NO shooting and the Castle Doctrine

[Kulaf]

http://www.nola.com/crime/index.ssf/201 ... rt_m-rpt-2

A new one.

My initial reaction is that this is not justified. He was under no threat of force at all. His perception that the kid was "making a move" will not meet the reasonableness test for LA's Castle Doctrine which states:

§19. Use of force or violence in defense

A. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.

B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:

(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.

(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.

C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.

D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.

and

§20. Justifiable homicide

A. A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.

(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.

(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.

(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.

B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:

(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.

(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.

C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.

D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

I think this guy will get manslaughter.

[Ddrak]

I'm assuming the kid doesn't die...

Trespass is not forced entry (I assume). If the kid is in the front yard, it may not even be trespass (people usually have a right to come to your front door unless you explicitly state otherwise), which just makes the whole thing somewhere on the assault spectrum.

If I was this guy, I'd be terrified of the civil suit coming his way, not the criminal one.

Dd

[Partha]

Sorry, this one's innocent too.

[Kulaf]

I'm assuming the kid doesn't die...

Trespass is not forced entry (I assume). If the kid is in the front yard, it may not even be trespass (people usually have a right to come to your front door unless you explicitly state otherwise), which just makes the whole thing somewhere on the assault spectrum.

If I was this guy, I'd be terrified of the civil suit coming his way, not the criminal one.

Dd

He had a gated yard and it was 2am. Clearly the kid was entering the yard to do something shady, the family even admits that. I believe in LA the "home" extends to the property line. So him being in the yard invokes the castle doctrine.

[Ddrak]

You think just being in the yard is forced entry, not trespass? I don't know LA law well enough, but that sounds like a stretch.

Dd

[Kulaf]

You think just being in the yard is forced entry, not trespass? I don't know LA law well enough, but that sounds like a stretch.

Dd

Well that is how I am reading this: (emphasis mine)

The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.

[Embar Angylwrath]

I think the use of force was unjustified. He skipped over all the less than lethal options, like just shouting, or firing a the gun away from the teen. They guy had cover in the house. Castle doctrine in LA requires the least amount of force necessary be used to protect self and property.

[Kulaf]

I think the use of force was unjustified. He skipped over all the less than lethal options, like just shouting, or firing a the gun away from the teen. They guy had cover in the house. Castle doctrine in LA requires the least amount of force necessary be used to protect self and property.

Why not call the police as the first option?

[Embar Angylwrath]

That too. My point was he had plenty of other non-lethal options at his disposal, to attempt to deter the crime. He went straight for the deadly force though, and he was in no immediate danger. He clearly intended to shoot the perpetrator.

Not murder 1 (not pre-meditated). Possibly murder 2 if the prosecution can show a history of animus towards blacks by the defendant. Definitely manslaughter 1 though I think.

[Tarfang_Trubasher]

...firing a the gun away from the teen.

I really hope that's a mistype as it violates "Rule 4" of the "four essential gun rules"...

Back to the article -- It is likely Castle Doctrine will be upheld, but will come under similar scrutiny that Stand Your Ground is now under. It's amazing how some of these stories are now mainstream news. Fits right into the current anti-gun tone. /tinfoil hat

This is probably the most brutal aspect of Castle Doctrine. It does allow for trespass with a boundary of property lines. After all, what innocent thing could someone at 2AM in the backyard of someones gated property, and near a parked vehicle be doing? Now, does that justify being shot in the head? Shot period? This is a typical slippery slope item -- can Muslims build a mosque at ground zero? Legally, yes. Is it socially sensitive? No, not really. He should've called the police, alerted them to his heightened sense of suspicion, and kept an eye on the individual.

I often wonder if brandishing being legal when tethered with citizens arrest wouldn't solve some of these types of incidents. Obviously, there are people in this world that can't wait to shoot someone and make a statement. But they, thankfully, are in the minority. Unfortunately, the whole usually suffers at the actions of the few. Castle Doctrine has great protections built into it, but like any law, has points of abuse.

-TF

[Arathena]

You think just being in the yard is forced entry, not trespass? I don't know LA law well enough, but that sounds like a stretch.

Dd

The basic intent of legislation since the mid-nineties has been to widen the situations in which it's okay to kill someone. The castle doctrine, however, as interpreted by some district attorneys in Louisiana, requires that the intruder be using force in the commission of his crime in order for it to be legal to kill him - the forcible carries over to the tresspass part. If he shoots the house or crowbars in the door and brandishes it at you, shoot him, else if it is not reasonable to be in fear of your life, you don't get to shoot first.

That said, I'm thinking the killer will get off scott-free. 2 am intruder on the yard, history of burglary, this guy ain't going to jail even before the racial angle hits.

[Embar Angylwrath]

Hope you're wrong Ara. For all the good reasons.

I know laws are just words, and words are silly putty, but for me it comes down to this. If one believes there is imminent threat of great bodily harm of one's person or another's person, or imminent threat to loss of property, I think lethal force is justified. As I have said, I personally would not use deadly force to prevent property loss, whatever I have isn't worth the nights I'd lay awake wondering if I could have done something different. But an attack on me, my family, or other, one where I thought there would be significant bodily harm, I would use deadly force, and I wouldn't hesitate.

[Partha]

If one believes there is imminent threat of great bodily harm of one's person or another's person, or imminent threat to loss of property, I think lethal force is justified.

Like we all said, Trayvon should have totally killed that bitch.

[Embar Angylwrath]

If one believes there is imminent threat of great bodily harm of one's person or another's person, or imminent threat to loss of property, I think lethal force is justified.

Like we all said, Trayvon should have totally killed that bitch.

The evidence suggests he certainly tried.