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View Full Version : Involved in Shooting- DA has filed charges (was No Charges)


bigstick61
02-17-2009, 2:03 AM
Some guys in an SUV tore apart the vehicles on our driveway with their vehicle tonight, rendering all three unusable. They ran into them several times and also damaged the property of a couple of neighbors. It ended in a shooting incident which the sheriffs reported as a non-criminal discharge of a firearm.


If anyone sees a badly damaged silver or light-colored Ford Explorer (a few years old at most), with broken windows, a badly dished-in left side, and damage all around, within the vicinity of San Dimas please call the sheriffs. I hope this guy gets put away. This situation just really sucks. To boot, Sunday morning someone tried to forcefully enter my place in Vallejo and messed up the front door pretty bad. This was after a blackout Saturday night. I had just gotten back from up north and had unloaded my stuff not long before these guys did all of this. A small time difference and who knows what could have happened to me. This was a bad weekend.

E Pluribus Unum
02-17-2009, 2:46 AM
Some guys in an SUV tore apart the vehicles on our driveway with their vehicle tonight, rendering all three unusable. They ran into them several times and also damaged the property of a couple of neighbors. It ended in a shooting incident which the sheriffs reported as a non-criminal discharge of a firearm.


If anyone sees a badly damaged silver or light-colored Ford Explorer (a few years old at most), with broken windows, a badly dished-in left side, and damage all around, within the vicinity of San Dimas please call the sheriffs. I hope this guy gets put away. This situation just really sucks. To boot, Sunday morning someone tried to forcefully enter my place in Vallejo and messed up the front door pretty bad. This was after a blackout Saturday night. I had just gotten back from up north and had unloaded my stuff not long before these guys did all of this. A small time difference and who knows what could have happened to me. This was a bad weekend.

Kind of interesting they actually came back for it. It is doubtful you HAD to give it to them. At least its a cheap .25 and not an expensive one.

With a .25, you never know; you might have hit him and it was just a flesh wound.

I would document everything now while it is fresh and then talk to no one.

gcvt
02-17-2009, 2:48 AM
Glad you're okay, but I'm not sure I'd post this here or anywhere else until everything is over and done with.

Sam
02-17-2009, 3:01 AM
Glad you're okay, but I'm not sure I'd post this here or anywhere else until everything is over and done with.

Even though the police determined it was lawful, the DA may not. Also make sure you have quick access to something stronger than a .25.

NiteQwill
02-17-2009, 4:46 AM
Glad you and your family are safe. But like someone said above, I would probably edit or delete your post, for now, until everything, legally, is settled.

DedEye
02-17-2009, 5:05 AM
Even though the police determined it was lawful, the DA may not. Also make sure you have quick access to something stronger than a .25.

Yes. You shouldn't post any additional details (and should probably edit/remove some of what you already wrote), and contact a lawyer just to be on the safe side. You don't necessarily have to hire one, but briefing them in case you need to would save you some potential trouble down the road.

gir007
02-17-2009, 5:50 AM
I agree get legal advice ect, hope it works out for you.

Tarn_Helm
02-17-2009, 5:51 AM
Yes. You shouldn't post any additional details (and should probably edit/remove some of what you already wrote), and contact a lawyer just to be on the safe side. You don't necessarily have to hire one, but briefing them in case you need to would save you some potential trouble down the road.

I would not have posted this.

Ask for a "delete" from a moderator of this forum.

The deputies might sympathize with you, but the D.A. might be an anti-gun goon who's just salivating at the thought of putting someone behind bars whom he can caricature as a "vigilante." (http://www.haroldfishdefense.org/)

Stormfeather
02-17-2009, 5:59 AM
If the Police has determined it was a good shoot, then why would he have to worry? They dont send it up to the DA office if they determine it was lawful. Or is this not the case? If this is the case, then I would say let the fear-mongering here end. Seeing way too much Tin-Foil here lately.

tgriffin
02-17-2009, 6:17 AM
If the Police has determined it was a good shoot, then why would he have to worry? They dont send it up to the DA office if they determine it was lawful. Or is this not the case? If this is the case, then I would say let the fear-mongering here end. Seeing way too much Tin-Foil here lately.

Yeah I agree on the tin-foil, but man.... I see more and more everyday that makes me question if the tin foil crowd isnt so wrong after all.

savageevo
02-17-2009, 7:15 AM
You know, if a crazy goon where to be behind a dangerous vehicle aiming at a leo ready to drag you know what the leo would do if he/she feared for there life. The OP had the right to defend himself if he did not have any other way out. Just in case do get some legal counsel just to cya.

DedEye
02-17-2009, 7:37 AM
Adding in that other thread you posted about your gun coming back as "destroyed:"

GET A LAWYER NOW AND POST NOTHING ELSE.

PM Oaklander.

meinbruder
02-17-2009, 7:50 AM
Actually there is a large Grey area in the Op's experience. I saw the word vigilante in another post and that is exactly the charge that would be leveled in Oregon. Using a gun to defend property here is illegal and by deliberately placing himself in peril the question of self defense would probably be mote.

I'll subscribe to this thread, I'm arriving in Los Angels in a little over four weeks, I'd like to see future developments.



You know, if a crazy goon where to be behind a dangerous vehicle aiming at a leo ready to drag you know what the leo would do if he/she feared for there life. The OP had the right to defend himself if he did not have any other way out. Just in case do get some legal counsel just to cya.

JB-Norcal
02-17-2009, 7:52 AM
#1 on the CYA being quiet at this point.

A loaded pistol should be close by, if not on your person while at home. I would not display it while exiting the house. I would have a phone in hand. I certainly hope the OP was not a target as oppossed to a random victim.
Sounds like impared joyriding maybe (hopefully?)
Since the economy is in a bit of a downturn, expect petty theft to increase. Please run through a senario in your own mind as to when you would and would not use deadly force. Unfortunatly we are judged by our peers, and IMO it needs to be CRYSTAL clear.
Glad the OP'er is safe, remember the most important things in life are not things.

RobG
02-17-2009, 9:32 AM
Unfortunately this could easily turn bad for you depending on the DA's mood at the time. Go to edit, advanced, and delete this post. Then ask a mod to get rid of the rest of it. Also, get the number of a pro-gun atty on your speed dial JIC.

Adonlude
02-17-2009, 9:39 AM
I wouldn't put it past the cops to let you believe everything is cool to put you at ease while quietly collecting information to hang you with. I would have been less concerned if they hadn't come back to take your gun. If your gun is back in your hands in the few days they promised I would be very surprised.

bigstick61
02-17-2009, 9:42 AM
A loaded pistol should be close by, if not on your person while at home. I would not display it while exiting the house. I would have a phone in hand. I certainly hope the OP was not a target as oppossed to a random victim.
Sounds like impared joyriding maybe (hopefully?)
Since the economy is in a bit of a downturn, expect petty theft to increase. Please run through a senario in your own mind as to when you would and would not use deadly force. Unfortunatly we are judged by our peers, and IMO it needs to be CRYSTAL clear.
Glad the OP'er is safe, remember the most important things in life are not things.

Normally there is something else loaded, but I had just gotten home from Vallejo and was disassembling and cleaning everything, as water had gotten into the containers durng transport, unfortunately.

At this point, according to the sheriffs, the incident's initiation does not look intentional (although due to an incident my mother had earlier that evening, there was suspicion that it might be). They hit another property first.

As for the weapon, the store I bought it from has all the documentation and proof I need that it is registered to me, so I'm going to be contacting DOJ; this seems to be their error.

I'll see about a lawyer (Can they do phone consultations? The vehicles are not usable. Any good lawyers in this area?), although I can definitely say I cannot afford one in the least. Right now just paying the fees to get my gun back is going to be an issue.

bigstick61
02-17-2009, 9:45 AM
I edited the OP.

n2k
02-17-2009, 9:51 AM
I edited the OP.

Your original post is still quoted. ...no more

fairfaxjim
02-17-2009, 10:23 AM
If the Police has determined it was a good shoot, then why would he have to worry? They dont send it up to the DA office if they determine it was lawful. Or is this not the case? If this is the case, then I would say let the fear-mongering here end. Seeing way too much Tin-Foil here lately.

It ceases to be "Tin Foil" when you are the one getting "Foiled!" or,
Just because you're paranoid doesn't mean they aren't after you.

bigstick61
02-17-2009, 1:22 PM
What are some good attorneys in this area for this sort of stuff? I talked to the mother of the kid who drives the vehicle (it is uncertain whether he was driving or not) this morning and she was upset after the detective investigating this told her about everything when he showed up to take pictures. Even if the DA doesn't decide to do anything, it seems like she could sue.

n2k
02-17-2009, 1:27 PM
What are some good attorneys in this area for this sort of stuff? I talked to the mother of the kid who drives the vehicle (it is uncertain whether he was driving or not) this morning and she was upset after the detective investigating this told her about everything when he showed up to take pictures. Even if the DA doesn't decide to do anything, it seems like she could sue.

http://www.tmllp.com

DDT
02-17-2009, 3:19 PM
I would strongly suggest not talking to any of the bad guys or their family, PIs, Attorneys etc. without representation.

anthonyca
02-17-2009, 4:58 PM
I would talk to NO ONE about this. Esp police. Speak with an attorney. TMLLP as recommended above is a great law firm and I speak from experience. Don't be cheap as a few grand now could save your rights of gun ownership for the rest of your life or even keep you out of jail. At least do a $500 or so consultation. Watch these videos. Telling the same story twice with a few mistakes in time or sequence of events could land you in jail. Watch both that lawyer and the cop.

http://video.google.com/videoplay?docid=-4097602514885833865

bigstick61
02-17-2009, 6:01 PM
I might have to borrow money. I wouldn't be able to pay for even a consultation. A detective was telling me they are going to want to talk to me and go over my story again soon. Should I not do this without a lawyer present?

E Pluribus Unum
02-17-2009, 8:00 PM
I might have to borrow money. I wouldn't be able to pay for even a consultation. A detective was telling me they are going to want to talk to me and go over my story again soon. Should I not do this without a lawyer present?

DO NOT TALK TO THE POLICE.

DO NOT TALK TO THE POLICE.

DO NOT TALK TO THE POLICE.

Prepare a written statement that says something to the effect of:

I am a law abiding citizen. I have consulted with legal counsel and I have been advised not to speak with law enforcement without representation.

Then leave it at that.

Do not volunteer any information. If they take you downtown, exercise your right to remain silent.

They will badger you in an attempt to get a statement, but stay strong and say nothing.

DDT
02-17-2009, 8:03 PM
You should not do this without a lawyer present. contact TMLLP ASAP. Let them know your situation, unfortunately with the legal system the way it is and legal fees what they are attorneys are used to dealing with folks who need time/help paying. I don't know TMLLP's specific policies on this but am drawing from the practices of many attorneys in general.

Your freedom and family are well worth going into hock in this situation.

If you are completely clean there is help available.

Dr Rockso
02-17-2009, 8:19 PM
Should I not do this without a lawyer present?
Hmm, sounds like that question needs a little bit of pro/con analysis.

Assume you get a lawyer:
Best case: The police are genuinely interested in netting the bad guy and not you. You wasted a few hundred bucks on the lawyer.
Worst case: The police use the interview to try and gather evidence to be used to prosecute you. A lawyer is far better equipped to deal with this than you are.

Now assume you don't get a lawyer:
Best case: The police are genuinely interested in getting the bad guy, they take your statement and that's the end of it.
Worst case: You unintentionally provide evidence against yourself in a misdemeanor or felony case. You spend tons more money fighting it and may or may not end up in jail.

Hmm, I'd lawyer up if I were you.

Meplat
02-17-2009, 8:27 PM
When I was five years old my grandfather told me that if I ever owned a .25 automatic I should take a mill smooth file and round off all the sharp edges on the gun and then coat it liberally with vaseline. Because if I ever shot anyone with it they would probably take it away from me and stuff it up my arse.

That is a true story.:eek:


Even though the police determined it was lawful, the DA may not. Also make sure you have quick access to something stronger than a .25.

DedEye
02-17-2009, 8:31 PM
I already said to PM Oaklander. If I wasn't clear before, he is an attorney in Oakland.

TMLLP is in Southern California. They are not "in your area." Oaklander is. Don Kilmer is too. Ohsmily is to the North, but still closer than TMLLP.

ETA: Misread your location based on you mentioning having been in Vallejo.

Meplat
02-17-2009, 8:35 PM
Like a mote in the eye?


Using a gun to defend property here is illegal and by deliberately placing himself in peril the question of self defense would probably be mote.

.

Racefiend
02-17-2009, 8:49 PM
Like a mote in the eye?

That would be mota

Seesm
02-18-2009, 12:04 AM
dam you all did soem deleting fo show... :(

Mulay El Raisuli
02-18-2009, 6:56 AM
DO NOT TALK TO THE POLICE.

DO NOT TALK TO THE POLICE.

DO NOT TALK TO THE POLICE.

Prepare a written statement that says something to the effect of:

I am a law abiding citizen. I have consulted with legal counsel and I have been advised not to speak with law enforcement without representation.

Then leave it at that.

Do not volunteer any information. If they take you downtown, exercise your right to remain silent.

They will badger you in an attempt to get a statement, but stay strong and say nothing.


EXCELLENT advice. For more on this, go this site (and follow the link to next site). Better advice you will never receive.

The Raisuli


http://video.google.com/videoplay?docid=-4097602514885833865&q=source:013978398324611204467&hl=en

bigstick61
06-16-2009, 9:10 PM
An update on this is that two months after the fact I was arrested and charged with Assault with a Deadly Weapon and Gross Negligence in the Discharge of a Firearm. Bail was $25,000, although they want to increase it now to $120,000 since they added the second charge later on.

I have hired Trutanich and Michel as my attorneys in this case. I was wondering what the process would be for perhaps setting up a way to allow people to donate for this case directly to TMLLP, as this case is putting a major financial strain upon my family.

bwiese
06-16-2009, 9:14 PM
If the Police has determined it was a good shoot, then why would he have to worry? They dont send it up to the DA office if they determine it was lawful. Or is this not the case? If this is the case, then I would say let the fear-mongering here end. Seeing way too much Tin-Foil here lately.

DAs can, and do, 'reach down' even if it's a no-file for police, esp if it's politically hot or there's some reason they "wanna send a message".

Caution is always the watchword.

anthonyca
06-16-2009, 11:00 PM
An update on this is that two months after the fact I was arrested and charged with Assault with a Deadly Weapon and Gross Negligence in the Discharge of a Firearm. Bail was $25,000, although they want to increase it now to $120,000 since they added the second charge later on.

I have hired Trutanich and Michel as my attorneys in this case. I was wondering what the process would be for perhaps setting up a way to allow people to donate for this case directly to TMLLP, as this case is putting a major financial strain upon my family.

I would have bet 5g that this post was coming. Man this sucks.

DO NOT TALK TO THE POLICE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!

Not saying that the reason you were arrested was for talking but just saying that the police are NOT your friends and the DA will sometimes file charges months later.

Has TMLLP written a statement on your behalf addressing these charges?

bigstick61
06-17-2009, 12:22 AM
What sort of statement?

Supposedly, if you believe the detective, they decided to press charges because the mother of the other party kept coming into the station, getting upset, yelling, etc., and he said he couldn't tell her he couldn't press charges, so he did what he did. Sounded like BS to me, but I wouldn't be all that surprised if it were true.

bigstick61
06-17-2009, 12:25 AM
DAs can, and do, 'reach down' even if it's a no-file for police, esp if it's politically hot or there's some reason they "wanna send a message".

Caution is always the watchword.
You are most certainly correct about the wanting to send a message part. That applies somewhat to this case as I have found out the hard way.

bigcalidave
06-17-2009, 1:32 AM
Wow that sucks. Stop posting the story here, until it's over, unfortunately. tmllp is the Right People to help you in the case. Contact cgf about the story in private, see if they can help out with anything. Stories like this really do show why you can't say ANYTHING to the police. I'm not even sure what the correct response to a situation like this is. I guess the first person you should call when anything happens is a lawyer. Before you even call the police or they show up.

bigstick61
06-17-2009, 1:48 AM
If I said nothing I don't think it would have turned out well either, given the circumstances. Who should I contact from CGF? I already tried once, at the suggestion of my attorney, but I never heard anything back. I don't expect them to back the case or anything like that, obviously there are more important and better things for CGF to address right now, but if there was a way that people could donate if they were willing, it would be nice.

bigcalidave
06-17-2009, 1:55 AM
hoffmang and bwiese. pm them here, i'm sure they are more than willing to at least give advice.

bigcalidave
06-17-2009, 1:57 AM
And not to speak for them, but if you are having your rights violated and it's a gun related charge, that's kinda what the CGF is all about. Don't post any details here, pm me the original story cause I'm pretty interested (if you want), but as long as you are clean (didn't do something horribly stupid, aren't in possession of multiple illegal aws, etc) they may be able to help.

bigstick61
06-17-2009, 2:04 AM
I'll PM Gene again. I may have tried to PM him at the wrong time, as Nordyke came out shortly afterwards.

wildhawker
06-17-2009, 5:43 AM
Gene and Bill both get tons of PMs a day. If a situation requires more immediate attention, email hoffmang at hoffmang dot com.

bigcalidave
06-17-2009, 7:39 AM
Or just go like this
GENE !!!!! WHERE ARE YOU !!!! PM THIS GUY !!!

he's like superman, he will hear that for sure.

WokMaster1
06-17-2009, 8:04 AM
Stick. Stop posting on here. Just contact Gene or Bill via email or PM & see what your options are. Your attorney is on the board of Calguns Foundation. Talk to him. Take it from there.


Mods, lock this down before he talks more.

rkt88edmo
06-17-2009, 8:38 AM
Title edited to reflect the deplorable current situation.

bigcalidave
06-17-2009, 8:54 AM
He's not gonna give out anything more on this thread. Doesn't need to lock. It's a great place to gripe about BS $(W*@$( District Attorneys !!!!! Do your damn job !! Put CRIMINALS IN JAIL, don't make honest family (or even just honest) people criminals to satisfy your sick needs!
I can't believe how often these stories come up !

yellowfin
06-17-2009, 8:59 AM
When is this particular DA up for reelection? Looks like he needs to lose his job and never work again, then be sued afterwards for harassment.

st.clouds
06-17-2009, 9:05 AM
Wow this is bull... the DA's utter stupidity makes my blood boil... why do we have so many stupid people in the office?

BTW I thought there's some provision to make a stand, in order to stop a fellony? Since multiple cars are involved, wouldn't it makes sense that this is considered a felony? Also I would think that a giant SUV should be considered a deadly weapon in its own right too.

yellowfin
06-17-2009, 9:15 AM
Wow this is bull... the DA's utter stupidity makes my blood boil... why do we have so many stupid people in the office?

A. Not enough people who aren't stupid run for office.
B. Stupidity runs the election process in CA.
C. Being stupid gets you friends at the top who share the same stupidity.
D. The stupidity isn't brought out to the public to be seen for what it really is and/or the public doesn't know any better, so they get away with it.
E. All of the above.

hkusp9c
06-17-2009, 9:30 AM
Did he get arrested because he told the police about "certain incident"? not because of what he did?
I know he's not supposed to talk about the specifics about the case but all I read from the OP was that his properties were damaged and the DA's filing charges on him? hmm

ChuckBooty
06-17-2009, 9:31 AM
So I guess in the DA's mind we're supposed to just stand there and get run over. This is disgusting.

Untamed1972
06-17-2009, 9:44 AM
Wow this is bull... the DA's utter stupidity makes my blood boil... why do we have so many stupid people in the office?

BTW I thought there's some provision to make a stand, in order to stop a fellony? Since multiple cars are involved, wouldn't it makes sense that this is considered a felony? Also I would think that a giant SUV should be considered a deadly weapon in its own right too.

Use of deadly force is not authorized to stop a property only crime.

There is a difference between not retreating, and leaving a place of safety and putting yourself in a position of danger when there is no immediate threat to your safety or that of another person.

If someone is ramming your car in the driveway and you're in the house, and no one is in the car being rammed or in the yard/driveway, You are not in immediate physical danger. Refraining from offensive action, advancing on threat, is not the same as retreating. Yes...you have a right to use force up to, but not including deadly force, to stop a property crime. But how else are you going to stop a person in an SUV from ramming your car w/o putting your own life at risk and creating a use of deadly force situation?

bigstick61
06-17-2009, 9:48 AM
Did he get arrested because he told the police about "certain incident"? not because of what he did?
I know he's not supposed to talk about the specifics about the case but all I read from the OP was that his properties were damaged and the DA's filing charges on him? hmm

That info was removed from the initial post and it won't be reposted here.

