#751  
Old 05-11-2016, 05:17 AM
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I'm not sure that's a positive gun story. He basically robbed the cab driver of his fare money and then shot him and another man and THEN burned and buried the bodies.

This is not a responsible gun owner. This is not a responsible human being of any sort.
  #752  
Old 05-11-2016, 11:24 AM
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I'm not sure that's a positive gun story. He basically robbed the cab driver of his fare money and then shot him and another man and THEN burned and buried the bodies.

This is not a responsible gun owner. This is not a responsible human being of any sort.
From what's in this article it I tend to agree. The guy takes a taxi home from a strip club, enters his house after not paying the fare, and when the cabbie breaks and enters to demand his fare he is shot 8X with a .45? Then the defendant wants to claim a Castle Doctrine defense?

Quote:
“If he wouldn’t have burned those bodies, he would be a free man,” Harris (defendant's atty) said.
Bull.
  #753  
Old 05-11-2016, 11:41 AM
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In other news, Police: Peoria homeowner shoots would-be burglar in leg
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A couple told officers they heard their doorbell ring multiple times about 9 a.m. but did not answer it.

Shortly after, the couple heard glass breaking. The husband made his way to a window, where he saw a male figure trying to enter through the window and another standing outside, police said.

The husband fired one shot, hitting the intruder in the leg. The intruder fled on foot, police said.
DGU with no deaths. I've known folks who answered a doorbell to a stranger and the person ringing would be surprised that someone was home. Then you get strange responses like asking to use a phone, pretending to sell something, asking for a person that doesn't live there. All of these could be pretexts to see if someone was actually home.
  #754  
Old 05-11-2016, 12:18 PM
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From what's in this article it I tend to agree. The guy takes a taxi home from a strip club, enters his house after not paying the fare, and when the cabbie breaks and enters to demand his fare he is shot 8X with a .45?
So it's OK for someone with a civil dispute over payment of a debt to take the law into their own hands and break into someone's house to collect it?
  #755  
Old 05-11-2016, 01:37 PM
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So it's OK for someone with a civil dispute over payment of a debt to take the law into their own hands and break into someone's house to collect it?
I agreed with Gyrate. Why wasn't that clear? I reread my post, to check. You took that out of context. Read my post again.

Last edited by Bullitt; 05-11-2016 at 01:40 PM.
  #756  
Old 05-11-2016, 03:27 PM
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I agreed with Gyrate. Why wasn't that clear? I reread my post, to check. You took that out of context. Read my post again.
I did. What is wrong with shooting someone who breaks into my home? The fact that I owe a cab driver money is irrelevant. That is a civil issue for the courts, or the police. How is breaking and entering justified?
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Old 05-11-2016, 09:43 PM
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We don't know who did what regarding the cab fare.

Breaking into the home was wrong, and destroying the bodies was wrong.
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Old 05-12-2016, 01:43 AM
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I did. What is wrong with shooting someone who breaks into my home? The fact that I owe a cab driver money is irrelevant. That is a civil issue for the courts, or the police. How is breaking and entering justified?
Okay I see your point but I do not buy it that the customer not paying the fare is irrelevant. He did not pay the fare, that is theft and is a factor in what happened.
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Old 05-12-2016, 04:56 AM
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I did. What is wrong with shooting someone who breaks into my home? The fact that I owe a cab driver money is irrelevant. That is a civil issue for the courts, or the police. How is breaking and entering justified?
It's not. But neither is shooting them completely "justified".

In the chain of events "A robs B, B gets angry and confronts A, A shoots B in self-defense" A deserves a much bigger share of the blame than in the case of someone fending off an unprovoked home intruder.

B should have called the police - but so should have A.
  #760  
Old 05-12-2016, 08:06 AM
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It's not. But neither is shooting them completely "justified".

In the chain of events "A robs B, B gets angry and confronts A, A shoots B in self-defense" A deserves a much bigger share of the blame than in the case of someone fending off an unprovoked home intruder.

