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InGrAM
04-22-2011, 1:17 PM
I have been trying to think about this in a legal or a jury in a court room kind of way.

For all the people that have your loaded firearm on your hip when you are home at all times, doing whatever around the house. Do you think a DA would be more likely to press charges against you?

My thinking is, is that by having your firearm on your hip you are somehow expecting to use it, or god forbid WANTING to use it (in the eyes of a DA). By having the gun on your hip vs. having it in a locked safe or in your room. Do you think this makes it look worse on your part?

I am curious because I "play" with my firearms a lot with snap caps and having them laying on a table next to me with a loaded mag on the table is about the same thing has holstering one.

HondaMasterTech
04-22-2011, 1:24 PM
No.

jtmkinsd
04-22-2011, 1:25 PM
You can walk around naked with your holstered gun in your home.

Turo
04-22-2011, 1:27 PM
In a court room for a criminal trial, no, but in a civil trial the perp's family (or the perp if you didn't get a good shot) can sue you for anything and everything. I wouldn't worry about it if it was a good shoot.

sarabellum
04-22-2011, 2:27 PM
I have been trying to think about this in a legal or a jury in a court room kind of way.

For all the people that have your loaded firearm on your hip when you are home at all times, doing whatever around the house. Do you think a DA would be more likely to press charges against you?

My thinking is, is that by having your firearm on your hip you are somehow expecting to use it, or god forbid WANTING to use it (in the eyes of a DA). By having the gun on your hip vs. having it in a locked safe or in your room. Do you think this makes it look worse on your part?

I am curious because I "play" with my firearms a lot with snap caps and having them laying on a table next to me with a loaded mag on the table is about the same thing has holstering one.

Perhaps, a more thoughtful response would start with thoughtfully reviewing the question, "Do you think a DA would be more likely to press charges against you?" We need more facts. Use of the firearm by whom? What occured? Who or what was shot?

Next, we should review the elements of the crime(s) charged and any published case law. Once we have the above, we can explore the hypothetical fact pattern better.

This is an interesting start.

keneva
04-22-2011, 2:34 PM
I live in the country. Nearest neighbor is 1/2 mile away. I carry loaded all of the time at home. I may be caught of guard but not prepaired.

InGrAM
04-22-2011, 2:41 PM
Well lets say someone is breaking into your home in an urban area. You have multiple guns registered to you (what the media likes to call an "arsenal"). and you have a loaded gun strapped to your hip at all times while in the home. (testimony) of friends/family.

Then lets say you get a anti-gun DA. They do exist in CA. What do you think the chances are of getting charged with a crime?

(I have heard of cases of people being charged for murder because they "wanted" someone to break in, so they left their doors unlocked. ext.) I don't know if that is factually true or not, don't hold me to it please.

I am just curious on your guys thoughts on this.

G60
04-22-2011, 2:49 PM
You can walk around naked with your holstered gun in your home.

Wouldn't your 'gun' be unholstered though if you were indeed naked. :D

VegasND
04-22-2011, 3:19 PM
You Californians have left kinky behind and gone on to plain weird!
You can walk around naked with your holstered gun in your home.
I usually just set the pistol on the table next to where I'm working / sitting / whatever when I'm at home.

Maestro Pistolero
04-22-2011, 3:34 PM
It isn't going to be holstered when the police arrive, and any questions about where I retrieved the gun before using it for self-defense are going to be answered through my attorney.

MasterYong
04-22-2011, 3:58 PM
You can walk around naked with your holstered gun in your home.

And I do.

Kes just wont let me post the pics. :D

sarabellum
04-22-2011, 6:07 PM
Well lets say someone is breaking into your home in an urban area. You have multiple guns registered to you (what the media likes to call an "arsenal"). and you have a loaded gun strapped to your hip at all times while in the home. (testimony) of friends/family.

Then lets say you get a anti-gun DA. They do exist in CA. What do you think the chances are of getting charged with a crime?

There are no chances. Crimes must contain at least one of two elements: actus reus and/or mens reus (a wrongful act and/or wrongful mental intent). Your factual scenario lacks both. Wearing a firearm in the home is neither actus reus or mens reus in any jurisdiction in the US. It would be reasonable to argue that carrying the firearm in a holster is safer than on a table or in a desk drawer where it might be dropped, fumbled, or mis-handled.



