• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

Use of a toy gun results in murder charges.

OC for ME

Regular Member
Joined
Jan 6, 2010
Messages
12,452
Location
White Oak Plantation
<snip> But, c'mon. They went in with a toy gun. Clearly they didn't intend to shoot the homeowner. Where's the mens rea for murder? <snip>
Interesting observation.
However, cops have the green light to drop you when you "display" what ends up being a toy gun. Where was/is the mens rea that justifies the cop dropping a perp with a toy gun. If it looks like a gun it is a gun.

Just cuz the perps knew it was not a gun is irrelevant.
 

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
Interesting observation.
However, cops have the green light to drop you when you "display" what ends up being a toy gun. Where was/is the mens rea that justifies the cop dropping a perp with a toy gun. If it looks like a gun it is a gun.

Just cuz the perps knew it was not a gun is irrelevant.

Yes, and we can blame the loss of HMS Britannic on the nurses who left the portholes open to air out the hospital bays on the morning she struck a mine. But, its neither here nor there with regard to the intent of the U-boat commander who laid the mine.

I was clearly speaking to mens rea of the burglars/home invaders, whichever they were. Not whether a cop or homeowner is justified in shooting. Stick to the subject if you're going to counter me with comments like "Just cuz...irrelevant."
 

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
Well there is clearly mens rea for the felony that directly caused the death.

I see your point, but so far I've not been convinced that this is a bad thing. I have no tolerance for people who purposely and with premeditation cause harm to others. A world where thugs can intimidate innocent people with even phony deadly weapons should not exist.

If you think they should not be in long-term prison for this, then we can actually agree, though possibly because of different alternatives.

Its not something I'm going to launch a crusade against; but, we don't need government twisting things. (Assuming it really is a twist.) The same mechanism has made it "terroristic" to for a junior high student to call in a bomb threat in order to avoid a history test. Ditto for the angry parent who threatens the parent of a bully by phone. These things were never connected to terrorism until government came along. Terrorism clearly has always included the demand for political change as part of the violence or threat of violence. And, included mass murder or hijacking with the threat of murder.
 

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
Well there is clearly mens rea for the felony that directly caused the death.

I see your point, but so far I've not been convinced that this is a bad thing. I have no tolerance for people who purposely and with premeditation cause harm to others. A world where thugs can intimidate innocent people with even phony deadly weapons should not exist.

If you think they should not be in long-term prison for this, then we can actually agree, though possibly because of different alternatives.

Thank you. You and OCforMe just jogged something for me.

The felony did not directly cause the death. The homeowner did.

Even the statute plays fast and loose with the language: (B) No person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit an offense of violence that is a felony of the first or second degree... If its the proximate result, then that person was not the cause. The statute is expressly conflating cause and effect.

Nevermind that the statute is criminalizing something that cannot really be predicted, by which I mean only a suicide would knowingly enter such a situation intending to die. Any confederate who knew with certainty he would die would decline to attend. How on earth is a confederate supposed to know going into it that somebody will die such that he can avoid violating the statute? One of element of law is that it is supposed to put people on notice as to what is prohibited so they can avoid violating the law. Can't be done in this case.

Now, if the statute were written differently to criminalize a failure to predict the possibility of an unintended death--in the vein of say, negligent manslaughter--then maybe that would fit better. But, such still seems a power-grab by government. They can still put the bad guy away for the actual crime of aggravated burglary, which gets you what? Seven to ten years, about the same for manslaughter?

The more I think about this, the less sense such a statute makes. I don't like criminals running around loose; but I like even less the biggest batch of organized criminality in history--government--even less.
 

OC for ME

Regular Member
Joined
Jan 6, 2010
Messages
12,452
Location
White Oak Plantation
Yes, and we can blame the loss of HMS Britannic on the nurses who left the portholes open to air out the hospital bays on the morning she struck a mine. But, its neither here nor there with regard to the intent of the U-boat commander who laid the mine.

I was clearly speaking to mens rea of the burglars/home invaders, whichever they were. Not whether a cop or homeowner is justified in shooting. Stick to the subject if you're going to counter me with comments like "Just cuz...irrelevant."
You raised the issue of mens rea. The fact that a toy gun was used is irrelevant. The intent (mens rea) is clearly evident, if it looks like a gun it is a gun. All of them were intent upon committing a felony crime using a toy gun (not smart) as a means to that end.
 

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
You raised the issue of mens rea. The fact that a toy gun was used is irrelevant. The intent (mens rea) is clearly evident, if it looks like a gun it is a gun. All of them were intent upon committing a felony crime using a toy gun (not smart) as a means to that end.