B should have called the police - but so should have A.
So A has no right to defend himself when his home is invaded?
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Old 05-12-2016, 09:23 AM
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A does. But since the whole situation was provoked by a criminal act by A - and thus could easily have been prevented by him just paying the damn cab fare - this is not remotely a "positive gun use" and you're really stretching to characterize it as such.
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Old 05-12-2016, 09:25 AM
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Seems quite simple to me. The cabbie should have called the cops about the theft. It was a very poor decision to chase a thief/robber into a building. Let the cops arrest the guy.

Quote:
So A has no right to defend himself when his home is invaded?
Sure he does. But if he gets arrested, it is a much tougher battle to convince a prosecutor and jury that it was done in self defense.
  #763  
Old 05-12-2016, 10:33 AM
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A does.
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Originally Posted by Orwell View Post
Sure he does.
And that's why I think it is a positive gun use.

Stiffing the cabbie, then burning the bodies are both crimes. But defending himself is not.

DGU, two dead.
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Old 05-12-2016, 11:31 AM
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And that's why I think it is a positive gun use.

Stiffing the cabbie, then burning the bodies are both crimes. But defending himself is not.

DGU, two dead.
Really? That's slicing it very fine. By that argument, if someone's mugging me and I pull out my gun to shoot them, it's a "positive gun use" if they then shoot me to defend themselves against me. I mean, if we're going to remove all context from the incident, it makes perfect sense.
  #765  
Old 05-12-2016, 11:42 AM
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I did. What is wrong with shooting someone who breaks into my home? The fact that I owe a cab driver money is irrelevant. That is a civil issue for the courts, or the police. How is breaking and entering justified?
As with everything, the fact pattern is critical. There are two issues here.

The actions of the cab driver, and the actions of the shooter. The fact that money is owed to the cab driver is indeed irrelevant to the breaking and entering. But that is from the perspective of the cab driver.

From the perspective of the shooter, according to the article he is invoking stand your ground. The fact that he owes the cab driver money is entirely relevant to that scenario in that not paying for a cab fare is theft. The Stand your Ground statutes in South Carolina are covered in South Carolina Code SECTION 16-11-440:
Quote:
Presumption of reasonable fear of imminent peril when using deadly force against another unlawfully entering residence, occupied vehicle or place of business.

(A) A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:

...

(B) The presumption provided in subsection (A) does not apply if the person:
...

(3) who uses deadly force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
...
(my bold)
The law in South Carolina contemplated a scenario like this, where someone engaged in an unlawful activity seeks shelter in a residence.

In other words, the shooter was not simply an innocent. Defending oneself is fine, it's what the thread is mostly about after all. What is not fine is being an aggressor, or initiator. It would not be appropriate at all if a criminal or someone engaged in unlawful acts has a magic shield by hiding in their house immediately after committing a crime.

Based on the fact pattern, the Stand Your Ground law in South Carolina would not apply. That being said, the presumption of reasonable fear of imminent peril of death or great bodily injury is not present.

Last edited by Bone; 05-12-2016 at 11:43 AM.
  #766  
Old 05-12-2016, 11:48 AM
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In other news, Father rushes to help daughter after men break into Pulaski Co. home
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She says she woke up to the sounds of the two inside her home at 7:30 Friday morning, but she questions how long they had been inside.
...
“So I picked up the phone and called my dad, they were people in the house. And to come up here,” she said at her home on Piney Grove Rd. in the White Lily community.

Her dad showed up, one ran into the woods, the other down the driveway.
...
David M. Lafavers, 39, was held at gunpoint until police arrived.

A nearby house caught fire moments after the home invasion. Police say the second intruder set it on fire.
...
In fact police say Lafavers was arrested just last month in another home invasion…..but was released after posting a large property bond.
DGU with no injuries. So a person that was arrested for home invasion in the month prior was released and did the same thing. Setting fire to a house to keep warm is not a sign of a great thinker. Hopefully the person is not released and convicted after this.
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Old 05-12-2016, 12:24 PM
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Really? That's slicing it very fine. By that argument, if someone's mugging me and I pull out my gun to shoot them, it's a "positive gun use" if they then shoot me to defend themselves against me.
Not at all the same. If they break into your house, they have no basis to claim self defense.
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Old 05-13-2016, 05:32 AM
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Not at all the same. If they break into your house, they have no basis to claim self defense.
And as Bone pointed out, if you're hiding in your house to facilitate your crime (as this guy was), you have no basis to claim self-defense either.
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Old 05-13-2016, 06:48 AM
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And as Bone pointed out, if you're hiding in your house to facilitate your crime (as this guy was), you have no basis to claim self-defense either.
No where in the law does it equate staying your house with facilitating a crime.
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Old 05-13-2016, 07:38 AM
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He hid in his house to escape paying his cabfare.