(I have heard of cases of people being charged for murder because they "wanted" someone to break in, so they left their doors unlocked. ext.) I don't know if that is factually true or not, don't hold me to it please.


I find that hard to believe. Please cite the published case or superior court case number. Here is a classic lawschool hypothetical testing the application of mens reus and actus reus. Husband harbors resentment toward wife, wishing she were dead and even occasionally fantasizing about killing her. Wife drives to the market on a stormy and rainy night. Her vehicle slides out of control and hits a tree, killing her instantly. While there is men reus there is no actus reus linking the husband to the death, as the death was caused by the weather, the vehicle, and arguably the wife's driving.

Your "heard of" statement seems to allude to 2nd degree murder. The elements for 2nd degree murder are the unlawful killing of a human being with malice aforethought as shown by 1) the intent to kill, 2) intent to commit serious bodily injury, 3) extreme recklessness, or 4) a death that occurs during an inherently dangerous felony (burglary, arson, rape, robbery, kidnapping). Of course, none of those elements are satisfied as there are no facts anyone was injured by any act linked to the person in his/her home.

The "leaving the door unlocked" allusion does not lead to a believable set of facts. Was there a bat light in the clouds or neon sign stating "Rob my House Everything will be fine?" Of course not. That set of facts is not even believable.

Facts. We need facts to which to apply the law. Since the facts are not forthcoming, I will create them myself.

Home owner and husband (H) thinks about burglarly prospects and using lethal force against an intruder to protect himself and wife (W). H starts wearing a firearm. H leaves door unlocked. Intruder enters home one day to steal 1960s velvet painting of Elvis valued at $500. Intruder startled by H, draws his Jennings 22 from under his oversized t-shirt and sagging pants. H draws faster. In that split second, Intruder has to bend down to both reach for the gun and keep his pants from falling, and H fires missing Intruder. The bullet whizzes by Intruder with pants down but hits W. H's second shot hits intruder, who is incapacitated. W dies within minutes. What result?

Is H liable for murder? No. 2nd degree murder's definition starts with "unlawful killing of a human being with malice aforethought." H's thoughts reflect fear of burglars. There is no evidence H has any malice aforethought toward W. It is not unlawful to act with lethal force in direct proportion to defend against aggression threatening serious bodily injury or death.

Perhaps, H is liable for 3rd degree murder (i.e. negligent manslaughter) of W. Voluntary Manslaughter is the negligent murder of a human being, where the conduct is a gross deviation from the norm. Arguably, H missed and did kill W. Perhaps, he was negligent in his decision to shoot without noting W's whereabouts. However, notice that the events are precipitated by Intruder's acts. Since negligence or gross deviation from the norm is the standard, Intruder's original act of committing burglary (unlawful entry to commit a felony therein) put "the engine of destruction into motion" to quote Justice Cardozo. It is difficult to determine how the reasonable person in that dangerous, confusing scenario should act. It is unlikely that advanced firearms training could adequately cover such a rapid, unpredictable situation to form the standard of care. Therefore, H is not liable for 2nd degree murder of W.

Is Intruder liable for the death of W? Yes. Intruder did not intend to kill W. Intruder did not intend to commit serious bodily injury to W. In fact, extreme recklessness will not apply since Intruder did not kill W or even get a shot off. However, Intruder will satisfy the "death during an inherently dangerous felony" element: burglary. He entered a dwelling house unlawfully (force is not required) to commit a felony therein: larceny. Immediately during the commission of burglary a death occurred, upon inviting the response by H. Intruder will certainly be charged with 2nd degree murder and will most likely by liable for 2nd degree murder and voluntary manslaughter.

Riodog
04-22-2011, 8:05 PM
]You Californians have left kinky behind and gone on to plain weird![/COLOR]I usually just set the pistol on the table next to where I'm working / sitting / whatever when I'm at home.

This website is getting to be loaded down with the saddest bunch of crap on the entire internet. It's garbage such as this (among others) that make me glad that this isn't a 'shall issue' state as I'd really be afraid to go outside. Keep this up and I'll start voting for every idiot that is endorsed by the Brady bunch.

