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Re: “Tragic lesson for all of us

CSaction wrote: "Colorado revised statute 18-1-704.5 is very specific: "reason to believe that an unlawful and forcible entry has occurred". (that's past tense for the literate) NO entry had occurred here. It goes on to specify: "when that other person has made an unlawful entry into the dwelling". (past perfect) No entry was made. Colorado has an "across-the-threshold" standard in it's law, and this victim had NOT crossed the threshold. He did NOT enter the dwelling, and was accidentally at the wrong house trying to get in what he thought was his own house, "in good faith"." Actually, the above is pretty much entirely untrue. Here's the complete text of the statute: "Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant." In this case, an unlawful entry was made by breaking a window and inserting a part of the body inside the dwelling. The law does not require that the full body cross the threshold. In fact, in People v. Young, being on the porch attempting entry through the door was sufficient to fulfill that prong of the law. Any intrusion upon the dwelling place, no matter how slight, is sufficient to prove entry. The state trespass laws make this explicitly clear, and the same definition of "entry" applies here. The entry was forcible and with violence (breaking of the window), not an "accidental" or "good faith" entry. Walking in an open or even unlocked door is "accidental" and "in good faith." Breaking windows and trying to unlock the door from the inside is not. It's prima facie evidence of a violent robbery attempt. The homeowner does not have to inquire of the intruder whether he's drunk and at the wrong house. To require such an inquiry is to jeopardize homeowners facing home invasion robberies. Given a violent attempt at entry, it is reasonable to believe that the intruder intended to commit a crime other than the unlawful entry, such as assault or armed robbery, and the violence of the entry is sufficient evidence of an intent to use violence against an occupant to justify the use of deadly physical force under the statute. Any inquiry into the "intent" of the intruder is focused on the reasonable beliefs of the VICTIM based on the observed facts at that instant, not the conduct or state of mind of the intruder. Homeowners are explicitly permitted to act upon appearances and to make reasonable judgments about their safety when in their homes. "The law also states the occupant is "justified in using any degree of physical force". This includes lethal force, but is NOT limited to killing someone. Of course these "Dirty Harry" wannabe soldiers of fortune are NOT looking for an excuse to say, "I have a gun", "I will shoot you if you come inside", to wound someone to stop them, or the horribly unsatisfying and emasculating warning shot." Nobody should fire warning shots. Warning shots, or verbal warnings are not required by law. Even the police don't fire warning shots. It's way too dangerous. You are responsible for every round you fire, so you'd better make sure each and every one goes where you intend it to go. Besides, firing warning shots is bad tactics. Shooting to wound is just as bad, if not worse. First, it's extremely difficult to "shoot to wound" under the best of circumstances, much less at night, after being suddenly and violently awakened by a violent intruder trying to break in. Second, wounding an intruder does not stop him from shooting back if he's armed, and not knowing if he's armed, it is bad tactics to do anything other than shoot to center mass and continue shooting until the assailant is down. If you have legal justification to use deadly physical force, it means that your life is in imminent danger, and you'd better put a stop to the threat as surely and as quickly as possible, which is why Tasers and pepper spray are poor substitutes for a firearm. Tasers have two shots and frequently malfunction, and pepper spray may or may not do the job. A firearm, when used properly, is nearly 100% effective at terminating the threat. If I'm inside my home, and someone is trying to violently break in, I'm not going to announce anything, because doing so unnecessarily reveals my position to the intruder and/or his cohorts. If I'm a woman, it's also going to give the intruder information that I don't want him to have. I'm going to take a position of cover and/or concealment and use the degree of force reasonably necessary to terminate the threat without any warning whatsoever. "No, they are looking for the excuse to kill someone legally, just like the title says, it would make their day to KILL. A daydream come true. A movie fantasy come to life. They are NOT looking for a way to help the police and hold someone at gunpoint to be arrested and tried within the laws. No, every perceived crime is a capital crime, with no jury, no due process, no punishment other than death." This is the most asinine hyperbole I've heard recently. There is no evidence whatsoever that the homeowner, or indeed any person who has been found to be immune under this law, has any "daydreams" about killing anyone. It's going to cost this homeowner in the neighborhood of $50,000 minimum no matter what the outcome of the criminal case. The idea that this homeowner was sitting in his chair staring at the back door waiting for someone to break in so he could kill someone is preposterous. This is pure, undiluted anti-gun propaganda. Guess who coined the term "make my day law?" The liberal, anti-gun, pro-criminal legislators at the state house, aided and abetted by the liberal, gun-hating press. And no, when you violently attack people, or lead them to believe you are going to do so in their own home, you don't get due process, you get self-defense. If you live through your malfeasance, then you get due process. But to suggest that people be required to compromise their safety and their lives in order to grant criminals dispensation to face a jury is ludicrous and would be laughable if it wasn't so offensively self-righteous and evil. Go have a look at how many actual home invasion robberies using extreme armed violence there have been in Colorado Springs in the last year and you'll get some perspective on how "reasonable" it is to shoot an intruder who is trying to violently break in to your home. When such things happen, you don't have six minutes to wait for the police. You're lucky if you have six seconds to react. It's the worst sort of arm-chair quarterbacking to judge the intent of a homeowner who is defending his family, and those who malign them are beneath contempt.

