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Brandishing a gun to defend front yard from vandals?

Pagan

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Ordering the the vandals off the property for tresspassing, would have been the first thing to try, and if they refuse to leave, couldn't the guy conduct a citizens arrest? I know citizens arrest are legal for felonies, but I thought that misdemeanors that breech the peace (not sure what that includes), were citizens arrest, legal, also?

Now that I think a little more about it, we all have the 4th amendment right to be secure in our papers, persons, PROPERTY, and effects,atleast before due process. So if the vandals were intentionally causing damage to my property, without the authority of law, are they violating my Constitutional rights? Which is a felony,is it not?
 

skidmark

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Ordering the the vandals off the property for tresspassing, would have been the first thing to try, and if they refuse to leave, couldn't the guy conduct a citizens arrest? I know citizens arrest are legal for felonies, but I thought that misdemeanors that breech the peace (not sure what that includes), were citizens arrest, legal, also?

Now that I think a little more about it, we all have the 4th amendment right to be secure in our papers, persons, PROPERTY, and effects,atleast before due process. So if the vandals were intentionally causing damage to my property, without the authority of law, are they violating my Constitutional rights? Which is a felony,is it not?

@#*%!&%#@! the case law citations get posted and there's hope that someone goes and reads them Maybe they will even read the prior case law that directed the decisions reached. But nooooo - someone comes along and asks the "what if" that the case law answered.

Well, what the ^%#@, here's the case law again, seeing as it's really not all that hard to look up - time after time after time.*

http://www.courts.state.va.us/opinions/opncavtx/1387974.txt

http://www.courts.state.va.us/opinions/opnscvwp/1060162.pdf

http://www.courts.state.va.us/opinions/opncavwp/3042031.pdf

http://www.courts.state.va.us/opinions/opncavtx/1629032.txt

stay safe.


*I just took my meds, so don't bother telling me to to do that, or to stop whining/ranting/whinging.
 

45acpForMe

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I would support legislation to allow defense of property with deadly force assuming that you are on or in your own property. I know many wouldn't and there are scenario's that could come up where human life really is more valuable than the property in question. In any case I should be able to confront, brandish or even shoot on my own property in the defense of anything AFTER ordering them to stop/leave.

It would significantly piss me off to watch someone steal my car out of my driveway. If you go out to confront you are in danger of escalating the issue. If you stay inside you call 911 and wait a few hours to tell police what your car looked like. I would prefer to yell at them from a window and if they don't leave, place a few loads of buckshot in their general direction.
 

Citizen

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SNIP It would significantly piss me off to watch someone steal my car out of my driveway. If you go out to confront you are in danger of escalating the issue. If you stay inside you call 911 and wait a few hours to tell police what your car looked like. I would prefer to yell at them from a window and if they don't leave, place a few loads of buckshot in their general direction.

I don't get that from reading the material at Skid's first link. I see that the escalation issue occurs when 1) you invited the person onto your property, 2) some quarrel or something arises. This is a little different from a thief coming uninvited onto your property.

The link does say you may not use lethal force to prevent theft of property. It expressly says you must yield and seek recourse at law.

However, I don't really think you get a whole lot of recourse out of the law these days. Unless you recognized the thief and could swear out the warrant and conduct your own search. (Used to could do that in colonial times.)

Now, I'm thinking that if you confront a thief on your own property, and he escalates, you are no longer protecting property, but yourself. I'll have to read more.
 

skidmark

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I don't get that from reading the material at Skid's first link. .... Now, I'm thinking that if you confront a thief on your own property, and he escalates, you are no longer protecting property, but yourself. I'll have to read more.

That! The Law says you can use such force as is necessary to eject the trespasser so long as you do not commit a breach of the peace in doing so. But another of the cites provided - you go read them to figure out which one - says that if the other guy threatens you, you are allowed and expected to defend yourself. (Yes, that is in fact stating the relevant case backwards, but go read it and see if that does not work.)

