Blue Byline

A cop's perspective of the news and South Sound matters

When it comes to deadly force, there is no home base

Post by Brian O'Neill on Aug. 24, 2011 at 10:14 pm with 39 Comments »
August 29, 2011 11:08 am

Every now and then someone will decide I need to be informed about a particular legal loophole or fact that I somehow missed during my police career. While I am always eager to learn, I usually find myself inserting mental air quotes around such “facts.”

For instance, did you know that if you put a penny in your mouth you can defeat a breathalyzer?

Yes, I’ve heard about that. Piece of advice, though- when you get popped for your DUI and are directed to empty the contents of your mouth, call Mary at the public defender’s office. She’s cranky at 2AM, but very nice in court. And tell her I said hello.

Despite almost rupturing my eyeball from excessive eye-rolling everytime I hear this myth, it’s not too dangerous.

But then there’s this one: Did you know that if there’s a trespasser in your house you can shoot him?

This question, which gets asked repeatedly at block watches by citizen meetings or by friends at parties, came up recently as a result of the Trib story (8/18) regarding the North End burglar shot by a contractor. While that particular incident remains under investigation, the idea that your residence is a safe zone that can be defended by deadly force in any situation is simply not true.

Like anything else involving force, from a simple shove to running someone down with a semi truck, everything depends on the perceived threat at a particular moment. Because I enjoy using scenarios, I’ll try throw a couple at you.

In the first scenario, a hooded figure breaks through the slider door in your living room, slips inside and starts to unplug the TV. You see him from the kitchen, yell at him and pull out a firearm. He tries to race back out the rear slider, in a direction opposite to you, and you fire. He is shot and falls to the carpet. The police arrive and you tell the story. They see the ejected shell inside the kitchen, see the blood pooling by the slider door, with the bloody handprint on the lock. The burglar, the police surmise, was committing a felony property crime and was trying to flee when you shot him.

Probable end result: Get a lawyer, you’re in trouble.

Let’s change it up. The scenario is the same only you don’t shoot the burglar, who then flees out the door. You call him a few choice names as he runs through your yard, but then he stops. You’ve pissed him off, and now he’s turning around and advancing on you with his hands empty. You’re older, smaller and frailer than this tough young burglar, and you’re afraid he may get the gun away from you. You shoot him when he’s ten feet away and still in your back yard.

Probable end result: Self defense.

The difference between these two scenarios is simple. In the first instance, you would have an extremely tough job convincing anyone (much less twelve people) that your life, or someone else’s, was in imminent danger if you had failed to pull the trigger. Unless you could add background to your story, such as details not readily apparent that would add to the threat you perceived, then this would fall short of imminent danger. In the second instance, you are faced with an attacker who has already committed the felony crime of burglary, and you have a legitimate concern that you might be overpowered and seriously harmed. That would be tough to argue.

There really is no one safe place, no physical structure that will serve as your home base when it comes to keeping people out by the use of deadly force. The only “place” that is considered to be free and inviolable is a person’s body.

So if you or someone else is in jeopardy, it’s time to act. But if some idiot is getting away, unless he’s a serial killer carrying his latest victim, then you need to keep in mind that the court considers his safety more important than your TV.

 

Leave a comment Comments → 39
  1. pbr_macdaddy says:

    Is there some specific case law you can quote to support your examples? I’m not a lawyer or a judge, but the law as I read it allows the use of deadly force when there are reasonable grounds to prevent someone from committing any felony or inflicting personal injury, which traditionally has had a very broad interpretation.

  2. Dave98373 says:

    Washington state “castle” laws were designed to favor the homeowner should a criminal enter his house. Obviously, it doesn’t give you the freedom to kill anyone just because this thug is in your home. But most intelligent, rational people are not going to shoot a “trespasser” just because he happens to be inside your home. “Trespasser” by the way is not a good example. It may or may not meet a legal defintion. Usually, if someone is in your house at 2 a.m. he is not lost looking for directions. He means to do no good. And the stakes are raised if their are children in the house. Sorry, Brian. It is my responsibility to protect my family and friends when it comes to my house and will protect them and myself if need be…criminal’s rights be damned. I’d rather be judged by my peers of 12 than carried away in a box of my family of 6.

