Since John posted about the Home Depot Defender earlier, I figured I’d go ahead and check and see what, exactly, the Michigan legislature has to say about all this. Michigan’s self defense laws, passed in 2006, were modeled on Florida’s from 2005. They are primarily codified in Section 780.972 of the Michigan state code:
Act 309 of 2006
780.972 Use of deadly force by individual not engaged in commission of crime; conditions.
Sec. 2.
(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.
(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.
History: 2006, Act 309, Eff. Oct. 1, 2006
© 2009 Legislative Council, State of Michigan
They are also clarified, or further clarified in Section 780.951:
Act 311 of 2006
780.951 Individual using deadly force or force other than deadly force; presumption; definitions.
(1) Except as provided in subsection (2), it is a rebuttable presumption in a civil or criminal case that an individual who uses deadly force or force other than deadly force under section 2 of the self-defense act has an honest and reasonable belief that imminent death of, sexual assault of, or great bodily harm to himself or herself or another individual will occur if both of the following apply:
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).
(2) The presumption set forth in subsection (1) does not apply if any of the following circumstances exist:
(a) The individual against whom deadly force or force other than deadly force is used, including an owner, lessee, or titleholder, has the legal right to be in the dwelling, business premises, or vehicle and there is not an injunction for protection from domestic violence or a written pretrial supervision order, a probation order, or a parole order of no contact against that person.
(b) The individual removed or being removed from the dwelling, business premises, or occupied vehicle is a child or grandchild of, or is otherwise in the lawful custody of or under the lawful guardianship of, the individual against whom deadly force or force other than deadly force is used.
(c) The individual who uses deadly force or force other than deadly force is engaged in the commission of a crime or is using the dwelling, business premises, or occupied vehicle to further the commission of a crime.
(d) The individual against whom deadly force or force other than deadly force is used is a peace officer who has entered or is attempting to enter a dwelling, business premises, or vehicle in the performance of his or her official duties in accordance with applicable law.
(e) The individual against whom deadly force or force other than deadly force is used is the spouse or former spouse of the individual using deadly force or force other than deadly force, an individual with whom the individual using deadly force or other than deadly force has or had a dating relationship, an individual with whom the individual using deadly force or other than deadly force has had a child in common, or a resident or former resident of his or her household, and the individual using deadly force or other than deadly force has a prior history of domestic violence as the aggressor.
(3) As used in this section:
(a) “Domestic violence” means that term as defined in section 1 of 1978 PA 389, MCL 400.1501.
(b) “Business premises” means a building or other structure used for the transaction of business, including an appurtenant structure attached to that building or other structure.
(c) “Dwelling” means a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter.
(d) “Law enforcement officer of a Michigan Indian tribal police force” means a regularly employed member of a police force of a Michigan Indian tribe who is appointed pursuant to former 25 CFR 12.100 to 12.103.
(e) “Michigan Indian tribe” means a federally recognized Indian tribe that has trust lands located within this state.
(f) “Peace officer” means any of the following:
(i) A regularly employed member of a law enforcement agency authorized and established pursuant to law, including common law, who is responsible for the prevention and detection of crime and the enforcement of the general criminal laws of this state. Peace officer does not include a person serving solely because he or she occupies any other office or position.
(ii) A law enforcement officer of a Michigan Indian tribal police force.
(iii) The sergeant at arms or any assistant sergeant at arms of either house of the legislature who is commissioned as a police officer by that respective house of the legislature as provided by the legislative sergeant at arms police powers act, 2001 PA 185, MCL 4.381 to 4.382.
(iv) A law enforcement officer of a multicounty metropolitan district.
(v) A county prosecuting attorney’s investigator sworn and fully empowered by the sheriff of that county.
(vi) Until December 31, 2007, a law enforcement officer of a school district in this state that has a membership of at least 20,000 pupils and that includes in its territory a city with a population of at least 180,000 as of the most recent federal decennial census.
(vii) A fire arson investigator from a fire department within a city with a population of not less than 750,000 who is sworn and fully empowered by the city chief of police.
(viii) A security employee employed by the state pursuant to section 6c of 1935 PA 59, MCL 28.6c.
(ix) A motor carrier officer appointed pursuant to section 6d of 1935 PA 59, MCL 28.6d.
(x) A police officer or public safety officer of a community college, college, or university who is authorized by the governing board of that community college, college, or university to enforce state law and the rules and ordinances of that community college, college, or university.