Rio
#2

I'm surprised it hasn't been asked yet..........BUT can I carry my L-RAD strapped to my ***, under my jacket of course, so I don't get mugged from behind"?

Reductio
04-22-2011, 8:12 PM
And I do.

Kes just wont let me post the pics. :D

Thank God.... :p

N6ATF
04-23-2011, 12:59 AM
This website is getting to be loaded down with the saddest bunch of crap on the entire internet. It's garbage such as this (among others) that make me glad that this isn't a 'shall issue' state as I'd really be afraid to go outside. Keep this up and I'll start voting for every idiot that is endorsed by the Brady bunch.

Explain yourself.

Us3rName
04-23-2011, 1:19 AM
It isn't going to be holstered when the police arrive, and any questions about where I retrieved the gun before using it for self-defense are going to be answered through my attorney.

exactly what he said. is it best to not speak until consultation with a professional lawyer.

it is lawful to have my firearm holstered in my home. with that said.

my firearm is for protection, what good would it do locked up in a safe when I'm home. It is safer by my side and even safer holstered. being quicker on the "ready" is just a bonus I suppose. ;)

VegasND
04-23-2011, 7:21 AM
I respond to a smart-azzed comment with a smart-azzed comment then go on to answer the post and this is your response?
This website is getting to be loaded down with the saddest bunch of crap on the entire internet. It's garbage such as this (among others) that make me glad that this isn't a 'shall issue' state as I'd really be afraid to go outside. Keep this up and I'll start voting for every idiot that is endorsed by the Brady bunch.

Rio
#2

I'm surprised it hasn't been asked yet..........BUT can I carry my L-RAD strapped to my ***, under my jacket of course, so I don't get mugged from behind"?

If you're looking for an excuse to fight against rights and support the 'Brady bunch' don't make me your excuse. Judging by the poll results and the politicians elected in California you're probably already doing what you're threatening to do.

The minority in CA who want their Rights recognized can certainly not count on people with attitudes like yours for any help.


Why don't you do me a favor and put me on your ignore list? I'd hate to think that someone with your simple-minded uber-statist sensitivities is brought to tears by me.

donny douchebag
04-23-2011, 7:35 AM
Referring to the original post I am amazed anyone who owns firearms would even ask these kinds of questions.

SanPedroShooter
04-23-2011, 7:54 AM
You Californians have left kinky behind and gone on to plain weird!

I usually just set the pistol on the table next to where I'm working / sitting / whatever when I'm at home.

Hey! I resemble that remark! Although I dont quite get how your comment about leaving your gun on the desk etc... could be construed to make senior member of this forum decide that shall issue in CA is a bad idea....?

Maybe he's angry that you make jokes about people walking around the house wearing nothing but a holster? I am sure there's a support goup for Second Amendment nudists somewhere in California.... It looks like you may have pissed off a member.

My advice, ignore trolls and stay in Nevada, I may join you....;)

socal2310
04-23-2011, 8:12 AM
Referring to the original post I am amazed anyone who owns firearms would even ask these kinds of questions.

Me too.

Ryan

donny douchebag
04-23-2011, 8:26 AM
Read the post. He already has guns. The ones he "plays" with a lot.

As for time and inclination it's the responsibility of anyone who owns firearms to know at least the simpler aspects of gun law. Preferably before they even take possession of the weapon but certainly very soon thereafter. In fact every person, gun owner or not, should learn enough about the law and their rights to go through life without displaying this sort of ignorance.

stitchnicklas
04-23-2011, 8:59 AM
And I do.

Kes just wont let me post the pics. :D

another reason why we love kes' golden rules,thank god for sending kes' his only armed moderator

NotEnufGarage
04-23-2011, 9:25 AM
I live in the country. Nearest neighbor is 1/2 mile away. I carry loaded all of the time at home. I may be caught of guard but not prepaired.

Wouldn't having dogs to alert you to anyone approaching be a better and safer solution to that? That would easily give you the 30 seconds you need to retrieve your sidearm.

I don't see a situation where walking around the house with a loaded gun on your hip is anything other than mall ninja type activity. Do you walk around with a hammer and screwdriver just in case there's a nail sticking out or a loose screw?

