PDA

View Full Version : Lawful home defense in CA?


Swiss
05-03-2009, 1:12 PM
I was at a gun shop today, helping out some neighbors who were interested in buying their first firearm for home defense. The guy behind the counter spoke with "great authority" about how there's an obligation to retreat and you can't shoot some guy in your home if he's just stealing your TV.

This goes against everything I've read but, admittedly, I'm not current on CA law. It's my understanding there is no obligation to retreat, that with an unknown intruder in your home there is a legal presumption that the intruder intends great bodily harm, and you can generally fire upon this intruder if you are in fear for your life.

Anyone care to set me, or the gun shop guy, straight?

N6ATF
05-03-2009, 1:17 PM
Discussed ad nauseam (http://www.google.com/search?client=safari&rls=en&q=site:calguns.net+%22no+duty+to+retreat%22).

Swiss
05-03-2009, 1:20 PM
Thanks, I searched before posting but obviously didn't use the best parameters.

Edit: reading those links was somewhat helpful and got me on track to the excerpts below. It confirms that the gun shop guy is wrong about having to retreat, but there could be circumstances when an intruder in the home could not lawfully be fired upon.

Can anyone present a few realistic examples of "burglaries which do not reasonably create a fear of great bodily harm"?



From Wikipedia:
California (California Penal Code § 198.5 sets forth that unlawful, forcible entry into one's residence by someone not a member of the household creates the presumption that the resident held a reasonable fear of imminent peril of death or great bodily injury should he or she use deadly force against the intruder. This would make the homicide justifiable under CPC § 197[1]. CALCRIM 506 gives the instruction, "A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger ... has passed. This is so even if safety could have been achieved by retreating." However, it also states that "[People v. Ceballos] specifically held that burglaries which 'do not reasonably create a fear of great bodily harm' are not sufficient 'cause for exaction of human life.'”)

From Section 506 of the 2008 CALCRIM (http://www.courtinfo.ca.gov/jury/cri...im_juryins.pdf)

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give defense instructions supported by
substantial evidence and not inconsistent with the defendant’s theory of the
case. (See People v. Baker (1999) 74 Cal.App.4th 243, 252 [87 Cal.Rptr.2d
803]; People v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rtpr.2d 569, 906
P.2d 531]; People v. Slater (1943) 60 Cal.App.2d 358, 367–368 [140 P.2d
846] [error to refuse instruction based on Pen. Code, § 197, subd. 2 when
substantial evidence supported inference that victim intended to enter the
habitation].)
Penal Code section 197, subdivision 2 provides that “defense of habitation”
may be used to resist someone who “intends or endeavors, by violence or
surprise, to commit a felony . . . .” (Pen. Code, § 197, subd. 2.) However,
in People v. Ceballos (1974) 12 Cal.3d 470, 477–479 [116 Cal.Rptr. 233, 526
P.2d 241], the court held that the felony feared must be “some atrocious
crime attempted to be committed by force.” (Id. at p. 478.) Forcible and
atrocious crimes are those crimes whose character and manner reasonably
create a fear of death or serious bodily harm. (People v. Ceballos, supra, 12
Cal.3d at p. 479.) The following crimes have been deemed forcible and
atrocious as a matter of law: murder, mayhem, rape, and robbery. (Id. at p.
478.) Ceballos specifically held that burglaries which “do not reasonably
create a fear of great bodily harm” are not sufficient “cause for exaction of
human life.” (Id. at p. 479.) Thus, although the statute refers to “defense of
habitation,” Ceballos requires that a person be at risk of great bodily harm or
an atrocious felony in order to justify homicide. (Ibid.) The instruction has
been drafted accordingly.

berto
05-03-2009, 3:30 PM
Can anyone present a few realistic examples of "burglaries which do not reasonably create a fear of great bodily harm"

The neighbor's punkass 8 year old breaks into your house at 2 am. He's typical 8 year old size and unarmed.

The tweaker with your laptop in his hands sees you, utters something along the lines of "oh crap" and turns and runs.

AEC1
05-03-2009, 4:37 PM
Shoot him before he can turn and run...

bodger
05-03-2009, 4:40 PM
Shoot him before he can turn and run...

Exactly. He could put that laptop through your forehead just as fast as he could turn and run. Why wait to find out the hard way which he would choose to do.
And the prybar in his back pocket that he used to jimmy the window could make a mess of you too.

gunsmith
05-03-2009, 4:43 PM
The neighbor's punkass 8 year old breaks into your house at 2 am. He's typical 8 year old size and unarmed.

The tweaker with your laptop in his hands sees you, utters something along the lines of "oh crap" and turns and runs.

something small and moving about in the dark is going to be shot, if the lights are on and I'm wide awake and instantaneously recognized as an unarmed kid I'll hold my fire.

@ 2:am it is reasonable to assume it isn't a harmless kid, @ 2am its reasonable to conclude its a psycho killer.
Edited to add, tweaker with my laptop? shot dead for messing with my calfuns addiction.

evan69
05-03-2009, 5:04 PM
But what if he drops the laptop? I say shoot him and do a quick dive to retrieve your expensive electronics. :D

Quiet
05-03-2009, 5:14 PM
Penal 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,
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.

Penal code 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.

Penal Code 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.

MudCamper
05-03-2009, 6:21 PM
Discussed ad nauseam (http://www.google.com/search?client=safari&rls=en&q=site:calguns.net+%22no+duty+to+retreat%22).

OMG google searching this site works so damn well! Why don't the mods replace the useless search tool here with a script that uses google like that.

Desert_Rat
05-03-2009, 9:55 PM
something small and moving about in the dark is going to be shot, if the lights are on and I'm wide awake and instantaneously recognized as an unarmed kid I'll hold my fire.

@ 2:am it is reasonable to assume it isn't a harmless kid, @ 2am its reasonable to conclude its a psycho killer.
Edited to add, tweaker with my laptop? shot dead for messing with my calfuns addiction.

If it's too dark to identify your target,should you really fire?

berto
05-03-2009, 10:13 PM
something small and moving about in the dark is going to be shot, if the lights are on and I'm wide awake and instantaneously recognized as an unarmed kid I'll hold my fire.

@ 2:am it is reasonable to assume it isn't a harmless kid, @ 2am its reasonable to conclude its a psycho killer.
Edited to add, tweaker with my laptop? shot dead for messing with my calfuns addiction.

And when you shoot your kid sneaking back in the house you give that antis another statistic to use against us.

Isn't knowing your target one of the rules?

Biff...
05-03-2009, 10:13 PM
If it's too dark to identify your target,should you really fire?

Thats what a rail mounted surefire is for.:43:

Desert_Rat
05-03-2009, 10:19 PM
Thats what a rail mounted surefire is for.:43:

Well then....I guess the "too dark issue" has been solved :thumbsup:

JDay
05-03-2009, 11:26 PM
Thats what a rail mounted surefire is for.:43:

Or the NVGs.

Kid Stanislaus
05-03-2009, 11:36 PM
Penal Code 197
Homicide is also justifiable when committed by any person in any of the following cases:........................
2. When committed in defense of habitation, property,....................

Now THERE'S a mouthful.

Kid Stanislaus
05-03-2009, 11:40 PM
If it's too dark to identify your target,should you really fire?


If you know there's another person in your domicile (who does not belong there) and you've locked all your doors and windows you'd be a fool to wait before opening fire. That hesitation could cause you to end up very dead for a very long time.

gunsmith
05-03-2009, 11:45 PM
If it's too dark to identify your target,should you really fire?

If something small and dark is scurrying about my room, and being I do not have kids or pets, its a safe bet it isn't supposed to be there, it doesn't have my permission and I'm gonna shoot it.
In Connecticut a chimpanzee got loose and bit a ladies face off!
just because its small doesn't mean it isn't dangerous.

I don't wanna get bitten by someones monkey, if you do, thats yer own biz!

DDT
05-03-2009, 11:56 PM
If something small and dark is scurrying about my room, and being I do not have kids or pets, its a safe bet it isn't supposed to be there, it doesn't have my permission and I'm gonna shoot it.

I'm sure that if I followed this procedure I'd be arrested by now. And have a few dead raccoons on my hands.

DocSkinner
05-04-2009, 12:22 AM
If something small and dark is scurrying about my room, and being I do not have kids or pets, its a safe bet it isn't supposed to be there, it doesn't have my permission and I'm gonna shoot it.
In Connecticut a chimpanzee got loose and bit a ladies face off!
just because its small doesn't mean it isn't dangerous.

I don't wanna get bitten by someones monkey, if you do, thats yer own biz!

Hope it isn't the LEO that was chasing a perp that you see first in your house...

masstransit
05-04-2009, 6:42 AM
they are usually yellin at the top of thier lungs.." STOP! POliCE!"
kinda an easy one to not **** up.

swhatb
05-04-2009, 10:12 AM
good research!

Thanks, I searched before posting but obviously didn't use the best parameters.

