Man who killed burglar faces manslaughter charge

The Register-Guard(Oregon) ^ | 05/26/2002

[AppyPappy]

Yup. Never shoot anyone who isn't a threat. Even if you don't get busted, the family will sue for lost income.

[tracer]

"I, on the other hand, have spent the better part of three decades in the legislative halls, the courts, and the law libraries...."

Hey, don't tell us your troubles or make excuses..... 8~)

[Destructor]

The push is on to make self-defense, and defending your property a crime.

[DETAILER]

Louisiana has a "shoot the burglar" law.

Yes, we do , but it is also one of those that requires that you "feel threatened by bodily harm" - I talked with a deputy not long ago about this very subject- he say's if someone is actually in the process of breaking into your house, as in cut the screen or broke the glass- shoot him. If they are already in the house, shoot him. If he's in the yard running away - don't shoot him. We do also BTW have a carjacker law, if someone runs up to your vehicle and attempts to get in- fire away. I'm not sure if that one is outside of Shreveport or not though, don't quote me. It is legal in Shreveport.

[TC Rider]

Stick yourself in the arm with a knife, place the knife in the perp's dead hand.

Gun store commando comments always sound good, but will buy you nothing but hurt.

Play by the rules, tell the truth with a clean conscience and stay out of jail.

Try playing games with drop knives and guns and the cops will know you're lieing in a heartbeat.

[Pilsner]

Texas Penal Code

§ 9.41. Protection of One's Own Property

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

§ 9.42. Deadly Force to Protect Property,

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41 {potection of property}; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

[connectthedots]

I will predict right now, as a defense attorney with many years of experience, and generally well known, that this man will be convicted as charged and senctenced to serious jail time unless he can afford a quality attorney.

In what state do you practice law? I have $100 that says the guy will never go to trial unless he has an idiot defense attorney that talks him into a plea bargain.

If you would read the Washington statutes, any reasonable person would have to conclude that this guy acted within the law. I will go find them and provide the relevant portions, for about the 10th time on FR this year.

[HoustonCurmudgeon]

OK ....................

[connectthedots]

Here are the applicable statutes:

RCW 9A.16.010 Definitions.

In this chapter, unless a different meaning is plainly required:
(1) "Necessary" means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.
(2) "Deadly force" means the intentional application of force through the use of firearms or any other means reasonably likely to cause death or serious physical injury.

RCW 9A.16.020 Use of force -- When lawful.

The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction;
(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody; (my note: Theft of property with a value in excess of $500 is a felony in Washington. Before you start arguing, read the 'legislative recognition' down a bit further and note its mention of RCW 9.16.020)

RCW 9A.16.030 Homicide -- When excusable.

Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent.

You might also want to read RCW 9A.16.040 that applies to the use of deadly force by LEOs, but here is a legislative recognition that is part of RCW 9A.16.040:

Legislative recognition: "The legislature recognizes that RCW 9A.16.040 establishes a dual standard with respect to the use of deadly force by peace officers and private citizens, and further recognizes that private citizens' permissible use of deadly force under the authority of RCW 9.01.200, 9A.16.020, or 9A.16.050 is not restricted and remains broader than the limitations imposed on peace officers." [1986 c 209 § 3.]

Why did the legislature enact RCW 9A.16.040 in 1986? Could it be because of TENNESSEE v. GARNER, 471 U.S. 1 (1985)? I think so!

RCW 9A.16.050 Homicide -- By other person -- When justifiable.

Homicide is also justifiable when committed either:
(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

If you want, I will FReepmail my address so you can send the $100. Lest anyone else want to argue that the law is not as clear as I claim, please remember the rule of lenity.

CTD

[connectthedots]

In a news release, Prosecutor Jeremy Randolph noted that in 1962, the state Supreme Court ruled that private citizens can use force to stop a felon to the same extent that a police officer can.

However, the U.S. Supreme Court limited police, and thus citizens', use of force to situations in which life is in jeopardy, Randolph said. That did not appear to be the case when Hooker fired, he said.

Randolph is an idiot and needs to read my post #51.

[connectthedots]

While I disagree with you on the law of this case, at least in the state of Washington; I wholeheartedly agree with you that conservatives must share much of the blame for the derogation of civil rights in the United States. This has been done primarily by conservatives being much too quick to support Law Enforcement Agencies and the government, even when they abuse the constitutional rights of U.S. citizens. They seem to forget that the main purpose of the law, besides being the collective use of power to protect citizens from one another is to also protect citizens from, tyrannical government; something too many conservations fail to recognize or understand.

[FreeTally]

What I find interesting is this:

Under Florida law, the use of "deadly force" is permitted in the case of all forcible felonies - as a last resort. So this means, that if I pull a gun on a perp who, after seeing the gun still insists on burning a building down, raping a woman, kidnapping someone or beating someone, I can shoot and kill. Now, this seems contrary to the "deadly force only if your life(or someone elses) is in danger" argument that prosecuters want to use.

I have always wondered if I came home, and someone had soaked my house in gas, and was standing there about to light it up, what would the "law" say when I shot the person dead. My life wasn't in danger, just my property. The law seems to state I can shoot to kill as a last resort in all forcible felonies - and arson is one.

[CholeraJoe]

I believe that's the only state with that rule.

Louisiana also has a very liberal "Shoot the Burglar" Law.

LRS 14:20

§20. Justifiable homicide

A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle. The homicide shall be justifiable even though the person does not retreat from the encounter.

(4) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle. The homicide shall be justifiable even though the person committing the homicide does not retreat from the encounter.

[connectthedots]

Now, this seems contrary to the "deadly force only if your life(or someone elses) is in danger" argument that prosecuters want to use.

Government tyrants don't want you to know your rights. Under Washington law, this guy, as a private citizen, had the legal authority to use deadly force to arrest the guy. An LEO may not have had the same authority.

[connectthedots]

Read my post #51 and you can read the applicable statutes for yourself. A good attorney could have the charge dropped by the end of the week, or next week at the latest. This guy clearly acted within the law.

[stryker]

Why should I answer your question, which I can, when you fail to address any of my arguments. I'll not waste further time on someone whose mind is made up and only wishes to argue. Such are your tactics. It takes intelligence and the will and ability to learn and change in order to find the truth through reasoned arguement. I do not find these character traits within your writings thus far, boris, so I shan't be responding further.

[thrcanbonly1]

I agree wholeheartedly.

[stryker]

Washington's law does not appear to be the norm. Deadly force is only justifiable in response to the imminent use of force likely to cause serious bodily injury or death is the standard in almost all jurisdictions, the federal standard, and the ABA model standard. Washington appears to put private property of limited value above the value of human life. I find it hard to believe that one can kill in Washington to stop grand theft. But I have always believed that one ought to be able to use a weapon to attempt to hold the theif and if necessary maim him in order to protect one's personal property above a certain value. Killing though, when not necessary, for lowly valued property, I must question as unreasonable law. Yet, there is a part of me that wants to say that a person ought to be able to protect himself from theft, period, regardless of the means used. I guess that's the Washington part.