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Texas - Homeowner Fatally Shoots Intruder

SecondAmdFirst said:
What exactly is the law here in MA??? I thought we still fell under the "castle" law, which meant if someone illegally enters your home, all bets are off. Is that still the case? I've heard others mention "if you can leave you must", but that is very subjective. I CAN jump out the second story window, but I'm not going to.
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No, that isn't it. You don't have a duty to retreat. Big difference.
 
SecondAmdFirst said:
What exactly is the law here in MA??? I thought we still fell under the "castle" law, which meant if someone illegally enters your home, all bets are off. Is that still the case? I've heard others mention "if you can leave you must", but that is very subjective. I CAN jump out the second story window, but I'm not going to.
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+1, im curious too. Ive heard a lot of weird things, but I think a mans home is his castle is over in mass now. I thought I heard force needs to be met with the same type of force. Interested in how it goes now if anyone can share.
 
http://www.mass.gov/legis/laws/mgl/278-8http://www.mass.gov/legis/laws/mgl/278-8a.htma.htm

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.
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BTW, this provides an "affirmative defense", not immunity from prosecution.
 
Kevlar said:
http://www.mass.gov/legis/laws/mgl/278-8http://www.mass.gov/legis/laws/mgl/278-8a.htma.htm



BTW, this provides an "affirmative defense", not immunity from prosecution.
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So here is the rub......"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"

How is that defined? Do you have to see a weapon? Does it have to be an "equal" weapon? What if you could jump out the window?
 
SecondAmdFirst said:
So if someone break into my home, no matter what, I am in the clear?
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No, the normal rules apply. If the guy says he's there to sell you girl scout cookies and you kill him, you are not just an idiot, but one whose salad will be tossed for the next 25 years. There has to be a threat. But the key is you don't have to run away. You don't have to avoid the situation. If someone is breaking in, you don't need to find an exit. You can go to them and tell them to leave. If they attack, then you can defend yourself without it being considered that you escalated the situation. On the street, if you don't make reasonable efforts to avoid the conflict, you can be considered to have contributed to or escalated the interaction and you won't be considered to have defended yourself.
 
terraformer said:
No, the normal rules apply. If the guy says he's there to sell you girl scout cookies and you kill him, you are not just an idiot, but one whose salad will be tossed for the next 25 years. There has to be a threat. But the key is you don't have to run away. You don't have to avoid the situation. If someone is breaking in, you don't need to find an exit. You can go to them and tell them to leave. If they attack, then you can defend yourself without it being considered that you escalated the situation. On the street, if you don't make reasonable efforts to avoid the conflict, you can be considered to have contributed to or escalated the interaction and you won't be considered to have defended yourself.
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I consider anyone willing to invade an occupied home a lethal threat. I don't think I should wait to see if they're going to shoot me.
 
SecondAmdFirst said:
I consider anyone willing to invade an occupied home a lethal threat. I don't think I should wait to see if they're going to shoot me.
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Then move out of MA and move to... Actually, just about no other state would work in your favor if the PD gets a hard-on for you. You would be better off in TX but even there, you are at the whims of the justice system. The castle doctrine is not a "shoot first, ask questions later" law despite the brady campaign's best efforts.
 
terraformer said:
Then move out of MA and move to... Actually, just about no other state would work in your favor if the PD gets a hard-on for you. You would be better off in TX but even there, you are at the whims of the justice system. The castle doctrine is not a "shoot first, ask questions later" law despite the brady campaign's best efforts.
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Not implying shoot first, but if the person doesn't respond to "get the f*ck down on the ground"?
 
SecondAmdFirst said:
Not implying shoot first, but if the person doesn't respond to "get the f*ck down on the ground"?
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You mean, should the guy acquiesce to your false imprisonment of him at gun point? No. There was a story posted a few years ago about a college student in Boston without an LTC (from another state) who had a firearm in his apartment. Someone broke in and he was home. He drew down on the guy. The guy very calmly put his hands up and sauntered out all the while telling the student he was not a threat. The student played that perfectly because he didn't shoot. Had he, he would be in jail right now.
 