(g) “Vehicle” means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.
History: 2006, Act 311, Eff. Oct. 1, 2006
© 2009 Legislative Council, State of Michigan
Adam L Silverman
Anne Laurie, if you’re checking in, I pulled Baum’s Harpers’ article and read it. Was there something you wanted to ask me about it?
JPL
It appears that the lady in the parking lot has the law on her side.
schlemazel
@JPL:
I’m not seeing where a threat of imminent rape, death or great bodily harm comes in. Of course the ammosexuals will rush to her defense but it looks to my 8th grade reading skills like she is going to be held accountable. Maybe MI should look into FLs proposed law to provide $200,000 to each shooter in a SYG case to cover the expense & trauma of the event.
Adam L Silverman
@JPL: it is going to depend on how the local prosecutor interprets the statute, followed by what the judge says, and, potentially, what a jury believes.
Dmbeaster
To make it easier for non-lawyers, the shooter is in the clear if “the individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.”
I don’t know who has the burden of proof on this in Michigan, but in Florida (which is the source of this law), the prosecution has to prove that the defense does not apply beyond a reasonable doubt. This was the issue in the Treyvon Martin case.
Which is wacky since the situation turns on the reasonable belief of the defendant. You get an argument whether it has been shown beyond a reasonable doubt that the belief was objectively unreasonable.
Adam L Silverman
@Dmbeaster: and this is where many of the problems with the law’s application have been in Florida. If there are only two parties to the confrontation and one is dead and the other is claiming stand your ground/self defense, because of the way Florida’s law is written, the presumption goes to the defender.
http://www.tampabay.com/news/publicsafety/crime/florida-stand-your-ground-law-yields-some-shocking-outcomes-depending-on/1233133
http://www.tampabay.com/news/courts/criminal/race-plays-complex-role-in-floridas-stand-your-ground-law/1233152
http://www.tampabay.com/stand-your-ground-law/
Laertes
@JPL:
Can you connect those dots for us, JPL? A plain reading of the statute suggests that it doesn’t apply to our shooter. What’s your theory?
schlemazel
@Dmbeaster:
Since the shoplifter was in a car leaving the scene I do not see how it could be suggested there was any danger of death or great bodily harm.
Iowa Old Lady
Jesus. There were other people in that parking lot. What kind of lunatic opens fire on a shoplifter? Especially since the lunatic is totally unconnected to the store? But even if she were connected, this is crazy stuff. She could have killed someone.
JPL
Maybe I’m wrong but I thought this was pretty vague..
(a) The individual against whom deadly force or force other than deadly force is used is in the process of breaking and entering a dwelling or business premises or committing home invasion or has broken and entered a dwelling or business premises or committed home invasion and is still present in the dwelling or business premises, or is unlawfully attempting to remove another individual from a dwelling, business premises, or occupied vehicle against his or her will.
(b) The individual using deadly force or force other than deadly force honestly and reasonably believes that the individual is engaging in conduct described in subdivision (a).
Laertes
With or without other people in that parking lot, how is this not attempted murder simply by virtue of the fact that she shot at the fleeing shoplifters?
Adam L Silverman
@Laertes: That’s why I posted the statute. It does not appear that there is a caveat for shooting at a fleeing suspect. Several states do have this caveat in their self defense/stand your ground/castle doctrine laws.
Laertes
@JPL:
Okay, that’s interesting. It hadn’t occurred to me that shoplifting was B&E, but a little amateur Googling suggests that in some states, under some conditions, it can be. Anyone know how it works in Michigan? Are shoplifters fleeing the scene still “in the process” of commiting B&E?
schlemazel
@JPL:
There was no break and enter so I’d argue she missed that call. They were no longer in the building nor trying to remove an individual from the building so she missed those also.
Not to say her attorney won’t try to argue that but, on the law, she should lose. All they need is a couple of ammosexuals on the jury though and she could shoot baby Jesus & walk.
But as was probably well covered below this is f’ing insane.
Anoniminous
I don’t care what the damn law says.
This. Is. Nuts.
Omnes Omnibus
@Laertes: Shoplifting is not B&E.
burnspbesq
@JPL:
Unless you’re taking the position that the parking lot is part of the “business premises,” I don’t see how you get to where you’re trying to get. And absent a specific (and family unusual) definition of “premises” in that particular statute, I think that’s a fairly major stretch.
trollhattan
@Laertes:
I’m liking depraved indifference. Unless she has magic evildoer-seeking bullets. Then by all means ma’am, fire at will.
