Drug possesser , does he have a right to defend ?

Drug possesser , does he have a right to defend ?

This is a discussion on Drug possesser , does he have a right to defend ? within the In the News: The Good, the Bad and the Ugly forums, part of the The Back Porch category; http://www.mlive.com/news/annarborne...490.xml&coll=2 Victim, suspects charged Sides may testify against each other under new immunity law Wednesday, December 05, 2007 BY SUSAN L. OPPAT The Ann Arbor ...

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Thread: Drug possesser , does he have a right to defend ?

  1. #1
    Ex Member Array ibez's Avatar
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    Lightbulb Drug possesser , does he have a right to defend ?

    http://www.mlive.com/news/annarborne...490.xml&coll=2

    Victim, suspects charged
    Sides may testify against each other under new immunity law

    Wednesday, December 05, 2007
    BY SUSAN L. OPPAT
    The Ann Arbor News

    Three young men accused of plotting to rob a Lima Township homeowner for marijuana - including a teen who was shot in the back as they fled - are now facing charges for their alleged roles in the incident.

    And prosecutors may force the teens and the homeowner, who also is facing charges, to testify against each other under a relatively new immunity law.

    Police say Skyler J. Galloway, 18, Daniel L. Buckenburger, 20, and Bradley J. Tyler, 20, went to a home in the 9000 block of Dexter-Chelsea Road on Nov. 11 to rob the homeowner of drugs. The homeowner confronted the young men, and Galloway was shot in the back as they ran, police said.

    The night of the shooting, police arrested the homeowner. Gershom L. Avery, 53, is scheduled to appear in court Thursday on charges of assault with intent to commit murder, assault with intent to do great bodily harm less than murder, felonious assault, use of a firearm in the commission of a felony, and manufacture of marijuana, State Police Detective Sgt. James Bundshuh said.

    Prosecutors recently levied charges of attempted home invasion and conspiracy to commit home invasion against the three young men. They turned themselves in for arraignment and were released pending preliminary hearings this Thursday and Dec. 20.

    Avery is being held in the Washtenaw County Jail without bond. Bundshuh said the 9-mm rifle bullet that struck Galloway came within millimeters of his heart before it exited his chest.

    Avery, who previously had a contract with The Ann Arbor News to deliver newspapers, has called The News several times from jail and wrote a letter complaining about the charges and the State Police.

    Avery wrote that when he told State Police he was the victim in the crime - and that his home had been burglarized six times and his safe was cracked - Bundshuh arrested him and let the men go who tried to break into his house.

    "I think that the Michigan State Police believed any crime against me was justified if marijuana was involved,'' he wrote.

    Bundshuh said Tuesday that Avery never called police about any of the break-ins, and Avery told him the safe had been burglarized months earlier.

    Authorities also said last month that Avery had a "good-size growing operation'' in the crawl space under his house and had rigged his property with fake explosives and nails to prevent intruders from getting to the house.

    Deputy Chief Prosecutor Steve Hiller said Tuesday that charging people on both sides of a crime has happened before - but prosecutors now have a relatively new tool aid them. In the past, people charged with crimes couldn't be forced to testify against others if it incriminated them, but a judge can now force testimony under a "use immunity'' statute. That means any statements they make on the stand will not be held against them.

    Hiller would not say whether "use immunity'' will be applied in this instance.

    Susan Oppat can be reached at soppat@annarbornews.com or at 734-482-1166.


    .
    Should the homeowner also be charged with the shooting ?

    The growing of marijuana is already illegal so we wont discuss that charge .


    .


  2. #2
    Member Array Danger Mouse's Avatar
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    We wont discuss that charge. Hard to do since that is what caused the problem. Lets say you decide to buy reefer from someone. Now he takes your money and gives you grass clippings. You call the police and say you want your money back, they will probably laugh at you and tell you that you should not had done it in the first place and chalk it up to experience as the police nor any court in the land can help you get your money back because they would be assisting you in the act of a crime. So, if the transaction between buyer and seller goes bad there is no law protecting the one who got "Duked". Therefore the man who had the weed is attempting to sell an illegal product in the first place, if he were defending legal life or property then yes, he has a case. lets face it, if he gets away with no charges, then that means a lot of the killings that go on in our streets that are drug related is justified and that means they should receive a full pardon and released from jail/prison. Not in my book, there is no right for deadly force during the commission of a felony. Sorry, but my .02.
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  3. #3
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    I dont think protecting your illegal drug stash qualifys for the use of deadly force...
    "Just blame Sixto"

  4. #4
    Distinguished Member Array morintp's Avatar
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    I agree, protecting an illegal substance should not be grounds for justifiable homicide. Now if he was just your run of the mill pothead that only posesses a small amount of weed for personal use, and this was a "normal" robbery, I believe he would be justified in shooting them. But if that was the case, these guys probably wouldn't have bothered him.