MasterYong
06-17-2009, 10:46 AM
A. Not enough people who aren't stupid run for office.
B. Stupidity runs the election process in CA.
C. Being stupid gets you friends at the top who share the same stupidity.
D. The stupidity isn't brought out to the public to be seen for what it really is and/or the public doesn't know any better, so they get away with it.
E. All of the above.

You're mostly right, but you left out the most important part:

F. All of these "stupid officials" are elected by the public. The public, in general, is STUPID.

Folks that have their heads on straight often forget this simple fact, that the majority of people in this country are stupid. Then, if you get a clear-headed genius running for office, he looks condescending to the people, who then vote for the stupid guy that they identify with. Just look at the Bush/Gore election. Bush is an idiot, there's no doubt about that, but Gore is a wet blanket that acts like a douchebag so it doesn't matter how much smarter or more qualified he was the people liked Bush better.

I'm sure I'll get flamed for that last part, being in a pro-2A forum and all, but it's true.

demnogis
06-17-2009, 11:01 AM
Can you please post the name and contact information for the city/state attorney that filed these charges? It's possible that public outcry against this type of infringement against peoples' rights is necessary when they want to "make an example" out of someone who rightfully defended his life/liberty/family/property...

GaryV
06-17-2009, 11:05 AM
If someone is ramming your car in the driveway and you're in the house, and no one is in the car being rammed or in the yard/driveway, You are not in immediate physical danger. Refraining from offensive action, advancing on threat, is not the same as retreating. Yes...you have a right to use force up to, but not including deadly force, to stop a property crime. But how else are you going to stop a person in an SUV from ramming your car w/o putting your own life at risk and creating a use of deadly force situation?

So, if you have a right to go out and investigate, and to use a lower-than-lethal level of force to stop them, how does the fact that the criminal then escalates his actions to be life-threatening lessen your right to self-defense, if everything you've done up to that point was within your rights to protect your property?

I'm not saying that your argument won't be made in court, or that it might not even fly with the judge/jury (and I know of at least one case where it has), but if we follow that line of logic, you have no right to protect your property at all, except at the risk of being charged with unlawful use of force if the criminal escalates the situation and you defend yourself.

I would compare it to numerous situations where police officers have actually placed themselves in front of moving vehicles to prevent escape, and then shot the occupants, claiming they feared for their lives when they didn't stop. I've never heard of the police actions being ruled unjustified in any such case, where the action of the officer is far more overtly the cause of the life-threatening situation.

E Pluribus Unum
06-17-2009, 11:14 AM
So, if you have a right to go out and investigate, and to use a lower-than-lethal level of force to stop them, how does the fact that the criminal then escalates his actions to be life-threatening lessen your right to self-defense, if everything you've done up to that point was within your rights to protect your property?

I'm not saying that your argument won't be made in court, or that it might not even fly with the judge/jury (and I know of at least one case where it has), but if we follow that line of logic, you have no right to protect your property at all, except at the risk of being charged with unlawful use of force if the criminal escalates the situation and you defend yourself.

I would compare it to numerous situations where police officers have actually placed themselves in front of moving vehicles to prevent escape, and then shot the occupants, claiming they feared for their lives when they didn't stop. I've never heard of the police actions being ruled unjustified in any such case, where the action of the officer is far more overtly the cause of the life-threatening situation.

It is all about intent.

Scenario 1:
You hear a ruckus and decide to investigate. You go outside and you begin to search. While looking in your driveway, a bad guy starts your car and hits the gas speeding towards you; you fear for your life, you react and shoot him.

Legal shoot

Scenario 2:
You hear a ruckus outside and decide to investigate. You hear your vehicle start and begin to move. From the safety of your patio, you head the guy off and run into the driveway, you fear for your life and shoot him.

Questionable shoot: You were not put in harm's way by the bad guy; you put yourself in harms way by running in front of the vehicle.


Of course, without witnesses, there would be no way to tell the difference after the fact, unless of course you tell the police what happened which the OP did.

It brings home the point: never talk to the police.

Maestro Pistolero
06-17-2009, 11:29 AM
http://ag.ca.gov/firearms/forms/pdf/Cfl2007.pdf Page 27

Defense of Property
The lawful occupant of real property has the right to request a trespasser to leave the premises.
If the trespasser does not do so within a reasonable time, the occupant may use force to eject the
trespasser.
The amount of force that may be used to eject a trespasser is limited to that which a
reasonable person would believe to be necessary under the same or similar circumstances.


How is a 25 ACP too much force to dissuade a person committing an assault with a vehicle?

Untamed1972
06-17-2009, 11:33 AM
So, if you have a right to go out and investigate, and to use a lower-than-lethal level of force to stop them, how does the fact that the criminal then escalates his actions to be life-threatening lessen your right to self-defense, if everything you've done up to that point was within your rights to protect your property?

I'm not saying that your argument won't be made in court, or that it might not even fly with the judge/jury (and I know of at least one case where it has), but if we follow that line of logic, you have no right to protect your property at all, except at the risk of being charged with unlawful use of force if the criminal escalates the situation and you defend yourself.

I would compare it to numerous situations where police officers have actually placed themselves in front of moving vehicles to prevent escape, and then shot the occupants, claiming they feared for their lives when they didn't stop. I've never heard of the police actions being ruled unjustified in any such case, where the action of the officer is far more overtly the cause of the life-threatening situation.

It would all be tied to your knowledge and intent when you decided to go outside. If you can look out the window and see the guy ramming your parked car with his SUV, I think the law would say "a reasonable person would realize they have no physical means short of employing lethal force to stop the person from smashing their car."

So I would ask......how, short of lethal force, would YOU stop someone from ramming your car w/o putting your own life at risk? It would be different if you were IN the car at the time of the ramming, or had just pulled in the driveway and were getting out, or your kid was still strapped in the car seat or something like that. But if no one's life is in danger when the ramming begins....then you're gonna have a tough sell on making that justified use of lethal force.

As for the LEO stepping in front of a car issue.....the minor difference in that would be that once summoned to a scene they have a sworn duty to apprehend the suspect and make an arrest. YOU do not. That's why they can step in front of the car, shoot, and be cleared for it. Roughly speaking, their duty requires them to put themselves in harm's way to make an arrest, and in doing so can use lethal force to protect themselves. YOU as a pvt. citizen do not have a duty to place yourself in harm's way to protect your property, so if you cannot stop the property crime by use of less than lethal force you have no choice but let the property crime continue. So the fact is that your right to protect property only stops at the use of lethal force.

I'm not saying I like it that way, or that's the way it should be, but that's how the law is gonna look at it and if you don't wanna end up with a murder charge on your head for capping some dude who's jackin' your stereo then all things considered it's prolly better to eat the $500 for a new stereo, get a good description and call the COPs. (Or get some beanbags for your 12gauge, if the sound of a racking shotgun at his back doesn't stop him....a couple of beanbags prolly will. A Tazer with 20ft+ leads would work too.)

GaryV
06-17-2009, 11:34 AM
Scenario 2:
You hear a ruckus outside and decide to investigate. You hear your vehicle start and begin to move. From the safety of your patio, you head the guy off and run into the driveway, you fear for your life and shoot him.

Questionable shoot: You were not put in harm's way by the bad guy; you put yourself in harms way by running in front of the vehicle.

I understand perfectly what you're saying, and I don't deny that there is a difference. However, I also know of several instances where this is essentially what the police did to stop fleeing subjects, even in simple traffic stops for simple infractions, and in every one their actions have been ruled justified.

It's a bit of a grey area that I think should be decided in the shooters favor. What if, for example, instead of a vehicle, you step out to block the path of thief who is fleeing on foot (theft has already occurred and he is just escaping). He has a gun and you see it. He already has his weapon up, and it is now pointed at you strictly because you stepped into his path. If he continues toward you and doesn't point his weapon in a safe direction, are you justified in shooting him? If so, how is this different from a criminal in a vehicle who doesn't stop when he sees you blocking his path? If you didn't step in front of him for the purpose of shooting him, but only to block him, and he decides to take you out rather than stop, I'd say he's fair game.

Untamed1972
06-17-2009, 11:39 AM
http://ag.ca.gov/firearms/forms/pdf/Cfl2007.pdf Page 27



How is a 25 ACP too much force to dissuade a person committing an assault with a vehicle?

It would only be assault with a vehicle if a PERSON was the target of the assault or there was an immediate risk to their safety.

You can not commit assault on an inanimate object. A parked car with no one around cannot be assaulted. Assault on inanimate objects is called vandalism. Lethal force is not legally authorized to stop vandalism.

Don't get me wrong....ramming an unoccupied vehicle with your car constitutes several crimes that come to mind, some of them felonies.....but assault it not one of them.

odysseus
06-17-2009, 11:49 AM
It's a bit of a grey area that I think should be decided in the shooters favor. What if, for example, instead of a vehicle, you step out to block the path of thief who is fleeing on foot (theft has already occurred and he is just escaping). He has a gun and you see it. He already has his weapon up, and it is now pointed at you strictly because you stepped into his path. If he continues toward you and doesn't point his weapon in a safe direction, are you justified in shooting him? If so, how is this different from a criminal in a vehicle who doesn't stop when he sees you blocking his path? If you didn't step in front of him for the purpose of shooting him, but only to block him, and he decides to take you out rather than stop, I'd say he's fair game.

These are interesting conversations. You can't, nor would I, shoot just to protect simple property. Yet, it could intermesh with defending yourself. One scenario I use which usually gets different talking points is similar.

You are at home at night and hear noise coming from your driveway, you are unsure what it is and go to investigate. You can't directly see the car or anything from the inside. You have your firearm on you, just in case (notable issue for some) for protection. As you walk out you see someone has broken into your car and is halfway inside rummaging. From over 10 feet back you say STOP! (notable issue for some). The thief comes out from the car, but does not go away and faces you. You yell at him you are going to call the police, and he charges at you. You can't see if anything is in his hand and you don't have much distance before he will reach you, it all happens so fast it seems. You pull and shoot, he is dead, a 17 year old, no weapon is found.

In my mind it is a fair shoot. However it is a risk no matter what. Nothing good can come of it.

However bottom line, better have some cash stowed and a decent lawyer. There is going to be a civil outcry from the community to the DA of a vigilante and a civil wrongful death suit from his family.
.

E Pluribus Unum
06-17-2009, 11:51 AM
I understand perfectly what you're saying, and I don't deny that there is a difference. However, I also know of several instances where this is essentially what the police did to stop fleeing subjects, even in simple traffic stops for simple infractions, and in every one their actions have been ruled justified.

It's a bit of a grey area that I think should be decided in the shooters favor. What if, for example, instead of a vehicle, you step out to block the path of thief who is fleeing on foot (theft has already occurred and he is just escaping). He has a gun and you see it. He already has his weapon up, and it is now pointed at you strictly because you stepped into his path. If he continues toward you and doesn't point his weapon in a safe direction, are you justified in shooting him? If so, how is this different from a criminal in a vehicle who doesn't stop when he sees you blocking his path? If you didn't step in front of him for the purpose of shooting him, but only to block him, and he decides to take you out rather than stop, I'd say he's fair game.

The difference is that the police are tasked with apprehending bad guys; a citizen is not. The reason an officer's shooting is deemed "legal" is because he has been trained what to say when asked.

Now, in the scenario above, if he was stealing your car, he was in the commission of a felony. You had the right to effect a citizen's arrest. Now, the rules for use of deadly force are different while effecting a felony arrest. When speaking with the police, rather than saying "He was stealing my car, so I shot him", the statement would be something like this:

"I witnessed the perpetrator committing a felony in my presence, at that time I told him he was under arrest at which time he resisted. Considering the fact that a felony had been committed and that fleeing suspect presented a clear and present danger to the public, I was forced to use deadly force to prevent that felony suspect from endangering the public."

This is why one should never speak with the police. After the fact, an attorney can look at the evidence and "adjust" the argument to fit a legal scenario. If you come out and say "he was stealing my car so I shot him" that removes all wiggle room after the fact.

Untamed1972
06-17-2009, 11:53 AM
I understand perfectly what you're saying, and I don't deny that there is a difference. However, I also know of several instances where this is essentially what the police did to stop fleeing subjects, even in simple traffic stops for simple infractions, and in every one their actions have been ruled justified.

Again....LEOs have a duty to apprehend a suspect. In the case of a trffic stop, if you refuse to sign a traffic citation they are required to arrest you and take you before a judge. So fleeing a traffic stop is essentially a refusal to sign a citation so they must attempt to make an arrest. They step in front of the car (which actually is pretty stupid and not something they're trained to do) in an attempt to make an arrest. Shooting the driver is because in attempting to make an arrest their life is put in danger.

What if, for example, instead of a vehicle, you step out to block the path of thief who is fleeing on foot (theft has already occurred and he is just escaping). He has a gun and you see it. He already has his weapon up, and it is now pointed at you strictly because you stepped into his path. If he continues toward you and doesn't point his weapon in a safe direction, are you justified in shooting him? If so, how is this different from a criminal in a vehicle who doesn't stop when he sees you blocking his path? If you didn't step in front of him for the purpose of shooting him, but only to block him, and he decides to take you out rather than stop, I'd say he's fair game.

The difference here is that, theorectically, you WOULD have the ability to stop the criminal/crime with less than lethal force. The fact that a weapon was then presented would allow you to use lethal force to protect yourself. THAT is the part you need to remember, especially were that to actually happen to you and you were giving a statement.

Get this now:

You shot him because you were in fear for your life....NOT because you were trying to stop the theft or the escaping theif!!!!

Get it????


So back to the case of going out of the house to stop the guy ramming your car. You life was not in danger while you were still in the house, and having no means to stop the guy short of lethal force....your only reason then for going out of the house and using lethal force would be to stop the property crime.....because your life was not in danger. NOW....if the guy starts ramming the house with the SUV....you now have a much more clearly articulatable reason to be in fear for your life and start shooting the guy....NOT because he's ramming your house.....but because he is endangering your life.

THE ONLY JUSTIFIABLE REASON TO SHOOT SOMEONE IS BECAUSE YOUR LIFE OR SOMEONE ELSE'S LIFE IS IN DANGER!!!! Dont' forget that.

GaryV
06-17-2009, 11:55 AM
These are interesting conversations. You can't, nor would I, shoot just to protect simple property. Yet, it could intermesh with defending yourself. One scenario I use which usually gets different talking points is similar.

You are at home at night and hear noise coming from your driveway, you are unsure what it is and go to investigate. You can't directly see the car or anything from the inside. You have your firearm on you, just in case (notable issue for some) for protection. As you walk out you see someone has broken into your car and is halfway inside rummaging. From over 10 feet back you say STOP! (notable issue for some). The thief comes out from the car, but does not go away and faces you. You yell at him you are going to call the police, and he charges at you. You can't see if anything is in his hand and you don't have much distance before he will reach you. You pull and shoot, he is dead, a 17 year old, no weapon is found.

In my mind it is a fair shoot. However it is a risk no matter what. Nothing good can come of it.

However bottom line, better have some cash stowed and a decent lawyer. There is going to be a civil outcry from the community to the DA of a vigilante and a civil wrongful death suit.
.

I agree that this would be a good shoot. Justification for use of lethal force is the shooter's reasonable perception of fear. A physical attack by an intruder in the dark would seem to qualify.

But, yes, it could be problematic. A great reason for Castle Doctrine and Stand Your Ground laws.

boxbro
06-17-2009, 11:55 AM
A. Not enough people who aren't stupid run for office.
B. Stupidity runs the election process in CA.
C. Being stupid gets you friends at the top who share the same stupidity.
D. The stupidity isn't brought out to the public to be seen for what it really is and/or the public doesn't know any better, so they get away with it.
E. All of the above.

This reminds of a Mark Twain quote:

All Congresses and Parliaments have a kindly feeling for idiots, and a compassion for them, on account of personal experience and heredity.

E Pluribus Unum
06-17-2009, 12:03 PM
THE ONLY JUSTIFIABLE REASON TO SHOOT SOMEONE IS BECAUSE YOUR LIFE OR SOMEONE ELSE'S LIFE IS IN DANGER!!!! Dont' forget that.

Not entirely true. I know that the police can use deadly force to stop a fleeing felony suspect if that suspect demonstrates a danger to the public; I am not sure if that applies to private citizens or not but I think it does.

Untamed1972
06-17-2009, 12:05 PM
You are at home at night and hear noise coming from your driveway, you are unsure what it is and go to investigate. You can't directly see the car or anything from the inside. You have your firearm on you, just in case (notable issue for some) for protection. As you walk out you see someone has broken into your car and is halfway inside rummaging. From over 10 feet back you say STOP! (notable issue for some). The thief comes out from the car, but does not go away and faces you. You yell at him you are going to call the police, and he charges at you. You can't see if anything is in his hand and you don't have much distance before he will reach you, it all happens so fast it seems. You pull and shoot, he is dead, a 17 year old, no weapon is found.

In my mind it is a fair shoot. However it is a risk no matter what. Nothing good can come of it.

However bottom line, better have some cash stowed and a decent lawyer. There is going to be a civil outcry from the community to the DA of a vigilante and a civil wrongful death suit from his family.
.


Here is my take on your scenario:

1) You are on your private property so you have a legal right to be armed 24/7 if you choose to be. So having the gun on you, legally, is a non-issue.

2) Your car is on your property so you have a right to move freely about your property however you choose.

3) You gave the person a command to stop.

4) Person engaged in a crime did not comply but chose a threatening action instead. In the dark not be able to see whether a weapon was present or not would give you reasonable fear for your safety. Even if you knew he had no weapon that doesn't mean your life/safety are not still at risk depending on size of suspect, possibility of other suspects that you can't see because it's dark and so on. So taking the shot would be justified. Yep.....you're still gonna get sued, but criminally you SHOULD be ok. Again here, the shot is taken not to stop the crime, but to stop the now imminent threat to your life/safety.

Altnernate:

3) You tell suspect to stop

4) They take off running away from you, or stop and put their hands up.

Better not take that shot now!

Untamed1972
06-17-2009, 12:12 PM
Not entirely true. I know that the police can use deadly force to stop a fleeing felony suspect if that suspect demonstrates a danger to the public; I am not sure if that applies to private citizens or not but I think it does.

Yes....but you said the magic words "a fleeing felony suspect if that suspect demonstrates a danger to the public" basically they believe someone else's life will be in danger if he escapes.

And yes it is legal....but it's going to be a rare case where it is gonna fly. For example an escaped convict who has already killed a string of people following his escape, a wanted serial killer or something like that. There is going to have to some sort of existing facts to support your feeling that further lives will be in danger if the person escapes arrest.

A theft of something worth $400 or more is a felony.....but you cant shoot a fleeing shoplifter who is running away with $400 worth of stuff....just because he's a "fleeing felon".

There is going to have to some sort of existing facts to support your feeling that further lives will be in danger if the person escapes arrest.

GaryV
06-17-2009, 12:16 PM
Again....LEOs have a duty to apprehend a suspect. In the case of a trffic stop, if you refuse to sign a traffic citation they are required to arrest you and take you before a judge. So fleeing a traffic stop is essentially a refusal to sign a citation so they must attempt to make an arrest. They step in front of the car (which actually is pretty stupid and not something they're trained to do) in an attempt to make an arrest. Shooting the driver is because in attempting to make an arrest their life is put in danger.

Actually, you are just as justified in stopping an escaping felon as a police officer. I'm well aware of the foolishness of officers stepping in front of a vehicle. I was one for several years, and I would have NEVER done this. But I've known a few who have. And they are not required to make an arrest. It is up to officer discretion. He/she has up to a year to write the citation/make the arrest. If he/she already has the person's information, the citation/arrest can always occur later without the officer escalating a traffic infraction into a life-and-death situation.

The difference here is that, theorectically, you WOULD have the ability to stop the criminal/crime with less than lethal force. The fact that a weapon was then presented would allow you to use lethal force to protect yourself. THAT is the part you need to remember, especially were that to actually happen to you and you were giving a statement.

