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sly409
10-28-2010, 8:34 PM
My parents friend's had their jewelry business robbed recently. Not at gunpoint though. It was a smash and grab job. I think it was in broad daylight with customers in the store too. The store owners were not armed and it didnt look like the robbers pulled out any firearms either. The store owners couldnt do much other then throw chairs at the robbers which in turn the robbers took and threw right back at them.

Just wondering if it would have been legal to shoot the robbers on the spot if the owners were armed? I really don't know any other details or why the owners didnt have any kind of weapons for self defense. I remember when my parents used to be in the business we used to keep a handgun nearby.

What are your thoughts?

Here is a video of the robbery.

http://www.ocregister.com/news/jewelry-273163-fullerton-santa.html

/edit this happened in SoCal, Fullerton to be exact

J-cat
10-28-2010, 8:37 PM
No.

In order to shoot anyone, you first have to be in reasonable fear of immediate death or great bodily injury. You cannot use deadly force to protect property with the exception of arson.

glockman19
10-28-2010, 8:39 PM
What he said :iagree:

I saw this on TV. Was it your family?

sly409
10-28-2010, 8:41 PM
I saw this on TV. Was it your family?


nope not my family. friends of my parents. glad my parents got out of that business a few years back. Right after they got out, the plaza where they used to run the business got robbed at gunpoint.

sly409
10-28-2010, 8:50 PM
so its probably illegal for business owners to hold robbers at gunpoint until help arrives too huh?

1911parausa
10-28-2010, 9:01 PM
Its stupid!!! if the robbers know the law they'll go in without a firearm knowing that they will not be shot (having nothing to lose) and take as much property as possible? Does this mean that the owner can't even take his gun until the robber takes out his? Wouldn't it be too late for the owner?

J-cat
10-28-2010, 9:17 PM
so its probably illegal for business owners to hold robbers at gunpoint until help arrives too huh?

Probably. But they could have used less lethal options like tazers, OC, etc.

Kynoch
10-28-2010, 9:20 PM
My parents friend's had their jewelry business robbed recently. Not at gunpoint though. It was a smash and grab job. I think it was in broad daylight with customers in the store too. The store owners were not armed and it didnt look like the robbers pulled out any firearms either. The store owners couldnt do much other then throw chairs at the robbers which in turn the robbers took and threw right back at them.

Just wondering if it would have been legal to shoot the robbers on the spot if the owners were armed? I really don't know any other details or why the owners didnt have any kind of weapons for self defense. I remember when my parents used to be in the business we used to keep a handgun nearby.

What are your thoughts?

Here is a video of the robbery.

http://www.ocregister.com/news/jewelry-273163-fullerton-santa.html

/edit this happened in SoCal, Fullerton to be exact
If they could do that I think pepper spray and/or baseball bats might have worked wonders...

Carnivore
10-28-2010, 9:32 PM
This is the warm and fuzzy state...you can't protect your property that is what insurance is for....or at least that is what the Kalifornia legislature believes it is. They call it "spreading the wealth". Man I love Texas.

IntoForever
10-28-2010, 9:42 PM
Shoulda used bear spray!

Dreaded Claymore
10-28-2010, 9:49 PM
As I watched the video, I first thought, "Why didn't they stop throwing chairs and actually try to grab one of the robbers?" Then I saw their sledgehammers. I'd hate to get hit on the head with one of those by a miscreant jewel thief.

Insurance for the win.

NightOwl
10-28-2010, 9:56 PM
A citizen may perform a citzen's arrest for a felony (and/or at least some misdemeanors) conducted in their presence. A citizen may then use the reasonable force required to conduct the arrest and protect themselves when doing so. This could potentially result in the use of deadly force against the arrestee, if they are violently resisting the arrest in such a manner as the arresting citizen is in fear for their life.

It's not a good idea to perform a citizen's arrest, however, as it will be a legal nightmare and there's a significant amount of civil liability, unfortunately. In CA, they'd probably end up homeless and destitute, there is that much liability for it should they shoot in that situation. Plus there's the whole issue of having to live with shooting someone. I'd strongly advise against going this route, but there is a slight chance you could have a legal good shoot...after 15 years of court battles.