  5. #5
    VIP Member Array Janq's Avatar
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    Quote Originally Posted by SIXTO View Post
    I dont think protecting your illegal drug stash qualifys for the use of deadly force...
    Disagreed, but only due to the specifics of the circumstance.

    The drug dealer was attacked at/in his residence, his home.
    He is a criminal and he does not argue that but at the same time he is still a citizen and is allowed protections by law which include the right to defend himself at/within his home. Castle Law.
    If this had happened at a warehouse or some other location that was 1) Not on his own property or 2) Not specifically at/within his place of residence, then I'd say too bad Tom those are the breaks.

    Regardless of ones occupation/career choice and where they might practice their trade they are still allowed to defend themselves when assaulted as prey and this is key because it's exactly what occurred so say the victim and and the victimizers. Further that the attack went on at his home unless there is some caveat in law in his states Castle Laws specific to residences and residents of locations where criminal enterprise is ongoing then I'd say he's right to invoke his right toward self defense. Further if it cannot be proven that he conducts business out of his home entertaining clients there and just grows his unlawful crop there, then it cannot be said that the crime of he being attacked was a direct result of his business as he does not normally do business nor entertain clients at his residence.

    Take away the word marijuana and plug in the words 'Nigerian e-mail scammer'. Both are illegal.
    If he were an e-mail scammer attacked at his residence from which he may also generate his professional revenue and if no other components of the situation changed then there would be no question at all that he'd be lawful to defend himself upon being attacked at/within his property and home.

    The State Police were wrong as he states to arrest him and let the attacking trio remain free, if that indeed is how things occurred.

    - Janq

    P.S. - For the record I do not support nor use recreational/illegal drugs, including marijuana. Nor am I normally or generally pro drug dealer. But in this case per the circumstances I agree witht he drug dealer, he was wronged twice. Once by the scheming attackers and a second time by his states law enforcement.
    "Killers who are not deterred by laws against murder are not going to be deterred by laws against guns. " - Robert A. Levy

    "A license to carry a concealed weapon does not make you a free-lance policeman." - Florida Div. of Licensing

  6. #6
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    +1 (us usual) for Janq
    A man fires a rifle for many years, and he goes to war. And afterward he turns the rifle in at the armory, and he believes he's finished with the rifle. But no matter what else he might do with his hands - love a woman, build a house, change his son's diaper - his hands remember the rifle.

  7. #7
    VIP Member Array Cupcake's Avatar
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    No use of force to protect drug, but in accordance with MI law, it is a rebuttable presumtion that if someone breaks into your residence or dwelling, that they are there to do you some harm. It sounds like this guy shot the kid in the back though, so not sure how that'll go over. MI law does exclude you from using the castle doctrine if you are in the commission of an illegal activity, but only if you are anywhere else but your dwelling. I tried to post some quotes, but I couldn't select text in the PDF, here is a link to MI castle doctrine:
    http://www.advancedtubular.com/legis...5-HIB-5143.pdf.
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  8. #8
    Distinguished Member Array kazzaerexys's Avatar
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    Agree with Janq. Every has a right to self-defense if attacked without provocation. If the attack occurred as part of a drug deal...no self-defense. Since it seems to be as part of a home invasion, the attempted murder charge should go away.

    I'll go further---somebody with a prior has may not, as a condition of parole or prior felony conviction, own a gun still has the right to defend himself with lethal force if attacked. He may end up going back in for the parole violation or get charged with weapons possession, but the shooting should still be looked on as self-defense.

  9. #9
    Restricted Member Array SelfDefense's Avatar
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    Quote Originally Posted by Cupcake View Post
    I tried to post some quotes, but I couldn't select text in the PDF, here is a link to MI castle doctrine:"
    As an aside to the topic, there is shareware that allows one to change those annoying 'protections' on PDF files.

  10. #10
    Distinguished Member Array bandit383's Avatar
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    Have to say Janq, I wasn't sure which way to fall on this as two bads don't make it right mentality...but your thoughts make sense to me.

    Rick

  11. #11
    VIP Member Array Janq's Avatar
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    Agreed across the board Kazz.

