passive non-compliance, what are the legalities ?

[Treo]

I saw a thread about this on TFL and there’s another one on THR.org that’s kinda the same theme so I thought I’d throw it out here.

In the TFL thread the Op walks out of his house and catches someone stealing the stereo out of his car. He orders the guy to stop and the guy refuses and continues to steal the stereo but doesn’t threaten or approach the homeowner. he just refuses all demands that he stop his theft

In the .ORG thread apparently a bunch of drunks follow the OP home from a football game and start vandalizing his cars. The OP goes outside (first mistake) W/ a bolt action rifle (second mistake) to tell 9 guys to get off his property. None of them comply and one actually tries to disarm his (yes I know that’s when you shoot but it seems to me that you’d be opening a huge can of legal worms that would cost you far more than some minor vandalism to your car.)

My scenario would be finding a guy in my living room at o dark thirty (this is hypothetical) I cover him and tell him to leave, get down on the ground, freeze or what ever and he neither approaches me nor tries to leave or dares me to shoot.

How do you handle it?
PS I know that in my scenario the cops will show up eventually and then it’s their problem but even then what do you tell the cops

EDIT corrected title

[AtheistCrusader]

1. This is pretty fucking incoherent.

Try again.

[Treo]

3. It's incoherent

because it's kind of a weird situation that could happen to any of us. You confront some one in the act of committing a crime against you. They don't actually present a threat against you but the don't comply With your command to stop the illegal activity. Legally what are your options? Morally?

[AtheistCrusader]

12. A much more coherent answer.

If they are not a threat, you do not have the option of lethal force.

In washington state you have the legal justification to draw a firearm if you witness a felony in progress, but you may not have legal justification to fire. If you order someone, who just broke into your car, to get out an lay on the ground, and instead they get out and try to flee, you have pretty much one legal option:

Pay close attention to their appearance and call the police immediately.

If they ignore you and continue working on stealing the car, while you yell at them and point a gun at them, you don't have legal justification to shoot, unless they are in some way a danger to you. If you have blocked their path with your body, that might qualify. I have been in that situation before, stopping a drunk driver, and if she had attempted to run me over, I would have shot her. I would not have felt 'morally ambiguous' about it, even though I placed myself in her path.

But lacking any element of danger to yourself, no you don't have any legal justification to shoot. (Unless you live in Texas or another state that allows it for the protection of personal property, most states do not)

[Hoopla Phil]

2. Some interesting postulations there.

Fortunately most of you scenarios seem to happen at night. Here in Texas there is a different set of laws on the books once darkness sets in. In Texas, during the hours of darkness, deadly force may be used to stop or prevent criminal mischief. That includes something as minor as vandalism. In fact there was a case down in Corpus in the late 80's where an elder man shot and killed one kid (of several) that was toilet papering a tree in his front yard. He was charged but got off because deadly force can be used to stop criminal mischief (the papering of his front yard) during the hours of darkness.

[Treo]

4. Two of these actually happened ( I gather)

The third(mine) was hypothetical CRS 18-01-704.5 provides that if a person has illegally entered my home, I reasonably believe he is committing or about to commit another crime, and I reasonably believe that they present a threat however slightto me, I am justified in using deadly force. To me if you don't immediately comply with my commands and you're illegally in my house you've crossed the however slight threshold.

But what if some ones just stealing a car stereo? are you justified in shooting them?

What about the gut that took a bolt action rifle to confront nine guys? disparity of force was there but didn't the guy put himself in that situation? Would he have been legally justified in shooting the guy that tried to take his weapon?

[Euromutt]

5. Generally, you're justified in using force to halt a crime in progress, but not *lethal* force

In the first case--the car stereo thief--you'd be entitled to use personal force or pepper spray to stop the thief from completing his crime, but you're not entitled to threaten, let alone use, lethal force since there is no risk of innocent life or limb.

