Home Invasion Question

[TexasCajun]

Keep your response scenarios as simple as possible. In a high-stress situation, the fight/flight response will make it very difficult to execute complex actions and complex thought processes. So if you hear someone trying to break in:

1. Call 911 & report an intruder at your address then immediately hang up (All calls are recorded & anything that they think you say or think you do can be used against you. Plus the operator's job is to keep you talking, which can be a distraction when your focus needs to be 100% on the threat)
2. Secure your family out of the line of fire
3. Seek cover where you can see the door
4. Shout a simple warning as loud as you can
5. Wait for what happens next (which will determine your next course of action)

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[TexasCajun]

Also, regarding the lethality of a 9mm - most gunshot wounds are not fatal & rarely cause immediate knock-down, much less immediate death. That perception is most likely from the movies or TV. Even someone shot with a .45 in center mass will take a while to die unless shot through the brain stem. Assuming a single shot threat-stop could be a hazardous or fatal mistake.

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[HayesGreener]

fleeing felon

Not true. Several states still have fleeing felon laws where it is "legal" to shoot a person who is fleeing a felony, whether violent or not, when other means to stop him or her are likely to be ineffective. Also, it is "legal" for a non-sworn person to use deadly force to stop force used against another that is likely to result in death or serious injury in just about every state i'm aware of.

This is incorrect. Even though some state statutes remain which allow the use of deadly force to stop a fleeing felon for other than a violent felony crime, the U.S. Supreme Court found against the state of Tennessee in Tennessee v Garner in 1985, which essentially negates such laws in every state. The effect of the Supreme Court decision is that deadly force may not be used unless it is necessary to prevent escape AND if the person's escape would result in a threat of death or grave bodily harm to the officer or others. It is not OK under U.S. law to use deadly force to stop a fleeing felon who does not pose such a danger.

 

[TexasArmed]

This is incorrect. Even though some state statutes remain which allow the use of deadly force to stop a fleeing felon for other than a violent felony crime, the U.S. Supreme Court found against the state of Tennessee in Tennessee v Garner in 1985, which essentially negates such laws in every state. The effect of the Supreme Court decision is that deadly force may not be used unless it is necessary to prevent escape AND if the person's escape would result in a threat of death or grave bodily harm to the officer or others. It is not OK under U.S. law to use deadly force to stop a fleeing felon who does not pose such a danger.

The Texas Statute has previously been quoted by another, so I won't bother to reference it again. For any incident happening in Texas it is Texas Statutes that one would be tried under, not Federal Statutes. The facts are that during the nighttime if that is the only way to stop a person from escaping with the loot, or property a person may use deadly force, to stop their escape. However, in the case of this this thread it is someone breaking in, not escaping with property.
While I am not an attorney the case you quote is from 1985
in Tennessee. There have been numerous cases in Texas since the Castle Doctrine and since our State Statutes have been defined. Had there been an issue with Texas law being
unconstitutional in that regard, it would have already been struck down. It has not been struck down. And in every case it is State law that applies as it is currently on the books should an incident take place. The laws in a State cannot just be retroactively changed.

However, Texas is one of the very few states to my knowledge that allows a person to use deadly force to prevent the escape of someone fleeing with the property during the nighttime when there is no other way to prevent them from escaping.

Since any incident is likely to result in having to spend money to pay attorney fees if they are charged, one has to make their own decision as to whether they want to let a criminal escape with the loot. As for myself if my dead-bolted door is being broken down (one way in one way out) I would fire thru the door and I doubt the issue of them escaping with property would even come up. I have read those statutes
relating to that issue many times and to my knowledge these laws in Texas have not changed. A previous poster posted the statute number and it is 9.42.

Now if you are speaking of law enforcement restraints on shooting at a felon fleeing with property you may be right, but if you are speaking of a homeowner in Texas shooting to stop someone fleeing with property our l laws reference a person fleeing during the nighttime with no other way of stopping them from escaping with the property.

 

[Doug M.]

The case in which a guy broke into a home to kidnap 2 kids was the Duncan case in north Idaho. He beat the adults to death with a hammer as I recall. He molested both kids and eventually killed one of them.

