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Elderly hunter beaten to death with his rifle by ATV trespassing "kids"
- Thread starter paramedic70002
- Start date
Two take-aways from this -
- "warning shots" only serve to warn the other person that you will not shoot them. (We all know why warning shots are illegal. This is about why they are not practical.)
- and this is the hard one: discretion is the better part of valor. Or, if someone threatens to come back and beat the snot out of you it is probably better to stop what you are doing (no matter how innocent, how unprovoking, and how much you really/truely want to keep doing it) and withdraw. Even if Silva was on his own land the way to deal with trespassers is not to threaten them with deadly force. This in no way excuses the trespassers (in general or in this specific case) from their obligation to be lawful as well. But we have here a situation where someone was on property not theirs being interferred with in the course of their lawful and peaceful activity by a bunch of folks who I will, for the sake of discussion, give the benefit of the doubt and say did not know they were trespassing. Silva had no authority to enforce trespass against them. At best he had an obligation to report the trespass to the airport authorities.
None of this excuses in any way the other guy's alleged assault. It also in no way expresses my outrage that the other members of the mob are not (presently) being criminally charged. It also in no way expresses my outrage that the others in that group apparently did not intervene to prevent/stop the beating.
In a "perfect" world all this would have fallen into place and the worst injury to either side would have been hurt feelings. Unfortunately our world is not perfect and we will feel the consequences of our misjudgements.
And for the record, I am well up there in the top 10 of folks who find it difficult to walk away from wrong-doing. (About the only thing in my favor is that I have never seen personal combat as the first choice of how to resolve disagreements,) I'm also well aware (oh, boy am I ever well aware!) that trying to do things the right way will not always result in things being made all better.
stay safe.
- "warning shots" only serve to warn the other person that you will not shoot them. (We all know why warning shots are illegal. This is about why they are not practical.)
- and this is the hard one: discretion is the better part of valor. Or, if someone threatens to come back and beat the snot out of you it is probably better to stop what you are doing (no matter how innocent, how unprovoking, and how much you really/truely want to keep doing it) and withdraw. Even if Silva was on his own land the way to deal with trespassers is not to threaten them with deadly force. This in no way excuses the trespassers (in general or in this specific case) from their obligation to be lawful as well. But we have here a situation where someone was on property not theirs being interferred with in the course of their lawful and peaceful activity by a bunch of folks who I will, for the sake of discussion, give the benefit of the doubt and say did not know they were trespassing. Silva had no authority to enforce trespass against them. At best he had an obligation to report the trespass to the airport authorities.
None of this excuses in any way the other guy's alleged assault. It also in no way expresses my outrage that the other members of the mob are not (presently) being criminally charged. It also in no way expresses my outrage that the others in that group apparently did not intervene to prevent/stop the beating.
In a "perfect" world all this would have fallen into place and the worst injury to either side would have been hurt feelings. Unfortunately our world is not perfect and we will feel the consequences of our misjudgements.
And for the record, I am well up there in the top 10 of folks who find it difficult to walk away from wrong-doing. (About the only thing in my favor is that I have never seen personal combat as the first choice of how to resolve disagreements,) I'm also well aware (oh, boy am I ever well aware!) that trying to do things the right way will not always result in things being made all better.
stay safe.
Citizen
Founder's Club Member
I knew warning shots are often ill-advised. I had no information that they were illegal.
Can you point me towards an authority?
A warning shot is a threat to shoot if the ation/activity warned against is not stopped. That makes it an assault. Assaults are illegal, and even more so when committed with a deadly weapon.
What saves a warning shot from being de facto attempted homicide of any stripe is that by definition a warning shot is never intended to hit anybody. Yet there are cases of someone (intentionally or accidentally) missing and actually hitting someone. Those are usually prosecuted as negligent homicide/2nd degree murder.
I am not going to dredge up case law on this. The definition of assault is well known and accepted here.
stay safe.
1245A Defender
Regular Member
Well,,,
controll your testimony..
Never tell anybody that you fired a warning shot!
tell them that you shot at the bad guy in self defense to stop the threat.
if your "aim is off" so that the bad guy is not shot,,, but the threat stops,,, good...
if that first shot misses, but the bad guy does not stop,,, shoot again,, but aim better this time.
controll your testimony..
Never tell anybody that you fired a warning shot!
tell them that you shot at the bad guy in self defense to stop the threat.
if your "aim is off" so that the bad guy is not shot,,, but the threat stops,,, good...
if that first shot misses, but the bad guy does not stop,,, shoot again,, but aim better this time.
OC for ME
Regular Member
Well.....
- (5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available, is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.
Cite please. Or not.
In Missouri it is not clearly defined that a "warning shot" is illegal. Nor is a warning shot even defined. Verbal legal gymnastics may commence.
http://www.moga.mo.gov/statutes/C500-599/5710000030.HTM
Pay particular attention to (3) (6) (7) and (9).
As close as I could get to a warning shot being illegal is in (7) "at random", then again in (9) "at any person." A warning shot "is not random" and a warning shot is not shooting "at a person."