  3. keep you mouth SHUT when the cops come. All you need is to be in fear for your life or well-being. That perp that was at the back door reached into his pocket, and as a homeowner you thought he was reaching for a weapon. The police are not there necessarily to help you, they may be trying to string you up on charges. As long as you have a legitimate case for having a fear for your life, your well-being, or the well-being of another person, you have the right to defend yourself, others, and your property.

    Just because somebody has written a few tickets, and pointed a radar gun at cars does NOT make them a constitutional lawyer :).

  4. gogoDawgs says:

    I will agree with Brian on this one. It is never a good idea to shoot someone fleeing the scene, you will have some explaining to do. Shooting someone or even shooting at someone, whether in your home or any place you have a legal right to be (i.e. ‘stand your ground) is a serious decision. It is homicide and whether it is justifiable or not is the question of your defense.

    I say this as someone who has been slightly critical and have corrected Brian in other issues. I also carry and have carried a firearm since the day I turned 21, some 20 plus years ago. And I carry it openly now with the understanding of the seriousness of ever having to discharge it to defend myself.

  5. In principle I agree with Brian as well. I carry concealed myself, and have for years. I personally would never shoot someone fleeing, but who is to say what fear and perception is running through someones mind at the time of the crime? I don’t think any decent human being would intentionally attempt to take someones life when they aren’t in fear for their safety, property, or the safety of others. My intended point is that cops will often distort someones position, and then the person is screwed. Anytime anything becomes a legal issue, its time to shut your mouth, and get a lawyer! Many cops consider it their job to build a case versus collect evidence, and leave the case building to the prosecutor…..

  6. BlaineCGarver says:

    Unless the scum has just hurt or killed someone, it’s stupid to shoot him in the back. This does not mean that I apporve of that. I personally believe that if scum had an expectation of being hurt or killed while he plyed his trade, crime would take a nosedive. When “we” decided to give scum rights while they “working” we gave away the farm. Take a look at Great Britian if you want to see where Brian wants to take the USA. Thanks to our local DA for having more sense that at least some of our LEOs ( who should know it’s not their place to fix blame or guilt)

  7. APimpNamedSlickback says:

    A lot of people have strong opinions about these scenarios. I have to say I’m curious about how many people commenting here have actually experienced a home invasion and/or used a firearm to defend themselves from that invader. I have, and despite my generally permissive approach to gun ownership/carry, my experience really changed my views on the topic.

    Don’t get me wrong, I’m still in favor of just about everyone being able to carry, and I still think that defending yourself and your loved ones is a personal responsibility you should prepare for. But – having been in that situation and having made the choice not to use deadly force when I was legally justified to do so – I know that most people who talk about these scenarios have no clue as to what they would actually do in that situation, and I can’t help but think people should have to understand the gravity of those actions before they can possibly take them.

    It’s one thing to say that an armed criminal who breaks into your home in the middle of the night while your family is there has forfeited his life. It’s one thing to say that the police are out to get you and just want to build a case. It’s quite another thing to say that, then be pointing your gun at that criminal and realize he would give anything to redo the last 30 seconds of his life. When the police arrived, I put my gun down, my hands up and told them everything they wanted to know. Funny how quickly you can change your tune.

  8. unbiasedreporter says:

    The burglar reached into this pocket and I thought he was going for a gun. Plus he looked at me menacingly and I was afeared for my life. Or is it only the police who get to use that line?

  9. unbiasedreporter says:

    “The burglar, the police surmise, was committing a felony property crime ”

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

    (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.

    You have said that the burglar WAS attempting to commit a felony – therefore according to para 2 of RCW 9A.16.050 deadly force IS justified.

    Now if it was trespass it wouldn’t be, as trespassing is only, at most, only a gross misdemeanor.

  10. Brian O'Neill says:

    TMell– Your comments on the topic are welcome. Your ignorant comments on the experiences of people whom you have never met are not.

  11. Brian O'Neill says:

    Blaine- Centuries of stats have proven that the severity of punishment does not reduce crime. About 99% of the people in my profession want stiffer sentences so that they don’t have to lock the same people up over and over again.