Get this now:

You shot him because you were in fear for your life....NOT because you were trying to stop the theft or the escaping theif!!!!

Get it????

Yes, I get it, but you don't seem to. Read what you said about the police officer above. You're misrepresenting what I said. I didn't say you shoot him to stop his escape. Like the officer in your first paragraph, you step in his path to stop him with your physical presence (make an arrest, which, in a felony, you are as justified as a police officer). But his continuing to move towards you threatens your life, and you shoot because you're in fear for your life.


So back to the case of going out of the house to stop the guy ramming your car. You life was not in danger while you were still in the house, and having no means to stop the guy short of lethal force....your only reason then for going out of the house and using lethal force would be to stop the property crime.....because your life was not in danger. NOW....if the guy starts ramming the house with the SUV....you now have a much more clearly articulatable reason to be in fear for your life and start shooting the guy....NOT because he's ramming your house.....but because he is endangering your life.

THE ONLY JUSTIFIABLE REASON TO SHOOT SOMEONE IS BECAUSE YOUR LIFE OR SOMEONE ELSE'S LIFE IS IN DANGER!!!! Dont' forget that.

You're jumping to a lot of unreasonable conclusions. If I looked out and saw someone hit my parked vehicle, I might go outside simply to investigate, or to see whether there was some method, short of lethal force, to stop him. I would certainly want to gather identifying information for the police. And I would definitely be carrying a holstered weapon.

But you assume that anyone exiting the safety of their house in this instance has the use of lethal force as their only motive or alternative, when that's not true. It is potentially a very dangerous situation, and justifies being armed, but it is also a situation in which you would have significant justifiable reasons for exiting your home and attempting to confront, or at least identify, the criminal. If he then, intentionally or recklessly, endangers your life, you're justified in defending yourself.

E Pluribus Unum
06-17-2009, 12:19 PM
Yes....but you said the magic words "a fleeing felony suspect if that suspect demonstrates a danger to the public" basically they believe someone else's life will be in danger if he escapes.

And yes it is legal....but it's going to be a rare case where it is gonna fly. For example an escaped convict who has already killed a string of people following his escape, a wanted serial killer or something like that. There is going to have to some sort of existing facts to support your feeling that further lives will be in danger if the person escapes arrest.

A theft of something worth $400 or more is a felony.....but you cant shoot a fleeing shoplifter who is running away with $400 worth of stuff....just because he's a "fleeing felon".

There is going to have to some sort of existing facts to support your feeling that further lives will be in danger if the person escapes arrest.

I am not using this as a legal defense in the OP's scenario. I am simply pointing out that an attorney can later look at the facts and find an exception that a normal person would not know about. This is why we must not talk to police because we greatly limit our wiggle room.


Now, that being said, while I do not necessarily disagree with you and playing devil's advocate:

Ever heard the phrase "Drive it like you stole it?"

If someone runs out of Walmart with a blueray disc player, there is no propensity for danger. If someone steals a vehicle, the likelihood that vehicle will be driven aggressively in public at some point is high.

IGOTDIRT4U
06-17-2009, 12:20 PM
Actually, you are just as justified in stopping an escaping felon as a police officer. I'm well aware of the foolishness of officers stepping in front of a vehicle. I was one for several years, and I would have NEVER done this. But I've known a few who have. And they are not required to make an arrest. It is up to officer discretion. He/she has up to a year to write the citation/make the arrest. If he/she already has the person's information, the citation/arrest can always occur later without the officer escalating a traffic infraction into a life-and-death situation.



Yes, I get it, but you don't seem to. Read what you said about the police officer above. You're misrepresenting what I said. I didn't say you shoot him to stop his escape. Like the officer in your first paragraph, you step in his path to stop him with your physical presence (make an arrest, which, in a felony, you are as justified as a police officer). But his continuing to move towards you threatens your life, and you shoot because you're in fear for your life.




You're jumping to a lot of unreasonable conclusions. If I looked out and saw someone hit my parked vehicle, I might go outside simply to investigate, or to see whether there was some method, short of lethal force, to stop him. I would certainly want to gather identifying information for the police. And I would definitely be carrying a holstered weapon.

But you assume that anyone exiting the safety of their house in this instance has the use of lethal force as their only motive or alternative, when that's not true. It is potentially a very dangerous situation, and justifies being armed, but it is also a situation in which you would have significant justifiable reasons for exiting your home and attempting to confront, or at least identify, the criminal. If he then, intentionally or recklessly, endangers your life, you're justified in defending yourself.

Good post. Or, in short, your rights don't stop at your doorway!

Maestro Pistolero
06-17-2009, 12:35 PM
http://ag.ca.gov/firearms/forms/pdf/Cfl2007.pdf Page 27

How is a 25 ACP too much force to dissuade a person committing an assault with a vehicle?

I was referring to an attempt to run down the homeowner, not suggesting that there was an assault on an inanimate object.

If the homeowner were to position himself in his own driveway where he has a legal right to be, and the perpetrator then attempts to run him over, that is an assault. I think that's significantly different from hurling one's self into the path of a speeding vehicle (whatever the intent of the driver) in order to justify shooting at it.

See the difference? In the first case it is the perpetrator who is actively assaulting, and in the second it is the homeowner.

Untamed1972
06-17-2009, 12:36 PM
Actually, you are just as justified in stopping an escaping felon as a police officer. I'm well aware of the foolishness of officers stepping in front of a vehicle. I was one for several years, and I would have NEVER done this. But I've known a few who have. And they are not required to make an arrest. It is up to officer discretion. He/she has up to a year to write the citation/make the arrest. If he/she already has the person's information, the citation/arrest can always occur later without the officer escalating a traffic infraction into a life-and-death situation.

Justified yes.....obligated no. So you cant arrest a person on a stale misdemeanor, but you can cite/arrest them on an infraction citation for up to a year? That's a new one by me. I only said a LEO would step in front of the car in an attempt to make an arrest and in making that attempt his life is now in danger, not the he was obligated to step in front of the car. I was merely responding to why a LEO could do that and have it be justified. It is justified for him because he was attempting to make an arrest. Pvt. citizen can't make traffic stops or issue citations. Citizen arrest for misdemeanor/felony is different story.

But if I call the COPs because someone is jacking my stereo and they just roll up and sit there and watch him do it and let him walk away.....they're gonna have some explaining to do don't yuh think? They don't have an obligation to come when called.....but once there they can't just sit and watch.



Yes, I get it, but you don't seem to. Read what you said about the police officer above. You're misrepresenting what I said. I didn't say you shoot him to stop his escape. Like the officer in your first paragraph, you step in his path to stop him with your physical presence (make an arrest, which, in a felony, you are as justified as a police officer). But his continuing to move towards you threatens your life, and you shoot because you're in fear for your life.

Yes...but you have the ability to stop him, man-to-man, with less than lethal force. You don't have the ability to stop a car with just your body. Again..it's that reasonable person standard. You might hope that stepping in the path of the car and telling him to stop would work....but a reasonable person would prolly not agree with you. A reasonable person would say you are needlessly and pointlessly putting yourself in harm's way with not reasonable means to stop the crime/affect the arrest.




You're jumping to a lot of unreasonable conclusions. If I looked out and saw someone hit my parked vehicle, I might go outside simply to investigate, or to see whether there was some method, short of lethal force, to stop him. I would certainly want to gather identifying information for the police. And I would definitely be carrying a holstered weapon.

But you assume that anyone exiting the safety of their house in this instance has the use of lethal force as their only motive or alternative, when that's not true. It is potentially a very dangerous situation, and justifies being armed, but it is also a situation in which you would have significant justifiable reasons for exiting your home and attempting to confront, or at least identify, the criminal. If he then, intentionally or recklessly, endangers your life, you're justified in defending yourself.

There is a difference between someone sideswiping your parked car on the street and someone repeatedly ramming several cars in your driveway. I understand where you're coming from about "going out to investigate" and all that. But in doing so you do increase your own risk. And if someone is repeatedly ramming your car, which would make their intent obvious, then doing so would prolly not be very smart and could put you on shaking ground should you then need to defend yourself, having now chosen to put yourself in harm's way.

bigmike82
06-17-2009, 1:07 PM
What about this?

Code 197:
Homicide is also justifiable when committed by any person in any of the following cases:

1.

When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,

Intentionally ramming a car with your SUV is a felony, is it not?

GaryV
06-17-2009, 1:10 PM
Justified yes.....obligated no. So you cant arrest a person on a stale misdemeanor, but you can cite/arrest them on an infraction citation for up to a year? That's a new one by me. I only said a LEO would step in front of the car in an attempt to make an arrest and in making that attempt his life is now in danger, not the he was obligated to step in front of the car. I was merely responding to why a LEO could do that and have it be justified. It is justified for him because he was attempting to make an arrest. Pvt. citizen can't make traffic stops or issue citations. Citizen arrest for misdemeanor/felony is different story.

But if I call the COPs because someone is jacking my stereo and they just roll up and sit there and watch him do it and let him walk away.....they're gonna have some explaining to do don't yuh think? They don't have an obligation to come when called.....but once there they can't just sit and watch.

As long as you witnessed the misdemeanor/infraction, and can ID the person, yes, you can (as an LEO). I've done it, and it's never been challenged in court. Sometimes you create a more dangerous situation by trying to force the issue (like causing a high-speed pursuit), and it's simply a lot smarter to come back to it later. Stepping in front of a car to make an arrest on a traffic ticket is even more stupid, but it happens.

Yes, the LEO only steps in front of the car to make an arrest. And a private citizen can do the same, except if for an infraction. If an LEO is legally justified in placing his body in the path of a vehicle to affect an arrest, and then shooting because of the threat to his life, a private citizen is equally justified as long as the initial crime is one for which he can make a citizen's arrest.

And actually, as for "duty", officers could simply sit and watch while your stereo was stolen. Police sit and watch crimes happen all the time. Sometimes they even participate in them as undercover agents. There's absolutely no duty to make an arrest at the time of the offense. Now, in the case of your stereo, if they were simply not planning on taking any action at all, they would almost certainly face administrative action. But you couldn't sue them or file criminal charges, because they have no legal duty to stop a theft any more than they do to stop an assault or murder (which the courts have ruled on many times).

Yes...but you have the ability to stop him, man-to-man, with less than lethal force. You don't have the ability to stop a car with just your body. Again..it's that reasonable person standard. You might hope that stepping in the path of the car and telling him to stop would work....but a reasonable person would prolly not agree with you. A reasonable person would say you are needlessly and pointlessly putting yourself in harm's way with not reasonable means to stop the crime/affect the arrest.

You don't have the physical ability to stop a car, but then neither does an LEO. You may not have the physical ability to stop a thief with a gun either, with the mere physical barrier of your body. But the subject then has to decide whether to threaten your life in order to effect his escape. If his decision is "yes", then you're justified in shooting him, whether he's on foot or behind a steering wheel. If it's reasonable for an LEO (and courts have ruled it is, many times), it's reasonable for everyone. Maybe not smart (and I wouldn't recommend it), but legal.

There is a difference between someone sideswiping your parked car on the street and someone repeatedly ramming several cars in your driveway. I understand where you're coming from about "going out to investigate" and all that. But in doing so you do increase your own risk. And if someone is repeatedly ramming your car, which would make their intent obvious, then doing so would prolly not be very smart and could put you on shaking ground should you then need to defend yourself, having now chosen to put yourself in harm's way.

So what? You increase your risk. But investigating any disturbance, even the odd bump in the night, increases your risk over hiding under your bed. If someone was repeatedly smashing my car, you'd better believe I'd go out to investigate and ID the person. And anyone doing the same would be well within their rights. The mere sight of someone approaching might scare them off. It's not reasonable to assume that only lethal force would stop them. To assume that they would automatically threaten your life, and conclude that you were asking for it if you went to investigate, is not reasonable either.

Yes, it might put you on shaky ground, simply because there are people who believe you should have no rights of self defense or defense of property. And the police/prosecutor/jury members might be some of those people. But you do have such rights, and you even have an obligation to do what you can to at least gather identifying information as a witness. As long as that is understood, you're on solid ground.

Joe
06-17-2009, 1:11 PM
If someone is ramming my car in my driveway, I would feel like my life is in danger.

alpha_romeo_XV
06-17-2009, 1:11 PM
Don’t know how much policies have changed in twenty years, but I had someone breaking into my truck in my own driveway at 3 AM. I called police and they got there within minutes while the “suspect” was still in the vehicle. I had complete view and hearing from an upstairs window 12’ away. The arriving officers approached with guns drawn. They didn’t know if he was attempting to steal the truck (Felony), or just the stereo (Misdemeanor), as the engine was not running. Their first command to the suspect was “Get out of the truck, get down on the ground and you won’t shot!” Bluff or not, that was the script. I don’t think a citizen has the same latitude. I wouldn’t chance it. It turned out the ignition had been tampered with, and less than a year later the truck was stolen from the same location. First suspect was an “illegal hombre”, the second never got caught.

bigcalidave
06-17-2009, 1:22 PM
Because I don't want to go to jail ever, and I really don't want to shoot someone unless they are about to shoot me or my family, UNLESS I or My Family is in immediate danger, I'm not going outside to tell them to leave, or confronting them, for any reason. I have insurance, and I have a phone. I call the police for EVERYTHING !! lol. Any weird noise or person. They work for me right? I make them work. Whenever possible. If the person outside sees me watching them then decides to come into my house, situation is different and I'm not worried about making a phone call anymore.

Untamed1972
06-17-2009, 1:22 PM
Don’t know how much policies have changed in twenty years, but I had someone breaking into my truck in my own driveway at 3 AM. I called police and they got there within minutes while the “suspect” was still in the vehicle. I had complete view and hearing from an upstairs window 12’ away. The arriving officers approached with guns drawn. They didn’t know if he was attempting to steal the truck (Felony), or just the stereo (Misdemeanor), as the engine was not running. Their first command to the suspect was “Get out of the truck, get down on the ground and you won’t shot!” Bluff or not, that was the script. I don’t think a citizen has the same latitude. I wouldn’t chance it. It turned out the ignition had been tampered with, and less than a year later the truck was stolen from the same location. First suspect was an “illegal hombre”, the second never got caught.

Actually if someone breaks into a locked vehicle to steal anything....even it's just your $10 gas station sunglasses....that is felony burglary of a vehicle.

bsim
06-17-2009, 1:25 PM
PC 197 (2) looks like it IS legal.

Untamed1972
06-17-2009, 1:27 PM
Did you obtain a warrant for those stale misdemeanors?

http://www.legalupdateonline.com/4th/172#cont191

Stale Misdemeanor Rule
"Stale Misdemeanor Rule:" The arrest for a misdemeanor must occur at the time, or shortly after, the commission of the offense. (People v. Hampton (1985) 164 Cal.App.3rd 27.) If not, it is a "stale misdemeanor" for which the defendant may not be arrested even if it occurred in the officer's presence. (People v. Craig (1907) 152 Cal. 42, 47.) What is and what is not stale depends upon the circumstances:

"No hard and fast rule can, however, be laid down which will fit every case respecting what constitutes a reasonable time. What may be so in one case under particular circumstances may not be so in another case under different circumstances. All that can be affirmed with safety is that the officer must act promptly in making the arrest, and as soon as possible under the circumstances, and before he transacts other business.' . . . . ‘(W)e hold that in order to justify an arrest without warrant the arrestor must proceed as soon as may be to make the arrest. And if instead of doing that he goes about other matters unconnected with the arrest, the right to make the arrest without a warrant ceases, and in order to make a valid arrest he must then obtain a warrant therefor (sic)." (Oleson v. Pincock (1926) 68 Utah 507, 515-516 [251 P. 23, 26].)

"In order to justify a delay, there should be a continued attempt on the part of the officer or person apprehending the offender to make the arrest; he cannot delay for any purpose which is foreign to the accomplishment of the arrest." (Jackson v. Superior Court (1950) 98 Cal.App.2nd 183, 187; next day, arrest illegal.)

The stale misdemeanor rule applies to arrests by private citizens, under authority of P.C. § 837, as well. (Green v. Department of Motor Vehicles (1977) 68 Cal.App.3rd 536; arrest made some 35 to 40 minutes after the observation held to be lawful; see also Ogulin v. Jeffries (1953) 121 Cal.App.2nd 211; 20 minute delay, arrest lawful

Untamed1972
06-17-2009, 1:28 PM
PC 197 (2) looks like it IS legal.

Try shooting a guy for stealing your stereo and see where you end up.

bigmike82
06-17-2009, 1:31 PM
"Try shooting a guy for stealing your stereo and see where you end up. "
probably nowhere good, but that doesn't change the fact that it would be entirely lawful...and even if a jury finds you guilty, I would strongly hope a judge would see that on appeal.

bigcalidave
06-17-2009, 1:41 PM
You WILL go to prison for doing it... But here are the laws. Apparantly stopping the comission of a felony is justifiable for homicide. But a jury of your (morons) is going to convict you.

196. Homicide is justifiable when committed by public officers and
those acting by their command in their aid and assistance, either--
1. In obedience to any judgment of a competent Court; or,
2. When necessarily committed in overcoming actual resistance to
the execution of some legal process, or in the discharge of any other
legal duty; or,
3. When necessarily committed in retaking felons who have been
rescued or have escaped, or when necessarily committed in arresting
persons charged with felony, and who are fleeing from justice or
resisting such arrest.


197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.




198. A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.



198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant
or substantial physical injury.



199. The homicide appearing to be justifiable or excusable, the
person indicted must, upon his trial, be fully acquitted and
discharged.

bigcalidave
06-17-2009, 1:42 PM
Interestingly, that kinda legalizes vigilantism.





as long as you kill them.

bigmike82
06-17-2009, 1:45 PM
"But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone. "

So it's not justified if you simply "think" the person will murder you; A reasonable person must have thought so too (and you can't do it with an ulterior motive). If the felony is in progress...this section is obviously in favor of you being able to shoo the dude.

Untamed1972
06-17-2009, 1:49 PM
"4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace."


That's gonna be the part where they're gonna get you. You're gonna hafta be able to articulate why it was necessary.

It's just a free reign to shoot felons.

"198. A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone."

If someone if trashing your car and you are safely in the house you may have "bare fear" that they may do you harm, but if they have made no indication or attempt to do so or are even aware of your presence then you're gonna have some 'slpainin' to do.

bigmike82
06-17-2009, 1:50 PM
We're not using .4 as the defense....we're using .2.

Excuse me, I mean .1, not .2.

bigcalidave
06-17-2009, 1:53 PM
I'd still say that you are going to jail. Unless they were really scary and stealing your radio. with you in the car.

bigmike82
06-17-2009, 1:54 PM
"I'd still say that you are going to jail. Unless they were really scary and stealing your radio. with you in the car. "
Of course you are. No jury would vote to let you go free.

But, on appeal, no reasonable judge has any choice but to let you go free if you've proven that you were resisting a felony.

Untamed1972
06-17-2009, 1:59 PM
We're not using .4 as the defense....we're using .2.

Excuse me, I mean .1, not .2.

"2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein;"

I would hazard a guess that the intended legal definition here of "violence" would mean violence against a person, meaning they physically assualt/batter you in someway to stop you from preventing them from committing the property crime. I dont think you can, under legal defintion, commit a violent act on an inanimate object.

Again....if they're ramming your car in the driveway and you are safely in the house I think you're going to have a tough sell on that one. But try it and see how it works out for yuh.

Untamed1972
06-17-2009, 2:05 PM
We're not using .4 as the defense....we're using .2.

Excuse me, I mean .1, not .2.

"1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person;"


I think you might be stretching the meaning of "resisting an attempt to commit a felony"....at least when it comes to say....someone already in the act of stealing your stereo.

Now say something like resisting a carjacking, resisting a rape, or a mugging or something like that.....I can go along with that.

But I dont think going outside at 3am to confront a guy jacking your stereo would quite falling into "resisting an attempt to commit a felony".

MasterYong
06-17-2009, 2:20 PM
If someone is ramming my car in my driveway, I would feel like my life is in danger.

I think that any reasonable person would- and isn't that the point?

If I were to shoot someone whilst in fear of my own safety, and I went to jail, I'd be cool with that because I'd be DONE. That's right, DONE. I don't think I want to live in a world where criminals have more rights than I do. I know that's actually the way it is, but I have yet to be directly affected so I haven't given up yet.

