Can I Use Deadly Force to Defend My Home?

[Eidolon]

In many states it's not an affirmative defense but rather "defense of justification." And at no time must you say what you did or why you did it. The prosecutor must make a case against you without your statements. He must show why the person in your bedroom during the night didn't intend harm. And it doesn't matter much in some states anyway. In NYS deadly force can be used to thwart a burglary. "Thwart" a burglary.
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You don't plead the fifth. That's to protect you from self incrimination. You just don't speak at all. You aren't required to make a statement or testify. It's the innocent who need an attorney. Let the guilty lie for themselves.
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However, what I recommend in PP classes is to simply tell LE that you have nothing to say at this time but will gladly answer questions after you've had a chance to retain an attorney. Then shut you mouth. Not another word. Not even casual conversation. Nothing!

I want to be clear that I’m not talking about the immediate aftermath of a self defense shooting. I’m talking about after you’ve had time to sit down with your lawyer go over your version of the facts and prepare a statement (if any is going to be given).


If any statement is given you are going to be admitting to homicide / attempted homicide (the killing of a human being by a human being). In fact you probably admitted to homicide at the scene. “ Officer that man was attacking me and I was forced to fire in self defense.” (that’s an admission).


So at some point in the process you are going to say ”I shot that man and I was justified in doing so because….”

That’s why I said you had better be able to articulate specifically what that guy did that made you think he needed shooting.

As an example there was a thread a few years back on ar15.com in which the author advocated that if two “perps” are approaching you at night in a parking lot you should let them know you’re armed. If letting said “perps” know you’re armed doesn’t work you should draw on them.

Now imagine yourself articulating specifically why you drew on these guys.

Officer they were walking toward me in the parking lot and I got scared so I drew. (let me know how that works out for you).

Now imagine the example I used earlier “ I was awakened by a noise coming form the living room of my home. Upon investigaiton I found the deceased who had unlawfully entered my home in the living room. It was dark he appeared to have something in his hands. I ordered him to leave my home and he became aggressive, threatened to kill me and advanced in my direction, I was forced to fire in self defense.

 

[N R A]

Please present evidence that this is normally the case. I can think of several cases (Joe Horn tops the list) that never even made it to a grand jury

Local. Deputy used his sidearm to protect himself. Guy did not die. Case in and out of court five plus years. He is out his own pocket money and he was in uniform. My state is a castle doctrine light. Emphasis on the light.

 

[Eidolon]

Local. Deputy used his sidearm to protect himself. Guy did not die. Case in and out of court five plus years. He is out his own pocket money and he was in uniform. My state is a castle doctrine light. Emphasis on the light.

So you're basing this whole if you're ever in a self defense incident it's going to bankrupt you schtick on one example?

 

[N R A]

If you piss into the wind, what outcome might be forthcoming? Do I need to site case files, for good horse sense? We know justice is blind, but some of what blinds us, is up to us.

 

[NavyLCDR]

If you piss into the wind, what outcome might be forthcoming? Do I need to site case files, for good horse sense? We know justice is blind, but some of what blinds us, is up to us.

Link Removed

You post where someone is charged for shooting an intruder in a home invasion, and I'll post an equal number of where the homeowner was not charged....

http://www.waff.com/story/25431904/decatur-shooting-victim-flown-to-hospital

http://www.ketv.com/news/no-charges-to-be-filed-in-weekend-fatal-shooting/24900132

http://www.foxnews.com/us/2014/01/14/no-charges-in-deadly-south-carolina-home-invasion-shooting/

 

[Tea Man]

I stopped the video as soon as he said go out the back door. Wait a minute... open my back door? While under threat??

What bovine manure.

Here in Texas we have the stand your ground if I can legally be there, in other words, it's my friggin home.

 

[BC1]

I want to be clear that I’m not talking about the immediate aftermath of a self defense shooting. I’m talking about after you’ve had time to sit down with your lawyer go over your version of the facts and prepare a statement (if any is going to be given).


If any statement is given you are going to be admitting to homicide / attempted homicide (the killing of a human being by a human being). In fact you probably admitted to homicide at the scene. “ Officer that man was attacking me and I was forced to fire in self defense.” (that’s an admission).


