burden of proof

10/26/2009 1:27:28 PM

In NC, there is a concept or small piece of castle doctrine legislation.
You can shoot a person in the act of entering your residence or dwelling. This is because you do not know their intentions.
Once they are in the residence, you cannot shoot or use deadly force unless there is an immediated and serious threat of death or bodily injury. It is correct, that there is no duty to retreat in your home. That sentance says nothing about shooting anyone. If they are just holding your property, there are very few circumstances where you can be in fear for your life and can justify deadly force. That scenario can change quickly though. The only thing this does is get rid of the aggravator portion of the deadly force law. No duty to retreat means you can confront them and chase them out of your house. If they then react in a way that can cause you to fear for you live, then, and only then can you use deadly force to stop the threat.

As to shooting in the legs/hand/some other stupid shit: Aim for center mass.
It has the highest concentration of vital organs, and the one shot stop is not common.
If you shoot someone in the leg, it better be part of a string, and you missed the first shot.
Some people say you can aim for the hip as well to incapacitate, but it isn't garunteed.

10/27/2009 11:40:57 AM

^thank you for clarifying- this is exactly what I have learned/been told, and I wanted make sure that it is clarified that when nutsmackr pulled out those statutes, it was very misleading and not applicable as he was trying to point out


I just want everyone to know what their legal rights are, because it would suck for you to think it is ok to shoot someone in your house when they have your PS3 under their arm, and then you end up in the butthut along with all the other loss of rights that come with that

[Edited on October 27, 2009 at 11:49 AM. Reason : c]

10/27/2009 11:49:09 AM

Quote :

"Once they are in the residence, you cannot shoot or use deadly force unless there is an immediated and serious threat of death or bodily injury"

no, you can also shoot them is you reasonably believe they will commit a felony. Witnessing them with your stuff in your hands means you have caught them committing a felony.

The Castle Doctrine is not carte blanche to shoot someone in your home. It merely changes where the presumption lies.

Quote :

"That sentance says nothing about shooting anyone. If they are just holding your property, there are very few circumstances where you can be in fear for your life and can justify deadly force. "

Yes it does. That statute explicitly states an individual can use any force, including deadly force to stop the unlawful entry of your home if you reasonably believe they are going to committ a felony.

Quote :

"^thank you for clarifying- this is exactly what I have learned/been told, and I wanted make sure that it is clarified that when nutsmackr pulled out those statutes, it was very misleading and not applicable as he was trying to point out"

It isn't misleading at all and is entirely applicable. The only way the statutes would mean what you think they mean, not being able to shoot someone in your house, is if the justices have ruled that you cannot. They have not, nor will they ever.

Quote :

"I just want everyone to know what their legal rights are, because it would suck for you to think it is ok to shoot someone in your house when they have your PS3 under their arm, and then you end up in the butthut along with all the other loss of rights that come with that"

You will not end up butthut. You acted within the scope of the law and within the scope of your common law rights.

I've been dealing with the Castle Doctrine Legislation for 4 years now, I'm not making shit up.

10/27/2009 1:38:54 PM

that said, if the individual is attempting to leave your residence you do not have the right to shoot them. Also, if the individual is already outside of your residence you do not have the right to use deadly force against them. Once the unlawful entry is terminated, or in the act of being terminated, you do not have the right to use deadly force. Even under the Castle Doctrine.

10/27/2009 1:53:48 PM

I bet when the resident of the residence shows up, the BG will be in the process of leaving.....

If you play a stupid game, you are going to get a stupid prize. You shoot a guy who isn't threatening you, your prize is going to be jail, probation, and/or a massive civil suite.

If someone can hurt themselves in the act of breaking in, sue the home owner, and win, then there should be no doubt how much trouble you will be in.

[Edited on October 27, 2009 at 3:28 PM. Reason : .]

10/27/2009 3:24:27 PM

Quote :

"If someone can hurt themselves in the act of breaking in, sue the home owner, and win"

I think that's an urban legend.

10/27/2009 3:41:59 PM

^As much as it sucks, it's true, and there are some pretty recent cases to back it up.

10/27/2009 3:51:45 PM

Quote :

"I bet when the resident of the residence shows up, the BG will be in the process of leaving....."

And what if you wake up too?

