Home invasions

[custosnox]

But it has been tested.  Several times.  The cases are there.  The courts have supported the act.  One case, for example, arose before the law was amended to clarify that "occupied" included visitors and before the immunity provision replaced the affirmative defense.  Even though the statute at that time didn't define "occupied dwelling" to include visitors, the Court of Criminal Appeals ruled that visitors have the same protection against prosecution that homeowners have.  Notwithstanding, the legislature broadened the act to expressly include visitors and granted immunity. 

Custosnox, I don't think you understand how prosecutors and courts function, especially wrt immunity issues.  The courts have uniformly ruled that immunity is protection against a case even being brought, and unlike common law immunities such as prosecutorial and judicial immunity or the qualified immunity that protects public officials from liability under the civil rights laws, specific statutory immunities are not subject to being judicially narrowed.  This is not a question in which anything is left to the discretion of the prosecutor or the court. 

Also, in case you haven't read the statute, subsection F of the statute expressly provides that anyone who uses force permitted under the act is immune from both criminal prosecution and civil action.  It further provides that court costs, attorneys fees, lost income, and all expenses will be awarded to anyone sued in a civil action who is found to be immune under the act. 

So, since you're making the claim that the Make My Day law is protection merely in theory, show us one case since the enactment of the law in any state in which someone acting clearly within the scope of the statute has been convicted or, in states that grant immunity, has even been charged. 

I have to ask, how many of the cases that you are speaking of took place in Oklahoma?  Also, I would like you to show me where a case was tried when an unarmed intruder was gunned down from behind while trying to flee.  Perhaps I overspoke when I stated that the law itself hasn't really been tested.  More over, certain aspects of the law have not been tested, such as the situation that I have given.  If they have I would really like to see the decission on the case.  Also, I think I was a bit akward in my wording on the immunity protection.  First, I was not aware that it covered civil, but that still does not mean that someone can't file against you.  From what you posted, it allows you to be free of all damages if you are found to be operating  legally under the make my day law.  Would you say that stopping an intruder, making them kneel down, unarmed, and killing them execution style would be covered by the make my day law?  Other than being in fight or flight mode, how does that differant from shooting a fleeing intruder in the back?  I have no doubt that a frontal confontation, or any situation that gives a hint of a threat will stand up to the srutiny.  But at some point the threat is gone, and that is what, as far as I know, has not been tested under this law. 

And FYI, even your vehicle can be considered dwelling under certain circumstances, as long as it is parked, and the drivers seat is unoccupied (think sleeping in the back seat).

[cynical]

The statute removes the issues you are concerned about from the table.  The threat you say was removed still exists under the statute.  So yes, on its face it permits the use of deadly force against an intruder without regard to whether the intruder is able to actually inflict harm.  That is the entire purpose of the statute.  it has been applied many times in Oklahoma.  The Oklahoma Court of Criminal Appeals has no problem with it.  The Oklahoma District Courts have no problem with it.  And motor vehicles are expressly included in the statute in order to cover carjackings.

Again, since you are the one claiming that it protects occupants only "in theory," the burden is on you to show a single case that supports your contention.  The cases that support mine are easily enough found since the OSCN listing for the statute (21 O.S. Sec. 1289.25) includes cases that cite or discuss it.  You can also google for news reports showing that law enforcement have had no problem following the law, provided that their investigation shows that the statutory circumstances exist.

The cases you ask me to provide aren't there because of the immunity provided by the statute.  Since cases can't be filed, there are no cases to report.  Only the cases supporting your contention would be there if there was a serious legal issue to be determined.  They aren't there.  Not one.  Anywhere.  In Colorado, whose Make My Day law was the model for Oklahoma's original version, a homeowner was not charged after shooting a "fleeing intruder" in the back of the head as the intruder was running out the front door.  Because there was no charge, there was no case to "test" the law.  Law enforcement found that the case fit "squarely" within the intent of the statute.  Oklahoma's current statute is stronger than Colorado's.

I am personally not comfortable with an automatic safe harbor for killing people, but the safe harbor exists here, is settled law, and does not have the holes in it that you claim.  If you like it, enjoy having it.  If you don't like it, talk to your legislators because the courts are going to respect it as they have since its enactment.

I have to ask, how many of the cases that you are speaking of took place in Oklahoma?  Also, I would like you to show me where a case was tried when an unarmed intruder was gunned down from behind while trying to flee.  Perhaps I overspoke when I stated that the law itself hasn't really been tested.  More over, certain aspects of the law have not been tested, such as the situation that I have given.  If they have I would really like to see the decission on the case.  Also, I think I was a bit akward in my wording on the immunity protection.  First, I was not aware that it covered civil, but that still does not mean that someone can't file against you.  From what you posted, it allows you to be free of all damages if you are found to be operating  legally under the make my day law.  Would you say that stopping an intruder, making them kneel down, unarmed, and killing them execution style would be covered by the make my day law?  Other than being in fight or flight mode, how does that differant from shooting a fleeing intruder in the back?  I have no doubt that a frontal confontation, or any situation that gives a hint of a threat will stand up to the srutiny.  But at some point the threat is gone, and that is what, as far as I know, has not been tested under this law. 

