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Using deadly force to prevent burglary?


Windermere

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The "exception isn't really an exception at all" is basically what the appellate court says in the PDF I linked above. The court held that there is no practical difference in section 7-1 and 7-3, and jurors should be instructed on both statutes when property is involved (the defendant in that case thought he would be robbed and the assailant had a pipe for weapon, defendant displayed knife). This is why I believe the property statute could very well come into play. Many attacks begin as some sort of robbery/burglary.

Again, my point here is that regardless of what the law says, I am not going to shoot someone for committing a felony, if it does not involve threat of death or bodily harm. That's not to comply for the law, it is for my conscience. But you and I would have the same response in the instance of walking into the garage and startling the burglar. What we disagree on is why that would be the course of action. You say above that you would be shooting him because he is committing a forcible felony. To me, that is a moot point. I would be shooting him because, in taking a step toward me (to get to his exit), he is now posing a threat of death or great bodily harm. I have no duty to confirm that he has a weapon or the means to harm or kill me, only that I had reason to believe he might. The forcible felony (burglary) is no longer the issue.

 

Waking in my back door and stumbling upon the burglar as he is walking out the front door with my TV is a different story. What happens next all depends on what he does. He is going out the front door, I am not in his way. He has no need to move toward me unless he intends me harm. If he gets startled, drops the TV, and runs out the door, aside from watching him go to ensure he is not getting his buddies from the truck to come back in, my next move is to call the police and file a report, then the insurance company.

 

I guess my take is, the law says "or to prevent the commission of a forcible felony", but my own compass says that said that the forcible felony being prevented needs to involve causing death or great bodily harm to myself or another person, or it's just not worth it. If the forcible felony being prevented involves causing death or great bodily harm to myself or another person, then the forcible felony language is redundant.

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When teaching Use of Force, I review the Illinois statutes (Article 7). We talk about the meaning of the words "reasonable" and "imminent." We review the list of forcible felonies. I stress the difference between ordinary force and deadly force, and when each one is justified. We discuss "great bodily harm."

 

Then I ask, "Can you remember all of this, under stress, when you have about half a second to decide whether or not you are going to pull the trigger?"

 

You need to summarize what all of that means, put it in your own words. Something easy to remember that not only fits the law, but fits with your own moral beliefs. You have to draw your own line in the sand before you get to that point. Just because you CAN do something doesn't mean you SHOULD.

 

I ask myself, "Is someone going to die if I don't take action?"

 

 

-- Frank

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The "exception isn't really an exception at all" is basically what the appellate court says in the PDF I linked above. The court held that there is no practical difference in section 7-1 and 7-3, and jurors should be instructed on both statutes when property is involved (the defendant in that case thought he would be robbed and the assailant had a pipe for weapon, defendant displayed knife). This is why I believe the property statute could very well come into play. Many attacks begin as some sort of robbery/burglary.

Again, my point here is that regardless of what the law says, I am not going to shoot someone for committing a felony, if it does not involve threat of death or bodily harm. That's not to comply for the law, it is for my conscience. But you and I would have the same response in the instance of walking into the garage and startling the burglar. What we disagree on is why that would be the course of action. You say above that you would be shooting him because he is committing a forcible felony. To me, that is a moot point. I would be shooting him because, in taking a step toward me (to get to his exit), he is now posing a threat of death or great bodily harm. I have no duty to confirm that he has a weapon or the means to harm or kill me, only that I had reason to believe he might. The forcible felony (burglary) is no longer the issue.

 

Waking in my back door and stumbling upon the burglar as he is walking out the front door with my TV is a different story. What happens next all depends on what he does. He is going out the front door, I am not in his way. He has no need to move toward me unless he intends me harm. If he gets startled, drops the TV, and runs out the door, aside from watching him go to ensure he is not getting his buddies from the truck to come back in, my next move is to call the police and file a report, then the insurance company.

 

I guess my take is, the law says "or to prevent the commission of a forcible felony", but my own compass says that said that the forcible felony being prevented needs to involve causing death or great bodily harm to myself or another person, or it's just not worth it. If the forcible felony being prevented involves causing death or great bodily harm to myself or another person, then the forcible felony language is redundant.