Quote :

"If you play a stupid game, you are going to get a stupid prize. You shoot a guy who isn't threatening you, your prize is going to be jail, probation, and/or a massive civil suite."

You are protected by the law. There will be no jail time, there will be no probation, and there will be no civil suite. You have an affirmative defense, granted you must prove it, but you have it.

Quote :

"If someone can hurt themselves in the act of breaking in, sue the home owner, and win, then there should be no doubt how much trouble you will be in."

pure unadulterated bullshit. A suit can be filed over everything, that does not mean the individual would win. If the individual is in the act of committing a crime and hurts themself breaking into your home the suit will be dismissed with prejudice.

This type of lawsuit does not happen and is pure bullshit.

Quote :

"^As much as it sucks, it's true, and there are some pretty recent cases to back it up."

no there aren't.

[Edited on October 27, 2009 at 4:01 PM. Reason : .]

10/27/2009 4:01:11 PM

I thought the famous falling through the skylight burglar was actually a high school kid on top of his high school trying to adjust some floodlights or something for a game and the skylight was painted black. Also I feel like in other similar cases they don't actually win the case, but settle out of court like that kid did. It falls more into the setting a trap or being negligent. I mean you can't legally rig a shotgun to fire at anybody that opens your front door, just like you can't legally plant landmines, or dig holes and put spikes in the bottom, even if you put up no trespassing signs everywhere.

Oh yeah and the one about the burglar falling through the skylight landing on a knife set or something is from Liar Liar.

[Edited on October 27, 2009 at 4:08 PM. Reason : basically for a big company/government it may be cheaper to settle out of court than to fight it]

10/27/2009 4:06:36 PM

If the injury is by some specific intentional act of the homeowner, then they can be sued. If it's a "trap" then they can be sued. This is the shotgun case ^ alluded to. Look up Katko v. Briney if you want to.

It's harder to sue for injuries based on negligence (like the knife case^ or the skylight case^) because the burglar needs to prove the homeowner had a duty of care to the burglar to provide a safe environment; that the homeowner breached that duty and that the burglar's injury was proximately caused by that breach of duty. Usually, a homeowner does not owe a duty of care to a person illegally entering the house; therefore even if that person is injured by the homeowner's negligence, there is no liability because there was no duty of care. But if that person is there by your permission (like a handyman for instance), does something nefarious while they're there, you may still have a duty to them.

At any rate, to be safe from liability, you are permitted to defend your property, but it must be proportionately reasonable.

Also, self defense is just that... it's a defense. It doesn't stop lawsuits or the police from taking your guns as evidence. But it can be used as a REASON you committed an act of violence. There are 4 elements to that kind of claim:Imminence of injury, Reasonable belief. Actual Belief and Proportionality of force. You need all four to have a successful claim.

^^There are all kinds of cases where the homeowner is sued. That doesn't make it right. And yes, we do have a modified castle doctrine on the books. But that doesn't mean it always plays out that way in application. No matter what the actual text says, there is always an interpretation out there that can screw you.

[Edited on October 27, 2009 at 4:47 PM. Reason : ]

10/27/2009 4:47:05 PM

There is a large difference between a man trap and someone suing because they hurt themselves coming through the window.

10/27/2009 5:02:35 PM

This is a case where it is ok to shoot someone:

http://www.wsbtv.com/news/19365762/detail.html


This is a case where it says that no matter how you are reading that law, it is "risky" to use a gun to fend off a burglar legally:

http://www.laborlawtalk.com/archive/index.php/t-14654.html


This link has several stories on it that show that you can act on self defense, but might be charged if the DA decides you were doing it for any other reason:

http://www.claytoncramer.com/gundefenseblog/2008_10_01_archive.html

Quote :

