Your home is your castle AND defendable in...Nebraska

[WJFortier 10]

I feel the outcome would not have been the same should this have taken place in the great garden state.

(1) the homeowner would have been charged and most likely convicted as he isn't a pro athlete

(2) an investigation into magazine capacity would have ensued

(3) his choice of projectiles would have been scrutinized

 

Shooting of burglar by homeowner is justified, county attorney says

 

Man is 2nd intruder to be shot, killed by a homeowner during a burglary attempt this year

Posted: Tuesday, September 9, 2014 11:41 am

 

By law, Nebraska residents are allowed to use deadly force during a home invasion if the person fears for his or her life.

Officers responded to a radio call at the home northwest of 72nd Street and Sorensen Parkway about 9 a.m. Dispatchers told officers en route that the homeowner had shot an intruder, said Officer Michael Pecha, a police spokesman. Rohatsch was home with his 4-year-old daughter.

Officers arrived to find Darrell W. Miller, 48, lying on the porch with a gunshot wound, Pecha said. Miller died at Creighton University Medical Center.

Kleine said Miller rang the doorbell twice, then kicked in the front door, completely knocking it off its hinges.

Rohatsch shot Miller twice, Kleine said. The first bullet hit Miller in the left forearm, spinning him around, and the second bullet hit him in the back of his right shoulder.

Miller had left his car running in the driveway. Inside the car, Kleine said, police found burglary tools and binoculars.

[Pizza Bob 1,488]

Based on the article only, what makes you think this wouldn't have been justifiable in NJ?

[Lalo 13]

I think the fact that he was shot in the back of the shoulder would have been questionable. The burglar could have been trying to run away after being shot in the forearm. If he is running away, (in NJ) your life is not in immediate danger.

[WJFortier 10]

If in a similar situation, I would like to hope that a jury of my peers would find the shooting justifiable.  Since NJ is "Duty to Retreat state"  and not a "Stand Your Ground" state, I feel your chances of aquital are not as high as in a state that has adopted the "Stand Your Ground" doctrine as you are obligated to flee NOT fight.  (all circumstances considered equal, of course)

[Mr.Stu 1,916]

If in a similar situation, I would like to hope that a jury of my peers would find the shooting justifiable. Since NJ is "Duty to Retreat state" and not a "Stand Your Ground" state, I feel your chances of aquital are not as high as in a state that has adopted the "Stand Your Ground" doctrine as you are obligated to flee NOT fight. (all circumstances considered equal, of course)

NJ is not "duty to retreat" if you are inside your home, the aggressor is coming towards you and you are in fear for your life or bodily harm. I can't remember if the aggressor must be inside too, but I think (s)he does.

 

Sent from my SCH-I800 using Tapatalk 2

 

 

[GRIZ 3,369]

I think the fact that he was shot in the back of the shoulder would have been questionable. The burglar could have been trying to run away after being shot in the forearm. If he is running away, (in NJ) your life is not in immediate danger.

 

 

If you are shooting to stop a threat it's plausible that the BG turned after being hit from the front and a round or two hit the BG in the back. If there were no entry would wounds in the front that may be questionable.

 

 

NJ is not "duty to retreat" if you are inside your home, the aggressor is coming towards you and you are in fear for your life or bodily harm. I can't remember if the aggressor must be inside too, but I think (s)he does.

 

Sent from my SCH-I800 using Tapatalk 2

People read the use of force statutes and stop when they see duty to retreat. You have none duty to retreat in any encounter when threatened with deadly force.

[Sandy 44]

There is , in NJ , no duty to retreat in your home if you feel your life is in danger. If you are going to point a gun at someone in your home , you need to feel life is in danger. There are a lot of reasons why an intruder would be shot in the back. He may have flailed after a first shot , he may have been heading to attack another family member , or it was dark you were frightened and you never took low light no light training. Which is something you should not leave out of your practice. 

Just by reading the article I agree with Pizza Bob. This would have been a clean shoot in NJ most likely.

NJ lacks any provisions for you to defend your life with a firearm past the threshold of your house , though you are allowed to carry anywhere on your property. Go figure. 

[mipafox 438]

 

People read the use of force statutes and stop when they see duty to retreat. You have none duty to retreat in any encounter when threatened with deadly force.

I believe you have duty to retreat in the face of deadly force outside your home in NJ. Otherwise NJ would be a Stand Your Ground State.

 

I'm not good with NJ criminal statutes, can you cite the one you are referring to?

[leahcim 679]

I could imagine a double tap where the guy spins around for the 2nd shot.  If you really fear for your life I can see emptying a 15 round magazine as the guy spins around.  I mean if someone is in your house, uninvited, at night, then I would be pretty fearful that they intended harm.

 

Outside the home I believe the duty to retreat applies only in the use of deadly force; but not if you know that you can safely retreat.  If you are outside of the home and threatened, and you have no safe means of egress (e.g. you are cornered or surrounded).  Burden is upon the state to prove that you knew that you could safely retreat.