Edit: reading those links was somewhat helpful and got me on track to the excerpts below. It confirms that the gun shop guy is wrong about having to retreat, but there could be circumstances when an intruder in the home could not lawfully be fired upon.

Can anyone present a few realistic examples of "burglaries which do not reasonably create a fear of great bodily harm"?



From Wikipedia:
California (California Penal Code § 198.5 sets forth that unlawful, forcible entry into one's residence by someone not a member of the household creates the presumption that the resident held a reasonable fear of imminent peril of death or great bodily injury should he or she use deadly force against the intruder. This would make the homicide justifiable under CPC § 197[1]. CALCRIM 506 gives the instruction, "A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger ... has passed. This is so even if safety could have been achieved by retreating." However, it also states that "[People v. Ceballos] specifically held that burglaries which 'do not reasonably create a fear of great bodily harm' are not sufficient 'cause for exaction of human life.'”)

From Section 506 of the 2008 CALCRIM (http://www.courtinfo.ca.gov/jury/cri...im_juryins.pdf)

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give defense instructions supported by
substantial evidence and not inconsistent with the defendant’s theory of the
case. (See People v. Baker (1999) 74 Cal.App.4th 243, 252 [87 Cal.Rptr.2d
803]; People v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rtpr.2d 569, 906
P.2d 531]; People v. Slater (1943) 60 Cal.App.2d 358, 367–368 [140 P.2d
846] [error to refuse instruction based on Pen. Code, § 197, subd. 2 when
substantial evidence supported inference that victim intended to enter the
habitation].)
Penal Code section 197, subdivision 2 provides that “defense of habitation”
may be used to resist someone who “intends or endeavors, by violence or
surprise, to commit a felony . . . .” (Pen. Code, § 197, subd. 2.) However,
in People v. Ceballos (1974) 12 Cal.3d 470, 477–479 [116 Cal.Rptr. 233, 526
P.2d 241], the court held that the felony feared must be “some atrocious
crime attempted to be committed by force.” (Id. at p. 478.) Forcible and
atrocious crimes are those crimes whose character and manner reasonably
create a fear of death or serious bodily harm. (People v. Ceballos, supra, 12
Cal.3d at p. 479.) The following crimes have been deemed forcible and
atrocious as a matter of law: murder, mayhem, rape, and robbery. (Id. at p.
478.) Ceballos specifically held that burglaries which “do not reasonably
create a fear of great bodily harm” are not sufficient “cause for exaction of
human life.” (Id. at p. 479.) Thus, although the statute refers to “defense of
habitation,” Ceballos requires that a person be at risk of great bodily harm or
an atrocious felony in order to justify homicide. (Ibid.) The instruction has
been drafted accordingly.

bodger
05-04-2009, 10:14 AM
they are usually yellin at the top of thier lungs.." STOP! POliCE!"
kinda an easy one to not **** up.

I remember a home invasion story years ago that happened in Chicago.
The perp, whilst burglarizing a home was surprised and confronted by an armed homeowner.
The perp yelled "Chicago Police, don't shoot!!"

As I recall the homeowner didn't shoot, but held the skell until the real cops showed.
Would hearing that cause anyone to hesitate for a split second?

Mazilla
05-04-2009, 10:39 AM
Hope it isn't the LEO that was chasing a perp that you see first in your house...

Are there many instances of LEO's running into random homes in the middle of the night(unannounced) while chasing a perp? I know it happens in the movies all the time, but I cant recall hearing about it in real life.

KCM222
05-04-2009, 10:41 AM
I keep a flashlight next to my PD weapon at home. I'm more worried about shooting someone by accident than telegraphing my postion via the light.

To be honest, I would prefer a burglar be scared of the light (ie knowing someone knows they're there) and run out of the house than me having to shoot him.

hammerhands32
05-04-2009, 10:52 AM
I don't wanna get bitten by someones monkey, if you do, thats yer own biz!

quote of the year by far:thumbsup:

K1LLROI
05-04-2009, 2:02 PM
Have you guys seen that movie FELON.. very good movie..heres an example:
A criminal breaks into a home. He wakes the family and the dad, startled, grabs a bat( why the dad isnt armed is a big mistake). So the dad runs around the house looking for the intruder. The intruder makes way out the front door, exiting. The dad clubs the guy in the back of the head as he was running away..we all now whats gonna happen, right..

Well the dad is the one who gets charged because the intruder is unarmed.. he was retreating, he didnt steal anything, and the dad clubbed him so hard he killed him..

He goes to jail for protecting his family...

Of course its a movie..but im pretty dANG sure thats how the law works.

DDT
05-04-2009, 3:08 PM
As I recall the homeowner didn't shoot, but held the skell until the real cops showed.
Would hearing that cause anyone to hesitate for a split second?

Yes. As someone else said, it is not impossible that a cop was chasing the actual bad guy. Of course, if he's pointing a gun at me I don't know what I would do, I haven't been in that situation and it is possible that I would end up shooting a cop who entered my home unannounced.

gunsmith
05-04-2009, 4:45 PM
I'm sure that if I followed this procedure I'd be arrested by now. And have a few dead raccoons on my hands.

Arrested? for what? hunting without a license?

And what if it had been an angry Bobcat? Huh?
http://www.youtube.com/watch?v=fTZhznHC1-A

Chimps are extremely dangerous! A Chimpanzee can rip your face off.
You should always have a gun handy because you never know when a monkey is gonna go ape!
http://www.youtube.com/watch?v=wgS0KgT5APc

gunsmith
05-04-2009, 5:05 PM
Have you guys seen that movie FELON.. very good movie..heres an example:
A criminal breaks into a home. He wakes the family and the dad, startled, grabs a bat( why the dad isnt armed is a big mistake). So the dad runs around the house looking for the intruder. The intruder makes way out the front door, exiting. The dad clubs the guy in the back of the head as he was running away..we all now whats gonna happen, right..

Well the dad is the one who gets charged because the intruder is unarmed.. he was retreating, he didnt steal anything, and the dad clubbed him so hard he killed him..

He goes to jail for protecting his family...

Of course its a movie..but im pretty dANG sure thats how the law works.

I too get all my info from movies,we have got to get those monkeys in line and soon!
http://www.youtube.com/watch?v=I1lZ3un-kcg

DDT
05-04-2009, 5:05 PM
Arrested? for what? hunting without a license?


Reckless endangerment of my children, discharge of a firearm in the city, take your pick.


And what if it had been an angry Bobcat? Huh?
http://www.youtube.com/watch?v=fTZhznHC1-A


Then it wouldn't have been a raccoon. Did you have a point? What if it were an alien? You know, the gray kind, not the kind from Canada.


Chimps are extremely dangerous! A Chimpanzee can rip your face off.
You should always have a gun handy because you never know when a monkey is gonna go ape!
http://www.youtube.com/watch?v=wgS0KgT5APc

Chimps aren't monkeys, and I'm fairly certain everyone is well aware of the ability of apes to tear off your face by now. I'm sure the nanny state government will make a law to protect us from the roaming bands of face stealing apes though.

gunsmith
05-04-2009, 7:52 PM
Reckless endangerment of my children, discharge of a firearm in the city, take your pick.



Then it wouldn't have been a raccoon. Did you have a point? What if it were an alien? You know, the gray kind, not the kind from Canada.



Chimps aren't monkeys, and I'm fairly certain everyone is well aware of the ability of apes to tear off your face by now. I'm sure the nanny state government will make a law to protect us from the roaming bands of face stealing apes though.

In my case, I have no pets and no children, the situation described "something small and dark moving in your room at two am"

You implied I could face jail time for shooting ... so I'm right and your wrong, correct?
monkey schmonkey.
http://www.youtube.com/watch?v=ZJT2vJMsYc4&feature=related

Desert_Rat
05-04-2009, 8:31 PM
If something small and dark is scurrying about my room, and being I do not have kids or pets, its a safe bet it isn't supposed to be there, it doesn't have my permission and I'm gonna shoot it.
In Connecticut a chimpanzee got loose and bit a ladies face off!
just because its small doesn't mean it isn't dangerous.

I don't wanna get bitten by someones monkey, if you do, thats yer own biz!

Go ahead Bro. I'm not scared of monkeys or schmonkeys. But,if you do fire I believe you should KNOW your target and what's beyond (or sumpin like that)
also be sure that what you see, is what is really going on.
Using a simular hypothetical,,,You are ditty bopping down the avenue,and come across two dudes locked in mortal combat,CQB style.Both in dockers and polos.#1 has #2 in a headlock #2 is turning blue but still fighting back,it won't be long till' He's choked out.
#1 states He's LEO but #2 signals that is not true.You are CCW Do you shoot? and wich one?
These hypotheticals are fun.
Me, I have some experence in simular situation (shoot/no shoot)
For the home intruder/prowler,not the steet fight.
For the record I do not want a monkey or a schmonkey to rip my face off,I have a wife for that Ha Ha:p

gunsmith
05-04-2009, 8:42 PM
Go ahead Bro. I'm not scared of monkeys or schmonkeys. But,if you do fire I believe you should KNOW your target and what's beyond (or sumpin like that)
also be sure that what you see, is what is really going on.
Using a simular hypothetical,,,You are ditty bopping down the avenue,and come across two dudes locked in mortal combat,CQB style.Both in dockers and polos.#1 has #2 in a headlock #2 is turning blue but still fighting back,it won't be long till' He's choked out.
#1 states He's LEO but #2 signals that is not true.You are CCW Do you shoot? and wich one?
These hypotheticals are fun.
Me, I have some experence in simular situation (shoot/no shoot)
For the home intruder/prowler,not the steet fight.
For the record I do not want a monkey or a schmonkey to rip my face off,I have a wife for that Ha Ha:p

I have ccw'd for years in NV and worked as armed security in SF and have seen multiple times when I could have intervened legally ... but I just minded my own biz.