"Homeowner Shoots Break-in Suspect in Head, Deputies Say Taking the law into your own hands. That's what a local homeowner did when he caught a thief breaking into his storage shed. Armed with his shotgun, one shot was all it took and the burglary came to an abrupt end. “I woke up and heard the alarm and came out at 3:30 in the morning,” Ivan Hurt said. Hurt lives alone in rural northern Gallia County. He has a shed full of equipment he values and fiercely protects it. That's why when two men broke into the building early Friday morning, Ivan was ready. “I saw him come, and he turned like this and he had a flashlight in one hand and something else in the other, so I shot,” Hurt said. Mr. Hurt wasted no time, he was barely out of his house when he pulled the trigger from more than 30 yards away. “You see this spray pattern. That’s what happens when you shoot from so far away. I didn’t want to kill anyone, and it still makes me sick that I even had to wound someone. I’ve been robbed before and that’s when I installed an alarm so I could be ready,” Hurt said. “There are a lot of thefts because people are stealing to get their drugs,” said Gallia County Sheriff David Martin. Martin said thefts are up nationally and that includes Gallia County. He said residents are tired of it and they're not going to take it anymore. “The law protects you if you feel there is imminent danger to you or family members,” said Gallia County Prosecutor Jeff Adkins. And if there's any doubt about what the man was up to, Hurt said he left an incriminating piece of evidence behind. “This is a mask he was wearing, and you can even see the blood from where he was hit,” said Hurt. Ronald J. Johnson was the suspect and shooting victim. He was in fair condition Friday evening at St. Mary's Medical Center in Huntington. The second suspect got away. Police are still searching for him. Both men will face charges. There was no word on whether Hurt will be charged with anything. Prosecutors will decide whether he acted negligently or in self defense."

There are more examples that show where prosecutors charged homeowners for shooting intruders (who were later convicted!) that were unarmed that were not fleeing, and this I am sure of because we learned about it in our CCW class. Just because you read the law the way you are, does not mean prosecutors will not go after you.

10/27/2009 6:00:46 PM

1) Gallia County isn't in North Carolina

2) A detached shed is not a residence.

3) Provide direct evidence from North Carolina of prosecution.

10/27/2009 7:17:29 PM

http://www.ncwanted.com/selfdefense/story/134194/

10/27/2009 8:25:42 PM

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals2004/&invol=031192-1

Quote :

" Defendant argues that the trial court erred in denying his motion to dismiss, absent substantial evidence that he was not entitled to use deadly force against Stubbs in self-defense. In order for a homicide to be justified as self-defense, the evidence must establish the following: (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and (2) defendant's belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; and (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm. State v. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497 (1992) (quoting State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981)). Defendant argues the State's evidence failed to disprove any of these four factors. Having reviewed the trial transcript, we find "[t]he evidence presented does not unequivocally establish that the killing was in self-defense." State v. Gray, 337 N.C. 772, 778, 448 S.E.2d 794, 798 (1994)."

http://www.askthelawguy.info/ask2/2007.10.01_arch.html


and upon further research, the "felony" thing (which you are saying is acceptable for burglary) was thrown into the statute to address felonious assault, rape, and battery. A prosecutor will burn you on using excessive force- it is made a felony for the sake of charging the suspect after he has been caught, not for the homeowner to justify manslaughter



[Edited on October 27, 2009 at 8:35 PM. Reason : s]

10/27/2009 8:31:12 PM

The first clause of the statute is sufficient to cover those charges.

10/27/2009 9:18:38 PM

death or great bodily harm /= stealing your plasma

10/27/2009 9:39:47 PM

OK, if my understanding of all this is correct, basically you have the right to shoot while somebody is actively breaking into your house. Once in, however, you can't shoot unless one of two things happens, you are threatened with severe bodily harm or sexual assault, or you have reasonably believe they are going to commit a felony. This is where most of the arguments have started, but it seems to me that if they attempt to take ANY of your property they commit a felony, burglary, because once they have broken into your house and attempted to take something, regardless of the value, larceny immediately becomes burglary.

10/27/2009 11:37:29 PM

nutsmackr, have you had a concealed carry class?

it is clear that biofreak, maximadrvr, and wdprice have taken this class. They are repeating everything that I learned, and im positive that I didnt have the same instructor.

Is it possible that there is a difference in law regarding handguns for home defense versus shotguns and rifles?

10/28/2009 12:30:24 AM

Like I said earlier, it's funny when you can pick out who has had the CCW class.