 

From State v. Martinez:
justifiable if "[t]he actor knows that he can avoid the necessity of using such force with complete safety by retreating...." N.J.S.A. 2C:3-4b(2)(b). An exception to this doctrine of retreat, however, is that no duty to retreat is imposed upon a person who, free from fault in bringing on a difficulty, is attacked at or in his dwelling house. N.J.S.A. 2C:3-4b(2)(b)(i); State v. Bonano, 59 N.J. 515, 518-519 (1971).

 

Furthermore, from State v. Martinez case law would indicate that the "no duty to retreat inside the home" extends to one's porch (don't know about decks or patios though):

The defendant may, under our law, meet the assailant at the threshold of the home and prevent him from entering by any means, including deadly force. Under such circumstances, the homicide is justified and the defendant would be entitled to an acquittal.

In State v. Bonano, supra, the Supreme Court was confronted with the issue of "whether, and under what circumstances, a man must retreat when confronted by an assailant, before he may justifiably kill another in his own defense." Id. 59 N.J. at 518. The Court adhered to the "well nigh universal rule" that a man is not bound to retreat from his dwelling house. Id. at 519. Moreover, the Court held that "[a] porch or other similar physical appurtenance is deemed to come within this concept." Id. at 520. In Bonano, the Court concluded that the defendant was entitled to a charge to the effect that if the defendant was standing at his own doorway when the victim approached, drew a knife and threatened to kill the defendant, and if the defendant reasonably believed he was in danger of losing his life or suffering serious bodily harm, then the defendant was under no duty to retreat but might stand his ground and resist the attack even to the extent of employing deadly force. Id. at 521.

 

A cautionary word, Martinez was decided in 1989, much has changed in 25 years!  But the state still has burden of proof, and I think this case would be decided favorably in NJ even today.

[mipafox 438]

OK, that's pretty much what I expected. I've heard NJ is Castle Doctrine Light and No Stand Your Ground. PA is Castle Doctrine on Steroids and Milquetoast Stand Your Ground.

[koontz946 0]

I could imagine a double tap where the guy spins around for the 2nd shot.  If you really fear for your life I can see emptying a 15 round magazine as the guy spins around.  I mean if someone is in your house, uninvited, at night, then I would be pretty fearful that they intended harm.

 

Outside the home I believe the duty to retreat applies only in the use of deadly force; but not if you know that you can safely retreat.  If you are outside of the home and threatened, and you have no safe means of egress (e.g. you are cornered or surrounded).  Burden is upon the state to prove that you knew that you could safely retreat.

 

From State v. Martinez:

justifiable if "[t]he actor knows that he can avoid the necessity of using such force with complete safety by retreating...." N.J.S.A. 2C:3-4b(2)(b). An exception to this doctrine of retreat, however, is that no duty to retreat is imposed upon a person who, free from fault in bringing on a difficulty, is attacked at or in his dwelling house. N.J.S.A. 2C:3-4b(2)(b)(i); State v. Bonano, 59 N.J. 515, 518-519 (1971).

 

Furthermore, from State v. Martinez case law would indicate that the "no duty to retreat inside the home" extends to one's porch (don't know about decks or patios though):

The defendant may, under our law, meet the assailant at the threshold of the home and prevent him from entering by any means, including deadly force. Under such circumstances, the homicide is justified and the defendant would be entitled to an acquittal.

In State v. Bonano, supra, the Supreme Court was confronted with the issue of "whether, and under what circumstances, a man must retreat when confronted by an assailant, before he may justifiably kill another in his own defense." Id. 59 N.J. at 518. The Court adhered to the "well nigh universal rule" that a man is not bound to retreat from his dwelling house. Id. at 519. Moreover, the Court held that "[a] porch or other similar physical appurtenance is deemed to come within this concept." Id. at 520. In Bonano, the Court concluded that the defendant was entitled to a charge to the effect that if the defendant was standing at his own doorway when the victim approached, drew a knife and threatened to kill the defendant, and if the defendant reasonably believed he was in danger of losing his life or suffering serious bodily harm, then the defendant was under no duty to retreat but might stand his ground and resist the attack even to the extent of employing deadly force. Id. at 521.

 

A cautionary word, Martinez was decided in 1989, much has changed in 25 years!  But the state still has burden of proof, and I think this case would be decided favorably in NJ even today.

 

Thank you for posting those references... I've often wondered what the consequences would be if an intruder failed to comply with me telling them to get on the ground (at gunpoint.)

[GRIZ 3,369]

 

 

I believe you have duty to retreat in the face of deadly force outside your home in NJ. Otherwise NJ would be a Stand Your Ground State.

I'm not good with NJ criminal statutes, can you cite the one you are referring to?

Read all of 2C:3-4 & 3-5. Not stand your ground.

[mipafox 438]

 

Read all of 2C:3-4 & 3-5. Not stand your ground.

 

 

That's what I said, thanks. It was covered above.