The second case--the drunk vandals--is trickier. Initially, you wouldn't be entitled to threaten or use lethal force because, again, there is no immediate threat to innocent life or limb. On the other hand, the law generally recognizes that three assailants against one presents a sufficient disparity of force that use of lethal force becomes justified, so if you tried to stop the vandals with personal force, a situation could develop pretty damn quickly in which, shorn of context use of lethal force would be justified, but if you initiate a scuffle while packing heat, the local prosecutor may hold it against you. I think it'd be smarter to stay indoors, call the cops, and take pictures or video of the incident. And if the goons notice and try to break into your house to stop, well, then it becomes self-defense, right? Only have something capable of higher rate of fire than a bolt-action rifle.

In your hypothetical scenario of the passively non-compliant nocturnal intruder, well, if he's not making any moves, keep him covered till the cops show up. Instruct him that if he reaches for a pocket, his waistline or his neck, you will interpret that as an attempt to reach for a weapon and shoot. If he tries to flee, let him, but make sure you can give a good description of the guy to the cops.

Best I can think of right now.

[paulsby]

41. this is not true

"but you're not entitled to threaten, let alone use, lethal force since there is no risk of innocent life or limb."
cops and citizens are entitled to (at least in my jurisdiction) do so. every time i stop a stolen car, i do a felony stop - that means gun drawn and presented to the suspect. this is not only legal, it's POLICY. citizens can also confront more serious but non violent crimes by BRANDISHING (***not*** firing) a firearm. i don't want to get into all the legal technicalities, but if you've ever seen an episode of cops, you have probably seen a felony stop. certainly, if you are going to brandish, you set up a reactive distance and you keep your finger off the trigger.

[pipoman]

6. I think all 3 are silly and highly unlikely

Some guy stealing a car stereo will respond when confronted, probably by running away, maybe by attempting to attack the owner, but to ignore someone with a gun....highly, highly unlikely. If it did happen he better not have a leg hanging out the car door because I am going to holster my gun and slam the car door with everything I have, this would get is attention.

In the second scenario, only an idiot wouldn't just call the police and wait inside. So given that you are dealing with drunk idiots and an idiot who knows what might happen.

The third scenario again is highly unlikely. What do you mean "what do you tell the cops", you tell them, "a guy in my living room at o dark thirty (this is hypothetical) I cover him and tell him to leave, get down on the ground, freeze or what ever and he neither approaches me nor tries to leave or dares me to shoot.".

A scenario which the intruder/offender acts somewhat with a predictable response is pretty uncommon, these bizarre scenarios are not worth the effort to play through IMHO. I am all about playing through scenarios to allow your mind to react rationally when/if a similar situation arises, this includes coming to a set of criteria which must be present before I use deadly force. This is a much easier way to train your mind to react to a given, unpredictable situation, instead of thinking up unlikely bizarre scenarios. Most police are trained using criteria for use of force not trying to think up scenarios. Just my $.02.

BTW, bringing threads from other forums are generally frowned upon here as they are on the 2 sites you mentioned.

[Treo]

13. Except for the fact that 2 of the 3 (apparently) actually happened. NT

[pipoman]

16. Yea, "apparently"

[Treo]

17. Do you expect people to believe the things you post?

Then please do us the same courtesy

[pipoman]

28. Who is "us"?

[Treo]

29. Anyone who reads your posts

I'm done W/ this pissing contest. have a nice day

[pipoman]

34. I didn't doubt what you said

but the predominately radical rethuglican THR in particular isn't exactly populated with, you know, your most honest progressive crowd. Care to share your handle over at THR and/or TFL? Now I used to post over at TFL some...before my total disgust at * admin. set in. After that...not so much..