 

Agreed. Seems a lot better to have the cop/prosecutor/jury looking at whether you reasonably felt that death or great harm was likely, than parsing your attitude toward stopping a forcible felony.

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When teaching Use of Force, I review the Illinois statutes (Article 7). We talk about the meaning of the words "reasonable" and "imminent." We review the list of forcible felonies. I stress the difference between ordinary force and deadly force, and when each one is justified. We discuss "great bodily harm."

 

Then I ask, "Can you remember all of this, under stress, when you have about half a second to decide whether or not you are going to pull the trigger?"

 

You need to summarize what all of that means, put it in your own words. Something easy to remember that not only fits the law, but fits with your own moral beliefs. You have to draw your own line in the sand before you get to that point. Just because you CAN do something doesn't mean you SHOULD.

 

I ask myself, "Is someone going to die if I don't take action?"

 

 

-- Frank

Lines up perfectly with my own viewpoints. Hope you don't mind if I borrow that for my classes. :)

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We do have protection against civil action if the incident is ruled 'justified use of force', there cannot be any civil suit against the victim.

 

Molly, I've often wondered; doesn't that protection trigger only if you were adjudicated as having been 'justified to use the force' (like in a verdict), as opposed to not having been charged in the first place (I recognize the inference, but the two circumstances differ, correct?) Thanks!

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When teaching Use of Force, I review the Illinois statutes (Article 7). We talk about the meaning of the words "reasonable" and "imminent." We review the list of forcible felonies. I stress the difference between ordinary force and deadly force, and when each one is justified. We discuss "great bodily harm."

 

Then I ask, "Can you remember all of this, under stress, when you have about half a second to decide whether or not you are going to pull the trigger?"

 

You need to summarize what all of that means, put it in your own words. Something easy to remember that not only fits the law, but fits with your own moral beliefs. You have to draw your own line in the sand before you get to that point. Just because you CAN do something doesn't mean you SHOULD.

 

I ask myself, "Is someone going to die if I don't take action?"

 

 

-- Frank

Lines up perfectly with my own viewpoints. Hope you don't mind if I borrow that for my classes. :)

 

 

Please, feel free!

 

I'm sure I've "borrowed" bits and pieces I've picked up from other people over the years.

 

 

-- Frank

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The "exception isn't really an exception at all" is basically what the appellate court says in the PDF I linked above. The court held that there is no practical difference in section 7-1 and 7-3, and jurors should be instructed on both statutes when property is involved (the defendant in that case thought he would be robbed and the assailant had a pipe for weapon, defendant displayed knife). This is why I believe the property statute could very well come into play. Many attacks begin as some sort of robbery/burglary.

 

Again, my point here is that regardless of what the law says, I am not going to shoot someone for committing a felony, if it does not involve threat of death or bodily harm. That's not to comply for the law, it is for my conscience. But you and I would have the same response in the instance of walking into the garage and startling the burglar. What we disagree on is why that would be the course of action. You say above that you would be shooting him because he is committing a forcible felony. To me, that is a moot point. I would be shooting him because, in taking a step toward me (to get to his exit), he is now posing a threat of death or great bodily harm. I have no duty to confirm that he has a weapon or the means to harm or kill me, only that I had reason to believe he might. The forcible felony (burglary) is no longer the issue.

 

Waking in my back door and stumbling upon the burglar as he is walking out the front door with my TV is a different story. What happens next all depends on what he does. He is going out the front door, I am not in his way. He has no need to move toward me unless he intends me harm. If he gets startled, drops the TV, and runs out the door, aside from watching him go to ensure he is not getting his buddies from the truck to come back in, my next move is to call the police and file a report, then the insurance company.

 

I guess my take is, the law says "or to prevent the commission of a forcible felony", but my own compass says that said that the forcible felony being prevented needs to involve causing death or great bodily harm to myself or another person, or it's just not worth it. If the forcible felony being prevented involves causing death or great bodily harm to myself or another person, then the forcible felony language is redundant.

We don't disagree! My point (again, we are in agreement here) is the standard for use of force is the essentially the same by statute. However, the circumstances and physical evidence may lead to mounting a better defense in court under the property statute.