Untamed1972
06-17-2009, 2:27 PM
"If someone is ramming my car in my driveway, I would feel like my life is in danger."

Ok.....but not look at it this way:

What if you're in your house and they are ramming a car in your neighbors house next door, or directly across the street?"

Are you still in fear? I'm not saying it wouldn't be scary, but absent being able to cite some specific evidence of what made you think your life/safety is in immediate danger, your "bare fear" because of the scary situation is not justification.

So someone tell me how when you're in your house, perhaps looking out a second story window, and someone ramming your car in the driveway that your life/safety is in immediate danger? Not just that you "think" it is because of the bare fear of the scary situation, but is it ACTUALLY in immediate danger?

bigmike82
06-17-2009, 2:34 PM
It's not about whether your life is in imminent danger.

It's about whether you're trying to resist a felony.

If someone's ramming your car, and you're inside (your house), a felony is being committed against YOU, even if you are not in the immediate vicinity. According to the law...correction, according to what I understand the law says, you are justified in using force to resist that felony. If it ends with the bad guy dead, it's justified, based upon a strict interpretation of 197.1.

I don't dispute that you'd likely go to jail because a jury is generally stupid...but I do contend that any reasonable judge who has any respect for the law will release you upon appeal.

hkusp9c
06-17-2009, 2:36 PM
So if something like this happen to us, we're only legally allowed to use something like this?

http://www.walyou.com/img/nerf-vulcan-gun1.jpg

Or is it illegal too and we'll end up in jail and get sued for every penny we have?

Untamed1972
06-17-2009, 2:43 PM
It's not about whether your life is in imminent danger.

It's about whether you're trying to resist a felony.

If someone's ramming your car, and you're inside (your house), a felony is being committed against YOU, even if you are not in the immediate vicinity. According to the law...correction, according to what I understand the law says, you are justified in using force to resist that felony. If it ends with the bad guy dead, it's justified, based upon a strict interpretation of 197.1.

I don't dispute that you'd likely go to jail because a jury is generally stupid...but I do contend that any reasonable judge who has any respect for the law will release you upon appeal.

Go read my post above......I still think you're trying to stretch the meaning of "resisting a felony" and I think upon appeal a reasonable judge would say "you misunderstood the meaning of resisting a felony". And you'll prolly get stuck some kind of manslaughter charge.

Yes you are the victim of a felony, but the felony is not being commit ON you. The 2 other things listed in section 1 deal with resisting murder or things likely to cause GBI. So I would contend in the context of that section "resisting an attempt to commit a felony" (notice it doesn't say ANY felony) means resisting an attempt to commit a felony UPON your person or the person of another.....NOT property.

Untamed1972
06-17-2009, 2:46 PM
"1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person;"


Read the way that section is written. It doesn't say resisting ANY felony. It says resisting any attempt to commit a felony or GBI UPON ANY PERSON."

If you are on a second story of your house while your car is being rammed.....that felony is NOT being committed UPON YOUR PERSON. It is being committed upon your property.

bodger
06-17-2009, 2:49 PM
Try shooting a guy for stealing your stereo and see where you end up.

You mean the guy with the butcher knife lying next to his dead body when the cops get there?:43:

bigmike82
06-17-2009, 2:50 PM
It doesn't, though.

it says "Murder any person"
"a felony"
"Great bodily injury upon any person."

A felony specifically fails to include "Any person". Which would suggest that it's intended to cover situations precisely like the one above.

Also, there's no grammatical distinction between 'a felony' and 'any felony.' If a or any felony is being committed, you have the right to resist it, with force if necessary.

Untamed1972
06-17-2009, 2:55 PM
It doesn't, though.

it says "Murder any person"
"a felony"
"Great bodily injury upon any person."

A felony specifically fails to include "Any person". Which would suggest that it's intended to cover situations precisely like the one above.

Also, there's no grammatical distinction between 'a felony' and 'any felony.' If a or any felony is being committed, you have the right to resist it, with force if necessary.

Read it again.......is says "resisting an attemp....to commit a felony OR cause GBI upon any person."

The "OR" ties the two phrases together. Because not all felonies committed on your person result in GBI.....and not all instances that could cause GBI are nessecarily felonies.

And later sections do use the term "any felony". That to me says THIS sections is refering specifically to felonies committed on on your PERSON.

bigmike82
06-17-2009, 3:07 PM
But there are several ORs in that sentence.

It's A OR B OR C.

B specifically excludes any person; A and C specifically include them, which again seems to indicate that the clause is not meant to apply specifically to felonies that are committed directly onto a person.

bsim
06-17-2009, 3:19 PM
Point 2 sez property explictly.

Habitation, PROPERTY, OR person.

GuyW
06-17-2009, 3:24 PM
They don't have an obligation to come when called.....but once there they can't just sit and watch.


Nope, Supreme Ct cases say they can. You can even be murdered while they watch, with no liability.

....not that they would....
.

anthonyca
06-17-2009, 3:33 PM
What sort of statement?

Supposedly, if you believe the detective, they decided to press charges because the mother of the other party kept coming into the station, getting upset, yelling, etc., and he said he couldn't tell her he couldn't press charges, so he did what he did. Sounded like BS to me, but I wouldn't be all that surprised if it were true.

The statement I was asking about is how sometimes an attorney will write a synopsis of the incident. Sort of a press release. They know what to release if anything to let us know what happened with out going to far. TMLLP is one of the best civil rights law firms in the US. A vote of confidence and them believing that you can win and are being unfairly charged will help a lot in getting donations.

TMLLP will now be dropping Trutanich,s name as he won LA city attorney hence the T in TMLLP.

jnojr
06-17-2009, 4:01 PM
Could someone PM me the Cliff's Notes? :D

GaryV
06-17-2009, 5:11 PM
Did you obtain a warrant for those stale misdemeanors?

http://www.legalupdateonline.com/4th/172#cont191

Stale Misdemeanor Rule
"Stale Misdemeanor Rule:" The arrest for a misdemeanor must occur at the time, or shortly after, the commission of the offense. (People v. Hampton (1985) 164 Cal.App.3rd 27.) If not, it is a "stale misdemeanor" for which the defendant may not be arrested even if it occurred in the officer's presence. (People v. Craig (1907) 152 Cal. 42, 47.) What is and what is not stale depends upon the circumstances:

"No hard and fast rule can, however, be laid down which will fit every case respecting what constitutes a reasonable time. What may be so in one case under particular circumstances may not be so in another case under different circumstances. All that can be affirmed with safety is that the officer must act promptly in making the arrest, and as soon as possible under the circumstances, and before he transacts other business.' . . . . ‘(W)e hold that in order to justify an arrest without warrant the arrestor must proceed as soon as may be to make the arrest. And if instead of doing that he goes about other matters unconnected with the arrest, the right to make the arrest without a warrant ceases, and in order to make a valid arrest he must then obtain a warrant therefor (sic)." (Oleson v. Pincock (1926) 68 Utah 507, 515-516 [251 P. 23, 26].)

"In order to justify a delay, there should be a continued attempt on the part of the officer or person apprehending the offender to make the arrest; he cannot delay for any purpose which is foreign to the accomplishment of the arrest." (Jackson v. Superior Court (1950) 98 Cal.App.2nd 183, 187; next day, arrest illegal.)

The stale misdemeanor rule applies to arrests by private citizens, under authority of P.C. § 837, as well. (Green v. Department of Motor Vehicles (1977) 68 Cal.App.3rd 536; arrest made some 35 to 40 minutes after the observation held to be lawful; see also Ogulin v. Jeffries (1953) 121 Cal.App.2nd 211; 20 minute delay, arrest lawful

Good thing I wasn't LEO in CA. That's a stupid rule that requires officers to allow criminals to either go free or threaten the safety of the public if attempting arrest requires taking risky actions such as high-speed pursuits. It still doesn't justify taking such actions.

GaryV
06-17-2009, 5:36 PM
"If someone is ramming my car in my driveway, I would feel like my life is in danger."

Ok.....but not look at it this way:

What if you're in your house and they are ramming a car in your neighbors house next door, or directly across the street?"

Are you still in fear? I'm not saying it wouldn't be scary, but absent being able to cite some specific evidence of what made you think your life/safety is in immediate danger, your "bare fear" because of the scary situation is not justification.

So someone tell me how when you're in your house, perhaps looking out a second story window, and someone ramming your car in the driveway that your life/safety is in immediate danger? Not just that you "think" it is because of the bare fear of the scary situation, but is it ACTUALLY in immediate danger?

Obviously your life is not in danger at that point. But you keep assuming that there is no reason to go outside except to shoot the guy. While some people might decide to just stay inside and call the police, there is no legal obligation to do so, and there is ample reason to do it. Besides the obvious one already mentioned, such as getting a license number, attempting through non-lethal means to stop the action, etc., what if someone is injured? What if the guy is trying to run down his ex-girlfriend who dumped him, or a neighbor kid who tossed a water balloon at him, who is trying to hide under/behind your car? The point is, you don't know what's going on, and your presence might be beneficial.

Personally, the reason I own/carry a gun is because I refuse to outsource my duty to protect myself, my family, my property and my community. If people just hide in their homes and call the police every time something happens, crime tends to increase, as the police will virtually always be too late to stop the crime or even collect enough information to lead them to an arrest if no one makes an effort to be an adequate witness. When one of my neighbors' house alarms go off, I go check their house, and they do the same for me. If I hear or see someone I don't recognize doing something suspicious on my neighbors' properties, I see who it is and what they're doing, and my neighbors do the same. If there is any kind of unusual activity on our street, we investigate. We all have each others' cell numbers, and we use them.

We don't do these things with any preconceived idea that we're going to be shooting someone, but I can guarantee that if someone becomes a threat to one of us while we are doing reasonable checks, they're going to get guns drawn on them, because at that point, we will have a reasonable fear for our safety while in a place where we have a right to be, and while doing something we have a right to do.

And by the way:

1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person;

So if they are still attempting the felony and have not completed it, you don't have to show necessity to use deadly force to stop it. Necessity is only a requirement in capturing a felon after the fact.

GaryV
06-17-2009, 5:45 PM
"1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person;"


Read the way that section is written. It doesn't say resisting ANY felony. It says resisting any attempt to commit a felony or GBI UPON ANY PERSON."

If you are on a second story of your house while your car is being rammed.....that felony is NOT being committed UPON YOUR PERSON. It is being committed upon your property.

You're reading it wrong. There are three separate phrases that each stand alone:

When resisting any attempt to murder any person,

OR to commit a felony,

OR to do some great bodily injury upon any person

There are no qualifications on the second phrase. It simply says "to commit a felony". I agree it would be stupid to shoot someone who is simply jacking your car stereo, and you would probably be charged with using excessive force, but that doesn't mean you actually violated the law. You can be charged with lots of things that are not actually illegal. That's why we have courts. But if I was confronting someone who was breaking into my car (and I would confront them), I would be armed, and if they threatened me, rather than running away or surrendering, I wouldn't hesitate to use it.

Maestro Pistolero
06-17-2009, 6:09 PM
Two Words: Pepper Spray. It wouldn't have helped the OP, but if someone is jacking your car stereo, and they aren't armed, but they do resist, you better have something ready besides lethal force. Even if you can shoot him doesn't mean you should. I always carry it when I CC or OC my gun. Don't hesitate to use more than one tool. A nice big flashlight can really illuminate he situation, too. :D

Once he's blinded by the stuff, your options for handling him without shooting increase. By all means get the cops en route. His escape is going to be really complicated at this point. If you can't see, you can't drive, run fast, or much of anything else.

One note of warning: if it's an auto burglary, he's going to have at least one tool that he may wield as a deadly weapon.

By all means, do not let him within reach of your weapon. If legally possessed and deployed, a grab for you weapon is reasonable justification to use it.

If he's under your dash, tell him not to move or you'll shoot ;). Keep his back to you if possible, and get the police on the phone ASAP. There is no better evidence than having the police see him with his hand in the cookie jar.

Untamed1972
06-17-2009, 6:30 PM
You're reading it wrong. There are three separate phrases that each stand alone:



There are no qualifications on the second phrase. It simply says "to commit a felony". I agree it would be stupid to shoot someone who is simply jacking your car stereo, and you would probably be charged with using excessive force, but that doesn't mean you actually violated the law. You can be charged with lots of things that are not actually illegal. That's why we have courts. But if I was confronting someone who was breaking into my car (and I would confront them), I would be armed, and if they threatened me, rather than running away or surrendering, I wouldn't hesitate to use it.

We are going to have agree to disagree then. To me that whole section is about committing an act upon a person.

bigmike82
06-17-2009, 6:36 PM
And I'm sure that's exactly what the prosecutor is going to argue.

Depends what side your on, but I think the law is squarely on the side of you being able to 'resist a felony' using deadly force if necessary.

Whether it's a good idea during the circumstances is, of course, up for debate.

Untamed1972
06-17-2009, 6:36 PM
Obviously your life is not in danger at that point. But you keep assuming that there is no reason to go outside except to shoot the guy. While some people might decide to just stay inside and call the police, there is no legal obligation to do so, and there is ample reason to do it. Besides the obvious one already mentioned, such as getting a license number, attempting through non-lethal means to stop the action, etc., what if someone is injured? What if the guy is trying to run down his ex-girlfriend who dumped him, or a neighbor kid who tossed a water balloon at him, who is trying to hide under/behind your car? The point is, you don't know what's going on, and your presence might be beneficial.

Personally, the reason I own/carry a gun is because I refuse to outsource my duty to protect myself, my family, my property and my community. If people just hide in their homes and call the police every time something happens, crime tends to increase, as the police will virtually always be too late to stop the crime or even collect enough information to lead them to an arrest if no one makes an effort to be an adequate witness. When one of my neighbors' house alarms go off, I go check their house, and they do the same for me. If I hear or see someone I don't recognize doing something suspicious on my neighbors' properties, I see who it is and what they're doing, and my neighbors do the same. If there is any kind of unusual activity on our street, we investigate. We all have each others' cell numbers, and we use them.

We don't do these things with any preconceived idea that we're going to be shooting someone, but I can guarantee that if someone becomes a threat to one of us while we are doing reasonable checks, they're going to get guns drawn on them, because at that point, we will have a reasonable fear for our safety while in a place where we have a right to be, and while doing something we have a right to do.

Yet most of your example above is in regards to SOMEONE's safety/life being in danger. If no one's life is in danger then your use of deadly force will likely land you in jail.

And by the way:


[/QUOTE]So if they are still attempting the felony and have not completed it, you don't have to show necessity to use deadly force to stop it. Necessity is only a requirement in capturing a felon after the fact.[/QUOTE]

You will ALWAYS have to articulate necessity, except when someone is illegally in your home at which time the law presumes your necessity, at least in CA. If you kill someone and cannot articulate a reasonable fear for your life/safety or that of another then you WILL get charged with a crime, at least here in CA. So if you think stopping the guy from ramming your car is worth going to jail for and your family and your family being left homeless when the lawsuits are over then go right ahead.

GaryV
06-17-2009, 6:38 PM
We are going to have agree to disagree then. To me that whole section is about committing an act upon a person.

It isn't though. It would include arson, planting a bomb, etc., even when no life was in danger. But you're right, you'll be judged harshly if it is a relatively minor crime that happens to be a felony. Other states word it a little differently, but most do allow for lethal force to stop felonies, including many against property alone.

Untamed1972
06-17-2009, 6:40 PM
Point 2 sez property explictly.

Habitation, PROPERTY, OR person.

Read the whole section.....section 2 says IN A VIOLENT MANNER! Meaning some physical threat to life or safety is involved.

Use of deadly force is ALWAYS tied to immediate threat to life or personal safety....at least in CA.

In TX you can shoot someone just cuz they're on your property....but not in CA.

GaryV
06-17-2009, 6:51 PM
You will ALWAYS have to articulate necessity, except when someone is illegally in your home at which time the law presumes your necessity, at least in CA. If you kill someone and cannot articulate a reasonable fear for your life/safety or that of another then you WILL get charged with a crime, at least here in CA. So if you think stopping the guy from ramming your car is worth going to jail for and your family and your family being left homeless when the lawsuits are over then go right ahead.

You're partially right - you need reasonable fear. But reasonable fear is not necessity. They are two very different things. It is reasonable fear that is presumed if someone breaks into you house, not necessity. You can have reasonable fear but still be able to take other measures. This is why you are not required to retreat. If necessity was a requirement, you would always have a legal obligation to retreat. In California you don't.

Again (and again, and again), I'm not advocating shooting someone to stop them from ramming your car. You'd definitely be looking at civil charges, because California doesn't have a Castle Doctrine or Stand-Your-Ground law. But if, while attempting to stop them by other means, they become a threat to your life, you are justified in shooting them. This includes stepping between their vehicle and yours. While not smart, it's a perfectly legal act. If they then start towards you, daring you to stand your ground, you could justifiably shoot them. Just say you did it because they were trying to hit you, not because they were trying to hit your car.

Untamed1972
06-17-2009, 6:58 PM
You're partially right - you need reasonable fear. But reasonable fear is not necessity. They are two very different things. It is reasonable fear that is presumed if someone breaks into you house, not necessity. You can have reasonable fear but still be able to take other measures. This is why you are not required to retreat. If necessity was a requirement, you would always have a legal obligation to retreat. In California you don't.

Again (and again, and again), I'm not advocating shooting someone to stop them from ramming your car. You'd definitely be looking at civil charges, because California doesn't have a Castle Doctrine or Stand-Your-Ground law. But if, while attempting to stop them by other means, they become a threat to your life, you are justified in shooting them. This includes stepping between their vehicle and yours. While not smart, it's a perfectly legal act. If they then start towards you, daring you to stand your ground, you could justifiably shoot them. Just say you did it because they were trying to hit you, not because they were trying to hit your car.

In saying "necessity" I meant the necessity to articulate your reasonable fear.

You refer trying to stop the car ramming "by other means". Yes...you could use that as a defense. But I think you might quickly lose your "reasonable person" status by stating "I went out to stop that guy from my ramming my car by standing in front of it." Once you've lost your "reasonable person" credibility with the court.....any actions you take after that will likely be deemed unreasonable as well.

And again I state....I'm not saying this is the way it should be.....I'm just stating how the law as currently written would be applies and it is something to seriously grill into one's noggin before they go dashing out of the house with gun in hand.

GaryV
06-17-2009, 7:00 PM
Read the whole section.....section 2 says IN A VIOLENT MANNER! Meaning some physical threat to life or safety is involved.

Use of deadly force is ALWAYS tied to immediate threat to life or personal safety....at least in CA.

In TX you can shoot someone just cuz they're on your property....but not in CA.

Violent manner doesn't mean threat to a person, it means by force, i.e., kicking in a door, breaking a window, etc., as opposed to walking in through an unlocked door. It would be redundant to say "in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein" if the "violent manner" referred to violence against a person. The "violent manner" refers to the "manner" of entry, not the intended violence after entry is gained. In other words, if someone breaks into your house, you can shoot them as they enter, because the "purpose of offering violence to any person" can be assumed, under California law. But if you left your door unlocked and someone simply opened the door and walked in, you couldn't just shoot them as they walked through the door, unless you could articulate reasonable fear, because their entry would not have been in a "violent, riotous or tumultuous manner".

yellowfin
06-17-2009, 7:04 PM
You're mostly right, but you left out the most important part:

F. All of these "stupid officials" are elected by the public. The public, in general, is STUPID.

Folks that have their heads on straight often forget this simple fact, that the majority of people in this country are stupid. Then, if you get a clear-headed genius running for office, he looks condescending to the people, who then vote for the stupid guy that they identify with. Just look at the Bush/Gore election. Bush is an idiot, there's no doubt about that, but Gore is a wet blanket that acts like a douchebag so it doesn't matter how much smarter or more qualified he was the people liked Bush better.

I'm sure I'll get flamed for that last part, being in a pro-2A forum and all, but it's true.