So at some point in the process you are going to say ”I shot that man and I was justified in doing so because….”

That’s why I said you had better be able to articulate specifically what that guy did that made you think he needed shooting.

As an example there was a thread a few years back on ar15.com in which the author advocated that if two “perps” are approaching you at night in a parking lot you should let them know you’re armed. If letting said “perps” know you’re armed doesn’t work you should draw on them.

Now imagine yourself articulating specifically why you drew on these guys.

Officer they were walking toward me in the parking lot and I got scared so I drew. (let me know how that works out for you).

Now imagine the example I used earlier “ I was awakened by a noise coming form the living room of my home. Upon investigaiton I found the deceased who had unlawfully entered my home in the living room. It was dark he appeared to have something in his hands. I ordered him to leave my home and he became aggressive, threatened to kill me and advanced in my direction, I was forced to fire in self defense.

No sir. You're not understanding. No statement is ever required. They need to make their case without your cooperation. I'm not articulating anything to anyone other than my attorney. You're explaining way too much to police and you'll get jammed-up. You don't need to prove innocence, they need to prove guilt. Kind of tough when a strange guy is inside your home at 2:00 AM and has broken-in.
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Now for those who don't believe in good home security this is an issue. If you leave your doors unlocked and a drunk wanders-in thinking he's home there's going to be a problem. Lock your doors. Use motions lights, alarms and double locks on the doors. Put-up video if you can. Replace the small hinge and striker plate screws with 4" screws, into the frame. Do the same for your bedroom door and the doors of your kids rooms. You're creating safe-rooms. Make the intruder have to work very hard to get in. Practice drills with the family to get locked down when certain events occur or a certain code word is heard. Keep a cell phone in your safe room.
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There isn't much explanation needed when the guy is shot breaking into your family's safe room. He's come past signs, lights, dogs, broken down a door or window and then attempted to access the safe room while you're on the phone with 911. Thus the scene speaks for itself. No explanation needed. Let the DA make a case if he can. But rest assured nothing you say will prevent a DA from charging you if the evidence conflicts with your story. Just remain quiet. Don't hang yourself.
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PPITH is a great NRA class if you can't find it. It combines home security with home defense and presents all of these strategies.

 

[whodat2710]

Most states are going to run you through a leagle battle that will bankrupt you, and your choice to shoot another human.

Provide proof of this statement. In states where there is a Castle Doctrine, few if any cases that meet the criteria ever go to court. The only one I can think of recently is the guy that used his open garage to entrap a local hoodlum and kill him. That is one that has extenuating circumstances that may take it beyond the realm of mere Castle Doctrine. In most news stories you see about home invaders meeting the business end of a homeowners gun, it says the homeowner will not be charged.

 

[BC1]

Provide proof of this statement. In states where there is a Castle Doctrine, few if any cases that meet the criteria ever go to court. The only one I can think of recently is the guy that used his open garage to entrap a local hoodlum and kill him. That is one that has extenuating circumstances that may take it beyond the realm of mere Castle Doctrine. In most news stories you see about home invaders meeting the business end of a homeowners gun, it says the homeowner will not be charged.

And I can't think of any state that requires a person attempt to retreat while on their own property.

 

[RonM0710]

And I can't think of any state that requires a person attempt to retreat while on their own property.

Duty to retreat in these states

Ark
CT
DE
IOWA
MAINE
MD
Mass
Minn
Neb
NJ
NY
ND
OH except home
RI except home
VT
WDC
WY except home

 

[NavyLCDR]

CT - EXCEPT HOME:

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Exception for dwelling

As a general rule, a defendant is not required to retreat in (his/her) own dwelling before (he/she) may use force. A dwelling is defined in our law as a place which is usually occupied by a person lodging therein at night. "Usually occupied" means customary or routine nightly occupancy. Thus, occupation for some period of time is required. In considering whether a house is the defendant's dwelling, consider evidence such as where the defendant's clothes and personal effects were kept.

AR - EXCEPT HOME:

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5-2-607. Use of deadly physical force in defense of a person.