If I see a cop in trouble that I know personally ( I know quite a few SFPD ) yeah I would intervene, if not, I'll be a good witness and call the police.
Two civies killing each other? observe and report, I'm not a cop and don't plan on playing one when I cali legal ccw.

but if some space monkey alien is trying to beam my tv to his mothership? (in my room?) bang bang!

Desert_Rat
05-04-2009, 9:07 PM
but if some space monkey alien is trying to beam my tv to his mothership? (in my room?) bang bang!

WORD UP! I'm shooting Space Schmonkey aliens too...
What it really boils down to is,It's the individuals decision to shoot/no shoot.and when the smoke clears the shooter and the shooter alone has to deal with the consequences of his/her actions or inactions.

Mazilla
05-04-2009, 9:45 PM
^ Kill em all and let god sort em out. ;)

CnCFunFactory
05-04-2009, 9:51 PM
If it's too dark to identify your target,should you really fire?

One word..... SUREFIRE

gunsmith
05-05-2009, 12:38 AM
I feel its best if you're able to articulate to the police, the judge and or prosecutor and jury that you were indeed in fear of your life/serious bodily injury.

hopefully the space monkey will be standing in a area with a good backstop, its one of those things I just naturally take into account before I squeeze off a round.

fairfaxjim
05-05-2009, 7:16 AM
I feel its best if you're able to articulate to the police, the judge and or prosecutor and jury that you were indeed in fear of your life/serious bodily injury.

hopefully the space monkey will be standing in a area with a good backstop, its one of those things I just naturally take into account before I squeeze off a round.

Don't articulate anything to the police. Let your attorney articulate to the rest. If you do indeed have to defend yourself, lip up.

Some people on here need to separate movies/vid games from real life - serious disconnect needed. A little more time reading/researching the PC and some appropriate case law would be advised.

fairfaxjim
05-05-2009, 7:27 AM
The PC 198.5 presumption of fear of great bodily harm:
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.

requires that all of 3 elements be met:
1. Must not be a member of the family OR HOUSEHOLD
2. Must have entered UNLAWFULLY AND FORCIBLY
3. YOU (person using force) must have had reason to believe that an unlawful and forcible entry occurred.

This presumption shifts the burden of proof to the prosecutor. You still must have, and be able to demonstrate that, the "fear of great bodily harm" was real and present.

gunsmith
05-05-2009, 11:02 AM
Don't articulate anything to the police. Let your attorney articulate to the rest. If you do indeed have to defend yourself, lip up.

Some people on here need to separate movies/vid games from real life - serious disconnect needed. A little more time reading/researching the PC and some appropriate case law would be advised.

I have had real life experience, you will be interviewed by the police at the scene of whatever shooting/use of weapon.
I have found that telling the police exactly what legal reason you had
for drawing your firearm and writing the report the same way expedites going home rather then to jail for the evening.

The last two times I used my ccw to prevent serious bodily injury I spent 30 to 45 minutes talking to the cops and filling out a report.
My friend who actually shot three bad guys trying to rob him also went home in less then an hour.

I am quite comfortable articulating my legal reasons and have done so in real life with zero trouble.

Your implication that I get any information from media I never even view is hilarious.

Some people take their internet musings too seriously.

tube_ee
05-05-2009, 11:13 AM
"the exceptions that prove the rule"...

in the absence of secure knowledge beforehand that things will go down the way they did for you, "lawyer up and shut up" is, statistically, the best advice.

You just shot someone, and they died. You're now a suspect in a homicide. Behave accordingly.

A night or two in jail is preferable to "anything you say can and will be used against you in a court of law."

Name, rank, and serial number... followed by "I refuse to answer any questions without my attorney present. He's on his way." And he should be, because you will have called him right after you called the cops. It's probably best to have arranged for, and perhaps even paid for, this ahead of time.

--Shannon

gunsmith
05-05-2009, 11:56 AM
In general, yes you're 100% correct.
& on the net what your saying is probably the best general advice, advice I support 100%.
However not every use of a weapon results in dead badguy, sometimes the mere presence of a firearm is enough deterrent.

It has been my experience in actually drawing my ccw to prevent injury that if I had just demanded to talk to my lawyer that I would have hostile police and an arrest record instead of simply articulating in a sober manner what happened and why I felt it necessary to clear leather.

Then again, I'm usually intellectually superior to my detractors, if you're a moron and you've got a dead space monkey with your TV in its cold dead hands, its 0230 you're in your pj's in your bedroom, and you don't have alien space monkeys as roommates and didn't invite the alien space monkey into your bed to frolic in exchange for a bunch of bananas, yeah...demand to talk to your lawyer because the cops simply cant comprehend basic domicile break ins and self defense.

"the exceptions that prove the rule"...

in the absence of secure knowledge beforehand that things will go down the way they did for you, "lawyer up and shut up" is, statistically, the best advice.

You just shot someone, and they died. You're now a suspect in a homicide. Behave accordingly.

A night or two in jail is preferable to "anything you say can and will be used against you in a court of law."

Name, rank, and serial number... followed by "I refuse to answer any questions without my attorney present. He's on his way." And he should be, because you will have called him right after you called the cops. It's probably best to have arranged for, and perhaps even paid for, this ahead of time.

--Shannon

Desert_Rat
05-05-2009, 7:31 PM
I too get all my info from movies,we have got to get those monkeys in line and soon!
http://www.youtube.com/watch?v=I1lZ3un-kcg

:rofl2:

becxltoo984
05-05-2009, 10:54 PM
Worth watching even if your innocent !
http://www.boingboing.net/2008/07/28/law-prof-and-cop-agr.html

gunsmith
05-05-2009, 11:03 PM
well, you do have a point desert rat, but some movies are to important to ignore.
Also, remember, no matter how nice the space monkey seems, never let him borrow your gun!

gunsmith
05-05-2009, 11:14 PM
Worth watching even if your innocent !
http://www.boingboing.net/2008/07/28/law-prof-and-cop-agr.html


My friend shot three thugs who attempted to rob him with a knife, he talked, no lawyer and went home they went to prison after release from the hospital. I never realized pizza delivery guys can clearly articulate the nature of their self defense shooting, must have been a very unusual case or really dumb cops. The times I cleared leather too, I must be really intimidating to the RPD with my legal jujitsu, or they must be to dim to realize they passed by a perfect opportunity to ruin my life because I told them what happened without a lawyer.

Or maybe, sometimes, it is really crystal clear and its really no big fuss? I guess we had better just go with the melodramatic because it is far more interesting.

fairfaxjim
05-06-2009, 8:51 AM
Your implication that I get any information from media I never even view is hilarious.

Some people take their internet musings too seriously.

Sorry if I offended, but I thought this was you:
I too get all my info from movies,we have got to get those monkeys in line and soon!
http://www.youtube.com/watch?v=I1lZ3un-kcg
You may be taking me much more seriously than I take myself here.

And later this too:
well, you do have a point desert rat, but some movies are to important to ignore.
Also, remember, no matter how nice the space monkey seems, never let him borrow your gun!

Aha, I see your successful experiences with LEO were in NV, not CA. That may be why many refer to it as "Free America" I still wouldn't talk, but that is just me, although if it was in a gun friendly place and it looked like the LEO's were cool with it, I might make a field decision to talk to them. I doubt I would ever do that in CA.

gunsmith
05-06-2009, 4:57 PM
I mean, c'mon.

I was recently in a fight in San Francisco, long story short- SFPD were honorable and just... and returned my surefire 9P that left a gash on my opponents forehead.

Not all CA law enforcement are against us.

masstransit
05-10-2009, 9:13 AM
I remember a home invasion story years ago that happened in Chicago.
The perp, whilst burglarizing a home was surprised and confronted by an armed homeowner.
The perp yelled "Chicago Police, don't shoot!!"

As I recall the homeowner didn't shoot, but held the skell until the real cops showed.
Would hearing that cause anyone to hesitate for a split second?

yes it would. good point.