I disagree with most people being stupid entirely, but perhaps it can be said that they vote stupid or simply put no brain into political matters most of the time. Stupid, no, more like worn out. Limited maybe. They can't be as stupid as they're said to be or we wouldn't have an operable country: the power wouldn't be on, the bridges would break, the TV would show grey fuzz all the time, gas pumps would be empty, etc. It's possible however that after going 9 to 5, keeping the kids fed and the lights turned on, then a beer or two then dinner and a TV show or two a lot of folks are out of gas. Politics isn't fun, law and public finance takes a lot of attention, we generally learn that it's not too smart to dig for more problems than we already have, and quite honestly most of what your trouble brings you in paying attention to it all is being p***ed off for hours on end. Can't say I entirely blame someone for not wanting a taste of that medicine too much after all life throws at them. Of course in defaulting on that means you get taxed to hell and then by not paying attention you don't know where 45-60+% of your money is going nor your country nor your freedoms, but the medicine for that just doesn't taste good, and here in the USA if something doesn't taste good we usually spit it out.

Not that it's any excuse nor does it make it good, but I guess that's a reason if there is one. Most of what we read about upholding freedom and being right for our country is suffering the labors of it, and it just seems that for a lot of people suffering and labor are something they have plenty of enough already--neverminding that a good bit of it is due to their neglect, however rational it may be at the time, having come back to bite us.

GaryV
06-17-2009, 7:18 PM
In saying "necessity" I meant the necessity to articulate your reasonable fear.

But that's not what you referred to in the statute. You referred directly to a section (#4) in which "necessity" of lethal force to effect an arrest was required, which is a totally different thing. In that case, if you have other options you must exhaust them before resorting to lethal force. With self defense, or any of the other justifying circumstances referred to in sections 1-3, "necessity" is not a requirement.

You refer trying to stop the car ramming "by other means". Yes...you could use that as a defense. But I think you might quickly lose your "reasonable person" status by stating "I went out to stop that guy from my ramming my car by standing in front of it." Once you've lost your "reasonable person" credibility with the court.....any actions you take after that will likely be deemed unreasonable as well.

And again I state....I'm not saying this is the way it should be.....I'm just stating how the law as currently written would be applies and it is something to seriously grill into one's noggin before they go dashing out of the house with gun in hand.

This isn't the way it works. There's no separate hearing on the question of whether you're a reasonable person, to then have that used to determine whether your beliefs are reasonable. If you can articulate an action by the subject that would put a reasonable person in fear of their life, you're justified. Note that you yourself need not actually be a reasonable person, as long as a reasonable person in your place would fear for their safety. This is why, even if you're blind drunk you can still be justified in using lethal force in a clear case of self-defense.

And, again, I specifically said go out to "investigate" with a gun "holstered", not "dashing out of the house with gun in hand." You keep making it sound like the only two options are to cower indoors and call the police or run outside like a lunatic looking to kill someone. There is a large array of options in between, that many reasonable people would opt for.

macadamizer
06-17-2009, 9:38 PM
Someone needs to go to the library and find the volumes of Witkin that discuss self defense and lethal force -- that will probably clear up a lot more confusion than will arguing over the placement of commas!

shooter308
06-17-2009, 10:33 PM
Silence is golden.

Good luck man.

.

.

Untamed1972
06-18-2009, 8:57 AM
But that's not what you referred to in the statute. You referred directly to a section (#4) in which "necessity" of lethal force to effect an arrest was required, which is a totally different thing. In that case, if you have other options you must exhaust them before resorting to lethal force. With self defense, or any of the other justifying circumstances referred to in sections 1-3, "necessity" is not a requirement.



This isn't the way it works. There's no separate hearing on the question of whether you're a reasonable person, to then have that used to determine whether your beliefs are reasonable. If you can articulate an action by the subject that would put a reasonable person in fear of their life, you're justified. Note that you yourself need not actually be a reasonable person, as long as a reasonable person in your place would fear for their safety. This is why, even if you're blind drunk you can still be justified in using lethal force in a clear case of self-defense.

And, again, I specifically said go out to "investigate" with a gun "holstered", not "dashing out of the house with gun in hand." You keep making it sound like the only two options are to cower indoors and call the police or run outside like a lunatic looking to kill someone. There is a large array of options in between, that many reasonable people would opt for.

No the problem is everytime I address a comment about one section, someone throws a different one at me and says "but section 2 says property, or section 4 says this."

The "violent manner" is included because a reasonable person could conclude that someone who is kicking in their door is likely to do them violent harm as well. So again.....you are not shooting them to protect your door from a violent attack.....you are shooting them because you are in fear for your life.

As for the reasonable person issue. Yes...a reasonable person would be in fear for their life if someone was trying to run them down with a car. The problem is....a reasonable person would not have stepped in front of the car in the first place. So it could be argued that YOUR unreasonable action put your life at risk....NOT the action of the driver. The driver did not target you....you placed yourself in the path of an oncoming car. Because by your example someone could step off the curb in front of my car because they weren't looking and when faced with the oncoming car shoot me because they feared for their life. Their actions put them in danger.....not mine....you dont get to shoot me because you did something stupid.

You must ALWAYS be in fear for your life to shoot someone. You're not going to get me to believe that the CA-PC allows for someone to be shot to protect property alone.....as far as the LAW is concerned, because that goes against every law class and use of force lecture I've ever attended. I'm not talking morals or ethics....I'm talking the LAW in the f-ed up state of CA.

If you go out to stop the guy ramming your car, which you have a legal right to do, you'd better be armed with something besides your body and your gun if you want a present a credible story about your intention to stop the property crime with something less than lethal force.

If you go out to just investigate/get license info, you keep your distance and out of the path of the car and the guy sees you, turns the car around and comes after you....then fine....shoot him. If you're only action is to step in front of his car supposedly to stop the property crime and then have to shoot him because of your unreasonable action.....you can pretty much bet you're gonna find yourself facing some charges.

I'm not saying whether that's right or wrong.....just how it is. I'd rather not find myself in that position and possibly loosing my freedom and everything I own over a car that insurance will cover anyway. No....we should not have to make a such a choice....but it is the reality of the system we live in right now.

macadamizer
06-18-2009, 10:37 AM
So I took my own advice, and pulled up some stuff from Witkin:

"(1) General Rule. Deadly force or force likely to cause bodily harm is ordinarily not justified merely in defense of property, as in ejecting a trespasser or recovering a chattel. (Deevy v. Tassi (1942) 21 C.2d 109, 119, 130 P.2d 389; see Dobbs, The Law of Torts §76; 1 Harper, James & Gray 3d §3.13.) Under the Restatement, deadly force is permitted “if, and only if, the actor reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect.” (Rest.2d, Torts §79.)" 5 Witkin, Summary 10th (2005) Torts, § 420, p. 634

This is the general rule.

"(3) Felonious Trespasser. Against a felonious trespasser, the use of deadly force without warning may be excusable. In Nakashima v. Takase (1935) 8 C.A.2d 35, 38, 46 P.2d 1020, defendant restaurant proprietor, suspecting a burglary, hid in a passageway and, when two men broke in and entered, shot without warning, killing one. Held, he was not liable for the wrongful death. The act was both a justifiable homicide under P.C. 197 (1 Cal. Crim. Law (3d), Defenses, §§64, 78) and a privileged battery. (See Boyer v. Waples (1962) 206 C.A.2d 725, 730, 24 C.R. 192 [long-continued harassment and threats by vandals, followed by trespass in<<* p.635>> nighttime by persons apparently carrying explosives or gasoline; shooting with .22 rifle, after disregard of warnings and warning shots, was justifiable]; 43 Cal. L. Rev. 119; 9 So. Cal. L. Rev. 375 [discussion of similar problem arising under claim of self-defense]; 100 A.L.R.2d 1021 [use of firearm in defense of habitation or property]; 29 A.L.R.4th 144 [private person's liability to third person injured by shots fired at fleeing criminal].)

Nakashima was followed in Gilmore v. Superior Court (1991) 230 C.A.3d 416, 281 C.R. 343. Defendant was awakened at 2 a.m. by a sound outside his second story living room window, and saw decedent standing on a ladder and attempting to remove the window screen. Defendant got his gun, went out the front door, and pulled the ladder down, knocking decedent to the ground. Decedent regained his feet, moved toward defendant and then backed away. Defendant ordered him to “freeze,” and fired two warning shots near him; Decedent ran away, and defendant fired four more shots to decedent's side, hoping to frighten him into stopping. Fragments from a bullet, though not aimed at decedent, ricocheted off the asphalt and killed him. In a criminal prosecution, defendant's conviction for manslaughter was reversed on the ground that the evidence showed a justifiable homicide. In the present action by decedent's mother for wrongful death, defendant moved for summary judgment. Held, the motion should have been granted.

(a) An act resulting in justifiable homicide as defined by P.C. 197 is, in legal effect, a privileged act; i.e., though it would ordinarily be tortious, under the circumstances it does not subject the actor to liability. (230 C.A.3d 420, 421, citing the text.) Thus, the holding in Nakashima was that the shooting of the victim was both a justifiable homicide and a privileged battery. (230 C.A.3d 420, citing the text.)

(b) In People v. Ceballos, supra, the court pointed out that the common law sanctioned the use of deadly force only in situations where the felony being committed could be characterized as “forcible and atrocious”; and that where the offense is burglary, this standard is satisfied; the circumstances establish that the perpetrator's conduct “threatened, or was reasonably believed to threaten, death or serious bodily harm.” (230 C.A.3d 422.) Here the undisputed facts establish that defendant did in fact entertain the belief that he was so threatened and that his belief was reasonable. He testified on deposition that when he looked out and saw decedent on the ladder he was “absolutely frantic”; his initial intent was to keep the intruder outside of his house, and he sought to accomplish it by making an arrest. And in his statement of undisputed facts defendant asserted that he was “afraid for his life.” (230 C.A.3d 422.)<<* p.636>>"

Two points on this section. First, in section (a), for those complaining about the lack of a "castle doctrine," the case clearly spells out that if the use of deadly force is privileged -- i.e., justified -- then there is no civil liability. See also 6 Witkin, Summary 10th (2005) Torts, § 1099, p. 429

"(1) In General.C.C. 847, enacted after Rowland v. Christian (1968) 69 C.2d 108, 70 C.R. 97, 443 P.2d 561, supra, §1086, provides that an owner, including a public entity, is not liable for injury or death occurring on his or her property during or after the commission of specified felonies by the injured or deceased person. (C.C. 847(a); see 17 Pacific L. J. 797; C.C. 847(b) [listing felonies, most of which involve force or violence].)"

Second, section (b) pretty much articulates the requirement that there not just be any felony, but one that includes the reasonable belief that death or great bodily harm was a-coming. Note that this case was the civil action after a criminal action that found that the shooting was justified, and that although the facts state that the victim shot the perp as he was running away (and outside the house), the fact that the victim believed he was threatened with death or great bodily harm was an "undisputed fact," which just means that both sides agree that it was the case in this matter and didn't need to be proven in this case -- probably due to evidence that came forward in the criminal matter.

I haven't read the cases cited here -- they might make for interesting reading -- but I wouldn't read into them a general privilege to go outside of your house and shoot a fleeing suspect. It seems that this case probably turned on some specific evidence in the criminal trial.

Also, just to confuse matters even more:

"Some civil cases have stated in dicta that a police officer's right, under P.C. 196(3) (supra, §82), to use deadly force in apprehending felons is limited to those felonies that threaten death or great bodily harm (see<<* p.423>>Kortum v. Alkire (1977) 69 C.A.3d 325, 333, 138 C.R. 26; Long Beach Police Officers Assn. v. Long Beach (1976) 61 C.A.3d 364, 373, 132 C.R. 348), but California's Supreme Court has not decided the correctness of this limitation (see Peterson v. Long Beach (1979) 24 C.3d 238, 247, footnote 8, 155 C.R. 360, 594 P.2d 477). However, in Tennessee v. Garner (1985) 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1, the United States Supreme Court held that the use by police of deadly force to prevent the escape of an apparently unarmed and nondangerous suspected felon violates the Fourth Amendment.

In Garner, a police officer shot and killed a suspected fleeing burglar at night. The officer did so even though he was “reasonably sure” that the suspect, who was young and slightly built, was unarmed. The suspect's father brought a civil rights action against the city and other defendants, who defended on the ground that the officer's action was justified under a Tennessee statute permitting the use of all necessary means to effect the arrest of a criminal suspect who flees. Held, the statute is unconstitutional. Deadly force may not be used to prevent an apparently unarmed suspected felon's escape, unless the force “is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” (105 S.Ct. 1697, 85 L.Ed.2d 4.)" 5 Witkin, Summary 10th (2005) Torts, § 424, p. 639

I just bring this up to point out the consistent use of the term "threat of death or serious bodily injury." There is nothing in Witkin that extends the privilege to general felonies that don't include this threat.

bigmike82
06-18-2009, 10:48 AM
"There is nothing in Witkin that extends the privilege to general felonies that don't include this threat."
How does this mesh with CPC 197.1 relating to property?

Untamed1972
06-18-2009, 10:49 AM
Good write-up and quotes macadamizer.......thanks for the input (and the back up)

macadamizer
06-18-2009, 11:02 AM
"There is nothing in Witkin that extends the privilege to general felonies that don't include this threat."
How does this mesh with CPC 197.1 relating to property?

There's statutes, and there are cases that interpret the statutes. Witkin's Summary of California Law gathers up the cases and summarizes what the "law" actually is in practice.

Basically, there are one of three possibilities. The first is that the extra comma in the statute is extraneous -- like the comma in the second amendment itself -- and that the clause containing "property" is properly construed along with the clause requiring "fear of death or great bodily injury." Second, it could be that the code does allow one to use deadly force to protect property, or to intervene in felonies that don't involve fear of death or great bodily harm, but there just haven't been any reported cases in the last hundred years in California. Third, it possible that the statute covers the general protection of property, or is ambiguous, and the courts have simply decided to add the "fear of death or great bodily harm" requirement in the published cases.

I don't think (2) is likely to be a correct outcome here. Most likely (1) is the case, but as a practical matter, it isn't really important, because all of the published cases appear to require "fear of death or great bodily harm" before they will find that the use of deadly force was justifiable.

That said, I am not a criminal lawyer, and one who works in this field may have a better understanding of the relevant caselaw. But Witkin is usually a pretty good source, I would be surprised if there was a case holding that bare defense of property without fear of death or great bodily harm that Witkin hadn't picked up on, unless it was after the latest (2005) revision that I was using.

GaryV
06-18-2009, 11:02 AM
The "violent manner" is included because a reasonable person could conclude that someone who is kicking in their door is likely to do them violent harm as well. So again.....you are not shooting them to protect your door from a violent attack.....you are shooting them because you are in fear for your life.

Okay, I agree, but this is NOT what you said earlier: "Read the whole section.....section 2 says IN A VIOLENT MANNER! Meaning some physical threat to life or safety is involved." There may actually not be a threat to life or safety, it's just that California law allows you to assume it under these circumstances. The actual violence in this context is against property. But I agree, that is not the reason for shooting them, the assumed threat of further violence against a PERSON, as you said, is. So our wires were just a bit crossed on this one.

But you also said that "by violence" in the earlier part of this paragraph means violence against a person by your reading, and this is not true (though it would usually be the case). Blowing up an unoccupied warehouse full of valuable merchandise would be a case of a crime against property (not life) by violence, and, under this section, would justify the use of deadly force in its prevention. I can pretty much guarantee that someone shooting a person attempting that crime would not be charged. While not right under the law as long as the value of the property makes the crime a felony, I admit that you would probably not get the same consideration for shooting someone to prevent them from ramming your car. Although, if he's already rammed several cars on the street (as this guy apparently did), you might be able to argue that he was a significant threat to the safety of people in the neighborhood generally.

As for the reasonable person issue. Yes...a reasonable person would be in fear for their life if someone was trying to run them down with a car. The problem is....a reasonable person would not have stepped in front of the car in the first place. So it could be argued that YOUR unreasonable action put your life at risk....NOT the action of the driver. The driver did not target you....you placed yourself in the path of an oncoming car. Because by your example someone could step off the curb in front of my car because they weren't looking and when faced with the oncoming car shoot me because they feared for their life. Their actions put them in danger.....not mine....you dont get to shoot me because you did something stupid.

Now here again you're confusing the issue. There is no requirement that you yourself be a reasonable person, or even that other actions besides your use of force are reasonable. The legal standard is that for the use of deadly force to be justified, ANY reasonable person standing in your shoes at the moment you chose to use force would feel a fear for their life. That is very clear and settled law. The fact that stepping in front of the car may itself not have been a reasonable act, if the driver then proceeds to try to run you over, he has made the overt act of placing you in a reasonable fear for your life.

Your example of a careless act isn't quite the same, although it does point out that there are fine lines here. Yes, if the car is already in full motion, with little or no chance to stop, or you simply step in front of it for no reason, you would have no standing to argue that you fired in self-defense. However, if the guy is backing up to ram your car again, you step between the cars (not smart, but justifiable), and then he starts back towards you, he's made an overt act of aggression that he had ample opportunity to avoid.

But the fine lines cut the other way too. What if there are 5 people smashing your car with baseball bats. Your argument is that since it isn't reasonable to believe that you could stop them with anything short of lethal force, you would not be justified in confronting them, and that if they then attempted to turn the bats on you (or even decided to hit a second car behind you, causing them to advance towards you with the bat), you would not be justified in using deadly force, having taken the initial unreasonable action of confronting 5 armed felons. But however unreasonable that action is, it doesn't then remove any responsibility from the other person to not present themselves as a threat.

You must ALWAYS be in fear for your life to shoot someone. You're not going to get me to believe that the CA-PC allows for someone to be shot to protect property alone.....as far as the LAW is concerned, because that goes against every law class and use of force lecture I've ever attended. I'm not talking morals or ethics....I'm talking the LAW in the f-ed up state of CA.

This is, I believe, where the root of our disagreement lies. Yes, this is GENERALLY true, but it is not ALWAYS true. As I pointed out before, there are circumstances, such as arson and planting a bomb, even when no lives are directly endangered, when the law does allow the use of deadly force. Even in California.

If you go out to stop the guy ramming your car, which you have a legal right to do, you'd better be armed with something besides your body and your gun if you want a present a credible story about your intention to stop the property crime with something less than lethal force.

I would agree that this would be smart (and I personally would), it's not a legal requirement at all. Just as police officers have a hierarchy of force, so do you. Your mere presence may be enough to scare them off. If not, verbal commands might. Warning them that you have already called the police might. And you have ever right to believe that these might work. Taking other weapons could even lead to more problems, in that, if a protracted physical confrontation ensues, there might be a claim of mutual combat, in which case your self-defense claim could be diminished. But I will agree that you are not really morally justified in shooting someone merely to stop them from ramming your car, without some other threat to physical safety, though legally I think there's an argument to be made that, as the law is written, you are.

If you go out to just investigate/get license info, you keep your distance and out of the path of the car and the guy sees you, turns the car around and comes after you....then fine....shoot him. If you're only action is to step in front of his car supposedly to stop the property crime and then have to shoot him because of your unreasonable action.....you can pretty much bet you're gonna find yourself facing some charges.

You're right, you might. But then you take that risk every time you pick up a gun, even if your actions are totally reasonable and justified. This is what courts are for. Again, I'm not saying this action is smart, I'm simply saying it's legally justifiable.

I'm not saying whether that's right or wrong.....just how it is. I'd rather not find myself in that position and possibly loosing my freedom and everything I own over a car that insurance will cover anyway. No....we should not have to make a such a choice....but it is the reality of the system we live in right now.

And you're right. I wouldn't step in front of a moving car, and I wouldn't shoot someone simply to protect an unoccupied car (unless I was in Texas ;)). But I would go out to attempt to stop the act through non-violent means, and to ID the perp. And if he then escalated things, I wouldn't hesitate to defend myself.

Untamed1972
06-18-2009, 11:03 AM
"There is nothing in Witkin that extends the privilege to general felonies that don't include this threat."
How does this mesh with CPC 197.1 relating to property?

"Code 197:
Homicide is also justifiable when committed by any person in any of the following cases:

1.When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person;"


I still contend that the context of this section is refering specifically to felonies committed on your person. Things like battery, rape, assault with a deadly weapon, robbery/mugging. Because a robbery/mugging although being committed on your person may not necessarily result in death/GBI because the robber may not actually even touch you or present a weapon, but you still have sufficient circumstance to fear for your life, perhaps you were just threatened if you did not comply. So here again though....you are responding to threat on your life/safety not to prevent the loss of your wallet.

And it is also possible someone could do something to which could result in death/GBI but not be a felony if there was no intent to commit a criminal act upon you, but you would still be justified in defending your life from perhaps a negligent act that could kill you or cause GBI.