terraformer said:
You mean, should the guy acquiesce to your false imprisonment of him at gun point? No. There was a story posted a few years ago about a college student in Boston without an LTC (from another state) who had a firearm in his apartment. Someone broke in and he was home. He drew down on the guy. The guy very calmly put his hands up and sauntered out all the while telling the student he was not a threat. The student played that perfectly because he didn't shoot. Had he, he would be in jail right now.
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Technically it would be a citizen's arrest. However, if the person wanted to just leave, I obviously wouldn't shoot. Ideally, I would like to have the police catch them, but I would never shoot someone over it.....that is why I pay taxes!! Let the LEO get into it
 
SecondAmdFirst said:
Technically it would be a citizen's arrest. However, if the person wanted to just leave, I obviously wouldn't shoot. Ideally, I would like to have the police catch them, but I would never shoot someone over it.....that is why I pay taxes!! Let the LEO get into it
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And obviously, you simply cannot shoot someone in the back as they are walking away from you and are not a threat to anyone else, either. That's murder.
 
SecondAmdFirst said:
Technically it would be a citizen's arrest. However, if the person wanted to just leave, I obviously wouldn't shoot. Ideally, I would like to have the police catch them, but I would never shoot someone over it.....that is why I pay taxes!! Let the LEO get into it
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Technically it's false imprisonment. A citizens detainment of an individual engaged in a crime only applies to serious felonies and only if the person has witnessed this. Guess what, B&E is not a serious crime in that context.
 
terraformer said:
Define home invasion because in my mind it is no different than breaking and entering.
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Well, that was my question to you. Is there a legal difference in MA between a B&E and a home invasion? If you raid an occupied home is that more serious than just breaking into an empty house? The reason I ask is that someone who comes into an obviously occupied home is a much greater threat.
 
Scrivener said:
How about the difference between occupied and UNoccupied at the time of said incursion?
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I still hadn't gotten him to define home invasion (it's not a term in MA, correct?) so you are jumping ahead some. There is also day v. night here in MA, and armed (which includes arming oneself post entry) v. unarmed, etc and so forth. Please, finish this off because I am getting bored. He seems to think that "all bets are off" if he is in his house. I am trying to impress upon him the only difference that makes is a court approved opportunity to use it as a defense and nothing more so all other ROE is the same as elsewhere.
 
SecondAmdFirst said:
So, legally, is a B&E any different than a home invasion?
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It's different because of the audacity level involved. There are a whole realm of ciriminals who will not break into an occupied house- either because they don't have the balls to do it, or because they don't want to deal with anyone.

Home invasions (of occupied dwellings, where it is easy to detect that someone is home) are a whole different ballgame.

Both are thieves, but home invaders often don't have any compunction against killing or injuring other human beings. That's a pretty big line in the sand.

Case in point- there are many break ins where the person breaking in flees after finding out that there are still people in the house. Those fit into the former category.

FWIW I'm not giving a pass to either class. I won't cry if a plain old thief gets shot the same way a home invader should be shot.... but I think home invaders as a general rule are that much more contemptible.

-Mike
 
terraformer said:
I still hadn't gotten him to define home invasion (it's not a term in MA, correct?) so you are jumping ahead some. There is also day v. night here in MA, and armed (which includes arming oneself post entry) v. unarmed, etc and so forth. Please, finish this off because I am getting bored. He seems to think that "all bets are off" if he is in his house. I am trying to impress upon him the only difference that makes is a court approved opportunity to use it as a defense and nothing more so all other ROE is the same as elsewhere.
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Actually, this was a side question different from what you and I were speaking of earlier. I was just curious if there was a legal distinction on this.
 
drgrant said:
It's different because of the audacity level involved. There are a whole realm of ciriminals who will not break into an occupied house- either because they don't have the balls to do it, or because they don't want to deal with anyone.

Home invasions (of occupied dwellings, where it is easy to detect that someone is home) are a whole different ballgame.

Both are thieves, but home invaders often don't have any compunction against killing or injuring other human beings. That's a pretty big line in the sand.

Case in point- there are many break ins where the person breaking in flees after finding out that there are still people in the house. Those fit into the former category.

FWIW I'm not giving a pass to either class. I won't cry if a plain old thief gets shot the same way a home invader should be shot.... but I think home invaders as a general rule are that much more contemptible.

-Mike
Click to expand...

Well, in my parts, "home invasions" are on the rise. These are generally your local crack addicts that don't give a sh*t about human life. They want something they can sell for crack and don't care about anything else.
 
SecondAmdFirst said:
Exactly...that was my question. Is there a legal difference?
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Yes.

