Quoting pauls42:

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What concerns me from what has been said on this thread about this case is..

a) it's legal to carry concealed weapons

Joe Horn used a 12-gauge shotgun, which is NOT a concealed weapon, so this is irrelevant.

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b) if you see someone committing any offence then you can open fire and kill them?

Now that burglary appears to be a capital offence (i.e. it has the death penalty) what other offences would become capital crimes?

Mr. Horn said he fired because one of the two criminals was coming toward him and he felt threatened.  Poor judgement on the part of the criminal to come at someone with a shotgun in his hands.

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Suppose, whilst wandering past a shop, with your concealed weapon you saw someone pick up a coat and run towards the store entrance - where you are standing. Is this a capital offence punishable by death? (after all you could claim that you were frightened you would be attacked)

(1) You imply that I would intend to kill someone in this situation.  I would suspect that by merely displaying my concealed weapon I could stop the person with the coat until proper authorities arrive.  Many more people are stopped merely by having a gun pointed at them than if they were shot and killed.  That's what is wrong with most of the statistics anti-gunners quote.  They only count cases where the criminal is killed or wounded -- and ignore cases where no shots are fired.

(2) You imply that I would make a false claim of being frightened to justify my actions as if there were no real threat to me in this situation.  Every case is different and it is presumptuous to imply that any claim of fear is false.  Most people who carry a concealed weapon have no intention to kill anyone.

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the age of the vigilante appears to have arrived in America.

Unfortunately, as has often been pointed out, it is not the responsibility of police to protect individuals or individuals' property. The job of police is to maintain order and investigate crimes. They do not have the time or manpower to protect individual citizens or property.  So it is ultimately up to the citizen to do so.  Defending one's person or property is hardly vigilantism.

Quoting Lord Of The Sith:

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I am sorry pauls that is just stupid.  Getting a CCW requires you to be a reasonable person.  In AZ there are 16 hours of classes.  No reasonable person is going to shoot a shoplifter.

But hasn't the Grand duty, at least implicitly, confirmed that they believe that Mr Horn was a reasonable person?

And what is the difference between someone fleeing from a shop and someone fleeing from another house?

If Mr Horn applied for a CCW now, would they grant him one and if not, is the requirement on the police(do they grant them) to provide a reason to deny the request (in other words is the presumption that everybody is reasonable unless the police say otherwise)? Or do they not have to give a reason?

Pauls,

I can't speak to the specific requirements of Texas law but I am familiar with Michigan's CCW permit law to some degree and I believe they are similar.

There are a number of requirements that an applicant for a CCW permit must meet -- minimum age, have successfully completed approved gun training, lack of a criminal record (see below for more detail), lack of mental health determination, and lack of a restraining order against them. These are the main limitations to getting a permit.

Also the criminal record provision is detailed -- it's forever prohibited if you have a felony and something like 10 or 5 or 2 years for certain misdemeanors (if you had a drunk driving within 10 years you can't get a permit).

The permits are granted by the county of residence after an investigation to determine the issues I mentioned above. The person must pay a fee as well and renew the license every so often - I think it was a couple of years?

There is no determination of "reasonableness" of the individual involved. The process is involved but you are entitled to a permit if you meet the specified criteria. I believe there is a limited exception for the county to decline but it has to be based on something substantive and not a general feeling.

I think Lord's comment was directed to the fact that no one who passes through all of those hoops is likely to be a nutcase who shoots shoplifters. Since 38 of our 50 states have a fairly permissive CCW permit process and I have not heard of a case like that it seems that the process generally works.

Pauls:

There is an old adage regarding firearms that is as true today as it was when it was first uttered. IF you must discharge your weapon, do not shoot to wound...shoot to KILL.

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Quoting Darxon:

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Quoting Lord Of The Sith:

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I am sorry pauls that is just stupid.  Getting a CCW requires you to be a reasonable person.  In AZ there are 16 hours of classes.  No reasonable person is going to shoot a shoplifter.

Will a reasonable person shoot a burglar coming out of another house?

If not, was Mr. Horn unreasonable or was it the Grand Jury that let him walk?

We are talking about two separate laws.  I never saw anything that claimed he held a CCW.  The law that protected him is the Castle Doctrine which is totally different.

Again Pauls thanks for the red arrow for disagreeing with you.  It shows you still haven't changed.

