View Full Version : NY - Burglary, homeowner shoots fleeing vehicle w/AR-15 and goes to jail.
http://www.lockportjournal.com/local/local_story_022003301.html
TOWN OF LOCKPORT — State police say two attempted burglary suspects are in jail, and the homeowner targeted in the break-in Thursday morning is charged with reckless endangerment after firing shots at their car.
There were no injuries in the incident on Akron Road.
State police arrested Jenna M. Zsebhazy, 18, of Washburn Street, Lockport, and Anibal R. Cordero, 24, of Dysinger Road, Town of Lockport, on felony second-degree attempted burglary charges.
The homeowner, Dennis F. Cherry, 63, 7643 Akron Road, was also arrested during the same incident. He was charged with first-degree reckless endangerment, a felony; second-degree criminal mischief, a felony; and second-degree menacing, a misdemeanor.
Troopers and Niagara County sheriff’s deputies responded about 11:23 a.m. to the Akron Road residence near Royalton on a report of a burglary in progress and shots fired.
State police investigators piecing together events said the suspects drove to the residence together, and Zsebhazy tried to enter the house through an open garage door.
Both suspects were confronted by Cherry, who had a Colt AR-15 rifle, investigators said.
Cherry reportedly detained Zsebhazy, while Cordero tried to escape in the vehicle.
The homeowner then proceeded to fire approximately 15 rounds from his rifle at the vehicle, according to the report.
Police said Cordero fled the area on foot and was caught by officers a short time later in the woods.
State Police spokeswoman Rebecca Gibbons said Cordero was caught before a helicopter came to assist in the search.
Chief Deputy Steven C. Preisch of the sheriff’s office said the two suspects are persons of interest from a past robbery at the same location earlier this week, where a handgun was stolen.
Zsebhazy, Cordero and Cherry were arraigned before Royalton Town Judge Gregory Bass.
Zsebhazy and Cordero were taken to the Niagara County Jail, where they were held in lieu of $5,000.00 bail.
Cherry was released on his own recognizance and is due back in court later this month.
Zsebhazy and Cordero are due back in court at 5 p.m. Feb. 1.
Jay Cunningham
01-23-10, 16:29
Hmmm...
Unfortunately from what little I have read this indeed sounds like a bad shoot.
Hmmm...
Unfortunately from what little I have read this indeed sounds like a bad shoot.
I agree. I posted it as an affirmation that shooting at fleeing asshole burglarizing pieces of shit is still against the law.
Jay Cunningham
01-23-10, 16:49
I agree. I posted it as an affirmation that shooting at fleeing asshole burglarizing pieces of shit is still against the law.
Not only that, but every bullet has a lawyer attached to it. 15 rounds of 5.56mm and he didn't hit the guy in the vehicle. Where did those rounds wind up? All lodged in the frame of the vehicle? Somehow I doubt it.
Kudos to the guy for aggressively confronting the burglars, but unfortunately emotion and adrenaline took over.
Wow, this isn't far at all from where my GF grew up. Been to Lockport plenty o' times...I'll have to see what more I can dig up on this.
geminidglocker
01-23-10, 17:05
Sucks to here about his lack of judgement. Stands as a lesson of "What not to do.".
Yep, good example of what not to do. Maybe he can cut a better deal than the one that the douche bags will probably be offered by the prosecutor.
SWATcop556
01-23-10, 20:28
Good on him for being armed and prepared but he went from defending homeowner to suspect when he was no longer the victim and became the aggressor.
I too would like to know where those rounds ended up. Hopefully not lodged in the neighboring residences.
Was the victim (homeowner) originally from Texas? If so, he should move back....
Once the risk of bodily harm to yourself or those on your property is no longer there, the justification for using deadly force in a legal sense isn't there anymore. Looks like a bad shoot to me. Hell, even a cop cannot shoot on a fleeing suspect unless the suspect poses a threat of injury or death to the police or others should the suspect escape.
I'm glad I don't live in New York, or any other populated area. We're on a ranch 70 miles from the closest town and here in New Mexico we use a techique called:
"The Triple S"
Here in Cowboy Country that means: Shoot, Shovel, Shut UP
A fitting end to some dirtbag who would come in on you in the middle of the night and threaten life and property. If you dispatch them to the flaming regions and call the authorities, you would probably loose your firearm for a while, but then be vindicated in your actions by the local District Attorney.
Where you run into problems is the possible civil suit that drains you of up to $100,000 in legal fees fighting the surviving family of the burglar, now shoveling brimstone.
The Triple S is the only way to go in rural New Mexico. In this case mentioned above the homeowner needed to kill both while they were still in his house, not shoot at a fleeing vehicle.
OH58D
Belmont31R
01-23-10, 22:31
Once the risk of bodily harm to yourself or those on your property is no longer there, the justification for using deadly force in a legal sense isn't there anymore. Looks like a bad shoot to me. Hell, even a cop cannot shoot on a fleeing suspect unless the suspect poses a threat of injury or death to the police or others should the suspect escape.
In Texas you can shoot fleeing robbers.
Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
The "Triple "S"". That is the most ignorant thing I have read all day.
Once the risk of bodily harm to yourself or those on your property is no longer there, the justification for using deadly force in a legal sense isn't there anymore. Looks like a bad shoot to me. Hell, even a cop cannot shoot on a fleeing suspect unless the suspect poses a threat of injury or death to the police or others should the suspect escape.
How about shot in the back while they're wearing handcuffs? It does happen. http://www.lasvegasnow.com/Global/story.asp?s=4909076&clienttype=printable
The "Triple "S"". That is the most ignorant thing I have read all day.