TexasCajun: I can sort of see why you take the position you do, and I would surely put down the phone to avoid distraction and keep my hands free if needed (I use a bluetooth with my cell). However, as I mentioned in an earlier response and other previous strings, I know of two cases made better for the resident/victim because the encounter was taped and arriving officers knew when they got there that the shooter was the good guy.

Garner decision: The 4th Amendment controls seizures, and is the standard under which use of force is analyzed for Federal Constitutional purposes (a use of force is a type of seizure). However, it only applies to government actions, not those of private citizens. Some states amended their statutes only as applied to cops; some changed them as to all. Generalizing is not a good idea here.

 

[poordevil]

A person on the other side of a closed or locked door is not an immediate threat to you, so shooting through a closed door most likely will be seen as reckless endangerment

 

[TexasArmed]

A person on the other side of a closed or locked door is not an immediate threat to you, so shooting through a closed door most likely will be seen as reckless endangerment

Not if they are breaking the door down. A close door is one thing. You can't shoot someone for knocking but if the door is being battered down I will shoot. The point of entry is my dead bolted door and no drunk is can accidentally batter it down.

 

[JPriest]

Wasn't there a case last year where a 70 year fellow shot someone though a locked door (who was trying to break in) and killed them and wasn't even charged?

 

[MaximumLawman]

Garner decision: The 4th Amendment controls seizures, and is the standard under which use of force is analyzed for Federal Constitutional purposes (a use of force is a type of seizure). However, it only applies to government actions, not those of private citizens. Some states amended their statutes only as applied to cops; some changed them as to all. Generalizing is not a good idea here.

Garner was a civil case. I believe there are three states that still have a fleeing felon rule. WA is one of them.

 

[TexasArmed]

Wasn't there a case last year where a 70 year fellow shot someone though a locked door (who was trying to break in) and killed them and wasn't even charged?

Seems like I remember a case like that last year but I do not remember what state it was in. The Castle Doctrine Laws in the various states (not all of them have them), is what would govern that. Same with someone carjacking a vehicle. On shooting thru a door, I have been told that a 38 will not penetrate a door, and I have also heard that vehicle doors have been tested and a 38 won't penetrate them, but a 45 would and probably a 44. My situation is I have a disabled daughter inside. So if I have to fire at someone breaking in
I won't wait for them to get inside where my daughter would be endangered.

The case you mentioned may have been in Florida or Ohio, but I don't remember where it was.

 

[WR Moore]

I read an interesting statement by the FBI recently. Whereas in years past burglars avoided the use of weapons -- which added time to their sentences -- we are now, as a Nation, so broadly and predictably armed for legitimate self defense, that the bad guys are beginning to arm themselves again for 'illegitimate' self defense! And they're working in crews more often than they used to, for the purposes of shock, awe, and tactical advantage through overwhelming numbers.

Quite a bit of inaccurate 'common knowledge' here, regardless of alleged source. While the teen neighborhood hoods might have been unarmed in the past, most burglars have always had something. Or, they make good use of the kitchen knives you were so gracious to provide. Stating that "burglars avoided the use of weapons" is a gross over generalization that could be hazardous to one's health. Home invasions are the fastest growing crime nationally and they do tend to be group endevors.

Some of y'all ought to reflect that comments made here might be used to document a state of mind that may conflict with applicable state law. Note: while I have stayed at a Holiday Inn Express, I'm not an attorney.

 

[The Big D]

Nope.

Garner was brought as a "Civil Rights" case...not a "civil" case. Yes, they are waaaaaaay different. That said, it applies to law enforcement personnel..not the general population. IMHO, it should apply to everyone.

Be safe.

Garner was a civil case. I believe there are three states that still have a fleeing felon rule. WA is one of them.

 

[TexasArmed]

Quite a bit of inaccurate 'common knowledge' here, regardless of alleged source.

While the teen neighborhood hoods might have been
Some of y'all ought to reflect that comments made here might be used to document a state of mind that may conflict with applicable state law. Note: while I have stayed at a Holiday Inn Express, I'm not an attorney.