VegasND
04-23-2011, 9:33 AM
Not analogous situations. If you need a hammer or a screwdriver you go get them and perform the repair. If your home is invaded you must have defense on you immediately.
Wouldn't having dogs to alert you to anyone approaching be a better and safer solution to that? That would easily give you the 30 seconds you need to retrieve your sidearm.

I don't see a situation where walking around the house with a loaded gun on your hip is anything other than mall ninja type activity. Do you walk around with a hammer and screwdriver just in case there's a nail sticking out or a loose screw?

j99carmona
04-23-2011, 9:43 AM
You can wear a holster with a gun on each hip for all I care.
Heck you can wear an ammo bandolier crisscross style on your chest a la Emiliano Zapata style if you want. It's your house.

1. Just don't look like that when the cops arrive.
2. there is no 2.
3. Prepare for a civil suit. Your odds are eleventy billion times better if you follow #2.

N6ATF
04-23-2011, 1:10 PM
Do not coup de grace any criminals... JEEZUS.

Riodog
04-23-2011, 1:16 PM
Ops, sorry bout that VegasND. I wasn't referring to your post. It was directed at the OP.
Rio

SanPedroShooter
04-23-2011, 1:24 PM
Ops, sorry bout that VegasND. I wasn't referring to your post. It was directed at the OP.
Rio

ha ha, I knew it! The quote and respone was so "off the wall" I knew it had to be a mistake...

HondaMasterTech
04-23-2011, 3:54 PM
Wouldn't having dogs to alert you to anyone approaching be a better and safer solution to that? That would easily give you the 30 seconds you need to retrieve your sidearm.

I don't see a situation where walking around the house with a loaded gun on your hip is anything other than mall ninja type activity. Do you walk around with a hammer and screwdriver just in case there's a nail sticking out or a loose screw?

Your point demonstrates how immature and ignorant you are to the reality of self-defense.

InGrAM
04-23-2011, 4:13 PM
? I don't see what the problem is. I simply asked for anyones opinion on the matter of if you think a DA would be more likely to try and press charges on you because you walk around your home with a gun on your hip at all times rather than away in a locked container or some other location (if you had to use your gun in a self defense situation.)


at donny: You don't use snap caps? You don't practice trigger development? "playing" with your handgun. That is essentially what you are doing when you are practicing with your firearm.

CSACANNONEER
04-23-2011, 4:19 PM
I carry at home but, I live in the middle of nowhere. I have taken the dogs outside wearing only flip flops and carrying a gun many times. I have never carried a holstered firearm while I was naked though. Well, it's normally in a ITWB rig but, it's in my hand. Anyway, the only thing I'd be worried about would be carrying a concealed weapon while naked. I don't think any jury would want to see pictures of me doing that. I'm pretty sure they'ld give me life even if I was looking looking at 6 months tops.

HondaMasterTech
04-23-2011, 4:22 PM
I carry at home but, I live in the middle of nowhere. I have taken the dogs outside wearing only flip flops and carrying a gun many times. I have never carried a holstered firearm while I was naked though. Well, it's normally in a ITWB rig but, it's in my hand. Anyway, the only thing I'd be worried about would be carrying a concealed weapon while naked. I don't think any jury would want to see pictures of me doing that. I'm pretty sure they'ld give me life even if I was looking looking at 6 months tops.

I'd sentence you to a life of dancing around a stripper pole in my living room.

N6ATF
04-23-2011, 4:26 PM
Freaks. LOL

VegasND
04-23-2011, 4:28 PM
Glad to read your post here. I was confused and figured you had read something crazy into what I'd said. Thanks for the clarification.
Ops, sorry bout that VegasND. I wasn't referring to your post. It was directed at the OP.
Rio

CSACANNONEER
04-23-2011, 4:28 PM
I'd sentence you to a life of dancing around a stripper pole in my living room.

Did you ever get around to reenforcing it to handle my fat azz?

HondaMasterTech
04-23-2011, 4:29 PM
Did you ever get around to reenforcing it to handle my fat azz?

I plan on catching you, every time!

kel-tec-innovations
04-23-2011, 4:33 PM
Just carry it in your holster. Nothing to worry about. Its alot more handy. hands free

Quiet
04-23-2011, 5:05 PM
It is legal to be in your home and have a loaded firearm holstered to you.