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My lawn mower is a John Deere 1 series. About 12K without the loader attached. I actually risked my life to save from a flood.

 

Nobody is taking that machine or its attachments.

 

We don't even wanna talk about the 5085 sitting outside and the equipment I ordered for it yesterday.

 

Doubt if I'd need a gun, let alone shoot, to make someone walk away very quickly if they're not already running.

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I think I'd be pretty uncomfortable having taken a life over a lawnmower; maybe if it was a REALLY NICE lawnmower, I'd feel differently. ;-)

Can we have a better example.? Thieves don't mow grass. If they get into the snap-on collection it'd be a shootin gallery.

 

 

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Thieves steal whatever they can use to sell/pawn/convert into money. Period.

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My lawn mower is a John Deere 1 series. About 12K without the loader attached. I actually risked my life to save from a flood.

 

Nobody is taking that machine or its attachments.

 

We don't even wanna talk about the 5085 sitting outside and the equipment I ordered for it yesterday.

 

Doubt if I'd need a gun, let alone shoot, to make someone walk away very quickly if they're not already running.

 

If the thieve would just ask, I would pay them to mow my grass and they could use my mower to do it.

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My lawn mower is a John Deere 1 series. About 12K without the loader attached. I actually risked my life to save from a flood.

 

Nobody is taking that machine or its attachments.

 

We don't even wanna talk about the 5085 sitting outside and the equipment I ordered for it yesterday.

 

Doubt if I'd need a gun, let alone shoot, to make someone walk away very quickly if they're not already running.

 

If the thieve would just ask, I would pay them to mow my grass and they could use my mower to do it.

 

 

Yes, but if they wanted to work for their money, they wouldn't be in your garage in the first place. ;)

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A lot of interesting discussion on the legality of various self defense shootings, and I do understand the general limitation on shooting a criminal merely to stop the loss of property. But it is the emotional reaction that might be harder to control. If you are soundly sleeping and are awoken to the sound of breaking glass as some home invader comes through your living room window. You quickly wake yourself up, grab your home defense gun, and proceed to investigate the source of the noise. Yes, I know its probably better to barricade yourself in your bedroom and call 911 but my guess is that most homeowners are not going to cower in fear when they are armed and justifiably worried about their personal property. So gun in hand you quietly make your way through the dark house to the area where the burglar is, and you see him with your wife's jewelry box that was on the dining room buffet, and your family heirloom Civil war rifle, and maybe one or two more very valued items in his hands. He sees you, stops in his tracks and starts to back off with your belongings still gripped in his hands. You yell "stop or I'll shoot" and he continues to back away, now almost out your front door that he just opened. How many could stop and say to themselves. "well, he's only taking property. I'm likely not at risk of personal harm, so I'll just stand here and let him go"? If the law truly makes one into a criminal for keeping a thief from walking out your door with your property, then something seems seriously amiss with the law.

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I think arson (of my home) is one of those cases that's so extreme, I would use deadly force to protect my property even if there were no lives in immediate danger. There's a huge difference between a burglar carrying out an armload of stuff, vs. taking everything I've worked for my whole lifetime; much of which is simply irreplaceable, and much of the rest costs an order of magnitude more to replace than what it's "worth" on insurance. Not to mention the loss of the idea of "Home"- a place where you can feel safe and comfortable. A feeling that goes beyond lumber and drywall.

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Am I the only one struggling to understand the point of these threads?

- create unnecessary discoverable evidence to be nailed later on your own trial?

- mental gymnastics of what ifs using a bunch of edge cases (lawnmower, etc)

 

 

to me this is simple - the entire question is very artificial and stupid

- i have no clue what is going on and whether it is burglary or something else. all of these terms are what some other human being may or may not apply later, not at the moment.

- even if I guess it correctly now, one turns into another in a blink of an eye (your wife/daughter are pretty , or simply I don't like your face mf3cker, bang).

in short I have no way to tell what they are after, especially if it is dark (I cant see bad guys hands at all) . all I can respond to is whether I feel imminent danger involving death or bodily harm, that's it. how it started is irrelevant at the point , why they are trying to hurt/kill me or mine is irrelevant, what stories mommy didn't read them during childhood is irrelevant, who they voted for or what burger they love, or really anything else is to me irrelevant. perceived danger or no danger.

