This whole thing looks like the case where Theodore Paul Wafer shot Renisha McBride through the door. McBride was drunk and pounding on Wafer's door in the early hours of the morning saying her car had broken down (she had crashed it) and looking for assistance. Wafer got 15-30 for second degree murder, plus an additional 2 years for possessing a firearm during a felony.
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Chicopee shooting victim was a 15-year-old, alleged 'intruder'; homeowner arrested
- Thread starter Reptile
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A lot of folks may have been taught in the past that they have a duty to retreat when they are confronted in their home. That is not the law in MA today!
As has been pointed out earlier here MA General Laws Chapter 278 Section 8a changed the duty to retreat. But we need to understand it's provisions : "In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling."
Suggested jury instructions for these type cases can be found here: http://www.mass.gov/courts/docs/cou...inal/6000-9999/9260-defenses-self-defense.pdf
And note in the quote above it says IN SAID DWELLING, not "breaking into said dwelling", so they have to be inside before this law applies in MA. I teach the genesis of this law since the arresting officer in the underlying case that resulted in this law was good enough to share that info with me very many years ago.
You mentioned similar legal situations in all the other states, exempting TX. What about what Finalygotabeltfed posted regarding Kentucky law?
"(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle,"
Wouldn't "in the process" imply they had not entered yet?
Thanks.
M1911
Moderator
You can't use deadly force unless you, or another innocent, are in immediate danger of death or grave bodily injury.
Someone on the other side of a locked door, even if they are breaking the glass, is unlikely to rise to that level of danger.
You can't shoot because the might be armed. You can't shoot because they might enter and become a deadly threat. You can only shoot if they are a deadly threat RIGHT NOW.
That is the basic legal framework in most states.
M1911
Moderator
The fact that someone might be armed does not rise to the level of legal justification for the use of deadly force. The fact that someone is breaking into your house in most states does not allow you to assume they are a deadly threat (a minority of states have so-called Make My Day laws).
does this apply to all or just citizens..... so the cop in NY should be charged with murder then? After all he was only getting punched?
Its a mess for sure and i would be more inclined to do as my dad taught me.....get away from danger as best as possible.
god bless
Palladin
NES Member
https://www.washingtonpost.com/news...-dead-and-the-homeowner-is-accused-of-murder/
made National Press. he's f*cked
made National Press. he's f*cked
M1911
Moderator
One legal framework for analyzing the use of deadly force is termed Ability Opportunity Jeopardy.
Did the perp have the Ability to cause death or grave bodily injury? In a one-on-one fight between unarmed male adults, it is typically hard to convince a court of this, though it does happen (Trayvon Martin mounted Zimmerman and started bashing his head against concrete).
Does the perp have the opportunity to cause death or grave bodily injury? In this case, no, he didn't. He was on the opposite side of a locked door.
Was the perps behavior placing the victim in jeopardy? In this case, you might be able to make that argument.
With what little we know now, I think at best you can argue that one of the AOJ criteria was satisfied. You need all three to be satisfied to be legally justified.
Yes, the defendant deserves his day in court. Based on what we know now, I think he is going to have a very hard time succeeding with his defense.
Did the perp have the Ability to cause death or grave bodily injury? In a one-on-one fight between unarmed male adults, it is typically hard to convince a court of this, though it does happen (Trayvon Martin mounted Zimmerman and started bashing his head against concrete).
Does the perp have the opportunity to cause death or grave bodily injury? In this case, no, he didn't. He was on the opposite side of a locked door.
Was the perps behavior placing the victim in jeopardy? In this case, you might be able to make that argument.
With what little we know now, I think at best you can argue that one of the AOJ criteria was satisfied. You need all three to be satisfied to be legally justified.
Yes, the defendant deserves his day in court. Based on what we know now, I think he is going to have a very hard time succeeding with his defense.
JayMcB
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I have no positive commentary to add here other than reinforcing the lesson that if you discharge a firearm in MA off a range, you better have friends in high places or one hell of a good reason why you did it.
M1911
Moderator
Police have more leeway than private citizens. Depending on the circumstances, being punched can rise to that level. For example, Trayvon Martin mounted ZImmerman and was punching him while his head was against concrete. That is a threat of death or grave bodily injury.
Mass-diver
NES Member
Poor kid, you can't even break into a house these days without getting shot.
M1911
Moderator
He was screwed from the get-go because of his actions.
Palladin
NES Member
agreed
PaulR
NES Member
I didn't even get through page 2 in order to determine the guy is fried. I' guess I will stop posting in this thread, lest I out myself.
