On shooting fleeing felons in the back--outside your house

My personal take:

Why must the pendulum always swing too far?

We live in a society where many deny our right to the means of self-defense. Some even reject the concept of self-defense as “uncivilized”—supposedly only police should stop felonies in progress. We rightly fight for the full recognition of our right to self defense.

But there is no right to use deadly force against someone who is no immediate threat. There is no right to pre-emptive self defense. As a matter of fact, there is no such thing as pre-emptive self-defense. You do not (morally or rationally) get to assume that someone is a threat and then act accordingly. You need clear evidence.

Now this is not to say that there is no scenario where I agree with shooting someone in the back. A felon sprinting toward a weapon could be unarmed. A pedophile carrying your child toward a car could be as well. It wouldn’t matter.

But as a general rule, shooting an unarmed person in the back is wrong. It should be illegal everywhere (with narrow exceptions). Pre-emptive self-defense is as reasonable on the personal level as it is on the international level. It's George W. Bushean.

The “if I kill a fleeing robber he can’t come back and kill me later” meme boggles my mind. You have a right to meet him with deadly force when he returns and offers you serious violence. You do not have the right to kill based on premonition or psychic abilities. You don’t get to kill based on removing the potential (as opposed to the eminent threat) of attack.

Now I sympathize with the motives of the castle doctrine. The law should favor the homeowner. A home is not neutral territory.
If an average man simply walks toward an average woman on the street, shooting him would be quite clearly criminal.

If that same man walked toward her when she surprised him in her house, especially from a fairly short distance, that would be a different matter. She would be justified in assuming criminal intent with a serious physical component.

As a police officer told me (actually a supervisory officer who trained other officers in use-of-force), if a woman shoots a male home invader and claims self-defense she will almost always prevail due to the normal size and upper body strength differential.

Besides being wrong, fighting for laws that allow shooting unarmed robbers in the back outside your house is, in my opinion, ill advised.

Let’s say, for the sake of argument, that I am wrong. Fleeing home invaders deserve to be shot after they have fled the house. It is an advanced principle of self-defense that will be obvious to everyone in a few decades.

I believe that even in that alternate universe, it would still be ill advised.

I will make the bold assumption that there are no racists at Democratic Underground. We all believe in Dr. King’s dream. Imagine that Dr. King had preached advanced principles of equality, instead of basics. Imagine that one of his themes had been the right of black men to date and marry white women. Imagine that interracial marriage had made it into the “I have a Dream” speech.

Now it would have been correct. Everyone here knows that. Men may date and marry any (single) women who will have them. It’s obvious. Someday (almost) everyone will believe that.

So it's true, and truth is very important. But where do you think we would be if King had put the cart before the horse? What would happen to an infant who tried to go from crawling to sprinting?

Talk of shooting fleeing robbers in your back yard makes you look nutty, and not just to anti-gun nuts. And correct or not, it’s counterproductive.

A very rational argument which any rational and civilized individual would agree with.To pose as the devils advocate for a moment though,what if moments before seeing the person fleeing from your home, a family member was discovered attacked and bleeding. What would be your opinion? Would you then be justified in shooting them in the back?

the law must be clear.

The only defense would be "temporory insanity."

Depending on the situation, some jurors might "fail to understand or believe the prosecution's case."

Pennsylvania is a Retreat to the Wall State. The Doctor confronted the burglar in the Doctor's home (It may have been his office, it has been years since I read the Story). The burglar seeing the Doctor and the Doctor's guns ran out the front door with the Doctor in Hot Pursuit. The Doctor then shot the burglar to death. At his trial the Doctor Claimed Self-defense. The problem was, he had chased the Burglar out of his home and as such the Burglar was no longer a threat to him, thus it was NOT Self-defense.

