What happens when a homeowner shoots

[robster11]

When a homeowner shoots an armed intruder. What level of investigation do police have for situations like this. Lets say its clear the homeowner legally owned the gun, and the intruder was armed.

Do the execute a search warrant and treat the homeowner like they may have committed a crime?

[the86d]

It depends on the state. In California they will usually take the firearm as evidence (sometimes all of them, I read), and do an investigation as to if it was a justifiable homicide, homicide(, or manslaughter?).

If you put more than 3-4 rounds in them, you had better have a trail of blood (in the act, not after) showing that they were still coming after you with a weapon after you fired shots... OR you are going to jail for homicide. Make sure that you don't empty magazine(s) in them if the threat has stopped, or you WILL stay in jail for a long time. DO NOT SHOOT THEM IF THEY ARE NOT A THREAT.

(This is just how I understand it, and they had better be in your house, or inside a locked gate to your property with No Trespassing signs every 1/2 mile, I think it is.)

Do not delay 24 hours in calling the police like one guy did that executed an intruder after said intruder was laying on the ground bleeding. HE is going to go to jail for a LONG time...

...Do the execute a search warrant and treat the homeowner like they may have committed a crime?

I believe that it depends on circumstantial evidence, blood splatter patterns, and facts (they can tell if your story doesn't add up based on evidence at the scene).

[Ford8N]

What happens really depends on the county it happened in and who the Chief law enforcement officer is of your jurisdiction. In one county you could be called a hero and did a great service for the citizens of your community. The other you will lose your Second Amendment rights for life, thousands of dollars of legal bills and be branded a racist, mentally ill vigilante.

[chris]

screwed in this state.

[vantec08]

In CA, you can expect those with authority to crawl up your backside with a microscope to the point of "does-he-use-matching-socks." Most likely, you will held to a different standard than a poor criminal trying to have some xmas.

[robster11]

Thanks for the reply. That is a good point about it being different for each county. Would it make a difference if you did not kill the armed intruder, but just shot them once and waited for police.

I assume they would still take your weapon, but would they ransack your house? It seems that a family already dealing with a scary situation could have to deal with a lot of other possible legal issues along with it. Those sort of unknowns can be very scary.

[vantec08]

Of course shoot-and-wound could result in more "action." Depends on the specific circumstances and the LE agency and DA overseeing the investigation. In CA, there is no immunity from civil prosecution so you can almost expect a lawsuit from the poor aggrieved criminal (or his survivors).

[jaymz]

My friend's brother in law did a couple of years for killing an armed intruder at his house. The only reason he did any time at all is because he's a felon and wasn't supposed to have a gun. No civil suit from the family. Bottom line is this - if it's a good shoot, nothing will happen.

[QuarterBoreGunner]

In CA, you can expect those with authority to crawl up your backside with a microscope to the point of "does-he-use-matching-socks." Most likely, you will held to a different standard than a poor criminal trying to have some xmas.

screwed in this state.

Yeah, not necessarily to both of these.

My friend's brother in law did a couple of years for killing an armed intruder at his house. The only reason he did any time at all is because he's a felon and wasn't supposed to have a gun. No civil suit from the family. Bottom line is this - if it's a good shoot, nothing will happen.

(emphasis mine)

This is absolutely correct. If you keep a firearm for self-defense, you had better damn well know the law before hand. That guy that waited 24 hours? Yeah he's going to jail for a very long time.

[Laythor]

The idea that the state is "out to get you" is strong on any gun message board but the facts do not bear that out.

A simple search of "intruder shot + california" brings up lots of news stories and very very few of them ever end up with the shooter going to jail let alone being arrested.

If you own a gun for personal defense and use that gun for personal defense in your home under fear for your life or the life of others then you have nothing to fear from the state.

[Window_Seat]

In a system of "Prosecutorial Discretion".

The decision to ruin a person's life for a good shoot does not necessarily rest with the CLEO (Chief of Police/Sheriff) or the investigating Police/Detectives assigned to a case, although they could recommend the charges be filed and cause you to have an arrest record that causes you to be fired and keeps you from getting hired.

There is a thing called "Prosecutorial Discretion".

IN Wisconsin, it used to be that if the Prosecutor (who had sole authority to file a complaint in the beginning) decided not to file a complaint, the court could override that decision in an ex parte hearing.

