It’s this part that interested me most.
I don’t see that the Supreme Court really needs to answer this. Surely it’s the right of any person to defend their home, and, G-man or no, if he forcibly enters your house by stealth then (unless he identifies himself pretty damn sharpish) he’s an intruder and if you, in fear for your life, injure or even kill him, how could any reasonable court convict you? Would the DA even try?
In many places they find people guilty of overzealous defense of their home from non police trespassing in your house. If the G-man had a warrant most DAs would takes the case and most likely secure a conviction.
However, if it were a covert wiretap, the householder would be unaware of the warrant. The DA would need evidence that the law-enforcement officer had identified him/herself as such, and, of course, once they had done so, the wiretap would no longer be covert.
The law is not a logic problem. You have shot a cop during the lawful execution of his duties. The DA would find reasons to prosecute. Especially in this case were law enforcement already has reason to believe that you are taking part in criminal activity already hence the warrant for the wiretap.
Most people in America do not understand the law on this point (I was one, until recently). It is NOT legal to shoot someone entering your home illegally. It is only legal in defense of your life (or your defenseless loved ones), not in defense of your property.
If a person does shoot a man, even in defense of his own life, there is ALWAYS a major hullabaloo because they must prove that they were indeed acting in defense of their life. This is generally even harder if the person shot is still alive (since they will always say they weren’t threatening).
If it was late at night, you heard an intruder, silently inspected, and saw a man with a gun, that is NOT enough to go on – he would have to be actively threatening you. Your job at that point is to do as the police do, unfortunately – announce yourself. At which point, if it’s not a cop, you probably get shot by the intruder or one of his buddies. Which is why it’s generally a better idea to go back to your room and dial 911 instead.
Anything else you may do will be tried, your actions weighed, and your guilt determined based on how much credible threat was shown to your person.
Don’t some states in the US lean heavily towards the homeowner, even if he does kill the intruder? (I’m thinking Texas here.) Given the past incidents of brutal home invasions by criminals in the past I can well imagine that a householder (especially one whose wife and children were also at home) might well shoot first if confronted by a couple of men breaking into his house at night. (I know government agents would choose a time when they think the house is unoccupied but I’m sure mistakes have been made.)
There was a famous case in the UK in the 80s in which a criminal (Kenneth Noye) was being surveilled by undercover cops. Noye heard movement in the grounds outside his house one night, went out to investigate, and ended up stabbing to death the plainclothes cop he came across. A jury acquitted him of the murder.
Obviously the jury does what the jury does, and the laws sometimes only serve as a guideline. Also, you’re absolutely right that some areas are harder or easier on the homeowner.
In the case you describe, a “couple of men” are “breaking” into the home. If there’s actual breakage involved, that may signify more threat than more stealthy entrance, and that would be taken into account. Similarly, the fact that it’s more than one increases the threat. So does the fact that there are more family members to protect.
In that specific situation, a person might well get off for shooting without further threat. Or they might not. Depends on how well the lawyers do their jobs and how the jury is feeling that day. I’m also sure that the shooter’s character would be brought into it – is he the kind of person who would shoot for no reason, or is he an upstanding citizen trying to do the best he can in a difficult situation?
This just isn’t true as the kind of blanket statement you’ve laid out here. State laws vary widely on the permissible use of force, traditionally falling into two camps; “Eastern” law, which generally requires proportional force (i.e. you cannot use a weapon in defense against an unarmed attacker unless there the attacker has a disproportionate advantage of size or strength) and often places a burden upon the defender to retreat as far as practical, and “Western” or “frontier” law, which gives considerably more leeway to the defender for the use of force. The historical basis for this in a nutshell is that in the more populous East with established community police or protective forces, protection against civil offense (vandalism, theft, robbery) is provided by the municipal or county government (police or sheriff’s department), while in the more thinly settled and governed West (of the Mississippi) the upholding of community laws and standards fell upon the citizenry to defend their own property and to provide support (in the form of organized posses or militias) to local and territorial law enforcement, and hence providing a much wider berth to the application of armed force.