HondaMasterTech
05-10-2009, 12:58 PM
I'd rather deal with legal problems than live with the memory of my family being murdered, or die knowing I'm leaving my family alone with a murderer.

low94noma
05-10-2009, 2:04 PM
Da** straight. I know all the tactical positions are in my house. Right outside of my bedroom is a concealment position in the hallway where there is no bedrooms within my line of fire. I can stay there, hold down the fort, call police, and use lethal force if I have to. The only thing I am worried about is rounds going stray. I have access to home defense rounds to help me sleep at night.

djslik408
05-10-2009, 2:26 PM
either way the law will protect us.

Im all about non violence but when it comes to my family and my personal belongings, damnnn right I will protect them!

tombinghamthegreat
05-10-2009, 7:58 PM
Anyone care to set me, or the gun shop guy, straight?

Just an FYI gun shop employees sometimes can be a very poor source of intel, just as bad as the CA DOJ. The other posters seem to answer the question with evidence that if someone breaks in then you can use force, no need to retreat in your house. A few years ago my family death with a break in and we used a gun for defense, we did not retreat and the cops showed up.

TheBundo
05-10-2009, 10:30 PM
I remember a home invasion story years ago that happened in Chicago.
The perp, whilst burglarizing a home was surprised and confronted by an armed homeowner.
The perp yelled "Chicago Police, don't shoot!!"

As I recall the homeowner didn't shoot, but held the skell until the real cops showed.
Would hearing that cause anyone to hesitate for a split second?

I'd shoot. The Chicago police are way out of their jurisdiction at my house. :eek::43:

USAFTS
05-10-2009, 10:33 PM
And when you shoot your kid sneaking back in the house you give that antis another statistic to use against us.

Isn't knowing your target one of the rules?

Thanks berto-

I was getting a little concerned about some of the answers here. I understand humor, but some of the answers did not seem to be made with tongues-in-cheeks. Yes...Know your target. If we are responsible and skilled enough to use a handgun, then we have sense enough to have and correctly use a tactical flashlight as part of a low-light threat assessment. I would never want to shoot one of my own kids, pets, the autistic neighbor kid or an 8 year old unarmed electronics thief, because I didn't bother to make a positive identification of my target as well as an actual threat.

Sorry...I'm off the soapbox

7222 Hawker
05-11-2009, 12:43 AM
Shoot him and ask questions later. Bottom line is if he's in your house, green light. No one will charge you with a crime. (Unless you live in San Francisco County. Then the DA's Office will charge you unless you were high at the time of the shooting)

Quiet
05-11-2009, 12:48 AM
Shoot him and ask questions later. Bottom line is if he's in your house, green light. No one will charge you with a crime. (Unless you live in San Francisco County. Then the DA's Office will charge you unless you were high at the time of the shooting)

:Pirate:

Penal Code 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.

gunsmith
05-11-2009, 1:02 AM
Thanks berto-

I was getting a little concerned about some of the answers here. I understand humor, but some of the answers did not seem to be made with tongues-in-cheeks. Yes...Know your target. If we are responsible and skilled enough to use a handgun, then we have sense enough to have and correctly use a tactical flashlight as part of a low-light threat assessment. I would never want to shoot one of my own kids, pets, the autistic neighbor kid or an 8 year old unarmed electronics thief, because I didn't bother to make a positive identification of my target as well as an actual threat.

Sorry...I'm off the soapbox

I was tied up then stabbed while tied up during a home invasion robbery.
I live alone sometimes with pets (the pets I know are family and thus safe from being shot) and have had pretty good training, anything moving around in the dark will be shot center mass. I sleep with two surefires and a loaded G22 extra batteries and ammo/loaded mags.
Who knows if your 8 year old neighbor is this brat, who has been released!
http://www.nytimes.com/2008/11/11/us/11child.html

My home my rules, if you do not like it, don't break in.

Oh and even SF will not prosecute if you follow the law, plenty of home invaders have been shot here, once a guy took a gun from a burglar and chased him down the street shooting at him. no charges were filed.

No one is accidentally breaking into my place, I wouldn't be able to sleep if I felt it could be broken into by a child. ( or a crack head) a professional thief would be the one breaking in, and would be leaving resembling swiss cheese , in a bag full of holes.

USAFTS
05-11-2009, 10:47 AM
....a professional thief would be the one breaking in, and would be leaving resembling swiss cheese , in a bag full of holes.

You entitled your post "Sorry, but no". What, exactly is the "No" referring to? Not responsibly identifying your target? Not determining if, in fact, there is an actual threat to your life or the life of another? Not allowing anyone who enters your home uninvited to survive the experience?

My post was was in response to a hypothetical situation that gave the impression that a small figure, moving around in the darkness would, without a doubt, be the recipient of your gunfire. Many of the other responses were also, at best, irresponsible if not ignorant from a training standpoint. I realize I am new here but it seems to me that a "ready..fire..aim" mentality is not one that a responsible, law abiding gun owner would support in a forum that is supposedly designed to correctly educate the citizens of California. Our rights have never been as threatened as they are now, and frankly, I can imagine the Brady folks printing some of the posts in these boards and using them against us in Congressional hearings.

WyoDuner
05-11-2009, 12:08 PM
Thanks berto-

I was getting a little concerned about some of the answers here. I understand humor, but some of the answers did not seem to be made with tongues-in-cheeks. Yes...Know your target. If we are responsible and skilled enough to use a handgun, then we have sense enough to have and correctly use a tactical flashlight as part of a low-light threat assessment. I would never want to shoot one of my own kids, pets, the autistic neighbor kid or an 8 year old unarmed electronics thief, because I didn't bother to make a positive identification of my target as well as an actual threat.

Sorry...I'm off the soapbox

Agreed!!! If you are going to shoot somebody in your house you damn well better be legitimately threatened and in fear for your/family's safety.

The law is the law - like it or not. If you shoot an unarmed and non-threatening intruder you are committing a crime and will be prosecuted. Period.

Better to announce your intentions and that you are armed and hope they run away which is the likely scenario. If they try to attack or have a weapon displayed then you can shoot.

Untamed1972
05-11-2009, 12:17 PM
However not every use of a weapon results in dead badguy, sometimes the mere presence of a firearm is enough deterrent..

In such a case...who called the COPs? did the bad guy call the cops on you for pulling a gun on him?

If drawing was enough of a deterent factor why would the COPs be invovled at all?

gunsmith
05-11-2009, 12:44 PM
I followed liberal advice, cooperated with the home invaders and got stabbed.

You may imagine the Brady bunch using our post in a hearing?
That would be great because then we could use all the other articulate factual post.
Brady's are afraid of debate, for good reason they always loose.

"Uninvited guest" sounds so harmless, I guess you can call Ted Bundy an uninvited guest too.

He would "enter uninvited" , Richard Ramirez did too.
Sorry, but NO! I am shooting people breaking into my house!

Ted Bundy used to tell his victims to cooperate and don't fight while he tied them up, then as he tortured the young women to death, he would taunt them asking them why they would give the benefit of a doubt to the guy that broke into their home.

I've had plenty of cats that chase dust bunnies all night long without being fired upon.

gunsmith
05-11-2009, 12:48 PM
In such a case...who called the COPs? did the bad guy call the cops on you for pulling a gun on him?

If drawing was enough of a deterent factor why would the COPs be invovled at all?

in one case I called the cops, in another people called the cops for me because I was busy holding my gun.

Cops tend to respond to MWAG calls

gunsmith
05-11-2009, 12:52 PM
"If you shoot an unarmed and non-threatening intruder you are committing a crime and will be prosecuted"

FUD!

People kicking in your door can reasonably be presumed to be threatening your life, even if unarmed.

I'm talking about a locked secure domicile, not an unlocked frat house with multiple drunken room mates.

berto
05-11-2009, 12:56 PM
In such a case...who called the COPs? did the bad guy call the cops on you for pulling a gun on him?

If drawing was enough of a deterent factor why would the COPs be invovled at all?

I know people who pulled and watched the burglar run out of the house. They called the cops to make a report etc.

donstarr
05-11-2009, 1:16 PM
The law is the law - like it or not. If you shoot an unarmed and non-threatening intruder you are committing a crime and will be prosecuted. Period.

:fud:

California Penal Code:
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.

Note the conspicuous lack of any mention of "armed" or "threatening".

tombinghamthegreat
05-11-2009, 1:27 PM
Better to announce your intentions and that you are armed and hope they run away which is the likely scenario. If they try to attack or have a weapon displayed then you can shoot.

FUD. If they break in its fair game. Are you telling me that a "unarmed" crack head who is out of his mind can't hurt you after they break down your door making death threats? The law does not work that way.

Untamed1972
05-11-2009, 2:00 PM
FUD. If they break in its fair game. Are you telling me that a "unarmed" crack head who is out of his mind can't hurt you after they break down your door making death threats? The law does not work that way.

And if someone broke into my house in the middle of the night, in such a close quarters environment....how long am I supposed to wait to determine if they're armed or not? The way my house is layed out....just about anywhere in the house would be way too close quarters for me wait more than a split second to decide. The main thing I'm gonna be looking for is a recognisable face. If I dont know you and you're in the house....you're prolly goin' down unless you dive out the door/window before the sights get lined up.

geeknow
05-11-2009, 2:08 PM
But what if he drops the laptop? I say shoot him and do a quick dive to retrieve your expensive electronics. :D

lol. i am having fun trying to envision the drill for this....