Alternatively, an arguement could be made for drawing a firearm. I highly doubt that it could be considered brandishing, even by the most anti-civil rights individual. 9 men, 6 of whom are in possession of hammers and the like are actively smashing/robbing the place, that will easily constitute a reasonable fear for the safety of the individual. Personally, I'd probably draw from a position of safety towards the rear of the store, and call the police on my cell.

If all employees were armed, that might cause the robbers to depart promptly, should there be a well excecuted plan by the business of retreat/draw/call for PD/etc. Putting myself in the shoes of the robbers, I'd not want to rob a place while 3+ guns are pointed at me by the people being robbed. Would make for a much safer workplace with such a plan in place, armed employees protecting each other and getting to a safe location while awaiting police, in my opinion.

JDoe
10-28-2010, 9:58 PM
What about PC 197 (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199)?

QUOTE]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...[/QUOTE]

NationsMostWanted
10-28-2010, 11:20 PM
hmmm but if you shoot a robber, how does the police prove they were not reaching in their pockets for something? I mean how do they determine you were not in danger? I mean if they are telling you to hand over money and most likely threatening you at the same time, you shouldnt get in trouble if you shot him.

this is different if your house was getting robbed right? for example a family is tied up from a home invasion by people who dont appear to have a gun...a family member pulls out a gun and shoots them?

sly409
10-29-2010, 12:16 AM
first of all...bear spray?? that sounds awesome and I want! lol

second, the post above me is a really good question and I would like to find out the answer for that also.

paramedico138
10-29-2010, 12:25 AM
Yes you can

Castle Doctrine

Based on the English Common Law provision that one's home is one's "castle", the Castle Doctrine is a popular yet controversial law that allows for a person whose home is under attack to use force upon the attacker.

As each state has its own Castle laws, there are a number of limitations and exclusions to the law. Generally speaking, though, the occupant:

* must believe that the intruder intends to do serious harm;
* must believe that the intruder intends to commit a felony;
* must not have provoked the intruder or threat of harm;
* may be protecting himself or any other within the residence; and
* may need to announce his presence and intention to retaliate.

In all cases, the occupant must legally be in the residence, and the intruder must be there illegally. Additionally, Castle laws may extend these rights to a workplace, car, or other residence where the occupant is legally.

In some states, the Castle Doctrine provides complete immunity, including from future civil suits brought forth by the intruder and/or the intruder's family.
Stand Your Ground vs. Duty to Retreat

States that have adopted the Castle Doctrine have done so in a number of ways. One of the most prevalent is the Stand Your Ground clause, which states that a homeowner who is under perceived threat of attack has no obligation to try to escape his or her attacker before resorting to deadly force.

On the opposite side is the Duty to Retreat, which states that force should be a last resort, and the homeowner must, within reason, try to escape his attacker before retaliating.
State Passage of the Castle Doctrine

Currently, there are a number of states which have passed laws in favor of some version of the Castle Doctrine, including:

* Alabama
* Alaska
* Arizona
* California
* Colorado
* Connecticut
* Florida
* Hawaii
* Kansas
* Louisiana
* Maine
* Maryland
* Massachusetts
* Michigan
* Mississippi
* Missouri
* Ohio
* Oregon
* New Jersey
* North Carolina
* Rhode Island
* Texas
* Utah
* West Virginia
* Wyoming

sly409
10-29-2010, 1:01 AM
I'm gonna have to read up more on this castle doctrine. I've been taught ever since I was young to give into the intruders demands if ever confronted with this situation. I've never believed in that at all. Heard too many horror stories of families completely cooperating with intruders only to get executed in the end (strangled, stabbed, shot and in some extreme cases cut up into pieces).

I believe the reason why I was taught to believe this was because of an age old story I'm sure many of you have heard about involving the intruder or their family suing because they were hurt or killed and the judge/jury awarding the intruder because they didnt believe in gun violence or some crap like that.

I'm sure you guys have also heard the story of the intruder tripping on the coffee table and breaking his leg and suing also right? The story always ended with the intruder winning the case.

Now I've NEVER actually researched to see if any of those stories hold true but being taught that you're entire life it tends to echo in the back of your head whenever conversation about the situation comes up.