Christ, were they actual shoplifters? If so, felony or misdemeanor? Not many thousand-dollar items at Home Depot that fit into one’s underwear.
Iowa Old Lady
@Anoniminous: My feeling exactly. Think of all the time you were in parking lot with your kids. This woman is lucky she didn’t shoot a four year old.
Brachiator
@Laertes:
from an earlier post, the shooter claimed that she was the bestest straight shooter ever, and she was shooting at the vehicle, not the suspects, and her smart bullets knew exactly where to go.
JPL
@burnspbesq: I hope you are right.
Laertes
@Omnes Omnibus:
Right? I mean, obviously. That’s what I thought too. But when I googled “breaking and entering vs shoplifting,” the first link was this:
http://www.morton-law.us/blog/2015/07/breaking-and-entering-vs-shoplifting/
That’s a blog post, from what appear to be some lawyers, saying that in Arkansas, the difference between shoplifting and B&E can turn on when you formed the intent to commit the crime.
Supposing that’s true, it’s not too much of a stretch to imagine that this might also be the case in Michigan? I dunno. So I’m a little unclear on this.
schlemazel
I’m thinking of a neighbor of ours in Florida. Their 7 year old was acting up in WalMart & dad decided to take the kid out to the car and let the rest of the family shop in peace. He had the boy under his arm and as they got near the door the boy (a real sweetheart BTW) started screaming “HELP, THIS IS NOT MY FATHER!”. This resulted in several people preventing him from leaving and having the cops called.
Now if one of those people had been armed . . .
scav
@Brachiator: But hey, large SUVs careening about are totally safe and under control of the Annie Oakley wonderladies of the shooting range! Everyone knows that.
burnspbesq
ETA: One of the bedrock principles of statutory interpretation is that in the absence of a specific definition in a particular statute, you look to the generally accepted meaning of the word. If I were a judge looking at this, one of the questions I would ask my clerk to research (even though I’m pretty confident I know the answer) is how the term “premises” is used in other statutes. In state law, that word turns up most often in liquor licensing statutes–and in the vast majority of states, if you have an on-premises license, that doesn’t mean that your customers can legally take their drinks out to the parking lot.
bystander
The minute I see “honestly and reasonably” as criteria for the application of a law, my eyes glaze over. When did “honestly” creep in to our laws? When the Justice Department started hiring out of Oral Roberts U?
This tells me the law is intended to be read in favor of the defendant. Even if the prosecution points out that the 15 year old I shot had Skittles in his hand and not a weapon, I HONESTLY thought it was an AK 47. And given all those Ni CLANGs committing crimes, that’s a pretty reasonable assessment. Both prongs satisfied, I win one for the 2nd Amendment.
Cervantes
@Iowa Old Lady:
That kind.
@Iowa Old Lady:
The four-year-old is luckier.
Laertes
@Brachiator:
Wait. That’s for real? I saw that quote at some point, but assumed I was seeing a snarky gag added by some writer. She said that?
…I don’t care. It’s still, at the very least, reckless endangerment.
bystander: It’s honest and reasonable, not honest or reasonable. Logically that test is at least as difficult to meet as “reasonable” alone, and introduces the possibility of arguing that a defendant’s belief, while reasonable, was insincere.
eric
@Brachiator: even if that is true, shooting out the tires of a fast moving vehicle is incredibly dangerous, not just to the people in the vehicle,
Laertes
@eric:
Right? That’s gun-nuttery 101: A bullet that hits a tire can do anything. The gunhumpers of my acquaintance are quick to point this out any time someone shoots at tires in a movie.
scav
@Laertes: Moreover, they weren’t really police at that time, they were Home Depot security guards chasing them no? She’s really going all-out movie-land vigilante cosplay with live ammo.
Citizen_X
@Brachiator: Fucking idiot.
Even IF (hah!) her aim is that good, if she’s shooting at the tires, the bullets are going to ricochet–at low angle, and therefore with most of their initial velocity–towards, oh, any random direction downrange. Anyone walking in that general direction would be in mortal danger.
Mingobat f/k/a Karen in GA
@JPL:
I think the “breaking and entering” part is where it falls apart for the shooter — the shoplifter had the right to be in the store (until he/she shoplifted, obviously). And he/she wasn’t unlawfully removing another individual.