USAFTS
05-11-2009, 2:17 PM
And if someone broke into my house in the middle of the night, in such a close quarters environment....how long am I supposed to wait to determine if they're armed or not? The way my house is layed out....just about anywhere in the house would be way too close quarters for me wait more than a split second to decide. The main thing I'm gonna be looking for is a recognisable face. If I dont know you and you're in the house....you're prolly goin' down unless you dive out the door/window before the sights get lined up.

Untamed-

What you are saying is sadly true. EVERY single incident is going to present a different set of circumstances and a varied level of threat and non-threat.

We may only have a split second to assess that threat and respond accordingly. The only thing we can do is become completely familiar with our environment as well as the protective weapons we have chosen.

Trying to accurately answer a hypothetical question, is probably a useless effort but it does cause us to think about the "what-if's" and makes us talk about the important aspects of responsible gun ownership.

tombinghamthegreat
05-11-2009, 3:31 PM
And if someone broke into my house in the middle of the night, in such a close quarters environment....how long am I supposed to wait to determine if they're armed or not? The way my house is layed out....just about anywhere in the house would be way too close quarters for me wait more than a split second to decide. The main thing I'm gonna be looking for is a recognisable face. If I dont know you and you're in the house....you're prolly goin' down unless you dive out the door/window before the sights get lined up.

I think you misunderstood my post. It was sarcasm, if someone breaks inside its shoot first, no delay. That is kinda an implied rule with a gun for HD, if you pull it you have to be ready to use it. I was just point out the previous posts flaw in that the intruder had to be armed which is not true.

WyoDuner
05-11-2009, 3:35 PM
Agreed!!! If you are going to shoot somebody in your house you damn well better be legitimately threatened and in fear for your/family's safety.

The law is the law - like it or not. If you shoot an unarmed and non-threatening intruder you are committing a crime and will be prosecuted. Period.

Better to announce your intentions and that you are armed and hope they run away which is the likely scenario. If they try to attack or have a weapon displayed then you can shoot.

Many of you have called FUD on this post. You better know the full story before you call me out on this one. Read and understand - It's IMPORTANT:


It is important to understand that this penal code presents a REBUTTABLE PRESUMPTION of reasonable fear. In other words, it gives the homeowner the benefit of the doubt but it is NOT a get out of jail free card. If you shoot an unarmed, surrendered, fleeing intruder you WILL BE PROSECUTED. Furthermore, even if the manslaughter charges are dropped you still could face CIVIL suit. CA is not an adopter of the Castle Doctrine - which helps to protect you from civil suits.

Again, I stand by my post. It is correct.

Here is the real reason I made the post to start with. Somebody post a snippet of a penal code and everybody assumes that's all there is to it. Laws are just not simple enough to be summed in a single paragraph.

Then people start to think that it is fact when it is not fact. This will only serve to get them in trouble later.

It is rare indeed that somebody brings up the issue of responsibility of use and ownership of a firearm. But there sure is plenty of let's shoot the robber mentality. People really, really, need to consider these matters carefully - don't go half-cocked thinking it's that easy to shoot somebody in your house.

Shooting somebody should be your very last resort.

WyoDuner
05-11-2009, 3:48 PM
Furthermore..... Since I'm on a rant here. :)

First. YOU are responsible for every single bullet that leaves your gun. If you shoot somebody else - family member in your house, neighbor, person on the street - you are going to be held criminally and civilly liable for that.

Second. Do you have the money and time to afford to defend yourself in a shooting. Whether you are right or wrong, if there is doubt to your situation you will end up in court - again criminal court, civil court or both.

Third. Can you AND YOUR FAMILY live with you having killed somebody in your own home. Maybe you can take it but what about your wife or your kids???

Finally. Personally, I feel that if somebody breaks into my home they deserve to have their head blown off - whether they were armed or not. I don't care - you break in you got it coming. But, that is not what the law says so I will not shoot unless I absolutely have to. We should be a little more responsible on these forums before we go encouraging these actions especially when the vast majority of us (myself included) don't fully understand the implications of the law in these matters.

donstarr
05-11-2009, 3:53 PM
Many of you have called FUD on this post. You better know the full story before you call me out on this one. Read and understand - It's IMPORTANT:


It is important to understand that this penal code presents a REBUTTABLE PRESUMPTION of reasonable fear. In other words, it gives the homeowner the benefit of the doubt but it is NOT a get out of jail free card. If you shoot an unarmed, surrendered, fleeing intruder you WILL BE PROSECUTED.

Moving the goalposts. Your prior post, the one that drew the "FUD!" responses, said, as you so helpfully quoted above:
If you shoot an unarmed and non-threatening intruder you are committing a crime

"WILL BE PROSECUTED", while it may happen, is not the same as your original "you are committing a crime and will be prosecuted" (emphasis added).

Presuming he's "unarmed" (and presuming there's any way for me to determine that in a split second, in light barely sufficient to determine that he "doesn't belong here"), how is one to also determine that he's "non-threatening"?

Here's the presumption, codified in California law: if a) he doesn't belong here and b) I know or have reason to believe that he entered unlawfully and forcibly, then c) his presence instills a reasonable fear of imminent peril of death or great bodily injury to me or mine. That's the plain meaning of PC 198.5. If you know of case law or other statutes that contradict this, please cite them.

donstarr
05-11-2009, 3:54 PM
Finally. Personally, I feel that if somebody breaks into my home they deserve to have their head blown off - whether they were armed or not. I don't care - you break in you got it coming. But, that is not what the law says

That's precisely what PC 198.5 says.

sreiter
05-11-2009, 3:56 PM
my threads

Untamed1972
05-11-2009, 4:07 PM
I think you misunderstood my post. It was sarcasm, if someone breaks inside its shoot first, no delay. That is kinda an implied rule with a gun for HD, if you pull it you have to be ready to use it. I was just point out the previous posts flaw in that the intruder had to be armed which is not true.


Oh I got the sarcasm....I was just adding to it! :thumbsup:

WyoDuner
05-11-2009, 4:10 PM
Sorry, I should have been more precise in my first post. The point remains the same.

PC 198.5 is not a blank check to shoot somebody who forced their way into your home. It simply defines that forcible entry gives you the benefit of the doubt that it is reasonable for you to fear for your life. That's all. Again, PC 198.5 simply PRESUMES that you would be in fear for your life.

Furhtermore, it is rebuttable. It is rebuttable. It is rebuttable. Got it. That means that you STILL MUST PROVE THAT THE PERSON WAS A THREAT.

Yes, there is case law and I have read about it in the past. I need to find it.

One more time - PC 198.5 does not justify a shooting. I presumes that you were in fear for your life only, which helps your case for justifiable shooting. But again, it is rebuttable.

donstarr
05-11-2009, 4:19 PM
Again, PC 198.5 simply PRESUMES that you would be in fear for your life.

Furhtermore, it is rebuttable. It is rebuttable. It is rebuttable. Got it. That means that you STILL MUST PROVE THAT THE PERSON WAS A THREAT.
No, it's up to the "other side" to prove that I did not have a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household. I don't have to prove a damned thing, other than a) he's not a member of the family or household and b) he entered (or I have reason to believe he entered) unlawfully and forcibly.

If I "shall be presumed" to have the "reasonable fear", it's up to the other side to prove otherwise.

Yes, there is case law and I have read about it in the past. I need to find it.
Please do.

Glock22Fan
05-11-2009, 4:20 PM
PC 198.5 is not a blank check to shoot somebody who forced their way into your home. It simply defines that forcible entry gives you the benefit of the doubt that it is reasonable for you to fear for your life. That's all. Again, PC 198.5 simply PRESUMES that you would be in fear for your life.

Tell me why that isn't enough, assuming that the entree is not a member of your family? If you can demonstrate that you are in fear for your life, (and 198.5 spells out, in simple language for once, exactly what needs to be present in order so to do) what rebuttal is possible to prevent you from using deadly force?

Tell me where it says that I may use deadly force if I am in fear for my life, unless so and so circumstances are present.

donstarr
05-11-2009, 4:32 PM
(quoting/replying based on email, though the post seems to have disappeared within the web interface to the forum...)

That's *precisely* what PC 198.5 says.
Don, read PC 198.5 again. It simply outlines that, in a home defense situation, your are presumed to be in fear for your life if somebody broke into your home.

It is NOT authorizing the use of force it is simply identifying that that situation is cause for fear for your life.
Correct. PC 198.5 does not explicitly say you can use lethal force under the conditions described in that section. Rather, it says you are presumed to have a "reasonable fear" in those circumstances.

Other PC sections (197, 198, 199) say that such "reasonable fear" results in "justifiable homicide" (i.e. your "authorizing the use of force"), as well as mandatory acquittal.

