a few things I learned in my LAW CLASS

This is a discussion on a few things I learned in my LAW CLASS within the Off Topic & Humor Discussion forums, part of the The Back Porch category; Self Defense with deadly force is only lawful when you are protecting property and people, NOT PROPERTY ALONE! Meaning if you see someone stealing your ...

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Thread: a few things I learned in my LAW CLASS

  1. #1
    Member Array fitznig's Avatar
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    a few things I learned in my LAW CLASS

    Self Defense with deadly force is only lawful when you are protecting property and people, NOT PROPERTY ALONE!

    Meaning if you see someone stealing your car, even if they have a visible weapon, and you say FREEZE and provoke them to shoot at you, or say FREEZE and shoot at them, either way, you would be convicted for attempted murder or manslaughter!
    You cannot use DEADLY FORCE in any situation to just protect property.

    If someone eneters your house and has a knife or a gun is coming at you, IT IS LAWFUL TO SHOOT THEM RIGHT THERE AND THEN, however, IF YOU even take ONE STEP back, that is called retreating, and you could be and most of the time will be convicted for manslaughter, for retreating then provoking the BG, it does not matter that he is coming after you, if you retreat, you can't come right back and shoot them, unless you can prove to the jury by a prepondernce of the evidence that you absolutely positively had to, in any way shape or form.
    Remember, people on the jury aren't avid gun owners, so they do not see eye to eye with gun use as we do. WHen they do jury selection, they will not use people in favor of guns, it would alter the outcome of the case in favor of the person using deadly force for self defense.


    And if you are in a situation in public where someone aims a gun at you, the law says you are suppose to retreat in 9/10 situations, UNLESS YOU CAN PROVE TO THE JURY there was no retreat what so ever, and using deadly force for self protection was the last resort thing.

    SO say you successfully shoot a bad a guy, and the self defense using deadly force was justifiable, the bad guy looses in the criminal case, but him or his family members can sue you in civil court and actually win, we live in a sad justice system.


    SO in summary, the law encourages retreat whether in your house, and always always in public. Deadly force is not encouraged unless there is no escape, and ignorance of these laws is not a defense.
    Last edited by fitznig; July 16th, 2006 at 09:53 PM.

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  3. #2
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    Bit different IIRC in TX - plus states that have instigated castle doctrine and stand-your-ground also will be a bit different.

    True tho what you have gleaned re your state's laws is well worthy of note and understanding. We all need to be mindful of just our own state laws in these matters - and other states when invoking reciprocity.
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    Member Array fhqwhgads's Avatar
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    All depends on where you live, or in this case, where you take your law classes.

    In SC, there is NO duty to retreat, and any uninvited person(s) in my home are, by law, considered a threat to me and mine. This gives me the right to shoot said intruder(s), regardless of weapon presentation by the BG, etc.

    Also, state law in SC says that if a shooting is justified, there can be no civil case brought in the aftermath.

  5. #4
    Member Array fitznig's Avatar
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    Quote Originally Posted by fhqwhgads

    Also, state law in SC says that if a shooting is justified, there can be no civil case brought in the aftermath.

    wow thats really cool, all states should have the statue in place.

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    Senior Member Array Ride4TheBrand's Avatar
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    You're right P95Carry ... In Texas, the use of deadly force is authorized in the defense of one's property at night

    Having said that, I'm not sure I'd want to use deadly force and have that on my conscience forever just because billy bob wanted to steal the truck in my driveway. My Insurance company will buy me another one.
    "We must remember that one man is much
    the same as another, and that he is best
    who is trained in the severest school."
    ~Thucydides, History of the Peloponnesian War

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    Fitznig

    Washington Law is vastly different than Arkansas law.

    For instance:
    State Statute
    5-2-621. Attempting to protect persons during commission of a felony.

    No person is civilly liable for an action or omission intended to protect himself or herself or another from a personal injury during the commission of a felony unless the action or omission constitutes a felony.



    Another:
    5-2-620. Use of force to defend persons and property within home.

    (a) The right of an individual to defend himself or herself and the life of a person or property in the individual's home against harm, injury, or loss by a person unlawfully entering or attempting to enter or intrude into the home is reaffirmed as a fundamental right to be preserved and promoted as a public policy in this state.
    (b) There is a legal presumption that any force or means used to accomplish a purpose described in subsection (a) of this section was exercised in a lawful and necessary manner, unless the presumption is overcome by clear and convincing evidence to the contrary.
    (c) The public policy stated in subsection (a) of this section shall be strictly complied with by the court and an appropriate instruction of this public policy shall be given to a jury sitting in trial of criminal charges brought in connection with this public policy.




    Sounds to me that Washington needs to strengthen up its laws a bit...
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    Defense of Property is allowable in Texas as noted in the Texas statutes herein:

    9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in
    lawful possession of land or tangible, movable property is
    justified in using force against another when and to the degree the
    actor reasonably believes the force is immediately necessary to
    prevent or terminate the other's trespass on the land or unlawful
    interference with the property.
    (b) A person unlawfully dispossessed of land or tangible,
    movable property by another is justified in using force against the
    other when and to the degree the actor reasonably believes the force
    is immediately necessary to reenter the land or recover the
    property if the actor uses the force immediately or in fresh pursuit
    after the dispossession and:
    (1) the actor reasonably believes the other had no
    claim of right when he dispossessed the actor; or
    (2) the other accomplished the dispossession by using
    force, threat, or fraud against the actor.

