# If you shoot a person you mistakenly thought was breaking in can you be prosceuted? **URL:** \ **Category:** Factual Questions\ **Created:** [November 30, 2006, 6:24am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298 "2006-11-30T06:24:57Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [November 30, 2006, 6:24am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/1 "2006-11-30T06:24:57Z")
[The example in this fark thread](http://forums.fark.com/cgi/fark/comments.pl?IDLink=2443824) made me wonder. Let’s say a person sees a shadowy figure forcing the back door on their neighbor’s house, and because they are easily spooked they get their gun and shoot the presumed intruder in a panic. The “intruder” turns to to be the neighbor breaking into his own house because he lost his keys. The shooting paralyzes him. Can the shooter be prosecuted even if they thought they were doing the right thing? ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [November 30, 2006, 6:45am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/2 "2006-11-30T06:45:24Z")
You are asking if you could get in trouble for shooting someone, who _might_ be breaking into somone _else’s_ property? Um, yeah they’d be in all kinds of trouble! The best course of action is to quietly call the police and let them sort it out. If it’s your property, it’s a different matter, though the laws vary by state as to what the homeowner can, and cannot do. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [November 30, 2006, 6:47am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/3 "2006-11-30T06:47:23Z")
Depends, obviously, on where you are when you shoot the supposed intruder, since the law will vary from place to place. But your question refers to a hypothetical in which (you thiink) you see an intruder breaking into _someone else’s_ house. This is quite different from the case of someone breaking into your own house when you are in it, and the “self defence against implied threat of violence” kind of defence which a householder might rely on when his own house is invaded is unlikely to be available. So my guess is that, in most places, you’ll have no defence in the situation you describe. Even if the supposed intruder was a _real_ intruder, you’d still have no defence. You weren’t being threatened with violence, and neither was anybody else. ---
**Author:** ![Zabali\_Clawbane](https://avatars.discourse-cdn.com/v4/letter/z/ecd19e/32.png) [@Zabali\_Clawbane](https://boards.straightdope.com/u/Zabali_Clawbane)\ **Post date:** [November 30, 2006, 6:54am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/4 "2006-11-30T06:54:32Z")
[QUOTE=UDS] \You weren’t being threatened with violence, and neither was anybody else. [/QUOTE] Neither was anybody else _related to you_. On the offchance that immediate family lived next door to you, _maybe_ you could use the “defense of loved ones” defense. ---
**Author:** ![madmonk28](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madmonk28/32/20811_2.png) [@madmonk28](https://boards.straightdope.com/u/madmonk28)\ **Post date:** [November 30, 2006, 7:06am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/5 "2006-11-30T07:06:16Z")
As already stated, shooting someone on someone else’s property would get you in trouble. But shooting someone on your own property might not. In 1992, a man in Louisiana shot and killed a Japanese exchange student who went to the wrong house looking for a halloween party. The man was not prosecuted although he was later sued. [Link](http://answers.google.com/answers/threadview?id=369397) > [@](#): > > Rodney Peairs, 31, shot and killed Hattori on Oct. 17, 1992, when > Hattori and a friend mistakenly rang Peairs’ doorbell while looking > for a Halloween party in the area. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [November 30, 2006, 7:07am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/6 "2006-11-30T07:07:23Z")
On the OP’s facts, shooting the guy is not a good answer. I’d suggest calling 911, turning on lights and yelling at the guy (from cover). In some States, you might get away with firing a warning shot to chase him off. Being me, especially if he was hassling my sweet little old lady neighbor, I’d prolly just run over in full asskicking mode–but I wouldn’t recomend that for most people. If you do shoot him, yeah you can probably be prosecuted in most places. You might have an arguable defense of defense of another depending on local law and other circumstances, but to use it you’ll be rolling the dice with a jury. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [November 30, 2006, 7:13am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/7 "2006-11-30T07:13:34Z")
[QUOTE=madmonk28] As already stated, shooting someone on someone else’s property would get you in trouble. But shooting someone on your own property might not. In 1992, a man in Louisiana shot and killed a Japanese exchange student who went to the wrong house looking for a halloween party. The man was not prosecuted although he was later sued. [Link](http://answers.google.com/answers/threadview?id=369397) [/QUOTE] That guy was prosecuted and found not guilty. Taken from your link: “_In Baton Rouge, Rodney Peairs, the homeowner who gunned down Yoshi Hattori, was indicted by a grand jury. He was charged with manslaughter and put on trial in May. The jury, apprently convinced that Peairs was well within his rights to blow away an inquiring teenager, deliberated for just over three hours before acquitting him.”_ ---