Maybe I'm the only one that was told these things growing up and if so I can finally breathe a sigh of relief and finally expel the idea from my mind. I'd love to hear if anyone else grew up hearing that kind of stuff too.

Plisk
10-29-2010, 1:11 AM
These guys of the robbery have been on a robbing spree for a few weeks now. They hit another place in Anaheim today.

From my work, the management has instructed me to only use my carry weapon if someone's life is threatened. Period.

yellowfin
10-29-2010, 4:12 AM
A robber in a store is no different than a raccoon stealing eggs from a hen house or a coyote in with calves or goats. This country used to be 100% crystal clear on that before we went all sissy PC with things.

robcoe
10-29-2010, 5:51 AM
Three men were arrested after the Fullerton robbery Thursday, when six unarmed men reportedly entered the business in the 1400 block of South Harbor Boulevard, smashed jewelry cases with hammers

This seems like a self contradictory statement, if they had hammers they were not unarmed, they were armed with hammers. You can easily kill or at least gravely injure someone by hitting them with a hammer.

Big E
10-29-2010, 7:14 AM
I've been off the website for a while and I happen to pick this one to read first upon my return. For this scenario (thanks to the video) I see that the owner would have been totally justified in drawing a weapon to defend himself and his family/employees (and his property). At no time would I have felt safe or that I wasn't in a potentially live threatening situation. Plus, the chairs? Come on, not a match for what the robbers had. I don't see how it would not be considered justifiable to point a firmarm at these robbers and, if approached after the weapon was pointed at them, to subsequntly discharge the weapon.

fryan
10-29-2010, 7:36 AM
Someone comes into my shop and starts smashing the glass and taking the goods. I will get my gun and stop them for good. I am 65 years old and I am not going to use a bat I am using deadly force. Not everything needs to be analized over and over. Its simple People. Someone smashing glass in a store and grabing goods is using deadly force which is met with deadly force.

Glock22Fan
10-29-2010, 7:58 AM
this is different if your house was getting robbed right? for example a family is tied up from a home invasion by people who dont appear to have a gun...a family member pulls out a gun and shoots them?
For this reason:


Heard too many horror stories of families completely cooperating with intruders only to get executed in the end (strangled, stabbed, shot and in some extreme cases cut up into pieces).



And I'd go as far as saying that this could easily happen in a business environment as well. Well, stabbed or shot anyway.

EGsimi
10-29-2010, 9:41 AM
I'm gonna have to read up more on this castle doctrine. I've been taught ever since I was young to give into the intruders demands if ever confronted with this situation...


jeebus, I don't know how common that is but talk about facilitating crime; I may have been told that when I was maybe 5 but as soon as I was old enough it was expected that you protect the home, you protect the family... end of story.

Now, i didn't grow up in Cali but I am glad to know that here the laws are mostly on your side as well...

NightOwl
10-29-2010, 9:52 AM
Now, i didn't grow up in Cali

That kind of stuff is more common here. The term is sheeple (no offense intended, Sly, seems like you're waking up), which is what our...oh nevermind, it would take an hour of typing to get into it. It's what CA has turned into.

It's so refreshing to not live here. I'm still ticked off that I moved back.

Arondos
10-29-2010, 11:48 AM
I'm gonna have to read up more on this castle doctrine. I've been taught ever since I was young to give into the intruders demands if ever confronted with this situation. I've never believed in that at all. Heard too many horror stories of families completely cooperating with intruders only to get executed in the end (strangled, stabbed, shot and in some extreme cases cut up into pieces).

Until 9/11 we were all told to cooperate and do whatever airplane hijackers demanded...that led to a lot of sheeple sitting in their seats while they got flown into buildings.

A bunch of guys violently smashing things with hammers that could hit someone and injure or kill them. If I were on that jury the shop owner would never get convicted.

Glock22Fan
10-29-2010, 12:13 PM
A bunch of guys violently smashing things with hammers that could hit someone and injure or kill them. If I were on that jury the shop owner would never get convicted.

You and me both.

creekside
10-29-2010, 1:14 PM
Just wondering if it would have been legal to shoot the robbers on the spot if the owners were armed? I really don't know any other details or why the owners didnt have any kind of weapons for self defense. I remember when my parents used to be in the business we used to keep a handgun nearby.