In that statutory measure:

"[O]nly the district attorney could issue a criminal complaint, rather than permitting the district attorney or judge to issue a complaint. If the district attorney was unwilling or unable to issue a complaint, a judge could do so upon a finding of probable cause." (Becker, 1988, pp. 749-768).

So if a prosecutor can now make the decision solely, and not be questioned, now people might think that he or she has too much power, but hasn't this always been the case? He better watch out if it's abusive, even in San Francisco (but that's just my opinion).

"Traditionally, discussions of prosecutorial discretion focus on charging and plea bargaining decisions. (Citing footnote 30). But on occasions when new evidence casts doubt on a convicted defendant’s guilt, questions of prosecutorial discretion take on comparatively greater importance. When there is an inadequate factual basis for criminal charges, a criminal trial will often (though not invariably) act as a corrective. (Citing footnote 31). In contrast, the legal process holds out little hope for wrongfully convicted defendants, especially in the absence of help from prosecutors." (Green & Yaroshefsky, 2009, p. 472).

We have 58 county DAs, and none are the same, and I don't know how often they communicate with one another, but (even with my "in San Francisco" comment above) I feel like there could be "location location location" factors in each of their decisions to file a complaint in a scenario involving a good shoot where there is a blood and shell trail and the deceased is in possession of a weapon, but I would be confident in a system where we could have the kind of defense that is recommended. If it were a good shoot in SF, I believe strongly there would be some kind of charge filed against a homeowner.

Getting out of a messy situation involving a good shoot (to me) depends on the kind of Counsel representing you. This sums it up in that respect:

[This post was in no way inspired by any recent public posts from any party or litigation matter publicized here, and was instead based on some prior private communications, so please do not infer anything about other CG posts from this message.]

Unfortunately some folks seem to call "a" or "their" lawyer first when they have a pressing firearms legal matter in CA, and then retain him/her - and only later call CGF.

At that point, CGF can only try to cooperate and assist with the retained lawyer and perhaps subsequently offer assistance on the case (which may indeed be quite helpful to shortening the process).

CGF usually does not help with the fees of a lawyer outside the "CA gunrights coalition" ones we refer you to, unless for some special reason it were to become necessary. And for a variety of reasons, we cannot "take the case" away from a defendant's lawyer nor prompt a defendant to drop the lawyer.

This can be a costly mistake: what CA gun lawyers can do with their eyes half-closed [on top of their reputations for winning gun cases which plays into faster resolution] may take much longer for a non-gun lawyer, especially one that doesn't have knowledge of the history of rulemaking, prior case law, etc. Even the best non-gun lawyer takes time to get up to speed on matters like these - and on your nickel.

If you have a CA firearms legal matter that's gonna require some lawyering, and have general confidence you've not violated the law (charges are bogus, DA or LEO doesn't know the laws, etc.) PLEASE CALL CGF FIRST. Even if you're suddenly uncertain about some issue, CGF team would still like to hear about it and run it thru the screening process.

CGF is here to defend your gun rights when you've generally walked the straight & narrow; throguh this work we're likely to encounter numerous situations that may not just benefit the client but gunrights here in general.

There may also be 'interesting' matters arising from cases that "aren't quite so perfect". CGF has informally helped in matters where the case was not quite so clean due to inadvertent situations, but we didn't wanna see a poor guy screwed over big time (i.e., popped for felony AW charges but helping get them reduced to nuisance/seizure via AB2728).

Also, if & when you contact CGF, please ONLY state to the CGF contact the overall nature of the case and the information that's already known to the opposition. (At most: "I was busted for a rifle with a BulletButton and I followed the flowcart", "I was busted for a loaded gun - they said separate loaded magazine was still a loaded gun", etc.) Rock-bottom minute details that could affect your case should only be imparted to the actual CGF lawyer with whom you've been put in contact, to avoid any possible self-incrimination exposure.

For those not familiar with the operation, the CGF lawyer will question you and screen the matter. In the past, we've had folks that tell a good story about their situation - and later it's found there's a bunch of troubling color (say, legit OLL but another loaded gun in the car, felon with the group, etc.) If things are misrepresented and this is discovered after worflow begins, the client may well have to pay the legal fees himself per agreement. (And some of these folks we've *still* managed to help in spite of all this - and in spite of some catty backtalk when confronted with the issue.)