ETA: Late as usual. Others explained it better.
Cervantes
@Citizen_X:
Stuff happens.
NonyNony
@Brachiator:
Holy. Fuckballs.
If this is a real quote, this woman’s family needs to take away all of her guns ASAP. She’s going to kill herself if she doesn’t kill someone around her.
(Jeebus Christ – “like on TV”. I wonder if she thinks she’s good enough to shoot a gun out of someone’s hand the way the the Lone Ranger used to do. “Oh officer, I didn’t mean to kill him. I was just shooting to wound like they do on the TV.” Jeebus.)
Bill
Application of the known facts to the statute:
Self-Defense
(1) The shooter was not engaged in a crime and she was legally allowed to be in the store.She’s fine on this element.
(a) Unlikely she honestly and reasonably believed the use of deadly force was necessary to prevent imminent death or great bodily harm. Shoplifting carries neither threat. (See application of presumption below.)
(b) Not applicable. No evidence of sexual assault.
(2) Not applicable. She used deadly force.
Presumptions Self-Defense
(1) She gets a presumption of “honest and reasonable” belief of imminent harm if both sub sections below apply:
(a) No presumption. The shoplifters weren’t involved in B&E, home invasion or kidnapping
(b) No presumption. There is no circumstance where one reasonably believes shoplifting is B&E , home invasion or kidnapping.
Looking only at the statute – and with the caveat that I haven’t read the case law applying it – this doesn’t provide a defense to criminal charges under the known facts.
greennotGreen
@schlemazel: Years ago, I worked at a treatment center for severely behaviorally handicapped children (autism with developmental delays.) Our driver had one more day student to take home when he stopped at a convenience store (for gas or a soft drink – this was before pay at the pump.) Of course, he took the 5 yo child in with him because it would have been unsafe to leave him in the car, and the kid had a tantrum. The owner of the store pulled a gun on the driver – black guy with a screaming white kid, of course it’s a kidnapping! Luckily, the driver didn’t get shot and was eventually able to explain things to the police.
Too many guns. Too many people too ready to use them.
http://www.aviellefoundation.org/
Laertes
One lesson I’ve taken away from stories like this throughout my long life is that, no matter how justified I think I may be, I will never, under any circumstances, give any statement of any kind to any police officer until I’ve spoken with an attorney.
Take this lady, for instance? With her Annie Oakley quote, she has admitted to firing her gun at an occupied and moving vehicle, with the intent of disabling it. How has she done herself any good by doing that? She’s already proved most (all?) of the prosecution’s case for them. Maybe the prosecution could easily have proven these things anyway? But why give them a freebie?
Would she have done herself any harm at all by simply keeping her idiot mouth shut and speaking to an attorney before talking to the police, any bystanders, or any ferchrissakes reporters?
Brachiator
@eric:
I hoped that the tone of my remarks, my word choices, indicated that I didn’t think that the shooter’s actions were reasonable.
@Laertes
I checked some of the story links and could not substantiate this as a quote of the shooter. One story even noted that the police did not know what type of gun was used or how many shots were fired.
So, for now, I do not want to make this person seem even more unreasonable than I think she may have been in her actions.
Mandalay
@schlemazel:
Win! That kid will go far.
Cervantes
@Laertes:
Well, yes, but some people aren’t given the privilege of not answering a police officer’s questions.
Cervantes
@schlemazel:
Maybe he knew something the “father” didn’t.
Mingobat f/k/a Karen in GA
I’m Googling, but I can’t find any link to the “like on TV” quote upthread.
DocSardonic
As a permit holder in Florida, if Michigan uses the same interpretation, the shooter could be charged and possibly lose their permit unless the alleged shoplifter was either actively attempting to murder, maim, kidnap or rape the weed wackier or whatever it was they were absconding with. Especially due to the fact that there were witnesses present.
greennotGreen
@NonyNony: Not nearly enough people watch “Mythbusters.” Adam and Jamie demonstrate show after show how most stunts on TV and the movies are not possible in real life. No, you can not jump a creek when the bridge is out and still drive away. No, you cannot hang on to the edge of a building by your fingertips. And even if you can shoot out the tires of a moving vehicle at a great distance, you probably cannot do it while simultaneously making sure no one else is in the line of fire. (Not sure the last one has ever been on Mythbusters, but it should be.)
