MS - Homeowner Shoots Alleged Car Burglars

[Kevlar]

http://www.wapt.com/news/22731512/detail.html

JACKSON, Miss. --
A homeowner shot a man he said was trying to break into his car, police said.

The shooting happened early Wednesday morning at a home in the Eastover subdivision, Jackson Police Department spokesman Officer Joseph Daughtry said.

The homeowner, who has not been identified, told police that he was awakened by the sound of someone in his carport at about 4 a.m. He approached the carport with a weapon and found two men trying to break into a car, Daughtry said. The homeowner yelled something at the two men and then fired a shot that struck one of them, police said. The two men then ran away.

A few minutes after the shooting, two men showed up at a local hospital. One of the men had a gunshot wound, Daughtry said.

The hospital called police as they treated the man, he said. Officers arrested Jonathan Smith, 23, and Timothy Lewis, 25, at the hospital, Daughtry said.

Both men are charged with auto burglary, and Smith is recovering at UMC with a gunshot wound.

Police said they won't release the homeowner's name. He may not face any charges because of the state's Castle Doctrine law that was passed in 2006, giving more rights to those protecting their car or their home.

 

[cekim]

Police said they won't release the homeowner's name. He may not face any charges because of the state's Castle Doctrine law that was passed in 2006, giving more rights to those protecting their car or their home.

Burglary in that area will now drop precipitously - WIN!

 

[Larry Legend]

The car owner would pretty much be crucified here in MA right?

 

[cekim]

The car owner would pretty much be crucified here in MA right?

Goes without saying...

 

[M1911]

The car owner would pretty much be crucified here in MA right?

Hard to tell from the article. If they attacked him when he was outside of his home, he was in fear of death or grave bodily injury, and he was unable to safely retreat, then he would be legally justified in using deadly force in MA (and pretty much all other states).

However, if he was not in fear of death or grave bodily injury, or if he could have retreated but did not do so, then he would likely be in legal trouble in MA and most other states. Few states let you use deadly force to protect property.

The most important take away isn't that he would "be crucified here in MA," but rather that he would be crucified in most states.

 

[Boston_Shooter]

In Ma. you have to sit by your window and call the cops...then watch these scumbags, who will probably never get cauight, walk away with your stuff.

 

[M1911]

In Ma. you have to sit by your window and call the cops...then watch these scumbags, who will probably never get cauight, walk away with your stuff.

Not true. You can go outside and use force. But you can't use deadly force unless you are in fear of death or grave bodily injury, and prior to using deadly force you must retreat if it is safe to do so.

I would recommend that you do stay inside, but you don't have to. Personally, I've got $1000 deductible on my SUV. $1000 isn't worth risking my life over.

 

[FCI Corp]

I want the Castle Doctrine law in this state. Is that too much to ask for?

 

[cekim]

I want the Castle Doctrine law in this state. Is that too much to ask for?

Yes... Yes it is...

Well, at least outside the house - inside you now have it. Whether the spirit of it would be observed is another question entirely if you do anything more than sit down with your intruder and have a long talk about how he/she is going to turn it around.

 

[M1911]

I want the Castle Doctrine law in this state. Is that too much to ask for?

We already have it. MGL Chapter 278 Section 8A:

CHAPTER 278. TRIALS AND PROCEEDINGS BEFORE JUDGMENT

Chapter 278: Section 8A. Killing or injuring a person unlawfully in a dwelling; defense

Section 8A. 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.

http://www.mass.gov/legis/laws/mgl/278-8a.htm

That is what was originally referred to as a castle law. What you might be thinking of is what some refer as the so-called "make-my-day" laws. But since this incident occurred OUTSIDE of the house, even those laws might not have provided a safe harbor.

Once again, folks seem to think that MA law is unusual in this regard. It isn't. This guy would be likely be in legal trouble in MOST states.

 

[Larry Legend]

Section 8A. 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.

So, as long as you can prove that you feared grave bodily injury or death, your all set, so long as you are inside your home/apartment.

 

[M1911]

So, as long as you can prove that you feared grave bodily injury or death, your all set, so long as you are inside your home/apartment.

The same is true outside of your home, except that outside of your home you must retreat if it is safe to do so.

Your fear must have been reasonable, knowing what you knew at the time. Just because you have an irrational fear of middle-age keyboard commandos, that doesn't mean you can pull out a gun and shoot me as I walk past you on the sidewalk.