What are your thoughts?

I'm not an attorney, this is not legal advice, and your mileage may vary.

Just the fact that the robbers were armed with hammers is not quite enough to justify the use of deadly force. The guidance you are looking for can be found in the California Criminal Jury Instructions, which are quite massive at over 7 MB. (http://www.courtinfo.ca.gov/jury/criminaljuryinstructions/)

505-509 (Justifiable Homicide) and 3470 through 3477 (Self Defense) seem most applicable. If I had my way, these court-generated interpretations of the law would be taught in every high school in California.

505. Justifiable Homicide: Self-Defense or Defense of Another

The defendant is not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter) if (he/she) was justified in (killing/attempting to kill) someone in (selfdefense/[or] defense of another).

The defendant acted in lawful (self-defense/ [or] defense of another) if:

1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party>) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime>)];

2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;

AND

3. The defendant used no more force than was reasonably necessary to defend against that danger.

Three pillars: reasonable belief that someone is in imminent danger of death or great bodily injury, a reasonable belief that the immediate use of deadly force is necessary to defend against that danger, and no more force than reasonably necessary.

Who is "reasonable" in these matters? Why, a jury of your peers, of course -- some of whom don't like guns, some of whom don't like jewelry store owners, and the rest were too dumb (or too civic-minded) to get out of jury duty.

If someone walks into my shop with a hammer, I'm concerned. If someone starts smashing out displays, I'm very concerned. However, I'm not (yet) in danger of death or great bodily injury. I could go and stand in front of my displays and say, "Please, sir, stop that!" I can pick up a chair or any other improvised object.

I probably shouldn't fire up my oxy torch, however, because my right to use reasonable force to protect my property does not include deadly force. I certainly can't open up with my Glock.

3476. Right to Defend Real or Personal Property

The owner [or possessor] of (real/ [or] personal) property may use reasonable force to protect that property from imminent harm. [A person may also use reasonable force to protect the property of a (family member / guest / master /servant/ward) from immediate harm.]

Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm.

When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable to protect property from imminent harm. If the People have not met this burden, you must find the defendant not guilty of <insert crime>.

Here's the rub. If I go stand between the robber's hammer and my display, there's some chance he might decide to hit _me_ with that hammer.

Do I lose my self-defense rights by defending my property in this way? No. Even if I use force to defend my property? Probably not.

Do I lose my self-defense rights by entering a mutual combat or offering to fight? Quite probably.

Let's suppose instead that I stand in front of my property, with my Glock out and in my hand but not pointed at anyone, and say "Please, sir, stop that. I really must insist."

I am now brandishing a firearm. However I can assert a self-defense claim to that comparatively minor charge.

What I cannot do is immediately shoot, because my life is not yet in immediate danger. Watch this space for updates, as this may change in a few seconds.

What the robber does is up to him.

If he advances on me with a weapon in a threatening manner, and I reasonably believe that I am in danger of death or great bodily injury, is it reasonable (not to me, not to you, but to the 12 jurors who don't like rich jewelry store owners with Glocks) to save my life by shooting him to stop the deadly threat he now poses to my life?

I will pay somewhere between $50,000 and $100,000 in attorney's fees to find out. That's a lot of display cases.

If he instead waves his hammer around, shouts inarticulate gibberish, and pouts that he is being deprived of a chance to take my hard-earned stuff, he is a loser and a poser and nonetheless NOT a threat to my life.

This is all being video recorded, because jewelry store owners are not stupid.

If I attempt a private arrest, much of the same logic applies. I'm well within my legal rights to do so; it's tactically that I'm in danger, because I have multiple suspects with weapons and probably do not have one pair of handcuffs, let alone the several pairs I would need.

Also, no matter what I do, I'd better not shoot him in the back on his way out the door.

571. Voluntary Manslaughter: Imperfect Self- Defense—Lesser Included Offense (Pen. Code, § 192)

A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because (he/she) acted in (imperfect self-defense/ [or] imperfect defense of another). If you conclude the defendant acted in complete (self-defense/ [or] defense of another), (his/her) action was lawful and you must find (him/her) not guilty of any crime. The difference between complete (self-defense/ [or] defense of another) and (imperfect self-defense/ [or] imperfect defense of another) depends on whether the defendant’s belief in the need to use deadly force was reasonable.

