BAD: Victim of Home invasion shot with his own gun

[oakchas]

Wall Street Journal Story

I won't go into the wisdom of confronting a BG in your home with a .22 rifle.

[DefensiveCarry.com]

[Moga]

That's because in NYS the subjects are required to retreat before using deadly force. The home owner would likely face charges pending his release from the hospital had he shot an unarmed intruder in his home. Can you imagine that? Possibly why he didn't fire.

The only thing I miss about upstate NY is the finger lakes. Cayuga is a beauty and possibly my favorite. Oh yeah, that and the Adirondacks.

[bladenbullet]

That's because in NYS the subjects are required to retreat before using deadly force. The home owner would likely face charges pending his release from the hospital had he shot an unarmed intruder in his home. Can you imagine that? Possibly why he didn't fire.

The only thing I miss about upstate NY is the finger lakes. Cayuga is a beauty and possibly my favorite. Oh yeah, that and the Adirondacks.

i would question that description and it goes against the use of deadly force classes i took as a resident of nys with a prominent district attorney....

the homeowner confronted the man with a gun and ended up in a struggle that got him shot...its pretty obvious he was in a situation that would defend using his firearm to protect himself...a more accurate description of the cause would probably be that even though he armed himself he hadnt prepared himself to use the firearm as necessary...mindset is usually where the game is lost...i would venture t guess (purely speculation) that he thought the appearance of using a gun would be enough to deter the criminal...it wasnt and it could have cost him his life...

in addition to the finger lakes region the adirondaks and thousand islands are sorely missed....

[fastk9dad]

That's because in NYS the subjects are required to retreat before using deadly force. The home owner would likely face charges pending his release from the hospital had he shot an unarmed intruder in his home. Can you imagine that? Possibly why he didn't fire.

The only thing I miss about upstate NY is the finger lakes. Cayuga is a beauty and possibly my favorite. Oh yeah, that and the Adirondacks.

No we aren't.

§ 35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use
physical force upon another person when and to the extent he or she
reasonably believes such to be necessary to defend himself, herself or a
third person from what he or she reasonably believes to be the use or
imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to
cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the
use of physical force is nevertheless justifiable if the actor has
withdrawn from the encounter and effectively communicated such
withdrawal to such other person but the latter persists in continuing
the incident by the use or threatened imminent use of unlawful physical
force; or
(c) The physical force involved is the product of a combat by
agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or
about to use deadly physical force. Even in such case, however, the
actor may not use deadly physical force if he or she knows that with
complete personal safety, to oneself and others he or she may avoid the
necessity of so doing by retreating; except that the actor is under no
duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police
officer or a peace officer at the latter's direction, acting pursuant to
section 35.30; or
(b) He or she reasonably believes that such other person is committing
or attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing
or attempting to commit a burglary, and the circumstances are such that
the use of deadly physical force is authorized by subdivision three of
section 35.20.

[Hopyard]

the homeowner confronted the man with a gun and ended up in a struggle that got him shot...its pretty obvious he was in a situation that would defend using his firearm to protect himself...a more accurate description of the cause would probably be that even though he armed himself he hadnt prepared himself to use the firearm as necessary...

Unfamiliar with disarms and recovery.

[Janq]

Thirded, NY State residents are _not_ required to retreat.

That is false....And we've had numerous real world examples of good shoot events posted right here in this sub-area featuring NY State and even NYC residents as recent as this past fall (man repels gang from his stoop).
Folk from NY state are just behind Florida in the number of home defense new storys posted here monthly.

As to the event, ironically it worked out for the homeowner that he did not have an appropriate defense caliber firearm at hand.
Otherwise he'd might have lost his leg (12GA 00 Buck) or worst.

This is one of the reasons why many civilian instructors advisors suggest against longguns for home defense and prefer handguns.
Barrel length makes it very much easier to grab and redirect the muzzle away from the threat, as by the threat, and even back toward the gun handler within close quarters.

Hopefully the homeowner doesn't suffer his wound overly.
Imagine though the horror and humiliation he must have felt finding his _longgun_ being negated and at that laid out on his own floor shot and immobilized (effectively neutralized) only to in the end suffer taunts and watch as his attacker takes his stuff anyway...And choose to allow the homeowner to continue living as rather than to snuff him. : |

- Janq

[Moga]

i would question that description and it goes against the use of deadly force classes i took as a resident of nys with a prominent district attorney....

the homeowner confronted the man with a gun and ended up in a struggle that got him shot...

<snip>

I based my comments on the absence of mention of the intruder being armed in the reported story. If the intruder was armed, that would completely alter any analysis of the situation that I'd make. Just curious, but the class that you mentioned attending, in what county would that be? The DA from Monroe or Erie would likely tell you something very different from his or her counterpart in Madison or Oneida, for instance. Not that it matters to the discussion at hand at all -- just curious as I've stated.

Fastk9dad, thanks for making reference to NY Penal Law. I appreciate that, but without case law to show how that provision has actually been applied in a state criminal case to defendants who have used deadly force in their home against burglars/invaders, I'm not able to draw any conclusions. The two components have to be viewed together as compliments. I'm not well versed on NYS firearm law and won't pretend to speak with any authority but trial transcripts will flush out the other areas of NYSPL that may be in conflict. There may not be too, IDK.

