The Ugly in Buffalo

This is a discussion on The Ugly in Buffalo within the In the News: The Good, the Bad and the Ugly forums, part of the The Back Porch category; Home Owner shoots man in self defense, kills him. Grand Jury acquits. Widow sues in civil court. http://www.buffalonews.com/city/article313145.ece Jim...

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Thread: The Ugly in Buffalo

  1. #1
    Member Array violinjim's Avatar
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    The Ugly in Buffalo

    Home Owner shoots man in self defense, kills him. Grand Jury acquits. Widow sues in civil court. http://www.buffalonews.com/city/article313145.ece

    Jim

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  3. #2
    Senior Member Array DIABLO9489's Avatar
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    Unbelievable isn't it. I was reading that article while in the Ft. Lauderdale airport this afternoon.
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    VIP Member Array Guantes's Avatar
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    Revenge plus $$$$.
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    VIP Member Array mlr1m's Avatar
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    The lawsuit accuses David D'Amico of the "willful, intentional, malicious" slaying of Park, and acting "without just cause [or] provocation."
    Someone breaking into your house is not cause or provocation?
    "[The incident] occurred as a result of the fault, negligence and carelessness of D'Amico, without any negligence on the part of Park contributing thereto," attorney David H. Elibol said in court papers.
    So they claimed that D'Amico was negligent? In what way? For allowing Park, the drunk, to break in? They claimed that Park who gets drunk and breaks into someones house is not negligent?
    This is crazy. This is a case of lets gouge the insurance carrier, thats what its there for. It has nothing to do with justice.
    The home owner should appeal and then sue the estate of the person who broke in.

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    Member Array merlin82plus's Avatar
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    I live near Buffalo - will be sending this guy some money for his defense. Definitely sucks for all involved, and I don't know that I would have done anything different than the homeowner. NY has a version of the castle doctrine, but it does not protect you from civil suits. I bet the widow would use a gun (if she had one) if someone came wandering through her house at 1:30am and would not leave...

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    VIP Member Array Paco's Avatar
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    Quote Originally Posted by violinjim View Post
    Widow sues in civil court.
    God bless Texas and her Castle Doctrine.
    "Don't hit a man if you can possibly avoid it; but if you do hit him, put him to sleep." - Theodore Roosevelt

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    Distinguished Member Array Black Knight's Avatar
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    I hope D'Amico's got a shark for a lawyer. He should file a counter suit for harrassment and anything else they can come up with, and try to take everything she's got or ever will have.

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    David was an award-winning elementary school teacher whose life was cut short," he said.

    Yep, he was certainly a model citizen for his students...drunk and breaking into a stranger's home at 1:30 A.M.
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    VIP Member Array mcp1810's Avatar
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    I like the part about how the deceased was not a criminal. HELLO!!!!!!!
    He refused to leave the home when ordered to by the home owner. So at minimum he was trespassing. He entered the house without the owners permission in the middle of the night, (don't know the legal standard in New York) so he may also have been committing a burglary.
    As trespassing and burglary are crimes, and he was doing one or both at the time of his death, he was a criminal!
    What part of that don't these people understand?
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    Distinguished Member Array Fitch's Avatar
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    I agree this law suit is a perfect example of the sort of suit that should never be brought. That's what the Castle Doctrine is all about. This is a case of a lawfirm taking a chance that they can settle at the limit of the home owners insurance and avoid a countersuit for costs and mental anguish if they lose.

    That said, I think the whole lawsuit hinges on the fact that the door he entered through was not locked. So there wasn't any "breaking", only "entering". I don't know the significance of that. I think that will be the basis for the claim of negligance. The home owner thought the door was locked and assumed the perp broke in. I'd assume the same thing.

    Not sure what the jury will think about it. I personally think people shouldn't have to lock their doors, though we are careful to keep ours locked 24/7. Regardless, this is going to be expensive. Not sure how counter suits work.

    Fitch
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    Distinguished Member Array Black Knight's Avatar
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    I don't know how NY views breaking and entering but based on the last law based course I took here in Virginia the teacher was deffinately at fault. The door was closed and he opened it, that is considered breaking. It makes no difference that the door was unlocked. When he stepped across the threshold that was entering. He failed to leave when so ordered. He advanced toward the redsident who was at the top of the stairs where his family was. What was he going to do? If you were the resident what would you believe he was up to? The resident could reasonably believe that he was there to do harm to him and his family.

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    Quote Originally Posted by Black Knight View Post
    I hope D'Amico's got a shark for a lawyer. He should file a counter suit for harrassment and anything else they can come up with, and try to take everything she's got or ever will have.



    ^^^^^^^^^^YEP^^^^^^^^^^^^^^^

    It sounds as though he does in my book,,,


    These are taken from the article;;




    "[The incident] occurred as a result of the fault, negligence and carelessness of D'Amico, without any negligence on the part of Park contributing thereto," attorney David H. Elibol said in court papers.

    The lawsuit, which was filed earlier this month and obtained Friday by The Buffalo News, did not request specific monetary damages.

    Thomas H. Burton, D'Amico's attorney, said he was outraged by some of the allegations in the lawsuit.

