I’m going to swerve this conversation to try to get it’s heading back on target here by just a bit:
Here’s the thing that bugs me(Relates to Canadian laws, maybe someone can help me with the specifics or it’s relative similarities to laws in various states)
-The person who knows criminal law other than a lawyer is usually the criminal. Sometimes (not always) better than the police officer.
-A person breaks into a home (henceforth called “Burglar”) with the knowledge that the homeowner has a very nice home entertainment system.
-The Burglar is unaware of status of the homeowner or wether they have a firearm… but then again, does not care.
-Burglar makes his way into the living room with his bag and starts unwiring the system quietly and quickly
-The homeowner (also a gunowner, henceforth called “Owner”) wakes up in the middle of the night because (s)he’s thirsty and shuffles towards the kitchen
-Owner comes across Burglar red handed and for a second, there’s a pause
NOW…
Burglar has no weapon, but is very much doing something wrong.
Owner has a weapon in the house, but his life is not in immediate danger.
Could Burglar state out loud “I’m just here for the stereo, nothing else” and then proceed to continue wrapping up the speakers and DVD player?
Owner could get his firearm and threaten Burglar with it, but wouldn’t it be an empty threat?
Burglar knows that the response time for the cops gives him a good ten-minute head start, and he’s genuinely not interested in harming anyone.
Because Owner outguns (!) Burglar, it can’t be considered a “fair fight”. Owner could phone the police and point a gun at Burglar, but logically Burglar knows that Owner cannot fire if his life is not in immediate danger.
What can Owner do?
a)suspend Burglar with firearm in empty threats of “Don’t move or I’ll shoot”? Knowing that he cannot fire even if the Burglar runs away (empty-handed or not)
b)suspend Burglar with duct tape, but realizing that Owner is 5’5" and 150lbs while Burglar is 6’2" and 190lbs, this could not be an option (and hence why Burglar picked this place in the first place)
c)let Burglar go with the Home Entertainment system that will take months to replace (and once replaced, will become a target for Burglar to do it all again), chancing with the police and their wonderful track record of recovering stolen items and their possessors.
Who is the winner in this situation?
Now let’s make a modification or two:
1)Burglar enters home with attitude and foresight (knows his rights)
2)Owner stubles toward kitchen.
3)Burglar is spotted.
4)Burglar jumps Owner to restrain them with duct tape
5)Owner restrained
6)Burglar continues on their merry way
or…
1)Burglar enters home with attitude and foresight (knows his rights)
2)Owner stubles toward kitchen armed with gun.
3)Burglar is spotted.
4)Owner states “I have a gun”
5)Burglar states “I have no weapon, I’m not here to hurt you, I just want the stereo. I’ll be about two minutes, then I’m gone.”
6)Burglar continues on their merry way
hmm, well… let’s do this now…
4)Burglar jumps Owner to restrain him with duct tape
5)Owner retreats to bedroom and grabs handgun
6)Burglar, being right on Owner’s heels manages to get on top of Owner before he has a chance to load/cock/aim gun.
7)Burglar restrains Owner
8)Burglar pockets gun and continues on their merry way
Uh oh… let’s go back a bit…
1)Burglar enters with attitude and foresight
2)Owner hears something in the living room (is alone in house, no pets: THINKS something is wrong)
3)Burglar continues burgling
4)Owner listens, now KNOWS something is wrong
5)Owner pulls out gun, loads/cocks/unsafeties
<What CAN the owner do now?>
6)Owner quietly shuffles out to the living room, gun in hand
7)Burglar notices Owner
8)Owner (by definition of law) must say “I have a gun”
9)Burglar jumps Owner to restrain him. Owner only gets out “I have a-WAUGH!”
IF the gun goes off and the Burglar is injured but lives, IIRC, the Owner can be criminally prosecuted for firing without warning, or using a firearm in what could be considered a hand-to-hand fight (unfair). According to Canadian law (IIRC-please somebody chime in with the right and wrong in this), if the Burglar (or ANYbody) came at you with a baseball bat, you still could not use a firearm to defend yourself, because that’s no longer considered defense.
IF the gun doesn’t go off, because the owner is aware of the laws and knows he cannot take a life without justification (warning, mortal threat), he is then restrained by Burglar, who now takes the gun out of Owner’s hand.
Burglar, now aware that the laws that are made to protect the individual do not apply to his situation because he is, in fact, a law-breaker. Kills the Owner with his own gun thereby making it considerably harder for him to get caught (no witnesses). Runs off with stereo, gun (or maybe leaves it behind) and pretty good chance of getting away with it.
Who’s the winner here?
Like I said, If my understanding of the laws is wrong, please educate me, but this is what I was taught in an introductory law course way back when. I was stunned to read about all this and my understanding was that, in all cases, it seemed that the laws were made to protect the burglar.
IF the burglar went in with a recording device and a bulletproof vest (just in case of jumpy gunowner), he might just be able to make it.
The burglar could very well be guilty of B&E, theft/burglary, maybe even assault, rape or murder. But what difference is it when he gets to walk away?
The police can’t do anything unless something illegal occurs. (Must be caught in the act or after the act is done)
The police constantly declare that only THEY have the right (due to training) to pick when to fire and when not to, limited by their own rules (they cannot fire on an unarmed person either).
If I understand the laws and rules correctly, it seems to me that the best way to deal with a home invasion situation is to
1)Kill the invader (warning or no, who’s going to say)
2)Clean up the house very quickly
3)Dispose of the body (Lime, river & cement, whatever)
4)Make no mention of the event to anyone (not law enforcement, not the media, not the family or friends)
I mean, I hope the laws are better than that, but I cannot believe that a textbook situation occurs (complete with warnings and retreats) normally in home invasion situations. And many times it’s the Owner who gets shafted by the courts by dealing with a situation that he didn’t invite.
Tell me I’m wrong, please!