Someone smashing in the windows of your parked car while you're 200ft away although a felony is not a felony being committed on your person.

That whole section is about acts committed on your person.

Now take the TX law where you can shoot anyone on your property period. The law might cover you criminally.....but may not cover you civily depending on the facts of the case.

Someone stated yesterday that because it doesn't specify "commit a felony on a person" it means any felony. But read the way it's written. It says and attempt to murder any person, or commit a felony or GBI upon any person.

You cannot commit murder "upon a person". So the first part is about attempting to murder any person, the 2nd & 3rd parts about acts which are committed UPON your person, but are not murder attempts. Make sense?

GaryV
06-18-2009, 11:14 AM
There's statutes, and there are cases that interpret the statutes. Witkin's Summary of California Law gathers up the cases and summarizes what the "law" actually is in practice.

Basically, there are one of three possibilities. The first is that the extra comma in the statute is extraneous -- like the comma in the second amendment itself -- and that the clause containing "property" is properly construed along with the clause requiring "fear of death or great bodily injury." Second, it could be that the code does allow one to use deadly force to protect property, or to intervene in felonies that don't involve fear of death or great bodily harm, but there just haven't been any reported cases in the last hundred years in California. Third, it possible that the statute covers the general protection of property, or is ambiguous, and the courts have simply decided to add the "fear of death or great bodily harm" requirement in the published cases.

I don't think (2) is likely to be a correct outcome here. Most likely (1) is the case, but as a practical matter, it isn't really important, because all of the published cases appear to require "fear of death or great bodily harm" before they will find that the use of deadly force was justifiable. And civil suits have a lower standard of proof than criminal cases.

That said, I am not a criminal lawyer, and one who works in this field may have a better understanding of the relevant caselaw. But Witkin is usually a pretty good source, I would be surprised if there was a case holding that bare defense of property without fear of death or great bodily harm that Witkin hadn't picked up on, unless it was after the latest (2005) revision that I was using.

But these are civil cases for wrongful death, and not criminal cases (except that one criminal case is cited). There are likely to be disjuncts between them, since the immunity from civil liability applies only to the owner of the property where the killing occurs, not the shooter, if they are not the same person. This is simply a protection of property owners against damage done through trespass. And civil suit have a lower standard of proof than criminal cases.

macadamizer
06-18-2009, 11:28 AM
But these are civil cases for wrongful death, and not criminal cases (except that one criminal case is cited). There are likely to be disjuncts between them, since the immunity from civil liability applies only to the owner of the property where the killing occurs, not the shooter, if they are not the same person. This is simply a protection of property owners against damage done through trespass. And civil suit have a lower standard of proof than criminal cases.

I am not really sure what your point is here. Here's a question -- are there any cases in California that have found that the use of deadly force in the protection of property, absent a reasonable fear or death or great bodily injury, was a privileged use of deadly force? Are there any cases that have held the opposite (finding criminal liability for use of deadly force absent the fear)?

EDIT: Answered my own question:

In People v. Piorkowski (1974) 41 C.A.3d 324, 115 C.R. 830, defendant noticed three youths in a dry cleaning establishment, where one of them had climbed behind the counter. A short time later he saw the youths walking away from that establishment and asked the manager whether everything was all right. The manager discovered that her wallet, which was in a purse behind the counter, was missing. Pulling a pistol<<* p.425>> from his holster, defendant chased the youths and ordered them to halt. Two of them did; the third continued on. Defendant caught the third youth, struggled with him and shot him in the head, killing him. Held, conviction of involuntary manslaughter affirmed.


(a) A private person's right to arrest must be justified under P.C. 837. (See 4 Cal. Crim. Law (3d), Pretrial Proceedings, §9.) Here, the necessary elements of a burglary were established so that defendant had reasonable cause to believe that the persons he sought to arrest had committed the crime. (41 C.A.3d 328.)


(b) But statutory expansion of the class of crimes punishable as felonies has made the common law rule on use of force to prevent a felony manifestly too broad. “The law of this state makes it a felony to commit such offenses as the theft of $50 worth of avocados, olives, artichokes, nuts, etc. … , the conversion of real estate of the value of $50 or more into personal property by severance from the realty of another … , theft of a dog the value of which exceeds $200 … , a second conviction for indecent exposure … , or conspiracy to commit any crime. … Needless to say, modern rationale must preclude the holding that a private citizen may use deadly force in attempting to arrest a person for such offenses.” (41 C.A.3d 329.) Here, the victim's crime did not threaten death or great bodily harm and the use of deadly force to effect the arrest was unwarranted. (41 C.A.3d 330.)


(c) Defendant not only used a deadly weapon in a threatening manner, but had the weapon in ready condition to be used in excess of reasonably permissible force. Under these circumstances, the imminent danger presented by the gun's ready condition brought defendant within the manslaughter statute and made inapplicable the excuse of accidental killing. There is no authorization under P.C. 12031(i) (now P.C. 12031(k)) for a person to negligently brandish or otherwise use a loaded firearm in a manner that might result in excessive force to accomplish an arrest. (41 C.A.3d 332.)


In People v. Quesada (1980) 113 C.A.3d 533, 169 C.R. 881, defendant's apartment was burglarized at night while he was out. Reasonably suspecting that E was the burglar, defendant arranged for a neighbor to “buy” the property from E at the neighbor's house. After identifying the property as his, defendant went outside and attempted to arrest E. As E drove away, defendant shot him. The trial judge refused an instruction, based on P.C. 197(4) (supra, §83) that homicide is justified when necessarily committed in attempting, by lawful ways and means, to apprehend any person who has committed burglary in the first degree. Held, conviction for involuntary manslaughter affirmed.<<* p.426>>


(a) Under P.C. 197(4), justification exists “only where the felony committed is one which threatens death or great bodily harm.” (113 C.A.3d 535.) A nighttime burglary is not necessarily a crime of this sort. (113 C.A.3d 535, 539.)


(b) People v. Ceballos (1974) 12 C.3d 470, 116 C.R. 233, 526 P.2d 241, supra, §79, established that the use of deadly force to prevent a burglary of unoccupied premises is not justifiable under P.C. 197. “And since a burglary committed when no one is on the premises is not a crime which threatens death or serious bodily harm so as to justify the use of deadly force in preventing its occurrence, it would seem to follow that it is not … the sort of crime which justifies the use of deadly force by a citizen in apprehending the criminal.” (113 C.A.3d 533.)

1 Witkin, Cal. Crim. Law 3d (2000) Defenses, § 86, p. 424 (emphasis added). That pretty clearly shows that the "fear of death or great bodily injury" is a requirement.

Untamed1972
06-18-2009, 11:34 AM
"But you also said that "by violence" in the earlier part of this paragraph means violence against a person by your reading, and this is not true (though it would usually be the case). Blowing up an unoccupied warehouse full of valuable merchandise would be a case of a crime against property (not life) by violence, and, under this section, would justify the use of deadly force in its prevention. I can pretty much guarantee that someone shooting a person attempting that crime would not be charged. While not right under the law as long as the value of the property makes the crime a felony, I admit that you would probably not get the same consideration for shooting someone to prevent them from ramming your car. Although, if he's already rammed several cars on the street (as this guy apparently did), you might be able to argue that he was a significant threat to the safety of people in the neighborhood generally."

I would disagree with the bombing/arson example only because bombs and arson are acts likely to cause death or GBI. If you're there trying to start a fire and I am there trying to stop you....then MY life is in danger if you successfully set the fire or set off the bomb. And how would anyone know for sure whether your bomb is big enough to hurt nearby people or not. So blowing up the building is not a violent act, because buildings are legally blown-up all the time. It is the fact that act, committed with malice aforethought, is likely to cause death or GBI.



"Now here again you're confusing the issue. There is no requirement that you yourself be a reasonable person, or even that other actions besides your use of force are reasonable. The legal standard is that for the use of deadly force to be justified, ANY reasonable person standing in your shoes at the moment you chose to use force would feel a fear for their life. That is very clear and settled law. The fact that stepping in front of the car may itself not have been a reasonable act, if the driver then proceeds to try to run you over, he has made the overt act of placing you in a reasonable fear for your life."

But the law does not excuse unreasonable actions which placed you in harms way. Correct me if I am wrong, but a drug dealer is making a deal and it goes bad and the other guy pulls a gun, drug dealer in fear for his life pulls his gun and kills the other guy. Dealer cannot claim self defense because the threat to his life arose out of his own participation in an illegal act. So his previous, willful actions that put his life in danger are not excused simply because his life is not endanger. Totality of circumstance is ALWAYS taken into account.

You can't just segment things out of the situation, just like you can't segment words out of the penal code sections to make them sound in your favor.

If your unreasonable actions put you in harm's way, then any action you take after that will be deemed unreasonable as well.

Now admittedly.....it would be up to the jury to decide whether stepping in front of a moving vehicle with an angry driver at the wheel to stop it with you "presense and verbal commands" was in fact reasonable. I wouldn't want to take that risk though.

st.clouds
06-18-2009, 12:00 PM
What if someone's trying to rape you? There's no threat of death or great bodily injury yet. So according to the law, it'd better to let the rapist rape you, than shoot him dead, because "The felony committed is [NOT] one which threatens death or great bodily harm."? All the DA has to argue is that sex is not harmful.

Which moron came up with this non-sense? Somebody ramming cars repeatedly in the driveway is acting very violently. There's only around 2 seconds between the 2 tons SUV and you. Anybody, anybody with half the brain would feel very, very threatened.

This is not just a case of the neighbor backing into your car, this a violent and wanton destruction of your property. It's possible the guy would just leave after destroying the cars, just as it's possible to say that the burglar is actually just a prankster, keen on destroying the windows, with no intention of doing further harm, or that the rapist just wants to hold your hands and nothing more. Wake up! would any reasonable person think that a violent, out of control man, would somehow stop mid-way in his crime?

What about after the cars are destroyed? Who knows if the SUV isn't just going to charge into the house and kill you, or your loved ones? The OP has every right to fire away, although I'd probably use a bigger bore, much bigger.

Untamed1972
06-18-2009, 12:16 PM
What if someone's trying to rape you? There's no threat of death or great bodily injury yet. So according to the law, it'd better to let the rapist rape you, than shoot him dead, because "The felony committed is [NOT] one which threatens death or great bodily harm."? All the DA has to argue is that sex is not harmful.

I dont think anyone will argue that rape is a violent crime, likely to result in GBI, that would cause one to be in fear for their life/safety......not to mention rape IS a felony being committed upon your person which PC 197.1 says is a justifiable use of deadly force.

GaryV
06-18-2009, 12:18 PM
I am not really sure what your point is here. Here's a question -- are there any cases in California that have found that the use of deadly force in the protection of property, absent a reasonable fear or death or great bodily injury, was a privileged use of deadly force? Are there any cases that have held the opposite (finding criminal liability for use of deadly force absent the fear)?

The answer to your first question is I don't know. I haven't looked to see. The answer to the second one is, that unless they made a broad interpretation of the meaning of the relevant statutes, it doesn't mater. Just because someone is convicted in one particular case where reasonable fear was absent does not mean that no such case could ever be found justified.


As to the cases you cited, they're irrelevant to the discussion, since none of them involved the interruption of a crime, but the attempted apprehension of the person afterward. For example:

Needless to say, modern rationale must preclude the holding that a private citizen may use deadly force in attempting to arrest a person for such offenses.

This is a different section of the law, for which we've already determined that the standard is different, and where lethal force must be NECESSARY. Plus, we also have federal case law, dealing with the "fleeing felon rule" that bears on this case. Nothing in this case indicates that the use deadly force in certain particular property crimes would not be justified. Not a single one of these cases deals with the interruption of a felony in progress, for which the standard of justification, at least as the law is written, is lower.

Untamed1972
06-18-2009, 12:20 PM
What about after the cars are destroyed? Who knows if the SUV isn't just going to charge into the house and kill you, or your loved ones?

The point is you don't know and until such a threat makes it apparant the you or someone else is actually in immediate, imminent danger, then to shoot them would be acting out of what the PC calls "bare fear" which is not sufficient grounds to use deadly force. Under that example I should be able to a shoot a drunk driver on the freeway because "he might swerve into my car and hit me or someone else."

The OP has every right to fire away, although I'd probably use a bigger bore, much bigger.

No....the OP SHOULD have every right to fire away.....but under current law he does not.

st.clouds
06-18-2009, 12:32 PM
I dont think anyone will argue that rape is a violent crime, likely to result in GBI, that would cause one to be in fear for their life/safety......not to mention rape IS a felony being committed upon your person which PC 197.1 says is a justifiable use of deadly force.

Then I would like to think that an SUV going on a rampage, on my front yard to likely result in GBI to me or my family. It's that simple. It's not just "bare fear".

The point is you don't know and until such a threat makes it apparant the you or someone else is actually in immediate, imminent danger, then to shoot them would be acting out of what the PC calls "bare fear" which is not sufficient grounds to use deadly force. Under that example I should be able to a shoot a drunk driver on the freeway because "he might swerve into my car and hit me or someone else."

Anybody would agree that a 1 ton manic bruin is on your front lawn is dangerously threatening, how much more dangerous would you think a 2 ton SUVs that could easily outrun you and flatten your house is? In my book, this kind of crazed off behavior presents an immediate and apparent danger to the occupant of the house.

Regardless of the law, the fact that the OP even got charged seriously pissed me off. May be some should try doing someone donuts and figure 8's on the DA's front turf and bang on his cars repeatedly, to see if he'll reach out for the gun.

GaryV
06-18-2009, 12:42 PM
I would disagree with the bombing/arson example only because bombs and arson are acts likely to cause death or GBI. If you're there trying to start a fire and I am there trying to stop you....then MY life is in danger if you successfully set the fire or set off the bomb. And how would anyone know for sure whether your bomb is big enough to hurt nearby people or not. So blowing up the building is not a violent act, because buildings are legally blown-up all the time. It is the fact that act, committed with malice aforethought, is likely to cause death or GBI.

You're not in danger if you don't enter the building, after knowing that it's on fire or about to explode, which, by your standard, would be an unreasonable act that is your own fault. This would be even more true than stepping in front of a car, because the overt act of the felon was already committed before there was any threat to you. In putting yourself close enough to the building after it is already dangerous, the only overt act causing danger is yours. Blowing up a building is most definitely a violent act in and of itself, regardless of any lack of potential harm to life. And it's not "likely" to harm anyone if the building is known to be uninhabited. I don't know where you get the idea that the legal definition of violence only pertains to acts against people. There's absolutely no basis for that, except your attempts to run various parts of this particular statute together.

But the law does not excuse unreasonable actions which placed you in harms way. Correct me if I am wrong, but a drug dealer is making a deal and it goes bad and the other guy pulls a gun, drug dealer in fear for his life pulls his gun and kills the other guy. Dealer cannot claim self defense because the threat to his life arose out of his own participation in an illegal act. So his previous, willful actions that put his life in danger are not excused simply because his life is not endanger. Totality of circumstance is ALWAYS taken into account. (emphasis added)

That's the flaw in your argument. There are specific legal exceptions to self-defense when the person is in the act of committing a crime. There is no such exemption when the person is just unreasonable. It has nothing to do with the reasonableness of the situation, it is simply accepted by the law that one cannot claim to be a victim of one's own criminal activities.

You can't just segment things out of the situation, just like you can't segment words out of the penal code sections to make them sound in your favor.

If your unreasonable actions put you in harm's way, then any action you take after that will be deemed unreasonable as well.

Now admittedly.....it would be up to the jury to decide whether stepping in front of a moving vehicle with an angry driver at the wheel to stop it with you "presense and verbal commands" was in fact reasonable. I wouldn't want to take that risk though.

I didn't just "segment words out of the penal code sections". It's well-settled law that the term "reasonable fear" pertains only to whether a completely hypothetical "reasonable person" would have felt that same fear were he standing in your shoes, regardless of how he got there (unless it was through his own criminal act). You can, in all other ways, be acting unreasonable. As long as nothing you have done up to that point has been criminal, or furthering of mutual combat in which you willingly participate, it is only the reasonableness of your fear that matters.

GaryV
06-18-2009, 12:46 PM
Anybody would agree that a 1 ton manic bruin is on your front lawn is dangerously threatening, how much more dangerous would you think a 2 ton SUVs that could easily outrun you and flatten your house is? In my book, this kind of crazed off behavior presents an immediate and apparent danger to the occupant of the house.

For an example of this, look at the guy who stole the M-60 in San Diego in 1995. He never made any attempt to hit an occupied vehicle, despite many chances, and he even backed up and turned away when he missed a turn and almost hit a house. Despite something like 30 minutes of rampage, he never injured anyone. All he did was flatten cars, telephone poles, and fire hydrants. And yet the police shot him. And were justified in doing so.

Untamed1972
06-18-2009, 1:02 PM
For an example of this, look at the guy who stole the M-60 in San Diego in 1995. He never made any attempt to hit an occupied vehicle, despite many chances, and he even backed up and turned away when he missed a turn and almost hit a house. Despite something like 30 minutes of rampage, he never injured anyone. All he did was flatten cars, telephone poles, and fire hydrants. And yet the police shot him. And were justified in doing so.

I remember watching that live on TV and I will disagree. For eample when he completely flattened a motorhome parked on the street. There is no way he could have known whether someone was in the motorhome or not. His action were displaying total disregard for public safety on a wide scale which were likely to cause at LEAST GBI. His actions were random and directed at any available target.

Go look at what CA consideres GBI.....it can be as simple as a cut requiring more than 3-4 stitches, a black eye/severe brusing, or knocking out a tooth or a broken bone.


So yes.....a guy ramming your car in the driveway COULD cause death or GBI to SOMEONE.....but if you go shoot him you'd better be able to articulate WHO the SOMEONE was who was in immediate danger. If only YOUR unoccupied car is the target (especially if you know why you're the tagret) acting in fear of him leaving the scene and ramming someone else at random would likely not be a strong defense.

I will even concede that depending on the layout of your house/driveway the ramming of the car while you're in the house could be a factor were there the danger of the car being pushed into the house, or ramming the gas meter or something like that. But those would be things that lend to the totality of the circumstances and justify your actions. But like when I think of my house for example.....were someone ramming my car in my driveway....there is little change of that. So until the house becomes an apparent target then I'm prolly better off to wait for the COPs and let them shoot him and do all the paperwork. Not saying I won't have weapons at the ready...but if the car is the only target.....I'll wait it out for the COPs.

Re: the OP.....hard to believe someone could ram 3 cars and still be able to drive the SUV away still, and at least not leave a nice trail of radiator fluid or something for the COPs to follow.

GaryV
06-18-2009, 1:09 PM
"Code 197:
Homicide is also justifiable when committed by any person in any of the following cases:

1.When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person;"


I still contend that the context of this section is refering specifically to felonies committed on your person. Things like battery, rape, assault with a deadly weapon, robbery/mugging.

But the clear language here doesn't support your claim. Even without the commas, the phrase "or to commit a felony" stands alone, because the next phrase doesn't merely say "or do", it says "or to do", which is the same as the previous clause. This, linguistically, sets the phrases apart instead of combining them. If you say "to run, or to walk backwards", it means something very different than to say " to run or walk backwards". In the first example (which matches the language of the statute), "backwards" only refers to walking. In the second it would refer to both, but this is not how the statute is written. It also doesn't make sense that in the other two phrases, even where it is redundant (you can only murder a person, not anything else), "person" is explicitly stated, but in the one phrase where it would be most needed if that was the intent, it was omitted. One has to believe it was done on purpose.

Now take the TX law where you can shoot anyone on your property period. The law might cover you criminally.....but may not cover you civily depending on the facts of the case.

Actually, you'd be fine. Since Texas does have a castle doctrine law, you are automatically immune from all civil prosecution if you are found justified under criminal law. California doesn't have that. The only person protected from civil action is the owner of the property where the killing occurred, and then only if the killing was the result of trespassing. Unless the shooter is also the property owner, he has no immunity at all to civil suit.

Someone stated yesterday that because it doesn't specify "commit a felony on a person" it means any felony. But read the way it's written. It says and attempt to murder any person, or commit a felony or GBI upon any person.

You cannot commit murder "upon a person". So the first part is about attempting to murder any person, the 2nd & 3rd parts about acts which are committed UPON your person, but are not murder attempts. Make sense?