If Citizen can figure out this stuff it proves it can't be that difficult.

stay safe.
 

45acpForMe

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I don't get that from reading the material at Skid's first link. I see that the escalation issue occurs when 1) you invited the person onto your property, 2) some quarrel or something arises. This is a little different from a thief coming uninvited onto your property.

The link does say you may not use lethal force to prevent theft of property. It expressly says you must yield and seek recourse at law.

However, I don't really think you get a whole lot of recourse out of the law these days. Unless you recognized the thief and could swear out the warrant and conduct your own search. (Used to could do that in colonial times.)

Now, I'm thinking that if you confront a thief on your own property, and he escalates, you are no longer protecting property, but yourself. I'll have to read more.

If I go out of my house to confront a burglar with a shotgun in hand and he runs away and calls 911 saying that I induced fear, I could be charged with brandishing. If he doesn't run away and I tell him to leave but he doesn't, he could later have me charged with abduction because he was afraid to move because I might shoot him. If he attacks me because he sees the shotgun and claims self defense he will have to say he wasn't committing a crime (which negates self defense pleas) but stranger things have happened, they could believe him. If I shoot or kill him, I can be charged with assault with a deadly weapon, manslaughter or murder but of course my defense would be self defense. The problem with the last scenario is I have to prove that he attacked me unprovoked but I just admitted to walking out of my house with a shotgun. Law is a mess and I am no lawyer.

I like one of the quotes/references in Commonwealth, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900): http://www.courts.state.va.us/opinions/opnscvwp/1991786.pdf

"You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty."

Of course my definition of accomplishing a necessary public duty is removing theives from the gene pool. I am sure the government has their own definition that is somewhat different. :-(
 

45acpForMe

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That! The Law says you can use such force as is necessary to eject the trespasser so long as you do not commit a breach of the peace in doing so. But another of the cites provided - you go read them to figure out which one - says that if the other guy threatens you, you are allowed and expected to defend yourself. (Yes, that is in fact stating the relevant case backwards, but go read it and see if that does not work.)

If Citizen can figure out this stuff it proves it can't be that difficult.

stay safe.

Yes skid, I just get frustrated with the law when it doesn't agree with ME. :)

I read all the references and understand but in real life scenario and the way the law is today I will let the car thief steal my car than try to run him off with a shotgun. I agree human life is worth more than a car but the danger of running into legal trouble for doing something that would seem so natural and correct is frustrating.

I am no lawyer (obviously) so you can write my ramblings off as wishful thinking.

Again I would support legislation that allows a property owner to be able to use deadly force to defend their property, not necessarily because I want to kill all theives, but as a safety net for property owners to ward off theives with them knowing lethal force is legal and imminent. I think theivery would be in the decline. Then again there are still theives in Texas, but I don't know how many fewer, or what unintended consequences of their laws.
 

Citizen

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That! The Law says you can use such force as is necessary to eject the trespasser so long as you do not commit a breach of the peace in doing so. But another of the cites provided - you go read them to figure out which one - says that if the other guy threatens you, you are allowed and expected to defend yourself. (Yes, that is in fact stating the relevant case backwards, but go read it and see if that does not work.)

If Citizen can figure out this stuff it proves it can't be that difficult.

stay safe.

I see what you wrote there! :p:)
 
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Citizen

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SNIP If I go out of my house to confront a burglar with a shotgun in hand and...(


Those are good points. I never thought of those. I guess mainly because I'm handgun oriented for self-defense.

No, wait. That wasn't the PC answer. How about this: I never thought of those. I guess mainly because open carry of long guns just isn't discussed in polite company on this forum. :p:)

Seriously, though, you raise good points. Always good to figure these things out before an encounter, ya know.

My first thought suggestion would be a sling for the shotgun, carrying it over your shoulder.

I wonder if daylight vs night comes into it from a legal standpoint.
 

skidmark

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Thanks to all for noticing that I am citing the law, not expressing any opinions on whether or not it is either good or bad, practical or gets in the way of real life.

