T Nation

Deadly Force


#1

In a nutshell, this article in today's New Hampshire Union Leader (New Hampshire's largest daily paper) contains a good summary of the general rule for justifiable application of deadly force. It also shows that some states use good sense when both writing and enforcing their laws:

Sep 23, 6:37 PM EDT

Rochester man who shot home intruder won't face charges

CONCORD, N.H. (AP) -- A Rochester man who fatally shot a home intruder was justified in using deadly force and won't face criminal charges, the attorney general's office said on Friday.

Geoffrey Hamann, 28, killed Bryan Gaedtke, 21, with a single shot to the chest early on the morning of Sept. 15. Gaedtke - naked, climbing the roof of the Hamann house and holding a tube of lubricant - had tried to break into other houses and ignored repeated warnings from Hamann to leave when the shooting happened, authorities said.

Police believe Gaedtke had been drinking and may have used drugs that night.

Hamann first spotted a man on his property around 1:45 a.m. and shouted at him to leave. When he was ignored, Hamann flashed an unloaded gun. But the intruder kept climbing, shouting, "I'm coming in to get you," according to the attorney general.

Hamann then loaded his gun and went downstairs to check on his five-year-old child. His wife, Jocelynn, had already gone to be with their 1-year-old.

When Hamann came back upstairs, he found Gaedtke in the hallway, headed toward the 1-year-old's bedroom.

"Mr. Hamann could see that his wife and child were still in the bedroom and so he was scared for his family," according the attorney general. Hamann then fired his gun once, killing Gaedtke.

Authorities concluded from their investigation that Hamann reasonably feared the intruder would harm him and his family. The two did not know each other, police said.

Gaedtke had had brushes with the law, including charges in Durham District Court for simple assault, criminal trespassing, criminal mischief and operating after suspension. He had his license revoked in 2003 for driving while intoxicated.

According to state law, a person can use deadly force when he reasonably believes another person is about to use deadly force against him. The law says a person must retreat from an encounter involving deadly force unless he is confronted within his own home or property.

http://www.gencourt.state.nh.us/rsa/html/LXII/627/627-4.htm


#2

This is a great story. This guy was completely justified in doing what he did. I would have done the same. Thanks for the article.


#3

Sounds reasonable to me. He was naked, carrying a tube of lubricant and heading for his child's bedroom?? Seems cut and dry to me, but unfortunately not every case works out that way. Hell, I admire him for showing enough restraint to actually wave an unloaded gun at the man, if that is what happened.


#4

Thats good , defend your family; i wouldnt let a guy on drugs carrying tubes of lubricant or anyone to break in. The means justify the ends...im seriously waiting for any liberals to say i shouldn't LOL


#5

The whole retreat issue is crap.
You should be able to stand your ground, as retreating can give your attacker more initiative, and set up a bad mindset in you for aggressive action.
Go away and leave me(us) alone should be enough of a precursor to a round in the head of a thug or nut job.


#6

Loose:

You know what's so bad about these laws?

Most likely this intruder HAD to a) come into the interior of the homeowners house and b) almost be right in his families face before the Law would have supported him...

I'm afraid that if he would have shot him while the guy was naked and threatening on his roof, that it would have been a different legal outcome...

Mufasa


#7

It's almost like WWHCD?

Inspector Callahan:
Well, when i see naked, full grown man chasing a woman with intent to rape, I shoot the bastard. That's my policy.

Mayor:
Intent? How did you establish that?

Inspector Callahan:
When a naked man is chasing a woman through an alley with a butcher knife and a hard on, I figure he isn't out collecting for the Red Cross.

For those who don't know, that's "Dirty" Harry Callahan.


#8

Seems like a completely justifiable use of deadly force. Thanks for the article.

-and btw I'm an adamant liberal with a CCW license who's glad to live in Florida.


#9

If he had shot him on the roof, the prosecutor might have had a harder time deciding whether the homeowner was justified in shooting the guy. But I'm not so sure. The statute provides protection for other situations outside the home. The New Hampshire statute, RSA 627:4, says in relevant part:

"II. A person is justified in using deadly force upon another person when he reasonably believes that such other person:
(a) Is about to use unlawful, deadly force against the actor or a third person;
(b) Is likely to use any unlawful force against a person present while committing or attempting to commit a burglary;
(c) Is committing or about to commit kidnapping or a forcible sex offense; or
(d) Is likely to use any unlawful force in the commission of a felony against the actor within such actor's dwelling or its curtilage."

I think that in light of the unique facts of this case, the homeowner is protected under a couple of sub-paragraphs of the New Hampshire statute. In addition to (d), I'd say that (b) and (c) apply. The facts are strongly in the homeowner's favor to support a "reasonable belief" that this naked guy with lube in hand yelling "I'm going to get you" was about to break into the house and use unlawful force to commit a forcible sex act on a person therein.

Even with (d), maybe the roof is considered within the curtilage of the dwelling. I looked up curtilage because I'd never seen the word before and I don't know what it means. Curtilage is defined as, "[t]he land or yard adjoining a house, usually within an enclosure." Black's Law Dictionary 389 (7th ed. 1999). So I think in New Hampshire at least, if he shot him on the roof, the homeowner would have been justified.

Other states aren't so friendly to the homeowner. In Massachusetts, the statute is limited to "within the dwelling". MGL Ch. 278 states:

"Section 8A. In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.

