When seconds count, the police are only an hour and a half away.

Bikenut said:

Please do not take my response as a snub for anyone who doesn't live in Michigan but please understand that if it happened in Michigan then Michigan law applies.

And I still stand by my earlier statement that applies regardless of which State a person might be in................

-> I will strongly suggest anyone who carries a gun be damn sure they understand the law, and what is.. and what isn't... a threat. <-

Also MKEgal... my best wishes for a favorable outcome in regards to your recent incident with Milwaukee LE.

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I believe our Castle Doctrine law considers anyone who breaks into private property to be a threat to life, thereby allowing justifiable homocide.

hamaneggs said:

I believe our Castle Doctrine law considers anyone who breaks into private property to be a threat to life, thereby allowing justifiable homocide.

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Here's what the law says. It seems you are correct hamaneggs.

PRESUMPTION REGARDING SELF-DEFENSE Act 311 of 2006
780.951 Individual using deadly force or force other than deadly force; presumption; definitions.
Sec. 1. (1) Except as provided in subsection (2), it is a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under section 2 of the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur if both of the following apply:
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).
(2) The presumption set forth in subsection (1) does not apply if any of the following circumstances exist:
(a) The individual against whom deadly force or force other than deadly force is used, including an owner, lessee, or titleholder, has the legal right to be in the dwelling, business premises, or vehicle and there is not an injunction for protection from domestic violence or a written pretrial supervision order, a probation order, or a parole order of no contact against that person.

SELF-DEFENSE ACT Act 309 of 2006
(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.

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hamaneggs said:

I believe our Castle Doctrine law considers anyone who breaks into private property to be a threat to life, thereby allowing justifiable homocide.

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I'm confused????

Are you saying that the Castle Doctrine would "allow" the property owner in the OP incident to shoot the criminals who broke into the property at any time the criminals were still in the property they broke into? As in anytime they were at gunpoint the property owner could decide to just shoot them because the Castle Doctrine considers anyone who breaks into private property to be a threat to life? And that it would be "justifiable homicide" to shoot the one running away because he broke in and is therefor a threat to life because he broke in?

If I understand the "Castle Doctrine" law correctly all it does is remove the duty to retreat as long as a person is not committing a crime and is in a place that is legal for them to be. It is my understanding that the "Castle Doctrine" does not give carte blanc to shoot someone just because they are breaking in or have broken in.... and that, as always, the totality of the circumstances would determine whether the homicide was justifiable or not.

Or maybe I don't understand the "Castle Doctrine" correctly. If that is so then I sincerely (no sarcasm!) ask for clarification.

PRESUMPTION REGARDING SELF-DEFENSE Act 311 of 2006
780.951 Individual using deadly force or force other than deadly force; presumption; definitions.
Sec. 1. (1) Except as provided in subsection (2), it is a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under section 2 of the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur if both of the following apply:
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).
-snip-

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It would appear to me that the words "rebuttable presumption" would indicate that the prosecutor can "rebut" the "presumption" that the belief of imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur.... is..... under the circumstances.... an "honest and reasonable belief".

So if the prosecutor can prove that the circumstances surrounding the break in would not lead to an honest and reasonable belief of a threat requiring a deadly force response then he can "rebut" the "presumption".... which, if the prosecutor were successful, would make this particular law not apply.

Also, the words "rebuttable presumption" would mean that the law does NOT "allow" folks to shoot criminals who break in just because they broke in... there would have to be more involved... like an "honest and reasonable belief" of a threat of death, sexual assault, or grave bodily harm that would stand up to a prosecutor's rebuttal...

Would that be correct?

Bikenut said:

It would appear to me that the words "rebuttable presumption" would indicate that the prosecutor can "rebut" the "presumption" that the belief of imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur.... is..... under the circumstances.... an "honest and reasonable belief".

So if the prosecutor can prove that the circumstances surrounding the break in would not lead to an honest and reasonable belief of a threat requiring a deadly force response then he can "rebut" the "presumption".... which, if the prosecutor were successful, would make this particular law not apply.

Also, the words "rebuttable presumption" would mean that the law does NOT "allow" folks to shoot criminals who break in just because they broke in... there would have to be more involved... like an "honest and reasonable belief" of a threat of death, sexual assault, or grave bodily harm that would stand up to a prosecutor's rebuttal...

Would that be correct?

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If you feel your life is in danger,how can a prosecutor rebut what you feel in the moment?

Felony? your property? agravated Assault on your person? Sorry, let them bleed out while you wait for the 1 1/2

(a) ...is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises...
(b) ...honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).

Seems to me you can use deadly force against anyone who has broken into your home or business. Period. The person isn't there to deliver a birthday cake. You can assume he has the most evil of intentions.

griffin said:

(a) ...is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises...
(b) ...honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).

Seems to me you can use deadly force against anyone who has broken into your home or business. Period. The person isn't there to deliver a birthday cake. You can assume he has the most evil of intentions.

