Frustrated neighborhood and burglaries: 'Call 911 and get out your gun!'

[Metalhead47]

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BigDave wrote:

Bob Warden wrote:

Like I said, you can fire away at burglars. Note that the word "necessary" does not appear in RCW9A.16.050(2).

So Bob in a case where the uninvited person was suffering from dementia or other debilitating medical issue and not displaying any threatening actions, do you still feel your statement of "Like I said, you can fire away at burglars."

Dude, this is such a red herring argument. If anything, a person suffering from dementia or some other mental illness is more likely to be a threat, they'd be just the type to come at you with a gun pointed at them. And if they had the physical & mental aptitude to break the door down in the first place, they could certainly pose a reasonable threat too. Being in someone's house that does not belong to them in the middle of the night in and of its self constitutes a threat.

 

[BigDave]

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Metalhead47 wrote:

BigDave wrote:

Bob Warden wrote:

Like I said, you can fire away at burglars. Note that the word "necessary" does not appear in RCW9A.16.050(2).

So Bob in a case where the uninvited person was suffering from dementia or other debilitating medical issue and not displaying any threatening actions, do you still feel your statement of "Like I said, you can fire away at burglars."

Dude, this is such a red herring argument. If anything, a person suffering from dementia or some other mental illness is more likely to be a threat, they'd be just the type to come at you with a gun pointed at them. And if they had the physical & mental aptitude to break the door down in the first place, they could certainly pose a reasonable threat too. Being in someone's house that does not belong to them in the middle of the night in and of its self constitutes a threat.

Dude read the statement.

in a case where the uninvited person was suffering from dementia or other debilitating medical issue and not displaying any threatening actions

While some will and some will not be willing to do harm one must take into account what they are doing at that point in time to determine if there is an imminent threat.

If you can articulate there is an imminent threat then by all means protect yourself and family.

 

[Metalhead47]

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BigDave wrote:

Metalhead47 wrote:

BigDave wrote:

Bob Warden wrote:

Like I said, you can fire away at burglars. Note that the word "necessary" does not appear in RCW9A.16.050(2).

So Bob in a case where the uninvited person was suffering from dementia or other debilitating medical issue and not displaying any threatening actions, do you still feel your statement of "Like I said, you can fire away at burglars."

Dude, this is such a red herring argument. If anything, a person suffering from dementia or some other mental illness is more likely to be a threat, they'd be just the type to come at you with a gun pointed at them. And if they had the physical & mental aptitude to break the door down in the first place, they could certainly pose a reasonable threat too. Being in someone's house that does not belong to them in the middle of the night in and of its self constitutes a threat.

Dude read the statement.

in a case where the uninvited person was suffering from dementia or other debilitating medical issue and not displaying any threatening actions

"Dude read the statement." :uhoh:

Being in my house without my permission, having broken down my door, is in and of its self a threatening action.

If you want to sit down with the stranger in your home, pull out your DSM-IV, and diagnose their mental state be my guest. I'm not going to take the chance.

 

[BigDave]

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Metalhead47 wrote:

BigDave wrote:

Metalhead47 wrote:

BigDave wrote:

Bob Warden wrote:

Like I said, you can fire away at burglars. Note that the word "necessary" does not appear in RCW9A.16.050(2).

So Bob in a case where the uninvited person was suffering from dementia or other debilitating medical issue and not displaying any threatening actions, do you still feel your statement of "Like I said, you can fire away at burglars."

Dude, this is such a red herring argument. If anything, a person suffering from dementia or some other mental illness is more likely to be a threat, they'd be just the type to come at you with a gun pointed at them. And if they had the physical & mental aptitude to break the door down in the first place, they could certainly pose a reasonable threat too. Being in someone's house that does not belong to them in the middle of the night in and of its self constitutes a threat.

Dude read the statement.

in a case where the uninvited person was suffering from dementia or other debilitating medical issue and not displaying any threatening actions

"Dude read the statement." :uhoh:

Being in my house without my permission, having broken down my door, is in and of its self a threatening action.

If you want to sit down with the stranger in your home, pull out your DSM-IV, and diagnose their mental state be my guest. I'm not going to take the chance.

And you did not read this "If you can articulate there is an imminent threat then by all means protect yourself and family." lol

 

[Aaron1124]

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I think everyone here pretty much agrees in the end.

 

[Bob Warden]

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The one area of misunderstanding is the application of RCW 9A.16.050(2).