Posted by Eaglerancher on 01/12/2009 at 3:59 PM

Re: “Tragic lesson for all of us

I'd have to agree. Ranger Rick seems to have an obsession with Wayne Laugesen. He seems more interested in bashing Laugesen than in exploring the issue of armed homeowners and the nuances of the law. Since he's unable or unwilling to do so, let me give it a go. The real question here is whether the kid was "in" the house, and thus whether the "Castle Doctrine" law applies. In one case in Denver, the shooting occurred on the porch of the home, and the DA (Governor Ritter as I recall, who was one of the most anti-gun, pro-criminal DA's in Colorado history) tried to prosecute the homeowner, but the court decided that the "castle doctrine" law did apply to porches, and therefore the homeowner was immune. There are two different self-defense laws at bar here: First, there is the "castle doctrine" law which says that a homeowner is immune from both criminal and civil prosecution if the following elements are present: An intruder makes an uninvited entry into a residence; and The intruder has an intent to commit a crime within the residence OTHER than the uninvited entry, and; The homeowner believes that the intruder is going to use ANY degree of physical force against ANY occupant of the residence, no matter how slight. All of those elements must be present before the "castle doctrine" law applies. However, there is another statute that must be taken into consideration, and that is the "use of deadly physical force" statute. This statute applies to all persons at all times and in all places, including in the home. It says that: A person may use deadly physical force only in defense of a person, and; The person must reasonably believe that his life, or the life of another person is in imminent danger of death OR SERIOUS BODILY HARM, and; He must believe that a lesser degree of force would be inadequate to stop the threat. So, even if the victim was not technically "in" the house (though I believe it will be ruled that he was), if the homeowner reasonably believed that his life or the life of a member of his family was in imminent danger of death or serious bodily harm, and that a lesser degree of force would have been inadequate, then he would be justified in shooting even though the perpetrator was not yet inside the residence. The law would not require you to wait for a gang of armed thugs approaching your house with manifest intent to cause you harm to actually enter your home before you would be allowed to defend yourself. Now, from the perspective of a former police officer and detective, now retired, I can tell you that if someone is trying to break into my house in the middle of the night, I make the reasonable inference that they are intent on harming me, because to come to any other conclusion in the few moments I have to make a decision and react to the threat, is to give up any advantage I might have, thereby allowing a potentially violent criminal to gain entry to my home and do me, or my family, harm. Given my years of tactical training, I would be likely to take a defensive position and wait to see if the person gains entry, which would confirm his intent to commit a violent crime, before shooting, but I'm a trained professional, and will be held to a higher standard of care than your average homeowner. So, the question is going to come down to two things: Was the victim "inside" the house from the legal perspective? I'd say yes. As soon as any part of your body enters the "close", which is the perimeter of private property, according to trespass law, you have committed a crime. Thus, if you step over a fence onto private property, it doesn't matter how far you intrude, any intrusion, no matter how slight, even to the extent of causing a projectile to fly into the landowners airspace, is a criminal offense under the trespass laws. I cannot see how it would be any different when it comes to "uninvited entry" to a residence. If you stick one fingernail inside the outermost perimeter of the house, and certainly if you are breaking windows and are trying to break down doors, you have legally "entered" the domicile. Having made an uninvited entry, we must now ask if there was an "intent to commit a crime other than the uninvited entry" in the actions. If the front door had been opened, and the victim had simply walked in uninvited and stood there, there would be no justification under the castle doctrine law to kill him. But, in this case, the victim made a VIOLENT entry into the house by breaking a window and trying to break down a door. Criminal mischief is a crime, as is vandalism. The ambiguity in the law is that it says that the intruder must have the "intent" to commit some crime other than the uninvited entry, but how is the homeowner to discern the "intent" of someone breaking into their home in the night, when he has only seconds to react or face imminent harm if the intruder makes it all the way inside? My professional judgment is that the very act of making a violent breaking and entering of a domicile, particularly at night, is in and of itself prima facie evidence to believe that one's life and safety are in jeopardy. The last element is the "use of any degree of physical force" element. Again, a violent breaking and entering I believe meets both the "other crime" and "any degree of force" tests. Remember that the law is specific in saying that when it comes to the physical force element, it is not a "reasonable belief" test, the law merely requires that the homeowner THINKS any force is going to be used. So, I'd say that all of the elements were met, and that the homeowner was justified in shooting under the castle doctrine law. As for the self-defense law, that would be a matter for a jury to decide. The jury would have to determine if the homeowner's fear for his life was "reasonable" under the totality of the circumstances, and that a lesser degree of force would have been inadequate to terminate the threat. I think this would be much more of a crap shoot, knowing how juries operate, although self defense in the home is usually strongly supported by one's fellow citizens, at least here in Colorado Springs. So, as tragic as this event is, I don't see laying any responsibility upon anyone other than the deceased victim, or perhaps the tavern owner who served him while he was visibly intoxicated, if such a thing happened. And Ranger Rick's diatribe against Wayne Laugesen for advocating that people defend themselves in accordance with the law is juvenile posturing and extremely poor journalism from someone who clearly has some sort of deranged vendetta against a fellow journalist. I'd be interested to find out why he's got such a hard-on for Laugesen. Somebody should write a story about that.

Posted by Eaglerancher on 01/09/2009 at 4:45 AM

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