Penal Code 12026
(a) Section 12025 shall not apply to or affect any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, who carries, either openly or concealed, anywhere within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident any pistol, revolver, or other firearm capable of being concealed upon the person.
(b) No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person within the citizen's or legal resident's place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.
(c) Nothing in this section shall be construed as affecting the application of Section 12031.

Penal Code 12031
(l) Nothing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite.

blakdawg
04-23-2011, 5:26 PM
There's so much variation in local attitudes that it would be tough for someone to give you a good answer without knowing what county you're in. In some counties, they'd probably have a BBQ in your honor and you'd never see the inside of a courtroom. In other counties, you'll get busted for even having a picture of a gun folded up in your pocket, and you better not have it next to a picture of ammunition, or you're really screwed.

From a safety point of view, I think it's better to have a lot of physical and administrative separation between snap caps and real ammo, but that's your call. I would be more concerned about an ND/AD, given your scenario, than I would be about a criminal case.

InGrAM
04-23-2011, 5:59 PM
Sorry guys for posting a "stupid subject" I wasn't trying to come off ignorant. I was just thinking out loud I guess and should have thought about the subject more.

Someone with the power to nix this thread, please do.

NotEnufGarage
04-23-2011, 6:11 PM
Your point demonstrates how immature and ignorant you are to the reality of self-defense.

Sorry, my TFH fell off for a minute there...

HondaMasterTech
04-23-2011, 6:34 PM
Sorry, my TFH fell off for a minute there...

That's not it, at all. Anyone who is in immediate danger while at home needs to move. The point is that it is not a particularly bad idea to carry while at home. Suggesting that the basic concept of carrying at home in itself being a bad idea, pointless, silly or what have you is plain ignorant.

jm838
04-24-2011, 3:58 AM
For all the people that have your loaded firearm on your hip when you are home at all times, doing whatever around the house. Do you think a DA would be more likely to press charges against you?

I don't know why all of you are acting like this is such a stupid question. He knows the law, and he is just asking about how DA's go about framing us as psychos. We live in a crazy place, and crazy things happen. It really doesn't help that they have it in for us, but this is CA, and they do. It wouldn't surprise me a bit if someone tried to argue that carrying in the home is somehow wrong. I remember reading about a case (in AZ of all places) where someone argued that the lack of an external safety on a glock demonstrated its owner's desire to kill people. It's an inane argument, but it was brought up. That being said, in the particular case I read the plaintiff lost, and the guy with the glock came out looking great. I don't think these kinds of arguments really hold up. There is no legal reason why you shouldn't carry in the home. Even if the DA argues that you were looking for trouble, it won't be the argument that sends you to jail.

Now back to your behavior, my fellow calgunners. Give the guy a break. He might be being paranoid about legal vulnerabilities, but paranoia is what keeps us alive and out of jail. Don't act like he's a moron for asking a question, even if the answer is obvious to someone more educated in these matters. We need to encourage people to join the cause, not make them feel ashamed and unwelcome.

donny douchebag
04-24-2011, 6:43 AM
If he was asking whether a DA is likely to press charges for carrying at home he should have known it's legal. If he was asking if a DA is likely to press charges for a self defense shooting after learning he carries at home that's difficult to answer but even if the DA does I'm betting his attorney could successfully argue in court that his carrying at home was irrelevant. That said my belief is anyone who walks around with a loaded gun strapped on at home, without prior knowledge of a credible threat, is either excessively paranoid or excessively gun nutty. Put simply they have a screw loose. In my opinion they are not the kind of people who do the cause any good.

keneva
04-24-2011, 6:48 AM
It is not a dumb question. I carry at home. I hope I never need it. There have been a lot of home invasions here in the valley. I buy car insurance but I am not looking to have an accident.

ChuangTzu
04-24-2011, 6:50 AM
That said my belief is anyone who walks around with a loaded gun strapped on at home, without prior knowledge of a credible threat, is either excessively paranoid or excessively gun nutty. Put simply they have a screw loose.

:toetap05:

Why don't you start by defining "gun nutty".

In my opinion they are not the kind of people who do the cause any good.

