Using gun in self defense in MA question?

[Len-2A Training]

Sure, you should be concerned with the responsibilities, but treating you as a criminal for defending yourself is quite another thing. If you are deemed by the investigators to have had a "clean shoot", then that SHOULD be the end of it from the state's perspective. Obviously we don't have castle law here, so you still have a risk of lawsuit from the perp. or his family, but that is a separate issue altogether.

As an NRA Instructor who teaches Personal Protection series courses, even the NRA material states that you are likely to be treated like a criminal after a SD shooting. This is nationally, not just in MA. Likewise the much lauded "Do Not Talk with the Police" video says the same thing and that was done far away from MA (lawyer and LEO presentation). The big difference in MA seems to be how long it takes to be exonerated and the level of confiscation done in MA . . . but it is no picnic no matter where this occurs.

 

[ThePreBanMan]

Obviously we don't have castle law here, so you still have a risk of lawsuit from the perp. or his family, but that is a separate issue altogether.

Actually we do have castle doctrine in Mass. Its stand your ground we don't have.

 

[Rob Boudrie]

Actually we do have castle doctrine in Mass. Its stand your ground we don't have.

The MA castle doctrine does not contain a declaration that unlawful entry into your home is cause to believe you are in fear for your life or bodily harm (something that is present in other state's castle laws)

 

[xcom]

So after all is said and done, let's say they did take my stash after I shot being in fear of imminent bodily harm from an armed assailant. What is the best option for my expensive collectable firearms? Can my brother with an LTC-A pick up my property and hold it (although you can only do 4 transfers to a non-dealer a year)? Can an FFL pick them up and hold them on "consignment?"

 

[M1911]

As an NRA Instructor who teaches Personal Protection series courses, even the NRA material states that you are likely to be treated like a criminal after a SD shooting. This is nationally, not just in MA. Likewise the much lauded "Do Not Talk with the Police" video says the same thing and that was done far away from MA (lawyer and LEO presentation). The big difference in MA seems to be how long it takes to be exonerated and the level of confiscation done in MA . . . but it is no picnic no matter where this occurs.

This is something that a lot of people here don't seem to get. If you get in a self-defense shooting in this country, the headlines in the paper on the next day are not going to read Good guys - 1, Bad guys - 0. A citizen has been shot and the state will investigate that. The DA may decide to leave it up to a Grand Jury to decide whether or not to indict. So even if you never go to trial, the situation is likely to be lengthy, expensive, and very, very trying.

 

[DrNVP]

Actually we do have castle doctrine in Mass.

No we don't. What's written in the MA laws is not true castle doctrine.

 

[xcom]

No we don't. What's written in the MA laws is not true castle doctrine.

My recollection is that you do not have a duty to retreat in your home unlike everywhere else in MA.

 

[M1911]

My recollection is that you do not have a duty to retreat in your home unlike everywhere else in MA.

That is correct. For the criminal side, see MGL Chapter 278 Section 8a:

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.

and for the civil side, see MGL Chapter 231 Section 85u:

Section 85U. No person who is a lawful occupant of a dwelling shall be liable in an action for damages for death or injuries to an unlawful occupant of said dwelling resulting from the acts of said lawful occupant; provided, however, that said lawful occupant was in the dwelling at the time of the occurrence and that he acted in the reasonable belief that the person unlawfully in said lawful dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said lawful occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall not be a duty on said occupant to retreat from such person unlawfully in said dwelling.

From the wording of these laws, my guess is that legal action surrounding the use of deadly force would concern the following issues:

- Was the defendant lawfully in the dwelling?
- Was the perp unlawfully in the dwelling?
- Was the defendant's belief that the perp was about to inflict great bodily injury or death reasonable?
- Did the defendant use reasonable means to defend themselves?

Unless all of those questions are answered "yes", you would be in deep kimchee.

ETA: I'm not a lawyer and this isn't legal advice.

 

[drgrant]

No we don't. What's written in the MA laws is not true castle doctrine.