The adoption or expansion of so-called “Castle Doctrine” or “stand-your-ground” laws has muddied the water considerably; such laws were promoted and passed with the ostensible purpose of clarifying the statutes with regard to use of force (especially in states with a considerable amount of non-statutory case law) and to provide some measure of civil protection against liability claims. However, many of these laws have expanded the use of force to an extent that goes beyond defense of person or even property, Texas being one of the most extreme examples.
In addition to the use of deadly force to protect yourself or another person (not necessarily a ‘loved one’) all but the most restrictive of states also expand the use of deadly force to the prevention or cessation of other major crimes such as felony arson, kidnapping, or aggravated assault. The interpretation of the standard for application of deadly force in these situations is based on the “reasonable person principle”; very simply, would a reasonable person (the jury presumably being comprised of such) feel that a crime meeting the standard for deadly force was being performed. If so, even if the actual intent to commit the crime did not exist, the law offers protection.
In no statutory law that I’m aware of are you explicitly required to announce your presence or intention to apply deadly force to stop an intruder. Although states with more restrictive laws may imply that the intruder already be aware of your presence (i.e. threatening you) if the intruder is armed and poses a realistic threat that meets the standard for use of force, you are “weapons free” at that point, regardless of any lack of announcement of intention. Police, on the other hand, are required to identify themselves as such when enforcing statutes; however, in a defensive situation, the same laws generally apply to police as to the citizenry.
To “…go back to your room and dial 911 instead,” relying upon police response time and effectiveness is all well and good when it works, and not very well when it doesn’t. Tactically speaking, the ideal situation is to locate yourself in a protected location between any intruders and your family, contact the police and give them the particulars, and do whatever you can to encourage the perpetrators to leave as quickly as possible. Fortunately, predatory home invasions are very rare; most break-ins are performed by low grade scumbags looking for electronics, jewelry, or cash that can be used to purchase drugs and who are not prepared to stand up to a defender with a baseball bat, much less a firearm. The majority of shootings of home invaders involve persons known to each other, often members or former members of the same household, i.e. domestic incidents (from which comes the oft-quoted statistic that “you are more likely to shoot a family member,” which fails to express the context in which one ‘family member’ is a credible threat to the life and well-being of others).
In the hypothetical scenario posed by the o.p., an unidentified intruder in your house would be treated the same whether he carried a badge or not. And even a police officer who identified himself is still subject to applicable laws, i.e. he can’t trespass without warrant or probable cause of a crime in commission. A police officer entering a home, making threatening statements or actions without warrant, and otherwise behaving like a burglar or home invader would be nominally subject to the same use of force as a private citizen. The use of “no-knock” warrants, drug forfeiture laws, and other quasi-legal actions has made this a pretty grey area, but the correct answer to the o.p.'s question is no, the police cannot legally burglarize your home.
Stranger
I disagree… If you see the gun (obv drawn) there is no jury that would convict you… I am no legal professional, but read a lot about the law and I’ve never read of a jury convicting a homeowner shooting an armed intruder… Most cases I remember the particulars about convictions came from shooting unarmed or fleeing suspects…
Even in a state with a proportional response doctrine… He has a gun and is illegally (as far as you know) entering your home… You would have to cite a case to get me to agree that you would not be able to legally use your gun in that situation…
I know the media hypes the absurd cases where the law seems to not make sense… but during the rest of the thousands of cases that come before the courts each day… common sense carries a lot of weight…
A policeman there to set a wiretap (a) is pretty stupid if he does it while someone is home and (b) would likely not have a gun drawn. (Discretion would suggest he leave ASAP, or what’s the point of a secret wiretap?)
Several recent cases in Canada (Winnipeg and Quebec) where police used no-knock warrants for no discernable reasons, both involved petty drug dealers. In one, the guy locked himself in the bathroom, probably di not believe the shouts of “Police”, and fired through the door. He got 7 years (police union up in arms about that one, he’ll be out in 3). I think that was a message to the police. In the other, several armed intruders ended up in a firefight in the dark, bullets just missed one of the kids through the wall, and one policewoman ended up dead. He plead guilty, not sure what he got but it wasn’t much. Both were very dumb uses of force.
Canada has the reasonable force, must be threatened law; plus laws on storage of firearms (locked, unloaded, etc.). Simply shooting is not legal. The person must appear menacing, bigger, whatever. If they are shot in the back, guaranteed you’re going to court.