But fine - you've got an entire thread of examples of normal law-abiding people defending themselves with guns against legitimate threats but if this is the hill you want to die on, go ahead and have this one.

And the next time there's a conversation about DGU on this board I'll remember how many straws were grasped just to add one dubious example to the total and wonder how many others like it are out there.
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Old 05-13-2016, 08:23 AM
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This is why there will be a trial.
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Old 05-13-2016, 12:13 PM
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Originally Posted by Fear Itself View Post
No where in the law does it equate staying your house with facilitating a crime.
The law doesn't state this specifically, but it does say that the presumption of fear that would justify self defense doesn't apply if the person who uses deadly force is either engaged in unlawful activity OR is using the residence to further an unlawful activity. Theft is an unlawful activity, therefore the presumption does not apply.

In the case where that presumption does not apply, the standard to evaluate whether self defense is a valid affirmative defense contains 4 elements. Those elements are:
First, the defendant must be without fault in bringing on the difficulty.
Second, the defendant must have actually believed he was in
imminent danger of losing his life or sustaining serious bodily injury,
or he actually was in such imminent danger. Third, if his defense is
based upon his belief of imminent danger, a reasonably prudent man
of ordinary firmness and courage would have entertained the same
belief. If the defendant actually was in imminent danger, the
circumstances were such as would warrant a man of ordinary
prudence, firmness and courage to strike the fatal blow in order to
save himself from serious bodily harm or losing his own life. Fourth,
the defendant had no other probable means of avoiding the danger of
losing his own life or sustaining serious bodily injury than to act as he
did in this particular instance.
Based on the fact pattern, I do not believe the first element is satisfied. Because there is no presumption of imminent danger, the fact pattern will control whether this belief was held, and if so, was reasonably held. I think these elements fail too. Self defense is not established if any one of the four elements can be disproven. See South Carolina Court of Appeals Opinion No. 4769.

Do you contend that each of the four elements exist?
  #773  
Old 05-13-2016, 12:15 PM
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In other news, Homeowner Fatally Shoots Would-Be Burglar in Ontario: Police
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The incident was reported about 5:15 a.m. in the 800 block of West Mission Boulevard, according to a statement from the Ontario Police Department.

The caller told dispatchers her husband shot a man who had tried to break in through the front door, the news release said.

The shooting occurred after a brief struggle between the male homeowner and the would-be burglar, said police Officer Jorge Ramirez.
DGU with one death. If a person breaks in at 5 in the morning I have to think they expect people to be home.
  #774  
Old 05-13-2016, 12:41 PM
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Canadians have guns?
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Old 05-13-2016, 12:45 PM
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Positive Gun News of the Day


That would be the question that comes to the mind of most Americans outside SoCal from that headline...

Last edited by JRDelirious; 05-13-2016 at 12:46 PM.
  #776  
Old 05-13-2016, 03:06 PM
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The law doesn't state this specifically, but it does say that the presumption of fear that would justify self defense doesn't apply if the person who uses deadly force is either engaged in unlawful activity OR is using the residence to further an unlawful activity. Theft is an unlawful activity, therefore the presumption does not apply.
That's an interesting interpretation of the law, and it might even hold up if the cab driver and his friend were shot while in pursuit of the gun owner outside. The problem comes when they break into his house. With the commission of a crime of their own, the gun owner is no longer furthering his theft of cab fare, but defending himself from criminals invading his home. One's domicile holds a special status in the law. While the police have latitude to enter when in hot pursuit, theft victims do not. At the time of the home invasion, the gun owner was not engaged in unlawful activity (the theft of cab fare having occured prior to the home invasion), and he wasn't using his home in the furtherance of of unlawful activity, since the cab driver had no legal right to enter the home. So neither condition is met, and the presumption of fear is valid.