Maybe for a city boy....;) Keep in mind that ranchers in this part of the rural American west are lucky to have a Sheriff's Deputy arrive within an hour after a call, and that is if they're not busy and the weather is good. I'm 4 miles off of a 2 lane County road and the nearest law enforcement is 70 miles away. We have no landline phone and cell service is spotty. I'm running my internet off of satellite and have two diesel generators for backup power. I've got between 12 and 18 inches of snow presently on my 7 Section spread and you're not getting around out here except by horse or 4 wheel drive.
My closest neighbor is a fellow rancher and he's 6 miles as the crow flies away. People out here are self reliant and have been for generations. I took over this family operation after retiring from the Army. When there's no law to rely on, you rely on yourself. It's serious business when you're confronted by someone who wants to harm you or your family potentially during a break-in or confrontation in your home or on your ranch property.
If you make sure you're still standing after the event, the other party is probably dead, and the perfect end for them is to just vanish, hidden under six feet of rock and dirt and a layer of Buffalo & Blue Gramma Grasses. Now they are contributing their organic nutrients to mother earth, and not victimizing living beings.
Such stories abound in the rural west.
OH58D
I'm glad I don't live in New York, or any other populated area. We're on a ranch 70 miles from the closest town and here in New Mexico we use a techique called:
"The Triple S"
Here in Cowboy Country that means: Shoot, Shovel, Shut UP
A fitting end to some dirtbag who would come in on you in the middle of the night and threaten life and property. If you dispatch them to the flaming regions and call the authorities, you would probably loose your firearm for a while, but then be vindicated in your actions by the local District Attorney.
Where you run into problems is the possible civil suit that drains you of up to $100,000 in legal fees fighting the surviving family of the burglar, now shoveling brimstone.
The Triple S is the only way to go in rural New Mexico. In this case mentioned above the homeowner needed to kill both while they were still in his house, not shoot at a fleeing vehicle.
OH58D
Sounds like the coal fields of southern West Virginia. And sometime this things need and do happen
Sentence that hip shooting bastard to target practice!
15 rounds and no hits? You've got to be kidding me.
How about shot in the back while they're wearing handcuffs? It does happen. http://www.lasvegasnow.com/Global/story.asp?s=4909076&clienttype=printable
Handcuffs are a temporary restraint, and a murder suspect poses a strong possibility of inflicting serious injury or death on someone should they escape. Tough one in court, but it can be articulated.
In Texas you can shoot fleeing robbers.
Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
Interesting. At least in the case of law enforcement, we cannot shoot a fleeing burglary suspect as was ruled in Tennessee vs Garner unless the suspect poses a threat of serious injury or death to the officer or others. I wouldn't be surprised if the Texas law is changed once a "questionable" shooting incident occurs with a homeowner. I like the law, but I just don't see it holding up in this day and age.
Interesting. At least in the case of law enforcement, we cannot shoot a fleeing burglary suspect as was ruled in Tennessee vs Garner unless the suspect poses a threat of serious injury or death to the officer or others. I wouldn't be surprised if the Texas law is changed once a "questionable" shooting incident occurs with a homeowner. I like the law, but I just don't see it holding up in this day and age.
I believe it also allows for you to protect your neighbors property. If I am remembering the case properly where the neighbor shot the burglar in TX a year or so ago.
I guess there is a reason they say don't mess with Texas...
In the NY case, the guy had to be retarded to do what he did...
Very nice. I see most of y'all managed to say the correct thing. This 63 yr old man facing his second robbery in a week musta got a bit pissed. Now he gets to pray none of you fine citizens finds their way to his jury.
I notice one of the perps fled even though being held at gunpoint. Wonder why? Could it be the gun wasn't much of a deterent, what with all the correct thinking around.?
I'm not saying he did right, I;m saying he could stand a little slack.
He made a big mistake.
Hope the Colt was a MT6400 at least.
ForTehNguyen
01-24-10, 08:55
damn if this was in Texas, the cops would've been like "hey man whyd you miss?!?"
Robb Jensen
01-24-10, 08:58
Sounds like the homeowner was not versed in the use of deadly force in his state of residence.
KS Trekker
01-24-10, 09:16
Yep, good example of what not to do. Maybe he can cut a better deal than the one that the douche bags will probably be offered by the prosecutor.
No kidding; he will probably do more time than the real bad guys. A really bad decision on his part that he will have to pay for.
My sentiments run a little strong in this area of discussion. Nearly six years ago I had a bad experience out here. On our western range we pump water from the Canadian River to fill stock tanks using a diesel generator and pump. No problem with thieves amongst the local ranch folks but we have problems with drug using types from Albuquerque, Santa Fe, Las Vegas, etc. stealing anything not tied down to support their habit.
Once evening I was riding the fence line and saw a cut in the wire and tire tracks. What I saw in the distance was three people attempting to load my generator and pump into the back of a pickup truck. I rode closer and yelled at them. They dropped the equipment and all piled into the truck. Instead of trying to avoid me they drove straight towards me and my horse. This is open prairie and quite rough but they kept coming. I pulled my S&W 66 and fired a warning shot and they turned away and tore though another section of wire fence heading across country until they were no longer in sight. I always wonder what would have happened if they kept coming towards me.
Ever since I have carried a little more firepower. In addition to my .357 S&W I also carry a Colt 6920 LE heavy barrel with three magazines in a custom leather scabbard. I have used this weapon to take out a cougar not too long ago threatening my calfs, and won't hesitate to use it in self defense.
I won't shoot to kill just for property, but I will if threatened with harm. That gives me moral and criminal justification. And I sure as hell won't bother to report it, giving the family of the filth that attacks me a chance to sue me in a civil setting for defending home and the lives of myself and family. I won't allow myself to be subjected to civil intimidation, spending tons of money and time to fight a unjustified lawsuit.
The guy in New York was an idiot for shooting at a fleeing vehicle, but at least he had the stones to stand up and fight. Too bad he will end up with a felony on his record. He will get lumped into the same pile with the scum that invaded his life.