And then explain how someone carrying a gun in their home are inherently doing the cause any wrong.

ALSystems
04-24-2011, 10:50 AM
You can wear a holster with a gun on each hip for all I care.
Heck you can wear an ammo bandolier crisscross style on your chest a la Emiliano Zapata style if you want. It's your house.

Just take off the holster and the dual bandoliers before the police arrive and remove the picture on the wall of you dressed like a bandito. :D

You always should have the appearance of a cleancut responsible person after a self defense shooting. I think having a hostered weapon in the house in a typical suburban area conveys the wrong image of yourself even though its 100% legal.

ken worth
04-24-2011, 11:55 AM
would the DA charge you with arson if there was a fire in your house and they found out that you had a fire extingisher hanging in the kitchen.? It shows that you were hopeing for a fire. do you carry a spare tire in your car because you want a flat tire? how is a holstered pistol any different? its a tool in its proper place so that you can find it in time should the need arise.
not to say that there are not a lot of stupid DAs in California.

Paladin
04-24-2011, 8:30 PM
I don't see a situation where walking around the house with a loaded gun on your hip is anything other than mall ninja type activity. Do you walk around with a hammer and screwdriver just in case there's a nail sticking out or a loose screw?
I really don't get this. I hope to get a CCW w/in the next 2 yrs (sooner, depending upon federal case law), so I plan on CCWing every day while at work, driving, shopping, filling my gas tank, etc. But for some reason, if I don't disarm myself immediately when I get home, I'm acting like a mall ninja??? Why?

Next question, if it makes sense to not disarm immediately upon arriving at home, why should I not CC at home now, before I get a CCW? IMO, it not only makes you safer, but it would be a great way to sort out issues in private re size of HGN, method of carry, holsters, position of holster, clothing, etc before getting your permit and CCWing in public.

A friend of mine who has a rare CoCoCo CCW told me that one of the questions he was asked during his interview was whether he planned on CCWing everyday at home. He said he was. That was the answer they wanted to hear, since the odds of being attacked at home were just as likely (very low) as being attacked in public in CoCoCo. IOW, they wanted to make sure my friend was serious about SD and didn't just want bragging rights or to show off that he was CCWing in public.

mdimeo
04-24-2011, 8:55 PM
I am curious because I "play" with my firearms a lot with snap caps and having them laying on a table next to me with a loaded mag on the table is about the same thing has holstering one.

This is mostly off the topic (well, flame war at this point), but I thought I'd mention:

I interpreted the above to mean you're doing dry fire practice with a live-loaded magazine nearby. If so, you're a moment's distraction away from an ND. I'd change your dry fire procedures.

N6ATF
04-24-2011, 9:19 PM
Sorry I don't have 30 seconds to get to the gun on the other side of my house when the intruder is 3 seconds away. I am the most critical part of my own security system.

mindwip
04-24-2011, 11:21 PM
Feel bad for op. I would carry at home, but I dont gun is in bed room. If anyone breaks in I am running up stiars or out side which ever is closer, blocking the door and calling the police. I have no want to shoot someone, thats what the police are for.


As for gunning around naked, I have been known to take gun to the bathroom which is far from my room when home alone. I have been thinking of getting that clear plastic bag thing putting my ar in it and leaving it in my shower. Now tell me I am a gun nutty too please.

InGrAM
04-24-2011, 11:44 PM
This is mostly off the topic (well, flame war at this point), but I thought I'd mention:

I interpreted the above to mean you're doing dry fire practice with a live-loaded magazine nearby. If so, you're a moment's distraction away from an ND. I'd change your dry fire procedures.

Thank you for your advice and concern. (no sarcasm intended) It is nice to know that my fellow cal gunners see it a point to try and educate people on what they think proper gun etiquette is.

An AD will not happen. I do not use magazines when I use snap caps. And I am very thorough about checking the chamber when I load live or dead rounds into any firearm.

carsonwales
04-25-2011, 1:34 AM
I am at home and have loaded weapon in a holster on my person...

The door bell rings...after checking the video/peep hole it is determined that the caller is not a threat and I open the door.

Have I broken the law?

Does it matter if the weapon is concealed or visible?