[Treo]

36. same as here Treo

And there are quite a few people who post here that post there

And FWIW I'm banned on both sites at TFL for "Cop bashing' and for telling another poster that Jimenez fire arms could suck a golfball through a garden hose at THR

[paulsby]

7. as a cop myself, i can speak to the law and what you would tell us

here's a hint: you tell the truth, or you say nothing (lawyer up) . lying is generally a bad idea, but some people get away with it (it helped gary ridgway avoid detection for over a decade until DNA caught him... but i digress)

(i realize the law varies state by state. i am speaking to general principles in my state)

"In the TFL thread the Op walks out of his house and catches someone stealing the stereo out of his car. He orders the guy to stop and the guy refuses and continues to steal the stereo but doesn’t threaten or approach the homeowner. he just refuses all demands that he stop his theft "

you can use "reasonable force" to stop a theft. what is reasonable? well, welcome to OUR world when we make arrests, etc.

can you shoot somebody who refuses to stop stealing? no. end of story.

as to the bolt action story, if a guy is trying to disarm you, as you are defending your property, you are USUALLY ok in shooting him. but... it depends. if they decide you were grossly negligent in confronting them with a gun (unlikely), you could get some kind of low level reckless homicide charge or at least a nice civil suit

your third scenario... you hold the guy at gunpoint until the cops come.

[billh58]

14. That was my

take on the questions posed by the OP: what would a police officer do? Once a situation has developed to the point where a private citizen has legally brandished a firearm, it would seem that the same laws that apply to the use of "deadly force" by the police would come into play.

[paulsby]

20. close, but not quite

for example, in WA state, citizens have more leeway than cops in regards to deadly force. it's in the RCW

whther off duty cops fall under the looser or stricter standard is something i have not seen addressed

[billh58]

23. Thanks for the

clarification. Is the difference mainly a matter of statute, or of departmental regulations and policy? I realize that various State laws view what constitutes allowable force in the act of "self-defense" differently, but I wasn't aware that LEOs were held to tighter standards.

[paulsby]

38. it's a matter of statute

the RCW actually has two different standards written in

now of course, some agencies can be more restrictive than the state standard, but that would be a civil, not a criminal thang.

WA state is a very good state for respecting the citizen's right to self defense.

[paulsby]

40. generally speaking, that is true

i have responded to at least a couple of dozen instances where citizens brandished a gun in response to various crimes. in no cases, where the people were CCW holders defending themself/property did it cause them any trouble with us (cops) or the prosecutors. as i said in another post, laws on deadly force vary SOMEWHAT state by state. in my state, citizens (and arguably off duty cops, but this is grey) have slightly MORE leeway for deadly force than cops do.

[rrneck]

8. Keep a phone on you

as well as a gun when you check on trouble. If it looks bad call the cops. If it GETS bad you may have to shoot somebody.

[Treo]

18. our HD plan

Includes DW on the phone while I'm checking the noise. Our house is laid out such that I can cover the whole main level from the MBR door

[GreenStormCloud]

9. My objective is survival, stuff can be replaced.

First scenario: Stay inside, call cops, get good description. If you live far away from the police where the response time will be too long, check with an attorney in advance to find out what your state's laws are. The difference from state to state is huge.

Second scenario: They followed me home. I carry concealed. Before I go into my home I ask them if they need help, and at the same time put my hand on my gun in my pocket. If the situation becomes threatening, I retreat to my house and call 911. While retreating I continue to face them. If they attempt to prevent my retreat, or force their way in, then I start shooting.

Third scenario: My state has Castle Doctrine. I don't cover him and tell him to leave. I shoot immediately. Not being bloodthirsty, but when you tell someone to freeze you have handed the iniative to them. They can act while you have to react. Action almost always beats reaction. Hit him with a fast two blasts of 00 from a 12ga at center mass, then call 911 for pickup.

[Tim01]

10. You can shoot people to protect people, but not stuff.

If the badguy in your house is non compliant but not armed or approaching either, I think you have a stalemate. Get comfortable, you may be there for a while.

[GreenStormCloud]

22. Depends on the state.

In Texas, I can shoot. All I have to tell the police is that he had broken into my home illegally. Then I shut up.

[Tim01]

25. True enough. Different states, different set of rules. nt

[OneTenthofOnePercent]

11. This is where a "throwaway" revolver comes in handy.

Take it to the range and fire 2-3 of the rounds and then wipe it.
Store it in a plastic baggie until needed.

"Officer, he pulled a handgun and fired some shots in my direction..."

lol

[billh58]

15. Seems to me that,

planting evidence would amount to a premeditated murder in search of a victim.