Last edited by Fear Itself; 05-13-2016 at 03:07 PM.
  #777  
Old 05-13-2016, 04:00 PM
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... At the time of the home invasion, the gun owner was not engaged in unlawful activity (the theft of cab fare having occured prior to the home invasion), and he wasn't using his home in the furtherance of of unlawful activity, since the cab driver had no legal right to enter the home. So neither condition is met, and the presumption of fear is valid.
I think your interpretation is without basis. You have concluded that the shooter was not engaged in unlawful activity, and you have come to this conclusion because the theft had occurred prior to the cab driver entering the home. This is an absurd reading of the statute - a person could commit a crime on their porch and then step inside and your contention is that the person who just committed a crime was not engaged in unlawful activity. There would need to be some shield that once crossed acts as a cuttoff. This is nonsense and is not consistent with the law in South Carolina.

Even if your idea that the presumption of fear exists, that presumption only modifies the 3rd element of the 4 element test for self defense. Both the 1st, 2nd, and 4th elements must still exist. Do you think they do? Would you say that the shooter is without fault? Do you think the person was in actual fear? Even then, the presumption is rebuttable. Evidence can be presented that refute the shooter's claims, even if someone was unlawfully and forcibly entering the residence.

A jury will decide as the trier of fact.
  #778  
Old 05-13-2016, 04:02 PM
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I would think that the presumption on innocence would be of importance here.
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Old 05-13-2016, 04:54 PM
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This is why there will be a trial.
This will be a good one to follow. If the shooter is exonerated then I may suspect he had a $uperbly $killed attorney who$e office had excellent $taff.
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Old 05-13-2016, 05:14 PM
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This is an absurd reading of the statute - a person could commit a crime on their porch and then step inside and your contention is that the person who just committed a crime was not engaged in unlawful activity.
He is still guilty of the crime on the porch. He is not furthering that crime when he enters the house, because there are no additional charges that could be added to the crime that occurred on the porch.

The unlawful activity occurred when the gun owner left the cab without paying. He is not furthering that unlawful activity by entering his house; he is not guilty of any additional charges than if he had stayed outside. The cab driver has one appropriate response, and that is to call the police.
  #781  
Old 05-13-2016, 06:32 PM
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He is still guilty of the crime on the porch. He is not furthering that crime when he enters the house, because there are no additional charges that could be added to the crime that occurred on the porch.

The unlawful activity occurred when the gun owner left the cab without paying. He is not furthering that unlawful activity by entering his house; he is not guilty of any additional charges than if he had stayed outside. The cab driver has one appropriate response, and that is to call the police.
Your interpretation that the phrase "engaged in unlawful activity" does not include when a person commits theft and then enters a house is not supported by anything. Do you have any evidence that suggests this to be true?

And that's just the 3rd prong - this doesn't touch the "without fault" part. Any act of the shooter in violation of law and reasonably calculated to cause the conflict amounts to bringing on the situation and bars the right to assert self-defense.

And while I think it would be preferable for the cab driver to call the police, he does enjoy the ability to effect a citizen's arrest for the theft.
  #782  
Old 05-13-2016, 06:43 PM
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In other news, Suspected Bledsoe County prowler recovering after being shot by resident
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A 33-year-old Pikeville, Tenn., man faces multiple charges and is recovering from being shot last weekend by a local resident while he was on the run from authorities.

Wesley Brandon Siever, of Pikeville, is being held without bond on charges he accumulated last weekend while, authorities say, he fled from deputies, stole clothes from a home and broke into a truck at another home before encountering the unidentified owner who was armed with a .22-caliber rifle.
...
Then another nearby resident called, saying someone was breaking into a truck in the yard and that her son was outside with Siever, he said.

Her son had Siever at gunpoint and had told him not to move, Hodge said.

