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Calguns LEOs LEOs; chat, kibitz and relax. Non-LEOs; have a questions for a cop? Ask it here, in a CIVIL manner.

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  #1  
Old 06-05-2009, 3:07 PM
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Default LEO question: regarding the use of deadly force in a home invasion.

In my case, I'm more specifically interested in how the law is applied within San Diego county, in the incorporated areas under the direct jurisdiction of the SDPD.

Essentially, if one is inside one's residence, and a person or persons forcibly enters the home, when can one justify, in the eyes of the law, the use of lethal force against said intruders?

Is there a threshold that the assailants must cross before the DA decides that lethal force was justifiable/excusable, and opts not to prosecute the victim?

Would one need to show evidence beyond any reasonable doubt that said intruders had intent to injure or kill? Would one have to be bruised/stabbed/shot to show such intent on the part of the intruder(s)?

I ask because I have an ongoing argument with a friend who contends that unless you have injuries to prove the intruders intent, that a citizen using lethal force on an intruder would be arrested and prosecuted for defending themselves. I'd like to ask the LEOs here what their experience has been in situations like this as it regards the aftermath of citizens using lethal force in self defense.

thank you in advance.
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Old 06-05-2009, 3:20 PM
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You will be judged as to whether the force you used was "reasonable". No one can give you a "if you do this then all will be ok" answer. Every situation is different. Just like LEO's. you will have to articulate the reasons for your use of force. "Bare fear" is not a justification for the use of deadly force.

Sorry I cant give you the answer you are looking for. But that is the answer.
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Old 06-05-2009, 3:43 PM
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The skeleton of what you're looking for is in the Penal Code... the meat of the answer, however, lies in the specifics of the incident.
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Old 06-05-2009, 4:14 PM
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good reading here. even though we in Ca do not have castle doctrine we do have castle law.

"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.'”) "



http://en.wikipedia.org/wiki/Castle_doctrine
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Old 06-05-2009, 6:18 PM
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Nevertheless, in any situation involving the use of deadly force, the incident will be analyzed by folks who normally have never been in the situation and will have all the time in the world to judge the action that required a split second decision at the time. Typically, these persons also will neither be pro-law enforcement nor pro-gun and cannot relate to a situation where the use of deadly force becomes necessary.
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Old 06-05-2009, 6:35 PM
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The law basically supports the idea that if someone is evil enough to break into an occupied dwelling, they are not likely there to provide you with milk and cookies. As such, there is a presumption that you are in reasonable fear of imminent peril of death or great bodily injury. However, what the law says and what a DA can get a jury to believe are not always the same thing. While the law would tend to favor you, some circumstances won't hold over well. For example, the perp was unarmed at the time. The perp was drunk and broke in because he thought it was his house. These are just two I thought up quickly.

Basically, I follow a fairly simple guideline. I ask myself, can I get out of this without killing this fool or putting my family or myself in danger? If I can answer yes, I'll pursue the other course of action. If the answer is no, odds are this will end badly for the perp. No one comes out a winner in a shooting. There is usually only those who survive and those who don't.

It also depends on LE policy in your neck of the woods. I live in Lemon Grove and the sheriff's dept. is the LE out here. They have arrested people for shooting intruders and have let some go but, they've also jailed people for the same. It usually will depend on the situation. Your best bet is to ask your local LE agency about their policy regarding HD shootings.
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Old 06-05-2009, 8:56 PM
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Quote:
Originally Posted by taloft View Post
Your best bet is to ask your local LE agency about their policy regarding HD shootings.
I'll tell you it right now... SDPD doesn't have a policy on them. The only thing we go by is the penal code. If you follow that you will be ok. If it looks unreasonable it will be treated as such.


Homicide investigations are very very thorough. They don't arrest people on them without a likely conviction. The last self defense shooting was the North Park coin shop shooting a few months ago. No arrests there... it was clean cut.


But here's the kicker... the guys in the coin shop shooting had to close up shop... the suspects are gang members and made a big scene over their hommie getting killed. So if you kill a gang banger, be ready to move.
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Old 06-06-2009, 3:47 AM
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If someone breaks into your home and says, "I'm going to kill you!" you can believe them and take them out with your firearm. You feared for your life.

If you shoot them in the back as they are jumping out your window with your laptop computer, I bet a box of ammo that the district attorney would frown upon that. In such a case, you were in no obvious danger.
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Old 06-06-2009, 7:34 AM
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IMO, the original question is to vague to give an answer that is absolute. The bottom line is this, if someone breaks into your home and you shoot them you will need to be able to validate your reasons why you took such an action. Just as with an LEO, every case will be reviewed by the local District Attorney's Office to determine whether the facts presented meet the requirements of the law for the use of deadly force. In my experience there really has to be some type of blatant disregard for the DA to file such a case.

What I have said above does not imply that if the DA does not file a case against the home owner that the family of Joey Dirtbag will not start a civil action against the home owner for taking the life of their son who was just starting to turn his life around!! The DA not filing the case would be a good thing for the home owner.
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Old 06-06-2009, 10:14 PM
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Quote:
Originally Posted by Jwood562 View Post
good reading here. even though we in Ca do not have castle doctrine we do have castle law.

"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.'”) "

http://en.wikipedia.org/wiki/Castle_doctrine

Excellent response.

However, a home invasion robbery is not a mere burglary. It is a burglary with a twist of violence sufficient to place a reasonable person in fear of imminent peril.
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Old 06-06-2009, 10:24 PM
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or just move to Texas where if someone tries to break into your "truck" and I quote truck, after dark, even though if you're not in the vehicle you're justified to use deadly force.
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Old 06-07-2009, 1:13 PM
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The answer to your question is: 1. Are you in fear for your life or someone else's life? 2. Is that fear reasonable? Reasonable will be judged by what is reasonable and prudent for the average person.

If those two conditions don't exist, you're going to have difficulties.
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