(a) A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is:

(1) Committing or about to commit a felony involving force or violence;

(2) Using or about to use unlawful deadly physical force; or

(3) Imminently endangering the person's life or imminently about to victimize the person as described in § 9-15-103 from the continuation of a pattern of domestic abuse.

(b) A person may not use deadly physical force in self-defense if the person knows that he or she can avoid the necessity of using deadly physical force with complete safety:

(1) (A) By retreating.

(B) However, a person is not required to retreat if the person is:

(i) In the person's dwelling or on the curtilage surrounding the person's dwelling and was not the original aggressor; or

(ii) A law enforcement officer or a person assisting at the direction of a law enforcement officer;

Delaware - EXCEPT HOME:

http://delcode.delaware.gov/title11/c004/index.shtml#464

(e) The use of deadly force is not justifiable under this section if:

(1) The defendant, with the purpose of causing death or serious physical injury, provoked the use of force against the defendant in the same encounter; or

(2) The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform except that:

a. The defendant is not obliged to retreat in or from the defendant's dwelling; and

b. The defendant is not obliged to retreat in or from the defendant's place of work, unless the defendant was the initial aggressor;

BC1 appears to be correct....

And I can't think of any state that requires a person attempt to retreat while on their own property.

 

[ArmyCW4]

And I can't think of any state that requires a person attempt to retreat while on their own property.

No retreating does not necesarily imply one can lawfully use deadly force.

 

[CharlesMorrison]

Duty to retreat in these states

Ark
CT
DE
IOWA
MAINE
MD
Mass
Minn
Neb
NJ
NY
ND
OH except home
RI except home
VT
WDC
WY except home

Only if safe to do so.....

 

[whodat2710]

No retreating does not necesarily imply one can lawfully use deadly force.

Actually, it does. The fact that retreating is not a required action, the only other viable option is not retreating. NO law in ANY state will require you to stand there and be a victim.
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There is a big difference between not retreating in a "Stand Your Ground Law" situation and a "Castle Doctrine" situation:
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Stand your ground implies that in a neutral environment that you and the other person are reasonably allowed to be, you may use force (including deadly force) to defend yourself. In most cases a jury can decide if your response was reasonable based on the threat. If a 7 year old is hitting you and you cap him, you will likely go to jail for a long time.
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Castle Doctrine is based on the fact that the property in question belongs to you, and that the other person has no legal reason to be there. This other persons mere presence is a threat based on the fact that they have no reason to be there and are uninvited. You as the resident may infer felonious intent, and do not need to verify whether or not the person is armed, is dangerous etc. before taking action. If you want to say "stop!" it's up to you, but you are not required to.

 

[NavyLCDR]

Actually, it does. The fact that retreating is not a required action, the only other viable option is not retreating. NO law in ANY state will require you to stand there and be a victim.
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There is a big difference between not retreating in a "Stand Your Ground Law" situation and a "Castle Doctrine" situation:
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Stand your ground implies that in a neutral environment that you and the other person are reasonably allowed to be, you may use force (including deadly force) to defend yourself. In most cases a jury can decide if your response was reasonable based on the threat. If a 7 year old is hitting you and you cap him, you will likely go to jail for a long time.
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Castle Doctrine is based on the fact that the property in question belongs to you, and that the other person has no legal reason to be there. This other persons mere presence is a threat based on the fact that they have no reason to be there and are uninvited. You as the resident may infer felonious intent, and do not need to verify whether or not the person is armed, is dangerous etc. before taking action. If you want to say "stop!" it's up to you, but you are not required to.

Not in Massachusetts. In MA, a person may not automatically use deadly force just because they are in their home.

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Page 6:

5. The “castle rule”: retreat not required in dwelling. A person lawfully occupying a house, apartment or other dwelling is not required to retreat from or use other means to avoid combat with an unlawful intruder, if two circumstances exist:

First, the occupant reasonably believes that the intruder is about to inflict great bodily injury or death on him (her) or on another person lawfully in the dwelling; and

Second, the occupant uses only reasonable means to defend himself (herself) or the other person lawfully in the dwelling.

