do made a very very bad story to tell the officials.
Oh yeah, that is a great video, I’ve watched it a couple times, linked to it several times here. And I’d feel OK with what I posted there, given a self-defense shooting situation.
Dont Talk to Police
Which is why Texas just updated our Castle Law.
You can use deadly force just to defend your property.
Texas Castle Doctrine
According to the Castle Doctrine or Defense of Habitation Law of Texas, a person can reasonable protect him or herself against another persons use or attempted use of unlawful force. The person acting must also not have provoked the other person.
A degree of reasonable protection includes counteracting a person who:
unlawfully or forcefully enters or attempts to enter the victims place of residence, vehicle, or place of employment.
forcefully removes the victim from his or her place of residence, vehicle, or place of employment.
commissions or attempts to commission a kidnapping, homicide, rape, aggravated rape, robbery, or aggravated robbery.
In Texas, a person can justifiably and potentially use deadly force against another individual if: he or she believes deadly force was necessary at the moment, believes he protected him or herself against attempted deadly force, prevented an act of kidnapping, homicide, rape, aggravated rape, robbery, or aggravated robbery.
In addition, the occupants of the habitat must be in the habitat legally. If the occupants are considered to be fugitives or are using the Doctrine to provide assistance to fugitives, any of their actions are not justified by Texas law.
Texas law is known by many to be one of the toughest in the land. Texas is hard on criminals, but also adamant about allowing owners to retain their properties.
Thanks for the link! And I would probably end up saying the same thing. Luckily where I live you can use deadly-force to stop a felony, so not quite the level that they have in Vermont.
Great in theory. In reality, the victims/suspects are put through hell and lawyers get rich.
What planet did this freaking idiot come from? He should be deported to California where he'd be right at home.
That wasn't an attorney. It was state police Lt. Charles Cacciatore.
Massad Ayoob ~ “In the Gravest Extreme”
“You can use deadly force just to defend your property.”
Be very careful there my FRiend. Castle laws are written such that someone simply breaking in is considered a threat worthy of deadly force. It is not meant to allow people to use deadly force to protect their property.
This is outrageous! I can’t even put it into words.
Just because someone is in your house doesnt mean youre in jeopardy, Cacciatore said.
What? this guy is nuts!
Get yourself to a LFI course. The info is amazing. Search YouTube for Mas' vids. Well worth the effort.
Hadn’t thought about leaving a note for Santa. Thanks for the heads up. Do want to hurt the guy in the red suit.
The Castle Doctrine in Texas was successfully stress tested in court a month after it was passed in 2007. It applies to your vehicle also.
The interesting permission that Texas law gives is in the case of “robbery” in addition to “aggravated robbery”. This goes against the USSC ruling in the case where a farmer set up a trap to kill anyone robbing his abandoned house, http://en.wikipedia.org/wiki/Katko_v._Briney. If you have some references on Texas’s ruling on “robbery”, again I’m interested.
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.
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.
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.
I just looked it up. Thanks for the clue about Dallas and the garage. http://en.wikipedia.org/wiki/Joe_Horn_shooting_controversy 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.
Here you go - it is very good:
It's about 45 minutes of good info, well worth the time to watch. Enjoy!
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.
I agree very dumb idea.
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.