MA law isn't much different from most states in this regard.

 

[cekim]

The same is true outside of your home, except that outside of your home you must retreat if it is safe to do so.

Your fear must have been reasonable, knowing what you knew at the time. Just because you have an irrational fear of middle-age keyboard commandos, that doesn't mean you can pull out a gun and shoot me as I walk past you on the sidewalk.

MA law isn't much different from most states in this regard.

IIRC _most_ states now have a castle doctrine in place for the home after recent spat of law changes around the country in the past 10 years.

The difference is "stand your ground" which now the law in 25 states.

 

[notalib]

I also thought that in MA you didnt have to worry about civil action if you protected yourself in your home.. Wounding or killing the intruder

Is this so?

 

[Kicker96FS]

So, as long as you can prove that you feared grave bodily injury or death, your all set, so long as you are inside your home/apartment.

Yes, so be sure to pee your pants before calling 911 !

 

[Kevlar]

I also thought that in MA you didnt have to worry about civil action if you protected yourself in your home...

Not true.

Our "castle doctrine" does not provide immunity from either criminal prosecution OR civil liability.

At best, it provides an "affirmative defense".

 

[Larry Legend]

I also thought that in MA you didnt have to worry about civil action if you protected yourself in your home.. Wounding or killing the intruder

Is this so?

I'm pretty sure a bill was filed after the MGH self defense shooting involving Mr. Langone that would protect you from a civil suit if you were found to be justified in using deadly force.

 

[terraformer]

You can go outside and use force.

I don't believe this is true. I don't believe that any force is allowed in protection of property. And you sure as hell don't want to use force and then have it end up in a deadly force situation because your force escalated the situation, which is why I think the above is not true.

 

[M1911]

I don't believe this is true. I don't believe that any force is allowed in protection of property.

No, that is not true. If someone grabs for your wallet, you can struggle with them to keep it.

And you sure as hell don't want to use force and then have it end up in a deadly force situation because your force escalated the situation, which is why I think the above is not true.

I believe that is a separate issue. If you were being a jerk at a bar, mouthing off, a guy hits you, you hit him, you eventually pull your gun, yes, I think in that situation you may not be able to claim self defense.

But that's not the situation being discussed. You must be an innocent party. But defending your property using reasonable force does not make you the aggressor.

From Andrew Branca's book, "The Law of Self Defense,"

The legal distinctions in this area are largely a matter of degree, and are perhaps more fact-sensitive than any other area of the law of self defense.

One reasonable legal definition of an "aggressor" is that of a person whose: "Affirmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal consequences."

Defending your property is not an unlawful act.

Continuing in the same text:

The use of nonlethal force, however, is generally accepted as a means of preventing or terminating property crimes (including trespassing).

"Pursuant to the use of physical force in defense of premises is justified to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises."

That said, I would recommend not going outside to stop someone from breaking into your car. It just isn't worth it, IMHO.

 

[M1911]

IIRC _most_ states now have a castle doctrine in place for the home after recent spat of law changes around the country in the past 10 years.

Define "castle doctrine." No state requires you to retreat from your home. But it is my understanding that's been true ever since MA changed its law back in the King(?) administration. That was the original castle doctrine.

The difference is "stand your ground" which now the law in 25 states.

That's different. That's defense outside of your home.

Some states (Colorado?) passed legislation that said if someone is inside your home illegally he is presumed to intend to harm you and you can use deadly force, even without him showing a threat. That's new and different. But that isn't most states.

 

[WayneWong]

The Mass law does not presume that the invader intends to do serious harm unlike other normal states.

From a tactical perspective, I would have just sat tight ready to defend myself inside the house and would have called police to handle the car thieves. I'm assuming the carport was on the other side of an exterior wall.

 

[M1911]

The Mass law does not presume that the invader intends to do serious harm unlike other normal states.

While some states make that presumption, I do not believe that most make that assumption. And that change is recent (in the last 10 years or so). The castle laws have been around for many decades.

 

[WayneWong]

I love these discussions.

I believe in Mass., it would be a positive defense that an invader had the intent, ability, and opportunity to harm the occupants of the house. It would have to be shown in Mass., where in certain other states, such as SC and FL, it would automatically be presumed that the invader was there to harm the occupants.

In Mass. we are not required to escape as we used to. But you really aren't protected by the so called Mass. castle doctrine when the boot makes it's first appearance through the door. I think you would need to see the knife or hear the threat, etc.