OH58D
Sounds like the homeowner was not versed in the use of deadly force in his state of residence.
Or anywhere else, for that matter. Depending on specifics he may have gotten a little leeway in Texas, but even there it's a dumb idea to rip off 15 shots into a fleeing car (even if it contains burglars).
I'm not saying he did right, I;m saying he could stand a little slack.
I suspect in the end that he will given the circumstances. I'd bet he'll end up with a misdemeanor and a tongue-thrashing from a judge.
I believe it also allows for you to protect your neighbors property. If I am remembering the case properly where the neighbor shot the burglar in TX a year or so ago.
I guess there is a reason they say don't mess with Texas...
In the NY case, the guy had to be retarded to do what he did...
You are right, you are allowed to protect a neighbors property here in TX.
It is a shame that you can't leave your garage door open without fear of getting attacked. One of my soldiers invited some of his peers over for a few beers off post. They were in the garage when two of the local Vatos popped in with a shotgun and robbed them. Unfortunately, they didn't have any firearms with them so they had to comply with the robbers. Now a good neighbor could have helped them out of that jam.
Ever since I have carried a little more firepower. In addition to my .357 S&W I also carry a Colt 6920 LE heavy barrel with three magazines in a custom leather scabbard. I have used this weapon to take out a cougar not too long ago threatening my calfs, and won't hesitate to use it in self defense.OH58D
I would love to see a photo of your rig! Worked on a ranch for a few years but never thought of carrying an AR when mounted.
Buckaroo
Another thing to keep in mind is that this is NY state which isn't the most firearm friendly place in the world. Though he would have been fine shooting them during the occurrance of the buglary, shooting criminals who are no longer a threat to him is a problem, as is discharging the AR outdoors as he did. 15 rounds fired outdoors that went God knows where is not a good thing, to say the least.
Jay Cunningham
01-24-10, 14:58
I'm glad I don't live in New York, or any other populated area. We're on a ranch 70 miles from the closest town and here in New Mexico we use a techique called:
"The Triple S"
Here in Cowboy Country that means: Shoot, Shovel, Shut UP
A fitting end to some dirtbag who would come in on you in the middle of the night and threaten life and property. If you dispatch them to the flaming regions and call the authorities, you would probably loose your firearm for a while, but then be vindicated in your actions by the local District Attorney.
Where you run into problems is the possible civil suit that drains you of up to $100,000 in legal fees fighting the surviving family of the burglar, now shoveling brimstone.
The Triple S is the only way to go in rural New Mexico. In this case mentioned above the homeowner needed to kill both while they were still in his house, not shoot at a fleeing vehicle.
OH58D
Just a thought - you might not want to post stuff like this.
Jay Cunningham
01-24-10, 15:00
In Texas you can shoot fleeing robbers.
Even if you can, why would you want to? Is your goal to stop a threat or is your goal to have a good excuse to kill someone?
Jay Cunningham
01-24-10, 15:02
Very nice. I see most of y'all managed to say the correct thing. This 63 yr old man facing his second robbery in a week musta got a bit pissed. Now he gets to pray none of you fine citizens finds their way to his jury.
I notice one of the perps fled even though being held at gunpoint. Wonder why? Could it be the gun wasn't much of a deterent, what with all the correct thinking around.?
I'm not saying he did right, I;m saying he could stand a little slack.
So his emotional state ("pissed") means that he is justified in launching 15 rounds downrange from an AR-15 at someone who was no longer a threat to him? Where did those rounds end up? If those rounds had ended up in an orphanage or a busload of nuns, would you still be singing the same tune?
Jay Cunningham
01-24-10, 15:03
damn if this was in Texas, the cops would've been like "hey man whyd you miss?!?"
Har har, no the cops in Texas would arrest him. He may eventually be acquitted but he will have to go through all of that hassle and expense.
Jay Cunningham
01-24-10, 15:06
My sentiments run a little strong in this area of discussion.
Obviously.
People need to get their "sentiments" under control in situations such as these, because their "sentiments" lead them to make bad decisions based on righteous indignation. Then good people wind up in jail. Not recommended.
Just a thought - you might not want to post stuff like this.
:eek:
no shit.. i hope he doesn't ever actually have a questionable shoot- this post, now firmly locked in by your quote, would not help his case. at a minimum, it's gonna add a few thousand to his attorney expenses.
Belmont31R
01-24-10, 15:10
Har har, no the cops in Texas would arrest him. He may eventually be acquitted but he will have to go through all of that hassle and expense.
The grand jury would "no bill" them. It never goes to trial. IIRC every homicide has to at least go to a grand jury here. The GJ just decides it was justified, and no bills the defendant.
QuietShootr
01-24-10, 15:17
:eek:
no shit.. i hope he doesn't ever actually have a questionable shoot- this post, now firmly locked in by your quote, would not help his case. at a minimum, it's gonna add a few thousand to his attorney expenses.
True dat. A friend was recently involved in some unpleasantness and the DA had investigators trying to find everything he had ever posted on the damn internet to use against him. Fortunately he's a man of few words.
Belmont31R
01-24-10, 15:20
Even if you can, why would you want to? Is your goal to stop a threat or is your goal to have a good excuse to kill someone?
For burglary? No its not worth the hassle over property for me.
However I can understand people who have work trucks with hundreds of thousand worth of tools, and stealing that is basically stealing their life. Same reason why horse thieves used to get hung...because you were stealing a persons ability to feed their family and keep their home running.
For kidnapping? If I could do something I would without putting innocent lives at risk.
I don't agree with launching rounds wherever though. Here you are also responsible for that, and is specifically mentioned in the codes.
Jay Cunningham
01-24-10, 15:23
The grand jury would "no bill" them. It never goes to trial. IIRC every homicide has to at least go to a grand jury here. The GJ just decides it was justified, and no bills the defendant.