 

Now, if I walk in on the crime and have luxury of giving stop command, it is what would be given , and 911 is dialed. if person runs away, I would let him/her run away. if they carry something of mine, I would let them. if person runs at me, my family, or presents threat , I will attempt to stop the threat. be judged by 12 later if I have to.

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Am I the only one struggling to understand the point of these threads?

- create unnecessary discoverable evidence to be nailed later on your own trial?

- mental gymnastics of what ifs using a bunch of edge cases (lawnmower, etc)

 

 

to me this is simple - the entire question is very artificial and stupid

- i have no clue what is going on and whether it is burglary or something else. all of these terms are what some other human being may or may not apply later, not at the moment.

- even if I guess it correctly now, one turns into another in a blink of an eye (your wife/daughter are pretty , or simply I don't like your face mf3cker, bang).

in short I have no way to tell what they are after, especially if it is dark (I cant see bad guys hands at all) . all I can respond to is whether I feel imminent danger involving death or bodily harm, that's it. how it started is irrelevant at the point , why they are trying to hurt/kill me or mine is irrelevant, what stories mommy didn't read them during childhood is irrelevant, who they voted for or what burger they love, or really anything else is to me irrelevant. perceived danger or no danger.

 

Now, if I walk in on the crime and have luxury of giving stop command, it is what would be given , and 911 is dialed. if person runs away, I would let him/her run away. if they carry something of mine, I would let them. if person runs at me, my family, or presents threat , I will attempt to stop the threat. be judged by 12 later if I have to.

 

No need to be rude...

 

The OP's question was in regards to an article posted elsewhere.

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Self-defense is only an affirmative defense in a civil suit, assuming that it was deemed a "good shooting." One that may only be raised at trial.

In a nutshell, civil immunity is not triggered until acquittal on criminal charges. In layperson's terms, you need to have a questionable shoot (probable cause for an arrest, indictment, and the judge finds probable cause to go to trial which is never, ever good), expend tens thousands of dollars on legal fees, likely lose your job, have your kids taken by CPS, essentially have everything negative possible happen in a very short time period, and be acquitted. All in order to be "untouchable" in a civil case.

 

Sent from my VS987 using Tapatalk

 

 

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IANAL, but then why did the IL Legislature put both conditions in the statute? You have to think it was for a reason.

 

( b ) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.

My contention is that an ambulance-chasing attorney can allege willful or wanton misconduct and make you spend lots of money defending yourself, even if the case is eventually thrown out.

 

 

-- Frank

 

 

I find it hard to believe the DA would decline to prosecute in a case where they determined the subject had "exhibited willful or wanton misconduct", much less rule it a justified shooting. Ambulance chasers go for low hanging fruit....I don't see it happening unless you've already been convicted or at least indicted for your actions in the situation.

 

But, of course, IANAL.

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IANAL, but then why did the IL Legislature put both conditions in the statute? You have to think it was for a reason.

 

( b ) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.

My contention is that an ambulance-chasing attorney can allege willful or wanton misconduct and make you spend lots of money defending yourself, even if the case is eventually thrown out.

 

 

-- Frank

 

 

I find it hard to believe the DA would decline to prosecute in a case where they determined the subject had "exhibited willful or wanton misconduct", much less rule it a justified shooting. Ambulance chasers go for low hanging fruit....I don't see it happening unless you've already been convicted or at least indicted for your actions in the situation.

 

But, of course, IANAL.

 

 

My point is that even if the prosecutor finds no indication of wilful or wanton misconduct, and you are cleared of all CRIMINAL charges, a less-than-ethical attorney can make ALLEGATIONS of wilful or wanton misconduct on your part in CIVIL court, and make you spend thousands defending yourself in a wrongful death suit.

 

-- Frank

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I find it hard to believe the DA would decline to prosecute in a case where they determined the subject had "exhibited willful or wanton misconduct", much less rule it a justified shooting. Ambulance chasers go for low hanging fruit....I don't see it happening unless you've already been convicted or at least indicted for your actions in the situation.