    But you won’t see any of them arguing with my reasoning on the use of deadly force, because we all receive the same training on the topic. That training starts at the academy and continues throughout our career, especially on a topic of such importance. Like every law enforcement-related column, I am simply sharing this knowledge so folks not in the profession can get an insider’s point of view.

  12. Brian O'Neill says:

    Unbiased reporter– Well researched, but two things are lacking: legal definitions and case law. The legal definition of burglary is to “enter or remain” inside a residence with the intent to commit a crime. If you simply enter the residence, you’re a trespasser, not a burglar. If you commit the crime of theft, which is the typical underlying crime, then you’re a burglar. But if you are trying to flee then you are no longer “remaining” inside. Case law has tackled this issue numerous times. The message is: don’t shoot someone who’s trying to get away.

    Also, if you want to “use a line” to justify gunning somebody down then I simply can’t help you.

  13. unbiasedreporter says:

    “Also, if you want to “use a line” to justify gunning somebody down then I simply can’t help you. ”

    Worked for Birk didn’t it – resigned/fired but he’s still free and on the street

  14. Puyallup has gone Internet toy audio stealth.
    They can do almost anything now and hide it.

  15. gunnadoir says:

    Why call the police afterwards? We have at least 80 fathoms of salt water near us. Just remember to weight the body down :-) A burglar who is never seen or heard from again is a great deterrent.

  16. I’d like to interject on top of Brian’s comments, which I agree with. It’s surprising how many people don’t know the law regarding stand your ground legislation, especially when dealing with home invasions.

    Besides what Brian stated in regards to criminal case law, people involved in “self defense” shootings have the added trouble of potential civil suits. You might be able to convince a grand jury you were justified in your actions, but in civil court the burden of proof is far less for the plaintiff (family of the deceased) and much more liable to result in problems for the defendant (you). Remember, it’s your homeowners insurance company that will probably be sued – they are the ones with the bottomless pocketbook.

    I’d suggest everyone read “In the Gravest Extreme” by Massad Ayoob. It’s an older book, but much of it’s information is still very pertinent today and is probably the single best reference for firearm owners. Anyone that owns a firearm for self defense should read this book.

  17. Objective says:

    O’Neil says- Let’s change it up. The scenario is the same only you don’t shoot the burglar, who then flees out the door. You call him a few choice names as he runs through your yard, but then he stops. You’ve pissed him off, and now he’s turning around and advancing on you with his hands empty. You’re older, smaller and frailer than this tough young burglar, and you’re afraid he may get the gun away from you. You shoot him when he’s ten feet away and still in your back yard.

    Probable end result: Self defense.

    Are you kidding me? You are still screwed!!!! Somebody like O’Neil would probably ask, why did you stay outside and not step back inside the door, lock it and call 911. As far as this is concerned, he would probably report it as somebody looking for his dog and was shot by the occupant of that home.

    Then say somebody does come in and take your television. Then you have to prove somebody took it and that you even owned one.

  18. BlaineCGarver says:

    Brian, I’d like to point you to Kennasa, Georgia…look up their town gun law, and what happened when it was enacted. The flaw in your logic is that crime and punishment does not equal getting caught by a pissed homeowner. I say again: If criminals had an expectation of being shot while plying their trade, crime would drop off….See Kennasaw, Georgia, please. You will always find that No Gun Zones are more violent than others. I’ll bet the known Cop Bar is never knocked over… LOL

  19. BlaineCGarver says:

    Dang, stupid fingers….. Kennasaw.

  20. Brian O'Neill says:

    Objective– Your comments prove nothing more than slight changes to a scenario can change the perception of self-defense. The issue you raise, staying outside your home rather than locking yourself inside, is only complicated when you consider motive. If your intent was to advance on the fleeing burglar and shoot him up, you’ve got trouble. If your intent was to lawfully stand your ground on your own property–which is your right–and someone then advances towards you, you have every right to defend yourself.

    Again, you can tweak these scenarios anyway you want and come up with different answers. The key is to know that you need to have a reasonable justification for deadly force, and that the threat to which you are responding exists AT THE MOMENT that you use the force.

  21. elmerfudd says:

    I think you would be extremely hard pressed to get a jury to convict someone for shooting a burglar within their own home. I’m also pretty certain that prosecutors are aware of this and also know that bringing such a case to trial would not be good for them come November.