10/28/2009 1:03:23 AM

Caveat to the castle doctrine: Idiots

Quote :

" WINTER SPRINGS, Fla. — A man who thought there was an intruder in his house shot and killed his fiancee the day before they were to be married, police said Friday. "Right now everything points to a tragic accident," Police Chief Kevin Brunelle told The Associated Press, adding investigators were awaiting forensic results. John Tabutt, 62, told investigators he got his gun when he thought he heard an intruder, then fired at a figure in the hallway, according to Brunelle. It was Tabutt's live-in fiancee, 62-year-old Nancy Dinsmore, who family members say he was going to marry Saturday. Tabutt told authorities he thought she was next to him in bed the whole time. A message left for a phone number listed for the house was not returned. Brunelle said no charges have been filed against Tabutt, adding the information he provided has been verified and he appeared "very distraught." Tabutt was "very concerned about her well-being," standing by while she was pronounced dead at the scene by paramedics, Brunelle added. The couple planned to wed in a small ceremony Saturday at St. Stephen Catholic Church in Winter Springs, Dinsmore's son-in-law Scott Sposato, of Vero Beach, told the Orlando Sentinel. "They loved each other," he said. "It was quite apparent." Tabutt called 911 shortly after 2:30 a.m. Friday, moaning and sobbing, the newspaper reported. "I thought I had an intruder in the house," he told the emergency dispatcher. "Honest to God, she looks dead." He then thought he heard her take a breath. "Hang in there, Honey. Hang in there," he said. Winter Springs is about 15 miles north of Orlando. "

I think this guy should get charged with manslaughter even if he honestly thought she was an intruder. I mean if you accidentally run someone over you get charged..........why do you get off scott free for shooting someone who lives in your home accidentally?

10/28/2009 1:19:56 AM

because the act of defending your home is not necessarily a negligent act unlike veering off the road

which is 100% likely to be caused by some degree of negligence

hell they, can find out this dude is totally lying and fully intended to cap his fiancee, but assuming the statement is true, nah he wasnt negligent just an unfortunate accident while "legally" defending his home

[Edited on October 28, 2009 at 9:21 AM. Reason : f]

10/28/2009 9:18:24 AM

Quote :

"I mean if you accidentally run someone over you get charged..........why do you get off scott free for shooting someone who lives in your home accidentally?"

This sounds like a bit of a stretch, but it's your own home and so you are more free to "do what you want." Generally speaking, if you accidentally run someone over with your vehicle, it's on public property. A 62 year old man scared shitless in the middle of the night because an intruder is walking around, well, that's understandable imo. Sad story though Very unfortunate. I don't understand why he didn't check to make sure she was there with him. I mean, if I thought there was an intruder in the house, first thing I'd do is make sure to wake up the wife, secure her from harms way, and have her immediately call 911 while I assess the threat... I'm sure he panicked.


[Edited on October 28, 2009 at 9:33 AM. Reason : .]

10/28/2009 9:26:52 AM

if there's no body, there's no murder, self defense or not........

10/28/2009 9:39:47 AM

10/28/2009 10:51:38 AM

Quote :

"Caveat to the castle doctrine: Idiots"

Yes, he was an idiot. Sounds like he forgot about that whole "identify your target" thing.

10/28/2009 11:05:49 AM

Quote :

"if there's no body, there's no murder, self defense or not........ "

thats not true by a long shot


hahahah WIN

[Edited on October 28, 2009 at 12:00 PM. Reason : r]

10/28/2009 12:00:05 PM

Quote :

"no, you can also shoot them is if you reasonably believe they will commit a felony. Witnessing them with your stuff in your hands means you have caught them committing a felony."

Quote :

"OK, if my understanding of all this is correct, basically you have the right to shoot while somebody is actively breaking into your house. Once in, however, you can't shoot unless one of two things happens, you are threatened with severe bodily harm or sexual assault, or you have reasonably believe they are going to commit a felony. This is where most of the arguments have started, but it seems to me that if they attempt to take ANY of your property they commit a felony, burglary, because once they have broken into your house and attempted to take something, regardless of the value, larceny immediately becomes burglary."

You cannot use deadly force on someone who is committing just any felony.

In NC the use of deadly force is only justified when there's an immediate threat of death or great bodily harm.

Think...would you be justified for shooting someone who's committing an act of arson or someone dealing drugs?

We're not in Texas people...

[Edited on October 29, 2009 at 12:33 PM. Reason : ]

10/29/2009 12:30:33 PM

But the statute specifically states you have a right to use deadly force once they are inside your house if you have reason to believe they are going to commit a felony. It doesn't specify what type of felony.