Reviewing Branca's book specifically for Kentucky, the cite above is noted in his book and IF the 15yo indeed broke the window or it can be proved that he was in the process of breaking into the house, you would be correct that the homeowner should not be prosecuted for murder/attempted murder.
Asaltweapon
NES Member
Yup!! Can't use deadly force in that case. Clearly he over reacted to the threat and did the most stupid thing possible.
Not claiming to know the specifics of the laws in all the states you are referring to, but to your point, I remember a few years back in Michigan a young woman was drunk and her car broke down or something. it was winter. She banged on someones door and I believe the homeowner shot through the storm door at her to where she was on his porch. I don't recall that working out too well for the home owner either.
I get it. You're shilling for more green memberships! If word got out that being a member at NES got you out of jury duty every time, Derek would be competing with Jeff Bezos for most net worth.
I'll go get Branca's book tonight and update this. But I am fairly certain that North Carolina allows you to shoot someone on your property of you think they're a threat.
i might be wrong or Mis remembering. Anyway, I too would dispute that only Texas allows you to shoot through a door.
I do understand that after reading Branca's book, you damn well better not do that or you'll be up for attempted murder or murder. Even if the guy on your porch is loaded with weapons like the terminator.
M1911
Moderator
In MA, even if he is inside your home, you still can't shoot unless you are in immediate danger of death or grave bodily injury. There are a few states with so-called Make My Day laws that allow you to assume that anyone illegally in your home is a grave threat. But most states are like MA in that even inside your home you can only use deadly force if they are a deadly threat -- see my discussion of Ability, Opportunity, and Jeopardy above.
M1911
Moderator
I'm not so sure about that. If they have a gun and are threatening to shoot you through the door, then you might be able to argue that you were, in fact, in immediate danger of death or grave bodily injury. If they just had a contact weapon (knife, club, etc.) then that would be a different story.
MisterHappy
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In the final analysis, this will be a true "Better to be judged by 12" case. Assuming that it goes to trial, and is not plead down.
None of us were there (in the house, or the guy's head). We don't know if it was an intentional shot, or an "oopsie".
Lawyers will get involved, and the Truth (if there is any) will be obscured.
None of us were there (in the house, or the guy's head). We don't know if it was an intentional shot, or an "oopsie".
Lawyers will get involved, and the Truth (if there is any) will be obscured.
This is why all of my firearms are stored unloaded and I never carry with one in the chamber: it's just too dangerous because you never know when one of them will go off on their own. Better safe than sorry I say!
I don't believe most anywhere, not just the Peoples Republic of Ma. things will go smoothly shooting blind through a door.
The little peckers probably were the ones doing the break in's.
The "We were drunk and thought it was a friends house" most likely is bullshit.
Still though, it's not going to fly.
If the cops had showed up, the door is smashed in and numbnuts is taking a nap on the kitchen floor , it's a whole different story.
I also love how 15 is somehow two days out of diapers.
There's ten and eleven year olds in street gangs that would kill your ass in the blink of an eye, then go out for McDonalds.
The little peckers probably were the ones doing the break in's.
The "We were drunk and thought it was a friends house" most likely is bullshit.
Still though, it's not going to fly.
If the cops had showed up, the door is smashed in and numbnuts is taking a nap on the kitchen floor , it's a whole different story.
I also love how 15 is somehow two days out of diapers.
There's ten and eleven year olds in street gangs that would kill your ass in the blink of an eye, then go out for McDonalds.
M1911
Moderator
Again, in MA (and most states), just because he broke into your house doesn't necessarily mean you are justified in shooting him. It just means that you don't have to retreat.
Imagine this scenario...
Drunk 15 year old breaks the glass and opens the door.
He is obviously drunk, slurring speech, stumbling, no weapons in his hands.
You have a drunk idiot in your house.
If that was the extent of the situation - would you feel that you are in imminent and unavoidable threat of grievous bodily injury or death?
In MA, even in that situation you must prove you were in Jeopardy.
Also consider escalation of force. Is it appropriate to shoot an unarmed intruder?
You yell at the guy and he still won't leave?
Is it really necessary to shoot at that point?
Even if "you get away with it" - is it really worth it?
Your name will be all over the internet and you and your family will go through hell even if you are not charged.
In college towns in MA, there have been about 3 police calls for drunks entering homes in the past 12 months.
None of those ended in death or injury.
If the drunk guy became violent and I was in fear for my life I would have to escalate my response.
It may take a while but this Chicopee guy will really feel sorry for killing this kid and it could take years off his life even if he is found not guilty.
I don't think he will be convicted of murder if he goes to trial.
He would more likely get convicted of manslaughter and get 10 years - out in 5.
He should plead this out and accept a 5 year prison sentence.
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