# Should this man be charged with a crime? **URL:** \ **Category:** Great Debates\ **Created:** [October 10, 2009, 9:04pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342 "2009-10-10T21:04:35Z")\ **Posts on this page:** 14\ **Page:** 4
**Author:** ![PrayerieGirl](https://avatars.discourse-cdn.com/v4/letter/p/a88e4f/32.png) [@PrayerieGirl](https://boards.straightdope.com/u/PrayerieGirl)\ **Post date:** [October 11, 2009, 10:49pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/61 "2009-10-11T22:49:39Z")
> [@toadspittle](#): > > You’re speaking as though he was at peak control of his faculties, and had perfect information of the situation. > > But this is a reality of the gun-for-home-defense issue: People ARE fallible. Their senses and judgment are OFTEN impaired. And they OFTEN lack complete information of their situation. > > Every time someone wakes up, they are LIKELY to be disoriented. What’s more, there seems to be a hardwired human tendency to at first perceive any noises in the night as a threat. (A very useful thing if you’re a hominid on the African savannah; but complicated if you live in the modern world, and are armed with a gun.) Gun owners (and gun laws) should take this reality into account. > > Just like with traffic safety: Yes, if you KNEW a pedestrian was going to be crossing that dark street up ahead, you wouldn’t have intentionally run into them; it’s just that you couldn’t see them in the dark. That’s why you tell drivers to go slowly enough under poor visibility that they will be able to stop within the distance delineated by their headlights. Likewise, if you KNEW that there were wet leaves ahead on that rainy day, you would have slowed down. But that’s why you tell drivers to slow down in the rain—because wet leaves are OFTEN a hazard they will encounter in such situations. > > My firearms instructor had one lesson for us that I never forget: Always keep your gun at least 3 minutes away from you. Why? Because that gives you enough time to wake up enough to know what you might be shooting at. > > I think this guy, as much as he’s torturing himself anyway over what he did, should still be charged with involuntary manslaughter. The sentencing, as it generally does, could take into account his state of mind at the time and his EXTREME remorse after the fact, and perhaps waive the most severe penalties. I was leaning towards not being charged at all, due to it being a terrible accident. But your argument is a good one and I think I agree - except not manslaughter - negligence would be a more appropriate charge I think. Either way, I wouldn’t want to be on the jury for this one. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [October 11, 2009, 10:58pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/62 "2009-10-11T22:58:46Z")
> [@Sage\_Rat](#): > > To be criminal, he had to be negligent or reckless. > > Let’s look at two examples: > > 1. He gets up and grabs his gun and starts walking down the hallway, nervous. Suddenly a shadow attacks him and he fires! > 2. He gets up and grabs his gun and starts walking down the hallway, nervous. A shadow moves, he points his gun and fires. > > In the first example, he is innocent. He had reason to have his weapon out and drawn, and any reasonable person would fire if suddenly a shadow seemed to lunge at them. But in the second example, he is potentially guilty of manslaughter. The shadow was not attacking him, he made no attempt to identify himself or ascertain who the shadow was, he simply opened fire based on an assumption. > > The description of these two possibilities is almost identical. A minor change in wording goes from innocence to guilt. And the only evidence we have is his own description of the event. Without knowing exactly what he said, we can’t judge his guilt. Perhaps you should read the link in the OP, or watch the video clip on the same page. Then you could actually hear what he said in his 911 call. Then you would know that the word “attack” was never used. In fact, if the word “attack” has been used at all, there wouldn’t be anything to be arrested over, or debate about, would there? But then, you haven’t really been debating or discussing anything in this thread, have you? What point, if any, have you been trying to make? ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [October 11, 2009, 11:07pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/63 "2009-10-11T23:07:13Z")
> [@Frylock](#): > > Thanks for the advice. Am I certified now? Can I have my gun back? > > ETA: In other words: Fuck, I don’t know about this kind of crap. I don’t have a gun, and don’t ever plan on having one. I’m just using my imagination. Read my other posts to see what kinds of explicit assumptions I lay out about the guy’s situation. And before you fucking talk about whether I “understand a basic process” or “have any business” doing something or not, wait and find out what would fucking happen if I did go and get the proper fucking training, you judgmental fuck. And read my posts with some goddamn charity. It’s what I do and it makes me a generally happy person. Shit! You are being an _idiot_ today, **Stranger**. You usually don’t do that. You expressed an opinion on the topic based upon obtuse ignorance of both law and standard defensive tactics, and expressed the opinion that firing upon an unidentified target would be “of course” justified and appropriate. If calling out the flaw in that reasoning is being a “judgmental fuck”, I guess I’m the reigning jurist in the Court of Fornication. Stranger ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [October 11, 2009, 11:11pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/64 "2009-10-11T23:11:52Z")