Topic:
CRIMINAL LAW; REAL PROPERTY; SELF DEFENSE;
Location:
CRIMINAL LAW;

OLR Research Report



January 17, 2007
 

2007-R-0052

CASTLE DOCTRINE AND SELF-DEFENSE

By: Christopher Reinhart, Senior Attorney

You asked about the “castle doctrine,” how it acquired its name, how many states have adopted bills on it, and any information about its effect in states that have adopted it.

SUMMARY

Generally, the “castle doctrine” provides that someone attacked in his home can use reasonable force, which can include deadly force, to protect his or another's life without any duty to retreat from the attacker. It is defined differently in different states. The name appears to have its origin in the English common law rules protecting a person's home and the phrase “one's home is one's castle. ”

In recent years, a number of states have adopted or considered bills referred to as “castle doctrine” bills. These bills expand the circumstances where a person can use self-defense without retreating and contain other provisions, such as immunity for someone who legally uses force in self-defense. A Washington Post article states that the Florida bill was given the name the “castle doctrine” by Florida lobbyist Marion P. Hammer, a former National Rifle Association president (“Florida Gun Law to Expand Leeway for Self-Defense,” Washington Post, April 26, 2005). These bills have also been called “stand your ground” bills.

We found 15 states that adopted a “castle doctrine” bill in the last two years. These states are: Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Oklahoma, South Carolina, and South Dakota. A number of other states considered bills on this topic. In New Hampshire, the legislature passed a “castle doctrine” bill but the governor vetoed it.

These “castle doctrine” bills contain a number of different provisions and the states vary in which provisions they adopted. Some of these expanded the circumstances where force could be used in self-defense without a duty to retreat, some adopted provisions on criminal or civil immunity for legally using force in self-defense, and some contained all of these provisions.

We could not find any studies on the impact of these laws. A June 11, 2006 Orlando Sentinel article stated that it was too early to see the impact of Florida's new law, which took effect October 1, 2005, and there were no statewide statistics on the number of self-defense claims before or after that date. The newspaper found 13 people who used self-defense in central Florida over five months (resulting in six deaths and four people wounded). In the investigation of the 13 people who used self-defense, three were charged with a crime, five cleared, and the others were still under review. The newspaper stated that police and prosecutors handled investigations of these cases in a range of ways. A copy of this article is attached (“Cases Involving the New Deadly Force Law are Handled in a Broad Range of Ways,” Orlando Sentinel, June 11, 2006).

The sections below describe provisions in the “castle doctrine” bills and Connecticut's laws on self-defense.

“CASTLE DOCTRINE” BILLS

We found 15 states that adopted a “castle doctrine” bill in the last two years. Some of these expanded the circumstances where force could be used in self-defense without a duty to retreat, some adopted provisions on criminal or civil immunity for legally using force in self-defense, and some contained all of these provisions. In general, the bills contained at least one of the following provisions.

1. They remove the duty to retreat from an aggressor using force or deadly force under certain circumstances. The states vary in how broadly this applies. For example, Alaska expands the types of premises where a person does not have a duty to retreat when using force in defense of self to include any place the person resides, a place where he is a guest, and his workplace. The Alaska law also applies to protecting a child or member of the person's household, regardless of location.

2. Kansas removes the duty to retreat from its use of force statutes and adds a general statement that a person not engaged in illegal activity who is attacked in a place where he has a right to be has no duty to retreat and has the right to stand his ground and meet force with force.

3. Some states add a legal presumption about when a person is justified in using force against intruders. For example, Florida added a presumption that a person using force had a reasonable fear of death or serious injury to himself or another if (a) the person against whom he used force was illegally and forcefully entering a dwelling or occupied vehicle, was in the process of doing so, or removed or was attempting to remove a person against his will and (b) the person using force knew or had reason to believe this was occurring. These presumptions, which vary by state, have exceptions and do not apply under specified circumstances, such as when (a) the person force is used against had a right to be in the dwelling or was a lawful resident, (b) the person using force was engaged in illegal activity, or (c) the person force is used against is a law enforcement officer performing his duties who identified himself or the person using force knew or should have known the person was an officer.

4. Some states, such as Florida, include a presumption that a person who illegally or forcefully enters or attempts to enter a dwelling or occupied vehicle is presumed to be doing so with intent to commit an illegal act involving force or violence.

5. Many of the bills provide immunity from criminal prosecution for a person who legally uses force or deadly force. This can apply to arrest, detention in custody, charging, and prosecuting. Some also specify that law enforcement is authorized to use standard procedures to investigate but cannot arrest the person unless there is probable cause that the use of force was unlawful.