Carson

carsonwales
04-25-2011, 1:43 AM
It isn't going to be holstered when the police arrive, and any questions about where I retrieved the gun before using it for self-defense are going to be answered through my attorney.

Fascinating response.

So you agree with the OP that having holstered sidearm in the house is a legal liability?

carsonwales
04-25-2011, 1:50 AM
There are no chances. Crimes must contain at least one of two elements: actus reus and/or mens reus (a wrongful act and/or wrongful mental intent). Your factual scenario lacks both. Wearing a firearm in the home is neither actus reus or mens reus in any jurisdiction in the US. It would be reasonable to argue that carrying the firearm in a holster is safer than on a table or in a desk drawer where it might be dropped, fumbled, or mis-handled.


I find that hard to believe. Please cite the published case or superior court case number. Here is a classic lawschool hypothetical testing the application of mens reus and actus reus. Husband harbors resentment toward wife, wishing she were dead and even occasionally fantasizing about killing her. Wife drives to the market on a stormy and rainy night. Her vehicle slides out of control and hits a tree, killing her instantly. While there is men reus there is no actus reus linking the husband to the death, as the death was caused by the weather, the vehicle, and arguably the wife's driving.

Your "heard of" statement seems to allude to 2nd degree murder. The elements for 2nd degree murder are the unlawful killing of a human being with malice aforethought as shown by 1) the intent to kill, 2) intent to commit serious bodily injury, 3) extreme recklessness, or 4) a death that occurs during an inherently dangerous felony (burglary, arson, rape, robbery, kidnapping). Of course, none of those elements are satisfied as there are no facts anyone was injured by any act linked to the person in his/her home.

The "leaving the door unlocked" allusion does not lead to a believable set of facts. Was there a bat light in the clouds or neon sign stating "Rob my House Everything will be fine?" Of course not. That set of facts is not even believable.

Facts. We need facts to which to apply the law. Since the facts are not forthcoming, I will create them myself.

Home owner and husband (H) thinks about burglarly prospects and using lethal force against an intruder to protect himself and wife (W). H starts wearing a firearm. H leaves door unlocked. Intruder enters home one day to steal 1960s velvet painting of Elvis valued at $500. Intruder startled by H, draws his Jennings 22 from under his oversized t-shirt and sagging pants. H draws faster. In that split second, Intruder has to bend down to both reach for the gun and keep his pants from falling, and H fires missing Intruder. The bullet whizzes by Intruder with pants down but hits W. H's second shot hits intruder, who is incapacitated. W dies within minutes. What result?

Is H liable for murder? No. 2nd degree murder's definition starts with "unlawful killing of a human being with malice aforethought." H's thoughts reflect fear of burglars. There is no evidence H has any malice aforethought toward W. It is not unlawful to act with lethal force in direct proportion to defend against aggression threatening serious bodily injury or death.

Perhaps, H is liable for 3rd degree murder (i.e. negligent manslaughter) of W. Voluntary Manslaughter is the negligent murder of a human being, where the conduct is a gross deviation from the norm. Arguably, H missed and did kill W. Perhaps, he was negligent in his decision to shoot without noting W's whereabouts. However, notice that the events are precipitated by Intruder's acts. Since negligence or gross deviation from the norm is the standard, Intruder's original act of committing burglary (unlawful entry to commit a felony therein) put "the engine of destruction into motion" to quote Justice Cardozo. It is difficult to determine how the reasonable person in that dangerous, confusing scenario should act. It is unlikely that advanced firearms training could adequately cover such a rapid, unpredictable situation to form the standard of care. Therefore, H is not liable for 2nd degree murder of W.

Is Intruder liable for the death of W? Yes. Intruder did not intend to kill W. Intruder did not intend to commit serious bodily injury to W. In fact, extreme recklessness will not apply since Intruder did not kill W or even get a shot off. However, Intruder will satisfy the "death during an inherently dangerous felony" element: burglary. He entered a dwelling house unlawfully (force is not required) to commit a felony therein: larceny. Immediately during the commission of burglary a death occurred, upon inviting the response by H. Intruder will certainly be charged with 2nd degree murder and will most likely by liable for 2nd degree murder and voluntary manslaughter.


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Masterful Sarabellum