    "Making an allegation like that is like a drunk driver, driving on the wrong side of the road, blaming the sober driver he hit for a collision," Burton said in an interview late Friday.



    and;;

    Police never were able to determine why Park entered the home at about 1:30 a.m. He had been attending a party at the house next door


    Police said a blood test determined that Park's blood-alcohol content was 0.18, more than twice the level needed to charge a motorist in this state with driving while intoxicated



    Because he was drunk.
    This is kind of like getting drunk, no matter if you are a Nobel Peace Prize winner, and driving off the Golden Gate Bridge.
    YOU are the Culpable individual, no one else.

    And;;;


    Police never were able to determine why Park entered the home at about 1:30 a.m. He had been attending a party at the house next door.

    Authorities said D'Amico had dialed 911 and was waiting for police to arrive when the shooting occurred. From the top of a stairway leading to his bedroom, he fired at Park at the bottom of the stairs.

    According to Burton, D'Amico was fearful because Park -- despite loud, repeated warnings -- walked "all the way through the house and kept advancing toward the stairway."D'Amico shot Park because he feared that Park was about to walk up the stairs and try to harm D'Amico and his wife, Julie.




    This shooting is a classic illustration as to why I'm glad Michigan, had Chris Cox for an Attorney General.

    Heres why,


    MCL 600.2922b, MCL 600.2922c, &
    MCL 777.21c
    The Self-Defense Act
    Effective October 1, 2006
    Public Acts 309 – 314 of 2006 comprise the “Self-Defense Act.” The Act affects criminal and civil liability for those who use force to defend themselves or others. Prior to this Act, the law of self-defense was gleaned primarily from the common law (judge-made law).
    General Provisions of the Act
    A person may use deadly force with no duty to retreat if (PA 309):
    1. They are not engaged in a crime
    2. They are in a place they have a legal right to be
    3. They honestly and reasonably believe deadly force is necessary
    4. The deadly force is used to prevent imminent death, great bodily harm, or sexual assault of the person or another
    A person may use force other than deadly force if (PA 309):
    1. They are not engaged in a crime
    2. They are in a place they have a legal right to be
    3. They honestly and reasonably believe force is necessary
    4. The force is used to prevent imminent unlawful force against the person or another
    Continued next page…
    MSP Legal Update, September 2006
    Page 2 of 4
    Self-Defense Act, continued
    Honest and Reasonable Belief
    The Act (PA 311) creates a rebuttable presumption that a person using force has an honest and reasonable belief that imminent death, great bodily harm, or sexual assault will occur if the person using force honestly and reasonably believes the person against whom force is used is any of the following:

    1. In the process of breaking and entering a dwelling or business
    2. In the process of committing a home invasion
    3. Has committed a breaking and entering or home invasion and is still present in the dwelling or business
    4. Is attempting to unlawfully remove a person from a dwelling, business, or vehicle against his or her will
    The presumption created by the Act does not apply in the following circumstances:
    1. The person against whom force was used has a legal right to be in the dwelling, business, or vehicle
    2. The person being removed from a dwelling, business, or vehicle is a child in the lawful custody of the person removing the child
    3. The person using force is engaged in a crime or using the business, dwelling, or vehicle to further a crime
    4. The person against whom force is used is a police officer attempting to enter a dwelling, business, or vehicle in the performance of his or her duties
    5. The person against whom force was used has a domestic relationship with the person using force and the person using force has a history of domestic violence as the aggressor
    Effect on the Common Law
    In circumstances not addressed in the Act, the common law of self-defense still applies with one exception: There is no longer a duty to retreat when a person is “in his or her own dwelling or within the curtilage of that dwelling.” This exception applies even in cases where the rest of the Act doesn’t apply (PA 313).

    A person who uses force in accordance with the Act is immune from civil liability for damages caused by the use of such force (PA 314). Additionally, courts must award attorney fees and costs to an individual who has been sued for using force and the court finds that the force was in accordance with the Act (PA 312).
    Criminal Liability
    Under the Act (PA 310), no crime has been committed when a person uses force as authorized. If a prosecutor believes that the force is not justified, he or she must provide evidence that the force used was not in accordance with the Act. Such evidence must be presented at the time of warrant issuance, preliminary examination, and trial.
    Effect on Law Enforcement
    The overall effect of the Act on police practice is minimal. Officers should still process suspected crime scenes as in the past. However, because of the duty imposed upon prosecutors by PA 310, officers should immediately consult with their prosecutor when investigating a case where self-defense has been claimed by the suspect or where the circumstances indicate that such a defense might be used at trial.
    In the absence of guidance from a prosecutor, officers should attempt to gather circumstantial or direct evidence that might show that use of force was unjustified, i.e., the circumstances listed in PA 309 did not exist.
    Public Act 309 of 2006 Public Act 310 of 2006
    Public Act 311 of 2006 Public Act 312 of 2006
    Public Act 313 of 2006 Public Act 314 of 2006

    Pee on NY and their stupid beliefs.
    Hope this guy is aquitted.


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    Senior Member Array DUNDEM's Avatar
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    Quote Originally Posted by Paco View Post
    God bless Texas and her Castle Doctrine.

    Agreed and Florida as well....lol.

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    Senior Member Array DUNDEM's Avatar
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    Quote Originally Posted by retsupt99 View Post
    David was an award-winning elementary school teacher whose life was cut short," he said.

    Yep, he was certainly a model citizen for his students...drunk and breaking into a stranger's home at 1:30 A.M.
    Agreed. I like the Attorney's analogy.

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    Quote Originally Posted by Paco View Post
    God bless Texas and her Castle Doctrine.
    NY has Castle Doctrine. We do not have to retreat in our own home.

    Immunity from civil liability is separate law.

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