Anyhow, glad to know that the home owner is going to be okay.

ETA: I acknowledge that NYS *law* doesn't require a duty to retreat in defense of the home under certain circumstances. Although I was operating on the premise that the intruder was unarmed when making my comments, the code you referenced corrected a misconception I held. Thanks. Now I need to seek out case law to really cement it all in place.

[Moga]

Thirded, NY State residents are _not_ required to retreat.

That is false....And we've had numerous real world examples of good shoot events posted right here in this sub-area featuring NY State and even NYC residents as recent as this past fall (man repels gang from his stoop).
Folk from NY state are just behind Florida in the number of home defense new storys posted here monthly.

As to the event, ironically it worked out for the homeowner that he did not have an appropriate defense caliber firearm at hand.
Otherwise he'd might have lost his leg (12GA 00 Buck) or worst.

This is one of the reasons why many civilian instructors advisors suggest against longguns for home defense and prefer handguns.
Barrel length makes it very much easier to grab and redirect the muzzle away from the threat, as by the threat, and even back toward the gun handler within close quarters.

Hopefully the homeowner doesn't suffer his wound overly.
Imagine though the horror and humiliation he must have felt finding his _longgun_ being negated and at that laid out on his own floor shot and immobilized (effectively neutralized) only to in the end suffer taunts and watch as his attacker takes his stuff anyway...And choose to allow the homeowner to continue living as rather than to snuff him. : |

- Janq

Interesting Janq. I will definitely have to look a little closer for those stories.

[Janq]

Moga,

The gang story was just this past fall like September or so and it was a big/long thread here.
Small stature black man uses an AK47 to repel a group of males who came to his home at his stoop stating they were going to force entry to harm him and his brother as well as rape his wife...As I recall.

It had a video feature with interview of the homeowner/victim.
This was a well discussed item here at that recent time.

- Janq

[bladenbullet]

regardless of county the facts are...

(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police
officer or a peace officer at the latter's direction, acting pursuant to
section 35.30; or
(b) He or she reasonably believes that such other person is committing
or attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing
or attempting to commit a burglary, and the circumstances are such that
the use of deadly physical force is authorized by subdivision three of
section 35.20.

it would be reasonable to assume one of these acts was being carried out...and proved so...

there is nothing wrong with a long gun used for home defense...it is improper use and lack of use altogether that gets homeowners into trouble...if you arm yourself you must be prepared to pull the trigger...i would venture to guess that in the vast majority of cases where gu owners were shot with their own firearm after they rpesented it that it was pointed at the criminal at some point before it was surrendered to them...

[Janq]

Agreed on both points Blade.

Deploy it...And USE it, rather than stop and show it for sake of conversation point and BG you better be scared & run hopes.

- Janq

[Moga]

I think the county in which an incident has occurred is very important. The wording of law and its application are two entirely different animals. The jury is sometimes allowed to determine guilt or innocence on a truncated subset of law. People in the cities are generally less sympathetic to the use of deadly force than others, even when the law says X, Y, Z. One grand jury may return a no-bill when another may indict, etc, etc. It is very much influenced by the familiarity of people to the right of self defense and their comfort level with citizens using firearms to fend off criminals. That varies from place to place but there are some generalities that can be drawn, thus my comments about Erie versus Madison, for instance.

For once and for all, was the perpetrator armed or not? The story as stated at WSJ doesn't mention any weapons used by the intruder. The presence of a weapon would seem to be a very important determinant of the options available to the home owner after the fact.

[fastk9dad]

Fastk9dad, thanks for making reference to NY Penal Law. I appreciate that, but without case law to show how that provision has actually been applied in a state criminal case to defendants who have used deadly force in their home against burglars/invaders, I'm not able to draw any conclusions. The two components have to be viewed together as compliments. I'm not well versed on NYS firearm law and won't pretend to speak with any authority but trial transcripts will flush out the other areas of NYSPL that may be in conflict. There may not be too, IDK.

Anyhow, glad to know that the home owner is going to be okay.

ETA: I acknowledge that NYS *law* doesn't require a duty to retreat in defense of the home under certain circumstances. Although I was operating on the premise that the intruder was unarmed when making my comments, the code you referenced corrected a misconception I held. Thanks. Now I need to seek out case law to really cement it all in place.

As Jang mentioned there were several incidents over the past year where a homeowner defended himself against an intruder. There was also another upstate case where a gentleman confronted someone out on the sidewalk in front of his house and didn't fair so well. In that case he should of retreated inside his home.

[Guantes]

Whether the case in this incident or not, I agree with BladenBullet and Jang that, often when confronted by their first potentially lethal encounter, some find that their resolve does not run as deep as they thought or had hoped.

[GunGeezer]

If you are awoken in the middle of the night by someone breaking in a door or window, armed or not, it would be pretty hard for them to make the case that they forgot their key and coincidentally were trying to get in the wrong house by breaking a door or window. Long gun or short, it would be shoot first, ask questions later. Just sayin"...