Sort of. The duty to retreat isn't there, but there's no de-facto deadly force allowance like some states have.. (EG, guy breaking in is presumed to be always a threat legally worthy of a deadly force response by default... that is not the case in MA, at all. )

-Mike

 

[xcom]

Sort of. The duty to retreat isn't there, but there's no de-facto deadly force allowance like some states have.. (EG, guy breaking in is presumed to be always a threat legally worthy of a deadly force response by default... that is not the case in MA, at all. )

-Mike

True, you still need a reasonable belief that the per will badly harm or kill you or a person in the dwelling.

 

[DrNVP]

Sort of. The duty to retreat isn't there, but there's no de-facto deadly force allowance like some states have.. (EG, guy breaking in is presumed to be always a threat legally worthy of a deadly force response by default... that is not the case in MA, at all. )

-Mike

Yea, and that's a huge difference. Plus, we aren't protected against frivolous civil lawsuits even if the shooting is justified.

 

[Laderbuilt]

The MA Gun Law seminar is a real good start for anyone . . . I've had LEOs and lawyers in that seminar and they all said that they learned a lot.

If you have some handgun experience, the NRA Personal Protection in the Home/Outside the Home courses are excellent with lots of range-time in addition to lecture. I'm teaching PPIH this Sunday and can squeeze a few more people in the class if interested.

More details on these courses (including dates/times) can be found at my website (link in signature below).

Send me an Email (off username) if you want to follow up, I can't do the follow-up on courses thru PMs.




It's a good question but since antiques can be traded/sold/given away like a can of soda it probably wouldn't be an issue if nobody said anything (however IANAL) and no FA-10 was done on them (yes, I'm sure some dealers would do FA-10 and NICS on antiques in MA!).

Will do once I get to a real CPU.

 

[DemonChronicles]

MA Castle Doctrine

Massachusetts General Law, Chapter 278, Section 8(a): 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.

A couple of things to note:

Deadly Force: Force likely or intended to cause death or great bodily harm whether or not death actually occurs.

Self Defense: In general, the right to protect one’s person against an injury attempted by another. In MA the courts have taken the position that self defense using deadly force is justified only if the individual being attacked has a reasonable belief that he or she is in danger of death or serious bodily harm. Otherwise reasonable force (which is non lethal force such as fists) can be used to repel a non-lethal attack. However, as applies to castle doctrine, reasonable force is not protected and so therefore cannot be relied upon if someone enters your home and threatens you with only fists.

Dwelling: A place where an individual is temporarily or permanently residing. It has to be a permanent structure, your home, apartment, cottage, and under some circumstances can include a hotel/motel room. Note: a dwelling cannot be a motor home, tent, or boat because they are not permanent structures. Anyone using deadly force in one of these will not be protected by this law.

An ‘occupant’ is an individual who has some sort of possessory interest in the property, i.e. a tenant or owner.

If a criminal is unlawfully in your dwelling, and shows the intent to inflict serious bodily injury or death upon you or any other individual lawfully in your dwelling there is no duty of said occupant to retreat from the criminal unlawfully in that dwelling.

Please note: If the criminal intruder is not threatening death or serious bodily injury, the occupant will not be covered by this law and could be charged with murder or manslaughter for using deadly force against said criminal. To be protected by this law an occupant that is prosecuted for using deadly force has the burden of producing a claim of self-defense. Once the occupant shows proof it will be upon the prosecution to prove otherwise.

 

[Rob Boudrie]

and for the civil side, see MGL Chapter 231 Section 85u:

Note that there is no provision in the civil side that states that acquittal, non-indictment or nolle prose prohibits a civil "start from scratch" trial after conclusion of a criminal trial. Since the civil standard is lower (preponderance of the evidence vs. beyond a reasonable doubt), it is quite likely a MA judge might not even allow the fact that the defendant was found not guilty to be entered into evidence.

For all practical purposes, the civil part of the castle doctrine is all but useless in protecting involved subjects from financial ruin.

 

[Terminator03]

Note that there is no provision in the civil side that states that acquittal, non-indictment or nolle prose prohibits a civil "start from scratch" trial after conclusion of a criminal trial. Since the civil standard is lower (preponderance of the evidence vs. beyond a reasonable doubt), it is quite likely a MA judge might not even allow the fact that the defendant was found not guilty to be entered into evidence.

For all practical purposes, the civil part of the castle doctrine is all but useless in protecting involved subjects from financial ruin.