The taking of a human life is not a joke - not even in Texas. I have read a lot of flip commentary from Texans on the subject. Let me give you a comment from a Texan: remember Joe Horn?
In an official statement published shortly after the shooting, Joe Horn said that "any loss of life casts permanent devastation over the lives of everyone involved. The events of that day will weigh heavily on me for the rest of my life.''
Littlelebowski
01-24-10, 15:28
A lot of chest thumping, Texas false bravado here. The 3 "S's" were originally coined to denote what one should do if one shot or killed somehow, an endangered species.
I grew up on an 85k acre ranch and partly own with my father a deeded 50k acre ranch but maybe I'm just one of those Wyoming city boys :D
This was a bad shoot. Where did those 15 bullets end up?
Belmont31R
01-24-10, 15:35
A lot of chest thumping, Texas false bravado here. The 3 "S's" were originally coined to denote what one should do if one shot or killed somehow, an endangered species.
I grew up on an 85k acre ranch and partly own with my father a deeded 50k acre ranch but maybe I'm just one of those Wyoming city boys :D
This was a bad shoot. Where did those 15 bullets end up?
No false bravado here. I am just glad I live in a state that respects the right to self defense and property. I like having the law on my side as opposed to the criminals.
No one has called this anything close to a good shoot. But if y'all feel the need to get yourselves on record as being able to ID a bad shoot, have a blast.
Lecture from staff is always amusing. Handwringers unite!
Something like this happened in STL. The vic shot up his own truck while the perp was driving it down the street. He didn't get any jail time for his actions and the perp was stopped dead in his tracks.
You're missing the point. The burglary was prevented and they fled, which would have been the goal. To then pursue them and recklessly fire 15 rounds at them as they were fleeing was not the greatest thing to do.
For burglary? No its not worth the hassle over property for me.
However I can understand people who have work trucks with hundreds of thousand worth of tools, and stealing that is basically stealing their life. Same reason why horse thieves used to get hung...because you were stealing a persons ability to feed their family and keep their home running.
For kidnapping? If I could do something I would without putting innocent lives at risk.
I don't agree with launching rounds wherever though. Here you are also responsible for that, and is specifically mentioned in the codes.
Belmont31R
01-24-10, 15:51
You're missing the point. The burglary was prevented and they fled, which would have been the goal. To then pursue them and recklessly fire 15 rounds at them as they were fleeing was not the greatest thing to do.
And its legal in Texas to shoot fleeing burglars among other criminals.
It may not be the best thing to do...but its certainly within our rights here.
Castle Doctrine...We have that in Missouri too.
And its legal in Texas to shoot fleeing burglars among other criminals.
It may not be the best thing to do...but its certainly within our rights here.
Belmont31R
01-24-10, 15:57
Castle Doctrine...We have that in Missouri too.
You'd have to check your state laws as to the fleeing part. Im not sure how many states allow that for property crimes as TX does. Castle doctrine has more to do with your home, duty to retreat, etc.
Jay Cunningham
01-24-10, 15:58
No one has called this anything close to a good shoot. But if y'all feel the need to get yourselves on record as being ablet o ID a bad shoot, have a blast.
Lecture from staff is always amusing. Handwringers unite!
And hillbilly, gunstore commando "advice" on "what to do" if you are in a potential lethal-force situation has sent more good people to jail for bad shoots than well-informed and trained "handwringers."
Just a thought - you might not want to post stuff like this.
I carry a firearm on a daily basis where there is no immediate law enforcement protection. I protect livestock from predators and myself and family from trash like the burglars in the New York article. Everything written is based in the hypothetical.
I spent 23 years in the Army flying rotor aircraft. I'm no Internet "Operator" or WiFi Rambo. I wonder how many reading this have ever been faced with a life or death situation? Remember, you wound or kill an intruder in a justifiable situation, a civil lawsuit may be your biggest problem. Perhaps it's better if the incident never happened.
OH58D
Belmont31R
01-24-10, 16:02
And hillbilly, gunstore commando "advice" on "what to do" if you are in a potential lethal-force situation has sent more good people to jail for bad shoots than well-informed and trained "handwringers."
Indeed. Read the laws, and then use a measure of restraint. Just like I would not shoot someone stealing something from me...only if I believed they would be a physical threat. Breaking into my house...I would assume they would physically harm me or my family. Come home to them running out with my TV? Not worth it even if I would be legally justified in doing so.
Again everyone needs to read the laws, and seek professional advice if they are still vague about what they are allowed to do.
And this incident happened in New York. Even if it is legal, it doesn't mean it is the smart thing to do.
And its legal in Texas to shoot fleeing burglars among other criminals.
It may not be the best thing to do...but its certainly within our rights here.
Belmont31R
01-24-10, 16:03
And this incident happened in New York. Even if it is legal, it doesn't mean it is the smart thing to do.
Ive already stated that a few times.
Jay Cunningham
01-24-10, 16:06
I carry a firearm on a daily basis where there is no immediate law enforcement protection. I protect livestock from predators and myself and family from trash like the burglars in the New York article. Everything written is based in the hypothetical.
I spent 23 years in the Army flying rotor aircraft. I'm no Internet "Operator" or WiFi Rambo. I wonder how many reading this have ever been faced with a life or death situation? Remember, you wound or kill an intruder in a justifiable situation, a civil lawsuit may be your biggest problem. Perhaps it's better if the incident never happened.
OH58D
Flying rotorcraft in the Army has no bearing on the use of lethal force in the civilian world. The question is not the ability to pull the trigger - that part is very, very easy, as we read about every single day. The question is: when are you justified in pulling that trigger?
Learning to fight in the military is good. Learning to deal with adversity in the military is good. However, the ROE are different for the military than for civilians.
I would love to see a photo of your rig! Worked on a ranch for a few years but never thought of carrying an AR when mounted.