Its always better to consult State Law with regard to one's state rather than trust anything on a forum. Regarding my statement about Texas providing the right to protect property,
previously referenced by another poster by statute number, the Texas Statute reads as follows, and as I stated, not all states provide for this.

§ 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,

And I never say that I would shoot thru a locked door only. What I state is that I will shoot thru a dead bolted door if someone is breaking the door down. The same applies to
someone carjacking my vehicle and putting my disabled daughter at risk. I am not however inferring that your statement about inaccurate information was directed at my post.

I have encountered quite a few people who do not like a lot of the laws we have in Texas especially 9.42. Also many do not like and agree with the "No Duty to Retreat" provisions in Texas Law. And others do not like the Texas Castle Doctrine.
I for one like the laws that we have in Texas and I do not favor them being changed. So when I travel to a reciprocal state and I carry, I make certain I review the deadly force laws before I travel there, because they might be different.

 

[Jeffersonwasright]

Jefferson,

Any action short of lethal force which might cause that person to break off his attack would certainly be appropriate first. And yes, that might include shouting through your locked bedroom door.

Thanks, Bob. No hard feelings, I appreciate you taking time to follow up on this. Your advice regarding what justifies the use of deadly force is understood. You can believe that I have no desire to enrich our local legal community unnecessarily.

 

[Delos]

Jumping to Conclusions

Wasn't there a case last year where a 70 year fellow shot someone though a locked door (who was trying to break in) and killed them and wasn't even charged?

Not enought information there to draw andy conclusion. For all I know it was an old enemy breaking through the door with an axe?

I guess I must jump back in to hopefully try to protect someone from himself?

I am very sure that very few prosecutors and few juries would let someone off that shot through a locked door. If the door has not yet been broken open it is called "jumping to a conclusion without facts". Maybe the door is not at all damaged and the noise made you think he was breaking it down?

An example once stated often was, "one witness says the man almost killed the bus driver with a piece of wood". Another witness said "he swung a small stick at the bus driver and missed him by about a foot". In the first example he/she was jumping to a conclusion.

I would speculate that if door is not completely broken open then a jail cell is probably waiting, and as a felon you will no longer be permitted to buy or own guns. Unless he has had previous arrests and left marks from using a pry-bar maybe.

And if it is an apartment or condo and the bullet goes through walls then you recklessly endangered others. Your knowledge of the power of your gun and the amount of wood and wallboard will be tested. Any lack of knowledge about how walls are normally constructed might be revealed at length.

That said I will now lay my neck down on the chopping block. I would prefer to stand near my door attempting conversation with my gun in one hand and a bowie knife in the other. I have patience and will be more awake when the door is finally broken open. Hopefully my wife has police on the phone, and is getting her gun ready.

So, why would I choose a bowie knife, with gun, over the police/security baton in my closet? Because it is illegal for a civilian to use a police baton. So I might as well use something better. And a heavy bowie knife gives me the option of hitting with the flat sides or blunt back edge. I want lots of options, and lots of reasons why no half logical fool would want to wrestle me for my handgun.

Okay, pile on.

 

[TexasArmed]

Not enought information there to draw andy conclusion. For all I know it was an old enemy breaking through the door with an axe?

I guess I must jump back in to hopefully try to protect someone from himself?

I am very sure that very few prosecutors and few juries would let someone off that shot through a locked door. If the door has not yet been broken open it is called "jumping to a conclusion without facts". Maybe the door is not at all damaged and the noise made you think he was breaking it down?

An example once stated often was, "one witness says the man almost killed the bus driver with a piece of wood". Another witness said "he swung a small stick at the bus driver and missed him by about a foot". In the first example he/she was jumping to a conclusion.

I would speculate that if door is not completely broken open then a jail cell is probably waiting, and as a felon you will no longer be permitted to buy or own guns. Unless he has had previous arrests and left marks from using a pry-bar maybe.

And if it is an apartment or condo and the bullet goes through walls then you recklessly endangered others. Your knowledge of the power of your gun and the amount of wood and wallboard will be tested. Any lack of knowledge about how walls are normally constructed might be revealed at length.