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And since human beings would be going through an adrenalin dump(natural fight or flight reaction induced by a threat to life or limb),it's good that the law accepts this natural state of self preservation!

hermannr said:

Felony? your property? agravated Assault on your person? Sorry, let them bleed out while you wait for the 1 1/2

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You obviously missed the instructions to call 911 and ask for an ambulance in such an incident!I'm sure a prosecutor wouldn't miss something as inhumane and callous as what you suggested!Lets keep our education of the folks on a law abiding level!CARRY ON!

hamaneggs said:

If you feel your life is in danger,how can a prosecutor rebut what you feel in the moment?

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PRESUMPTION REGARDING SELF-DEFENSE Act 311 of 2006
780.951 Individual using deadly force or force other than deadly force; presumption; definitions.
Sec. 1. (1) Except as provided in subsection (2), it is a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under section 2 of the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur if both of the following apply:
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).
-snip-

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With respect to both posters..

Words have meaning...

It says has an honest and reasonable belief.... not "what you feel" ... and an investigation will bring forth facts and it will be the facts, not "what you feel" that the prosecutor, judge, and jury, will look at and base any judgements upon.

griffin said:

(a) ...is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises...
(b) ...honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).

Seems to me you can use deadly force against anyone who has broken into your home or business. Period. The person isn't there to deliver a birthday cake. You can assume he has the most evil of intentions.​

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Am I correct in that? I dunno since I am not an attorney nor do I frequent Holiday Inn... but I personally would be wary of just opening fire without an actual threat to life, limb, or honor.

Bikenut said:

With respect to both posters..

Words have meaning...

It says has an honest and reasonable belief.... not "what you feel" ... and an investigation will bring forth facts and it will be the facts, not "what you feel" that the prosecutor, judge, and jury, will look at and base any judgements upon.

All well and good... except for the part where the "assumption" (the law uses the word "presumption")... is "rebuttable" ... as in argued against and possibly proven to be wrong. And the prosecutor will use the "reasonable man" standard (as in would a reasonable man under the same circumstances come to the honest and reasonable belief that deadly force is necessary) for his "rebuttal".

What I'm trying to argue is that real life is not so cut and dried that this "Castle Doctrine" law allows folks to just open fire for the simple reason of breaking in. The "honest and reasonable belief" of a threat to life, limb, or chastity, would still need to exist because that is what the prosecutor will argue wasn't there with just a simple break in.

Some folks would say that the Castle Doctrine means the law allows them to shoot the burglar who had broken in and was trying to carry out the TV but is not threatening the homeowner in any way. I am saying that a prosecutor will argue ... "rebut"... that since the robber wasn't a threat to anything but losing a TV there was no justification to shoot.

And I suspect many a jury would find in favor of that prosecutor's argument.

​

Am I correct in that? I dunno since I am not an attorney nor do I frequent Holiday Inn... but I personally would be wary of just opening fire without an actual threat to life, limb, or honor.

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You are correct.Is it reasonable for someone to fear death when a stranger has invaded their private castle?Yes also!Massad Ayoob said the only words you should ever say to LE's is that you feared for your life or the life of a fellow citizen,and I may discuss this further with my lawyer! CARRY ON!

hamaneggs said:

You are correct.Is it reasonable for someone to fear death when a stranger has invaded their private castle?Yes also!Massad Ayoob said the only words you should ever say to LE's is that you feared for your life or the life of a fellow citizen,and I may discuss this further with my lawyer! CARRY ON!

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I understand what folks are saying about that law. What I am trying to point out is that the words "rebuttable presumption" within that law means the "presumption" that the invader is a threat still isn't a free pass but is open to being "rebutted" ... or "argued" by a prosecutor that it doesn't apply and that, under the circumstances, deadly force was not called for because the facts to not support "an honest and reasonable belief".

If the law were a free pass the word "rebuttable" would not be in there.

And if a prosecutor is successful in "rebutting" that there was "an honest and reasonable belief" (remember it doesn't matter in court if you, or I, really really believed we were in imminent danger... what matters is if the jury believes the facts would support that a person would have an honest and reasonable belief) then the "Castle Doctrine" law won't apply.

In my personal opinion (I'm not an attorney nor do I play one on TV) the word "rebuttable" means the Castle Doctrine can be argued to not apply even if a break in occurred.

If what some folks are saying about the Castle Doctrine law then.... because the act of breaking in (just the breaking in all by itself) is a threat to life, limb, and chastity, that law gives a free pass to shoot an invader at any time they are still inside...... no matter what the invader is doing at the time.... right? After all, he broke in and is still there soooooo.......

Ummm..... does anyone think the Castle Doctrine law would protect the property owner in the OP from being charged with, and likely convicted of, murder if the property owner decided to just shoot the bad guy who had broken in but had already laid down and presented no immediate threat?

Now the guy who refused to lay down would be a bit more difficult for the prosecutor to argue didn't still present a threat... but there is that "rebuttable" thing so he could try.