Quote :

"a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence."

And yes, if somebody breaks into my house and starts committing arson or dealing drugs (I'm not really sure how that would work, but I'll go with it) then yes, I would be justified in using any force, including deadly force, that I reasonably believe is necessary.

I could be wrong, but if so please show me another NC statute that says my assumption is incorrect.

[Edited on October 29, 2009 at 2:01 PM. Reason : asdf]

10/29/2009 1:59:01 PM

Quote :

"a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence."

Now, if you shoot someone who is already inside your house, then how are you preventing entry?

[Edited on October 29, 2009 at 2:49 PM. Reason : Gotcha. I should have pointed out the forcible entry part before.]

10/29/2009 2:46:22 PM

If i were designing a CCW class for a state that historically falls on the side of "shoot first ask questions later", I'm pretty sure which side of the can I shoot him or not? question I'd ask my instructors to tend toward.


Just digging around for reasons explaining the discrepancy between CCW class members and other posters...

10/29/2009 2:58:32 PM

Quote :

"a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence."

Ah, now I see where we misunderstand each other. I read "terminate the intruder's unlawful entry" as stop them once they are inside the house. Could that be correct?

10/29/2009 3:11:01 PM

You can only use deadly force (without an immediate threat of death or great injury) while they're trying to get inside the house. If someone's trying to force their way in most people will assume they intend to commit a felony, that's why ii is put in the law.

You cannot use deadly force when:
-you are outside the house
-they haven't tried to go into the house
-they are already inside the house

*Except when there's a threat of great bodily harm or death.

You also can't use deadly force when there's no immediate threat, like:
-they're stealing your junk
-they're fleeing

10/29/2009 3:44:10 PM

This is what I have been saying the entire time, but those few people who were posting earlier kept saying because stealing something can be classified as a felony, that it is ok to shoot them

which is completely ridiculous- I think my last comment in this thread was along these lines, and it was gonna be my last in the thread, period. I just wanted to thank you for helping enlighten all the people who are just reading what is in the book and who have not talked to any law enforcement or lawyers EVER about this

10/29/2009 4:42:32 PM

No problem.

The biggest problem is people read:

Quote :

"justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force..."

then they read:

Quote :

"(ii)if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence."

and they get excited.


What they need to pay attention to is

Quote :

"to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry"

I thought I knew the law pretty well, then the actual statute was quoted.
I had to read it a second time to remind me of the important parts.

[Edited on October 29, 2009 at 4:50 PM. Reason : Reading legal junk is difficult sometimes, especially if you have an incredibly short memory like I ]

10/29/2009 4:49:10 PM

Quote :

"This sounds like a bit of a stretch, but it's your own home and so you are more free to "do what you want." Generally speaking, if you accidentally run someone over with your vehicle, it's on public property. A 62 year old man scared shitless in the middle of the night because an intruder is walking around, well, that's understandable imo. Sad story though Very unfortunate. I don't understand why he didn't check to make sure she was there with him. I mean, if I thought there was an intruder in the house, first thing I'd do is make sure to wake up the wife, secure her from harms way, and have her immediately call 911 while I assess the threat... I'm sure he panicked."

That is a load of crap. He shot and killed an occupant of his home. He should get convicted of a felony and lose his right to own a gun, and at least do some weekends in jail. If you choose to use a firearm you should be held responsible what happens when you fire it.

If he had been in a tussle with a robber and inadvertently fired the gun or even aimed for an actual robber and missed in a panic I could possibly feel bad for him. YOU CANT GO AROUND SHOOTING AT SHADOWS, even inside your home. Certainly his fiance had other family members who will never get to see her again because he wanted to be billy badass and fire his gun just because he had a right to. If he had at least shouted out a warning he would not have killed somebody. Even if it was a robber the robber probably would have ran, if the robber did not run he already had the gun trained on them and could have defended himself if necessary.

He failed to get a visual on his target, which happened to be an unarmed female, who he also happened to know, who also happened to live with. Dude should get charged plain and simple and never be able to own a gun again.

10/29/2009 11:42:10 PM

^ amen to that. Collateral damage cuts both ways.

10/29/2009 11:49:27 PM