Furthermore, given the wording of the statute in Massachusetts I think the homeowner would have been charged with homicide. Then it would have been up to him to defend against the charge.

So, Mufasa, I think in some states you are right (for example, Massachusetts), but wrong as far as New Hampshire.

"Live Free or Die: Death is not the worst of evils."

Tool


#10

Thanks, Loose!

That's what I thought...that some states laws were just lousy...

I think we've ALL heard the horror stories of the homeowner, buisness owner and/or individual who was violated twice by defending their person, home or buisness; first by the perpetrator...then by the legal system.

Mufasa


#11

Perfectly justified in my opinion.

  1. More then adequate warning.
  2. Homeowner did not pursue his
    attacker.
  3. Feared for his life and that of his
    family.

In some of the more "enlightned" states in the NE such as NJ the outcome would have been a little different.

In NJ, depending on the county, the prosecutor would have automatically filed charges regardless of the apparent facts. Therefore the homeowner is going to pay thousands to "prove" his justification.

Again, depending on the county, in NJ it woudld be perfectly plausible, to have the prosecutor claim the homeowner had adequate time to leave his home with his family and leave the area. In fact the duty to retreat laws in NJ would require it. Additionally God help the homeowner if he used hollow point bullet or modified his weapon in any way such as a trigger job. This would "show" he was looking to kill not deter.

Even if he wasn't indicted, if he did not have a valid firearms ID card (such as a new resident) he would be charged with unlawful posession.

I took my civilian firearms training in NH at the Lethal Force institute many years ago. They have right attitude on self defense in NH.


#12

I always thought that if the person is on the other's property, and is not leaving after being told to leave, there is justification for the shooting.

If someone's in a possition to harm my family or myself, I should be able to take the fastest/easiest means of stopping the person from continuing his/her action, even if that means taking the person by surprise from behing to get the upper hand on stopping him/her.


#13

Lethal Force Institute (LFI) is a good school. It's considered a bit more hardcore that the other nationally known "school" in New Hampshire - SIGArms Academy.

The director of LFI, Massad Ayood, wrote one of the seminal books on handguns and self defense, "In The Gravest Extreme." I'd recommend it to everyone who owns a gun and is contemplating using it to protect himself or others.


As the name of the book suggests, deadly force is only to be used in the "gravest extreme". You are not justified in shooting someone because they are trespassing on your property. The accepted definition of the justifiable use of deadly force is an immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent. There must clearly be no hope of escaping an attack safely, and the attacker must fulfill three conditions to justify a lethal force on the victim's part:
1. ABILITY - The attacker must have the power to kill or cause crippling injury, or to be advantaged with a disparity of force or a disparity of skill,
2. OPPORTUNITY - The attacker must be capable of employing bodily harm immediately. He must be within range.
3. JEOPARDY - The perpetrator must be acting in such a manner that a reasonably prudent person would assume he intended to attack.


#14

Loose

You are exactly right.

That's a good book for anyone to read and good advice to follow.


#15

While I may have done the same thing under those conditions, keep in mind that the victims family may still launch a civil suit. And with our very disturbing (civil) legal system actually win a large sum of money from the home owner.

Again, you must protect your family first, but I have a feeling that the home owners legal problems are just beginning!


#16

You're right that his troubles may be just beginning. Civil liability and criminal liability are two totally different animals. The OJ trials are a good example. OJ was acquitted of criminal liability and found liable in the civil suit filed by the parents of the decedents.

Having adequate homeowner insurance is essential to keep from going bankrupt. If you have homeowner/renter's insurance it may provide coverage for the civil suit. Even if there is a possibility of coverage your insurance company should appoint an attorney to defend you (free of charge) in the civil suit. Then the burden is on the insurance company to prove that coverage is excluded. Typically homeowner policies contain an exclusion for harm that is "expected or intended". Intentionally shooting someone would be "expected and intended" harm. But often there is a self defense exception to the exclusion. The burden is then on the homeowner to prove the exception to the exclusion.

I just checked my policy. I don't see the exception. I think I need an umbrella liabilty policy. Umbrella liability policies typically provide $1 million in coverage and broader (hence umbrella) coverage than homeowner policies. Bill Clinton relied on his umbrella policy to fund the defense of Paula Jones' suit. Also, according to Slate, the parents of the Columbine killers relied on their umbrella policy to fund a settlement with the victims. But that's a bit different and the title of the Slate article is misleading. The parents of the killers were allegedly negligent supervision of their kids, not murder as title suggests. But the message is the same: make sure you have insurance that can pay for your defense.

http://www.slate.com/id/1007564


#17

Yeah but that's Dirty Harry before Bridges of Madison County and Million Dollar Baby.


#18

Good thing that guy isn't living in a liberal feel-good area of California. But wouldn't you think that the yankees would be just as unapproving of robbery than us southern texans?


#19

From Naked Gun:

Mayor: Now Drebin, I don't want any trouble like you had on the South Side like last year, that's my policy.

Frank: Well, when I see five weirdos dressed in togas, stabbing a man in the middle of the park in front of a full view of 100 people, I shoot the bastards, that's my policy.

Mayor: That was a Shakesphere In The Park Production of Julius Caesar, you moron! You killed five actors! Good ones!


#20

LMAO