The defendant acted in (imperfect self-defense/ [or] imperfect defense of another) if:

1. The defendant actually believed that (he/she/ [or] someone else/ <insert name of third party>) was in imminent danger of being killed or suffering great bodily injury;

AND

2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger;

BUT

3. At least one of those beliefs was unreasonable.

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.

In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant.

So if I shoot the guy with the hammer, I might not be committing murder if I genuinely believe that I am saving someone's life (such as my own) by so doing. If a jury decides that my belief was 'unreasonable,' however, I am committing manslaughter and can expect to go to prison and do my time for the crime.

Have I mentioned the part about not liking juries? I'd hate to see my fate cast before one.

I don't like trauma surgeons even more. I really don't like coroners.

sly409
10-29-2010, 1:56 PM
That kind of stuff is more common here. The term is sheeple (no offense intended, Sly, seems like you're waking up), which is what our...oh nevermind, it would take an hour of typing to get into it. It's what CA has turned into.

It's so refreshing to not live here. I'm still ticked off that I moved back.

No offense taken and you are very correct in saying it seems like I'm waking up. The things I've been taught and told growing up arent really much of an option anymore when I read stuff like this http://news.yahoo.com/s/ap/20101029/ap_on_re_us/us_burglary_killing;_ylt=AncBaUmfXGhrbVMv3FTkgJdbI wgF;_ylu=X3oDMTJwMGUzbmw0BGFzc2V0A2FwLzIwMTAxMDI5L 3VzX2J1cmdsYXJ5X2tpbGxpbmcEcG9zAzYEc2VjA3luX3BhZ2l uYXRlX3N1bW1hcnlfbGlzdARzbGsDd2l0bmVzc2RlZmVu and this http://news.yahoo.com/s/ap/20101029/ap_on_re_us/us_florida_couple_slain_trial;_ylt=ArcweuhSNIuan2d K_QfY6ulbIwgF;_ylu=X3oDMTM0aGs0bHBhBGFzc2V0A2FwLzI wMTAxMDI5L3VzX2Zsb3JpZGFfY291cGxlX3NsYWluX3RyaWFsB HBvcwMxMQRzZWMDeW5fcGFnaW5hdGVfc3VtbWFyeV9saXN0BHN sawNqdXJ5cmVjb21tZW4-

You can never tell what the intruders intentions are. I'd rather be alive than learn the the hard way. Its just too bad that I also face the chance of spending time in prison for trying to preserve my own life and the lives of people i care about. The law isnt always on our side :(

wellerjohn
10-29-2010, 2:34 PM
Someone comes into my shop and starts smashing the glass and taking the goods. I will get my gun and stop them for good. I am 65 years old and I am not going to use a bat I am using deadly force. Not everything needs to be analized over and over. Its simple People. Someone smashing glass in a store and grabing goods is using deadly force which is met with deadly force.

And thats why you don't mess with senors, they shoot first and sort things out later.:D

moleculo
10-29-2010, 2:57 PM
And thats why you don't mess with senors, they shoot first and sort things out later.:D

Are we talking about Mexicans or old people? :D



You know the saying: Don't mess with old people. They're too tired to fight and will just kill you :D

sly409
10-29-2010, 3:08 PM
Are we talking about Mexicans or old people? :D



You know the saying: Don't mess with old people. They're too tired to fight and will just kill you :D

how about old mexicans? they'll kick your ***! my ex gf's grandma is fiesty! she aint afraid to slap a person upside the head for acting a fool lol

Kukuforguns
10-29-2010, 3:17 PM
Cal. Penal Code Section 417:
(a) (1) Every person who, except in self-defense, in the
presence of any other person, draws or exhibits any deadly weapon
whatsoever, other than a firearm, in a rude, angry, or threatening
manner, or who in any manner, unlawfully uses a deadly weapon other
than a firearm in any fight or quarrel is guilty of a misdemeanor,
punishable by imprisonment in a county jail for not less than 30
days.
(2) Every person who, except in self-defense, in the presence of
any other person, draws or exhibits any firearm, whether loaded or
unloaded, in a rude, angry, or threatening manner, or who in any
manner, unlawfully uses a firearm in any fight or quarrel is
punishable as follows: . . .