    The attempted murder charge should go away completely, and not be plead or reduced down as no doubt the state prosecutor will try to play things.
    Further agreed again, everyone has the right to defend themselves and with lethal force when _and_ where appropriate. Be he/she the postman, an e-mail scammer, a prostitute, pedophile, or school principal. If he, they, were parolees (in this case there is no news indicated as much is applicable) then yes they should get dinged on parole violation or being a felon in possession of a firearm but they are still entitled to the right of self defense in general and defense at their residence/property in specific by whatever means available to them and otherwise within the bounds of the law and constitutionality.

    - Janq
    "Killers who are not deterred by laws against murder are not going to be deterred by laws against guns. " - Robert A. Levy

    "A license to carry a concealed weapon does not make you a free-lance policeman." - Florida Div. of Licensing

  12. #12
    Ex Member Array ibez's Avatar
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    Post

    Quote Originally Posted by Cupcake View Post
    No use of force to protect drug, but in accordance with MI law, it is a rebuttable presumtion that if someone breaks into your residence or dwelling, that they are there to do you some harm. It sounds like this guy shot the kid in the back though, so not sure how that'll go over. MI law does exclude you from using the castle doctrine if you are in the commission of an illegal activity, but only if you are anywhere else but your dwelling. I tried to post some quotes, but I couldn't select text in the PDF, here is a link to MI castle doctrine:
    http://www.advancedtubular.com/legis...5-HIB-5143.pdf.
    Converted using VeryPDF2Word

    HOUSE BILL No. 5143

    September 7, 2005, Introduced by Rep. Jones and referred to the Committee on Judiciary.

    A bill to clarify the rights and duties of self-defense and

    the defense of others; to provide for criminal and civil immunity

    under certain circumstances; to regulate the investigation of

    incidents involving self-defense or the defense of others; and to

    provide for certain remedies.

    THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

    Sec. 1. (1) A person is presumed to have held a reasonable

    2 fear of imminent peril of death or great bodily harm to himself or

    3 herself or another when using defensive force that is intended or

    4 likely to cause death or great bodily harm to another if both of

    5 the following apply:

    6

    (a) The person against whom the defensive force was used was










    03895'05 TVD
    HOUSE BILL No . 5143 HOUSE BILL No . 5143
    2

    1 in the process of unlawfully and forcibly entering, or had

    2 unlawfully and forcibly entered, a dwelling, residence, or occupied

    3 vehicle, or that person had removed or was attempting to remove

    4 another person against that person's will from the dwelling,

    5 residence, or occupied vehicle.

    6

    (b) The person who uses defensive force knew or had reason to

    7 believe that an unlawful and forcible entry or unlawful and

    8 forcible act was occurring or had occurred.

    9

    (2) The presumption set forth in subsection (1) does not apply

    10 if any of the following apply:

    11

    (a) The person against whom the defensive force is used has

    12 the right to be in or is a lawful resident of the dwelling,

    13 residence, or vehicle, such as an owner, lessee, or titleholder,

    14 and there is not an injunction for protection from domestic

    15 violence or a written pretrial supervision order of no contact

    16 against that person.

    17

    (b) The person sought to be removed is a child or grandchild

    18 of, or is otherwise in the lawful custody or under the lawful

    19 guardianship of, the person against whom the defensive force is

    20 used.

    21

    (c) The person who uses defensive force is engaged in an

    22 unlawful activity or is using the dwelling, residence, or occupied

    23 vehicle to further an unlawful activity.

    24

    (d) The person against whom the defensive force is used is a

    25 law enforcement officer who enters or attempts to enter a dwelling,

    26 residence, or vehicle in the performance of his or her official

    27 duties and the officer identified himself or herself in accordance








    03895'05








    TVD

    3

    1 with applicable law or the person using force knew or reasonably

    2 should have known that the person entering or attempting to enter

    3 was a law enforcement officer.

    4

    (3) A person who is not engaged in an unlawful activity and

    5 who is attacked in any other place where he or she has a right to

    6 be has no duty to retreat and has the right to stand his or her

    7 ground and meet force with force, including deadly force if he or

    8 she reasonably believes it is necessary to do so to prevent death

    9 or great bodily harm to himself or herself or to another person or

    10 to prevent the commission of a forcible felony.

    11

    (4) A person who unlawfully and by force enters or attempts to

    12 enter a person's dwelling, residence, or occupied vehicle is

    13 presumed to be doing so with the intent to commit an unlawful act

    14 involving force or violence.