    Acts 1973, 63rd Leg., p. 883, ch. 399, 1, eff. Jan. 1, 1974.
    Amended by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1,
    1994.


    9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
    justified in using deadly force against another to protect land or
    tangible, movable property:
    (1) if he would be justified in using force against the
    other under Section 9.41; and
    (2) when and to the degree he reasonably believes the
    deadly force is immediately necessary:
    (A) to prevent the other's imminent commission of
    arson, burglary, robbery, aggravated robbery, theft during the
    nighttime, or criminal mischief during the nighttime; or
    (B) to prevent the other who is fleeing
    immediately after committing burglary, robbery, aggravated
    robbery, or theft during the nighttime from escaping with the
    property; and
    (3) he reasonably believes that:
    (A) the land or property cannot be protected or
    recovered by any other means; or
    (B) the use of force other than deadly force to
    protect or recover the land or property would expose the actor or
    another to a substantial risk of death or serious bodily injury.

    Acts 1973, 63rd Leg., p. 883, ch. 399, 1, eff. Jan. 1, 1974.
    Amended by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1,
    1994.


    9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person
    is justified in using force or deadly force against another to
    protect land or tangible, movable property of a third person if,
    under the circumstances as he reasonably believes them to be, the
    actor would be justified under Section 9.41 or 9.42 in using force
    or deadly force to protect his own land or property and:
    (1) the actor reasonably believes the unlawful
    interference constitutes attempted or consummated theft of or
    criminal mischief to the tangible, movable property; or
    (2) the actor reasonably believes that:
    (A) the third person has requested his protection
    of the land or property;
    (B) he has a legal duty to protect the third
    person's land or property; or
    (C) the third person whose land or property he
    uses force or deadly force to protect is the actor's spouse, parent,
    or child, resides with the actor, or is under the actor's care.

    Acts 1973, 63rd Leg., p. 883, ch. 399, 1, eff. Jan. 1, 1974.
    Amended by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1,
    1994.


    9.44. USE OF DEVICE TO PROTECT PROPERTY. The
    justification afforded by Sections 9.41 and 9.43 applies to the use
    of a device to protect land or tangible, movable property if:
    (1) the device is not designed to cause, or known by
    the actor to create a substantial risk of causing, death or serious
    bodily injury; and
    (2) use of the device is reasonable under all the
    circumstances as the actor reasonably believes them to be when he
    installs the device.

    Acts 1973, 63rd Leg., p. 883, ch. 399, 1, eff. Jan. 1, 1974.
    Amended by Acts 1975, 64th Leg., p. 913, ch. 342, 6, eff. Sept.
    1, 1975. Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1,
    1994.

    Note that the "night" clause only applies to a limited class of acts as indicated in 9.42(2)(A) and (B).

    I believe a more important distinction is within 9.42(3)(A) which states "the land or property cannot be protected or
    recovered by any other means;". If the property is replaceable and is common i.e. a TV from Wal-Mart, then it is arguably 'recoverable via replacement" whereas an antique ring inherited by you is not replaceable at any price, even though possibly of little value...

    I don't want an excited attorney arguing otherwise - property defense in my book is a crap shoot - there are distinctions that one needs to make very carefully.

    Fitnig - you'll also learn to be very precise in law school.....

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    Member Array glocksmygun's Avatar
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    In Indiana they just done away with retreat first then shoot. You can now shoot to proctect another person in public or in residence. However you can not shoot to protect belongings unless the BG shoots or is going to shoot at you.

  10. #9
    Member Array fitznig's Avatar
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    Quote Originally Posted by Rock and Glock
    Defense of Property is allowable in Texas
    Fitnig - you'll also learn to be very precise in law school.....

    those were the words coming directly outta my teacher, who has 15 years experince practicing in Washington, i asked him what if a cougar is attacking your live stock,

    he went out to say live stock is not considered property, in therefore you can use deadly force against any such predator.

    Sadly, out of all the 50 people in my class, when he asked who has a CCW, i was the only one raising my hand, the teacher went on to make jokes about how Texas and ARizona citizens are all crazy gun wielding fanatics, "city boys and girls" i thought to my self. Just disgusting how people think guns are so bad.
    Oh yeah then the class got into a huge debate about how United States has more murders becuz of the lack of gun laws, I only had one other guy on my side of pro-gun. *shakes head*


    haha and i do not plan to be a laywer, its just a required class for Business school.

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    VIP Member Array SIGguy229's Avatar
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    Quote Originally Posted by Ride4TheBrand
    You're right P95Carry ... In Texas, the use of deadly force is authorized in the defense of one's property at night

    Having said that, I'm not sure I'd want to use deadly force and have that on my conscience forever just because billy bob wanted to steal the truck in my driveway. My Insurance company will buy me another one.
    Another way to think about it--if Billy Bob left well enough alone and did not leave your property / leave your property alone when you asked/told him/warned him to and continued to commit a crime, Billy Bob made a string of bad decisions that at any time along the way could have changed the outcome.