Nevertheless, we can't fix problems if we don't know they exist - and knowing about new cases is the first step.

We'd prefer to err on the safe side and even if you think your matter isn't 'pure enough' there's some chance CGF may be able assist or defend certain aspects of the matter so all is not lost.

Calguns Foundation helpline: (800) 556-2109 - although using email hotline@calgunsfoundation.org is usually best.

Knowing is the first part. And if you KNOW of someone with an gun legal issue that's in the general realm of CGF support (i.e, not a bank robber etc.) please let that party know about CGF and/or PM a CGFer here as much info about the matter as you know.

With all of this researched and stated, I am thankful that we live in a system of prosecutorial discretion, but when a DA decides not to use "spirit of the law" in a case where he or she has no business using "letter of the law", the system has become one with tragic consequences for everyone of the people, all of the time.

(And I am not a lawyer, just a dumb Trucker ).

References:
Becker, S. (1988). Judicial Scrutiny of Prosecutorial Discretion in the Decision Not to File a Complaint. Marquette Law Review, 71(4), 751. Retrieved from http://scholarship.law.marquette.edu/mulr/vol71/iss4/3

Green, B. A., & Yaroshefsky, E. (2009). Prosecutorial Discretion and Post-Conviction Evidence of Innocence. Ohio State Journal of Criminal Law, 6(467), 467-517. Retrieved from http://moritzlaw.osu.edu/students/gr...y-FinalPDF.pdf

Erik.

[kln5]

Take a MAG 40 class with Massad Ayoob and learn all about how to defend yourself legally.

[thayne]

It depends on the state. In California they will usually take the firearm as evidence (sometimes all of them, I read), and do an investigation as to if it was a justifiable homicide, homicide(, or manslaughter?).

If you put more than 3-4 rounds in them, you had better have a trail of blood (in the act, not after) showing that they were still coming after you with a weapon after you fired shots... OR you are going to jail for homicide. Make sure that you don't empty magazine(s) in them if the threat has stopped, or you WILL stay in jail for a long time. DO NOT SHOOT THEM IF THEY ARE NOT A THREAT.

(This is just how I understand it, and they had better be in your house, or inside a locked gate to your property with No Trespassing signs every 1/2 mile, I think it is.)

Do not delay 24 hours in calling the police like one guy did that executed an intruder after said intruder was laying on the ground bleeding. HE is going to go to jail for a LONG time...



I believe that it depends on circumstantial evidence, blood splatter patterns, and facts (they can tell if your story doesn't add up based on evidence at the scene).

Where in the PC does it say you are limited to 3-4 rounds? I dont see it.

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



198.5. 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.

[The Shadow]

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,

That's pretty self explanatory

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,

That almost seems ambiguous.

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,

Again, that's not totally clear.

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.

This could be a problem. I'm thinking that, like open carry, the law says you can do it, but law enforcement and legislators don't want you to do it, and if you do, do it, you will be labeled a vigilante. But that's just my opinion.

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.

On its face, it seems crystal clear. However, law enforcement has a tendency to muddy the waters and "err" on the side of making an arrest and confiscating "evidence" in matters such as this.

Just a thought, if a sworn peace officer (aka LEO) were to be in the same situation as a citizen, would said peace officer's weapon be confiscated ? Or is it "professional courtesy" not to do that ?

[SWalt]

Where in the PC does it say you are limited to 3-4 rounds? I dont see it.

You are allowed to defend yourself only to the point where there is no longer a threat to you life or another. Once the threat is stopped, you must stop.

If you unload 3 30 round magazines and the perp has 90 holes in him, expect to be prosecuted for murder. If the perp has 3 or 4 bullets in him (enough to stop most people) and you expended 90 rounds, you better have a very good explanation and evidence to back it up. Otherwise a good attorney will come up with a better explanation then you while he sues you for every thing you own. Or the local DA prosecutes you for any number of other reasons.

(yes 90 rounds and 3 mag changes is extreme, but i'm using it to show the more rounds you expend the more questions will come up to your motive for shooting more than necessary to stop the threat)

JMHO