Homicide is also justifiable when committed:
(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

BigDave said this:
"Even in defense of our homes we must be able to articulate Ability, Opportunity and Jeopardy as one of the major considerations as to the use of deadly force is that you were in imminent fear for your life or limb.
There is No Free Pass
Someone being in your home uninvited could be argued that Opportunity and Jeopardy have been met but what about Ability?"

On this point, BigDave is simply incorrect. The legal standard for justifiable homicide in this statute does not involve any such considerations. In your home, during the commission of burglary (a felony involving only the fact of having broken into someone's home), the home owner is indeed legally free to open fire. It pretty much is a free pass. Washington is extremely burglar unfriendly compared to many, if not most states.

If the intruder has dementia, or is a friend of your kid, that is unfortunate, but it doesn't make the homicide unjustified. A tragic / sad outcome does not equal unjustified homicide.

This is not an opinion, this is the well-established law in Washington. I heard it straight from the mouth (in exhausting detail over several days of class) of U.W. Law Professor John Junker who wrote Washington's criminal code. The specific issue was on the bar exam I took in 1991. Since then, I have never even seen charges brought against anyone who shot and killed an intruder while both shooter and intruder were within the shooter's home.

 

[olypendrew]

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Everyone, including Bob W., should read the linked case in its entirety.

 

[BigDave]

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Bob Warden wrote:

The one area of misunderstanding is the application of RCW 9A.16.050(2).

Homicide is also justifiable when committed:
(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

BigDave said this:
"Even in defense of our homes we must be able to articulate Ability, Opportunity and Jeopardy as one of the major considerations as to the use of deadly force is that you were in imminent fear for your life or limb.
There is No Free Pass
Someone being in your home uninvited could be argued that Opportunity and Jeopardy have been met but what about Ability?"

On this point, BigDave is simply incorrect. The legal standard for justifiable homicide in this statute does not involve any such considerations. In your home, during the commission of burglary (a felony involving only the fact of having broken into someone's home), the home owner is indeed legally free to open fire. It pretty much is a free pass. Washington is extremely burglar unfriendly compared to many, if not most states.

If the intruder has dementia, or is a friend of your kid, that is unfortunate, but it doesn't make the homicide unjustified. A tragic / sad outcome does not equal unjustified homicide.

This is not an opinion, this is the well-established law in Washington. I heard it straight from the mouth (in exhausting detail over several days of class) of U.W. Law Professor John Junker who wrote Washington's criminal code. The specific issue was on the bar exam I took in 1991. Since then, I have never even seen charges brought against anyone who shot and killed an intruder while both shooter and intruder were within the shooter's home.

Well Bob with a statement of "the home owner is indeed legally free to open fire. It pretty much is a free pass." you indeed have a fool for an attorney.

 

[Bob Warden]

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olypendrew wrote:

Everyone, including Bob W., should read the linked case in its entirety.

The case is not on point as it does not deal with a burglary, or involve a shooting in the shooter's home. Show me a case that does.

 

[BigDave]

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STATE v. BRIGHTMANhttp://caselaw.findlaw.com/wa-supreme-court/1341062.html

¶ 32 The Nyland, Griffith, Brenner, and Castro cases support a conclusion that a justifiable homicide instruction based on either .050(1) or .050(2) depends upon a showing that the use of deadly force was necessary under the circumstances.   All of these courts implied that an individualized determination of necessity is required, contradicting the notion that deadly force is per se reasonable whenever a robbery or other violent felony is attempted.   Thus, a trial court may conclude, as a matter of law, that the use of deadly force was unreasonable where the defendant was attempting to recover a small amount of money from someone whom the defendant did not fear.   See State v. Madry, 12 Wash.App. 178, 181, 529 P.2d 463 (1974) (“A small sum of money is not worth the injury to human life or even the threatening of such injury which results from the use of  deadly force.”).   Because Brightman freely admitted that he did not fear Villa, we hold that the trial court was entitled to refuse to give a justifiable homicide instruction in this case.
​

It is pretty clear the courts do not see it is a free pass whenever a robbery or other violent felony is attempted.

How does this apply in our discussion, there is no stupid free pass to any issue of self defense as implied by Bob Warden and it is just irresponsible for suggesting such.

Know the laws and issues surrounding them for your sake and your families as your choices will depend upon it.

If you are and can articulate that you were in fear for your life and your family and there was no other reasonable means to repel the intruder/burglar as seen through the eyes of a reasonable prudent man then you are with in the intent of the law.

olypendrew thanks for the reminder of reading the case over again as I did and find my position even stronger.

If you are willing I would like to hear your position on this issue as well, but I understand if you do not.

