“Imminent Likelihood of Death or Great Bodily Injury”Steven Lieberman
Imminent likelihood of death or great bodily injury.
On Christmas day an event took place in the town I grew up in.
A burglar, or a vandal, or a murderer, or mentally unstable individual… You take your pick… decided to alter the lives of a family forever.
Fortunately, no one died during this event, but the legal ramifications could be devastating.
The story has been reported as follows:
Bad guy targets a home for invasion, but is unsuccessful in entering.
Bad guy returns later, and through an open door, (the owner had left it open while he went to his car) bad guy makes entry.
Bad guy attacks homeowner with a wrench.
Homeowner retreats deeper into home and retrieves a shotgun.
Bad guy chases homeowner until he sees the shotgun and immediately makes a 180 degree turn and tries to flee.
Homeowner shoots at bad guy and wounds him.
Bad guy escapes from the house and is eventually apprehended.
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Let us take the facts as they have been presented.
Most people know that if someone who is unauthorized gains entry to your home there is a presumption that they are there to use deadly force against you. Therefore the use of deadly force against them is justified.
Folks… that is not a license… it is only a presumption.
Presumptions can also be rebutted with empirical evidence.
You are NEVER NEVER NEVER allowed to use deadly force for the protection of property.
Armored car employees don’t carry guns to protect the money they are transporting.
They are carrying guns to protect themselves against people that would try to kill them in order to take that money.
If someone is in your house and making their way towards you and you use deadly force against them the presumption will probably hold and not be rebutted.
However…. if you shoot them while they are making their way to your front door, carrying your big screen TV the evidence of their movement, the broken TV, and the shots in their back will be enough evidence to rebut the presumption that you were in imminent fear for your life.
In our case at hand…. again, as the facts have been presented… it would seem to suggest that the homeowner was not in fear for his life: he shot the suspect as he was fleeing.
With the suspect in full retreat, the “imminence” element to the law does not exist and we have an unjustified use of deadly force.
Now… there could easily be reasons not articulated why the homeowner still felt threatened: The suspect was not leaving, he was merely heading towards cover, he was moving towards rooms where other family members were hiding, and the homeowner felt the suspect would put those loved ones in danger…. or the biggie: Situational Amnesia… the homeowner simply has gotten the facts wrong. Not that he remembers them incorrectly, rather the stress of the event has altered his perception of them.
Could the statements that he made to the newspaper be used against him in court?
Should he have refrained from making those statements?
Will those statements damn him to an indictment and a conviction?
Not necessarily, but it does potentially complicate matters.
It will be interesting to see how this case plays out. The homeowner is clearly a sympathetic character, and the suspect is,… well… kinda the reason people own guns for self defense in the fist place.
Will public opinion effect a decision to prosecute?
Again,…. we shall see.