However, http://www.moga.mo.gov/statutes/c000-099/0210000750.htm does provide for:
Yes, unlawful use of weapon is RSMo 571.030 and is one of those statutes that is referred to in that pesky "conforms exactly with" part.
IANAL and YMMV.
1 - the incident happened in Virginia. The law in Virginia applies. The conversation between Citizen and me involves persons both residing in Virginia. The fact that the thread is not in the Virginia sub-forum has nothing to do with anything.
2 - http://legal-dictionary.thefreedictionary.com/assault - the Common Law definition of assault.
3 - The crime of assault defined in the Code of Virginia http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-57 .
That the same factors may not prevail where you reside is a wonderous and wonderful curiosity, as well as a mild amusement (as in it was mildly enjoyable to briefly explore the matter).
Do not spar with me. I am old. I know how the game is played and how to play the game.
Had you wished, instead, to caution me about attempting to generalize from a specific and limited situation I would have accepted that as appropriate.
And for your edification, I am a lawyer http://thelawdictionary.org/lawyer/ I am not an attorney. Wirth a little bit more learning you too could be a lawyer.
stay safe.
OC for ME
Regular Member
I agree, sparring with you is unwise for the most part and in most situations. But, facts are facts and the Virginia conversation outside of the Virginia sub-forum, without qualifiers, is important, especially to those less knowledgeable as you.
Lawyer or attorney, to me that is a distinction without a difference. I have little desire to become either a lawyer or an attorney, too many of those about as it is already.
I concede defeat, stand properly rebuked, and retreat with as much grace as possible.
eye95
Well-known member
I don't know of any law that specifically outlaws warning shots. However, in almost all incorporated areas, firing a gun is illegal and, therefore, firing a warning shot is illegal. Now, a shot directly at the threat would be considered self-defense and, therefore, legal. A shot in the air or into the ground would surely NOT be considered self-defense, and would run afoul of any local or State laws against the discharge of a firearm.
If you are threatened to the point where you feel the need to use a firearm to protect yourself, do everything you can to ensure each and every round strikes the threat center mass. Period. Any other shot is just plain stupid and, in many locales, illegal for at least the above reason.
If you are threatened to the point where you feel the need to use a firearm to protect yourself, do everything you can to ensure each and every round strikes the threat center mass. Period. Any other shot is just plain stupid and, in many locales, illegal for at least the above reason.
I am never above firing a parting shot.
Allow me to do so -A reading of the Missouri statute indicates that the legislature purposely ignored the difference in Common Law between an assault and a battery and, for good and sufficient reasons known only onto them, chose to statutorily define what everybody in the civilized world understands as a battery as an assault.
And as for your legal education - you can only address an act(ion) within the confines of when and where it occurred. If you wish to move from the specific to seek hypothetical answers to questions you could ask "Well, what if that took place in Missouri instead of Virginia?", or to the very general by asking "Is it possible that there are exceptions and if so, where would they take place?"
In closing, let me admit that I may posses an unfair advantage - or, actually, two unfair advantages. I have been trained in classical Logic and Argumentation by the Jesuit priests at Georgetown University. They make the Spanish Inquisition look inviting. I have also been trained in the philosophy and exercise of pilpul* http://www.jewishencyclopedia.com/articles/12153-pilpul by folks who make the Jesuit priests look inviting.
stay safe.
* Pilpul, for the unaware, is the intellectual equivalent of The Code Duelo.
FireStar M40
Regular Member
There's Nothing Wrong With A Warning Shot..
I'm of the firm belief that.. There's Nothing Wrong With A "Warning Shot".
It's quite simple and effective in its use and application under the right circumstances.
I'm "WARNING" you. Your continued aggressive actions toward me will result in you being "SHOT"!
That's my use of a "Warning Shot".
FireStar M40
I'm of the firm belief that.. There's Nothing Wrong With A "Warning Shot".
It's quite simple and effective in its use and application under the right circumstances.
I'm "WARNING" you. Your continued aggressive actions toward me will result in you being "SHOT"!
That's my use of a "Warning Shot".
FireStar M40
Citizen
Founder's Club Member
If true, that makes no sense. If lethal force is justified under the law, but I personally opt for a warning shot in a humane attempt to not end a life, then I become guilty of assault? No reasonable lesser level of force is available? Basically the law becomes that I am obligated to either shoot or die?
That's just nucking phutz.
OC for ME
Regular Member
Assault in the first & second degree (RSMo 565.050 & 060) do not have the language that assault in the third degree has. The language of RSMo 565.070 could be extended to a warning shot, maybe.
Regardless, I agree, a warning shot used as the second to last "lesser means" may be (should be) found justified, depending on the circumstances, the skill of my attorney, and lastly, the decision of twelve good men and true.
Why battery is not separately defined in Missouri statute is a quandary, as skidmark correctly identifies. The phrase "causes or attempts to cause serious physical injury to another person" seems to address the act of battery; "any physical contact with another person" in conjunction with addressing assault.