Buckaroo
I carry the 6920 in a soft leather scabbard lined with flannel. The Colt has the carry handle removed and no optics but an A.R.M.S. 40 folded BUIS for my sight. An optic would get banged around too much traveling through brush and such. In the scabbard the weapon uses a 20 round mag, but I have a spare 30 rounder in my saddlebag.
The 6920 replaced my 1949 manufactured Winchester 94. My foreman still uses a lever action Winchester in 30-30. Being retired Army I like a weapon I am familiar with for minor repairs, and it's a great varmit rifle (both 2 & 4 legged critters).
OH58D
Littlelebowski
01-24-10, 16:23
I carry a firearm on a daily basis where there is no immediate law enforcement protection. I protect livestock from predators and myself and family from trash like the burglars in the New York article. Everything written is based in the hypothetical.
I spent 23 years in the Army flying rotor aircraft. I'm no Internet "Operator" or WiFi Rambo. I wonder how many reading this have ever been faced with a life or death situation? Remember, you wound or kill an intruder in a justifiable situation, a civil lawsuit may be your biggest problem. Perhaps it's better if the incident never happened.
OH58D
Just so you understand why folks are trying to talk some sense in your head, you (on a public forum) spoke at length about the supposed method common amongst Texas ranchers of "Shoot, Shovel, and Shutup." You advocated this and defended its practice. Now, you're backpedaling.
How can that not be either construed as false bravado or really, really, really bad advice?
Littlelebowski
01-24-10, 16:28
Is there a mandatory class on the art of bragging in Texas? Other states have the same or more rights.
It was a bad shoot. How can anyone justify shooting at fleeing burglars with an AR? When they are fleeing, you, your property, and your family are safe. It's not worth it and we are about to see that, I reckon. Heck, even Texas, you would own those 15 bullets. Don't tell me "oh yeah, well we CAN do it,' admit it was a stupid, reckless action that in a residential area endangered the lives of innocents.
Belmont31R
01-24-10, 16:30
Is there a mandatory class on the art of bragging in Texas? Other states have the same or more rights.
It was a bad shoot. How can anyone justify shooting at fleeing burglars with an AR? When they are fleeing, you, your property, and your family are safe. It's not worth it and we are about to see that, I reckon. Heck, even Texas, you would own those 15 bullets. Don't tell me "oh yeah, well we CAN do it,' admit it was a stupid, reckless action that in a residential area endangered the lives of innocents.
I already mentioned that, and the fact there is a specific section of the code about 'where your bullets go'. :rolleyes:
You'd have to check your state laws as to the fleeing part. Im not sure how many states allow that for property crimes as TX does. Castle doctrine has more to do with your home, duty to retreat, etc.
Missourians can use non-lethal force to defend themselves, anyone else, or any property anywhere they may be in the state.
Lethal force can be used to defend themselves or anyone else against the commission of any felony involving the use or threat of use of physical force if legally in a dwelling or vehicle and if the person the force is used against enters, has entered and is not leaving, or is attempting to enter that dwelling or vehicle.
Flying rotorcraft in the Army has no bearing on the use of lethal force in the civilian world. The question is not the ability to pull the trigger - that part is very, very easy, as we read about every single day. The question is: when are you justified in pulling that trigger?
Learning to fight in the military is good. Learning to deal with adversity in the military is good. However, the ROE are different for the military than for civilians.
Point well taken. Painting a target with a laser identifier and launching an AGM 114 Hellfire is less personal from a distance. Killing is bad businss no matter no matter the situation. The guy in New York used poor judgement in shooting at a fleeing vehicle. Killing without being threatened is also morally and legally unacceptable.
The question is what happens after a justifiable shooting? You have just taken a life but you have protected yours and your family. I can't imagine feeling good about it, but you should not have your life ruined because of some slick lawyer and leftist judges. We hear stories of burglars suing homeowners because they cut themselves on the glass in the window they just broke.
It's ok to use lethal force to save your life, but then have to spend thousands of dollars to defend yourself against a lawsuit? If you lose then does the house have to be sold as part of the settlement? Does your wages get garnished for the rest of your working days? Perhaps the laws need to be changed to prevent such lawsuits?
The Shoot, Shovel and Shut Up philosophy didn't start with me, but it has merit.
OH58D
vietboy1st
01-24-10, 16:36
they need a new law. This is stupid. How can a person who is trying to defend himself become a suspect in this case? Don't mind me to say " F .. K " this is stupid. I rather throw a flash bang at them and beat them up with a baseball bat . :D
The truck owner in STL killed the perp who was trying to liberate his truck. The truck owner was taken into police custody only because of prior warrants against him.
http://www.stltoday.com/stltoday/news/stories.nsf/laworder/story/330F6FA0D7AFCEF48625769A000106D6?OpenDocument
"In Texas you can shoot fleeing robbers."
No, you can't.
"Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury."
No, you can't just shoot fleeing robbers, even in Texas. Under the State Code provision you posted, had the above New York event occurred in Texas it would still have been a bad shoot.
Dumb-ass uses of AR's and other weapons classified as "assault weapons" such as occurred in the original post only give ammunition to the other side when they start talking about restricting carry and outright bans. This dumb-ass not only screwed himself, he screwed all of us with his cowboy antics.
Just so you understand why folks are trying to talk some sense in your head, you (on a public forum) spoke at length about the supposed method common amongst Texas ranchers of "Shoot, Shovel, and Shutup." You advocated this and defended its practice. Now, you're backpedaling.
How can that not be either construed as false bravado or really, really, really bad advice?
This isn't Texas, I'm in New Mexico. We've been running cattle on this spread for 130 years, and during this period my family has used firearms to defend their lives and property against rustlers, Apaches, etc. My distant Spanish neighbors have been on this land since the 1720s and they have the same independent spirit.
I'm not backpedaling, just giving credit to another point of view. There is no one size fits all solution to this sort of thing, but the question of a civil suit has to enter into picture.