M.G.L. c.265 s.18c - Entry of occupied dwelling while armed; Knowingly enters or stays in a dwelling knowing or having reason to know that one or more persons are present there AND while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within the dwelling whether or not injury occurs, or intentionally causes any injury to any person in the dwelling.
Penalty - 20 years to life, 10 years of which cannot be reduced. No probation or parole.

M.G.L. c.266 s.15 - Unarmed burglary; Breaks and enters a dwelling at night, with the intent to commit a felony or, having entered with such intent, breaks a dwelling in the night time, without (1) being armed, (2) arming himself with a dangerous weapon in the dwelling, or (3) assaulting a person lawfully there.
Penalty - Up to 20 years

M.G.L. c.266 s.14 - Armed burglary; Same elements while armed with a dangerous weapon at the breaking or entry, arming himself in the house, or making an actual assault on a person lawfully there.
Penalty - 10 years to life (15 years to life if armed with a firearm)

M.G.L. c.266 s.16 - Breaking and entering at night; Breaks and enters a building at night with intent to commit a felony.
Penalty - Up to 20 years

M.G.L. c.266 s.18 - Illegal entry (other circumstances); Enters a dwelling at night without breaking or breaks and enters a building during the day, with intent to commit a felony, with no one lawfully there being put in fear.
Penalty - Up to 10 years or up to 2 years plus fine of up to $ 500. If armed with a firearm minimum penalty is 2. 5 years
 
Kevlar said:
Yes.

M.G.L. c.265 s.18c - Entry of occupied dwelling while armed; Knowingly enters or stays in a dwelling knowing or having reason to know that one or more persons are present there AND while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within the dwelling whether or not injury occurs, or intentionally causes any injury to any person in the dwelling.
Penalty - 20 years to life, 10 years of which cannot be reduced. No probation or parole.

M.G.L. c.266 s.15 - Unarmed burglary; Breaks and enters a dwelling at night, with the intent to commit a felony or, having entered with such intent, breaks a dwelling in the night time, without (1) being armed, (2) arming himself with a dangerous weapon in the dwelling, or (3) assaulting a person lawfully there.
Penalty - Up to 20 years

M.G.L. c.266 s.14 - Armed burglary; Same elements while armed with a dangerous weapon at the breaking or entry, arming himself in the house, or making an actual assault on a person lawfully there.
Penalty - 10 years to life (15 years to life if armed with a firearm)

M.G.L. c.266 s.16 - Breaking and entering at night; Breaks and enters a building at night with intent to commit a felony.
Penalty - Up to 20 years

M.G.L. c.266 s.18 - Illegal entry (other circumstances); Enters a dwelling at night without breaking or breaks and enters a building during the day, with intent to commit a felony, with no one lawfully there being put in fear.
Penalty - Up to 10 years or up to 2 years plus fine of up to $ 500. If armed with a firearm minimum penalty is 2. 5 years
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Thank you Kevlar.....I appreciate the info

+10
 
terraformer said:
KBCraig said:
Home invasion in Texas is a very unhealthy hobby. Here's another that just happened:

http://www.khou.com/home/Two-burglar...-84786267.html
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FYI but letter of the law is you can't use deadly force to protect property in TX during the day and this article says the criminals "returned fire" after being fired upon by the homeowner. I hope for his sake the PD and DA are flexible.
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Repelling a home invasion is not protection of property, it's protection of your life. Deadly force is authorized specifically for both robbery and home invasion.

The Texas Penal Code Chapter 9 says:

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON.
(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

By the way, it has been ruled that taking any effort to enter, including raising a window or turning a door knob, is "with force".
 
KBCraig said:
Repelling a home invasion is not protection of property, it's protection of your life. Deadly force is authorized specifically for both robbery and home invasion.

The Texas Penal Code Chapter 9 says:

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON.
(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

By the way, it has been ruled that taking any effort to enter, including raising a window or turning a door knob, is "with force".
Click to expand...

Thank you Craig.
 
terraformer said:
FYI but letter of the law is you can't use deadly force to protect property in TX during the day and this article says the criminals "returned fire" after being fired upon by the homeowner. I hope for his sake the PD and DA are flexible.
Click to expand...

Source? I've never heard anything about differences in daytime/nighttime with respect to Texas Castle Law.
 

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