WyoDuner
05-11-2009, 5:40 PM
Don, we agree on the purpose of PC 198.5

My real intent is really just to caution people, again, this is just a part of the whole "justified shooting" equation and this part is rebuttable - rebuttable means "don't count on it" in my opinion.

The "California Weapons and Firearms Laws" book publiched by CA DOJ states the following in reference to PC198.5:

"If the presumption is rebutted by contrary evidence, the occupant may be
criminally liable for an unlawful assault or homicide."

I couldn't find a valid case law regarding PC-198.5 - Nothing that make s a good point at least.

God discussion, I think this is a good exercise for all of us.

donstarr
05-11-2009, 6:22 PM
Don, we agree on the purpose of PC 198.5

My real intent is really just to caution people, again, this is just a part of the whole "justified shooting" equation and this part is rebuttable - rebuttable means "don't count on it" in my opinion.

The "California Weapons and Firearms Laws" book publiched by CA DOJ states the following in reference to PC198.5:

"If the presumption is rebutted by contrary evidence, the occupant may be
criminally liable for an unlawful assault or homicide."

I believe the only "contrary evidence" that could be a rebuttal to a PC 198.5 (affirmative?) defense would be those explicitly described in the that section. That is, someone would have to prove that (a) is true, OR (b) AND (c) are true:

intruder shot was a member of either the family or household
the intruder's entry was either not unlawful or not forcible
the shooter had no reason to believe the intruder's entry was unlawful and forcible


A hypothetical example... LEOs responding to a 911 call from my house find me holding my SW1911, a dead guy with a .45 hole in him, and a broken window. The resulting "police report" (none of which is contested) says that I've never seen they guy before (that negates (a)) and I locked all the doors and closed all the windows before retiring (negating (c)). Based on meeting PC 198.5's conditions, I am presumed to have held the described "reasonable fear". Based on PC 198, that reasonable fear is sufficient for PC 197. Based on PC 197, the homicide is justifiable.

The "dead guy" above could be a blind homeless person with no weapons. The set of PC sections referenced above means that a) I have not committed any crime and b) I must be acquitted of any such charges. Sure, I might be charged with a crime, and it might cost me thousands of dollars in attorney's fees, but the burden of proof is still on the state - and they have to overcome my "affirmative defense" (IANAL, but I think that's the right term for a 198.5-based defense).

triggerhappy
05-11-2009, 6:30 PM
It all comes down to this: will the jury believe that you feared for your life or safety? You shoot someone for heisting your TV, when they weren't even armed, you're gonna have a long time to think about what you should have done differently...

Get the book: In The Gravest Extreme by Massad Ayoob. He's in law enforcement, and recognized throughout the galaxy as an expert witness on such matters. Not only has he testified in numerous trials, but can give you pointers so that (hopefully) won't need a trial. due to sound tactics. :)

donstarr
05-11-2009, 7:41 PM
It all comes down to this: will the jury believe that you feared for your life or safety? You shoot someone for heisting your TV, when they weren't even armed, you're gonna have a long time to think about what you should have done differently...

That's kind of the point of the above discussion... it's not up to the jury! Legally, you are presumed to have held a reasonable fear if some (unknown, doesn't-belong-here) dirtbag breaks into your house, armed or not:
a) not a member of the family or household
b) entered unlawfully and forcibly
c) you have reason to believe he entered unlawfully and forcibly
The prosecution needs to either prove (a) isn't true or they need to prove that neither (b) nor (c) are true. If they cannot do that, you shall be acquitted (i.e. it's a "justifiable homicide" for which you cannot be charged).

It shouldn't even get to trial... if (a) is true, and either (b) or (c) is true, you should never be charged. If you are charged, you'd need to be indicted. A police report with accurate information should stop it before you ever get before a judge/jury.

SimpleCountryActuary
05-11-2009, 7:48 PM
Tell me why that isn't enough, assuming that the entree is not a member of your family? If you can demonstrate that you are in fear for your life, (and 198.5 spells out, in simple language for once, exactly what needs to be present in order so to do) what rebuttal is possible to prevent you from using deadly force?

Tell me where it says that I may use deadly force if I am in fear for my life, unless so and so circumstances are present.

There's a fear common to many citizens and it's not limited to gun laws. If a law or regulation says, "You can do A if the criteria B, C, and D are met", somebody is going to be afraid that some sinister Maroon in authority will "interpret" the language to require criteria E as well. Why? Because abusive applications of law and regulations do occur where a sinister Maroon in authority does DARE you to spend your retirement fund to take him to court or else kiss his jackboot. I see it in the tax area often enough.

It would be fitting if a sinister Maroon in authority knocked down my door when I was present so as to generate the proper fear necessary to ... hmmm...(let's see .... release the safety, point barrel sight at Maroon, place finger on the trigger, .... hmmmm...it'll come to me.) :)

WyoDuner
05-12-2009, 9:18 AM
I think we need to understand the meaning of "presumed" in this context because that is what makes or breaks the implication of PC 198.5.

Just like a person is presumed innocent unless proven guilty. Presumed simply means that you are given the benefit of the doubt until/unless that presumption is proven otherwise. Presumed does not mean that something is confirmed and undeniable.


Anyway, my whole message is this: Let's not encourage a "shoot 'em up attitude" here. Instead, we should encourage a reasonable understanding of gun laws as well as the responsibility that comes with gun ownership, particularly when it comes to using a gun in an SD/HD situation.

Glock22Fan
05-12-2009, 12:55 PM
I think we need to understand the meaning of "presumed" in this context because that is what makes or breaks the implication of PC 198.5.

Just like a person is presumed innocent unless proven guilty. Presumed simply means that you are given the benefit of the doubt until/unless that presumption is proven otherwise. Presumed does not mean that something is confirmed and undeniable.


Anyway, my whole message is this: Let's not encourage a "shoot 'em up attitude" here. Instead, we should encourage a reasonable understanding of gun laws as well as the responsibility that comes with gun ownership, particularly when it comes to using a gun in an SD/HD situation.

Whereas I totally agree with your last paragraph, I see no way that they can prove that I wasn't in reasonable fear of my life, after the conditions are met that 198.5 says that I can be presumed to be in that state, except by opening up my head and have a look inside. Unless, that is, I'm stupid enough to say, "Well, no, he was obviously totally harmless but I decided to shoot anyway!

DDT
05-13-2009, 1:56 PM
anything moving around in the dark will be shot center mass.

Attitudes like this are the reason hunters are forced to wear blaze orange vests. Yet another rule to save us from those too self-confident to check their target.

donstarr
05-13-2009, 2:45 PM
Whereas I totally agree with your last paragraph, I see no way that they can prove that I wasn't in reasonable fear of my life, after the conditions are met that 198.5 says that I can be presumed to be in that state, except by opening up my head and have a look inside. Unless, that is, I'm stupid enough to say, "Well, no, he was obviously totally harmless but I decided to shoot anyway!

Right.

WyoDuner is correct that 198.5 provides a "rebuttable" presumption. However, that only means that the state now has the burden of proving (beyond a reasonable doubt) that you did NOT have a reasonable fear of imminent threat of death / great bodily injury to you/yours (CALCRIM 3477).

How, exactly, are they going to satisfy that burden? If the conditions described in PC 198.5 are met, the state would have to, somehow, prove that the victim (of the burglary, invasion, etc.) knew, or had some reason to believe, that the intruder was not a threat. That would seem to be an extremely difficult task - especially if a police report and subsequent investigation showed that all of the 198.5 conditions were satisfied.

Even if the worst-case scenario happened, like killing the 10-year-old autistic neighbor kid, with whom the shooter is acquainted, that (somehow) broke into your house at 0200, what evidence could the state possibly supply that would overcome the "reasonable doubt" requirement? The shooter says: "it was dark, the house was locked, all members of the family/household were accounted for"... presuming those conditions are undisputed (and true), what (accurate) evidence could be used to overcome the (rebuttable) presumption of fear?

Untamed1972
05-13-2009, 3:07 PM
The shooter says: "it was dark, the house was locked, all members of the family/household were accounted for"... presuming those conditions are undisputed (and true), what (accurate) evidence could be used to overcome the (rebuttable) presumption of fear?

Burglar is laying face down in the street 100ft from your house with a bullet in his back that ballistics shows as matching the smoking rifle you had in your hand when the COPs arrived and the blood spatter pattern on the ground indicates the round hit him in the back pretty much where he fell?

That might be enough.

bsim
05-13-2009, 3:09 PM
I think the rebuttable part is when the BG drops your laptop 30' from the door, is running out of said door, and you shoot him/her in the back.

I don't have the PC handy, but the 'justifiable' part ends when the threat is no longer a threat. Yes, you would have to wait for him/her to go to their car, get a gun and more friends, and get then when they're on their way back inside.

donstarr
05-13-2009, 3:32 PM
Burglar is laying face down in the street 100ft from your house with a bullet in his back that ballistics shows as matching the smoking rifle you had in your hand when the COPs arrived and the blood spatter pattern on the ground indicates the round hit him in the back pretty much where he fell?

That might be enough.