    The only thing that would change that would be particularly incriminating circumstances. Sure, if the homeowner bragged about gunning the guy down while he ran the other way, or the burglar in question was 10 years old then a jury might feel the other way and a prosecutor might bring it to trial, but lacking those kinds of circumstances it’s not going to happen.

  22. Objective says:

    O’Neil Glad to hear you mentioning tweaking the scenario. I would be willing to bet that would be brought up in a court of law or by somebody such as yourself. Imagine in a court of law- a burglar running away, then decides to turn around and confront you. That sounds pretty rediculous. In return you decide to shoot him 50 feet outside your door or anywhere outside for that matter.

    Now if I decide not to say anything to law enforcement personnel. How would somebody like yourself or any other write up the initial report? How would you tweak it? Could you honestly write up an initial report, stating that situation is most likely self-defense. What would you think my motive was?

    Lets face it, the judicial system favors criminal rights. A person can walk right into your home, take your television and walk out. If you are sitting there watching him do it, you get jail time for attempting to stop him. I believe that a person (potential victim) only stands a chance if there are signs of forced entry, and the intruder has an axe, gun etc.. Then and only then will there hopefully be enough evidence to prove that persons innocence after he/she shoots the intruder.

    As a suggestion, why don’t you post references according to RCW’s and WAC’s. Instead of your probabilities. Imagine if I was in that situation, and I stated in a court of law. “O’Neil said this or that in The News Tribune”.

  23. LibertyBell says:

    The problem in the State of Washington “IS” that the liars are in charge, and that also includes quite a few Federal models of judicial incompentance too!

    Your Professional Law Teams, shown best with Rob McKenna and “who”s” the CRIMINAL O’Neil?

    http://www.ca9.uscourts.gov/datastore/opinions/2011/08/25/10-35085.pdf

  24. LibertyBell says:

    Been to the Academy lately, O’Neil where training is also an after thought to the Bill of Rights, and when Life, Liberty, and Property, could only confuse a State of Washington law man.

    It’s seems pretty clear that you need to sit down and read Article 1 Section 1 of the Washngton State Constitution too…

    Is #1 that Confusing?

    The 9th Crcuit dosent seem to have a problem with the Old Ku Klux Act of 1871, confusing Washington State Law men since 1889!

    Yesterdays 9th Circuit Court, for Corrupt Policemen, Lying in Washington!

    + “We reverse the district court’s judgment and remand this
    case for trial. Viewing the evidence in the light most favorable
    to the Chisms, we conclude that the Chisms have made
    a substantial showing of the officers’ deliberate falsehood or
    reckless disregard for the truth and have established that, but
    for the dishonesty, the searches and arrest would not have
    occurred. We also conclude that the officers are not entitled
    to qualified immunity because the Chisms’ right to not be
    searched and arrested as a result of judicial deception was
    clearly established at the time Gardner prepared and submitted
    her affidavit.”

  25. LibertyBell says:

    And O’Neill,

    When deadly forcce confuses Chief Brame and Friends at the Association ran by the Ku Klux Klan, that includes the Mayor, Prosecutor, and of course your Police Chief’s too!

    http://www.spokesman.com/stories/2011/aug/28/feds-sought-meetings-with-city-leaders-on-zehm/

  26. Nothing like seeing someone pretend to know something they are so obviously misinformed about.

    RCW 9A.16.050 provides in pertinent part as follows:

    “Homicide is also justifiable when committed… 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.”

    RCW 9A.52.025 provides in relevant part as follows:

    ” A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters… unlawfully… a dwelling…

    Residential burglary is a class B felony.”

    So, let’s go back to Mr. Neill’s hypothetical scenario. Some scumbag illegally crushes through the door of your residence with the “intent to commit a crime against a person or property therein”, i.e. steal the TV. By definition, this is a felony being committed in the presence of the man with a gun, in his dwelling or other place of abode, in which he is.

    Sorry, Mr. Neill, under the plain and unambiguous letter of the law, I can put a load of triple ought buck anyplace on the target I choose in your scenario, including the middle of his back. Your misunderstanding of the law is apparently based on what police can do under RCW 9A.16.040 and what a citizen may do under RCW 9A.16.050. The principal is most commonly referred to as the “castle doctrine”. A man’s home is his castle and he has a carte blanche right to defend it using lethal force.