Bill
@Laertes: Michigan Statute on breaking and entering. Shoplifting is not B&E under sub 2:
THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931
750.115 Breaking and entering or entering without breaking; buildings, tents, boats, railroad cars; entering public buildings when expressly denied.
Sec. 115.
(1) Any person who breaks and enters or enters without breaking, any dwelling, house, tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, boat, ship, railroad car or structure used or kept for public or private use, or any private apartment therein, or any cottage, clubhouse, boat house, hunting or fishing lodge, garage or the out-buildings belonging thereto, any ice shanty with a value of $100.00 or more, or any other structure, whether occupied or unoccupied, without first obtaining permission to enter from the owner or occupant, agent, or person having immediate control thereof, is guilty of a misdemeanor.
(2) Subsection (1) does not apply to entering without breaking, any place which at the time of the entry was open to the public, unless the entry was expressly denied. Subsection (1) does not apply if the breaking and entering or entering without breaking was committed by a peace officer or an individual under the peace officer’s direction in the lawful performance of his or her duties as a peace officer.
Iowa Old Lady
@greennotGreen: Did you see the episode where they put a cannon ball through the side of some guy’s house? Come to think of it, that may be the episode most applicable here. You never know where your shot is going to go.
Punchy
@Laertes: because she’s white and they (at least one of em) was black. Ergo, cant be murder.
SATSQ
Bill
@Bill: And a related statute. Again, Michigan requires breaking AND entering. Not just entering:
THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931
750.110 Breaking and entering.
Sec. 110.
A person who breaks and enters, with intent to commit a felony or a larceny therein, a tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat, ship, or railroad car is guilty of a felony, punishable by imprisonment for not more than 10 years.
Bill
@efgoldman: A defense that has undoubtedly been tried!
trollhattan
@Laertes:
You’re so very right, of course. With that out of the way, I’ll bet she couldn’t wait to brag to the cops what she did. You see, she’s one of them now.
Cervantes
@Brachiator:
Where did you get that second quoted bit?
lumpkin
>>>“I was trying to help police by shooting out the tires<<<
This is a flat out admission of guilt. She obviously was NOT attempting to protect her or anyone else's life. This is just plain old reckless endangerment of everyone who was in the area. She should be prosecuted.
Dmbeaster
@schlemazel: I agree, but will all twelve jurors be convinced beyond a reasonable doubt of the same conclusion? That is how it appears to set up. One wingnut hangs the jury.
Kylroy
@efgoldman: I’ve often wondered what would happen if someone who blended in at a gun show (i.e. a white male in whatever clothing style is most prevalent) started shooting and then blaming others when confronted (“*HE* did it! Shoot him!”).
Waldo
@trollhattan: I witnessed a “shoplifting” incident at Lowes last month that wasn’t all it appeared to be. Big dude walked out the entrance door carrying a power tool in a box. When a clerk asked to see his receipt, the guy mumbled something about returning the item and just kept walking, right out to the parking lot. Sure looked to me like a shoplifting in progress.
5 minutes later I see the perp standing in the doorway talking on his cellphone like nothing had happened. So I figure he was either the world’s dumbest criminal, or no criminal at all.
But I’m sure a trigger-happy vigilante would have sized up the situation correctly and acted accordingly.
Dmbeaster
@Adam L Silverman: No, the presumption goes to the survivor, except for maybe Treyvon Martin (and probably most blacks) if he had killed that jerk.
Omnes Omnibus
@Laertes: I can see how you got that impression, but what post was saying is that, under AR law, entering a premises with the intention of committing an illegal act is sufficient for a B&E charge.
Mnemosyne (iPhone)
@Kylroy:
IIRC, most gun shows make you turn your personal weapons in at the door. You know, the same way you’re not permitted to carry a gun into the NRA’s offices while they fight to let people bring them into your kid’s school.
SiubhanDuinne
@Iowa Old Lady:
And because I can never resist quoting from Lord Peter Wimsey, this:
(Dorothy L. Sayers, Gaudy Night)
BruceFromOhio
@efgoldman: This is exactly what I was thinking. If I had just climbed out of my car and saw Marks Woman blazing away, game fucking ON.
SatanicPanic
@Mingobat f/k/a Karen in GA:
I did too and the top result was the earlier thread. For fun though let’s go the full Jim Hoft and say it’s confirmed!
Brachiator
@Cervantes: I noted upthread that I could not find the quote and that one of the first stories that reported the incident noted that the police could not verify the type of gun used or the number of shots fired.