    Just a thought...

  12. #11
    Member Array Fargo's Avatar
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    Quote Originally Posted by fitznig
    those were the words coming directly outta my teacher, who has 15 years experince practicing in Washington, i asked him what if a cougar is attacking your live stock,

    he went out to say live stock is not considered property, in therefore you can use deadly force against any such predator.
    Fitznig,

    I hate to say it, but it kinda sounds like your teacher doesn't have a very good handle on the topic. For one, the deadly force analysis within traditional self-defense is really only applicable to the use of deadly force against humans. Illegally killing a marauding cougar could be defended under some sort of justification defense, but it wouldn't be self-defense. Also, livestock most certainly is personal property, (rather than real property). The reason you may be allowed to shoot the cougar is not because the livestock isn't property, but because the cougar isn't human.

    In jurisdictions which have a "retreat requirement", you are generally only required to retreat if you can do so with complete safety. There are a few exceptions to this which require "retreat to the wall", such as when mutual combat escalates, but I know of absolutely 0 jurisdictions which require retreat unless it can reasonably be done with complete safety.

    As to using SD after beginning to retreat, the actual distinction there is much more nuanced. Generally, if you retreat successfully and break the engagement, but then go ahead and provoke/attack the other guy, you will be considered the aggressor. This is because the previous threat to you is no longer imminent, but you have then reopened the engagment without cause. Retreating of itself does not remove your justification for using SD. It is only if you start trouble after the original threat is no longer present that you will get in trouble.

    Additionally, at common law, there was no requirement to retreat in one's home. The vast majority of jurisdictions, even those without statutory "castle doctrine" provisions, recognize the castle doctrine and recognize that there is no duty to retreat in one's home.

    These are general principles of SD law which are usually applicable, but not necesarily universal. This isn't legal advice of any sort. If I get a chance, I'll spend a bit of time on Lexis and look up the fine points of Washington SD law.

    All the best,


    Joe

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    VIP Member Array rodc13's Avatar
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    Quote Originally Posted by Rock and Glock
    I believe a more important distinction is within 9.42(3)(A) which states "the land or property cannot be protected or
    recovered by any other means;". If the property is replaceable and is common i.e. a TV from Wal-Mart, then it is arguably 'recoverable via replacement" whereas an antique ring inherited by you is not replaceable at any price, even though possibly of little value...
    I don't recall any specific distinction being made about "replaceable" property in the Texas statutes. After all, what is easily replaceable to one person might be next to impossible to another.

    I think you are abolutely right that defense of property can be a very tricky prospect, and use of force must be carefully considered. We went round about that in the "Shot for stealing gas" thread. I don't think I'd shoot a kid for stealing a plastic lawn flamingo, but I might hurl dangerous insults . . .

    I also agree that this professor is a bit lacking when it comes to self-defense and Second Amendment issues. That he would offer a blanket indictment, rather than information and comparison, of the policies of other states does not speak highly of his educational integrity and could call into question his objectivity on other issues as well.

    As is too often the case, best to just grab the credits, but take the info with a grain of salt.
    Cheers,
    Rod
    "We're paratroopers. We're supposed to be surrounded!" Dick Winters

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    I spent some time on Lexis, but Wash. State self defense law is very elaborate and I don't have the time to properly try to summarize it. I would say that the info your prof. is giving you looks very suspect to me and that I would seek more information elsewhere. It looks to me like he grossly overstates the retreat requirement in Wash. and is far too ambiguous about many other facets of self-defense. For example, the Wash Ct. of Appeals writes:

    In Washington, one who is assaulted in a place he has a right to be has no duty to retreat. Allery, 101 Wn.2d at 598. Flight, however reasonable an alternative to violence, is [*744] not required. While the wisdom of such a policy may be open to debate, the policy is one of long standing and reflects the notion that one lawfully where he is entitled to be should not be made to yield and flee by a show of unlawful force against him. LAFAVE, supra, at [***8] 460.

    State v. Williams, 81 Wn. App. 738, 743-744 (Wash. Ct. App. 1996)
    There are many other limitations and nuances to the retreat requirement which the courts recognize. I really think you need to consult another source on the topic cause I find the analysis he has given you to be very troubling.

    FWIW, the justifiable homicide statutes are found in RCW 9A.16 . If you can find an annotated copy of the Wash. code, the annotations will include descriptions of how the courts have applied these statutes and what judge-made common law still exists. This isn't legal advice, just opinion.

    All the best,


    Joe
    Last edited by Fargo; July 17th, 2006 at 11:06 AM.

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    Law makers, writers, and intrepters are the scallywags that got us into this fine mess to begin with.

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    Member Array Fargo's Avatar
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    Quote Originally Posted by Old Chief
    Law makers, writers, and intrepters are the scallywags that got us into this fine mess to begin with.
    Just curious; Which particular fine mess are you referring to?

    Thanks,

    Joe

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