Oh, pleeeeez pay attention and use your noggin. I was clearly speaking to the point that the criminals couldn't possibly have intended to shoot anyone since it was a toy gun. That completely undermines intent to murder. I said so. Give me an effing break.

You have a valid point--it just doesn't invalidate mine as being irrelevant.
 
Last edited:

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
I just thought of something.

Rhetorical question: I wonder how many times an innocent was killed during a SWAT raid, and the whole paramilitary squad in attendance was charged with felony murder?
 
Last edited:

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
Interesting observation.
However, cops have the green light to drop you when you "display" what ends up being a toy gun. Where was/is the mens rea that justifies the cop dropping a perp with a toy gun. If it looks like a gun it is a gun.

Just cuz the perps knew it was not a gun is irrelevant.

Wendy's branch was robbed. The robber said he had a gun. He did not. He was charged with and convicted or armed robbery.

It was reasonable for the tenant to fear for his life and shoot in self-defense. That is a foreseeable direct consequence of invading a home with a toy gun, therefore the invaders are responsible for the shooting.

Intent follows the bullet--in this case, the reasonably foreseeable bullet from tenant's gun.


Sent from my iPad using Tapatalk.

<o>
 

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
Oh, pleeeeez pay attention and use your noggin. I was clearly speaking to the point that the criminals couldn't possibly have intended to shoot anyone since it was a toy gun. That completely undermines intent to murder. I said so. Give me an effing break.

You have a valid point--it just doesn't invalidate mine as being irrelevant.

The criminals don't have to intend to shoot anyone. They only have to intend to commit a felony in which a foreseeable consequence is that somebody shoots and kills someone else during that felony and as a direct result of that felony.

Invading a home with a toy gun does make a fatal shooting quite foreseeable.


Sent from my iPad using Tapatalk.

<o>
 

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
I just thought of something.

Rhetorical question: I wonder how many times an innocent was killed during a SWAT raid, and the whole paramilitary squad in attendance was charged with felony murder?

If what the members of the squad did was a felony, then they could be charged with felony murder. The problem is whether the legal system will view it as such. One must first be guilty of a felony to be guilty of felony murder. No conviction for the felony means no conviction for felony murder.


Sent from my iPad using Tapatalk.

<o>
 

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
The criminals don't have to intend to shoot anyone. They only have to intend to commit a felony in which a foreseeable consequence is that somebody shoots and kills someone else during that felony and as a direct result of that felony.

Invading a home with a toy gun does make a fatal shooting quite foreseeable.


Sent from my iPad using Tapatalk.

<o>

You know you, and OCforMe sound like a broken record:

"You are stupid Citizen, you will stop questioning the validity of the law just because we make a buncha posts premised on the law being valid. You are too dumb to recognize our hidden premise even while you yourself are questioning it."
 

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
You know you, and OCforMe sound like a broken record:

"You are stupid Citizen, you will stop questioning the validity of the law just because we make a buncha posts premised on the law being valid. You are too dumb to recognize our hidden premise even while you yourself are questioning it."

I said nothing of the sort. DO NOT put words in my mouth. If you do not accept my explanation of the law, great. It is your choice. It is your opinion.

However, I have not called you dumb or stupid. Those words in quotes ARE YOURS. If that is YOUR self-talk, so be it. Do not dishonestly attribute those ideas to me. I will say this about you: You are being dishonest in that post.

Moving on.
 

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
I said nothing of the sort. DO NOT put words in my mouth. If you do not accept my explanation of the law, great. It is your choice. It is your opinion.

However, I have not called you dumb or stupid. Those words in quotes ARE YOURS. If that is YOUR self-talk, so be it. Do not dishonestly attribute those ideas to me. I will say this about you: You are being dishonest in that post.

Moving on.

Nice evasion, buster. You absolutely do consider me stupid. You absolutely do consider that if you keep spouting the law from the premise that it is valid, I will suddenly accept your unstated premise.

Your only other option is that you weren't paying attention and thought I was arguing what the law said, instead of whether the law made sense.

'Nuff said. Moving on. Not looking back. Not going to waste my time with [those] who can't be bothered to pay attention or actually discuss what is being discussed. Etc, etc, etc.

Comment Edited by Administrator to remove personal attack
 
Last edited by a moderator:

We-the-People

Regular Member
Joined
Aug 13, 2009
Messages
2,221
Location
White City, Oregon, USA
Again, that any warrant because of any thing one of the criminals might have said is SPECULATION. The only thing we know is that at least part of the home was searched due to being a crime scene, which would be reasonable. Such a search would not include hard drives as, absent a warrant that named the kind of evidence that could be found on a hard drive, one could not reasonably expect to find evidence relating to a simple home invasion and defensive shooting on the hard drive.