The Doctor was convicted of Manslaughter on the Ground the Court accepted the Doctor's story that he believe he had the right to shoot the Burglar for the Burglar had been in his house. The Doctor thought that was legal Self-defense, when it was NOT. A mistake in the law of Self-defense, if accepted as true by the Judge (Sitting without a Jury) or the Jury, is grounds to lessen the punishment from Murder to Manslaughter. Thus the Doctor was convicted of Manslaughter, as would anyone else who can convince a Judge or Jury that he had a mistaken belief in Self-Defense. The person pleading self-defense will have to serve some time in jail but not the life without parole that a Murder gets in most states today (And definitely NOT the death Penalty).

Manslaughter, in most states, implies no intent to kill someone, but still an unlawful act that lead to someone's death. The classic case is the "Soft-Skull" cases, cases where someone punched another, and do to the punch the person hit his head is such a way he died. The hit was NOT to kill the person, just to punch him or her. No gross recklessness, no gross negligence, no intent to kill (Three of the possible grounds needed to prove Murder), but a positive act that resulted in someone's death. That manslaughter not Murder. Thus when someone kills someone is the belief it is self-defense, but it is NOT, the crime is Manslaughter NOT Murder but it is still a crime.

and here in Texas, I happen to side with the law. The code in Texas law (9.40 etc) isn't filled with what-ifs as the antis like to call them, it deals with the reality that a fleeing suspect/felon could be retrieving a weapon or will return with backup or (etc etc etc). This is common sense.

To ASSume the perp will never return to do you or your loved ones harm is one of the most common fantasies/falacies proposed by the antis. That is NOT common sense, that is sensless. This is also the falacy associated with some state laws that say a citizen MUST retreat or leave or hand over their children without a shot (okay, a little over the top there but....hey).

Some will say property is not worth a human life. Seems to me they need to be preaching that to the badguys. ;)

can you quote the law itself?

To ASSume the perp will never return to do you or your loved ones harm is one of the most common fantasies/falacies proposed by the antis.

I see no assumption. I don't assume my neighbor will never try to kill me, neither do I assume he will. When I see him take actual steps in that direction, I will react accordingly. That is true of fleeing robbers as well, especially ones outside of the home.

And since you put the word "never" in there, I have to ask, how long does the license to kill last? Say he's an early 20s punk who runs to his 10 speed. The homeowner gets in his car and chases. Does he have a right to run the kid over? Or put down the window and shoot him (assuming a clear shot away from bystanders)? Is that self-defense?

What if he sees him in the mall two days later? Can he shoot him in the back then? It will absolutely prevent that kid returning with a shotgun and a few drug crazed friends later--I concede that fact. I don't concede its relevance.

got google?


http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/htm/pe.002.00.000009.00.htm

You can legally shoot a burglar in the back if he is escaping (at night) with your iPod.

Wow!

Needless to say, I think this is bad law.

Why do you think it's good law?

I noticed that, at least as far as I can tell in my brief scan, it has nothing to do with him coming back later, nothing whatsoever. The threat--loss of your iPod, for instance--must be imminent. How did that idea get in there.

Who would have expected to see that in a modern society in this part of the world?

Frankly, I don't think most societies like ours a century or two ago would have permitted this.

Our level of agreement on this is fairly high. (I almost used the cutting off of hands example myself.)

I think the law violates deep principles of American legal philosophy, I just can't articulate them clearly enough yet.

I also think it is politically silly, as it gives ammo to people on "your side." No offense intended.

"Needless to say, I think this is bad law.

Why do you think it's good law?"




Can you predict the future?

The threat must be imminent.

And you totally ignored the part about the license to kill. Can you run him down with your car three blocks away ("hot pursuit")? Can you shoot him in the mall that weekend? Can you shoot him 20 years later?

In each case, it is possible that he could come back and harm you and your loved ones. If not being able to predict the future is the issue, your license to kill him should last "as long as you both shall live."

LOL

Including the lengthy segment of the Texas statutes you linked to.

Any reason you can't quote the part that supports your claim?

I sure hope you weren't referring to this part. In case you were, I'm going to add a bit of emphasis to assist you:

§ 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.