    If the police show up, see the busted down door, the TV with the perp’s fingerprints all over it, and the perp laying in a pool of blood with a hole in him, back to front, big enough to throw a dog through, the only ones in “trouble” are the police if they give the home owner any problems. In that case, the home owner will certainly get a lawyer and sue the police barefoot under the provisions of USC 42, Chapter 21, 1983.

  27. Brian O'Neill says:

    de9mm,

    Despite your snarky tone, I do appreciate your comments. I’d like to point out a couple of problems you need to consider before you return to your daydream of blasting the first “perp” who walks in your door. First, you can not assume that a trespasser inside your residence is there with the intent to commit a crime. You still have to establish the intent. If you walk into your living room and lifting your TV, I think we can agree that’s good enough. To some extent you can infer a concern for your safety if the subject is not actively fleeing.

    Your Internet research on the RCW’s was also well done, and I wish that were a resource available when I was in the Academy so many years ago. Instead, we had to memorize the elements of each crime. What you’re missing in your analysis, and what I was attempting to provide from the insight of someone who has investigated these crimes, interviewed the residents and burglars, argued with prosecutors and testified before the jury, is that the real world often intervenes in case law. Legal precedents, such as the castle doctrine, are not seen anywhere in our state legal codes. Nor are other precedents which might be invoked to show that shooting a fleeing subject may get you in a lot of trouble. On top of that are the whims of a jury, which I can tell you, are very whimsical.

    If you think your position is defensible, fire away. I can only state what I have learned from watching people use deadly force without considering all the possible consequences.

  28. LibertyBell says:

    And the possible consequences O’Neill, for breaking and entering, from a Washington State Law Man, writing for the majority in 365 US 167, the jury was also mistaken here there and everywhere.

    It is argued that “under color of” enumerated state authority excludes acts of an official or policeman who can show no authority under state law, state custom, or state usage to do what he did. In this case, it is said that these policemen, in breaking into petitioners’ apartment, violated the Constitution [n6] and laws of Illinois. It is pointed out that, under Illinois law, a simple remedy is offered for that violation, and that, so far as it appears, the courts of Illinois are available to give petitioners that full redress which the common law affords for violence done to a person, and it is earnestly argued that no “statute, ordinance, regulation, custom or usage” of Illinois bars that redress.

    The Ku Klux Act grew out of a message sent to Congress by President Grant on March 23, 1871, reading:

    A condition of affairs now exists in some States of the Union rendering life and property insecure and [p173] the carrying of the mails and the collection of the revenue dangerous. The proof that such a condition of affairs exists in some localities is now before the Senate. That the power to correct these evils is beyond the control of State authorities I do not doubt; that the power of the Executive of the United States, acting within the limits of existing laws, is sufficient for present emergencies is not clear. Therefore, I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States. . . . [n7]

    The legislation — in particular the section with which we are now concerned — had several purposes. There are threads of many thoughts running through the debates. One who reads them in their entirety sees that the present section had three main aims.

  29. Washington State doesn’t have a Castle Doctrine law, btw. The following is a cut and paste from answers.com:

    Washington has no ‘duty to retreat’, as precedent was set in State v. Studd (1999) and State v. Reynaldo Redmond (2003) when the court found: “that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be.”

    But, the law is ambiguous. WA does not have an explicit ‘Castle Doctrine’, but like many of the other laws pertaining to gun ownership, they are based on rights of the gun owner and revolve around what the state expects is common sense and best judgment of the user. When you apply for a CPL (Concealed Pistol License), you will see some language that states WA is a ‘stand your ground’ state; again this is ambiguous.

    There is no specific language in the law to state if burglary in your owe affords you the right to use deadly force, but the ambiguity of the law affords you some leeway.

    However, read the law regarding justifiable homicide in Washington State. There is little doubt that slaying a person committing a felony by illegally entering your home with the apparent intent to commit even more felonies is perfectly justifiable in the eyes of the law.

    To wit:

    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.

    Read more: http://wiki.answers.com/Q/Does_washington_state_have_a_castle_law#ixzz1WROxkQmH

  30. Brian O'Neill says:

    A few thoughts: WA State is subject to the same precedents in any other state’s case law, the only caveat is that a state case needs to be argued further up the legal food chain for it to apply.