You significantly changed the wording of the statute to make it fit your interpretation, dropping a couple of words and a comma. Of course you can commit a murder upon a person. In fact, you can ONLY commit a murder upon a person, not an animal or object (see my point above that they included this redundancy in the first part, but still did not include "person" anywhere in the second part, where it would have made more sense if they had intended to only include felonies against people). And notice, that that is one single phrase, set apart from the second phrase by a comma. Even if you were correct, and "murder upon a person" didn't make sense, you can't grammatically just shove the "upon a person" to the other side of the comma just because it would bolster your argument. So no, it makes no sense at all.

GaryV
06-18-2009, 1:19 PM
I remember watching that live on TV and I will disagree. For eample when he completely flattened a motorhome parked on the street. There is no way he could have known whether someone was in the motorhome or not. His action were displaying total disregard for public safety on a wide scale which were likely to cause at LEAST GBI. His actions were random and directed at any available target.

Go look at what CA consideres GBI.....it can be as simple as a cut requiring more than 3-4 stitches, a black eye/severe brusing, or knocking out a tooth or a broken bone.


So yes.....a guy ramming your car in the driveway COULD cause death or GBI to SOMEONE.....but if you go shoot him you'd better be able to articulate WHO the SOMEONE was who was in immediate danger. If only YOUR unoccupied car is the target (especially if you know why you're the tagret) acting in fear of him leaving the scene and ramming someone else at random would likely not be a strong defense.

I will even concede that depending on the layout of your house/driveway the ramming of the car while you're in the house could be a factor were there the danger of the car being pushed into the house, or ramming the gas meter or something like that. But those would be things that lend to the totality of the circumstances and justify your actions. But like when I think of my house for example.....were someone ramming my car in my driveway....there is little change of that. So until the house becomes an apparent target then I'm prolly better off to wait for the COPs and let them shoot him and do all the paperwork. Not saying I won't have weapons at the ready...but if the car is the only target.....I'll wait it out for the COPs.

Re: the OP.....hard to believe someone could ram 3 cars and still be able to drive the SUV away still, and at least not leave a nice trail of radiatre fluid or something for the COPs to follow.

I agree with everything you say here (except that if the guy in the tank had even just been indifferent to harming others, someone would have gotten hurt). I was just giving an extreme example to show that st. clouds's interpretation of the threat is reasonable, that it need not be a direct threat to one's self, but can be a general threat to the public at large. But I wouldn't shoot for that reason either, unless the threat was imminent and couldn't be stopped any other way.

macadamizer
06-18-2009, 1:20 PM
The answer to your first question is I don't know. I haven't looked to see. The answer to the second one is, that unless they made a broad interpretation of the meaning of the relevant statutes, it doesn't mater. Just because someone is convicted in one particular case where reasonable fear was absent does not mean that no such case could ever be found justified.

Please. If the only reported cases are those in which people are convicted where reasonable fear was absent, you are hiking a very steep uphill path if your argument is basically, "but in my case the outcome should be different."

Your interpretation of the statute is not relevant -- the court's is.

As to the cases you cited, they're irrelevant to the discussion, since none of them involved the interruption of a crime, but the attempted apprehension of the person afterward. For example:

This is a different section of the law, for which we've already determined that the standard is different, and where lethal force must be NECESSARY. Plus, we also have federal case law, dealing with the "fleeing felon rule" that bears on this case. Nothing in this case indicates that the use deadly force in certain particular property crimes would not be justified. Not a single one of these cases deals with the interruption of a felony in progress, for which the standard of justification, at least as the law is written, is lower.

Where have we determined what the standard is? Where is the caselaw that articulates the standard?

Besides, I think you might have missed this:

"People v. Ceballos (1974) 12 C.3d 470, 116 C.R. 233, 526 P.2d 241, supra, §79, established that the use of deadly force to prevent a burglary of unoccupied premises is not justifiable under P.C. 197. “And since a burglary committed when no one is on the premises is not a crime which threatens death or serious bodily harm so as to justify the use of deadly force in preventing its occurrence, it would seem to follow that it is not … the sort of crime which justifies the use of deadly force by a citizen in apprehending the criminal.” (113 C.A.3d 533.)"

Look, if you have caselaw to the contrary, please point it out. But if all you are doing is reading what you want to see into the statute, I am not sure how that is really relevant to the conversation, since it isn't your interpretation that will control.

I've looked to try and find a reported case where deadly force was used to stop a property crime, and where the shooter was not charged with a crime. I can't find one. Doesn't mean there isn't one, but I haven't been able to find one in my limited searching. That's the sort of case you need to support your arguments.

tazmanian devil dog
06-18-2009, 1:33 PM
I would strongly consider moving and retaining an attorney just in case.

Untamed1972
06-18-2009, 1:37 PM
But the clear language here doesn't support your claim. Even without the commas, the phrase "or to commit a felony" stands alone, because the next phrase doesn't merely say "or do", it says "or to do", which is the same as the previous clause. This, linguistically, sets the phrases apart instead of combining them. If you say "to run, or to walk backwards", it means something very different than to say " to run or walk backwards". In the first example (which matches the language of the statute), "backwards" only refers to walking. In the second it would refer to both, but this is not how the statute is written. It also doesn't make sense that in the other two phrases, even where it is redundant (you can only murder a person, not anything else), "person" is explicitly stated, but in the one phrase where it would be most needed if that was the intent, it was omitted. One has to believe it was done on purpose. .

No....because as I already articulated the disticntions is between attempting to murder someone, OR trying to commit felonys OR other NON-FELONIOUS acts likely to cause GBI that are not attempted murders. THE WHOLE SECTIONS IS ABOUT CRIMES UPON A PERSON, and you will not convince me otherwise. Because according to you then I could shoot someone to stop them from stealing $50 worth of avocados off the tree in my yard which is a felony. Is that what you are saying the law will allow me to do? Or what if my friend tells me his employee is embezzling money from his company, that's a felony.....can I go shoot the employee to stop them from stealing anymore?

You significantly changed the wording of the statute to make it fit your interpretation, dropping a couple of words and a comma. Of course you can commit a murder upon a person. In fact, you can ONLY commit a murder upon a person, not an animal or object (see my point above that they included this redundancy in the first part, but still did not include "person" anywhere in the second part, where it would have made more sense if they had intended to only include felonies against people). And notice, that that is one single phrase, set apart from the second phrase by a comma. Even if you were correct, and "murder upon a person" didn't make sense, you can't grammatically just shove the "upon a person" to the other side of the comma just because it would bolster your argument. So no, it makes no sense at all.

Again....because part 2 & 3 are regarding other crimes upon a person that are not attempted murder. THE WHOLE SECTIONS IS ABOUT CRIMES UPON A PERSON

Untamed1972
06-18-2009, 1:39 PM
Besides, I think you might have missed this:

"People v. Ceballos (1974) 12 C.3d 470, 116 C.R. 233, 526 P.2d 241, supra, §79, established that the use of deadly force to prevent a burglary of unoccupied premises is not justifiable under P.C. 197. “And since a burglary committed when no one is on the premises is not a crime which threatens death or serious bodily harm so as to justify the use of deadly force in preventing its occurrence, it would seem to follow that it is not … the sort of crime which justifies the use of deadly force by a citizen in apprehending the criminal.” (113 C.A.3d 533.)".[/QUOTE]


Read the underlines section GaryV......I think he's got you on that one.

st.clouds
06-18-2009, 1:44 PM
"People v. Ceballos (1974) 12 C.3d 470, 116 C.R. 233, 526 P.2d 241, supra, §79, established that the use of deadly force to prevent a burglary of unoccupied premises is not justifiable under P.C. 197. “And since a burglary committed when no one is on the premises is not a crime which threatens death or serious bodily harm so as to justify the use of deadly force in preventing its occurrence, it would seem to follow that it is not … the sort of crime which justifies the use of deadly force by a citizen in apprehending the criminal.” (113 C.A.3d 533.)"



In this case though someone is on the premises.

However the case law is interesting, would this mean that shooting an arsonist in the act is a crime, unless someone's in the building?

Untamed1972
06-18-2009, 1:49 PM
In this case though someone is on the premises.

However the case law is interesting, would this mean that shooting an arsonist in the act is a crime, unless someone's in the building?


I would say that the prosecution would have to prove beyond a reasonable doubt that you knew for a fact that the building was empty.

But say you were in SoCal in an area close to brush in the height of fire season. If the person set the fire to an empty building it could easily spread to the brush and other structures.....so again I would say, because fire spreads unpredicatably, that setting a fire is an act likely to cause death/GBI especially if there was someone in the building you weren't aware of.

macadamizer
06-18-2009, 1:55 PM
In this case though someone is on the premises.

However the case law is interesting, would this mean that shooting an arsonist in the act is a crime, unless someone's in the building?

Why shouldn't it be a crime? We don't have a system of vigilante justice.

I would say that the prosecution would have to prove beyond a reasonable doubt that you knew for a fact that the building was empty.

But say you were in SoCal in an area close to brush in the height of fire season. If the person set the fire to an empty building it could easily spread to the brush and other structures.....so again I would say, because fire spreads unpredicatably, that setting a fire is an act likely to cause death/GBI especially if there was someone in the building you weren't aware of.

I don't think so. Once the prosecution proves that you shot someone, it's up to you to prove that one of the exceptions applies. You, the defendant, would need to prove that you reasonable believed that there was someone in the building that was threatened with great bodily harm or death.

The presumption of "fear of great bodily harm or death" that shifts the burden of proof to prove otherwise to the prosecution only kicks in if you kill someone in your own house.

st.clouds
06-18-2009, 2:00 PM
I would say that the prosecution would have to prove beyond a reasonable doubt that you knew for a fact that the building was empty.

But say you were in SoCal in an area close to brush in the height of fire season. If the person set the fire to an empty building it could easily spread to the brush and other structures.....so again I would say, because fire spreads unpredicatably, that setting a fire is an act likely to cause death/GBI especially if there was someone in the building you weren't aware of.

Okay how about this, you're a civilian private security guard, employed to guard a building.

A burglar breaks the window.

What do you do?

1) Call the police.
2) Tell the man to stop.
3) Shoot first, ask question later.

Case 1:
(2) Is probably the best answer. If in the event of preventing a felony, you're put yourself in harms way, how can any sane person charge for a crime!?

Case 2:
What if the robber is unarmed (small chance) and just laugh at you (the security guard) and continue on his merry business, knowing that by law, you can not shoot them, unless they pose a threat. What do you do? What can you do?

Case 3:
The robber now attempts to flee, and there's no one around, are you authorized to shoot?

Similarly in this case.

1) The SUV driver is in the process of comitting a felony. The OP had warned him away. The SUV refused to listen. Worse, there're people on the premises. Is he still not justified in using deadly force?

Untamed1972
06-18-2009, 2:07 PM
What do you do?

1) Call the police.
2) Tell the man to stop.
3) Shoot first, ask question later.

Case 1:
(2) Is probably the best answer. If in the event of preventing a felony, you're put yourself in harms way, how can any sane person charge for a crime!?

Case 2:
What if the robber is unarmed (small chance) and just laugh at you (the security guard) and continue on his merry business, knowing that by law, you can not shoot them, unless they pose a threat. What do you do? What can you do?

Case 3:
The robber now attempts to flee, and there's no one around, are you authorized to shoot?

Similarly in this case.

1) The SUV driver is in the process of comitting a felony. The OP had warned him away. The SUV refused to listen. Worse, there're people on the premises. Is he still not justified in using deadly force?


The law authorizes you or anyone to ONLY the force necessary to stop the crime/affect an arrest.....up to but NOT including deadly force. So as the security guard you'd have to do something like tazer, pepper spray, go hands on and physically subdue, all of which would be totally legal to do stop the crime and make an arrest. And that's ALL you're allowed to do unless there is some other factor that causes you to be in fear for your life or safety.

But again...in CA if the person is in your house you are given legal presumption of fear for your life.

In all instances it comes down to the simple fact that you may only ever use deadly force to defend yourself against a threat to your life or safety or the life safety of another. If the robber in your scenario stops when confronted and turns around and runs away.....you CAN NOT shoot him, as there was no threat your life or safety or that of another. Use of deadly force is not vigilante justice, you being allowed to be judge-jury-and executiuoner, or anything of the kind. It is ONLY, even for the police, to defend against immediate threat to life....ONLY!

st.clouds
06-18-2009, 2:22 PM
The law authorizes you or anyone to ONLY the force necessary to stop the crime/affect an arrest.....up to but NOT including deadly force. So as the security guard you'd have to do something like tazer, pepper spray, go hands on and physically subdue, all of which would be totally legal to do stop the crime and make an arrest. And that's ALL you're allowed to do unless there is some other factor that causes you to be in fear for your life or safety.

But again...in CA if the person is in your house you are given legal presumption of fear for your life.

In all instances it comes down to the simple fact that you may only ever use deadly force to defend yourself against a threat to your life or safety or the life safety of another. If the robber in your scenario stops when confronted and turns around and runs away.....you CAN NOT shoot him, as there was no threat your life or safety or that of another.

Okay, so what if hypothetically speaking, the felon is wearing a 2 ton body armor that you have no chance of defeating with a taser or pepper spray, is it legal to get that 44 mag out (since legend has it it'll punch through both sides of an engine block) to stop the perp? How about a .25 acp which has little chance of killing the man?

Can you imagine stopping a crazed SUV driver with taser or pepper spray? Personally, regardless of whether the SUV driver is intent on harming/injuring anyone is irrelevant. The driver is already in the process of comitting a felony, and the only force that can reliably stop him is either another SUV, a truck or a gun.

But yeah try to prove that a crazed SUV in your frong lawn does not pose a clear and immediate threat... that'll go well.... It's almost like arguing that drunk people in a moving car no more than 50 feet away does not pose an immidiate threat.

macadamizer
06-18-2009, 2:32 PM
Okay, so what if hypothetically speaking, the felon is wearing a 2 ton body armor that you have no chance of defeating with a taser or pepper spray, is it legal to get that 44 mag out (since legend has it it'll punch through both sides of an engine block) to stop the perp? How about a .25 acp which has little chance of killing the man?

If you can't stop the felony without resorting to deadly force, and you are not privileged to use deadly force (no fear of great bodily harm or death), then you let the felony go forward, and you collect as much info as you can to give to the cops. And be prepared to testify at the perp's trial.

It doesn't matter how many hypos you come up with -- you don't have a duty to stop any old felony, and you are not privileged to use deadly force unless you or someone else is in fear of death or great bodily harm. It doesn't matter how bad you want to stop the felony.

Can you imagine stopping a crazed SUV driver with taser or pepper spray? Personally, regardless of whether the SUV driver is intent on harming/injuring anyone is irrelevant. The driver is already in the process of comitting a felony, and the only force that can reliably stop him is either another SUV, a truck or a gun.

See above. Take down the license number, try and get a description of the driver and passengers, and call the cops.

But yeah try to prove that a crazed SUV in your frong lawn does not pose a clear and immediate threat... that'll go well.... It's almost like arguing that drunk people in a moving car no more than 50 feet away does not pose an immidiate threat.

If you are in the house, it doesn't pose a threat that would privilege the use of deadly force.

BTW, do you think it is okay to pull up next to a drunk driver at a light and shoot them if they refuse to pull over?

bigmike82
06-18-2009, 2:38 PM
"BTW, do you think it is okay to pull up next to a drunk driver at a light and shoot them if they refuse to pull over? "
Different scenario. You can't tell if they're drunk without performing a breathalyzer.

Unfortunately, case law seems to back up what you guys are saying. I haven't found a single case where the exemption for justified homocide has been used against resisting a felony where someone's life is not in danger. It's like the damn courts are overlooking that entire clause.

Untamed1972
06-18-2009, 2:39 PM
But yeah try to prove that a crazed SUV in your frong lawn does not pose a clear and immediate threat... that'll go well.... It's almost like arguing that drunk people in a moving car no more than 50 feet away does not pose an immidiate threat.


The point is you will have to be able to articulate who was immediately threatened and how. If you can do that and it meets the "reasonable person" standard then you're good to go. If you can't do that...you're gonna be in a world of headache and shootin' the guy over your smashed up car may cost you your freedom and everything else you own.

If you'd kept your head and waited for the COPs....the driver, if caught, would be goin' to jail. If they shot him....they'd be fillin' out the paperwork and doing all the explaining....and all the while you're safe in your house and calling your insurance agent to file a claim to replace your car.

Which ending would you rather be in?

Again.....I'm saying I like the fact that in some situations I might hafta restrain myself and let someone damage my property, but if no one is in immediate danger given the alternative, I'm gonna wait it out. The second I see the car coming towards the house.....well....I'm guess I'm gonna find out how good a shot I am under pressure.

And please folks.....I am just debating the law here. Please don't think I'm some liberal, protect the criminals, type. Cuz I'm not. I'm not a lawyer, but I have studied the law (got all A's in every law class I ever took), and attended many lectures on use of force and so on.....and I have NEVER heard it expressed that deadly force is legal for the stopping of a property only crime. If it was......I'm sure I would heard somewhere else besides this thread. What I did here clearly and repeatedly stated was "You cannot use deadly force to stop a property crime." And since those folks who I heard it from were all judges, lawyers, DAs, COPs and so on.....I think I'll take their word for it.

Untamed1972
06-18-2009, 2:43 PM
"It's like the damn courts are overlooking that entire clause.

No....I think it's because you are misreading the statute to try and justify your own interpretation.

The courts ruling would support my claim that whole section, including the reference to stopping attempted felonies, is in regards to acts committed on a person....and ONLY on a person.

macadamizer
06-18-2009, 2:55 PM
"BTW, do you think it is okay to pull up next to a drunk driver at a light and shoot them if they refuse to pull over? "
Different scenario. You can't tell if they're drunk without performing a breathalyzer.

I was responding to st.clouds ever more fanciful hypos. But maybe a better question would have been to ask which felonies he (or she) believes call for deadly force to stop, in absence of fear of injury or death? All of them? If so, how do you know for sure that the crime being committed is one of those felonies? I certainly don't know every felony in the books. And what about wobblers? Can you shoot there?

Unfortunately, case law seems to back up what you guys are saying. I haven't found a single case where the exemption for justified homocide has been used against resisting a felony where someone's life is not in danger. It's like the damn courts are overlooking that entire clause.

Not sure why this is unfortunate. Do we really want people killing "felons" right and left? Are you sure that the person is a felon that you are shooting? Are you sure they don't have an excuse, or some sort of mitigating circumstance? After all, if you shoot someone and kill them, it's homicide. You might be privileged to commit homicide in a particular case, but it's still homicide. How do you know that the "felon" you are shooting doesn't have a similar excuse, or privilege, to do what they are doing?

So we simplify things, and say you don't get to shoot unless you are in danger. It doesn't seem that unreasonable to draw the line there -- you can protect yourself, or others, from death or injury, but you let the police and insurance handle the rest of it.

bigmike82
06-18-2009, 3:00 PM
"Are you sure that the person is a felon that you are shooting?"
I better be. Otherwise, it's no longer justified.

"It doesn't seem that unreasonable to draw the line there"
I find it utterly unreasonable that you can't defend your property.

I find it disgusting that our courts have come to the decision that we allow the 'rights' of felons to commit felonies to outweigh the rights of the citizens to fight back.

macadamizer
06-18-2009, 3:19 PM
"Are you sure that the person is a felon that you are shooting?"
I better be. Otherwise, it's no longer justified.

But what happens if you are wrong? Yeah, maybe you go to jail. Maybe you have to pay civil restitution to the victim's family. But the victim is dead.

"It doesn't seem that unreasonable to draw the line there"
I find it utterly unreasonable that you can't defend your property.

There are very, very few things that you own that can't be replaced. Some might be very hard to replace, some might be very difficult to replace, but most things you own are replaceable.

You can't bring back someone from the dead. Which is why we do allow someone to defend themselves -- or someone else -- against potential injury or death. Because that isn't replaceable.

I find it disgusting that our courts have come to the decision that we allow the 'rights' of felons to commit felonies to outweigh the rights of the citizens to fight back.

It all comes down to someone's life versus someone's stuff. One is generally replaceable, the other isn't.

Look, I don't really disagree with your sentiments at heart. My stuff is my stuff, dammit, I worked hard to get it, and I don't want anyone else to touch it. When someone takes something from me, they are taking a piece of my life, in a way, because I had to spend a piece of my life -- time -- in order to earn the money to get that thing.

