Serious incident and in need of advice

[Skillet]

Stay safe. This too shall pass

[Fly Rod]

Originally Posted by Atticus

No offense, Dan, but I don't think that's good legal advice. "Pre-meditated" implies that you set out to kill someone. Defending yourself in anything but an altercation you instigate is not "pre-meditated" homicide. That fact of the matter, bigbertha, is you need to do what you need to do to protect yourself while remaining as passive as possible. Avoid all confrontation. Don't take risks about when and where you walk. At the same time, if someone brings the threat to you, you are fully within your rights to neutralize that threat. A dead threat is a neutralized threat. A wounded threat is not. I am not specifically familiar with New York state law, but as a general matter, you can use whatever force is necessary to defend yourself when you are in imminent danger of bodily harm. It makes people uneasy to think that there are no "bright-line" rules about this stuff, but that's the way it is. Self-defense scenarios, just like the underlying threats themselves, must be evaluated on a case-by-case basis. If you lay in wait on your property line and kill someone who crosses a boundary, you're in deep shit. If you kill someone who has come into your home to harm you, you're probably fine. I say that with the caveat that often there is a requirement that you do everything reasonably possible to flee from the danger, but if you cannot, and they are there, and you make up your mind that it will be either you (or your wife) or them, do what you have to do. Better to be judged by 12 than carried by six. And remember, OJ went free. You probably will not be tried for anything, any way.

Good luck pal. If you want a gun, get one you feel comfortable using, and which will be lethal if employed in self-defense. If you are in danger, do not be afraid to defend yourself. Clear your mind of everything else.

Atticus,

In OR under self defense rules you can use lethal self defence if you are threatened with lethal force, or what can be construed as lethal force. Once you have eliminated the potential for lethal force you can no longer use lethal force. In other words, If a guy comes at you with a baseball bat and you blow his arm off then the threat is technically neutralized. If you follow up with a shot to the chest and kill them you run the risk of being found guilty of use of excesive force. Of course if there are no witnesses who is to say exactly what happened. But if little brother is in the forest watching and you put the coup de gras on a scumbag you are fucked. So, if you are faced with a lethal threat you shoot to kill until the threat is neutralized. There is a very fine line there that a scumbag attourney will try to prove you crossed.

I have no idea how the state of NY feels about this.

[Atticus]

Originally Posted by Fly Rod

Atticus,

In OR under self defense rules you can use lethal self defence if you are threatened with lethal force, or what can be construed as lethal force. Once you have eliminated the potential for lethal force you can no longer use lethal force. In other words, If a guy comes at you with a baseball bat and you blow his arm off then the threat is technically neutralized. If you follow up with a shot to the chest and kill them you run the risk of being found guilty of use of excesive force. Of course if there are no witnesses who is to say exactly what happened. But if little brother is in the forest watching and you put the coup de gras on a scumbag you are fucked. So, if you are faced with a lethal threat you shoot to kill until the threat is neutralized. There is a very fine line there that a scumbag attourney will try to prove you crossed.

I have no idea how the state of NY feels about this.

That is a pretty general rule.

[cruiserdan]

Originally Posted by Atticus

No offense, Dan, but I don't think that's good legal advice.

Jay my thought-process (aparently flawed) was that the use of, let's say, 00 buckshot versus "birdshot" could possibly imply that the user intended to kill someone as opposed to "grabbing a gun to defend himself".

My limited experience with defense lawyers and the tactics employed by the same lead me to that conclusion.

[Atticus]

Originally Posted by cruiserdan

Jay my thought-process (aparently flawed) was that the use of, let's say, 00 buckshot versus "birdshot" could possibly imply that the user intended to kill someone as opposed to "grabbing a gun to defend himself".

My limited experience with defense lawyers and the tactics employed by the same lead me to that conclusion.

I understand what you're saying, and I think it's a reasonable thing to think. However, you've got to remember that a gun is a potentially lethal weapon, and once you've decided to use one, it's pretty much "in for a penny, in for a pound," meaning that you've decided to shoot someone with a gun. The result is that they may die. Once you've gone that far, there's not logical distinction in my mind as to what size shot you're using. You're defending yourself from imminent, potentially fatal, bodily harm. If the assailant dies, so be it.

[flintknapper]

I strongly suggest he visit the links I provided in post #12.

All of the self defense advice given here...although well meaning...is probably inconsistent with at least some parts of State law in NY.

If NY is a state without a "castle doctrine" then he may very well have a "duty to retreat" (if possible) before employing deadly force.

I wouldn't give out any advice here...that wasn't of a "general" nature. The law varies widely from state to state...but can be looked up by anyone willing to spend the time.

Handgunlaw.us

[Atticus]

Originally Posted by flintknapper

I strongly suggest he visit the links I provided in post #12.

All of the self defense advice given here...although well meaning...is probably inconsistent with at least some parts of State law in NY.

If NY is a state without a "castle doctrine" then he may very well have a "duty to retreat" (if possible) before employing deadly force.

I wouldn't give out any advice here...that wasn't of a "general" nature. The law varies widely from state to state...but can be looked up by anyone willing to spend the time.

Handgunlaw.us

Originally Posted by Atticus

If you kill someone who has come into your home to harm you, you're probably fine. I say that with the caveat that often there is a requirement that you do everything reasonably possible to flee from the danger, but if you cannot, and they are there, and you make up your mind that it will be either you (or your wife) or them, do what you have to do.