However, the store owner in Edmonton who shot a criminal was acquitted. The fellow was shot in the back, on the sidewalk, running away. he held up a drugstore for the third time in a matter of months, while on bail for the previous 2 charges. Most citizens protested why they were even bothering to charge the owner.
As mentioned, the “eastern” concept of justice and self-protection requires that the police manage to contain the level of criminality. Failing that, it will be hard to get a jury to convict.
That’s the crux of the situation - did you know that the person you just shot was a cop? If they were in uniform, it’s deemed that you knew it. But if it’s a guy doing a ninja job on you, he’s probably not going to be in uniform, which makes him just another burglar.
IMNSHO, I don’t think any D. A. in the country would try to prosecute the case. There is wayyyyy too much reasonable doubt from the git-go.
I absolutely agree with you – I was trying to play it safe, working off of a worst-case scenario, since most ppl don’t know the specifics of their area. I also wasn’t trying to say that you “must” announce yourself, nor even that there are laws requiring you to… just that without doing so there may be some question as to how much force was proportional, and you really don’t want there to be any question in a case like this.
I also still believe that many Americans think that shooting in defense of their home with no further provocation is OK, and they’ll get off scott free without even much of a trial. That’s just not the case.
Iagree with Gazpacho, the law is not a logic problem, and the criminal justice system is made up of humans, a species not know to behave logically.or consistantly.One must consider who would investgate the shooting of a cop…other cops!,ie, the buddies of the dude you shot. Think you get a fair shake? Doubtful.Evidence on your behalf could be “lost”, Thin Blue Line and all that. Maybe I’m paranoid, but c’mon this is the real world we’re talking about.
The guy who shot a police officer in Winnipeg (through a bathroom door) got 7 years, probably serve 1/3 of it. the judge gave him this against the recommendation of the crown prosecutor, and despite the presence of dozens of off-duty cops in the courtroom throughout the trial. The guy claimed (logically, but unproven) that he had suffered a home invasion before, from rival drug dealers, but it had never been reported so he thought it was a repeat, since he never saw the police, anyone can yell “police” and it was unclear or not reported whether they were all in uniform. (There’s a happy thought - police out of uniform busting down your door…)
I suspect this sentence was a message to the cops - “yes, he can’t just shoot anyone he feels like, but you can’t expect me to treat a home invasion like a cold-blooded murder attempt.” I think the Keystones were as much incensed by the fact that in the confusion, one of the cops was hit by friendly fire. What does that say about control and professionalism?
So what happens when things get to court, or before, or after, has as much to do with petty personal politics (and just plain politics) as anything else. Judges have a huge amount of power, and with that comes petty tyrant behaviour. What relationship the crown prosecutor or your defense lawyer has with the judge probably counts as much as real points of law.
I saw one guy sentenced to 2 weeks for taxi fraud (couldn’t pay) because the prosecutor(!) as he summed up the case pointed out he didn’t mean to do it, he was just too drunk to realize he had no money, and then had the temerity to say “…and next week is Christmas…”
and suggested leniency. The judge blew his top and said “I don’t give anyone any break just because it’s Christmas. At least he’ll get a good dinner on Christmas - 2 weeks.”
Another lawyer mentioned as an out-of-towner, he could afford to appeal a harsh sentence. He only appeared in front of the judge once or twice a year, and the judge knew if he got to harsh, the appeals would go up. The locals had to appear all the time in front of that a*****le judge. If they made it a habit to appeal, the judge would dump twice as hard on their next dozen clients, and so on, until the lawyer learned his lesson.
Or look at the nasty politics in the Duke Lacross case. Basically the prosecutor was determined to turn a she-said-they-said case into a political bandwagon of class warfare with no real look at the factual evidence (of which there turned out to be none).
However, I suspect there is a limit to how “sloppy” an investigation over a policeman’s death can get. It will certainly get a lot of attention, and anyone who does anything that might jepoardize the case will find themselves in hot water careerwise and possibly legally. The prosecutor would be quite happy to flush some cop down the toilet if the guy either messes up an easy case or worse, puts him on the wrong end of a very public fiasco, especially if race or some other discrimination rears its head. More politics.