But this is also the point -- you don't care about my stuff as much as I do -- and I don't care about yours. Nothing personal. :) On average, I guess that the majority of people think somebody else's life is worth more than somebody else's stuff -- and that's why we have the rules as they are.

bigmike82
06-18-2009, 3:45 PM
Alright, you get where I'm coming from. Yeah, you're right, stuff is replaceable, but the time I spent earning it...and the time spent replacing it...is not something I can ever get back. That, and a belief that criminals should fear society more than society fears criminals.

st.clouds
06-18-2009, 3:48 PM
But what happens if you are wrong? Yeah, maybe you go to jail. Maybe you have to pay civil restitution to the victim's family. But the victim is dead.



There are very, very few things that you own that can't be replaced. Some might be very hard to replace, some might be very difficult to replace, but most things you own are replaceable.

You can't bring back someone from the dead. Which is why we do allow someone to defend themselves -- or someone else -- against potential injury or death. Because that isn't replaceable.



It all comes down to someone's life versus someone's stuff. One is generally replaceable, the other isn't.

Look, I don't really disagree with your sentiments at heart. My stuff is my stuff, dammit, I worked hard to get it, and I don't want anyone else to touch it. When someone takes something from me, they are taking a piece of my life, in a way, because I had to spend a piece of my life -- time -- in order to earn the money to get that thing.

But this is also the point -- you don't care about my stuff as much as I do -- and I don't care about yours. Nothing personal. :) On average, I guess that the majority of people think somebody else's life is worth more than somebody else's stuff -- and that's why we have the rules as they are.

I can see your point. Just because somebody steal from you doesn't justify killing them right away. I would agree with you on that point.

Some properties though aren't as replaceable as others. Like homes and cars. How many years did it take you to save up and get one? Can you ever regain all those years?

But back on the case, I'd think that there's a clear and imminent threat to the person's safety. Could just be me, but I'm sure many others would agree.

macadamizer
06-18-2009, 3:51 PM
Some properties though aren't as replaceable as others. Like homes and cars. How many years did it take you to save up and get one? Can you ever regain all those years?

Well, presumably you have insurance in the case of your house, and hopefully your car too. And there are civil remedies that may be available.

Sometimes, though, you won't be "made whole." And that sucks. But that's what happens sometimes.

chip3757
06-18-2009, 8:39 PM
But what happens if you are wrong? Yeah, maybe you go to jail. Maybe you have to pay civil restitution to the victim's family. But the victim is dead.

Victim?...Seriously. How bout criminal or perpitrator. Nevermind felonies or not. If you decide to break the law you should be prepared to accept what happens to you or your punk relative who gets himself shot while doing something stupid.

Im not saying I would take someones life over some old CD's in my car, but, everyone wants to make victims out of criminals these days instead of holding people accountable for their actions, or misfortune from bad decesions.

macadamizer
06-18-2009, 9:03 PM
Victim?...Seriously. How bout criminal or perpitrator. Nevermind felonies or not. If you decide to break the law you should be prepared to accept what happens to you or your punk relative who gets himself shot while doing something stupid.

Victim is the correct word to describe someone who was killed in error, which was the point of the quote you responded to.

But beyond that -- whatever happened to innocent until proven guilty?

Seriously, think about it -- have you ever done anything "stupid" that someone else viewing you might misconstrue as a crime? Going into your own house through a window because you locked yourself out, for example. Or carrying your AR-15 out to your car. Would you want to be shot at because someone mistakenly thought you were committing a felony?

Of course not. It would be a mistake on their part -- but if you are dead, that doesn't help you. That's why we don't let people shoot others to stop felonies -- because you just don't know what the deal is. Let the courts figure it out.

In the OP's case, it seems like a slam-dunk, right? But what if (and there is no way for me to know, of course, this is all speculation, and the OP SHOULD NOT, UNDER ANY CIRCUMSTANCES PROVIDE ANY FURTHER CLARIFICATION HERE) the SUV driver was legally insane? If that's the case, he is NOT criminally responsible for what he did -- he is not liable for a felony. Why should he die for that? Just because the OP's car got beat up?

Im not saying I would take someones life over some old CD's in my car, but, everyone wants to make victims out of criminals these days instead of holding people accountable for their actions, or misfortune from bad decesions.

Nobody is making victims out of criminals. Nobody is saying that people are not accountable for their actions. But vigilantism isn't the way to go, either. Use deadly force to save your self or others, let the cops and courts deal with it when life isn't in danger.

bondmid003
06-18-2009, 9:26 PM
Wow, talk about a thread hijacking. Anyone have any updates on this case

luvtolean
06-18-2009, 10:36 PM
"4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace."


That's gonna be the part where they're gonna get you. You're gonna hafta be able to articulate why it was necessary.

Right, because someone repeatedly ramming cars in a driveway, and with the owner outside, is nothing like a riot, and is quite peaceful. No reason at all to fear for the life of your family or yourself when a 2+ ton battering ram is uncontrollably, and repeatedly smashing into objects mere feet from your house. :rolleyes:

As How to Own a Gun and Stay out of Jail sums up our laws, they're long, rambling and confusing. Trying to cite them as being black and white is a lost cause.

He writes a succinct paragraph elucidating "The Basic Rule of Self Defense":

In order to use deadly force to defend yourself, you must have an honest and reasonable belief that you are in imminent danger of death or great bodily injury from an unlawful attack, and that your acts are necessary to prevent the injury.

Since I was almost killed while still in swaddling clothes by a drunk that blew through our house in a car, not an SUV, I think there was a pretty damn serious danger from the attack before he walked outside to try and end the situation without violence.

BY FAR the most telling piece of this story is that the man was not arrested on the spot, only later by order of an elected politician.

Let's stop with the lousy armchair judging, the experts are going to handle it.

Untamed1972
06-19-2009, 7:08 AM
"Are you sure that the person is a felon that you are shooting?"
I better be. Otherwise, it's no longer justified.

"It doesn't seem that unreasonable to draw the line there"
I find it utterly unreasonable that you can't defend your property.

I find it disgusting that our courts have come to the decision that we allow the 'rights' of felons to commit felonies to outweigh the rights of the citizens to fight back.


Since we all here are big on the constitution, don't forget that you and every other person in this country is "innocent till proven guilty" and has a right "to a speedy and public trial." THAT is why you can't shoot someone for a property only crime. Because to do so would be giving you the right of "judge, jury and executioner" which technically then would be violtaing teir right to trial and so on. The laws of our land say a person accused of such a crime is to be brought before a judge in a prescibed manner and dealt with according to the law if they are found guilty.

This is why you ARE allowed to perform a citizen arrest. If you can catc and detain the person then they are held for bail and trial and all that stuff. That's how our system is set up. No....it doesn't work that great, but should you happen to find yourself on the wrong side of the law like Thesus for example......you'll be damn glad those rights are afforded to you as well. Otherwise you could be gunned down by just about anyone, for any reason and they'd be able to claim justification for it.

luvtolean
06-19-2009, 7:29 AM
Since we all here are big on the constitution, don't forget that you and every other person in this country is "innocent till proven guilty" and has a right "to a speedy and public trial." THAT is why you can't shoot someone for a property only crime. Because to do so would be giving you the right of "judge, jury and executioner" which technically then would be violtaing teir right to trial and so on. The laws of our land say a person accused of such a crime is to be brought before a judge in a prescibed manner and dealt with according to the law if they are found guilty.

This is why you ARE allowed to perform a citizen arrest.

It's also why we have guns.

The defense of property was very much a part of the founders thinking, and is explicitly stated in some state constitutions, on why we should keep and bear arms.

"The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside…Horrid mischief would ensue were one half the world deprived of the use of them…" –Thomas Paine, Writings of Thomas Paine, at 56,1894, Thoughts on Defensive War (1775).

Ignoring how properrty is part of "pursuit of happiness", here are the "'laws of the land" in some states. I don't even include the ones that say "in defense of the home", which IMO OP was doing. Some state Constitution RTKBA amendments:

Colorado: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).

Mississippi: The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons. Art. III, § 12 (enacted 1890, art. 3, § 12).

Montana: The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons. Art. II, § 12 (enacted 1889).

New Hampshire: All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. Pt. 1, art. 2-a (enacted 1982).

North Dakota: All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed. Art. I, § 1 (right to keep and bear arms enacted 1984)

Oklahoma: The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons. Art. II, § 26 (enacted 1907).

Utah: The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms. Art. I, § 6 (enacted 1984).



Source: http://www.law.ucla.edu/volokh/beararms/statecon.htm


I'm in no way advocating shooting someone in the driveway for pnly stealing a stereo. But your arguments, both historical and based on your interpretation of the law, against the use of a weapon in the violent and terrible situation of the OP seem to me way off base.

bigmike82
06-19-2009, 7:34 AM
"THAT is why you can't shoot someone for a property only crime."
No it's not. Nowhere in the Constitution does it say I can't defend my property. Never mind the fact that the Constitution doesn't even apply in these cases.

"Otherwise you could be gunned down by just about anyone, for any reason and they'd be able to claim justification for it. "
Uhm...I don't know about you, but I don't run around committing felonies at the drop of a hat. ;)

12voltguy
06-19-2009, 8:20 AM
Since we all here are big on the constitution, don't forget that you and every other person in this country is "innocent till proven guilty" and has a right "to a speedy and public trial." THAT is why you can't shoot someone for a property only crime. Because to do so would be giving you the right of "judge, jury and executioner" which technically then would be violtaing teir right to trial and so on. The laws of our land say a person accused of such a crime is to be brought before a judge in a prescibed manner and dealt with according to the law if they are found guilty.

This is why you ARE allowed to perform a citizen arrest. If you can catc and detain the person then they are held for bail and trial and all that stuff. That's how our system is set up. No....it doesn't work that great, but should you happen to find yourself on the wrong side of the law like Thesus for example......you'll be damn glad those rights are afforded to you as well. Otherwise you could be gunned down by just about anyone, for any reason and they'd be able to claim justification for it.

not 100% correct
yes in CA you can not shoot someone to defend your property, but in TX you can.......& they do.

don't think that CA laws apply to the rest of the US, our gun laws should tip you off on that fact;)

st.clouds
06-19-2009, 9:20 AM
Right, because someone repeatedly ramming cars in a driveway, and with the owner outside, is nothing like a riot, and is quite peaceful. No reason at all to fear for the life of your family or yourself when a 2+ ton battering ram is uncontrollably, and repeatedly smashing into objects mere feet from your house. :rolleyes:

As How to Own a Gun and Stay out of Jail sums up our laws, they're long, rambling and confusing. Trying to cite them as being black and white is a lost cause.

He writes a succinct paragraph elucidating "The Basic Rule of Self Defense":



Since I was almost killed while still in swaddling clothes by a drunk that blew through our house in a car, not an SUV, I think there was a pretty damn serious danger from the attack before he walked outside to try and end the situation without violence.

BY FAR the most telling piece of this story is that the man was not arrested on the spot, only later by order of an elected politician.

Let's stop with the lousy armchair judging, the experts are going to handle it.

I wholeheartedly agree with this... especially that part in bold. This is not a case of a thief, relieving you of your custom stereo. Let's not forget that.

It was a good shot. But somehow it hurts the poor, sowwie, wittle DA heart, so he had to file charges.

Scarecrow Repair
06-19-2009, 10:22 AM
Uhm...I don't know about you, but I don't run around committing felonies at the drop of a hat. ;)

You completely miss the point. It's not a matter of you knowing that you are committing a felony and shooting yourself or telling someone else to go ahead and shoot you. How often have you done something which might have been misconstrued as a felony by someone who only saw the last several seconds before drawing his gun, not what went before? How many people even know what a felony is, or when something could be charged as either felony or misdemeanor? You may be well informed, but remember, half the population is below average, and a lot of them are going to make mistakes. Like others have said, what if you need to jimmy your own car window or climb into your own house thru your own window, and someone else sees that, thinks "Felony!", and shoots you?

If you reserve the right to shoot someone YOU think is committing a felony without any independent confirmation, you also reserve the right for others to shoot you without any independent confirmation that you were indeed committing a felony.

That's what this particular sub-argument is about: shoot first and ask questions later is fine when you are doing the shooting, not so fine when someone else of inferior judgement thinks you deserve a shooting.

bigmike82
06-19-2009, 10:47 AM
"shoot first and ask questions later is fine when you are doing the shooting"
You're missing the point. No one is saying shoot first, ask questions later.

What I'm saying is that, if necessary, we should be allowed to defend our property rights with deadly force.

"you also reserve the right for others to shoot you without any independent confirmation that you were indeed committing a felony."
If it's my property, I don't need any independent confirmation. More importantly, if I'm out there wrecking my neighbors' car, he shouldn't have to sit on his heels and watch me.

You're assuming (wrongly) that allowing people to use deadly force in defense of property will lead to mass shootings, rampant vigilantism and chaos.

Hasn't happened in Texas, nor in any of the other states that allow you to shoot to defend your property.

Scarecrow Repair
06-19-2009, 11:41 AM
"shoot first and ask questions later is fine when you are doing the shooting"
You're missing the point.

No, YOU are missing the point. He said he doesn't run around committing felonies. The implication is that no one ever makes mistakes, that since he doesn't commit felonies, no one will ever make that mistake about himand shoot him in error, therefore he is safe, therefore it is safe for him to shoot anyone who appears to be committing a felony.

The error in that chain of assumptions is not allowing for mistakes. He would sure as heck be pissed if someone mistook his legitimate action for committing a felony and shot him, yet he ignores that possibility completely in his analysis.

That is what the specific sub-argument is about, not the right to defend property with a gun.

Anyone who ignores the possibility of mistakes is a disaster waiting to happen.

bigmike82
06-19-2009, 12:35 PM
"The error in that chain of assumptions is not allowing for mistakes."
I absolutely allow the possibility of mistakes. It's up to the victim to determine the level of chance he's willing to take, and the level of risk he's willing to accept in potentially making a mistake.

All I'm saying is that the people should have the option. The law says you can 'resist a felony' with deadly force. If a felony is not being committed, you're going to jail.

I fail to see the problem.

bondmid003
06-19-2009, 12:59 PM
This is all a mute point because CA certainly isn't Texas and you can't shoot to defend property here. All the "we should be able to ________"'s don't amount to squat until the laws are changed. We should be able to do ALOT of things in CA, but unfortunately we live in the Land of Asinine Gun Laws

luvtolean
06-19-2009, 1:46 PM
This is all a mute point because CA certainly isn't Texas and you can't shoot to defend property here. All the "we should be able to ________"'s don't amount to squat until the laws are changed. We should be able to do ALOT of things in CA, but unfortunately we live in the Land of Asinine Gun Laws


It's not moot.

OP didn't shoot someone in the back running out the front door with his TV. (Which I'll agree, would clearly not be a good idea based on case law, to say nothing of the fact to me it's also not ethically justifiable.)

He fired at a vehicle used during the commission of a potentially deadly assault on him and his family.

bondmid003
06-19-2009, 2:47 PM
It's not moot.

OP didn't shoot someone in the back running out the front door with his TV. (Which I'll agree, would clearly not be a good idea based on case law, to say nothing of the fact to me it's also not ethically justifiable.)

He fired at a vehicle used during the commission of a potentially deadly assault on him and his family.

No the point that all these dudes are trying to argue is pretty clear, in CA it isn't legal to use deadly force to protect only property. Therefore the point IS moot until the laws are changed by the legislature. These guys are arguing things like "I should be able to" and other hypothetical situations not to mention that each person on here seems to interject yet another hypothetical scenario into this argument. This thing is just running around in circles don't you agree? These same people are clearly interpreting the statute in completely different ways, when in the long run it doesn't matter what anyone on here's interpretation of the law is. The only opinion that is going to matter is that of 12 of the OP's peers if this thing goes to trial or one judge if not.

I didn't say anything about the OP. I'm not even going to try and arm chair quarterback this thing or even guess what is going to happen in a court of law. I just hope everything works out for him, and if anyone has an update that doesn't involve quoting long sections of CA legal statute it would be appreciated

luvtolean
06-19-2009, 4:10 PM
Thanks for the clarification. :)

Untamed1972
06-20-2009, 9:05 AM
You're assuming (wrongly) that allowing people to use deadly force in defense of property will lead to mass shootings, rampant vigilantism and chaos.

Hasn't happened in Texas, nor in any of the other states that allow you to shoot to defend your property.

No...but peraps you remember the story posted a month or so ago about the couple in TX that shot a guy and his family who were offroading and crossed onto the people's property by accident. The man's 6yo child was killed?

What crime did that kid commit?

M198
06-20-2009, 9:09 AM
No...but peraps you remember the story posted a month or so ago about the couple in TX that shot a guy and his family who were offroading and crossed onto the people's property by accident. The man's 6yo child was killed?

What crime did that kid commit?

I used to do the same thing with my minibike when I was a kid. My mom told me not to go on the Johnson property or I would be shot. When He finally saw me, he shot into the air with a shotgun. I never went back.

12voltguy
06-20-2009, 12:09 PM
No...but peraps you remember the story posted a month or so ago about the couple in TX that shot a guy and his family who were offroading and crossed onto the people's property by accident. The man's 6yo child was killed?

What crime did that kid commit?

so?.............a guy went in a church shooting not long ago, should we ban guns?:rolleyes:

bigstick61
07-24-2009, 9:01 PM
Now that I once again have access to a computer, I would like to give you guys an update. I will most likely in two weeks be pleading guilty to a lesser charge (most likely disturbing the peace) as part of a deal. Given the reduction to that point, I do not feel the risk of a trial is worth the reward, which is minimal at this point. The details regarding sentencing, the disposition of the firearm, etc. still have to be negotiated. I'm still at a loss as to how self-defense can turn out this way, especially since the other party will be facing no charges, not even for hit and run. Awhile back my thought was that you might as well just let the guy kill you, you'd probably be better off that way, as opposed to defending yourself, at least in this State. A fairly sad thought.

dwh100
07-24-2009, 9:22 PM
Awhile back my thought was that you might as well just let the guy kill you, you'd probably be better off that way, as opposed to defending yourself, at least in this State. A fairly sad thought.

Just WOW!
Sorry to hear you have to make any plea at all!
I guess it boils down to don't discharge a firearm in defense unless you're stopping someone intent on stopping a human! Even if their ramming vehicles, house, fences, etc. If they don't ram at a human, you can't discharge. Otherwise CA will make an example of you!
I wonder how many LEOs, in the same position, would have immediately opened up on that vehicle's driver?
Just WOW!

bigstick61
07-25-2009, 12:12 AM
There was more to it than just his vehicle being a threat, if you get my meaning. Unfortunately it is a case where the evidence is pretty much his word over mine. No evidence which damns me, but apparently no exculpatory evidence, either. I just really don't feel like rolling the dice at this point for little added benefit. I just want this to be over and for myself and my family to stop bleeding money.

Maestro Pistolero
07-25-2009, 1:44 AM
Make damn sure you don't plea to anything that will impact your civil rights.

bigstick61
07-25-2009, 3:10 AM
Unless the DA renegs on the deal (in which case I won't take it), it will not be one which affects my civil rights. Misdemeanor disturbing the peace is what my lawyers think it will be, as the DA has made it clear it will be a non-gun non-violent sort of misdemeanor, and the lawyers said if it was anything else, the DA would have to create a fiction to go along with it.

Lone_Gunman
07-25-2009, 9:18 AM
The other guy is not even facing any charges?WTF? That makes me absolutely sick. The lunatics are running the assylum.

E Pluribus Unum
07-25-2009, 3:07 PM
Unless the DA renegs on the deal (in which case I won't take it), it will not be one which affects my civil rights. Misdemeanor disturbing the peace is what my lawyers think it will be, as the DA has made it clear it will be a non-gun non-violent sort of misdemeanor, and the lawyers said if it was anything else, the DA would have to create a fiction to go along with it.

If they have a case at all, you said too much to the officers. Otherwise they would have had no evidence to file charges.

I hope you learned from this. Do not ever speak with the police.

eta34
07-25-2009, 5:53 PM
If they have a case at all, you said too much to the officers. Otherwise they would have had no evidence to file charges.

I hope you learned from this. Do not ever speak with the police.

Agreed. And I am a police :)