Penal Code Section 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.
Sections 197 and 417 appear to be somewhat incompatible. Under Section 197, a homicide is justifiable if done in order to resist an attempt to commit a felony. Although there is no requirement of self-defense in subsection 1, the California Supreme Court has interpreted Section 417 contrary to the explicit language and held that a homicide is jusifiable to prevent a felony only if the felony is an atrocious felony (e.g., murder, mayhem, rape, robbery and burglary in some circumstances). People v. Ceballos, 12 Cal. 3d 470 (Cal. 1974). Given that the California Supreme Court is the ultimate arbiter of what California law means (unless the legislature rewrites the law to say, "we really mean it this time"), homicide is not justifiable to resist a felony unless the felony is violent or potentially violent.

On the other hand, under section, 417, you cannot display a firearm in a threatening manner unless doing so in self-defense -- not even in defense of others.

Here's a hypothetical: You are driving home and see a person beating another person with a tire iron. As you are stopping the car you call 911 on your Bluetooth and tell the police that you are witnessing a horrible beating, as soon as the car is stopped, you pop the trunk, take out your firearm and load it, wave the firearm over your head while shouting "STOP," and then shoot the assailant when the beating does not stop. The beating victim, a marine who was innocent of any wrongdoing, barely survives but doctors have to amputate the victim's leg (look up what mayhem means in legal terms). The assailant is rendered a paraplegic by your actions. The police arrive 2 minutes after your call. God himself swears on a bible that the beating victim would have died had you shot the assailant even 10 seconds later. Unfortunately, the incident took place in San Francisco and the assailant was Kamala Harris's wayward, minor offspring. She is offended you used a firearm in San Francisco and prosecutes you for brandishing a firearm. She also is daunted by the expenses of caring for a paraplegic and sues you in civil court to recover the assailant's past and future medical expenses.

It seems to me that there are two potential ways to interpret this inconsistency. First, if you are allowed to kill someone with a firearm to resist an attempt to commit an atrocious felony, using the firearm in a threatening manner is a necessity, and thereby precluding application of the brandishing statute. People v. Youngblood, 91 Cal. App. 4th 66, 73 (2001). Unfortunately, I did not find any cases applying the defense of justification or necessity to brandishing. However, the criminal jury instructions do include defense of others as a defense to a brandishing charge. Judicial Council of California Criminal Jury Instructions, 983.

Second, if you justifiably kill someone with a firearm while resisting an atrocious felony, you must accept the consequences of your noble act (i.e., conviction of brandishing a firearm). Unfortunately, interpretation number two appears to be supported by case law in which courts have held that brandishing is not a lesser included offense in assault with a deadly weapon. People v. Steele, 83 Cal App 4th 212 (2000l) ("theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner"); People v. Beach, 147 Cal App 3d 612, 195 Cal Rptr 381 (1983) ("person could commit a murder using a firearm without drawing the weapon in a rude, angry or threatening manner"). Under these cases, the brandishing of a weapon is separate offense then the offense of actually using the weapon.

To be clear, I think the second interpretation is ridiculous and any prosecutor who charged someone with brandishing for conduct similar to the hypothetical needs to be disbarred. Unfortunately, as the law is written and has been interpreted, a prosecutor could assert that position.

Oh, and the hero of the hypothetical will face the civil lawsuit even if the brandishing charge is not pursued.

Josh3239
10-29-2010, 3:37 PM
Its stupid!!! if the robbers know the law they'll go in without a firearm knowing that they will not be shot (having nothing to lose) and take as much property as possible? Does this mean that the owner can't even take his gun until the robber takes out his? Wouldn't it be too late for the owner?

No, you can use deadly force if you feel your life is in danger. Life in danger isn't if the robber has a visible gun, it isn't that black and white. Several factors could leave a reasonable person feeling as though their life is in jeapardy. If someone went into your place of business and placed a note in front of you that read, "Empty the cash drawer or I'll shoot you" than that is more than enough cause for a reasonable person to believe their life is in danger. There isn't a specific list of what constitues fear of your life, it is a combination of factors. In fact, if someone were to break into my home, especially at night, I wonder consider that itself a danger to myself.

