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Discussion Starter #1
Here is the scenario,

You legally own a gun and a CCW. An intruder breaks in to your house and you engage the intruder but your firearm is either knocked out of your hand or it is in the other room. You have a family member in the house who has a felony record (non-violent) and cannot own a firearm. They retrieve your firearm from either being knocked out of your hand, or from the other room with your direction, and they shoot the intruder and save your life, and possibly everyone's life in the house. It is a clear situation of self defense. The state is Colorado where the "make my day law" is alive and well.

1. What do you think will happen to the family member for shooting a gun in self defense even though they are not allowed to own a firearm?

2. What do you think will happen to you for them shooting your firearm in self defense? Would your guns and CCW be taken away from you?

Your feedback and comments are appreciated.
 

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That is entirely up to the Prosecutor that takes the case.

Would you lose your guns? I doubt it.

On second thought, there are some states that may try it.
 

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In the scenario presented you will get very intimate with "The doctrine of competing harms."

Which is worse, a known felon using a firearm, or possible death of a family member, you, at the hands of a home invader? I can't answer that question for you, as you have to decide for yourselves. I can tell you however that depending upon the prosecutor, and the local mood of the court, the convicted felon may be facing prison time. Also, not only will you have the local prosecutor to deal with, but since the felon in possesion of a firearm is a federal charge you may be dealing with the feds too.

Biker
 

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This would appear to be one of those rare instances where the defense of necessity would reasonably apply.

As BikerRN notes, it's pretty much going to be the whim of the prosecutor(s) involved.

Matt
 

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How in God's name do we come up with these scenarios?
 

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i really don't see where the argument is. what does it really matter if a known felon saves their family from a HOME INVADER? really? is a criminal dieing by the hands of a known felon in the act of committing a crime in the felon's home worse then a family loosing their lives, criminal moving on to another home to hurt/kill others until he is eventually caught or killed by someone else? ok so what if a felon can't own/handle a gun. can a felon not defend them self on the street if they get attacked? what if the attacker has a gun, can the felon not force the gun out of the attackers hand and turn the table and kill the attacker? just because he/she can't touch a gun they can't defend them self? makes no sense to me. if i was a felon, i'm gonna do my best not to let a attacker get away and harm someone else. i probably wasn't his first and probably won't be his last.
 

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How in God's name do we come up with these scenarios?
By reading what other have posted and then putting a new spin on it, news stories, or sometimes just sheer boredom. :hand5:
There is a similar thread running by Aussiegirl asking if she could shoot her boyfriends gun in self-defense (I'm too lazy to look it up and link it. Sorry.) But one of the underlying points brought up throughout it is she's asked if she's a convicted felon.

This is a rather similar situation. However it involves what to do if the person who picks up the gun is a convicted felon.
 

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If it's a justifiable shooting, I don't think anything would happen... The family member with a record, doesn't own the firearm...Your family member is using your firearm, on your property, to protect you... What other law has been broken? I think some of these scenarios are kinda far fetched...
 

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i really don't see where the argument is. what does it really matter if a known felon saves their family from a HOME INVADER? really? is a criminal dieing by the hands of a known felon in the act of committing a crime in the felon's home worse then a family loosing their lives, criminal moving on to another home to hurt/kill others until he is eventually caught or killed by someone else? ok so what if a felon can't own/handle a gun. can a felon not defend them self on the street if they get attacked? what if the attacker has a gun, can the felon not force the gun out of the attackers hand and turn the table and kill the attacker? just because he/she can't touch a gun they can't defend them self? makes no sense to me. if i was a felon, i'm gonna do my best not to let a attacker get away and harm someone else. i probably wasn't his first and probably won't be his last.
So what's your point?

Look, the bottom line is that that federal law states a felon can not be in possession of a firearm. I believe that applies to ammunition as well.

Reality dictates that the law is whatever the prosecutor wants it to be.

In the case originally posted, the felon probably would not be prosecuted for defending himself or the homeowner. No one loses the right to defend themself, or to use lethal force, if lethal force is justified. Even if they are a convicted felon. Period! He would not be prosecuted for killing the guy in self defense.

However, he could be charged, tried and convicted on the charge of a felon being in possession of a firearm. That is a totally separate charge and issue, fully removed from the self defense issue! Don't kid yourself to think that hasn't happened before.

As BikerRN, correctly points out, that in such a case, the felon could argue in court "The Doctrine of Competing Harms" and that may be a mitigating factor which leads to his acquittal. But, the prosecutor certainly has the right to prosecute on the felon in possession charge.

Now, would the prosecutor choose to prosecute in that circumstance? I would hope not... He would probably take into consideration the "non-violent" nature of the felony as stated in the post, and maybe he's just a decent prosecutor who wouldn't gig a guy in that situation. But again, it's the prosecutors call to make.

Like it or not, these are the laws and rules of society in which me all must operate under.

Also, I would seriously doubt if the original "gun owner" and ccw holder would lose his weapons or his permit over the actions of the relative who is a felon.

The situation and the dynamics of the scenario would show that it was not his fault how any of the actions transpired.