[GreenStormCloud]

42. It often gets done out of fear and ignorance.

A person makes a righteous self-defence shot and is afraid that the police won't see it his way so he decides to "help" the evidence a bit. Bad move, but sometimes done.

And sometimes it is done to cover-up actual murder.

[GreenStormCloud]

21. Never, ever tamper with evidence at a scene.

It is a felony. You are an amateur at arranging evidence and the police forensics team will be experts in detecting altered evidence.

[Tim01]

24. I can't believe you posted that on a public internet.

If you ever go to court, the jurors are going to be told about this.

[Treo]

26. I'm thinking this was a grabber troll

fishing for a response

[OneTenthofOnePercent]

30. Wow... people need to dial in the sarcasm meters and stop watching CSI.

No one in their right mind would carry around pistol to plant on people.

[Treo]

31. Actually Harris County (Houston) PD has been caught doing it NT

[OneTenthofOnePercent]

33. Wow, they must be truely incompetent.

Not only were they tampering evidence (which is police failure)... but I'm assuming they would also be the ones processing the tampered crime scene. A department must be totally incompetent to not be able to cover a crime scene being both the perpetrators AND processors. Massive fail - lol.

[Euromutt]

27. You're making it awfully easy for the prosecutor

Once CSI fails to recover any of the bullets you say your assailant fired, your story's going to lose some credibility.

And deservedly so.

[OneTenthofOnePercent]

32. see post #30

I was joking.

But joking aside, I'll bet actual bullets recovered from crime scenes are less than the amount not recoverd.
Missing into the air or hitting soft ground would make for a VERY hard to find projectile.

[Treo]

35. If you are ever involved in a SD shooting

That's even a little sketchy they are going to crawl up your ass W/ a microscope. Any thing you post can and will be used against you

[spin]

19. Depends on where you live. If you live in Florida....

the guy is at your mercy.

Excerpts from an interview with former NRA President Marion Hammer on Florida's Castle Doctrine law:

GIACHINO: One thing that is a little bit confusing – well, actually a lot of things are confusing about this law, particularly because of the misinformation that is being given by the Brady group, but one thing that confused me, and I read the law several times myself and would consider myself qualified to read it and understand it with my legal background, but nonetheless someone who is retreating, a perpetrator who is retreating, what happens then? If they had entered the person’s home unlawfully and the person felt that their life or someone in their family’s life was in danger, even if at some point the perpetrator turns to retreat, if deadly force is used against them would this law still apply?

HAMMER: The law is designed to allow you to use deadly force against an individual who breaks into your home. If someone turns around, you have no way of knowing whether or not they are retreating or whether or not they are going for a gun or something else. So yes, if someone breaks into your home they are at your mercy. Once they get outside your home – if they turn around and run and get outside your home, then you cannot take action against them.
http://www.cfif.org/htdocs/freedomline/current/in_our_opinion/marion-hammer-nra-interview.htm

[Statistical]

37. Very simple.

Always know the law in your state.

If I saw someone stealing my car I would confront them from a distance.
You CAN NOT shoot over theft of a car stereo or car or any property. (I leave TX out because it is a strange and complex example).

You can however use "reasonable force" but I have no intentions in getting into a struggle with someone who may be armed with a knife or other weapon.

I would tell them to stop and that I am calling the Police.... 90% would leave right there.
I would call the Police right in visible sight of them.
If one of them advances of me then I have a "reasonable fear for my life or bodily injury" at which point I would draw and tell them to stop. 99% of criminals would have left by this point.

If they don't I am going to shoot to stop.

The OP scenario is flawed because you can't brandish a firearm to stop a crime that doesn't warrant lethal force. Threatening with a firearm IS LETHAL FORCE.