I defer to those with legal acumen to explain the distinction.
This posted comment is very insightful if factual.
MSG Laigaie
Campaign Veteran
No
I do not fire "warning shots". This is a waste of ammunition. If my weapon is out I will use voice commands, not a "warning shot" to motivate my threat. If I am forced to engage, I will be on target and I will stop the threat.
A WS may go anywhere. A ricochet can be extremely dangerous in an urban environment.
I do not fire "warning shots". This is a waste of ammunition. If my weapon is out I will use voice commands, not a "warning shot" to motivate my threat. If I am forced to engage, I will be on target and I will stop the threat.
A WS may go anywhere. A ricochet can be extremely dangerous in an urban environment.
Basically the notion is that if you have enough time to get off a warning shot the threat of death or serious bodily injury was not imminent. It probably was highly likely and probably was going to happen very soon, but "very soon" happens slower than "imminent".
Our mutual friend User presents a wonderful seminar on the use of deadly force in which he explains the law, the practicalities, and his concept of what the perfect self defense client would look like. He also explains why warning shots are not considered self defense. He does it better than I can by orders of magnitude.
The bottom line is not that "the law becomes that I am obligated to either shoot or die" but the law is that you must wait until the very last moment. It's not about "I might die" but "there is no question that I will die if I don't, and it will happen RFN if I don't." (Not a second or three from now when he finishes running 21 feet to reach me, or not .5 seconds from now when he finishes drawing from his holster which he has not even started to do yet.)
Of course, you are free to act before the threat is "imminent", and should you do so I will not only try to be in the front row at your trial but to come and see you on visiting days.
You are encouraged to consider these words. You are in no way obligated to act based upon them.
stay safe.
Citizen
Founder's Club Member
Well, yes. The whole point is figuring out the law. And, then how that law is applied by the government. Etc.
If the law really is that, its an absurdity insofar as it closes off certain avenues of potential action that might be desirable. For example, if attacked from outside 21 ft with a knife, who closes to within say 20 feet when I get clear of leather and get off the warning shot into the ground and persuade the guy to change his mind. Or, say, I witness a lethal force assault or grievous injury assault or rape on another person. Under the explanation (misapplication by courts and prosecutors?), I cannot fire a warning shot into the ground at the instant I witness it, but must spend time moving close enough to hit a moving target without hitting a moving victim? This is nuts. It may be the law, but its nuts. It totally knocks out a viable graduation on the scale of escalating force.
The same illogic could be applied to defensive display of a firearm. Instead of dissuading a knife or bat threatener, you would then have to wait until actually attacked to go for the gun. Or, retreat without displaying the gun, which would seriously erode stand-your-ground.
The more I think about this, the more suspicious I become. Warning shots used to be somewhat a part of the game. Who erased warning shots and why?
There's something going on here.
that's how it goes when you are inept.
all of us GET inept, eventually. Best recognize that fact and act accordingly. I won't bother to keep living once I reach that point. That's not a life that's even REMOTELY worth living, in my opinion. The day that I have to ADMIT that punks can take advantage of me (if they want) is the day I check out of this world.
all of us GET inept, eventually. Best recognize that fact and act accordingly. I won't bother to keep living once I reach that point. That's not a life that's even REMOTELY worth living, in my opinion. The day that I have to ADMIT that punks can take advantage of me (if they want) is the day I check out of this world.
davidmcbeth
Banned
my policy is once a handgun is upholstered, its being aimed and shot at an actual target (this takes the guess work out of what to do with a ready gun). With a rifle, one I bring it to a firing position then it will be discharged at a target.
All the uncertainty is decided prior to having the firearm in a ready state .. a car driving around?
Ya can't find a safe place where the car cannot go? I doubt it ... as far as self defense goes....
Citizens arrest is another animal ... you have to know the laws regarding this aspect ...
All the uncertainty is decided prior to having the firearm in a ready state .. a car driving around?
Ya can't find a safe place where the car cannot go? I doubt it ... as far as self defense goes....
Citizens arrest is another animal ... you have to know the laws regarding this aspect ...
The bolded part is the important part. Virginia law does not allow for what you wish to do. As a matter of fact, Virginia calls that the crime of "brandishing". There are other states that do allow for the defensive display of a firearm. You are free to relocate to your choice of those states. But while you remain in Virginia you are stuck.
As for "a viable graduation on the scale of escalating force" - it's a nice concept but that slso will not fly in Virginia. You are stuck with "force sufficient". If you happen to choose a force that is not sufficient you may choose another one but there are generally only two levels - deadly force and everything else. It may be good to make cops adhere to some administratively determined sliding scale along a continuum of force, but I do not want that for us non-cops. KISS as opposed to YMMV.
stay safe.
Citizen
Founder's Club Member
No offense, but that just made no sense at all.
Telling me I am stuck with the law isn't a helpful comment. I already know I'm stuck with the law, if it is the law. I was criticizing such a law.
And, the comment about compelling a force-continuum is backwards. Nowhere did I say people should be required to give a warning shot. How did you turn that around?
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