> [@Stranger\_On\_A\_Train](#): > > If calling out the flaw in that reasoning is being a “judgmental fuck”, I guess I’m the reigning jurist in the Court of Fornication. > > Stranger I’m totally stealing at least part of this for a song lyric. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [October 11, 2009, 11:29pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/65 "2009-10-11T23:29:57Z")
> [@Stranger\_On\_A\_Train](#): > > You expressed an opinion on the topic based upon obtuse ignorance _Obtuse_? Ridiculous. I’m not certain you know what the word means. See next comment. > [@](#): > > of both law and standard defensive tactics, and expressed the opinion that firing upon an unidentified target would be “of course” justified and appropriate. I made that statement based on certain assumptions, which I later laid out quite explicitly. I also said later very explicitly and emphatically that I might well think differently after appropriate training. How’s that for “obtuse”? ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [October 12, 2009, 6:34pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/66 "2009-10-12T18:34:32Z")
> [@Chimera](#): > > …and while I was working **armored** , drew and displayed my weapon… So that was you! Glad I had my camera with me that day: [http://www.tentonhammer.com/system/files/images/stealth.preview.JPG](http://www.tentonhammer.com/system/files/images/stealth.preview.JPG) ---
**Author:** ![Cat\_Fight](https://avatars.discourse-cdn.com/v4/letter/c/90ced4/32.png) [@Cat\_Fight](https://boards.straightdope.com/u/Cat_Fight)\ **Post date:** [October 12, 2009, 7:46pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/67 "2009-10-12T19:46:24Z")
> [@Kobal2](#): > > What I wonder, however, is whether the guy had a fit of dementia. He thought she was in bed with him ? How does that happen ? How can one miss that the bed is empty ? And if he thought there was an intruder, why wouldn’t he try to wake up his fiancée up before he looked for his gun ? Weird story. It rubs me the wrong way, too. You hear a noise in the hallway and turning to your bed mate _isn’t_ the first thing you do? No, ‘Did you hear that?’ No, ‘You stay here, I’m going to check it out’? If he didn’t consider that the sound might have been his fiancée, he could have at least considered that she might come after him if he got up and put them both in danger. It just doesn’t sit right. ---
**Author:** ![Icarus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/icarus/32/72_2.png) [@Icarus](https://boards.straightdope.com/u/Icarus)\ **Post date:** [October 12, 2009, 10:57pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/68 "2009-10-12T22:57:50Z")
> [@Cat\_Fight](#): > > It rubs me the wrong way, too. You hear a noise in the hallway and turning to your bed mate _isn’t_ the first thing you do? No, ‘Did you hear that?’ No, ‘You stay here, I’m going to check it out’? If he didn’t consider that the sound might have been his fiancée, he could have at least considered that she might come after him if he got up and put them both in danger. It just doesn’t sit right. I have the same problem with this. With all of the discussion around it being dark, and a person waking being groggy, etc., he had the wherewithall to pick up the gun, aim in the dark, fire and hit his target! But he couldn’t be bothered to turn his head once and see if someone was in bed with him? Or call out to the “intruder”? I smell fish. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [October 13, 2009, 12:25am UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/69 "2009-10-13T00:25:40Z")
> [@Sidney Evgeni Jordan](#): > > Just out of curiosity (I really don’t know much about the question I am about to ask…), would the lesser included be criminal negligence, or something else? I don’t know what the elements of such a lesser included crime would be. Intuitively it seems easier to me to understand a lesser included offense as applicable in a case where you shoot someone but don’t actually kill them (e.g., you deliberately shot to wound in the lower leg rather than to kill). > > Also, are there any cases where a mens rea to kill can be transferred to another victim (i.e., you intended to kill person A but killed person B by accident, coupled with determination that mens rea for A is applied to B)? I’m not saying that should be the case in this example. I’m just wondering if that kind of mens rea could be found. The answer to your second paragraph is a resounding “yes”. This is a basic law school premise: If you plan on shooting Joe, but fire and miss and kill Sue, you can’t defend by stating that you never meant to kill Sue. Your premeditation is imputed to the victim. By the way, this raises another point that seem to be missed in this thread. This act is NOT involuntary manslaughter. In the dichotomy between voluntary and involuntary, the distinction lies between your intent to do the physical act, rather than the result. In this case, the man did mean to aim and fire his gun; thus, it’s voluntary (involuntary manslaughter would be, for example, when you fall asleep at the wheel and kill someone with your car. The swerving of the wheel wasn’t intended, so it was involuntary). It is the lack of malice against the victim that makes it manslaughter rather than murder\*. I spoke about this with my SO, a former Prosecutor, and she had an interesting take. Her interest was more along the lines of what punishment would be appropriate, rather than what charges would be levied (although she did agree that there would probably be an offense along the lines of “improperly brandishing a firearm” which would count as a “lesser included offense” that might engender an easy guilty plea). She said that the remorse/accident would be considered on the sentencing “score sheet”, and would probably keep him out of prison. But, she felt he did need to be on probation. If this is really a horrible accident, nothing should come from this guy being monitored. But, if this is indicative of rash/dangerous/malicious behavior, probation will put him in the system, and any further transgressions would rightly put him in lockup. (She also suggested, and I agree, that - at a minimum - he should be denied future gun rights, and really does need counseling) \*This from a poster who got a C in Crim Law, and has never practiced in that area, so this may require a grain of salt; I stand ready to be corrected. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [October 13, 2009, 12:35am UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/70 "2009-10-13T00:35:37Z")
> [@Atomicktom](#): > > She said that the remorse/accident would be considered on the sentencing “score sheet”, and would probably keep him out of prison. But, she felt he did need to be on probation. If this is really a horrible accident, nothing should come from this guy being monitored. But, if this is indicative of rash/dangerous/malicious behavior, probation will put him in the system, and any further transgressions would rightly put him in lockup. > > (She also suggested, and I agree, that - at a minimum - he should be denied future gun rights, and really does need counseling) Hey, that sounds about right to me. (Though I’d put in a way to earn back his gun rights.) -Kris ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [October 13, 2009, 3:15am UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/71 "2009-10-13T03:15:53Z")
An Intruder is not a defacto danger to someone. It was his responsibility to identify the person as dangerous which was as simple as turning on a light or shouting out a warning that he had a gun. He should be charged with negligent homicide or whatever legal term applies. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [October 13, 2009, 5:24am UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/72 "2009-10-13T05:24:51Z")
> [@Frylock](#): > > . . . , you judgmental fuck. . . . You are being an _idiot_ today,. . . . This is **Great Debates** , not the **Pit** , and you know better. This is a Warning to knock it off. [/Moderating] ---
**Author:** ![bengangmo](https://avatars.discourse-cdn.com/v4/letter/b/50afbb/32.png) [@bengangmo](https://boards.straightdope.com/u/bengangmo)\ **Post date:** [October 13, 2009, 6:13am UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/73 "2009-10-13T06:13:55Z")
> [@Frylock](#): > > If I hear a person walking down the hall at night when there’s not supposed to be anyone there, then yes, I jump to the “extreme possibility” that it’s an intruder. And if they’re willing to break into my house, it seems reasonable to assume they’re willing to do violence. How many house invasions end in violence? How many times have you personally be burgled while in the house? On the other hand, you have cited two examples whereby the “intruder” was actually harmless (ok, harmless may not be the right word, but at least harboured no ill intent. > [@Frylock](#): > > I can’t figure out how this is an extreme possibility. Footsteps. In the hall. No one’s supposed to be there. How is that _not_ to lead me naturally to conclude that someone has broken into my house? > > (Here I’m assuming a homeowner who makes sure to lock doors at night. Otherwise I’d imagine I’d need to eliminate the possibility of an honest or drunken mistake. I walked into the wrong house as a kid once, and some drunk guy walked into my house once in my college days.) > > . I can’t figure out how you could think that an intruder, that was ready to turn violent and wished you harm is anything other than an extreme possibility - just how often does this actually happen unless the burgler is in some way cornered? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 13, 2009, 1:19pm UTC](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342/74 "2009-10-13T13:19:03Z")
> [@Diogenes\_the\_Cynic](#): > > According to the Kellerman Study in the New England Journal of Medicine (New Engl J Med 1986. 314: 1557-60), Guns in the household are 43 times more likely to kill a family member, friend, or acquaintence, than to kill someone in self defense. The scenario of Joe Hero, gun owner blowing away an intruder is essentially a fantasy on a level with Penthouse Forum letters. Others have commented on how this ridiculous study has been debunked, but it is also flawed in that it only considers circumstances where someone is killed. Obviously suicide by gunshot to the head has a higher mortality rate than brandishing a firearm at an intruder, causing those type of statistics to skew horribly upward. It also includes deliberate acts of homicide against family members, which again, will be far more likely to be fatal. The study doesn’t take into consideration any type of deterrent from the mere presence of a firearm all the way up to a perp being paralyzed for life. Unless someone dies, it isn’t included in the Kellerman study. The whole study was propaganda for gun control and it is amazing that it is still being quoted twenty plus years later, and it means nothing. It would be like saying that cars are far more likely to kill their owner or the owner’s acquaintances than they are to kill a carjacker. [Previous page](https://boards.straightdope.com/t/should-this-man-be-charged-with-a-crime/513342.md?page=3)