"He saw the firearm on [Siever] and it was visible to the homeowner and he told him not to make any sudden moves or he would shoot," Hodge said. "As the sheriff entered the driveway with the K-9 unit [Siever] lunged, and when he lunged the homeowner fired a single shot out of the rifle, striking [Siever] in the right calf."
DGU with no deaths. Is this like photography - the best gun is the one you have with you.
  #783  
Old 05-13-2016, 07:52 PM
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Your interpretation that the phrase "engaged in unlawful activity" does not include when a person commits theft and then enters a house is not supported by anything. Do you have any evidence that suggests this to be true?
Is that a triple negative, or just a double? It is hard to parse. Theft is a crime, and occurred when he left the cab without paying. Entering his own house does nothing to further that crime.
Quote:
And that's just the 3rd prong - this doesn't touch the "without fault" part. Any act of the shooter in violation of law and reasonably calculated to cause the conflict amounts to bringing on the situation and bars the right to assert self-defense.
The conflict that lead directly to the shooting was not the theft of the cab fare, but the criminal breaking and entering of the gun owners house, thus justifying self-defense.
Quote:
And while I think it would be preferable for the cab driver to call the police, he does enjoy the ability to effect a citizen's arrest for the theft.
Not by breaking into someone's house.
  #784  
Old 05-13-2016, 09:29 PM
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Is that a triple negative, or just a double? It is hard to parse. Theft is a crime, and occurred when he left the cab without paying. Entering his own house does nothing to further that crime.
Let me rephrase. Imagine a scenario where a person commits theft 2 steps away from the entrance of a residence. At step 0, they are engaged in unlawful activity. At step 1, still outside the house, they are engaged in unlawful activity - the theft. At step 2, now inside the house, you are saying they are no longer engaged in unlawful activity. Is that right?

I don't think any court will share that conclusion. Do you have any evidence to support your position that a thief can be considered to no longer be "engaged in unlawful activity" by stepping inside a residence? Any evidence whatsoever to support your position?

Entering the house doesn't further the crime, but he is still engaged in it. And the fact pattern is actually a bit unclear. There are conflicting reports (from the shooter) that the people were invited in. The time frame is also unclear which could impact the fact pattern.

Quote:
The conflict that lead directly to the shooting was not the theft of the cab fare, but the criminal breaking and entering of the gun owners house, thus justifying self-defense.Not by breaking into someone's house.
There's the concept of proximate cause. I'm not sure if that applies here, but it's short sighted to think that the theft was unrelated to the events that followed.
  #785  
Old 05-13-2016, 09:58 PM
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Well ...er ...um ... I guess this is positive news... somewhere.
  #786  
Old 05-14-2016, 10:03 AM
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It looks like we are neighbors. We can go shooting one day, say, at Reed's Indoor Range in Santa Clara? It's right off of 101 near Bowers. How about it?
  #787  
Old 05-14-2016, 12:52 PM
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In other news, Homeowner shoots suspect in the face after attempted home invasion
Quote:
Slokken will never forget the night her neighbor called her. She tells us right after midnight Friday a man went on a home invasion rampage on her street.

"Break in the door kicking it and trying to break it down," said Slokken.

The man was not successful in getting through the front door, so neighbors say he went to a home next to Slokken's.

Witnesses say the man armed with a 12-inch knife tried getting through the doggie door. The homeowner ended up shooting the man in the face.
DGU with no deaths. I am on the fence with doggie doors. I know most have a closable gate but those don't seem very secure.
  #788  
Old 05-15-2016, 12:27 AM
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It looks like we are neighbors. We can go shooting one day, say, at Reed's Indoor Range in Santa Clara? It's right off of 101 near Bowers. How about it?
Gee Bullitt! I used to live just off of San Tomas on Monroe. We could have "Bang Banged" in blissful unison! Have you been to Reed's Indoor Range in Santa Clara? If so, do tell...

Last edited by Little_Pig; 05-15-2016 at 12:28 AM.
  #789  
Old 05-15-2016, 01:44 PM
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I didn't see this on your list:
Two armed citizen hold kidnapper at gunpoint while waiting for police. Guys tracked and found kidnapped in the deep woods with 8 year old girl.

StG
  #790  
Old 05-15-2016, 07:45 PM
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I didn't see this on your list:
Two armed citizen hold kidnapper at gunpoint while waiting for police. Guys tracked and found kidnapped in the deep woods with 8 year old girl.

StG
Wow, a great ending to the manhunt. 8 year old Carlie Trent is alive, thanks to searchers Donnie Lawson and Stewart Franklin. Gary Simpson, the alleged kidnapper, is in custody.