    15

    16

    (5) As used in this section:

    (a) "Dwelling" means a building or conveyance of any kind,

    17 including any attached porch, whether the building or conveyance is

    18 temporary or permanent, mobile or immobile, that has a roof over

    19 it, including a tent, and that is designed to be occupied by

    20 people.

    21

    (b) "Residence" means a dwelling in which a person resides

    22 either temporarily or permanently or is visiting as an invited

    23 guest.

    24

    (c) "Vehicle" means a conveyance of any kind, whether or not

    25 motorized, that is designed to transport people or property.

    26

    Sec. 2. (1) A person is justified in using force, except

    27 deadly force, against another person when and to the extent that








    03895'05








    TVD

    4

    1 the person reasonably believes that the conduct is necessary to

    2 defend himself or herself or another against the other's imminent

    3 use of unlawful force.

    4

    (2) A person is justified in the use of deadly force and does

    5 not have a duty under this section to retreat if either of the

    6 following applies:

    7

    (a) He or she reasonably believes that such force is necessary

    8 to prevent imminent death or great bodily harm to himself or

    9 herself or another or to prevent the imminent commission of a

    10 forcible felony.

    11

    12

    (b) Any of the circumstances enumerated under section 1.

    Sec. 3. (1) A person is justified in the use of force, except

    13 deadly force, against another when and to the extent that the

    14 person reasonably believes that the use of force is necessary to

    15 prevent or terminate the other person's trespass on or other

    16 tortious or criminal interference with real property, other than a

    17 dwelling or personal property, that is lawfully in his or her

    18 possession or in the possession of another person who is a member

    19 of his or her immediate family or household, or of a person whose

    20 property he or she has a legal duty to protect.

    21

    (2) A person is justified in the use of deadly force only if

    22 he or she reasonably believes that deadly force is necessary to

    23 prevent the imminent commission of a forcible felony. A person does

    24 not have a duty under this section to retreat if the person is in a

    25 place where he or she has a right to be.

    26

    Sec. 4. (1) A person who uses force as permitted in section 1,

    27 2, or 3 is justified in using that force and is immune from








    03895'05








    TVD

    5

    1 criminal prosecution and from any civil action for the use of that

    2 force, unless the person against whom force was used is a law

    3 enforcement officer who was acting in the performance of his or her

    4 official duties and the officer identified himself or herself in

    5 accordance with any applicable law or the person using force knew

    6 or reasonably should have known that the person was a law

    7 enforcement officer. As used in this subsection, "criminal

    8 prosecution" includes arresting, detaining in custody, charging, or

    9 prosecuting the defendant.

    10

    (2) A law enforcement agency may use standard procedures for

    11 investigating the use of force as described in subsection (1), but

    12 the agency shall not arrest the person for using force unless it

    13 determines that there is probable cause that the force that was

    14 used was unlawful.

    15

    (3) The court shall award reasonable attorney fees, court

    16 costs, compensation for loss of income, and all expenses incurred

    17 by the defendant in defense of any civil action brought by a

    18 plaintiff if the court finds that the defendant is immune from

    19 prosecution as provided in subsection (1).

  13. #13
    VIP Member Array ccw9mm's Avatar
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    Drug posessor , does he have a right to defend ?
    Defend what, exactly? IMO, everyone at all times has a fundamental right to defend a direct attack on his/her person, so long as that attack is illegal and unprovoked. The moment, though, it becomes a tussle over illegal property, then I'd say one's right to defend that property has ceased. That's just a WAG. A qualified attorney would know the applicable laws.
    Your best weapon is your brain. Don't leave home without it.
    Thoughts: Justifiable self defense (A.O.J.).
    Explain: How does disarming victims reduce the number of victims?
    Reason over Force: The Gun is Civilization (Marko Kloos).
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  14. #14
    Ex Member Array ibez's Avatar
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    Thumbs up

    Quote Originally Posted by ccw9mm View Post
    Defend what, exactly? IMO, everyone at all times has a fundamental right to defend a direct attack on his/her person, so long as that attack is illegal and unprovoked. The moment, though, it becomes a tussle over property (in this case apparently illegal property), then I'd say one's right to defend that property has ceased. A qualified attorney would know the applicable laws.
    Agreed

  15. #15
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    On a superficial level, one would think Jang is correct, but I will bet a paycheck that I'm right.

    Why do you think there is now a federal gun spec in regard to drug crimes? We can argue theory all day... but it is what it is fact is fact. If the drugs were not a factor in the robbery, you might have a valid point, but since the drugs are the motive of both crimes, this guy is going to do some time.
    "Just blame Sixto"

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