The search no doubt was to find shell casings and other evidence directly related to the invasion and defensive shooting. Anything else is speculation. Outrage over speculation is kinda silly. So, again, I recommend we stop talking about what might have happened and focus on what did.

I was not speculating on this particular case, I was merely commenting on a statement that the local PD isn't going to sieze hard drives for crimes such as this. In fact many, if not most, search warrants today include the siezure of digital records that may contain evidence. With todays high usage of digital media, such requests are routinely authorized in warrants so long as the application and affidavit make a reasonable argument that there may be evidence contained within digital equipment and media. Seizures of such equipment in order to search for a link between the victim and assailants is not beyond the scope of what is happening in the real world. Considering that the victim is facing a murder charge at the time of the investigation (justifiable homicide is a legal DECISION made by a district attorney or the court, not the fact that the shooting occurred in your home), a judge or magistrate is highly unlikely to disapprove seizure and subsequent search of the digital materials within the home if the application and affidavit make a half way decent argument that they are necessary to do a complete investigation.

The kind of evidence that would be named on the warrant would be "sieze all digital equipment and media capable of recording or communicating including computers, computer hard drives, portable storage devices, digital phones and cameras, modems, routers, including electronic, and optical storage equipment and media. To search said equipment and media for e-mails, browser history, word processing documents, posts on social media, posts on blogs, posts on web boards, video or photographic depictions, audio recordings discussing violence or violent tendencies, (and there is more). That may contain evidence of any prior contact between the suspect and the victim (remember the suspect is now our intrepid home owner), of any premeditation to commit violence, (and whatever else they've had success with in the past with the particular magistrate they're applying to for their warrant).

The digital footprint that most people leave on any given day is huge and most are clueless that they are leaving it. Not only our active online "travels" but our cell phones, IPods, and computers leave location information everywhere we take them. The digital footprint left by our cars is nearly unknown and growing exponentially. Pulling the data in your cars computer can give details of speeds, times, brake application, and even location if equipped with GPS. Those nifty services like OnStar have massive amounts of digital imformation on where your car has been and how its been operated. Then there are the myriad video cameras, both private and public, that observe our movements.

The police are becoming more and more knowledgeable about these digital footprints and including searches and siezures of the data in their warrant applications on an ever more frequent basis. Big Brother is watching and he is very likely to want to dig into your digital footprint if you ever come under their scrutiney. This is not speculation, it is what appears on warrants in this country on a daily basis for "crimes" that are totally unrelated to computers and computerized communications. The only "restrictions" on their ability to sieze everything digital is the person signing the warrant and that's not always a judge or even a lawyer. The scary part is that if they come across something totally unrelated to their immediate search, but criminal, if they immediately stop looking at it and apply for a new warrant, it will be held up as admissable in court.

What is speculation is saying "the search no doubt was to find shell casings....". There's a good probability of that, but without knowing for a certainty, it's just speculation.
 

eye95

Well-known member
Joined
Jan 6, 2010
Messages
13,524
Location
Fairborn, Ohio, USA
Just remember that, if it does not work, not only would you face charges like obstruction, but your self-defense claim immediately becomes suspect. Some level of intentional homicide would become a possible charge.
 

OC for ME

Regular Member
Joined
Jan 6, 2010
Messages
12,452
Location
White Oak Plantation
Oh, pleeeeez pay attention and use your noggin. I was clearly speaking to the point that the criminals couldn't possibly have intended to shoot anyone since it was a toy gun. That completely undermines intent to murder. I said so. Give me an effing break.

You have a valid point--it just doesn't invalidate mine as being irrelevant.
I understand your premise, I simply disagree. Though I did not clearly state that. My apologies. Your thinly veiled insult re my intelligence is noted. I'll get over it, no big deal.

It is obvious that the perps could not shoot anyone, irrelevant in my view given the Ohio law provided by MKEgal in Post #8. Their intent was to enable the victim to think that they could be shot, use lethal force to perpetrate their crime(s).

I think the wording of the law is a key element. While cops and prosecutors do charge folks with stuff that they likely know will be dismissed. Where murder is concerned I tend to think that they have more confidence in getting that charge to stick else they would not make the charge.

You are stupid Citizen, you will stop questioning the validity of the law just because we make a buncha posts premised on the law being valid. You are too dumb to recognize our hidden premise even while you yourself are questioning it.
The high regard in which I hold you is somewhat diminished as a result of this statement and the statement re my intelligence.
 
Top