    Of course you don’t have to retreat once you’ve been assaulted–common sense alone suggests that often the only real defense is to remove the threat.

    Regardless of RCW 9A.16.050, which has already been cited numerous times, a court will have the luxury of hindsight, case precedents and the “reasonable assumption” of a jury to decide the fate of someone who uses deadly force.

  31. Mr. O’Neill,

    Your problem remains one that you haven’t properly researched the laws you’re commenting on. In addition to the previously cited RCWs, you should also look at:

    http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.16.110

    “No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030.”

    While there might be examples less clear cut than residential burglary, that one at least is black and white, with no gray area whatsoever. The kind of person who would forcefully enter an occupied home is a clear and present danger, to be dealt with using extreme prejudice. I’m not interested in fighting fair or offering second chances or quarter. I have no choice but to assume anyone who forcefully breaks into my home is prepared to deal with the occupants therein and will do so with little or no provacation. They may have a gun, a knife, or be highly skilled in martial arts. I’m not interested in finding out which the hard way. It the perp is already exiting with one item of property, I have to assume that’s just his first trip and he’ll be back for more. The moment someone violates the sanctity of my home by force, the gloves come off. I have no choice but to assume it’s either me or him. If I’m the last man standing, you’ll just have to take it for granted I prefer it that way.

    I have a very strong conviction that it’s wrong to bother anyone who doesn’t bother me first. I have an equally high opinion of the old saying, “Si vis pacem, para bellum”. I keep a loaded 12 gauge next to the night stand that I hope never to use for anything other than target practice. Its sole purpose is home defense. Survival is a pass/fail test and is not subject to rules of engagement. Whether or not you agree with the law doesn’t change the fact that IS the law in Washingon state. Under the plain language of Washington law, a home owner enjoys absolute, unconditional legal immunity when it comes to using lethal force against burglers. Personally, I believe it is a VERY good law. I don’t want to be the next victim someone reads about in the paper because some Pollyanna thinks burglars should be allowed a chance to attack me before I’m allowed to defend myself against what are, by definition, violent criminals, in the act of committing violent crimes.

  32. Brian O'Neill says:

    You’re mistaken if you think that I’m disagreeing with your reasoning. You articulated several thoughts that should be on the minds of anyone caught in such a traumatic situation as a burglary, though I will repeat that this column originated when someone asked me “Can I shoot someone who’s in my house?” The point is that many situations exist, such as a juvenile caught in the act and trying very hard to flee, where deadly force will be considered criminal should you take it upon yourself.

    Mostly where we our viewpoints differ is when you cite legal statutes. They are, of course, valid, but what I”m trying to tell you from personal experience is that the letter of law is one thing…the way it’s applied is a completely different thing altogether. If you can convince yourself, based on articulable reasoning, that you are operating from a standpoint of righteous self defense on your own property, then you will probably be able to convince a jury.

  33. gogoDawgs says:

    FYI,

    There is nothing that compels a person to have a ‘jury’ trial. A bench trial by a judge is perfectably acceptable and in some cases a more reliable action to take as a judge is compelled by the law and stare decis.

  34. Mr. O’Neill,

    There’s no dearth of case law on the topic should you wish to avail yourself of sufficient information to form informed opinion vs. uninformed opinion. Washington cases are in a terrific searchable database for anyone who wants to look up that sort of thing:

    http://www.mrsc.org/wa/courts/index_dtSearch.html

    In answer to the question, “Can I shoot someone who’s in my house?”, if that person is in the act of committing a felony, the answer is yes. If your house was on fire and they broke in to save you, the answer would be no.

    It doesn’t matter if the perp is a juvenile. It doesn’t matter if the perp appears to be running away. Some of the most violent criminals on the streets today are under 18. The moment they engage in felony burglary, they have lost their right to continue using the community oxygen supply, as far as the home owner is concerned. A home owner has no way of knowing if someone is running away, or if they forgot to bring the gun they have in their car. With a crime in progress, lethal force is automatically justified.