Great use of a firearm, holding the alleged kidnapper until police arrived.
  #791  
Old 05-15-2016, 11:56 PM
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In other news, Police: Woman shoots at man trying to kick down her door
Quote:
"I looked out the window and saw him kicking at the window, kicking at the door," said a 14-year-old who didn't want his face shown.

He said he was playing video games next door when he heard the drama unfold.

"When I stepped out the front door, I saw him kicking at her car and punching at her window."
...
"I saw her firing shots at him, and then he jumped into the car and took off."

The man was later found driving around Frayser on Dellwood and Madewell with a gunshot wound.
DGU with no deaths. Sounds like domestic violence and someone had enough.
  #792  
Old 05-16-2016, 11:47 AM
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In other news, Man charged with aggravated burglary
Quote:
The victim told police that the defendant, identified as Michael Smith, had been harassing her all day by banging on her door and windows.

The victim said she repeatedly yelled at the defendant to leave, but he refused and broke a window.

At that point, the woman told police she fired shots at the defendant when she saw his hand coming through the window. The defendant fled in his car and flagged down police in the 3100 block of Madewell. He was bleeding heavily from a cut on his arm and was taken to the Regional Medical Center in noncritical condition.
DGU with no deaths. Not sure if the injury was due to gunshot or breaking window, but the gunshot convinced the burglar to flee.
  #793  
Old 05-16-2016, 07:40 PM
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Today, the Second Amendment Foundation (SAF) won another victory in the 9th circuit court of appeals. This case dealt with a CA County ordinance that prohibited gun stores within 500 feet of residentially zoned district, and certain other stores like bars. From the opinion:
Quote:
As our predecessors recognized, logic compels such an
inference. If “the right of the people to keep and bear arms”
is to have any force, the people must have a right to acquire
the very firearms they are entitled to keep and to bear. Indeed,
where a right depends on subsidiary activity, it would make
little sense if the right did not extend, at least partly, to such
activity as well.
The Supreme Court recognized this principle
in very different contexts when it held that “[l]imiting the
distribution of nonprescription contraceptives to licensed
pharmacists clearly imposes a significant burden on the right
of the individuals to use contraceptives,” Carey v.
Population Servs., Int’l, 431 U.S. 678, 689 (1977), and when
it held that a tax on paper and ink products used by
newspapers violated the First Amendment because it
impermissibly burdened freedom of the press, see
Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Revenue, 460 U.S. 575, 585 (1983). “[F]undamental rights,
even though not expressly guaranteed, have been recognized
by the Court as indispensable to the enjoyment of rights
explicitly defined” because such “unarticulated rights are
implicit in enumerated guarantees.” Richmond Newspapers
v. Virginia, 448 U.S. 555, 579–80 (1980). One cannot truly
enjoy a constitutionally protected right when the State is
permitted to snuff out the means by which he exercises it; one
cannot keep arms when the State prevents him from
purchasing them. Cf. Jackson, 746 F.3d at 967 (“[W]ithout
bullets, the right to bear arms would be meaningless.”); Ezell
v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (“The
right to possess firearms for protection implies a
corresponding right to . . . maintain proficiency in their use;
the core right wouldn’t mean much without the training and
practice that make it effective.”). Thus, the Second
Amendment “right must also include the right to acquire a
firearm.” Illinois Ass’n of Firearms Retailers v. City of
Chicago, 961 F. Supp. 2d 928, 930 (N.D. Ill. 2014).4 As the
District Court for the Northern District of Illinois noted in
striking down a Chicago ordinance that abridged such right,
a “ban on gun sales and transfers prevents [citizens] from
fulfilling . . . the most fundamental prerequisite of legal gun
ownership—that of simple acquisition.”
(my bold)

A couple notes:
  1. The two prong analysis that is pervasive with the 1st amendment is again present in 2nd amendment analysis. 1st amendment analogues are directly on point to 2nd amendment analysis.
  2. Efforts to curtail gun ownership by limiting the ability to purchase implicate the 2nd amendment.
  3. The right to possess firearms for self defense is coextensive with the right to acquire and practice.
  4. Some subsidiary activities are included in the 2nd amendment.
  5. Plaintiffs asserted that under the County guidelines, there are zero places that are suitable. This question was directly addressed however the opinion notes that if this were true and if the 500 ft ordinance functioned as a total ban on all new gun retailers, then a more rigorous showing than even intermediate scrutiny, if not quite strict scrutiny would be warranted.