 

[Aaron1124]

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From: Goodhew, Ian (Ian.Goodhew@kingcounty.gov) Sent: Tue 7/14/09 6:53 AM To: aaron112486@hotmail.com .ExternalClass .ecxhmmessage P {padding-right:0px;padding-left:0px;padding-bottom:0px;padding-top:0px;} .ExternalClass BODY.ecxhmmessage {font-size:10pt;font-family:Verdana;} [align=left]
Dear Mr. Braun,[/align] [align=left][/align] [align=left]Thank you for contacting the King County Prosecutor's Office regarding the defense of your home from a burglar and the justifiable homicide statute. We appreciate hearing from you on this important topic.[/align] [align=left]Washington State lawclearly gives a homeowner the right to use all necessary force to repel the invasion of their home.Our office has not charged a homeowner for using force against a burglarin the past.[/align] [align=left][/align] [align=left]However, every case must be reviewed on its own facts for whether the use of force was reasonable and necessary before we apply the justifiable homicide statute. We oftenencounter cases where the level offorce used in response to the level of threat posed is unreasonable and unnecessary. Wewould review every use of force caseindependently.[/align] [align=left][/align] [align=left]I hope this information has been helpful.[/align] [align=left][/align] [align=left]Sincerely,[/align] [align=left][/align] [align=left]Ian Goodhew[/align] [align=left]King County Prosecutor's Office
[/align]

 

[Bob Warden]

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BigDave wrote:

Bob Warden wrote:

The one area of misunderstanding is the application of RCW 9A.16.050(2).

Homicide is also justifiable when committed:
(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

BigDave said this:
"Even in defense of our homes we must be able to articulate Ability, Opportunity and Jeopardy as one of the major considerations as to the use of deadly force is that you were in imminent fear for your life or limb.
There is No Free Pass
Someone being in your home uninvited could be argued that Opportunity and Jeopardy have been met but what about Ability?"

On this point, BigDave is simply incorrect. The legal standard for justifiable homicide in this statute does not involve any such considerations. In your home, during the commission of burglary (a felony involving only the fact of having broken into someone's home), the home owner is indeed legally free to open fire. It pretty much is a free pass. Washington is extremely burglar unfriendly compared to many, if not most states.

If the intruder has dementia, or is a friend of your kid, that is unfortunate, but it doesn't make the homicide unjustified. A tragic / sad outcome does not equal unjustified homicide.

This is not an opinion, this is the well-established law in Washington. I heard it straight from the mouth (in exhausting detail over several days of class) of U.W. Law Professor John Junker who wrote Washington's criminal code. The specific issue was on the bar exam I took in 1991. Since then, I have never even seen charges brought against anyone who shot and killed an intruder while both shooter and intruder were within the shooter's home.

Well Bob with a statement of "the home owner is indeed legally free to open fire. It pretty much is a free pass." you indeed have a fool for an attorney.

Well BigDave what I actually said was, "In your home, during the commission of burglary (a felony involving only the fact of having broken into someone's home), the home owner is indeed legally free to open fire." That is true and not even particularly controversial. According to Ian Goodhew of the King County Prosecutor's office, King County has NEVER charged a homeowner for using force against a burglar! If I'm a fool, then so is Professor Junker, and every King County Prosecutor in history!

 

[Bob Warden]

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BigDave wrote:

STATE v. BRIGHTMANhttp://caselaw.findlaw.com/wa-supreme-court/1341062.html

¶ 32 The Nyland, Griffith, Brenner, and Castro cases support a conclusion that a justifiable homicide instruction based on either .050(1) or .050(2) depends upon a showing that the use of deadly force was necessary under the circumstances.   All of these courts implied that an individualized determination of necessity is required, contradicting the notion that deadly force is per se reasonable whenever a robbery or other violent felony is attempted.   Thus, a trial court may conclude, as a matter of law, that the use of deadly force was unreasonable where the defendant was attempting to recover a small amount of money from someone whom the defendant did not fear.   See State v. Madry, 12 Wash.App. 178, 181, 529 P.2d 463 (1974) (“A small sum of money is not worth the injury to human life or even the threatening of such injury which results from the use of  deadly force.”).   Because Brightman freely admitted that he did not fear Villa, we hold that the trial court was entitled to refuse to give a justifiable homicide instruction in this case.
​

It is pretty clear the courts do not see it is a free pass whenever a robbery or other violent felony is attempted.

How does this apply in our discussion, there is no stupid free pass to any issue of self defense as implied by Bob Warden and it is just irresponsible for suggesting such.

Know the laws and issues surrounding them for your sake and your families as your choices will depend upon it.