I also understand that the court expects you to be completely blame free in any altercation that ends in deadly force. That's why when you are attacked you yell "Get Away, leave me alone." instead of "One more step you &^%$^& and I'll kill you."

Consider that if you use that type of language witnesses might consider you an aggressor, and that an assailant might feel threatened and attack you instead of run away. Also consider that drawing a gun with the intent to detain someone may have the opposite effect and cause the BG to feel threatened and attack you. Again, this does not leave you blameless and may have severe consequences in court.

I agree that refusing to comply with a criminal's demands does not place any blame on you.

I guess my point is I would not let my good judgment lapse in my home because I thought I was covered by the castle law.

 

[terraformer]

No, that is not true. If someone grabs for your wallet, you can struggle with them to keep it.


I believe that is a separate issue. If you were being a jerk at a bar, mouthing off, a guy hits you, you hit him, you eventually pull your gun, yes, I think in that situation you may not be able to claim self defense.

But that's not the situation being discussed. You must be an innocent party. But defending your property using reasonable force does not make you the aggressor.

From Andrew Branca's book, "The Law of Self Defense,"


Defending your property is not an unlawful act.

Continuing in the same text:



That said, I would recommend not going outside to stop someone from breaking into your car. It just isn't worth it, IMHO.

The MA MGL for battery makes no mention of any affirmative defense nor does it scope battery to mean the guy "who started it". The definition for battery makes no mention of defense and in fact only has as it's required intent the desire to harm. I can tell you, if I hit someone I intend them harm, even if they deserved it for taking my stuff. Because of the castle laws here, however lame it is, the use of deadly force has more protection than the use of force. Even your own quote hedges:

The use of nonlethal force, however, is generally accepted as a means of preventing or terminating property crimes (including trespassing).

"Pursuant to the use of physical force in defense of premises is justified to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises."

Now, would every cop out there arrest you in a circumstance like that? Probably not, most have half a brain. Then you have a-holes like the idiots in Manchester-by-the-sea. Generally accepted? It was generally accepted that one would need to commit a violent crime with a gun before being held without bail as the result of the dangerousness hearing when they passed that law. Within 3 months we have seen that fall to pieces.

So in my mind, the MGL prohibits battery and makes no exemption for defense. As a result, it is not OK to defend property (or technically even yourself) in this state with force. Don't take this to be indicative of how I would react in any given situation, but I sure as hell would not say that force is legally allowed in protection of property.

Search the MGLs. "Defense" comes up 77 times on lawlib.state.ma.us. Only twice relevant to firearms or and one is the castle law, the other is liability waiver to gun manufacturers who play ball with the AGs office if the gun is used in defense, suicide, etc. I realize case law is where this becomes important, but once your into case law, you're beyond arrest and have an expensive lawyer at that point.

Best advice is to lay low, avoid things that can lead places you don't want to go and vote for people who will write narrowly tailored laws to protect the innocent.

 

[M1911]

Statute is only one part of the law.

 

[terraformer]

Statute is only one part of the law.

But without it, we deal with "discretion" and that sometimes turns out really bad.

 

[M1911]

But without it, we deal with "discretion" and that sometimes turns out really bad.

There is also common law. Much of the law of self defense is based on common law, not statute.

 

[cekim]

But without it, we deal with "discretion" and that sometimes turns out really bad.

Indeed - that's the principle disease here in MA. Often times "the law" (i.e. MGL) isn't nearly as bad as the regulations or the court decisions...

It's a pickle because I'd argue that police/courts NEED discretion so that we don't arrest 8yo for playground fights or pin "sex offender" labels on teens sending phone messages to each other, but in the end it is "discretion" that has allowed the AG to run completely amok with "safety regulations."

 

[terraformer]

There is also common law. Much of the law of self defense is based on common law, not statute.

I can imagine it now. "Your honor, I defended my person and property in accordance with British Common Law as written in the year of our Lord 1492 and therefore I refuse to recognize the validity of these charges. I will be leaving now!" The judge responds "Yes, you will be leaving now. Bailiff!"

 

[cekim]

I can imagine it now. "Your honor, I defended my person and property in accordance with British Common Law as written in the year of our Lord 1492 and therefore I refuse to recognize the validity of these charges. I will be leaving now!" The judge responds "Yes, you will be leaving now. Bailiff!"

"Christopher Columbus did not not die on the cross so that I could be rail-roaded here today your honor"