Kid Stanislaus
10-29-2010, 4:13 PM
This is the warm and fuzzy state...you can't protect your property that is what insurance is for....or at least that is what the Kalifornia legislature believes it is. They call it "spreading the wealth". Man I love Texas.

Yeah, Texas law is much more lenient about cleaning out the scummy end of the gene pool. ;)

Kid Stanislaus
10-29-2010, 4:16 PM
hmmm but if you shoot a robber, how does the police prove they were not reaching in their pockets for something? I mean how do they determine you were not in danger?

Yeah, what if the perp made a "furtive movement"?;)

oni.dori
10-29-2010, 4:27 PM
first of all...bear spray?? that sounds awesome and I want! lol

Yup, it's like mace/pepper spray, but for bears. A lot of researchers use it as a LTL althernative to protect themselves from the bears they study, and a lot of backpackers/hikers use it for the same, and also as a substitute when they are in areas where firearms are prohibited (read: National Park).

Kid Stanislaus
10-29-2010, 4:29 PM
"Castle Doctrine" in CA. PC 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 reasom to believe that an unlawful and forcible entry occured"

macadamizer
10-29-2010, 4:45 PM
"Castle Doctrine" in CA. PC 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 reasom to believe that an unlawful and forcible entry occured"

That applies to a residence, not a place of business. And further, if the business was open during the robbery -- i.e., anyone could walk in to the business -- then there wouldn't be an unlawful or forcible entrance either.

creekside
10-29-2010, 5:56 PM
No, you can use deadly force if you feel your life is in danger.

And if your belief is later held to be 'unreasonable' by a jury of your peers, the crime you are guilty of is manslaughter. See the relevant jury instruction in my post above.

creekside
10-29-2010, 5:57 PM
That applies to a residence, not a place of business. And further, if the business was open during the robbery -- i.e., anyone could walk in to the business -- then there wouldn't be an unlawful or forcible entrance either.

+1

"Castle doctrine" <> place of business which is not a residence

the_natterjack
10-29-2010, 6:04 PM
As I watched the video, I first thought, "Why didn't they stop throwing chairs and actually try to grab one of the robbers?" Then I saw their sledgehammers. I'd hate to get hit on the head with one of those by a miscreant jewel thief.

Insurance for the win.

I'd be in fear for my life. Sounds like a legal shoot to me.

Brian

J-cat
10-29-2010, 8:36 PM
You need to be in a reasonable fear for your life. A dude smashing your countertop with a sledge hammer is not the same as dude swinging a sledge hammer at you.

paramedico138
10-30-2010, 2:21 AM
+1

"Castle doctrine" <> place of business which is not a residence

castle doctrine in CA applies to home, place of business and vehicle...

paramedico138
10-30-2010, 2:26 AM
California (California Penal Code § 198.5 sets forth that unlawful, forcible entry into one's residence, place of business or vehicle 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 [3]. 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

Bulleh
10-30-2010, 2:45 AM
California (California Penal Code § 198.5 sets forth that unlawful, forcible entry into one's residence, place of business or vehicle 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 [3]. 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

If this law is clearly understood as it is written, it sounds like they had the right to protect themselves if they were in fear of their life. I don't know about them, but I'm sure I would be if someone came into my work swinging a sledge hammer.

Aleksandr Mravinsky
10-30-2010, 12:28 PM
"Well, officer, nine guys rush into our shop with hammers and start smashing s*** up. I was unable to determine what their intentions were, and thought that they were going to smash the skulls of our customers and employees."

creekside
10-30-2010, 12:53 PM
California (California Penal Code § 198.5 sets forth that unlawful, forcible entry into one's residence, place of business or vehicle 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. strikethrough added

PC 198.5 at (Onecle (http://law.onecle.com/california/penal/198.5.html)) (Leginfo (http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=47173738+6+0+0&WAISaction=retrieve)) reads in its entirety as follows:

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. emphasis added

If you have a case law cite which extends the Castle Doctrine in California to places of business or vehicles, please provide it. Your jury instruction reference merely establishes that California is a "stand your ground" state, which is different from the Castle Doctrine.