6. Many also provide immunity from civil actions for a person who is justified in using force or deadly physical force. They require a court to award reasonable attorney's fees, costs, compensation for lost income, and expenses if the court finds that the person acted lawfully and is immune from prosecution.

CONNECTICUT LAW

Under Connecticut law, a person may use physical force (self defense): to protect himself or a third person, his home or office, or his property; to make an arrest or prevent an escape; or to perform certain duties (for example, a corrections officer may use force to maintain order and discipline, a teacher to protect a minor, and a parent to discipline a child). A person cannot use physical force to resist arrest by a reasonably identifiable peace officer, whether the arrest is legal or not (CGS § 53a-23).

Self defense or justification is a defense in any prosecution (CGS § 53a-16). The person claiming justification has the initial burden of producing sufficient evidence to assert self-defense. When raised as a defense at a trial, the state has the burden of disproving self defense beyond a reasonable doubt (CGS § 53a-12).

Physical Force in Defense of Person

A person is justified in using reasonable physical force on another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force. The defender may use the degree of force he reasonably believes is necessary to defend himself or a third person. But deadly physical force cannot be used unless the actor reasonably believes that the attacker is using or about to use deadly physical force or inflicting or about to inflict great bodily harm.

Additionally, a person is not justified in using deadly physical force if he knows he can avoid doing so with complete safety by:

1. retreating, except from his home or office in cases where he was not the initial aggressor or except in cases where he a peace officer, special policeman, or a private individual assisting a peace officer or special policeman at the officer's directions regarding an arrest or preventing an escape;

2. surrendering possession to property the aggressor claims to own; or

3. obeying a demand that he not take an action he is not otherwise required to take.

Lastly, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the person to use physical force, (2) use of such force was the product of a combat by agreement not specifically authorized by law, or (3) he is the initial aggressor (unless he withdraws from the encounter, effectively communicates this intent to the other person, and the other person continues to or threatens to use physical force) (CGS § 53a-19).

Physical Force in Defense of Premises

A person who possesses or controls property or has a license or privilege to be in or on it is justified in using reasonable physical force when and to the extent he reasonably believes it to be necessary to stop another from trespassing or attempting to trespass in or upon it. The owner can use deadly physical force only (1) to defend a person as described above, (2) when he reasonably believes it is necessary to prevent the trespasser from attempting to commit arson or any violent crime, or (3) to the extent he reasonably believes it is necessary to stop someone from forcibly entering his home or workplace (and for the sole purpose of stopping the intruder) (CGS § 53a-20).

Physical Force in Defense of Property

A person is justified in using reasonable physical force when and to the extent he reasonably believes it necessary to (1) prevent attempted larceny or criminal mischief involving property or (2) regain property that he reasonably believes was stolen shortly before.

When defending property, deadly force may be used only when it is necessary to defend a person from the use or imminent use of deadly physical force or infliction or imminent infliction of great bodily harm as described above (CGS § 53a-21).

Supreme Court Decision on Self Defense

In 1984, the Connecticut Supreme Court articulated the test for determining the degree of force warranted in a given case. Whether or not a person was justified in using force to protect his person or property is a question of fact that focuses on what the person asserting the defense reasonably believed under the circumstances (State v. DeJesus, 194 Conn. 376, 389 (1984)). The test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the defendant's perspective; this is the subjective component. The jury must then decide whether the defendant's belief was reasonable (DeJesus at 389 n. 13).

CR: dw

Quoting DJ Doena:

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Quoting kdh1949:

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Unfortunately, as has often been pointed out, it is not the responsibility of police to protect individuals or individuals' property.

No?

Who are they protecting then?

Essentially they are protecting society in general and not individual members of society.  If someone wants to do me harm, the police cannot do anything to stop that person until he breaks some law.  That's one thing the cop shows have right -- the police can't do anything about someone who MIGHT commit a crime.  They can only act after the crime has been committed -- unless by lucky coincidence they happen to be right there when the crime is taking place.  There aren't enough policemen around to protect individuals.

Generally corect, unless it falls into the category which we call conspiracy. Hpwever, those are usually special cases. Intent to commit a crime is not a crime in and of itself, how could it be, I could go out in the morning with the intent tokill someone or rob a bank but the time I got there I might change my mind, we don't do thought crime...yet.

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