From:

http://www.thefreedictionary.com/rebut

re·but v. re·but·ted, re·but·ting, re·buts
v.tr.1. To refute, especially by offering opposing evidence or arguments, as in a legal case.
2. To repel.

v.intr. To present opposing evidence or arguments.

And also from the same source:

rebut vb -buts, -butting, -butted (tr) to refute or disprove, esp by offering a contrary contention or argument

Underlining added for emphasis.

Maybe I'm reading that law all wrong but it says to me that just the act of breaking in is not enough... even if there is a presumption that the guy breaking in intends to do harm there still must be the other two elements besides intent... the opportunity and means to do harm must also be there... to support "an honest and reasonable belief" of the threat of death, bodily harm, and/or unwanted sexual penetration, that would justify the use of deadly force.

But just the act of breaking in all by itself is not enough because it can be "rebutted" that, under the circumstances surrounding a particular break in, the break in itself didn't present a threat that justified the use of deadly force.

Or, as is always possible, I don't know my arse from a hole in the ground. As I said... I am not an attorney.

If you wake up to noises in the night and find a thief walking towards the door with your tv in hand...shooting them in the back under the "castle doctrine" is going to cause you some very big problems. That's all bikenut is saying.

Bikenut said:

I understand what folks are saying about that law. What I am trying to point out is that the words "rebuttable presumption" within that law means the "presumption" that the invader is a threat still isn't a free pass but is open to being "rebutted" ... or "argued" by a prosecutor that it doesn't apply and that, under the circumstances, deadly force was not called for because the facts to not support "an honest and reasonable belief".

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In support: http://legal-dictionary.thefreedictionary.com/Rebuttable+Presumption

A conclusion as to the existence or nonexistence of a fact that a judge or jury must draw when certain evidence has been introduced and admitted as true in a lawsuit but that can be contradicted by evidence to the contrary.

A rebuttable presumption can be overturned only if the evidence contradicting it is true and if a reasonable person of average intelligence could logically conclude from the evidence that the presumption is no longer valid. For example, a person who has been judicially declared incompetent is presumed incompetent unless there is sufficient proof, usually in the form of medical testimony, that the person has regained competency.

In Criminal Law, there is a Presumption of Innocence in favor of the accused. The prosecution must establish Beyond a Reasonable Doubt that the accused committed the crime charged.

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So basically it's saying that unless the available evidence proves otherwise it is assumed that you had an honest and reasonable belief that you were in mortal danger.

Example: Your 85 yr old neighbor with Alzheimers wanders in your unlocked back door and rummages through your cupboards. You come home to find him drawing pictures in a pile of spilled flour on your kitchen floor. If you put two in his back you're in for a world of trouble, and I would say, deservedly so.

Bronson

I would agree with BikeNut's interpretation... just because someone is in your house does not mean that the following investigation isn't going to reveal other details and circumstances about the shooting that may not be in your favor.

If you wake to noises in the night and plug a perp standing at your bedroom door.... that's going to be looked at a lot differently than this situation of catching theives red handed at a business and you plug one because he "won't lie down"... (this is the part where I emplor everyone to get WEAPONLIGHTS and have the ability to illuminate your target with more than muzzle flash for identification purposes)

There are other factors involved than just the B&E and I believe you still need to meet the 3 prongs of a justified self defense.... immediacy, ability, and intent.... I think they will give you some leeway on the intent and ability because of the castle doctrine...


I've said before I wouldn't hold someone at gunpoint under any circumstances... but I think I actually may if I came on them hauling my TV out or something of that nature.... I would also tell them that as long as they had that TV in their hands I was certain they couldn't reach for a weapon.... but if the TV wasn't filling both hands, I would assume they were going for a gun and it was game on.... So it may be a good time to call the DPD since they would take an hour to get there.... I may even plug the TV back in and enjoy my new TV stand..

HKcarrier said:

...(this is the part where I emplor everyone to get WEAPONLIGHTS and have the ability to illuminate your target with more than muzzle flash for identification purposes)...

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Weaponlights are a great way to muzzle sweep a loved one with a loaded gun too.

+1,000 weapon lights for handguns= LID!

CV67 PAT said:

Weaponlights are a great way to muzzle sweep a loved one with a loaded gun too.

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Well I think you have a point, but better than not IDing your target and operation of a flashlight is next to impossible if you have a rifle/shottie... and my personal definition for 'weapon light' would include 'tactical flashlights' in one hand and pistol in other.... if that helps clarify.


Also, we all know that the lights provide a cone of illumination... the weapon need not be pointed directly at the target in order to shed light upon it.

wardog4life said:

+1,000 weapon lights for handguns= LID!

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NOt sure what you mean here...

PistolPackingMomma said:

Because it's so hard to tell what time it is when you are surrounded by watches, cell phones, car stereos...Unless they were in a 1985 DeLorean, that excuse doesn't fly.

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FYI, there is a company that now sells functioning clocks for the DeLorean.