 

But, of course, IANAL.

My point is that even if the prosecutor finds no indication of wilful or wanton misconduct, and you are cleared of all CRIMINAL charges, a less-than-ethical attorney can make ALLEGATIONS of wilful or wanton misconduct on your part in CIVIL court, and make you spend thousands defending yourself in a wrongful death suit.

 

-- Frank

 

Perhaps, but lawyers of that stripe tend to only pick cases they can win and will have a worthwhile payday at the end. Unless someone upthread was correct in that you only get immunity if you were tried and acquitted, the odds of prevailing in a suit where the DA declined to prosecute aren't good. The family of someone likely to have gotten shot by the CCL holder isn't going to have the money to pay the lawyer.....he/she would be most likely doing it on contingency. So to said ambulance chaser losing = no paycheck. So, I don't see a lawyer doing this as a strategy to line his/her pockets. Maybe you're trying to say they might do this for reasons other than money?

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They'll file a lawsuit if they find out you take any prescription medications ("they altered his/her state of mind"). They'll conjure up wild theories out of thin air. Just a few weeks ago, CA8 affirmed the denial of qualified immunity to Darren Wilson AND denied QI for the former Chief of Police in Ferguson in the lawsuit filed by none other than Dorian Johnson, with a complaint filled with blatant lies. Hands up, don't shoot. These lawyers have zero scruples. They'll take any case where they can leverage a settlement.

 

Sent from my VS987 using Tapatalk

 

 

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I find it hard to believe the DA would decline to prosecute in a case where they determined the subject had "exhibited willful or wanton misconduct", much less rule it a justified shooting. Ambulance chasers go for low hanging fruit....I don't see it happening unless you've already been convicted or at least indicted for your actions in the situation.

 

But, of course, IANAL.

My point is that even if the prosecutor finds no indication of wilful or wanton misconduct, and you are cleared of all CRIMINAL charges, a less-than-ethical attorney can make ALLEGATIONS of wilful or wanton misconduct on your part in CIVIL court, and make you spend thousands defending yourself in a wrongful death suit.

 

-- Frank

 

Perhaps, but lawyers of that stripe tend to only pick cases they can win and will have a worthwhile payday at the end. Unless someone upthread was correct in that you only get immunity if you were tried and acquitted, the odds of prevailing in a suit where the DA declined to prosecute aren't good. The family of someone likely to have gotten shot by the CCL holder isn't going to have the money to pay the lawyer.....he/she would be most likely doing it on contingency. So to said ambulance chaser losing = no paycheck. So, I don't see a lawyer doing this as a strategy to line his/her pockets. Maybe you're trying to say they might do this for reasons other than money?

 

 

The burden of proof in civil court is much lower than in criminal court. They only have to prove that you "probably" acted negligently.

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The burden of proof in civil court is much lower than in criminal court. They only have to prove that you "probably" acted negligently.

 

That "probably" thing can be razor thin, too. Technically, the standard is "preponderance of the evidence." That can be 51%

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That's why the law is there.

 

Saw exactly what you say could happen not happen in my county when the ink was barely dry on the law. However this was not a burglary. At best a break in with other circumstances.

 

Let's see if I can get all the details here.

 

BG's wife (separated, divorce not final) is seeing another man.

 

BG has sworn to kill other man and stole father's handgun to do so previously. The father called it in and BG was found without handgun.

 

It's also known BG has drug abuse problem and problems in court at the time. If memory serves, he was just held in contempt the week earlier.

 

Wife is at other man's home with her child one evening. BG has been on a day long bender and been making harassing phone calls.

 

Wife calls 911 to report BG is on his way over after threats on the phone were made. Call ends.

 

BG parks a block away and goes to the back door and attempts to open locked sceen door and make entry.

 

Home owner shoots through the screen door emptying a 1911 into BG's chest killing him. He claims beer bottle held by BG looked like a gun.

 

Wife calls 911 again and reports shooting.

 

Home owner is arrested and released by Sheriff's Dept in 16 hrs without bail.

 

Letters to the paper from mother and brother of BG expressing outrage and proclaiming what a good person the BG was and also attacking the newly appointed SA.