**Author:** ![madmonk28](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madmonk28/32/20811_2.png) [@madmonk28](https://boards.straightdope.com/u/madmonk28)\ **Post date:** [November 30, 2006, 7:21am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/8 "2006-11-30T07:21:00Z")
[QUOTE=Oakminster] That guy was prosecuted and found not guilty. Taken from your link: “_In Baton Rouge, Rodney Peairs, the homeowner who gunned down Yoshi Hattori, was indicted by a grand jury. He was charged with manslaughter and put on trial in May. The jury, apprently convinced that Peairs was well within his rights to blow away an inquiring teenager, deliberated for just over three hours before acquitting him.”_ [/QUOTE] Sorry, my mistake. I meant not convicted. ---
**Author:** ![NinetyWt](https://avatars.discourse-cdn.com/v4/letter/n/cc9497/32.png) [@NinetyWt](https://boards.straightdope.com/u/NinetyWt)\ **Post date:** [November 30, 2006, 7:25am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/9 "2006-11-30T07:25:39Z")
Mississippi has recently passed a “castle doctrine” law - attorney friends of mine say it extends to “protection of others” - I’d still be wary of shooting across other’s property. Related discussion [here](http://www.clarionledger.com/misc/blogs/ssalter/2006/07/castle-law-starting-today-potential.html) ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [November 30, 2006, 7:30am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/10 "2006-11-30T07:30:55Z")
I don’t think the Castle Doctrine would necessarily protect you in this case. I think it requires a more immediate threat of serious bodily harm. As far as I know, Mississippi doesn’t have any case law under the new statute, but I have not researched the issue. ---
**Author:** ![NinetyWt](https://avatars.discourse-cdn.com/v4/letter/n/cc9497/32.png) [@NinetyWt](https://boards.straightdope.com/u/NinetyWt)\ **Post date:** [November 30, 2006, 7:40am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/11 "2006-11-30T07:40:41Z")
Agreed, **Oakminster**. If it’s your neighbors property you’d be better off calling the law. ---
**Author:** ![Crafter\_Man](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crafter_man/32/458_2.png) [@Crafter\_Man](https://boards.straightdope.com/u/Crafter_Man)\ **Post date:** [November 30, 2006, 3:41pm UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/12 "2006-11-30T15:41:47Z")
Lets say you shot someone in self-defense. In order for the shooting to be judged legal, each the following must be true: 1. You believed your life (or the life of a family member) was in grave danger. 2. You did not instigate the situation. 3. You did not elevate the situation. 4. You were unable to safely retreat from the threat (a.k.a. “duty to retreat”). You must be able to prove each of the above in court of law. If the jury believes one of these was _not_ true, you’re toast. Some states have a “stand your ground” law. In these states, there is no duty to retreat (i.e. you do _not_ need to prove #4). But you must still prove #1, #2, and #3. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 30, 2006, 3:45pm UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/13 "2006-11-30T15:45:23Z")
[QUOTE=astro] [ Can the shooter be prosecuted even if they thought they were doing the right thing? [/QUOTE] Certainly. _Convicted_ is another thing altogether, of course. I want to point out to people that it’s no fun at all “_just_ being prosecuted”: tens of thousands of dollars for bail, as much for legal fees, possible loss of job, and so forth. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [November 30, 2006, 3:53pm UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/14 "2006-11-30T15:53:15Z")
[QUOTE=Crafter\_Man] Lets say you shot someone in self-defense. In order for the shooting to be judged legal, each the following must be true: 1. You believed your life (or the life of a family member) was in grave danger. 2. You did not instigate the situation. 3. You did not elevate the situation. 4. You were unable to safely retreat from the threat (a.k.a. “duty to retreat”). You must be able to prove each of the above in court of law. If the jury believes one of these was _not_ true, you’re toast. Some states have a “stand your ground” law. In these states, there is no duty to retreat (i.e. you do _not_ need to prove #4). But you must still prove #1, #2, and #3. [/QUOTE] I find that surprising. I’ve always heard in most states it doesn’t have to be a life or death situation, that you can also use lethal force to defend yourself from severe bodily harm. Under that criteria wouldn’t it ostensibly be required to convict a woman who shoots someone trying to rape her? Especially if there’s some element which suggests the man did not have any intentions of killing? ---
**Author:** ![Bobotheoptimist](https://avatars.discourse-cdn.com/v4/letter/b/919ad9/32.png) [@Bobotheoptimist](https://boards.straightdope.com/u/Bobotheoptimist)\ **Post date:** [November 30, 2006, 4:47pm UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/15 "2006-11-30T16:47:24Z")
[QUOTE=Martin Hyde] I find that surprising. I’ve always heard in most states it doesn’t have to be a life or death situation, that you can also use lethal force to defend yourself from severe bodily harm. [/QUOTE] Laws vary from state to state. Too much to quote just in one section for [Colorado](http://198.187.128.12/colorado/lpext.dll/Infobase4/2abee/2ac15/2b311/2b312?f=templates&fn=fs-main-doc.htm&q=18-1-701&x=Advanced&2.0#LPHit1) > [@](#): > > (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using **physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force** by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. > > (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: > > (c)The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, **sexual assault** as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203. (all bolding mine) and, to