Note that we're not discussing a temporary residence as with an RV or a tent at a campsite, nor are we discussing an at-home business such as a jewelry repair shop in the attached garage of a residential home.

You're asserting that the Castle Doctrine protects me while driving around in my car, or while working behind the counter at my local convenience store.

Please prove it. This is way too serious to throw around FUD.

CorsicanRedneck
10-30-2010, 12:56 PM
I believe that you can add Tennessee to that list.

http://tekel.files.wordpress.com/2007/10/chart.png

Yes you can

Castle Doctrine

Based on the English Common Law provision that one's home is one's "castle", the Castle Doctrine is a popular yet controversial law that allows for a person whose home is under attack to use force upon the attacker.

As each state has its own Castle laws, there are a number of limitations and exclusions to the law. Generally speaking, though, the occupant:

* must believe that the intruder intends to do serious harm;
* must believe that the intruder intends to commit a felony;
* must not have provoked the intruder or threat of harm;
* may be protecting himself or any other within the residence; and
* may need to announce his presence and intention to retaliate.

In all cases, the occupant must legally be in the residence, and the intruder must be there illegally. Additionally, Castle laws may extend these rights to a workplace, car, or other residence where the occupant is legally.

In some states, the Castle Doctrine provides complete immunity, including from future civil suits brought forth by the intruder and/or the intruder's family.
Stand Your Ground vs. Duty to Retreat

States that have adopted the Castle Doctrine have done so in a number of ways. One of the most prevalent is the Stand Your Ground clause, which states that a homeowner who is under perceived threat of attack has no obligation to try to escape his or her attacker before resorting to deadly force.

On the opposite side is the Duty to Retreat, which states that force should be a last resort, and the homeowner must, within reason, try to escape his attacker before retaliating.
State Passage of the Castle Doctrine

Currently, there are a number of states which have passed laws in favor of some version of the Castle Doctrine, including:

* Alabama
* Alaska
* Arizona
* California
* Colorado
* Connecticut
* Florida
* Hawaii
* Kansas
* Louisiana
* Maine
* Maryland
* Massachusetts
* Michigan
* Mississippi
* Missouri
* Ohio
* Oregon
* New Jersey
* North Carolina
* Rhode Island
* Texas
* Utah
* West Virginia
* Wyoming

JDoe
10-30-2010, 2:25 PM
Even if you do everything legally there is no guarantee that you won't be arrested, charged and stand trial. The good news is that after spending tens of thousands of dollars, months of your life fighting the system and rejecting plea deals by the prosecution CA PC 199 could be your ticket to freedom.

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

snobord99
10-30-2010, 2:35 PM
CA Castle Doctrine doesn't actually change when you're legally permitted to shoot someone, it only changes the burden of proof. Most people here don't seem to understand that the CA Castle Doctrine is little more than a rule of criminal procedure, not a different substantive rule.

paramedico138
10-30-2010, 2:53 PM
strikethrough added

PC 198.5 at (Onecle (http://law.onecle.com/california/penal/198.5.html)) (Leginfo (http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=47173738+6+0+0&WAISaction=retrieve)) reads in its entirety as follows:

emphasis added

If you have a case law cite which extends the Castle Doctrine in California to places of business or vehicles, please provide it. Your jury instruction reference merely establishes that California is a "stand your ground" state, which is different from the Castle Doctrine.

Note that we're not discussing a temporary residence as with an RV or a tent at a campsite, nor are we discussing an at-home business such as a jewelry repair shop in the attached garage of a residential home.

You're asserting that the Castle Doctrine protects me while driving around in my car, or while working behind the counter at my local convenience store.

Please prove it. This is way too serious to throw around FUD.

The Castle Law is one of the most interesting Self-Defense laws that exists in the United States but is largely derived from the English Common Law. The original Book 4, Chapter 16 of William Blackstone's Commentaries on the Laws of England states that a man has the right to protect his house (also called his castle) and there is no possible way to lawfully enter the house, except for cases when it is needed for Public Safety (for example during a lawsuit). Americas Castle Doctrine version labeled as Law or a Defense of Habitation Law, goes a bit further, it designates one's place of residence (or, in some states, any place legally occupied, such as one's car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack and guarantees the right of the owner to use deadly force to protect his castle.