Cervantes
@Brachiator:
But “the quote” appears in your comment. I asked how it got there.
I think you said it was from “an earlier post.” I can’t see which.
SatanicPanic
@efgoldman: No, of course not. Just having some fun
Mnemosyne (iPhone)
I think peeps got fooled by the quote. It’s a little too comical to be real, IMO.
Adam L Silverman
@Dmbeaster: My use of defender implied survivor. Sorry if it wasn’t clear. And if you read through the Tampa Bay Times reports you’ll notice a disturbing recurrent trend that involves the color of those involved.
D58826
What I find so depressing is that this is being discussed that it might actually be legal what she did. And that the ‘just like on TV’ quote sounds like what she might really have said under the circumstances.
JPL
@efgoldman: Wow.. It’s possible that two good guys with guns are dead because they are stupid.
Omnes Omnibus
@D58826: I would say that it is is virtually impossible to make a good faith, non-frivolous argument that her actions were lawful.
Gavin
Why can’t gun owners be forced to purchase insurance against their terrible judgement?
I see this like car insurance.. most people drive correctly and don’t need the insurance. But it’s the actions of a few that have caused significant pain for all.
Furthermore, at present the rest of society collectively bears the cost of gun owners’ insanity. This shouldn’t be – I propose that we charge the cost of all gun incidents against gun owners. You want to own a gun? Fine! Now you get to pay a premium against the possibility of damage caused by owning that gun.
Bill
@Mnemosyne (iPhone): I’m pretty sure the quote originated here:@Jim, Foolish Literalist: From an earlier there today. Unless I’m reading it wrong, this was intended as snark, not an actual quote.
D58826
@Omnes Omnibus: Since when do the gunhumpers deal in ‘good faith’?
Bill
@Gavin:
They can, but that would require legislative action from law makers who want change on this issue. I’m not holding my breath.
Seanly
I look forward to the day when our city streets are more like several of the scenes from Mchael Mann’s “Heat”. Running gun battles with rifles downtown, shooting up lawyers in station wagons when we’re supposed to be exchanging bearer bonds for cash… oh the fun we’ll have!
Omnes Omnibus
@D58826: Question: if she gets charged in this case, is she going hire a criminal defense attorney or a gun nut attorney? If she hires a criminal defense attorney, the lawyer will be looking for a plea deal immediately. If she hires a gun nut, she deserves what will happen to her.
SoupCatcher
@Cervantes:
Here’s the comment on the earlier post.
edited to fix link
JPL
@Omnes Omnibus: She’s not going to get charged. imo
Omnes Omnibus
@D58826: Also, I was using good faith as a legal term of art, not using it in its everyday sense. It makes a difference.
D58826
@Omnes Omnibus: ok, I took it as the later
Roger Moore
@Iowa Old Lady:
Which means everyone else in the parking lot would have been within their legal rights to pull out their weapons and shoot at her. Fun for the whole family!
Omnes Omnibus
@efgoldman: Neither cops nor prosecutors have an interest in having random people pull out guns and start shooting. Especially since actual police would not have been permitted to shoot in these circumstances.
Cervantes
@SoupCatcher:
Thank you.
Yes, in context it’s obviously a joke.
Cervantes
@Omnes Omnibus:
Very droll.
MCA1
One of the most disturbing principles underlying the statute here is the concept that we’re cool with the idea that someone breaking and entering, ie A FUCKING PETTY THIEF, is more likely than not a murderer and will shoot anyone they see while committing their theft. We’re not talking about witnessing an armed robbery here. That Michigan statute basically says that if you’re the night watchman at a department store and you witness someone after hours with a television in their arms, you’re within your rights to believe that that person constitutes a grave danger to you, and shoot them dead. No guns necessary on their part, and it doesn’t matter if they’re halfway through the window on the way out. Over the theft of a TV. Property rights trump that whole “not kill” commandment thingie.
A guy
MCA1- do you thing a jury would buy the argument that the night watchman in ur scenerio was in reasonable grave danger
MCA1
@A guy: Try reading closely next time. Also, there’s no such thing as “reasonable grave danger.” The reasonability is applied to belief.