I just don't see how the gun owner would be held liable for any of it. He clearly did not allow the felon to use the gun, loan him the gun or authorized him to use the gun. It merely played out the way it did as a matter of happenstance. He lost control of the gun because of a struggle with the home invader and felon picked it up and defended the innocent victims, including himself with it.
 

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The state is Colorado where the "make my day law" is alive and well.
I could well be misinformed, but I would not really term Colorado's Castle Doctrine as a "Make my Day" statute inasmuch as it is a very weak statute when compared with, say Texas statutes. I may not understand Colorado law, but I thought there was an absolute standard where the defendant was absolutely required to know that the actor intended grievous harm to defendant.

I'll now refresh my memory..........

Here's the Colorado Statute:

18-1-704. Use of physical force in defense of a person.

(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or

(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or

(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.



(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:

(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or

(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.


(4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes.


Source: L. 71: R&RE, p. 409, § 1. C.R.S. 1963: § 40-1-804. L. 72: p. 274, § 1. L. 75: (2)(c) amended, p. 632, § 4, effective July 1. L. 79: (2)(c) amended, p. 726, § 1, effective July 1. L. 81: (2)(a) and (3)(a) amended, p. 981, § 3, effective May 13. L. 2000: (2)(c) amended, p. 703, § 27, effective July 1. L. 2003: (4) added, p. 795, § 1, effective March 25.

Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see § 13-80-119.
 

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i think my point is pretty clear. no person in their right mind would convict the felon for possession of a firearm when its related to defending their family. it shouldn't be about him just possessing a firearm. its about why he possessed. they had no choice. to defend their family and them self, he had no choice to use the gun. i know prosecutors can be cruel, yeah its their job. but i don't think one would be that cruel to even attempt to throw someone in jail for basically defending their family. and i think even a decent lawyer can argue that charge. and if the prosecutor is that cruel, i'm sure a great majority of the judges/jury would agree with most of us in thinking he shouldn't be charged.
 

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i think my point is pretty clear. no person in their right mind would convict the felon for possession of a firearm when its related to defending their family. it shouldn't be about him just possessing a firearm. its about why he possessed. they had no choice. to defend their family and them self, he had no choice to use the gun. i know prosecutors can be cruel, yeah its their job. but i don't think one would be that cruel to even attempt to throw someone in jail for basically defending their family. and i think even a decent lawyer can argue that charge. and if the prosecutor is that cruel, i'm sure a great majority of the judges/jury would agree with most of us in thinking he shouldn't be charged.
Sorry, but I find "I don't think" provides little comfort in the cruel day to day world.

My suggestion is, plan for the worst. That way you are prepared to deal with it in case it does in fact happen. While the convicted felon may have had the best of intentions, you know what they say about intentions don't you?

Courtrooms are not about feelings, or any other such human emotion in my expirience. They are concerned with the rule of law. Yes, there can be mitigating factors, but it is still a place concerned with the rule of law. The fact is, in the scenario presented, the convicted felon did in fact violate the law.

Biker
 

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Discussion Starter #14
Thank you all for your comments and feedback. Interesting takes on the scenarios.
 

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If your relative 'felon' was a midget weighing under 80 lbs., and the forty BG's who invaded your home were huge (minimun 7'2", 350 #'s each), then the prosecutor (if he were you brother-in-law) might consider disparaty of force to be more important than the felon in possession of a firearm...I'm just sayin'...:rolleyes:
 

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The very fact that you are looking for ways to break the law for this person should cause you to take a very long and hard look at your plans for the future.

pax
 

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What is and what should be are frequently to very different things. Unless you can find something in your state statutes or some relevant case law, your friendly felon could easily be charged and convicted for posession of the weapon. You could also be facing charges (depending on the prosecutor and the laws in that jurisdiction) for providing them that weapon.

Reality break here. Right and wrong does not matter in most court rooms. What matters is did the actions by the defendant conform with the law as it is written. If you have a prosecutor that wants a conviction you can bet that starting with jury selection they are going to look to stack the deck against you. They are going to be looking for jurors that are going to look at the very narrow instructions from the judge and interpret them the way the prosecutor wants them to. They are going to remind the jury that the only question they are there to decide is if the prosecution proved beyond a reasonable doubt that the defendant, who is a convicted felon and therefore legally prohibited from posessing firearms, did in fact have a firearm in their posession. They will argue that the reason for that posession can be argued as a mitigating factor at sentencing. That is something for the judge to worry about, not them.
 

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Discussion Starter #18
The very fact that you are looking for ways to break the law for this person should cause you to take a very long and hard look at your plans for the future.

pax
This is a scenario, not reality.
 

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Discussion Starter #19
Again, thank you all for the responses. Interesting and valuable comments for this scenario.
 

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If you were in NYS you wouldn't have to worry about it, ask 2edgesword, his grandson is living in a different part of the house, completely separate from his living quarters, if I remember correctly he isn't even a convicted felon, just ties to gang members. His pistol permit was revoked and I believe he had to surrender his weapons.
 
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