.....


Edit: According to New York Penal Law Section 35.15, a person is under no duty to retreat "if he or she is...in his or her dwelling and not the initial aggressor," and may employ the use of deadly physical force when he or she reasonably believes that the assailant is about to use deadly physical force. I think that threatening to kill him and his wife, followed by breaking into this home, would constitute a reasonable belief that imminent deadly force is about to be visited upon him. I haven't researched this issue, and do not have a license to practice law in New York, so I will remind everyone that I was speaking generally (which I already mentioned in my initial post on the subject).

[flintknapper]

Originally Posted by Atticus

.....


Edit: According to New York Penal Law Section 35.15, a person is under no duty to retreat "if he or she is...in his or her dwelling and not the initial aggressor," and may employ the use of deadly physical force when he or she reasonably believes that the assailant is about to use deadly physical force. I think that threatening to kill him and his wife, followed by breaking into this home, would constitute a reasonable belief that imminent deadly force is about to be visited upon him. I haven't researched this issue, and do not have a license to practice law in New York, so I will remind everyone that I was speaking generally (which I already mentioned in my initial post on the subject).

This only speaks to defense within one's own home. Much of this persons concern revolves around protection on "the property".

In Texas, they would be fine. Our Castle Doctrine extends the "right" to stand your ground to "anywhere you have a legal right to be".

This is probably not the case in NY State.

The best advice these people can receive from "Mud" is to contact an attorney in their own state..and educate themselves about the laws that apply there.

[Bogo]

Originally Posted by Atticus

.....


Edit: According to New York Penal Law Section 35.15, a person is under no duty to retreat "if he or she is...in his or her dwelling and not the initial aggressor," and may employ the use of deadly physical force when he or she reasonably believes that the assailant is about to use deadly physical force. I think that threatening to kill him and his wife, followed by breaking into this home, would constitute a reasonable belief that imminent deadly force is about to be visited upon him. I haven't researched this issue, and do not have a license to practice law in New York, so I will remind everyone that I was speaking generally (which I already mentioned in my initial post on the subject).

Somebody with case law access needs to look up actual cases and their outcomes in your judicial jurisdiction. Only then will you have a good idea as to the boundaries.

[Atticus]

It's always a good idea to contact a lawyer licensed to practice in your jurisdiction if you have a legal question. In the meantime, it is my non-legal advice to the original poster that he should concentrate on doing what is necessary to protect himself and his wife. If others want to discuss ancillary legal issues, we can start a new thread.

Good luck, bigbertha.

[flintknapper]

Originally Posted by Atticus

It's always a good idea to contact a lawyer licensed to practice in your jurisdiction if you have a legal question. In the meantime, it is my non-legal advice to the original poster that he should concentrate on doing what is necessary to protect himself and his wife. If others want to discuss ancillary legal issues, we can start a new thread.

Good luck, bigbertha.

I did find this, but as I said earlier...he simply needs to contact a lawyer or take a Concealed Handgun course..where it will all be discussed.

New York does not allow the use of deadly force if one knows that one can, with complete safety to oneself and others, avoid the necessity to use deadly force by retreating. N.Y. Penal Law  35.15.2(a). There is no duty to retreat in New York in one's dwelling. Id.  35.15.2(a). The "duty to retreat" can be broken down into four elements. Even when otherwise justified, one may not use deadly force if: 1) one knows, 2) that one can avoid the necessity of using deadly force, 3) with complete safety to oneself and others, 4) by retreating. If all four elements are present, the person must retreat rather than use deadly force.

[Atticus]

Originally Posted by flintknapper

I did find this, but as I said earlier...he simply needs to contact a lawyer or take a Concealed Handgun course..where it will all be discussed.

Okay.

[informationjunky]

whats the old saying...."I rather be judged by 12 than carried by 6"?

[Skillet]

Originally Posted by Atticus

No offense, Dan, but I don't think that's good legal advice. "Pre-meditated" implies that you set out to kill someone. Defending yourself in anything but an altercation you instigate is not "pre-meditated" homicide. That fact of the matter, bigbertha, is you need to do what you need to do to protect yourself while remaining as passive as possible. Avoid all confrontation. Don't take risks about when and where you walk. At the same time, if someone brings the threat to you, you are fully within your rights to neutralize that threat. A dead threat is a neutralized threat. A wounded threat is not. I am not specifically familiar with New York state law, but as a general matter, you can use whatever force is necessary to defend yourself when you are in imminent danger of bodily harm. It makes people uneasy to think that there are no "bright-line" rules about this stuff, but that's the way it is. Self-defense scenarios, just like the underlying threats themselves, must be evaluated on a case-by-case basis. If you lay in wait on your property line and kill someone who crosses a boundary, you're in deep shit. If you kill someone who has come into your home to harm you, you're probably fine. I say that with the caveat that often there is a requirement that you do everything reasonably possible to flee from the danger, but if you cannot, and they are there, and you make up your mind that it will be either you (or your wife) or them, do what you have to do. Better to be judged by 12 than carried by six. And remember, OJ went free. You probably will not be tried for anything, any way.

Good luck pal. If you want a gun, get one you feel comfortable using, and which will be lethal if employed in self-defense. If you are in danger, do not be afraid to defend yourself. Clear your mind of everything else.

Originally Posted by informationjunky

whats the old saying...."I rather be judged by 12 than carried by 6"?

Old saying by Mr. Finch.