That said I will now lay my neck down on the chopping block. I would prefer to stand near my door attempting conversation with my gun in one hand and a bowie knife in the other. I have patience and will be more awake when the door is finally broken open. Hopefully my wife has police on the phone, and is getting her gun ready.

So, why would I choose a bowie knife, with gun, over the police/security baton in my closet? Because it is illegal for a civilian to use a police baton. So I might as well use something better. And a heavy bowie knife gives me the option of hitting with the flat sides or blunt back edge. I want lots of options, and lots of reasons why no half logical fool would want to wrestle me for my handgun.

Okay, pile on.

I too may lay my head on the chopping block. But I think I can tell when my door is coming down, and I will open fire
before the door comes down. As for laying my head on the shopping block same thing applies if you meet someone in a
parking lot and they threaten to rob you and don't stop.

Anytime we get into a situation we could end up on trial.
I am old enough now that a life term would not be very long,
but I will sleep at night knowing I protected my disabled
daughter was protected to the best of my ability. Unlike your situation, I have no backup. My reason for not discussing the situation with a home invader is that gives away my location. Not saying you are wrong to wait till you have a visual on the intruder, just not what I will do. We each have to make our own choices, and I know what mine will be when the door starts heaving in. And if it should be my bad luck for someone to attempt to rob me in a parking lot, I am determined I won't be assaulted and shot with my own guns, jail or no jail For me a life term would not be all that long. When the day is done though I know that I will have protected my daughter and I won't be carjacked either while I am still alive with her in the vehicle, even if I am forced to draw against a loaded weapon.

 

[keith44spl]

Kick a door in...Er, break a window for entry........

In Texas, they's might get more than they want.

Boy Uses Dad's AR-15 to Shoot Invader - YouTube



.

 

[MaximumLawman]

Garner was brought as a "Civil Rights" case...not a "civil" case. Yes, they are waaaaaaay different. That said, it applies to law enforcement personnel..not the general population. IMHO, it should apply to everyone.

Be safe.

In MI, the fleeing felon rule applies to both police and non-police. A minor difference is that a non-police officer must "know" the person he is shooting committed the felony and the police must have "reason to believe". The main case law in MI is people v. Crouch where the MI Supreme court stated that:

People v. Couch[5] (1990) in the Michigan Supreme Court held that Tennessee v. Garner was
1.civil rather than criminal action;
2.did not affect Michigan's Fleeing Felon Rule; and
3.that a citizen may use deadly force when restraining a fleeing felon in a criminal matter.

This is incorrect. Even though some state statutes remain which allow the use of deadly force to stop a fleeing felon for other than a violent felony crime, the U.S. Supreme Court found against the state of Tennessee in Tennessee v Garner in 1985, which essentially negates such laws in every state. The effect of the Supreme Court decision is that deadly force may not be used unless it is necessary to prevent escape AND if the person's escape would result in a threat of death or grave bodily harm to the officer or others. It is not OK under U.S. law to use deadly force to stop a fleeing felon who does not pose such a danger.

See my post above. Also, the US Supreme Court can not tell individual states what action to criminalize. Can't think of the case law that said that off the top of my head, but I've never, ever seen a case in MI where someone shot a fleeing felon and they were prosecuted under state or federal law. And that's due to MI's fleeing felon rule. TN V. Garner was not a criminal case. It did NOT negate fleeing felon rules in other states. After Garner, most states adjusted their criminal statutes to make it a crime to shoot a non-violent fleeing felon. MI was not one of them. TN v. Garner did NOT make it a crime to shoot a non-violent fleeing felon. You may be sued for damages but not prosecuted criminally in MI.

A few examples I recall: Guy comes out of a bar and sees a 15 year-old kid tampering with cars. Tells the kid to stop. Kid runs and he shoots him in the back and kills him. No charges. Guy sees someone stealing his car, thief takes off, guy shotguns him to death. No charges. Guy sees someone breaking into his garage. Chases him down. Thief stops fleeing and tells the guy "go ahead and shoot me". Guy complies. Charges.

