OK, just for the record and so we're clear with any new-comers to the blog. I'm a gun owner. I'm a hunter. I've killed numerous animals for food since I was about 12 years old. I owned a BB gun before that. My huband is a hunter, and we are training our sons to be a responsible hunters and gun owners. I support the second amendment as much as any of the others.
But the NRA is a bunch of Wackos out fighting stuff that doesn't exsist.
Last night we were all in the TV room watching last weeks Stargate S-G 1 when the phone rings. Rocky goes in to answer it, and it’s the NRA. They play him a pre-recorded scenario where he is asked to imagine that he is in his house at night, and someone breaks into his house. The law says he has a “duty to retreat”, so it is illegal for him to defend his family and property…they talk about the “Castle Doctrine”, and how they’ve won a victory for home-owners in Florida to shoot and kill someone in a home invasion. Further, they expounded on their plans to bring the Castle Doctrine to every state in the Nation.
(This isn’t entirely honest. The Castle Doctrine gives you the right to use deadly force against a home invasion, or a threat in your inhabited car, or a threat against your person in any place you have a right to be. Which includes the middle of a residential street…or a school for that matter. And you have no legal obligation to prove that you attempted to retreat to safety, or avoid the situation.)
…then, a flesh-and-blood representative comes on the phone and asks him if he feels he should have the legal right to protect his family in his own home.
Rocky said something like, “No, that’s why I pay taxes, so I can have trained police officers to do that for me. That’s their job.”
Which isn’t exactly what he actually thinks…but it was the best answer to give those people. A more accurate but complex answer would just confuse them.
The lady said “Oh. Well, thank you for taking our survey”.
Now, ignoring for the moment the fact that this can in no way be called anything that could be mistaken for a scientific survey…WTF?
We already have the right to self-defense. It’s in our common law. Sure, it’s possible you might get manslaughter and some small penalty for killing your assailant in the face of a threat to life and limb. Chances are better…not. In case you are wondering, I found this information here.
Here is an extensive quote of the relevant information of our common law regarding use of deadly force in self-defense quoted from the above website):
Self-defense
· Most important of the justifications.
· Nothing controversial about self-defense itself, but it comes up in controversial and sensitive contexts.
A victim can use non-deadly force any time that victim reasonably believes that force is about to be used on him.
Common Law Elements for Use of Deadly Force in Self-defense
(1) unlawful threatener, i.e. aggressor is wrongdoer and you are innocent agent;
(2) honest and reasonabe belief that you are subject to imminent harm, (reasonable because you need to be innocent and if not reasonable then negligent; imminent because if not you have a chance to get away. Subjective approach would allow everyone to claim justification at all times.);
(3) force used must be proportionate (because the balance of evils must be positive)
(4) Actor is not the original aggressor.
Classic common law says if you are initial provoker you lose self-defense unless you communicate withdrawal.
(5) No retreat requirement in most jurisdictions.
Where retreat requirement exists it only holds if actor knows of a place to which he could retreat in complete safety.
MPC Elements for Use of Deadly Force in Self-defense
(1) Force is immediately necessary to protect against unlawful force by another on the present occassion.
(2) Unlawful force threated is death, serious bodily injury, kidnapping or rape.
(3) Actor did not initially provoke for the purpose of using deadly force.
If you provoked with the use of non-deadly force and the other party responds with deadly force, MPC allows justified use of deadly force. (Still liable for initial battery.)
(4) Duty to retreat if actor knows he can avoid the need to use deadly force with complete safety to himself. Minority Rule. Three exceptions: don’t have to retreat from home, or if victim of rape or robbery, or if you’re a cop.
(5) Belief must be honest.
(6) Estimate of using force must not be negligent or reckless, if it is guilty of reckless or negligent crime.
What the above says to me is that we are a society that values life. Therefore, if a viable human life can be preserved, it should be. We acknowledge the possible necessity to end the life of an aggressor to defend our own, but we are still accountable to the law for that decision.
What the Castle Doctrine says to me that there are times when it’s “OK” to kill someone…which I don’t agree with. Despite the fact that it might be, in some rare cases NECESSARY to kill someone, it is never “OK”. It’s a grave act with grave consequences for you and for our society as a whole, and if you do it you are answerable for it. The extent to which you will answer for it before the law is up to the prosecutor, the judge, the jury, and the ability of your lawyer. The burden on your soul and psyche are your responsibility…and not a light one at that.
As much as some people would like to believe that we live in some sort of high-tech version of the old west…we don’t. We all have to live together and frankly, it is up to the rest of society to decide if they think you’re a brave survivor who acted in self-defense or a hair-trigger nut-job who is going to just keep blowing people away for imagined threats.
Here are a couple of incidences from my life to illustrate where I’m coming from.
Many years ago, we lived in an apartment building in Maplewood, MN with an underground garage. There was a rash of car break-ins in that garage. Windows broken, stereos stolen, what have you. One of our neighbors was a tall, odd, slightly scary guy from Oregon. He was a real odd duck, but you know me. I get along with anyone until they give me a reason not to.
Anyway, we saw him headed down the hallway one day and stopped to chat when he informed us that he was sleeping in the back of his Suburban with his handgun in case someone tried to break into his vehicle.
Under the Castle Doctrine he would have had a perfect right to blow someone away…unless some “activist judge” decided to interpret the law not quite so literally as the NRA seems to.
I don’t know about you, but I would rather live in the world as it exists today, with all its flaws, than in one where I can get my head blown off because a trigger-happy crazy man was sleeping in a car that looked just like mine, and I’d forgotten where I’d parked.
Likewise, a couple years ago I saw someone trying to get into my car. I called the cops. The guy trying to get into my car gave up and walked across the cul-de-sac, and was joined by some friends. I think around six in all. They went into my neighbor’s garage. I reported this to the police as well. They exited the garage and got into a car and drove away…and were promptly stopped by police at the next cross street.
Their loot? A six pack of two-year-old Rolling Rock they had found in a disused mini-fridge.
Under the Castle Doctrine, my neighbor could have grabbed his gun, gone out to the garage, and slaughtered all six of them. Over beer. There's no requirement for proportional response in the Castle Doctrine. He would be guaranteed complete unaccountability by this law (or at least, that is the implication given by the phone call).
Now, the driving force behind public sympathy for the goals of the NRA is the perception that it is possible for you to be convicted of a crime and subjected to civil and criminal penalties if you kill or injure a burgler who has broken into your home…which is what the Castle Law is supposedly designed to protect you from.
I thought I would look into the subject a little to see what I could see. I did a Google search for “convicted of killing a burgler”. I got numerous hits off of this. Here’s the search results page.
Fark.com, Right Wing News, and The Conversation Cafe, among others, referred to Tony Martin, who was convicted of killing one burgler and wounding another in defense of his house. In Britain. In 1999. There are also a number of references to Kenneth Faulkner, who was not charged at all. Also, happened in Britain.
So I wondered if I could narrow my search a little to US case law killing a burgler. Here is my search results page.
Now, I only looked at the results on the first page, but once again the only case I found was of one man who had been convicted of killing a burglar and wounding another in Britain in 1999.
Oh yeah, did I mention that he killed and wounded the burglars with a knife? How is the NRA able to make this an issue to galvanize the populace?
Can someone more educated help me out here? Are there actual documented cases of someone in the US being convicted or successfully sued for killing or injuring a burglar in their home in self defense?
If so, is there some other way to fix it than this very, very flawed Castle Doctrine?
If not, then why the hell would we need this very, very flawed Castle Doctrine?