Sweet. In almost all cases, even if the perp doesn't survive there is bound to be some relative looking to cash out on his good name, and the fact that he was turning his life around.

- - - Updated - - -

MA Castle Doctrine

Massachusetts General Law, Chapter 278, Section 8(a): 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.

A couple of things to note:

Deadly Force: Force likely or intended to cause death or great bodily harm whether or not death actually occurs.

Self Defense: In general, the right to protect one’s person against an injury attempted by another. In MA the courts have taken the position that self defense using deadly force is justified only if the individual being attacked has a reasonable belief that he or she is in danger of death or serious bodily harm. Otherwise reasonable force (which is non lethal force such as fists) can be used to repel a non-lethal attack. However, as applies to castle doctrine, reasonable force is not protected and so therefore cannot be relied upon if someone enters your home and threatens you with only fists.

Dwelling: A place where an individual is temporarily or permanently residing. It has to be a permanent structure, your home, apartment, cottage, and under some circumstances can include a hotel/motel room. Note: a dwelling cannot be a motor home, tent, or boat because they are not permanent structures. Anyone using deadly force in one of these will not be protected by this law.

An ‘occupant’ is an individual who has some sort of possessory interest in the property, i.e. a tenant or owner.

If a criminal is unlawfully in your dwelling, and shows the intent to inflict serious bodily injury or death upon you or any other individual lawfully in your dwelling there is no duty of said occupant to retreat from the criminal unlawfully in that dwelling.

Please note: If the criminal intruder is not threatening death or serious bodily injury, the occupant will not be covered by this law and could be charged with murder or manslaughter for using deadly force against said criminal. To be protected by this law an occupant that is prosecuted for using deadly force has the burden of producing a claim of self-defense. Once the occupant shows proof it will be upon the prosecution to prove otherwise.

Thanks for posting this, saved for future reference.

 

[DemonChronicles]

That's from the GOAL sight, BTW.

 

[GBH2]

A lot of good posts here in the last couple of pages.

In reality, what happens to you will depend a lot on local law enforcement, Who you are, Who you know, and how good an Attorney you can hire.(... AND keeping your mouth shut!)

 

[mike59271]

Just gimme some liberty please! A lot of amazing information that I was not aware of has been brought to light in the last few pages, I will continue to probe into this and garner a greater understanding of the law. A hefty responsibility indeed to CCW!!

It should be simple. If someone breaks into your home, you should have every right to use deadly force. The backbone of this nation is personal property and the sovereignty of the individual. I am amazed how murky the legal waters are on an issue like this...

 

[George D]

I'd like to know the outcome as well.

I believe she eventually did, but it was a long drawn out process.

 

[TOM1960]

I'd like to know the outcome as well.

Decades ago, two Lawrence businessmen were forced to shoot and kill assailants who entered their premises and attacked them. One was an automobile radiator repair shop. I knew both the felon assailant (went to school with him when he was just starting to get weird!) and the son of the man who was in the unfortunate position of having to fire in self-defense (also a fellow student). He was sued, his wife left him and went back to Canada, he lost his house, his business and his life savings.

The second incident involved a guy I knew who ran a neighborhood convenience store. One hot July day, a man dressed in a trenchcoat entered the store and Benny asked him if he needed anything. The guy said nothing, drew a 12" chef's knife and charged Benny. Just as the guy was about to run Benny through, he grabbed his gun and fired, killing the assailant (who was recently released from Danvers State Hospital after attacking his own mother with a knife). Benny was sued by the dead man's family. He lost his store, his house and his life savings. His wife re-connected with an old high school boyfriend and ran off with him. Last time I saw Benny, he was behind the cash register at a business owned by his cousins, most likely making crap for a salary. Two justified shootings, two felons dead, two businessmen with ruined lives.

 

[xcom]

Decades ago, two Lawrence businessmen were forced to shoot and kill assailants who entered their premises and attacked them. One was an automobile radiator repair shop. I knew both the felon assailant (went to school with him when he was just starting to get weird!) and the son of the man who was in the unfortunate position of having to fire in self-defense (also a fellow student). He was sued, his wife left him and went back to Canada, he lost his house, his business and his life savings.