Without bothering to go look it up and cite it, I'll mention that Texas law allows for the use of deadly force in the protection of property in the nighttime. And not only your property, but that of your neighbor or that of a complete stranger, too.

All it would take is for someone to convince a member of the General Assembly to sponsor a bill adding a new section to the Code of Virginia regarding robbery that makes it a lawful exception to use deadly force to prevent/attempt to prevent robbery. Once you get the camel's nose under the tent, etc., etc., etc.

In the meantime, knowledge is your friend and wishful thinking and frustration are good ays to land up in prison. While I think there's a defense against brandishing if you go outside wearing a holstered pistol, I'm thinking that a shotgun/rifle slung over your back is not going to overcome Momtgomery so easily.

In the meantime "Get off my lawn - or I'll use a harsher tone of voice and meaner words!" (Oops! Can't say that last part 'cause it might be causing a breach of the peace.)

stay safe.
 

45acpForMe

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<snip> In the meantime "Get off my lawn - or I'll use a harsher tone of voice and meaner words!" (Oops! Can't say that last part 'cause it might be causing a breach of the peace.).

And whatever you do don't point a finger at them!!!! :eek:


The way the law is written, you can't hold someone until police come (abduction). If a serial rapist just finished your daughter and was walking away you couldn't shoot him because the threat was over. In some ways juries can nullify or a good judge can rule "for" common sense but it still costs money time and livelihood to go through such a thing. I love VCDL and its quest to improve the laws but wonder how we survive and function with them the way they are now. Both of those things would seem to be civic duties.

"You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty."
 

TFred

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The Law says you can use such force as is necessary to eject the trespasser so long as you do not commit a breach of the peace in doing so. But another of the cites provided - you go read them to figure out which one - says that if the other guy threatens you, you are allowed and expected to defend yourself. (Yes, that is in fact stating the relevant case backwards, but go read it and see if that does not work.)
But what does this mean in real-world terms? In practical sense, if you demand a trespasser to leave and they refuse, nobody in their right mind today would attempt to physically force someone from their property, because you never know what the guy might have in his pocket or waistband to hurt you with. How does this "common law" apply today? If someone refused a verbal command to leave, what is the next practical "force" that can be applied? A baseball bat? That could be just as deadly as a gun, so why not just pull out the gun and start pointing? If you say "I told him to leave and he wouldn't, I had no other choice but to get more threatening, as I'm allowed to do..." ?

These are serious questions.

TFred
 

skidmark

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And whatever you do don't point a finger at them!!!! :eek:


The way the law is written, you can't hold someone until police come (abduction). If a serial rapist just finished your daughter and was walking away you couldn't shoot him because the threat was over. In some ways juries can nullify or a good judge can rule "for" common sense but it still costs money time and livelihood to go through such a thing. I love VCDL and its quest to improve the laws but wonder how we survive and function with them the way they are now. Both of those things would seem to be civic duties.

"You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty."

But a serial rapist just committed a felony, and you can effect a citizen's arrest for that. And you can, AFAIK, rope and hog-tie them while waiting for the po-lice to arrive and take them off your hands if they are in fact willing to do that. Or in the alternative take them bodily to the Magistrate to swear out your own warrant against them.

I'm not going to even begin to discuss the issue of shooting a fleeing felon - especially one who taunts you while saying they are going to go commit the same felony elsewhere - or not. Nope! Not gonna touch that with any length of wood or metal or fiberglass or plastic.

See, "The Law" views different crimes differently. Trespass is a misdemeanor and rape is a felony. One you can deal with only to the point of not committing a breach of the peace. The other, not quite so much. But you better have dome your homework and be able to prove you did everything according to Hoyle.

stay safe.
 