    If the state tries to prosecute as clear cut a case of self defense as you used for an example, the home owner WILL be acquitted, the state WILL have to pay all of the costs to defend, and there are a host of other tort and stautory claims the home owner can pursue in a separate action – false arrest, wrongful prosecution, and civil rights claims, just to name a few.

    One of the more interesting cases I ran across is one where a home owner pulled a gun on a police officer he thought was a prowler:

    http://www.mrsc.org/mc/courts/appellate/092wnapp/092wnapp0555.htm

    He was acquitted AND the state had to pay him around fifty grand to cover his costs.

    Now, if you were to argue that case raises questions on which reasonable minds might disagree, I think you might have something. It isn’t precedent I’d personally want to rely on. Burglary, on the other hand, is such an obvious threat, I can’t think of any plausible scenario were lethal force would not be justified. As you note, it’s really something a person has to decide before the situation ever comes up. I think it’s fantastically bad advice to tell people it’s something they should stop and think about with a crime in progress.

    It’s often cited that it takes about 2 seconds to draw and fire a concealed weapon. That’s 2 seconds more than a home owner should ever consider giving up with an intruder in the house. End the threat. Turn off his lights. If you stop to think about it, your next of kin will be reading about your untimely demise in the newspaper.

  35. LibertyBell says:

    A State Constitution (1889) still confusing after all these years
    ARTICLE 1
    SECTION 7
    INVASION OF PRIVATE AFFAIRS OR HOME PROHIBITED. No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

  36. What the former law man has left out is. You shoot to kill because “dead man tells no tales,” funerals are cheaper & beside you can’t squeeze blood from a turnip. A wounded man will lie and then you’re stuck supporting him the rest of his life

  37. seenitdunnit says:

    some years back, on Ken Schram’s Town Hall program, the guest was PC Prosecutor John Ladenburg. This very question was asked of the top LEO in Pierce County. His reply? (paraphrased, it was a long time ago)…:
    “if you use deadly force to prevent THE COMPLETION” of a felony, no charges would be filed.”
    Q: “If I caught a man raping my wife I could kill him?”
    A:” Yes”
    Q: “If he ran and I chased him 3 blocks and killed him?”
    A: “No charges; a felony isn’t complete until the criminal escapes. The escape completes the crime.”
    Q: “What if I saw him a week later? Could I shoot him?”
    A: “No. The Felony has been completed once he escaped. In that instance we would prosecute you.”

    If the prosecutor says that is the policy, then for a felony, that is the policy.

    CAVEAT…the prosecutor decides if the underlying crime was a felony.
    Several weeks later, a man chased down a teenage thief that stole his car (actually, same thief, several times). The owner chased him down and shot and killed him. The prosecutor decided the crime was not felony car theft but misdemeanor “taking without permission” so the survivor was prosecuted.

    WORD: Make sure you’re a buddy of the cops and prosecutor, because life is a lot easier when you’re one of the boys.

  38. Brian O'Neill says:

    de9mm,

    I have many problems with your citations. First, you need to understand the crime of burglary. Being in someone’s house illegally is trespass (a misdemeanor), not a burglary (a felony). Burglary requires that a crime be committed while inside a person’s residence. This distinction may be difficult for a homeowner looking to defend their home. The police officer scenario you brought up has no bearing on my comments, because obviously the cop was not retreating during this altercation. My point, which I’ll make for perhaps the fourth time, is that the courts will (rightly in my opinion) not side with a homeowner who chooses to use deadly force and thereby kills someone who is doing nothing more than fleeing the residence.

    I think advising someone to keep their wits about them in a deadly force situation is exceedingly good advice. Otherwise, just set up some claymore mines around your doors and windows and let the matter rest.

  39. Brian O'Neill says:

    seenitdunnit,

    You missed the point of my column and the prosecutor’s answers. A subject who is assaulting, or has just assaulted a person, can reasonably (there’s that word again) be considered a danger to the public. Shooting him in the act protects an innocent victim from harm, and shooting him while fleeing might protect someone whom he may try to assault during his rush to escape (“fleeing felon” from case law). Seeing him on the street a week later means a phone call to 911–shooting him then is nothing more than an execution.

    I’ll say it again…using deadly force in cases where you are confident that an imminent and serious threat to the safety of yourself or others (not a car or other property) is a justifiable use of force.

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