OH58D
Littlelebowski
01-24-10, 16:45
Independent spirit is one thing, we even have a bit of that in Wyoming but killing and burying humans is another.
Jay Cunningham
01-24-10, 16:47
Point well taken. Painting a target with a laser identifier and launching an AGM 114 Hellfire is less personal from a distance. Killing is bad businss no matter no matter the situation. The guy in New York used poor judgement in shooting at a fleeing vehicle. Killing without being threatened is also morally and legally unacceptable.
Agree.
The question is what happens after a justifiable shooting? You have just taken a life but you have protected yours and your family. I can't imagine feeling good about it, but you should not have your life ruined because of some slick lawyer and leftist judges. We hear stories of burglars suing homeowners because they cut themselves on the glass in the window they just broke.
This is why we must make absolutely certain - to the best of our ability - that we know what constitutes a good shoot.
It's ok to use lethal force to save your life, but then have to spend thousands of dollars to defend yourself against a lawsuit? If you lose then does the house have to be sold as part of the settlement? Does your wages get garnished for the rest of your working days? Perhaps the laws need to be changed to prevent such lawsuits?
We must deal with the way the world really is vs. the way the world "should be."
The Shoot, Shovel and Shut Up philosophy didn't start with me, but it has merrit.
This is not the old days, my friend.
Hey OH-58D, mind if I lease about 18 square feet of that ranch if the need ever presents it's self?
I won't shoot to kill just for property,
That sort of thing is a very personal decision, and I'm certainly not going to tell anyone else that their choice is right or wrong - but in my case, **** 'em. That property they're running off with, or the damage they might cause, might mean me or my family losing a roof over their heads in the near future. If shooting is the only thing that will stop them, then there will be shooting. Which is, of course, per the law here. - if someone is running off with your shit, you're simply not going to see them (or your stuff) again.
Theft around here is getting utterly ridiculous; it's not just tweakers anymore, and they're not just stealing copper or tools either.
Hey OH-58D, mind if I lease about 18 square feet of that ranch if the need ever presents it's self?
May I ask why you need 18 square feet?:confused:
OH58D
May I ask why you need 18 square feet?:confused:
OH58D
3x6=18... you don't get it?
This is not the old days, my friend.
Those days were never good. Each day was survival mode. What you had, you had to fight to keep, and there was always some vagabond cow tramp with a gun ready to steal from you, and kill you in the process if needed. This ranch also provided food and supplies to the Pat Garrett posse in the hunt for William F. Bonney, aka Billy the Kid, in the early Winter of 1881. My great grandfather and his brother appear in a few articles in the Las Vegas Optic Newspaper regarding assorted shootings.
I run 370 head of cattle and 19 horses on 4400 acres deeded and 6000 acres BLM lease. Our biggest problem is trash from the larger cities coming out here trying to steal anything that's not tied down. We have a local rancher's association that meets the first Thursday of each month and we are what you could call in loose terms, a militia. Members of our group are also part of the Sheriff's mounted posse.
FYI, the Triple S (Shoot, Shovel, Shut Up) did not start with illegal animal killing and the Endangered Species Act. They actually stole the term that was in use late in the 19th Century.
Anyway, an interesting and spirited (but civil) discussion. That's what I like about M4Carbine.net.
OH58D
3x6=18... you don't get it?
The 18 square feet is too much. Using a hand shovel, we hit rock hard clay out here just over 4 feet. 12 square feet would work just fine if we add a layer of rock, more soil and then another layer of rock. This helps discourage the coyotes.:)
OH58D
Littlelebowski
01-24-10, 18:39
Post removed.
I gather you do this often since you seem to know so much about it or are you just talking out of your ass?
John_Wayne777
01-24-10, 18:43
And this incident happened in New York. Even if it is legal, it doesn't mean it is the smart thing to do.
In NYS I believe they have a duty to retreat before using lethal force. Ditto NJ. I could be wrong about that because it's been a while since I investigated lethal force laws and court interpretations in those states. Blasting at fleeing criminals would tend to violate those principles.
SW-Shooter
01-24-10, 18:44
What part of don't shoot at a fleeing suspect don't they understand. Fight the threat, if the threat leaves they'll just come back and kill you in your sleep. The police will protect you.
Good/bad shoot. Good that he had the balls, bad because he needs more range time. I'm a bit rusty but even with the adrenaline push and ringing ears I can still put the rounds on target. Something a Soldier never forgets.
John_Wayne777
01-24-10, 18:49
The question is what happens after a justifiable shooting? You have just taken a life but you have protected yours and your family. I can't imagine feeling good about it,
I can. If he was there to hurt my family and he's now at the pearly gates getting a reject stamp from St. Peter...well...good. That's what he deserves. Having feelings that can be described as "positive" after a gunfight isn't something people talk about often because it disturbs the average person who treats killing another person as the most horrible thing ever...even if that person was a scumbag and putting them down was the most morally and legally righteous action that could possibly be taken. Some people have no more emotion over the event than they would over having stepped on a cockroach.
That's fine. They shouldn't say that to just anybody, but it's fine.
It's ok to use lethal force to save your life, but then have to spend thousands of dollars to defend yourself against a lawsuit? If you lose then does the house have to be sold as part of the settlement? Does your wages get garnished for the rest of your working days? Perhaps the laws need to be changed to prevent such lawsuits?
That's something that pro-gun groups are working to reform all over the country. Generally speaking, however, if you limit yourself to the use of lethal force ONLY when you are 100% convinced that it's either him or you/your family/an innocent person the odds of litigation are minimized. While there are examples in the legal system of some pretty stupid cases, it's actually kinda hard to pitch wrongful death when the guy was in your house at 3 am with a bloody machete and a hard-on heading for your young daughter.