The law is vile enough as it stands, without pretending it's worse than it is. If the burglar in question actually had your VCR in hand, you could shoot him/her in the back. If you successfully interrupted the burglary and no property was being made off with, you could NOT legally do so, unless using other than deadly force would expose you or another to substantial risk of death or serious bodily injury.

I suppose there are probably juries in Texas who believe that using less than deadly force ... or no force at all ... against a fleeing burglar would expose one to substantial risk of death or serious bodily harm.

I'm interested in the timeline too, of course. I suppose there are people who would say that failing to shoot a burglar dead would expose one to the risk that s/he would return with a posse next week ... burglars being kinda like that, burglars being.


A society that permits killing in order to prevent theft or recover property is one sick puppy.

... that puts the burden of proof on the state. The problem in a lot of states is that those who defend themselves are put in a position where they must prove their innocence, which is the opposite of what our Constitution demands.

A lot of laws, such as the the Castle Doctrine type laws put the burden on the state to prove it was a felony... where it belongs.

A lot of laws, such as the the Castle Doctrine type laws put the burden on the state to prove it was a felony... where it belongs.

Some of those particular laws -- like in Florida, for example, PROHIBIT the state from proving anything.

We all know by now what those laws say. Wouldn't it be nice if we could stop pretending they don't say it?

I don't really care that they give people the go-ahead to shoot someone in their own home. That is a message to criminals that basically says, don't rob people when they are home.

I don't have a problem with that.

Much better than having to prove my innocence.

Having lived in many areas of the country with a wide range of views, I think that it heavily depends on what sort of jury you get. Things can be de jure against the law but juries can go out of their way to sanction it if they feel the right thing was done. It's one thing for a state legislature to pass a law, another thing to force a jury to adhere to it in deliberations.

Personally, I have no problem with shooting burglars in the back. You caught them red handed, they haven't gotten away yet and their death is, if not a public service, at least not a very serious public harm. It also has the perverse effect of making shootings less likely because criminals avoid the situations in which they expect one to occur.

The severe consequences of burglary in the US have reduced the overall number of burglaries and almost eliminated home invasions. Compare to "civilized" Europe where it is far more common for thieves to break into occupied residences so they can rob the tenants as well.

And this has nothing to do with race. Plenty of meth heads out there, and they aren't black.

Personally, I have no problem with shooting burglars in the back. You caught them red handed, they haven't gotten away yet and their death is, if not a public service, at least not a very serious public harm.

The same points could be made regarding someone you caught keying your car. You caught them red handed? Check. They haven't gotten away yet? Check? Their life is not worth much? Wrong! But keying your car is not a threat to life or limb. And neither is running away in your yard.

I agree that necessary killing in justified self-defense serves the public at large. But the bolded words are crucial.

It also has the perverse effect of making shootings less likely because criminals avoid the situations in which they expect one to occur.

I am not aware of any evidence that shooting in the back has anything to do with crime rates. I can follow the intuition that says it would, but I am not totally convinced. If you make the results of committing small crimes too large, what will differentiate them from large crimes?

For obvious reasons, it is important to differentiate between levels of crimes.

burglary is considered a forcible felony under the laws of many states, alongside rape, robbery and murder

If I may just elaborate a little.


I am not aware of any evidence that shooting in the back has anything to do with crime rates.

And even if it did: is there maybe a reason we no longer cut off people's hands for shoplifting? Surely it would have a very salutory effect on crime rates if we did.

Not to mention: deterrence is a function of the STATE, when it involves interfering in the exercise of individuals' rights. Otherwise, it's simply a side effect of vigilantism.


If you make the results of committing small crimes too large, what will differentiate them from large crimes?

That's what "cruel and unusual punishment" is all about. There really are gradations of crimes, and gradations of appropriate punishments for each.

And even if it did: is there maybe a reason we no longer cut off people's hands for shoplifting? Surely it would have a very salutory effect on crime rates if we did.

Perhaps, perhaps not.