[paulsby]

39. sorry, this is false

"The OP scenario is flawed because you can't brandish a firearm to stop a crime that doesn't warrant lethal force. Threatening with a firearm IS LETHAL FORCE." ... there is no such bright line rule, at least not in my jurisdiction. it is perfectly acceptable to brandish and even point a firearm at a person committing a non-violent crime (like auto theft), as long as you retain a reactive distance. it is true that, generally speaking, threatening with a firearm is deadly force, but it is also accepted that brandishing a firearm when confronted with a crime in progress like auto theft is not unreasonable force. cops (like myself) do it all the time. it doesn't follow that absent OTHER circumstances, i can FIRE the gun. in brief, "getting the drop" on a felon in progress, even a non-violent one is not legally verboten (in my jurisdiction). whether it is prudent is another question entirely

[Statistical]

43. Well it does depend on the state but in VA

Brandishing a firearm to prevent theft of property is a crime. Brandishing is considered assault. Lethal force is not authorized when the victim is not in reasonable for for life or bodily injury. If the situation involves theft of property at least in VA you can not (as a civilian) draw to prevent a property crime.

The threat to use deadly force by brandishing a deadly weapon has long been considered an assault.

- Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955).

Judge Moncure, in the Hardy Case, 17 Gratt. (58 Va.) 592, 600, <1867> quoted with approval from an old English case, thus: "An assault is any attempt or offer with force or violence to do a corporeal hurt to another, whether from malice or wantonness, as by striking at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it."Such a threat may give the threatened person a right to defend himself by the use of a deadly weapon. McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). Further, as the dissenting opinion of the Court of Appeals notes, "

ermitting one to threaten to use deadly force leads in dangerous progression to an unacceptable conclusion. Here, the victim would have been entitled to use deadly force to repel the perceived threat." 28 Va. App. at 780, 508 S.E.2d at 916 (Judge Bumgardner, dissenting); 30 Va. App. at 153, 515 S.E.2d at 808 (en banc) (Judge Bumgardner, with whom Chief Judge Fitzpatrick joins, dissenting). Moreover, the owner of land has no right to assault a mere trespasser with a deadly weapon. Montgomery, 98 Va. at 844, 36 S.E. at 373. Indeed, in Montgomery, it was the landowner's brandishing of a sharpened corn-cutter that provoked the defendant's physical assertion of his right of self-defense. 98 Va. at 841-43, 36 S.E. at 372-73. For these reasons, we agree with the trial court that a deadly weapon may not be brandished solely in defense of personal property. Therefore, we conclude that the Court of Appeals erred in reversing the trial court's judgment. "

- Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935)

We need not resolve the defendant's claim that Eustler's actions were "unwarranted and illegal . . . in attempting, by other than peaceful means, to unlawfully take personal property." Even if Eutsler's actions were unwarranted or illegal, the defendant, as an owner of personal property, did not have the right to assert or defend his possessory rights thereto by the use of deadly force.

- Commonwealth v. Alexander, 260 Va. 238, 531 S.E.2d 567 (2000).

Lots of precedent literally dozens of cases that indicate if you brandish a firearm in a situation not involving threat of death or bodily injury you can be charged with assault with a deadly weapon.

At least in VA if the situation doesn't warrant shooting then it doesn't warrant bradishing.

[paulsby]

45. that sounds right

as is abundantly clear, laws about firearms (and use of force and self defense) vary GREATLY from state to state.

even if the law is as such in VA, i would hope the responding cops would have the discretion NOT to arrest assuming you pointed a gun at an auto theft in progress in your driveway, but you are correct - it is a crime in VA.

WA happens to be very protective of self defense rights, etc. for example, in WA , the burden of proof is on the state to DISPROVE the defense of self defense. in many states, one has to establish that burden of proof.

good post though. with supporting evidence

[GreenStormCloud]

44. If I am on my own property, or property under my control...

then display of a firearm is not brandishing or even threatening, unless it is pointed at the person. So, if I were to be stupid enough to go outside to confront the thief, I could stay a good reactive distance away, while having the gun in hand but pointed in a safe direction, such as at the ground. If he attacks, I can have the gun on target in about 1/2 second.

Choice of arms for that type of confrontation would be a 12ga shotgun, held at low ready position, or possibly high-port if for some reason that low-ready was impractical.

Meanwhile, wife is on the phone to the police.