"He deserved it." is no longer a justification for the use of lethal force. In bygone days it was, and every now and then in our modern world you see that grand juries or juries will adopt that as an acceptable justification...Joe Horn is an example...but it's not a phenomenon anyone should rely on.
Jay Cunningham
01-24-10, 18:52
Do not post endorsements of illegal activities on M4C.
SW-Shooter
01-24-10, 18:53
I agree with the 100% part. My mom once told me "If it feels wrong, it probably is", she isn't the only person to have said it though.
I can. If he was there to hurt my family and he's now at the pearly gates getting a reject stamp from St. Peter...well...good. That's what he deserves. Having feelings that can be described as "positive" after a gunfight isn't something people talk about often because it disturbs the average person who treats killing another person as the most horrible thing ever...even if that person was a scumbag and putting them down was the most morally and legally righteous action that could possibly be taken. Some people have no more emotion over the event than they would over having stepped on a cockroach.
That's fine. They shouldn't say that to just anybody, but it's fine.
That's something that pro-gun groups are working to reform all over the country. Generally speaking, however, if you limit yourself to the use of lethal force ONLY when you are 100% convinced that it's either him or you/your family/an innocent person the odds of litigation are minimized. While there are examples in the legal system of some pretty stupid cases, it's actually kinda hard to pitch wrongful death when the guy was in your house at 3 am with a bloody machete and a hard-on heading for your young daughter.
"He deserved it." is no longer a justification for the use of lethal force. In bygone days it was, and every now and then in our modern world you see that grand juries or juries will adopt that as an acceptable justification...Joe Horn is an example...but it's not a phenomenon anyone should rely on.
John_Wayne777
01-24-10, 18:56
I agree with the 100% part. My mom once told me "If it feels wrong, it probably is", she isn't the only person to have said it though.
I've said many times here and on other boards that if somebody is in my house and he is trying to take my DVD player, I'm not inclined to shoot him over it. If, however, I believe he means to harm me or my family then he's made the worst mistake of his life. I won't let that happen.
A DVD player costs 100 bucks. A shooting, even one that is 100% by the book, costs a lot more than that.
I've said many times here and on other boards that if somebody is in my house and he is trying to take my DVD player, I'm not inclined to shoot him over it. If, however, I believe he means to harm me or my family then he's made the worst mistake of his life. I won't let that happen.
A DVD player costs 100 bucks. A shooting, even one that is 100% by the book, costs a lot more than that.
I agree with the financial reasoning. I will add that anyone found burglarizing my home will not likely live to stand trial. I have no desire to ever kill anyone. However I feel that the act of burglary carries an imminent threat to me or my family if we are present. It takes a person that is desperate to violate my home and desperate people are not generally rational. By the act they have committed they have endangered anyone present.
It's a no go to shoot the vehicle as it's leaving, no doubt. I think he got buck fever and confronted the dirt bags too early. Although I cannot suggest all burglars should be shot I wouldn'y loose any sleep over any and all that are shot dead in the commission of thier crimes.
John_Wayne777
01-24-10, 19:30
I agree with the financial reasoning.
The costs aren't solely financial. Having your neighbors see the cops wheel a body bag out of your house is a cost. Having your kids exposed to a dude bleeding out in your living room is a cost. Having everybody you know in your life look at you funny because you killed somebody is a cost.
Etc.
I will add that
I would personally advise that you edit out that statement...post haste. If somebody got ahold of that in the aftermath of a shooting it could only complicate your life.
However I feel that the act of burglary carries an imminent threat to me or my family if we are present. It takes a person that is desperate to violate my home and desperate people are not generally rational. By the act they have committed they have endangered anyone present.
It's certainly dangerous, but in my mind (and in most jurisdictions) emminent threat is an objective condition that requires means, opportunity, and manifest intent. In other words, if the guy is in my house at 3 am he has the opportunity to hurt me. If he has a gun/knife/bat, he has the means to hurt me. If he's making any sort of aggressive movement he's manifested the intent to hurt me. That authorizes lethal force as a response.
Somebody just in my house is certainly not going to get the cookies-for-Santa treatment...but I'm not going to pull a trigger unless I'm convinced that he is there to kill me or cause great bodily harm. Now he's going to have a gun pointed at his face while I determine that, but absent that element I'm not pulling the trigger. Lethal force is a last resort to me...something I'm not willing to use unless I'm convinced it's 100% necessary. If the bad guy makes it necessary so be it.
It's a no go to shoot the vehicle as it's leaving, no doubt. I think he got buck fever and confronted the dirt bags too early.
I am 100% in favor of taking actions that convince the bad guy to seek weaker prey rather than take the risks of letting it get to the point where bullets are flying. Having to actually fire a weapon to stop the hostile actions of some asshole in your house *sucks*. I would rather not do that if I have any option. If the bad guy leaves me with no option, so be it. If, however, I can convince him that he's ****ing with the wrong hombre before it gets to that point, happy day. If it prevents having to answer for a dead guy in my living room then it's worth it.
Although I cannot suggest all burglars should be shot I wouldn'y loose any sleep over any and all that are shot dead in the commission of thier crimes.
Take Joe Horn as an example. His was probably the stupidest use of force I can recall offhand. He did everything 100% wrong...but I don't say that because I have any particularly warm feelings for the dead guys. Feeding worms is probably the first positive contribution they've made to the universe.
Just for information, in the State of New Mexico, lethal force against an intruder is considered justified if:
1. The intruder is actually inside your home
2. You feel your life is in danger, or that of family members
We've had a variation on that just last week in Albuquerque, when an unknown person was using a sledge hammer to bust down the door of a homeowner late one night. Homeowner shot and killed the person. It is being reported as a justifiable killing. Who knows if there will be civil litigation.
Like other States, New Mexico also considers your vehicle as an extension of your home, for carrying the firearm, etc. Shooting a car jacking suspect who is attacking you, or trying to get at you inside your vehicle has been considered justifiable as well.