That would be enough, but it would also likely change the "undisputed" qualification in my post you quoted.

Perhaps, to make it perfectly clear, I should've added something like "intruder lying in a pool of blood, with no drag marks or footprints, inside the residence, immediately adjacent to a broken window, where said window fragments are tainted with intruder's fingerprints, ETA and where the bullet that passed through the intruder is embedded in the interior wall adjacent to the window".

I didn't think to add that extra text, since much of the discussion above (that part of it in which I've participated, at least) has been about an intruder shot in the home.

donstarr
05-13-2009, 3:45 PM
I think the rebuttable part is when the BG drops your laptop 30' from the door, is running out of said door, and you shoot him/her in the back.

I don't have the PC handy, but the 'justifiable' part ends when the threat is no longer a threat.

And there's the rub: when is he "no longer a threat", or how can a reasonable person determine that he's no longer a threat such that there is no longer a "reasonable fear"?

In my house, if I'm at the end of the hall next to the master bedroom, and the intruder drops the laptop 30' from the door and is running toward that door, he is, to paraphrase Uncle Jimbo... "coming right for me". In that situation, my fear increases - since he's now coming at me head-on.

ETA: I certainly wouldn't advocate knowingly shooting someone in the back if it's obvious that he's fleeing. However, shooting the BG in the back doesn't automatically mean he was fleeing... he could've been heading toward a member of my family that was also on his way out of said door.

berto
05-13-2009, 4:06 PM
Even if the worst-case scenario happened, like killing the 10-year-old autistic neighbor kid, with whom the shooter is acquainted, that (somehow) broke into your house at 0200, what evidence could the state possibly supply that would overcome the "reasonable doubt" requirement? The shooter says: "it was dark, the house was locked, all members of the family/household were accounted for"... presuming those conditions are undisputed (and true), what (accurate) evidence could be used to overcome the (rebuttable) presumption of fear?

Did the homeowner fire in complete darkness towards an unidentified noise?

Was there enough light to distinguish whether the supposed burglar was child sized and perhaps facing away from the homeowner or man sized and advancing towards the homeowner?

How far away was the homeowner when shoots were fired?

Was it reasonable to shoot given the circumstances?

donstarr
05-13-2009, 4:09 PM
Did the homeowner fire in complete darkness towards an unidentified noise?

Was there enough light to distinguish whether the supposed burglar was child sized and perhaps facing away from the homeowner or man sized and advancing towards the homeowner?

How far away was the homeowner when shoots were fired?

Was it reasonable to shoot given the circumstances?

Do any of those prove, beyond a reasonable doubt, that the shooter had no reasonable fear of imminent threat of death or great bodily injury to himself or a member of the household?

And, even if they dothose questions might go toward rebutting the "reasonable fear" presumption, how is the state going to prove them beyond a reasonable doubt? As listed in my criteria, it was undisputed that "it was dark".

donstarr
05-13-2009, 4:18 PM
I'll reply this way, and we'll see if there's any difference...
Did the homeowner fire in complete darkness towards an unidentified noise?
As described, "it was dark". The shooter fired toward what he perceived as (and what turned out to be) an intruder who had entered unlawfully and forcibly.

Was there enough light to distinguish whether the supposed burglar was child sized and perhaps facing away from the homeowner or man sized and advancing towards the homeowner?
It was dark. Presume the shooter saw a "moving, human-sized shape in the gloom, a shape that did not belong there".

How far away was the homeowner when shoots were fired?
Close enough that the shooter reasonably perceived an imminent threat of death or great bodily injury to himself or a member of the household.

ETA: And it really doesn't matter how close he was... if it was dark enough that the shooter could not identify the intruder as the 10-year-old autistic neighbor kid, it was too dark to determine whether he was armed - if the resident could shoot the intruder, then the intruder could shoot the resident.

Was it reasonable to shoot given the circumstances?

If the state cannot prove, beyond a reasonable doubt, that the "reasonable fear" presumed in PC 198.5 existed - then, by statute, "yes".

donstarr
05-13-2009, 4:33 PM
What my above posts might suggest notwithstanding, I'm really not advocating "shoot anything that moves in the night". Rather, I'm trying to figure out what possible offense the state could present if I ever had the misfortune of shooting someone, where that shooting met all of the criteria listed in PC 198.5 - with some (to me, obvious) additional qualifications:
* inside the residence
* not obviously fleeing
* armed/unarmed not determinable
* not determined to be the 10-year-old autistic neighbor kid, or any other "non-threat"

berto
05-13-2009, 4:48 PM
I'll reply this way, and we'll see if there's any difference...

As described, "it was dark". The shooter fired toward what he perceived as (and what turned out to be) an intruder who had entered unlawfully and forcibly.


It was dark. Presume the shooter saw a "moving, human-sized shape in the gloom, a shape that did not belong there".


Close enough that the shooter reasonably perceived an imminent threat of death or great bodily injury to himself or a member of the household.

ETA: And it really doesn't matter how close he was... if it was dark enough that the shooter could not identify the intruder as the 10-year-old autistic neighbor kid, it was too dark to determine whether he was armed - if the resident could shoot the intruder, then the intruder could shoot the resident.



If the state cannot prove, beyond a reasonable doubt, that the "reasonable fear" presumed in PC 198.5 existed - then, by statute, "yes".

The state is unlikely to convince a jury the homeowner acted unreasonably. The state may or may not go ahead with a trial.

The homeowner is left with the financial and emotional toll of the shooting, media attention, and possible trial. His family is too. Taking an instant to better identify the target might avoid the situation.

My quibble is with the "always shoot, every time, no matter what" mentality expressed by some.

berto
05-13-2009, 4:56 PM
What my above posts might suggest notwithstanding, I'm really not advocating "shoot anything that moves in the night". Rather, I'm trying to figure out what possible offense the state could present if I ever had the misfortune of shooting someone, where that shooting met all of the criteria listed in PC 198.5 - with some (to me, obvious) additional qualifications:
* inside the residence
* not obviously fleeing
* armed/unarmed not determinable
* not determined to be the 10-year-old autistic neighbor kid, or any other "non-threat"

The state's decision might be affected by the location of the incident and the identity of the deceased. The nightmare of shooting the autistic neighbor kid might bring some sort of manslaughter charges in a liberal coastal area given the political atmosphere or level of doubt over the shooting being reasonable. If the deceased turned out to be an armed felon charges are less likely reagrdless of location.

donstarr
05-13-2009, 5:09 PM
The state is unlikely to convince a jury the homeowner acted unreasonably. The state may or may not go ahead with a trial.

The homeowner is left with the financial and emotional toll of the shooting, media attention, and possible trial. His family is too. Taking an instant to better identify the target might avoid the situation.

My quibble is with the "always shoot, every time, no matter what" mentality expressed by some.

I have the same "quibble", with one caveat: "taking an instant to better identify the target", when one has every reason to believe that there shouldn't be any such target in the first place, can get one killed. That is, if I take 1 second to make sure the (perceived/feared) intruder is actually a deadly threat, that's another second I've given to the intruder to harm me or mine.

Before I would shoot "the dark moving shape", I would've made sure my wife is in the bed I just left and my kids are in their beds (I would've checked those rooms before venturing into any other part of the house).

However, all of this is most likely a moot point for me. Unless I'm intentionally up late, I wouldn't be in any position to confront an intruder. If I'm asleep, and unless I have to use the head, I don't wake up until 0500 at the earliest. A burglar could ransack the entire house and I wouldn't find out about it until I went out to make coffee. Then again, my wife would be awakened by the burglars' footsteps across the lawn and would likely pound on my kidneys until I came around.

berto
05-13-2009, 5:15 PM
I have the same "quibble", with one caveat: "taking an instant to better identify the target", when one has every reason to believe that there shouldn't be any such target in the first place, can get one killed. That is, if I take 1 second to make sure the (perceived/feared) intruder is actually a deadly threat, that's another second I've given to the intruder to harm me or mine.

Before I would shoot "the dark moving shape", I would've made sure my wife is in the bed I just left and my kids are in their beds (I would've checked those rooms before venturing into any other part of the house).

That one second is a damned if you do damned if you don't situation. Taking the extra second isn't an option at six feet but might be an option from around the corner.

donstarr
05-13-2009, 5:29 PM
The state's decision might be affected by the location of the incident and the identity of the deceased. The nightmare of shooting the autistic neighbor kid might bring some sort of manslaughter charges in a liberal coastal area given the political atmosphere or level of doubt over the shooting being reasonable. If the deceased turned out to be an armed felon charges are less likely reagrdless of location.

Their (the state's) decision to prosecute might be affected by such things, but their burden of proof sure shouldn't be (apart from "location", maybe - though I've tried to limit this discussion to "within the residence").

I still don't see how the state could possibly satisfy their burden of proof against a PC 198.5 "presumption of fear" defense if, as I've tried to stress previously, it was a(n undisputed) case of "someone in the house who didn't belong there, in the middle of the night, not identified, armed/unarmed status not determined". If these things are not disputed, what could the state possibly present that would rebut the presumption of "fear".

b.faust
05-13-2009, 6:10 PM
Penal Code 197
Homicide is also justifiable when committed by any person in any of the following cases:

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.



