…and I was in my boarded-up store, and rioters broke in, would I get in trouble if I shot them?
well, not if no one finds out… which sounds like an option if you’re already going so far as to shoot people
I remember something about Korean store owners sitting on the roofs of their shops with rifles during the Rodney King riots. Never heard about them being prosecuted. Maybe the authorities in those situations feel they have bigger fish to fry?
http://www.moga.mo.gov/mostatutes/stathtml/56300000311.html
The above is the Missouri statute concerning the defense of justification, specifically, the use of force in defense of others. 563.041.1 is nearby, and is the section concerning use of force in defense of property. It specifically justifies deadly force ONLY if it’s justifiable under another section.
Under your facts, I would think Subsection (2)(3) of .031 would apply if the shopkeeper felt s/he needed to use deadly force against the rioter to protect herself from the imminent threat of unlawful force being used against her or a third party. The statute does not require the shopkeeper to retreat, nor do I read it to say that the shopkeeper must be in imminent fear of deadly force, fear of unlawful force looks sufficient.
IANAL. I certainly am not a Missouri criminal law specialist. You are not my client. If you feel you need a lawyer, you should go get one, because I’m not one.
According to Missouri statute:
There’s more than one kind of trouble. Even if you were legally in the clear, you could be in danger from a bunch of angry people.
Somewhere on the internets, I once read some good advice from a gun owner, who said:
“Any time you shoot someone, you’re going to jail”.
When the police show up at your house , see a dead body and you with a gun in your hand, they will to arrest you, and take you in for questioning.Even if you are perfectly innocent and it was self defense, etc…
You may get released a day or so later, but in the meantime, you’re going to jail.
Looks like its a complicated issue…
Does the fact that a store owner is on notice that there could very well be trouble have a bearing?
Is he required to avoid the situation as opposed to holing up with multiple weapons and plenty of ammo?
One would be wise to consider that quote/thought before pulling a trigger as the result of doing so is pretty much irreversible. That said, it ain’t necessarily so. I stopped a home break-in with a firearm a few years ago. The firearm was indeed taken by law enforcement (evidence pending a more thorough investigation), but I was not. The circumstances obviously warranted the action I took. However, and as noted earlier, one needs to be crystal clear with regard to the law.
My original question inquiry was posed as it relates to property (vs life) being protected.
Even if you never see the inside of a cell. Even if the local Police Department awards you their sharpshooter junior police medal. Even if all that, you at some point will probably feel bad when the dude’s children’s pictures are shown in the press.
I have never shot anyone, but came damned close. When you get to that exact moment when the decision needs to be made, it is NOT GOOD. We toss around shooting rioters/looters cavalierly, but when you reach that moment, all the blood drains away and you suddenly realize that there are damned few reasons to be having to make that decision.
I would think good insurance trumps firearms. Why put yourself in that situation to begin with?
The question for me would be how sure are you that the looters are only after property and won’t do you physical harm.
And then there are the civil suits - which have happened to people defending their very lives inside their own homes. In defense of property - probably not worth it.
I would think not. The “boarded up” comment indicates the store was barricaded in advance, so trouble was expected. If the rioters stormed the barricades, it gives more weight to the expectation they meant to do harm, doesn’t it?
Missouri does have a civil immunity clause (563.074), at the bottom of the Justification chapter (Chapter 563) of the Missouri Revised Statutes. It reads:
Now, liability in a civil suit is normally determined by a preponderance of the evidence standard, i.e., prove that it’s more likely than not that the defendant was liable. Section '.074 provides an absolute defense if the defendant can prove justification. For our facts, I thought that section '.031 applied. Subsection 5 of section '.031 talks about what the defendant needs to do to prove justification for a use of force to defend people:
“Burden of injecting the issue” is another way of saying “burden of production” or "burden of going forward with evidence. The defendant just needs to introduce evidence that, by itself, if viewed in the light most favorable to the defendant, would be sufficient to prove the defense. That’s a much easier burden of proof to meet than proving the defense by a preponderance of the evidence. The statute further notes that the State must disprove justification under 2(2) beyond a reasonable doubt. That’s a much tougher burden of proof than preponderance of the evidence.
I don’t know whether the State must also disprove beyond a reasonable doubt a claim of justification under 2(3), the statute I think would apply to SanDiegoTim’s shopkeeper. or whether the shopkeeper, after injecting the issue of justification, must further prove it by a preponderance. The Missouri Approved Instructions - Criminal 3d might help shed some light, but the MO Supreme Court charges $250 to use them on line. Some commentators are of the opinion that the Legislature simply forgot to add subsection 2(3) to subsection’s 5 burden shifting to the State. A law review article that goes into this entire topic in more detail is Shooting from the Hip: Missouri’s New Approach to Defense of Habitation, 56 St. Louis U. L.J. 857 (2012) Alternatively, the Legislature intended to provide less protection to those deadly force users seeking justification for that force, when the user is not not within their dwelling, residence, or vehicle. Anyway, Ms. Pohlman (now Milunski) addresses this topic in great detail at 875-881 of her article.
To wrap up, if the defendant shopkeeper is found to be justified in their deadly force, they’ve immunity from suit. I wonder if the Grand Jury has to make an affirmative finding that deadly force was justified in order for the defendant to claim immunity, or whether the immunity is one of those things that the defendant only figures out they possess after the expense of a trial or summary judgment?
It’s not that complicated. You can’t use deadly force solely to defend property - and in fact, this is true in pretty much every jurisdiction with some exceptions for residences. You can use deadly force to protect yourself or third parties, and that’s where we get to SYG immunity and justification.
I guess you could try to make a case that after the rioter battered his way through the sheets of plywood and then broke through the window or door, you honestly believed that your life was in danger. You’d want the corpse to be on your side of the threshold.
Oh, have a fire extinguisher or 3 handy, so if they ask why you were in the closed store during the riots, you can say you were concerned someone would start a fire in your place and you wanted to be able to put it out before it got out of hand.
Depends on what color you are and what color the intruder is.
ETA: The last few posts weren’t there when I started mine. Sorry for the partly redundant thoughts.
There’s a meta-issue as well …
The shopkeeper doesn’t live at the shop. He isn’t open for business. He has two choices:
Board up the shop & go home to some other part of the city.
OR
Board up the shop and stay inside, intending to use up to deadly force to deter looters, protect himself, and perhaps avenge himself if looting does occur.
The issue of the OP only arises when the shopkeeper chooses door #2. So he essentially set up the situation placing himself in obvious danger, such that after some looter busts through the door he feels endangered & “defends” himself by shooting.
This is clearly different from the concealed carry guy walking down a quiet street who is attacked more or less at random and chooses to stand his ground. Or the person in their own home which a burglar / robber chooses more or less at random.
This is essentially voluntarily entering a known about-to-be-riot zone and announcing “go ahead, make my day”. I don’t have the case law nuances to say how MO law has settled in this situation, if indeed it has.
But given the already politically charged atmosphere in Ferguson, I know I wouldn’t want to be the shopkeeper who chooses to explore the limits of my legal right to shoot looters. Especially if I wasn’t the same race as the looter(s) I shoot (at).
SanDiego, was your weapon returned?
I think the answer is that it depends.