The second incident involved a guy I knew who ran a neighborhood convenience store. One hot July day, a man dressed in a trenchcoat entered the store and Benny asked him if he needed anything. The guy said nothing, drew a 12" chef's knife and charged Benny. Just as the guy was about to run Benny through, he grabbed his gun and fired, killing the assailant (who was recently released from Danvers State Hospital after attacking his own mother with a knife). Benny was sued by the dead man's family. He lost his store, his house and his life savings. His wife re-connected with an old high school boyfriend and ran off with him. Last time I saw Benny, he was behind the cash register at a business owned by his cousins, most likely making crap for a salary. Two justified shootings, two felons dead, two businessmen with ruined lives.

Welcome to the Commonwealth of Massachusetts. I just do not know what juries are finding for the plaintiffs. Looks like jury nullification of self-defense...

 

[Rider]

Welcome to the Commonwealth of Massachusetts. I just do not know what juries are finding for the plaintiffs. Looks like jury nullification of self-defense...

You don't understand: criminals and madmen aren't the problem. We know how to deal with them. We cannot have people walking around independent of the law acting in their own interests. There just isn't a place for them in this society.

This is the kind of thread that can put me in a funk all day.

 

[Beretta92FS]

.

 

[newenglandjeff]

After reading the last few pages, simply walking away after a clean shoot, is looking like a pretty good option.

 

[Rider]

After reading the last few pages, simply walking away after a clean shoot, is looking like a pretty good option.

It does, doesn't it?

Your best case scenario is that you are financially destroyed, assuming that you have wealth with which to defend yourself. The legal/justice system's purpose is to employ lawyers and transfer private wealth to law firms. It is not about justice, unless you consider spending hundreds of thousands of dollars on a lawsuit that you 'win' to be justice.

ETA: Alternatively, moving someplace where there is a strong castle doctrine and the law respects your right to defend yourself may not be a bad idea, if we weren't all opposed to 'running away'.

ETA2: don't forget your shell casings.

 

[M1911]

After reading the last few pages, simply walking away after a clean shoot, is looking like a pretty good option.

There will be a witness that you didn't see, and evidence linking you to the scene. Walking away will make the police believe that you hid because you thought you were guilty.

 

[Rider]

There will be a witness that you didn't see, and evidence linking you to the scene. Walking away will make the police believe that you hid because you thought you were guilty.

Just to play Devil's advocate, are you more likely to come out better calling the police to turn yourself in, or taking your chances with the police investigative process, which I think has terribly low arrest and conviction rates for many crimes, including murder? Practically, not hypothetically?

 

[newenglandjeff]

There will be a witness that you didn't see, and evidence linking you to the scene. Walking away will make the police believe that you hid because you thought you were guilty.

There will be a witness that you didn't see, and evidence linking you to the scene. Walking away will make the police believe that you hid because you thought you were guilty.

It's a game time decision for sure. I'm not saying I would do it, but I would consider it. It seems like the cops are going to proceed as if you are the guilty party regardless. I see the upside of walking away, I don't see the downside.

 

[Mark L]

If you shoot a BG, and he goes down stone cold dead, is there a law requiring you to notify police of your not having commited a crime?

Excellent question. Anyone know the answer?

 

[M1911]

Just to play Devil's advocate, are you more likely to come out better calling the police to turn yourself in, or taking your chances with the police investigative process, which I think has terribly low arrest and conviction rates for many crimes, including murder? Practically, not hypothetically?

I took LFI-1 and 2 from Mas Ayoob. While many people criticize him, Ayoob has testified in more self defense cases than any of us. His point was that the first person to call the police is the person that they typically believe to be the victim. If you run away, they believe you are guilty.

If you don't run away and it is a good shoot, you have a very good chance of not going to jail. If you do run away and they catch up to you, chances are you will spend the rest of your life in jail, regardless of whether the shoot was "good".

On the murder clearance rate, I believe it is actually pretty good in most of the country. Where it is bad is in the inner cities, where you have the "don't snitch" culture. Here in MA, the clearance rate is around 60%. I suspect that most of the uncleared cases are drug shootings and serial killers. Chances are, if you are attacked it won't happen in the inner city and there will be witnesses.

Another thing to remember is that about 80% of people shot with a handgun survive. If you are attacked while you are out and about, chances are that even if you shoot the perp, he will live. You want to be the one who calls the cops and tells your story before he tells his.