What the statute does is grant the security guard a (rebuttable) presumption at trial that they honestly and reasonably believed that imminent death or great bodily harm were coming their way, in any scenario in which they shot someone who was “in the process of breaking and entering a…business premises…and is still present…” It would thus be up to the prosecutor to prove affirmatively that the shooter didn’t actually believe they were in danger, or that their fear was unfounded, which is of course impossible since the shooter’s the only witness and there’s no evidence as to mental state. In most circumstances your question is moot because no one would even bother to bring a charge to trial in the first place due to the difficulty of overriding this presumption. A jury would be instructed that they can’t convict if the prosecution hasn’t shown beyond a reasonable doubt that the shooter’s full of shit re: their mortal fear. This is as opposed to the common sense position, with the defendant having to affirmatively convince a jury that they did believe they were in danger, and that their fears were justified.
Axe murderers don’t break into Best Buy late at night to kill the fucking janitorial staff. It’s not the same thing as waking up to see someone creeping up the stairs toward your bedroom. Yet we’ve chosen to treat it the same under the law. It’s ludicrous.
MCA1
@efgoldman: Ha. Yeah, that too. The right to own and fire a deadly weapon and tote it around with you into the Waffle House at 2 in the morning pretty much trumps everything in ‘Murica, I guess.
Omnes Omnibus
@MCA1:
The prosecutor would not have to prove that the fear was unfounded. The prosecutor would have to show that the fear was unreasonable – that an ordinary person placed in that situation would would not have such a fear. For example, if the guy’s arms were full of TVs, fearing for one’s life would be unreasonable.
BL
Has anyone seen any follow up on the case in Texas where an onlooker shot at a carjacking and hit the victim, then picked up all his shells, and drove away?
Jack the Second
I would like to propose that Fantasy Prone Personality disqualify individuals from owning firearms.
Mnemosyne (iPhone)
@Gavin:
The argument I’ve seen is that it would be unconstitutional since guns are in the Bill of Rights but cars aren’t.
Of course, there are limits on our other constitutional rights, which is why libel and slander laws exist, but apparently gun nuts are under the impression that the 2nd Amendment is the only one that can never have any limits put on it.
MCA1
@Omnes Omnibus: imprecise use of not perfectly synonymous terms on my part, mea culpa. I was just tired of typing reasonable, but that’s what meant. Unfounded, as in without basis in fact or falsely held or believed, is close, but you’re right, it kind of makes it seem like I meant the “fear” is unreal, not unreasonable.
Alex
There is another area of law this post does not consider. It’s not just a question of self defense; Michigan case law has a “fleeing felon” rule. If a felony occurs in the presence of a private citizen and the use of deadly force is deemed necessary to prevent the felon’s escape, then there is no requirement for a reasonable belief that the felon is a threat to anyone. You can just kill him. It’s not in Michigan’s compiled laws because it’s a right the courts have found in common law. (See People v Hampton)
The Legislature should really do something about that.
Adam L Silverman
@Alex: excellent update. As I looked, but couldn’t find that. Which is why I indicated in an earlier comment that some states have some variant of this. Thanks – well done.
Paul in KY
@schlemazel: My kid would be smart enough to know that would not be a good strategery for the long term.
Paul in KY
@Bill: The only leg I would think she would have to stand on would be if she thought the fleeing vehicle was going to run over people.
Cervantes
@Alex:
Sort of. You can shoot and Michigan won’t prosecute you — but if there was no immediate danger to yourself or others, you may be sued and you may lose.
That’s in Michigan.
In general, the “fleeing felon” rule was limited by the Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985). Deadly force “may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious bodily harm to the officer or others.” Some states chose to incorporate this approach explicitly in their statutes but not Michigan, which explicitly opted out by observing that the underlying case was not a criminal matter.
Paul in KY
@Laertes: Good advice to live by.
Alex
@Cervantes: The Garner ruling does not apply to private citizens, just to police officers. From People v Hampton (1992): “Moreover, the [Michigan] Supreme Court, responding to Tennessee v Garner, 471 U.S. 1; 105 S.Ct. 1694; 85 L Ed 2d 1 (1985), ruled that private citizens, unlike peace officers acting under the color of state law, are not subject to the Fourth Amendment restraints that Garner imposed. Finally, the Court reversed the [Michigan] Court of Appeals ruling that would permit a private citizen to use deadly force only if he reasonably believed that the felon posed a threat of serious harm to himself or others.”
Here is a circuit court case from 2007, People v Spears, that discusses the fleeing felon rule in detail. http://www.michbar.org/file/opinions/appeals/2007/042407/35718.pdf