If you cheapen life (and limb) enough, I think crime will actually rise. If life is brutish enough, people will maximize immediate gratification and discount future consequences. Felons already have this outlook, a severe enough legal environment may push the population in that direction, IMO. Add to that the contempt for law factor. Senators daughters won't lose their hands, inner-city girls will.

That's what "cruel and unusual punishment" is all about. There really are gradations of crimes, and gradations of appropriate punishments for each.

True. And self defense is supposed to be about defending yourself, not your property. Perhaps a case could be made for property necessary to life (like stealing a man's camel in the middle of the desert), but the cases would be very few and far between.

I was being slightly facetious about chopping off hands being a good deterrent. The actual fact is that severity of punishment is not any deterrent at all, where other overriding factors are present. They include impulsivity (particularly in the case of assault and homicide) and need (such as in the case of theft).

Far more effective in many cases (although impulse crimes are pretty much immune to deterrence) is the extent to which punishment is expected to be swift and certain, regardless of severity. This is particularly true for young offenders.

Of course, this will undoubtedly lead to a chorus of how shooting burglars would create an expectation of swift and certain punishment ... except that we all know that "punishment" has a meaning, and that members of the public do not punish anyone for breaking laws. And we also know that there are overriding factors affecting many people who commit burglary, including impulsivity and need.


Perhaps a case could be made for property necessary to life (like stealing a man's camel in the middle of the desert), but the cases would be very few and far between.

I have said as much. In the early U.S. west, for instance, where farming was subsistence level for many people and there were few surpluses and other sources of supply, and little alternative to staying on the land, a family's survival depended on the supplies it could lay in for the winter and the livestock it could raise. Taking either could indeed mean starvation.

Of course, the inequality under the law thing undoubtedly came into play there, too. Where rustling the single-digit cattle of a struggling family could really have lead to the possibility of death, rustling the large herds of those engaged in raising cattle for profit rather than subsistence would not have ... but I wonder which offence would have been more likely to lead to actual judicial execution.

As you mentioned, it seems like Texas law permits shooting someone for attempting to steal an I-pod.

Shouldn't the criminal drop the I-pod when he realizes someone is home?


Not only do you need to catch someone red handed, but that person has to be unwilling to flee empty handed or surrender.

I'm OK with shooting felons in the back

as we do be having!


OK
I'm OK with shooting felons in the back

OK.


Bouvier's Law Dictionary, Revised 6th Ed (1856):
FELON, crimes. One convicted and sentenced for a felony.


How do you tell whether the person you are shooting in the back has been convicted of a felony?

Oh sure, you could go with that non-technical definition:


A person who has committed a felony.


But, I dunno, that strikes me as kinda begging the question. I say s/he has committed a felony so I get to shoot him/her. Hmm. The expression "judge and jury in your own case" come to mind?

Never mind. I'm sure you're OK with that too.

Needless to say, your cite doesn't apply to preventing a felon or even a suspected felon from escaping, returning to harm, etc. but nice that you posted it.
Otherwise, that's just the way it is here in Texas and guess you'll just have to live with that up there in Canada. Just think, someday the Castle Doctrine will be "out-dated" just as you posted earlier about the US Constitution....and we'll still be living by it, the law........here in Texas.

I think your tempest is in search of a teapot.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=169104&mesg_id=169104

You do remember what this is about, right?

Burglar shot in back while running away? Exactly what did this householder claim that brought him w/in the ol' Texas "castle doctrine"?

Within the span of a week.

That kind of information creates much more than a bare fear that the guy will return again. What was the old saying that GWB couldn't get right?

Fool me once, shame on you. Fool me twice, shame on me.

I have a strong stomach.

Bring the nauseating crap on. I can take it.

A scantily clad fear that someone will steal your VCR is legal -- and apparently moral, to some minds -- justification for killing.

And these are the thoughts of the people whose votes the Democratic Party is supposed to be chasing ...

If the people who voted for the party of my choice thought like this, I'd kill myself as being unworthy of living.

but VCR's are so "yesterday", such as the draconian retreat-laws that still exist in some states.