Lawfully suppressing a riot? Is this some hold over from the 'posse' days?
I'm trying to think of any possible reason I would be 'legally' attempting to suppress an angry mob....

Any law types want to fill me in on this? (it caught my eye and now I'm curious)

Thanks
B.

berto
05-13-2009, 9:58 PM
Their (the state's) decision to prosecute might be affected by such things, but their burden of proof sure shouldn't be (apart from "location", maybe - though I've tried to limit this discussion to "within the residence").

I still don't see how the state could possibly satisfy their burden of proof against a PC 198.5 "presumption of fear" defense if, as I've tried to stress previously, it was a(n undisputed) case of "someone in the house who didn't belong there, in the middle of the night, not identified, armed/unarmed status not determined". If these things are not disputed, what could the state possibly present that would rebut the presumption of "fear".

By location I meant city/county not outside the house.

I'm not sure the state could satisfy its burden of proof but that doesn't mean a DA with an agenda and playing to some interest group won't push a case. Imagine the dead autistic neighbor kid scenario takes place in SF or Berkeley or Santa Monica. There will be a cry to prosecute regardless of the facts and the DA might run up manslaughter charges or worse to quiet the masses and make a point. The media would portray the shooter as a trigger happy killer of an autistic kid. The shooter's kids would have to deal with taunts at school. The shooter and his wife would find out who was a real friend. The charges might get dropped when the furor quiets or the case might go forward. It's not just about winning but about not being bankrupted by the process.

gunsmith
05-14-2009, 2:36 AM
conjecture and imagination are wonderful things.

In my imagination ( and experience ) autistic children do not break into secured homes, thugs looking to kill/rape/rob do.
When they do, I will shoot to stop.

I've worked with autistic children and I've been stabbed by thugs during a home invasion, I'm sure I'll know what to do.

Its the alien space monkeys that really have me worried.

7x57
05-16-2009, 9:51 PM
And when you shoot your kid sneaking back in the house you give that antis another statistic to use against us.


If my kid is up to something that requires sneaking back in the house, he'd be better off getting shot than letting me figure out what he's up to. :chris:

7x57

Swiss
05-16-2009, 10:12 PM
7x57, do you really think this is something to joke about?

Wild Bill
05-16-2009, 10:29 PM
IMHO I still go by "identify your target before you shoot". And I think most anybody with a little common sense would do the same. If not you might be saying hi to Bubba! the but :chris:.

7x57
05-16-2009, 10:41 PM
7x57, do you really think this is something to joke about?

Pretty much yes starting whenever the alien space monkeys showed up. Before that, I was able to keep a straight face.

7x57

TatankaGap
05-17-2009, 1:01 PM
Blinding flashlight if aggression keeps coming it gets lead. If blinding flashlight hits 10 yr old, I'm not shooting unless he's coming at me with a weapon aggressively ~

Best case, he drops the laptop, goes running away from your light and gun bumping into things half-blind on the way out and tells everyone on the Block not to mess with you ~

Even at the Battle of Little Big Horn, Sitting Bull told his warriors to let the youngest soldier on the field live and they sent him back to tell the others what had happened.

IMHO, let the young ones live and not be so quick to shoot unless the threat is confirmed real and oncoming.

gunsmith
05-17-2009, 2:32 PM
So, you're saying Sitting Bull said to kill the 11 year old if there was a 10 year old on the battlefield?

Khmer Rouge soldiers were often really young too, not a very cheerful forgiving lot those tween soldiers.

So if any tween Khmer Rouge breaks into my very secure studio I promise not to shoot if he has an Alien Space Monkey, and remember, no matter how friendly the Alien Space Monkey is, do not let him handle your firearms!

TheBundo
05-17-2009, 7:49 PM
Lawfully suppressing a riot? Is this some hold over from the 'posse' days?
I'm trying to think of any possible reason I would be 'legally' attempting to suppress an angry mob....

Any law types want to fill me in on this? (it caught my eye and now I'm curious)

Thanks
B.

No, current law. Remember the Korean businessmen shooting on the streets of South Central LA during the riots? The police had retreated, it was every man for themselves in that riot. It would have been legal to shoot the men pummeling Reginald Denny with bricks too. You probably would have gotten a medal for it.

DDT
05-17-2009, 10:01 PM
So, you're saying Sitting Bull said to kill the 11 year old if there was a 10 year old on the battlefield?

Isn't that how John Kerry earned his silver star?

DDT
05-17-2009, 10:03 PM
It would have been legal to shoot the men pummeling Reginald Denny with bricks too. You probably would have gotten a medal for it.

Most likely posthumously.

DocSkinner
05-17-2009, 10:27 PM
That one second is a damned if you do damned if you don't situation. Taking the extra second isn't an option at six feet but might be an option from around the corner.

Exactly - that is why you use cover. You know your own house, don't blunder out into rooms in plain site, don't back-light yourself. Peek around corners, and use YOUR EARS, not just your eyes. leave some blinds/curtains/nightlight on as far away from where you would enter as possible, or better have something that shines lights toward the far side of your entry, but in front of where you enter (so you - then light shining away from you, then rest of room. If its at night - it takes very little light as your eyes will be at max dark adapt from sleeping.

There are MANY things you can do to give you that <1 second identify your target advantage without making yourself unsafe.

DocSkinner
05-17-2009, 10:32 PM
Right.

WyoDuner is correct that 198.5 provides a "rebuttable" presumption. However, that only means that the state now has the burden of proving (beyond a reasonable doubt) that you did NOT have a reasonable fear of imminent threat of death / great bodily injury to you/yours (CALCRIM 3477).

How, exactly, are they going to satisfy that burden? If the conditions described in PC 198.5 are met, the state would have to, somehow, prove that the victim (of the burglary, invasion, etc.) knew, or had some reason to believe, that the intruder was not a threat. That would seem to be an extremely difficult task - especially if a police report and subsequent investigation showed that all of the 198.5 conditions were satisfied.

Even if the worst-case scenario happened, like killing the 10-year-old autistic neighbor kid, with whom the shooter is acquainted, that (somehow) broke into your house at 0200, what evidence could the state possibly supply that would overcome the "reasonable doubt" requirement? The shooter says: "it was dark, the house was locked, all members of the family/household were accounted for"... presuming those conditions are undisputed (and true), what (accurate) evidence could be used to overcome the (rebuttable) presumption of fear?



and rememebr - you are going to be pleading this in front of 12 "peers" that probably no nothing of firearms, or combat, and will be judging you based upon their internal clock as they perceive the time line setting in a semi comfy seat and all the time in the world to ponder your decision. Masaad Ayoob writes a great column in Handgunner that talks about this regularly - what happened when it went to trial (He serves as one of the most prominent shooting expert witnesses, as well as being LEO.). They are well worth the read.

Knowledge is power.

DocSkinner
05-17-2009, 10:34 PM
Isn't that how John Kerry earned his silver star?

wait - by playing the 11 year old, or by saying don't shoot the 10 year old?

DocSkinner
05-17-2009, 10:35 PM
Most likely posthumously.

ditto - why he got out of his truck...


teh truck can take far more quicks and rocks, etc. Talk about your Custer scenarios..

1*mike
05-17-2009, 11:06 PM
for the people who will just shoot at anything that moves in the darkness of their homes. Hope they dont have kids sneaking in at night etc etc...put a damn gun light on your home defense gun. If in CA be able to articulate the danger...size difference, weapons, threats, time of burglary, history w/ the suspect, mind state of the suspect. THere are so many factors you want to be able to articulate. It could save you a lot of grief and a lot of money on a lawyer.

DocSkinner
05-18-2009, 12:00 AM
for the people who will just shoot at anything that moves in the darkness of their homes. Hope they dont have kids sneaking in at night etc etc...put a damn gun light on your home defense gun. If in CA be able to articulate the danger...size difference, weapons, threats, time of burglary, history w/ the suspect, mind state of the suspect. THere are so many factors you want to be able to articulate. It could save you a lot of grief and a lot of money on a lawyer.

Or on your mental state and a funeral home if it is YOUR kid sneaking back in, as you JUST KNEW your kid would never sneak out and try to sneak back in. Probably even though YOU did that exact same thing.

gunsmith
05-18-2009, 3:46 AM
no kids, no pets, so I really do not have to worry like you guys do.
I've worked with autistic kids plus ( at the same treatment facility) crazy psychopathic kids ...I'm shooting if some teen decides to break in, I've talked to the little monsters, no remorse for killing, no impulse control- they feel like raping / killing so they do it. period.
9 times out of ten they find victims younger then them so that aint a problem for me. 20 somethings are the ones most likely to break in.
I have very close to me, two surefires, pelitor(sp?) electric muffs,G22 and the will/training to use it.

The only thing that concerns me is those damn dirty apes!
They're quick and cunning lil buggers