Quote:
According to the dissent, there is no
constitutional infirmity so long as firearm sales are permitted
somewhere in the County. We doubt the dissent would afford
challenges invoking other fundamental rights such cursory
review. Would a claim challenging an Alameda County
ordinance that targeted bookstores be nothing more than “a
mundane zoning dispute dressed up as a [First] Amendment
challenge”? See Dissent at 35. Surely the residents of
Alameda County could acquire their literature at other
establishments that, for whatever reason, had not been
shuttered by the law.
Such an ordinance, of course, would give us great pause.
Our reaction ought to be no different when it comes to
challenges invoking the Second Amendment. See Ezell, 651
F.3d at 697. The right of law-abiding citizens to keep and to
bear arms is not a “second-class right, subject to an entirely
different body of rules than the other Bill of Rights
guarantees that we have held to be incorporated into the Due
Process Clause.” McDonald, 561 U.S. at 780. Indeed, it is one
“that the Framers and ratifiers of the Fourteenth Amendment
counted . . . among those fundamental rights necessary to our
system of ordered liberty.” Id. at 778. Just as we have a duty
to treat with suspicion governmental encroachments on the
right of citizens to engage in political speech or to practice
their religion, we must exert equal diligence in ensuring that
the right of the people to keep and to bear arms is not
undermined by hostile regulatory measures
.
(my bold)
In other words, just because there are other places available to purchase guns in the County, this is no defense to prohibiting new gun stores.

Solid opinion. Though it does say that if the county is able to produce evidence to support the substantial interest and reasonable fit, then the ordinance may not offend the constitution. The case was remanded back to the district.


***
I expect a ruling in the near future about a gun store prohibited from advertising handguns visible from the exterior of a store, though long gun advertisements are allowed. This is a first amendment claim rather than a 2nd.

Last edited by Bone; 05-16-2016 at 07:41 PM.
  #794  
Old 05-17-2016, 05:05 AM
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Quote:
Originally Posted by Bone View Post
In other words, just because there are other places available to purchase guns in the County, this is no defense to prohibiting new gun stores.
I wonder if this would be a useful argument to counter the recent pervasive crackdown on abortion clinics, something also (apparently) Constitutionally protected, albeit much more obscurely.
  #795  
Old 05-17-2016, 09:51 AM
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Quote:
Originally Posted by Bone View Post
Today, the Second Amendment Foundation (SAF) won another victory in the 9th circuit court of appeals. This case dealt with a CA County ordinance that prohibited gun stores within 500 feet of residentially zoned district, and certain other stores like bars. From the opinion:

(my bold)

A couple notes:
  1. The two prong analysis that is pervasive with the 1st amendment is again present in 2nd amendment analysis. 1st amendment analogues are directly on point to 2nd amendment analysis.
  2. Efforts to curtail gun ownership by limiting the ability to purchase implicate the 2nd amendment.
  3. The right to possess firearms for self defense is coextensive with the right to acquire and practice.
  4. Some subsidiary activities are included in the 2nd amendment.
  5. Plaintiffs asserted that under the County guidelines, there are zero places that are suitable. This question was directly addressed however the opinion notes that if this were true and if the 500 ft ordinance functioned as a total ban on all new gun retailers, then a more rigorous showing than even intermediate scrutiny, if not quite strict scrutiny would be warranted.


(my bold)
In other words, just because there are other places available to purchase guns in the County, this is no defense to prohibiting new gun stores.

Solid opinion. Though it does say that if the county is able to produce evidence to support the substantial interest and reasonable fit, then the ordinance may not offend the constitution. The case was remanded back to the district.

Good news. This was for Alameda County, in the San Francisco Bay Area (Oakland and Berkeley are in Alameda County).

From the San Jose Mercury News:
Quote:
Appeals court reinstates California gun store restriction lawsuit

SAN FRANCISCO -- A federal appeals court said Monday in a California lawsuit that the Second Amendment right to bear arms extends to gun stores and requires governments to justify restrictions on them.

The ruling by the 9th U.S. Circuit Court of Appeals came in a lawsuit against Alameda County by three men who wanted to open a gun store. They said a county ordinance that prohibits gun stores within 500 feet of a residential area violated the Second Amendment.