(you actually have a VCR?)

In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme Court held that the fourth amendment to the U.S. Constitution permits the use of deadly force when necessary to prevent the escape of a felony suspect when there is probable cause to believe the suspect has committed a crime "involving the infliction or threatened infliction of serious physical harm."


The current federal(U.S. Dept of Justice)policy on the use of deadly force requires the additional factor of probable cause to believe that the suspect's escape would pose an imminent danger to the officers or others.

You might not think it "civilized" but it is what it is and the current law of the land until changed by law and or precedent.

The current federal (U.S. Dept of Justice) policy on the use of deadly force requires the additional factor of probable cause to believe that the suspect's escape would pose an imminent danger to the officers or others.

(You really ought to cite sources when you copy and paste. You did not compose the content of that post.)

That isn't actually an "additional factor". You've considered using primary sources occasionally maybe?


http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=471&invol=1

U.S. Supreme Court
TENNESSEE v. GARNER, 471 U.S. 1 (1985)
471 U.S. 1

TENNESSEE v. GARNER ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 83-1035.

Argued October 30, 1984
Decided March 27, 1985 *

A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all the necessary means to effect the arrest." Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being "reasonably sure" the suspect was unarmed and thinking that he was 17 or 18 years old and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. 1983 for asserted violations of his son's constitutional rights. The District Court held that the statute and the officer's actions were constitutional. The Court of Appeals reversed.

Held:

The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 7-22. <471 U.S. 1, 2>

(a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect's rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.

(b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common-law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common-law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common-law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 12-20.

(c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect - young, slight, and unarmed - posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 20-22.

Very interesting.


You might not think it "civilized" but it is what it is and the current law of the land until changed by law and or precedent.

Plainly, the Texas statute is in direct contravention of this instruction from your Supreme Court. So it is the law of the land in Texas only because nobody seems to give a crap about the Constitution. Like I think I did say.

"Federal Policy" are rules of engagement for federal employees, not a "law". Tennessee law is......well, it's a law.


just clarifying.

You're actually incapable of reading more than one sentence at a sitting, are you?

*I* am not the one who characterized something as "federal policy".

*I* am the one who pointed out that it is NOT "federal policy" (for our purposes).

It is THE OPINION OF THE UNITED STATES SUPREME COURT.

Maybe if you had more of the caffeinated beverage and less of what goes in it.

it is federal policy from the FBI lesson plan I took it from. I am not at liberty to post those plans directly and must make do with a excerpt. I operate under that standard myself by regulation and policy. Your cite on the case proves the point as well. IT DOES justify the ability to shoot fleeing felons under certain circumstances.

The Texas law is not directed at law enforcement for the apprehension of offenders. I doubt it will be found deficient with the current spate of "Castle Doctrine" bills making the rounds of state legislatures. If I believed the thief to be armed and a threat and could articulate a reasonable man standard then it would pass muster. If I suspected as much as a citizen (NOT law enforcement) then the lower standard would hold. I believe you were rather pointed in explaining how LE is different from the public in another topic.

Personally I do believe thieves should worry about what might happen to them as they ply their nefarious trade. I support the Texas law. The easiest way to avoid getting shot for thievery is to NOT steal.

You actually claim to work in law enforcement -- do I have this right?

And this is the best you can do?

I mean, not only intellectually, but morally?

I become ever happier that I no longer have any reason ever to return to Texas ...


If I suspected as much as a citizen (NOT law enforcement) then the lower standard would hold. I believe you were rather pointed in explaining how LE is different from the public in another topic.

Uh huh.

And how you get from any of that to there being a "lower standard" for the general public than for police ... I just wouldn't know.

I become ever happier that I no longer have any reason ever to return to Texas ...

I would wager Texas will not miss you either.

And how you get from any of that to there being a "lower standard" for the general public than for police ... I just wouldn't know.

Try...I am sure it will come to you.