the OP, see [here](http://198.187.128.12/colorado/lpext.dll/Infobase4/2abee/2ac15/2b311/2b312?f=templates&fn=fs-main-doc.htm&q=18-1-701&x=Advanced&2.0#LPHit1) > [@](#): > > (2) Notwithstanding the provisions of section 18-1-704, any \*\*occupant \*\*of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the \*\*occupant \*\*has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the \*\*occupant \*\*reasonably believes that such other person might use any physical force, no matter how slight, against any **occupant**. Seems to me, that “occupant” is important. Unless you have a good reason to believe your neighbor is about to be assaulted, kidnapped, or raped, shooting someone breaking into another persons dwelling is bad, m’kay? Of course, there are probably a minimum of 49 other laws in the US concerning this, and IANAL, some restrictions apply, offer void in Cambodia, etc. et al. Oh, and - > [@](#): > > One cannot instantly kill in defense of property. While a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot instantly carry his defense to the extent of killing the aggressor. If no other way is open, he must yield and get himself righted by resort to the law. Bush v. People, 10 Colo. 566, 16 P. 290 (1887) (decided under G. S. § 721). ---
**Author:** ![anson2995](https://avatars.discourse-cdn.com/v4/letter/a/c77e96/32.png) [@anson2995](https://boards.straightdope.com/u/anson2995)\ **Post date:** [November 30, 2006, 6:18pm UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/16 "2006-11-30T18:18:08Z")
[QUOTE=DrDeth] I want to point out to people that it’s no fun at all “_just_ being prosecuted”: tens of thousands of dollars for bail, as much for legal fees, possible loss of job, and so forth. [/QUOTE] So I guess that I should point out that being shot and killed is no fun at all, either: the bleeding to death and the dying at 16, and so forth. The guy shot a kid who did nothing more than ring his door bell, then went back inside his house while the kid bled to death in his front yard. And your comment is about how being brought to trial was an inconvenience for him? :rolleyes: The underlying question with regards to the OP is when you can justify using force against a suspected intruder. This case in Baton Rouge really wasn’t about that, since the victim wasn’t an intruder and there was no reason to suspect he posed any kind of threat or was attempting to commit any type of crime – as the shooter himself acknowledged at trial. (In fact, Hattori and his friend had returned to their car before the homeowner emerged from his house and fired his laser-sighted handgun). ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 30, 2006, 6:46pm UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/17 "2006-11-30T18:46:08Z")
[QUOTE=anson2995] So I guess that I should point out that being shot and killed is no fun at all, either: the bleeding to death and the dying at 16, and so forth. The guy shot a kid who did nothing more than ring his door bell, then went back inside his house while the kid bled to death in his front yard. And your comment is about how being brought to trial was an inconvenience for him? :rolleyes: The underlying question with regards to the OP is when you can justify using force against a suspected intruder. This case in Baton Rouge really wasn’t about that, since the victim wasn’t an intruder and there was no reason to suspect he posed any kind of threat or was attempting to commit any type of crime – as the shooter himself acknowledged at trial. (In fact, Hattori and his friend had returned to their car before the homeowner emerged from his house and fired his laser-sighted handgun). [/QUOTE] As you said “The underlying question with regards to the OP is when you can justify using force against a suspected intruder. This case in Baton Rouge really wasn’t about that”, in fact, my post did not in any way shape or form discuss or mention the “case in baton rouge”, and I fact I hadn’t even clicked on the link. This is GQ, not GQ, I was answering a **Q** uestion posited by the OP, not **D** ebating the morality of taking another life. ---
**Author:** ![anson2995](https://avatars.discourse-cdn.com/v4/letter/a/c77e96/32.png) [@anson2995](https://boards.straightdope.com/u/anson2995)\ **Post date:** [December 1, 2006, 1:57am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/18 "2006-12-01T01:57:22Z")
My fault, **DrDeth**. I thought you were replying to **Oakminister** ’s comment on the case. I apologize for my mischaracterization. Your point, I think, was that people can be prosecuted in these types of cases even when it’s reasonably clear that they were acting in self-defense. Mine was that they can be acquitted, even when it’s clear they were not. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [December 1, 2006, 2:51am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/19 "2006-12-01T02:51:16Z")
Colorado Revised Statutes §18-1-704.5 (2002): > [@](#): > > The general assembly hereby recognizes that the citizens of Colorado have a right to expect _absolute safety_ within their homes. Emphasis added. ---
**Author:** ![BrandonR](https://avatars.discourse-cdn.com/v4/letter/b/779978/32.png) [@BrandonR](https://boards.straightdope.com/u/BrandonR)\ **Post date:** [December 1, 2006, 3:46am UTC](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298/20 "2006-12-01T03:46:34Z")
On a related topic, can you claim self defense if you shoot someone who’s trying to rob you? Your life wouldn’t technically be in danger I suppose if they really just wanted your stuff and then left… [Next page](https://boards.straightdope.com/t/if-you-shoot-a-person-you-mistakenly-thought-was-breaking-in-can-you-be-prosceuted/382298.md?page=2)