45acpForMe

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<snip>I'm not going to even begin to discuss the issue of shooting a fleeing felon - especially one who taunts you while saying they are going to go commit the same felony elsewhere - or not. Nope! Not gonna touch that with any length of wood or metal or fiberglass or plastic.<snip>

I would consider that under the public duty clause but LEO may think otherwise. :-(

"You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty."

Or I guess if they are taunting you about doing the crime again, under the prevent a great crime clause. :)
 
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Repeater

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Texas Penal Code 9.41, 9.42

Thanks to all for noticing that I am citing the law, not expressing any opinions on whether or not it is either good or bad, practical or gets in the way of real life.

Without bothering to go look it up and cite it, I'll mention that Texas law allows for the use of deadly force in the protection of property in the nighttime. And not only your property, but that of your neighbor or that of a complete stranger, too.

All it would take is for someone to convince a member of the General Assembly to sponsor a bill adding a new section to the Code of Virginia regarding robbery that makes it a lawful exception to use deadly force to prevent/attempt to prevent robbery. Once you get the camel's nose under the tent, etc., etc., etc.

In the meantime, knowledge is your friend and wishful thinking and frustration are good ays to land up in prison. While I think there's a defense against brandishing if you go outside wearing a holstered pistol, I'm thinking that a shotgun/rifle slung over your back is not going to overcome Momtgomery so easily.

In the meantime "Get off my lawn - or I'll use a harsher tone of voice and meaner words!" (Oops! Can't say that last part 'cause it might be causing a breach of the peace.)

stay safe.

It has long been a tradition in Texas to use legal, lethal force at night to defend private property, going back to the days when horse thieves caused problems.

More recently was the case of Joe Horn. Perhaps you were thinking of him.

Yes, the G.A. could consider such a statute for Virginia. Would VCDL push for such a bill?

For reference, see our Texas colleagues here:
Houston woman kills auto burglar
 

45acpForMe

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But what does this mean in real-world terms? In practical sense, if you demand a trespasser to leave and they refuse, nobody in their right mind today would attempt to physically force someone from their property, because you never know what the guy might have in his pocket or waistband to hurt you with. How does this "common law" apply today? If someone refused a verbal command to leave, what is the next practical "force" that can be applied? A baseball bat? That could be just as deadly as a gun, so why not just pull out the gun and start pointing? If you say "I told him to leave and he wouldn't, I had no other choice but to get more threatening, as I'm allowed to do..." ?

These are serious questions.

TFred

I would like the same real-world questions answered too!

It kind of reminds me of the guy in NJ that shot a AK47 round into his front grass when a gang wouldn't disperse from his yard. The law only seems to bother/tie-up the people willing to try to obey it. So the solution is to allow super priviledges on your own land. The police may show up to see who fired a shot but once they find out it was the homeowner they should simply remind him to keep the bullets in his own yard. :) (or anyone standing in his yard)
 

TFred

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I would like the same real-world questions answered too!

It kind of reminds me of the guy in NJ that shot a AK47 round into his front grass when a gang wouldn't disperse from his yard. The law only seems to bother/tie-up the people willing to try to obey it. So the solution is to allow super priviledges on your own land. The police may show up to see who fired a shot but once they find out it was the homeowner they should simply remind him to keep the bullets in his own yard. :) (or anyone standing in his yard)
Perfect example, other than the fact that it took place in the PRNJ... If you have a gang of thugs in your yard, what is the minimum common sense amount of force required to force them to leave? I'm thinking an AK47 might be the answer to that question. What "less" force would safely do the job?

TFred
 

45acpForMe

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Perfect example, other than the fact that it took place in the PRNJ... If you have a gang of thugs in your yard, what is the minimum common sense amount of force required to force them to leave? I'm thinking an AK47 might be the answer to that question. What "less" force would safely do the job?

TFred

I am guessing that the politically correct answer is to call the police and ask them to remove the tresspassers. If things are calm that may work. In the 10 minutes to 3 hours it takes for an officer to show up, we will have to fend for ourselves. Cowering inside is what the government wants us to do.... for many things. :cuss:
 
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