If you are and can articulate that you were in fear for your life and your family and there was no other reasonable means to repel the intruder/burglar as seen through the eyes of a reasonable prudent man then you are with in the intent of the law.

olypendrew thanks for the reminder of reading the case over again as I did and find my position even stronger.

If you are willing I would like to hear your position on this issue as well, but I understand if you do not.

If you can find a Washington case where a homeowner was found guilty of murder or manslaughter after shooting a burglar who was in the homeowners home at the time of the shooting, then we have something relevant. BRIGHTMAN is not such a case, and simply is not relevant to the issue in this thread.

 

[Aaron1124]

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Bob Warden wrote:

BigDave wrote:

STATE v. BRIGHTMANhttp://caselaw.findlaw.com/wa-supreme-court/1341062.html

¶ 32 The Nyland, Griffith, Brenner, and Castro cases support a conclusion that a justifiable homicide instruction based on either .050(1) or .050(2) depends upon a showing that the use of deadly force was necessary under the circumstances.   All of these courts implied that an individualized determination of necessity is required, contradicting the notion that deadly force is per se reasonable whenever a robbery or other violent felony is attempted.   Thus, a trial court may conclude, as a matter of law, that the use of deadly force was unreasonable where the defendant was attempting to recover a small amount of money from someone whom the defendant did not fear.   See State v. Madry, 12 Wash.App. 178, 181, 529 P.2d 463 (1974) (“A small sum of money is not worth the injury to human life or even the threatening of such injury which results from the use of  deadly force.”).   Because Brightman freely admitted that he did not fear Villa, we hold that the trial court was entitled to refuse to give a justifiable homicide instruction in this case.
​

It is pretty clear the courts do not see it is a free pass whenever a robbery or other violent felony is attempted.

How does this apply in our discussion, there is no stupid free pass to any issue of self defense as implied by Bob Warden and it is just irresponsible for suggesting such.

Know the laws and issues surrounding them for your sake and your families as your choices will depend upon it.

If you are and can articulate that you were in fear for your life and your family and there was no other reasonable means to repel the intruder/burglar as seen through the eyes of a reasonable prudent man then you are with in the intent of the law.

olypendrew thanks for the reminder of reading the case over again as I did and find my position even stronger.

If you are willing I would like to hear your position on this issue as well, but I understand if you do not.

If you can find a Washington case where a homeowner was found guilty of murder or manslaughter after shooting a burglar who was in the homeowners home at the time of the shooting, then we have something relevant. BRIGHTMAN is not such a case, and simply is not relevant to the issue in this thread.

You guys seem to be disagreeing, but then saying the same thing in different words.

 

[skiingislife725]

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Like Aaron1124 said a while back, I think everyone is pretty much in agreement here. I think the problem lies in calling the use of lethal force a "free pass" in a burglary. While you are most likely not going to be charged, it isn't a sure bet, especially if the 12 watching your case don't think that that's what a reasonable person would do in the same situation.

And I think this case is even more relevant in the commission of second degree burglary, where it would be very difficult to prove that lethal force was necessary. And State v Brightman is completely relevant to this topic because it covers the topic of the use of lethal force during the commission of a felony, which is the SAME as someone breaking into your house, your garage, or your shop. It is a very recent case regarding this issue and from the article I was reading that referred to it, has reversed seventy five years of legal precedent.

Here's the link to the article, referring to a 2005 WA Supreme Court case. I searched for a bit and found State v Brightman, read through it (yawn), and figured this must be the case as it refers to not automatically using lethal force to defend against a felony.
http://www.personaldefensenetwork.c...defense-network/legal-issues-in-self-defense/

 

[Bob Warden]

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Burglary is unique in that it is a crime against real property, and no element of real or threatened violence is involved:
9A.52.025
Residential burglary.
(1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.

Further, the required intent is inferred by the fact of entering OR remaining unlawfully:
9A.52.040
Inference of intent.
In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.

Because of the unique nature of the felony of burglary, there is a fundamental difference between deadly force used inside vs. outside one's home. Shooting someone anywhere outside your home, even on your front porch, is legally very dicey, and shooters get charged all the time. Inside your house, however, is a very different story. So Brightman, as instructive as it may be for shootings involving felonies other than burglary, just is not on point in the case of defense of home, inside of home.

 

[killchain]

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Bob Warden wrote:

Burglary is unique in that it is a crime against real property, and no element of real or threatened violence is involved:
9A.52.025
Residential burglary.
(1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.

Further, the required intent is inferred by the fact of entering OR remaining unlawfully:
9A.52.040
Inference of intent.
In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.