The 9th Circuit did not rule on the constitutionality of the 500-foot restriction, but it said the ordinance did involve the Second Amendment because the right to purchase and sell arms is "part and parcel of the historically recognized right to keep and to bear arms."

The county, therefore, has to present evidence to justify the restriction and can't simply assert that gun stores increase crime, 9th Circuit Judge Diarmuid O'Scannlain said in the 2-1 decision.

"Alameda County's ordinance may very well be permissible. Thus far, however, the county has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns," O'Scannlain said. The ruling is unique in its determination that there is a right to open new gun shops regardless of whether such stores already exist, said Eugene Volokh, a professor who has taught classes on gun regulation at the University of California, Los Angeles School of Law.

He said the ruling also establishes that governments must show proof if they argue that gun shops are magnets for criminals.
  #796  
Old 05-17-2016, 11:48 AM
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Quote:
Originally Posted by Gyrate View Post
I wonder if this would be a useful argument to counter the recent pervasive crackdown on abortion clinics, something also (apparently) Constitutionally protected, albeit much more obscurely.
I doubt the direct holding would be on point since the enumerated nature of the 2nd is different than abortion rights.

Quote:
Originally Posted by Little_Pig View Post
Well ...er ...um ... I guess this is positive news... somewhere.
This is solid, though I expect Governor Nixon to veto the bill. The legislature did pass it with a large enough majority to override the veto, but since the session is over they would have to do it when they are back in session which I think is in August. That's a lot of time for people's votes to change so it's up in the air at this point.

***

In other news, Richardson Man Shoots, Kills Burglar After Struggle For Gun
Quote:
Richardson Police say they got a 911 call at 5:50 a.m. from a resident who said he was holding at gunpoint, a suspect who had broken into his home.

Before officers arrived, police say the suspect. 22-year-old, Derick Roderick Jackson, tried to get the gun from the resident and during the struggle the resident shot the suspect who later died from his wounds while in surgery.
DGU with one death. Holding someone at gunpoint seems like a very risky scenario.
  #797  
Old 05-17-2016, 12:01 PM
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Quote:
Originally Posted by Bone View Post
In other news, Richardson Man Shoots, Kills Burglar After Struggle For Gun

DGU with one death. Holding someone at gunpoint seems like a very risky scenario.
I've given this thought over the years. Not everyone is going to meekly comply if you hold a gun on them, nor calmly wait for the cops, which may take 5-15-30 minutes. There is a lot of time for the crook to think about fleeing, talking his way out or attacking the person with the gun. If you are holding someone at gunpoint, you need to keep a calm head, maintain some distance, and be ready to let them leave if you are not threatened, and ready to shoot if necessary.
  #798  
Old 05-17-2016, 12:25 PM
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And hope to god another good guy with a gun doesn’t mistake you for a mugger.

Sent from my SM-G900V using Tapatalk
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  #799  
Old 05-18-2016, 11:54 AM
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In other news, Man who was shot during home invasion now behind bars
Quote:
Ryan Aytch, 19, of La Grange, and Dashawn Dail, 23, of Kinston, have both been charged with attempted robbery with a dangerous weapon and first degree burglary. They say Danny Lewis of Greenville will face similar charges when he's released from Vidant Medical Center.

Pitt County deputies say the three tried to rob a home on Paul Place in Grimesland Tuesday night, but one resident fought back.

Mary Johnson lives in the mobile home with her boyfriend, Nathaniel Rembert.

Johnson told WITN that she and Rembert, along with their 14-month-old, were in the living room when three men snapped open the locked screen door.

Johnson grabbed her son and ran to a back room, while she says Rembert managed to get his revolver and unloaded the weapon, firing six times.

She said the men dropped their shotgun and ran out.
DGU with no deaths. 3 people armed with a shotgun vs 2 residents and a 14 month old child. The residents were lucky that 6 rounds were enough to scare off the three who broke in as the homeowner only registered one successful hit in the arm. I wouldn't feel comfortable with only 6 rounds available.
  #800  
Old 05-18-2016, 03:34 PM
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"Danny Lewis of Greenville will face similar charges when he's released from Vidant Medical Center."

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