And FYI, even your vehicle can be considered dwelling under certain circumstances, as long as it is parked, and the drivers seat is unoccupied (think sleeping in the back seat).

[custosnox]

The statute removes the issues you are concerned about from the table.  The threat you say was removed still exists under the statute.  So yes, on its face it permits the use of deadly force against an intruder without regard to whether the intruder is able to actually inflict harm.  That is the entire purpose of the statute.  it has been applied many times in Oklahoma.  The Oklahoma Court of Criminal Appeals has no problem with it.  The Oklahoma District Courts have no problem with it.  And motor vehicles are expressly included in the statute in order to cover carjackings.

Again, since you are the one claiming that it protects occupants only "in theory," the burden is on you to show a single case that supports your contention.  The cases that support mine are easily enough found since the OSCN listing for the statute (21 O.S. Sec. 1289.25) includes cases that cite or discuss it.  You can also google for news reports showing that law enforcement have had no problem following the law, provided that their investigation shows that the statutory circumstances exist.

The cases you ask me to provide aren't there because of the immunity provided by the statute.  Since cases can't be filed, there are no cases to report.  Only the cases supporting your contention would be there if there was a serious legal issue to be determined.  They aren't there.  Not one.  Anywhere.  In Colorado, whose Make My Day law was the model for Oklahoma's original version, a homeowner was not charged after shooting a "fleeing intruder" in the back of the head as the intruder was running out the front door.  Because there was no charge, there was no case to "test" the law.  Law enforcement found that the case fit "squarely" within the intent of the statute.  Oklahoma's current statute is stronger than Colorado's.

I am personally not comfortable with an automatic safe harbor for killing people, but the safe harbor exists here, is settled law, and does not have the holes in it that you claim.  If you like it, enjoy having it.  If you don't like it, talk to your legislators because the courts are going to respect it as they have since its enactment.

You still fail to see that just because it has not come before the court does not mean that it won't, and that it is not an impossibility.  It is often taught that a law is only theory until it is tested in the court of law.  So I must ask, are you an attorney or have anything that gives weight to what you say or are you just speaking of your opinion and interpretation of the law?  If it is the latter, than this conversation will go no where until someone who practices law settles it.  If it is the former, I still maintain my stance but bow out to your expressed expertise, because it is merely my opinion, based on what I have learned on other laws, that while it is unlikely that someone will ever be prosocuted for defending their home, it does not lay outside the realm of possibilites under a highly unlikely set of circumstances.

[cynical]

If it makes any difference, and under these circumstances I don't believe it does, I am an attorney with 30 years of practice (and a little time to kill this afternoon), nearly half of which was as an Oklahoma assistant district attorney. 

The argument that a law is only a theory until it is tested in court is plainly wrong, belied by the well-established judicial rule that statutes are presumptively valid.  There are many statutory and non-statutory legal principles without Oklahoma case law support because they are so obvious, so well established and accepted, and beyond serious question that no one will devote the time and resources, not to mention the risk of sanctions, testing the obvious in court.

Aside from the vague and unsupportable assertion that a law is only valid if it is tested in court, you haven't actually managed to show that anything I've said was wrong.  Just that you disagree.  At some point opinions have to be supported by a factual basis.  Mine is based on the court decisions already handed down, the statutory history of this provision, and the fact that law enforcement agencies in Oklahoma and elsewhere have treated it as binding law since the day it went into effect.  Again, is there a single case anywhere that supports your argument?

There ARE legal questions about the application of the MMD law to particular circumstances.  They do not involve the reasonableness of the force used, though. 

You still fail to see that just because it has not come before the court does not mean that it won't, and that it is not an impossibility.  It is often taught that a law is only theory until it is tested in the court of law.  So I must ask, are you an attorney or have anything that gives weight to what you say or are you just speaking of your opinion and interpretation of the law?  If it is the latter, than this conversation will go no where until someone who practices law settles it.  If it is the former, I still maintain my stance but bow out to your expressed expertise, because it is merely my opinion, based on what I have learned on other laws, that while it is unlikely that someone will ever be prosocuted for defending their home, it does not lay outside the realm of possibilites under a highly unlikely set of circumstances.

[custosnox]

If it makes any difference, and under these circumstances I don't believe it does, I am an attorney with 30 years of practice (and a little time to kill this afternoon), nearly half of which was as an Oklahoma assistant district attorney. 

The argument that a law is only a theory until it is tested in court is plainly wrong, belied by the well-established judicial rule that statutes are presumptively valid.  There are many statutory and non-statutory legal principles without Oklahoma case law support because they are so obvious, so well established and accepted, and beyond serious question that no one will devote the time and resources, not to mention the risk of sanctions, testing the obvious in court.

Aside from the vague and unsupportable assertion that a law is only valid if it is tested in court, you haven't actually managed to show that anything I've said was wrong.  Just that you disagree.  At some point opinions have to be supported by a factual basis.  Mine is based on the court decisions already handed down, the statutory history of this provision, and the fact that law enforcement agencies in Oklahoma and elsewhere have treated it as binding law since the day it went into effect.  Again, is there a single case anywhere that supports your argument?