And, further, on pages 7 and 8 :

The Commonwealth may prove that the defendant did not act in self-defense in a dwelling by proving beyond a reasonable doubt:

First, that (the premises were not a dwelling) (or) (the defendant was not a lawful occupant of the premises) (or) (the alleged victim was not an unlawful intruder) (or) (the defendant did not reasonably believe that the alleged victim was about to inflict great bodily injury or death on him (her) or on anotherperson lawfully in the dwelling) (or) (the defendant used clearly excessive force to defend himself (herself) or the other person lawfully in the dwelling); and

Second, that the defendant resorted to force without using avenues of escape that were reasonably available and which would not have exposed the defendant to further danger.

 

[BC1]

Duty to retreat in these states

Ark
CT
DE
IOWA
MAINE
MD
Mass
Minn
Neb
NJ
NY
ND
OH except home
RI except home
VT
WDC
WY except home

This thread is about defending your home. Reread my post. I said "And I can't think of any state that requires a person attempt to retreat while on their own property." Try finding a single state with that requirement. You'll need to cite the law not just list a state.
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NY merely has a requirement that one attempt to retreat when in a public place only if s/he can do so with complete safety to self and others. If you have a child with you retreat isn't an option. The duty to retreat is gone if you're pursued by the attacker, if the path to safety is blocked or if there is some physical limitation such as a medical condition. Duty to retreat is merely a means to avoid two parties entering into a mutual combat agreement. If both walk-away no problem, right? But once an attacker as commenced there is no duty to retreat at all. You may use force as necessary to stop the threat. See NYS Penal Law - Article 35.

 

[N R A]

Duty to retreat in these states

Ark
CT
DE
IOWA
MAINE
MD
Mass
Minn
Neb
NJ
NY
ND
OH except home
RI except home
VT
WDC
WY except home

Listed above are some if not all duty to retreat state for criminal law. The list of states where civil law and duty to retreat come into play is larger and depending in circumstances for each case, could involve all fifty states.

 

[Deanimator]

Listed above are some if not all duty to retreat state for criminal law. The list of states where civil law and duty to retreat come into play is larger and depending in circumstances for each case, could involve all fifty states.

1. In Ohio, there is no duty to retreat when in home or vehicle.
2. In Ohio, if it's ruled a good shoot, BY LAW, neither an assailant, nor any relatives, legatees, etc. can recover a PENNY of damages.

If you're looking to get rich by being an unsuccessful predator, cross Ohio off of your list of prime "work" environments.

 

[whodat2710]

Not in Massachusetts. In MA, a person may not automatically use deadly force just because they are in their home...

This does not surprise me, but in the interest of how it relates to my post, I do not believe this is a true "Castle Doctrine". This may be the Castle Doctrine "Lite" that someone else referred to. "A man's home is his castle" is the basis for the law, up to and including it's name. This is basically a "stand your ground" law for the home and does not consider defense of property or the fact that someone illegally in your house has the intent to commit a felony.

First, the occupant reasonably believes that the intruder is about to inflict great bodily injury or death on him (her) or on another person lawfully in the dwelling; and

Second, the occupant uses only reasonable means to defend himself (herself) or the other person lawfully in the dwelling.

The problem with the above wording is that it removes the assumption that a person in your home illegally has ill intent. It requires split second life or death judgment by an individual not necessarily trained in such scenarios, including determination of what is "reasonable". It further screws up the situation by leaving the final determination in the hands of a bunch of lawyers and judges that are not in extremis and looking at it in hindsight. Bad law, period.

 

[RonM0710]

this thread is about defending your home. Reread my post. I said "and i can't think of any state that requires a person attempt to retreat while on their own property." try finding a single state with that requirement. You'll need to cite the law not just list a state.
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Ny merely has a requirement that one attempt to retreat when in a public place only if s/he can do so with complete safety to self and others. If you have a child with you retreat isn't an option. The duty to retreat is gone if you're pursued by the attacker, if the path to safety is blocked or if there is some physical limitation such as a medical condition. Duty to retreat is merely a means to avoid two parties entering into a mutual combat agreement. If both walk-away no problem, right? But once an attacker as commenced there is no duty to retreat at all. You may use force as necessary to stop the threat. See nys penal law - article 35.

read post #55 again.