In the bar case, they absolutely wanted to charge the guy but they could not, due to MI's fleeing felon rule. There are also numerous cases where the shooters were cops and could not be charged. Subjected to department discipline for policy violations since all departments' use of force policy follows Garner, yes, but charged no. Not even under federal 1983 charges.

More on Couch: Can't find Whitty at the moment:

http://mi.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19900926_0015.MI.htm/qx

09/26/90 PEOPLE STATE MICHIGAN v. ARCHIE L. COUCH

SUPREME COURT OF MICHIGAN



September 26, 1990

PEOPLE OF THE STATE OF MICHIGAN, PLAINTIFF-APPELLEE,
v.
ARCHIE L. COUCH, JR., DEFENDANT-APPELLANT

176 Mich App 254; Boyle, J. Riley, C.j., and Brickley, J., concurred with Boyle, J. Griffin, J., concurred only in the result. Levin, J. (in Agreement in reversal). Griffin, J., concurred with Levin, J. Archer, J. Cavanagh, J., concurred with Archer, J.




The opinion of the court was delivered by: Boyle

We agree with Justice Archer's Conclusion that the decision of the United States Supreme Court in Tennessee v Garner, 471 U.S. 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985), did not "automatically" modify this state's with respect to the use of deadly force to apprehend a fleeing felon. Post, p 441.

As Justice Archer explains, Garner's pronouncements regarding the constitutionality of the use of such force are inapplicable to private citizens such as the defendant. Regardless of the defendant's status as a private citizen, however, the prosecution's argument that Garner applies directly to change this state's fleeing-felon rule fails because it is premised upon the notion that the United States Supreme Court can require a state to criminalize certain conduct. Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court. While the failure to proscribe or prevent certain conduct could possibly subject the state to civil liability for its failure to act, or for an individual's actions, if that state, for whatever reason, chooses not to criminalize such conduct, it cannot be compelled to do so.

Moreover, we fail to see how Garner can be applied "directly" in any event, since the Court in that case concluded only that the use of deadly force to apprehend a fleeing felon who posed no harm to the officer or others was "unreasonable" for purposes of the Fourth Amendment. In other words, Garner was a civil case which made no mention of the officer's criminal responsibility for his "unreasonable" actions. Thus, not only is the United States Supreme Court without authority to require this state to make shooting a nondangerous fleeing felon a crime, it has never even expressed an intent to do so. *fn1


Unlike Justice Archer, however, we decline the opportunity to change the common-law fleeing-felon rule with respect to criminal liability to conform with Garner. Not only does this Court (and therefore the Court of Appeals) arguably lack the authority to do so, even prospectively, given the Legislature's adoption of and acquiescence in that rule, we must resist the temptation to do so. The question whether the common law, which allows the use of deadly force by a citizen only to apprehend a felon who is in fact guilty, has outlived its "utility" (post, p 440) is a matter of compelling public interest, demanding a balancing of legitimate interests which this Court (and therefore the Court of Appeals) is institutionally unsuited to perform. In short, it is a question for the Legislature.

 

[FLSTFI]

For the consideration of those who aver they will always shoot...

Very recently a teenager in a Virginia suburb was grounded...but learned his friends were having a party.

He snuck out of his own home, went to the party, illegally consumed alcohol, and was delivered "home" whilst drunk. His pals helped him climb in a window of "his" house...but it wasn't his. It was two doors away.

Homeowner heard the entry, found him on the staircase, and allegedly confronted him. Teen ignored him and proceeded toward a bedroom according to the accounts.

Homeowner shot him dead.

Food for thought, one would hope.

Be safe.

While I can appreciate this example as something to think about, I still lean towards the teenager's irresponsibility not being my problem. If someone breaks into my home and is headed for my son's bedroom I am not going to let him make it into the room. Even a "small" teenager could be armed. I may feel bad about it afterwards, but people need to take responsibility for their actions. Even if they are a drunken teenager.

 

[Mickey D]

Ok, I admit I didn't read all these long posts.
Bottom line, you shoot to stop the threat, not kill. Keep shooting until you are no longer threatened.