There ARE legal questions about the application of the MMD law to particular circumstances.  They do not involve the reasonableness of the force used, though. 

Okay, let me present you with a highly unlikely scenerio, but one for the sake of argument.  Let's say a group of five men broke into my home while I was there.  These men were unarmed, and I was armed.  I come around the corner, gun in hand and the group of men surrendered.  I then proceeded to have them all kneel down in a row, and quickly executed all of them.  Are you saying that I would not be held accountable in the court of law?

[Gaspar]

You have to be a reasonable person. 

If 5 men breaks into my house, I come around the corner with a gun, and they surrender, I think I'll call the PoPo while I keep them at gunpoint.

If at any point they threatened my security, I would aerate their skulls.

There is a difference between self-defense and execution.  You would be held accountable for execution, just as a police officer would for taking the same action. 

[nathanm]

I then proceeded to have them all kneel down in a row, and quickly executed all of them.  Are you saying that I would not be held accountable in the court of law?

I bet that if you just shot 'em when they came around the corner, you'd get away with it. Shooting them in the back of the head at point blank range? Don't think so.

[Gaspar]

They'll be coming round the corner when they come.
I'll be pakin' Smith & Wesson when I come.
They'll  be ridin' hot lead bullets,
They'll  be ridin' hot lead bullets,
They'll  be ridin' hot lead bullets, when they come.

Oh. . .It's been a long day.

[nathanm]

LOL, thanks for the laugh Gaspar.

[custosnox]

I bet that if you just shot 'em when they came around the corner, you'd get away with it. Shooting them in the back of the head at point blank range? Don't think so.

That is my point, there is a line that exists, even if it has not been drawn.  The question is, where does that line lay.

That was great Gasp... that might become my tagline at some point.

[cynical]

The statute tells you precisely where the line is drawn.  You are using a tactic known as reductio ad adsurdum.  Showing that application of the statute under circumstances perhaps unforseen by the drafters gives a result a reasonable person does not like doesn't change what the statute clearly does.  It is a safe harbor.  It is there to protect people acting in the heat of the moment against prosecutors who have the advantage of 20-20 hindsight.  That is what the statute does through the immunity provision that prohibits even the bringing of a charge.  If it didn't, it would only be a restatement of previous law, a result the courts will not reach because the legislature is never presumed to have done nothing when enacting a law. 

Even your extreme example is clearly within the scope of the statute.  Does the result offend you?  I hope so.  It offends me.  If you make the mistake of reading the comments to Tulsa World articles about various property crimes such as auto theft or vandalism in which there is no element of home invasion or personal danger, the idea of summary self-help execution of thieves and burglars already has substantial political support in Oklahoma, so I'm pretty sure that a good many of our fellow Oklahomans would not be offended by you executing the bad guys. 

That is my point, there is a line that exists, even if it has not been drawn.  The question is, where does that line lay.

That was great Gasp... that might become my tagline at some point.

[custosnox]

The statute tells you precisely where the line is drawn.  You are using a tactic known as reductio ad adsurdum.  Showing that application of the statute under circumstances perhaps unforseen by the drafters gives a result a reasonable person does not like doesn't change what the statute clearly does.  It is a safe harbor.  It is there to protect people acting in the heat of the moment against prosecutors who have the advantage of 20-20 hindsight.  That is what the statute does through the immunity provision that prohibits even the bringing of a charge.  If it didn't, it would only be a restatement of previous law, a result the courts will not reach because the legislature is never presumed to have done nothing when enacting a law. 

Even your extreme example is clearly within the scope of the statute.  Does the result offend you?  I hope so.  It offends me.  If you make the mistake of reading the comments to Tulsa World articles about various property crimes such as auto theft or vandalism in which there is no element of home invasion or personal danger, the idea of summary self-help execution of thieves and burglars already has substantial political support in Oklahoma, so I'm pretty sure that a good many of our fellow Oklahomans would not be offended by you executing the bad guys. 

Many of my fellow Oklahomans have not looked a man in the eyes and made the decision to pull the trigger.  If the law does indeed cover summery executing in that situation, and I must except your insistance that it does as you have the expertise that I do not, than yes, it bother me.  I do understand the need to protect a resident from persecution while defending his dwelling, but a clear line should exist. 

[Red Arrow]

Every career has its risks. If you choose to be a home invader, one of those risks is that you could be shot. Accept the risk or find another line of work.

[custosnox]

Every career has its risks. If you choose to be a home invader, one of those risks is that you could be shot. Accept the risk or find another line of work.

I'm not a bleeding heart that worries about crooks getting shot, I am the guy that pulled the trigger after all, just that people have a built in excuse to skip the whole legal process even though the threat is gone bothers me.

[custosnox]

Just wanted to drop this link in

http://www.tulsaworld.com/webextra/content/2010/crimesite/article.aspx?subjectid=450&articleid=20100715_450_0_Adoubl946491&allcom=1