Because of the unique nature of the felony of burglary, there is a fundamental difference between deadly force used inside vs. outside one's home. Shooting someone anywhere outside your home, even on your front porch, is legally very dicey, and shooters get charged all the time. Inside your house, however, is a very different story. So Brightman, as instructive as it may be for shootings involving felonies other than burglary, just is not on point in the case of defense of home, inside of home.

Guess what? They are in my house without permission, committing a felony, and might hurt me and my family.

His fault.

 

[Bob Warden]

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killchain wrote:

Bob Warden wrote:

Burglary is unique in that it is a crime against real property, and no element of real or threatened violence is involved:
9A.52.025
Residential burglary.
(1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.

Further, the required intent is inferred by the fact of entering OR remaining unlawfully:
9A.52.040
Inference of intent.
In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.

Because of the unique nature of the felony of burglary, there is a fundamental difference between deadly force used inside vs. outside one's home. Shooting someone anywhere outside your home, even on your front porch, is legally very dicey, and shooters get charged all the time. Inside your house, however, is a very different story. So Brightman, as instructive as it may be for shootings involving felonies other than burglary, just is not on point in the case of defense of home, inside of home.

Guess what? They are in my house without permission, committing a felony, and might hurt me and my family.

His fault.

Exactly - the homeowner is not obligated to take that chance. Though the phrase seems to offend some, and may sound irresponsible to some, the homeowner IN HIS HOME is legally free to "open fire."

 

[BigDave]

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Aaron1124 posted:

Dear Mr. Braun,

Thank you for contacting the King County Prosecutor's Office regarding the defense of your home from a burglar and the justifiable homicide statute. We appreciate hearing from you on this important topic.

Washington State law clearly gives a homeowner the right to use all necessary force to repel the invasion of their home.

Our office has not charged a homeowner for using force against a burglar in the past. However, every case must be reviewed on its own facts for whether the use of force was reasonable and necessary before we apply the justifiable homicide statute.

We often encounter cases where the level of force used in response to the level of threat posed is unreasonable and unnecessary.

We would review every use of force case independently. I hope this information has been helpful. Sincerely, Ian Goodhew King County Prosecutor's Office

[align=left][/align][align=left]
[/align][align=left]STATE v. BRIGHTMANhttp://caselaw.findlaw.com/wa-supreme-court/1341062.html

¶ 32 The Nyland, Griffith, Brenner, and Castro cases support a conclusion that a justifiable homicide instruction based on either .050(1) or .050(2) depends upon a showing that the use of deadly force was necessary under the circumstances.   All of these courts implied that an individualized determination of necessity is required, contradicting the notion that deadly force is per se reasonable whenever a robbery or other violent felony is attempted.   Thus, a trial court may conclude, as a matter of law, that the use of deadly force was unreasonable where the defendant was attempting to recover a small amount of money from someone whom the defendant did not fear.   See State v. Madry, 12 Wash.App. 178, 181, 529 P.2d 463 (1974) (“A small sum of money is not worth the injury to human life or even the threatening of such injury which results from the use of  deadly force.”).   Because Brightman freely admitted that he did not fear Villa, we hold that the trial court was entitled to refuse to give a justifiable homicide instruction in this case.

[/align][align=left]When one reads the above information it is clear that issues of using deadly force either it be in the place of abode or out in public.[/align][align=left]The general message here is that the force is not more than necessary I do not see why this message is so hard to understand?[/align][align=left]It is clearly not a free from repercussion even though they are in your home.[/align][align=left]I fully agree for the most part that any able bodied person breaking into your home and is a threat, is what this RCW is for, by all means defend yourself, it is however not a license to blast away you must access the threat.[/align][align=left]If you were to find someone such as an elderly person that came in and sat down on the couch posing no threat, you cannot use deadly force upon them even though technically they are a burglar.
[/align][align=left]The issue of Not More Than Necessary goes far beyond inside the home it covers all acts as does the Reasonable Man Doctrine.[/align][align=left]The issue of your place of abode to include your attached porch or garage is dealing with an exception of unlawful display leading up to the use of deadly force but not the actually use of deadly force.[/align][align=left]
[/align]

 

[antispam540]

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Let's put this to rest, BigDave. Yes, if you know it's an old man sitting down on your couch with no weapons or threatening motions, then it'd be dumb to shoot him. The problem is, when someone breaks into your house, you're not going to know if it's an unarmed mentally ill person, an ancient man who only wants to sit on your sofa, or an armed BG intending to harm you or your family. In cases where you DON'T KNOW who it is and what their intent / capabilities are, and a reasonable person COULD believe their life is in danger, THEN you ARE justified in shooting.