 

Grand Jury convened and brings no charges.

 

Mother writes another letter outraged by the decision and declares to bring a civil case.

 

I'm drafting my own letter at this time when a half page letter from the SA detailing the case appears in the paper. He doesn't bring up civil immunity because it doesn't apply to him and/or is unaware of the new law.

 

Long story short, there is never a civil case filed.

 

By accident a few months later I see a lifelong friend who is an LEO in the adjoining town and he just happened to be the first officer on the scene. He tells me the guy wasn't that bad when he wasn't on drugs and didn't deserve to get shot. Even though threats were made, he believed the guy just wanted to talk.

 

I tell my friend the guy stole a gun once to go kill the other guy and did everything to get himself shot the night of the shooting. If he wanted to talk he would have parked in front of the house and knocked on the front door. Said I don't think you or me would have shot him through the door emptying a magazine, but that we'd both more than likely have to let loose a few rounds if we were in the same situation with the same history.

 

My friend just looked at me and knew I was right.

 

So,why did no lawyer want this crazy case? Surely they be lined up to allege wilful and wanton misconduct.

 

Because it's exactly what the law prevents.

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That's why the law is there.

 

Saw exactly what you say could happen not happen in my county when the ink was barely dry on the law. However this was not a burglary. At best a break in with other circumstances.

 

Let's see if I can get all the details here.

 

BG's wife (separated, divorce not final) is seeing another man.

 

BG has sworn to kill other man and stole father's handgun to do so previously. The father called it in and BG was found without handgun.

 

It's also known BG has drug abuse problem and problems in court at the time. If memory serves, he was just held in contempt the week earlier.

 

Wife is at other man's home with her child one evening. BG has been on a day long bender and been making harassing phone calls.

 

Wife calls 911 to report BG is on his way over after threats on the phone were made. Call ends.

 

BG parks a block away and goes to the back door and attempts to open locked sceen door and make entry.

 

Home owner shoots through the screen door emptying a 1911 into BG's chest killing him. He claims beer bottle held by BG looked like a gun.

 

Wife calls 911 again and reports shooting.

 

Home owner is arrested and released by Sheriff's Dept in 16 hrs without bail.

 

Letters to the paper from mother and brother of BG expressing outrage and proclaiming what a good person the BG was and also attacking the newly appointed SA.

 

Grand Jury convened and brings no charges.

 

Mother writes another letter outraged by the decision and declares to bring a civil case.

 

I'm drafting my own letter at this time when a half page letter from the SA detailing the case appears in the paper. He doesn't bring up civil immunity because it doesn't apply to him and/or is unaware of the new law.

 

Long story short, there is never a civil case filed.

 

By accident a few months later I see a lifelong friend who is an LEO in the adjoining town and he just happened to be the first officer on the scene. He tells me the guy wasn't that bad when he wasn't on drugs and didn't deserve to get shot. Even though threats were made, he believed the guy just wanted to talk.

 

I tell my friend the guy stole a gun once to go kill the other guy and did everything to get himself shot the night of the shooting. If he wanted to talk he would have parked in front of the house and knocked on the front door. Said I don't think you or me would have shot him through the door emptying a magazine, but that we'd both more than likely have to let loose a few rounds if we were in the same situation with the same history.

 

My friend just looked at me and knew I was right.

 

So,why did no lawyer want this crazy case? Surely they be lined up to allege wilful and wanton misconduct.

 

Because it's exactly what the law prevents.

...and the size of the pockets of the potential defendant...

 

Civil attorneys (Plaintiff's or Defendant's) never actually want to go to litigation. Litigation is expensive and time-consuming. When Plaintiffs file a lawsuit, they are doing so largely with the exception that they will reach a settlement that will more than cover the Plaintiffs' costs, while at the same time costing the Defendants less than it would to defend themselves in court.

 

When the potential defendant is an individual (not a corporation), middle class, and has a reasonably good chance in front of a jury, they are less likely to settle, as settlement would ruin them financially just as much as a judgement would.

 

Makes ya' kind of wonder if having CCW insurance might make you more likely to get sued in the event of a good shoot, don't it?

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