Good State for gun laws. Open carry is quite normal and very legal out here in cattle country. In some of the ranching communities, and even the bigger cities, we see open carry of a pistol in holster all the time.
OH58D
Jay Cunningham
01-24-10, 20:34
Just for information, in the State of New Mexico, lethal force against an intruder is considered justified if:
1. The intruder is actually inside your home
2. You feel your life is in danger, or that of family members
We've had a variation on that just last week in Albuquerque, when an unknown person was using a sledge hammer to bust down the door of a homeowner late one night. Homeowner shot and killed the person. It is bering reported as a justifiable killing. Who knows if there will be civil litigation.
Like other States, New Mexico also considers your vehicle as an extension of your home, for carrying the firearm, etc. Shooting a car jacking suspect who is attacking you, or trying to get at you inside your vehicle has been considered justifiable as well.
Good State for gun laws. Open carry is quite normal and very legal out here in cattle country. In some of the ranching communities, and even the bigger cities, we see open carry of a pistol in holster all the time.
OH58D
Open carry is a whole separate thread.
It's NY. You can't start fighting crime or they will run out of Democrats.
Belmont31R
01-24-10, 23:07
"In Texas you can shoot fleeing robbers."
No, you can't.
"Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury."
No, you can't just shoot fleeing robbers, even in Texas. Under the State Code provision you posted, had the above New York event occurred in Texas it would still have been a bad shoot.
Dumb-ass uses of AR's and other weapons classified as "assault weapons" such as occurred in the original post only give ammunition to the other side when they start talking about restricting carry and outright bans. This dumb-ass not only screwed himself, he screwed all of us with his cowboy antics.
Fixed, and tell that to the people who get no billed for doing just that. http://en.wikipedia.org/wiki/Joe_Horn_shooting_controversy
Littlelebowski
01-25-10, 07:16
I carry the 6920 in a soft leather scabbard lined with flannel. The Colt has the carry handle removed and no optics but an A.R.M.S. 40 folded BUIS for my sight. An optic would get banged around too much traveling through brush and such.
Off topic but since you're on this site, you'd do well do read up on and then ask questions if you need to, Aimpoint and Trijicon optics. Either one would be fine traveling through the brush.
Interesting. At least in the case of law enforcement, we cannot shoot a fleeing burglary suspect as was ruled in Tennessee vs Garner unless the suspect poses a threat of serious injury or death to the officer or others. I wouldn't be surprised if the Texas law is changed once a "questionable" shooting incident occurs with a homeowner. I like the law, but I just don't see it holding up in this day and age.
So far in here in Texas it has held up. There have been several high profile shootings, and the homeowner/property owner has prevailed.
Off topic but since you're on this site, you'd do well do read up on and then ask questions if you need to, Aimpoint and Trijicon optics. Either one would be fine traveling through the brush.
The leather scabbard I carry the Colt 6920 on horseback provides only basic protection and it designed for the rifle to slide in and out easy. The optic on top would get a lot of wear on it. I'm sure the above mentioned optics have more than proven themselves in some of the worst conditions in combat, but I would rather not spend $550 to $1300 on fine equipment and beat it to death. The Colt takes enough abuse. Especially since I am not in a life or death combat situation daily. I do enjoy that 6920 HBAR; best varmit rifle for ranch work.
Back to my air cav days, I always carried a CAR-16 secured behind my seat. For the longest time I was a troop commander and usually flew left seat/gunner and had a CWO as pilot.
OH58D
but I would rather not spend $550 to $1300 on fine equipment and beat it to death.
there's not really any point spending the money for a quality optic if you're not going to put it to work.. that's the whole reason people spend the money- it takes the abuse.
otherwise, if we're going to baby the shit, cheap ass chicom crap would work fine.
my two pesos.
Interesting update: 14 out of 15 rounds hit the vehicle. Vietnam Vet, step-daughter is one of the burglars hooked on drugs... and so the plot thickens. http://www.buffalonews.com/cityregion/story/941022.html
Hunting season has been in full swing for a couple of weeks, at least in Niagara County, but the prey isn't deer or turkeys.
Burglars have been dodging bullets.
Homeowners are mad as heck, and they're fighting back at the intruders.
Three times in Niagara County over a one-week period — and once in Buffalo last April — homeowners confronted home invaders with gunfire.
Not all the shots found their marks, but the four incidents left one burglar dead, another shot in the chest, and one homeowner who didn't hit anyone charged with two felonies.
"I'm not Rambo," said Dennis F. Cherry of Royalton, the homeowner facing the felonies. "If somebody knocked on my door, I'd put gas in their car."
Cherry, a soft-spoken and polite Army veteran, said he was protecting himself from a home burglary at about 11:20 a.m. Jan. 21, when he fired 15 shots from a military-style assault rifle at the vehicle of a fleeing intruder.
This shooting occurred during the second burglary in three days at his Akron Road home, and Cherry said he believed the two burglars — one was his stepdaughter — had stolen a handgun. He claimed he knew they were on drugs, knew they were coming back and was afraid they were armed.
"I wasn't trying to kill anyone," he said in an interview in his Lockport attorney's office last week. "I didn't fire at the windshield. I fired at the radiator and the tires.
"I didn't want to wait two days later and have him come back and beat my head in with a baseball bat," Cherry added. "When people get into drugs, they don't care what they do. I wanted to stop him. What if the cops came eight minutes later and the cops had a problem with him? I don't know. I've gone through this in my mind a thousand times."
But the 63-year-old Cherry, a retired Harrison Radiator employee who served in Vietnam 38 years ago, now faces felony charges of reckless endangerment and criminal mischief for firing 15 shots. Fourteen of the 15 struck the vehicle.
That shooting and arrest, along with the two other recent incidents in Niagara County and last year's fatal shooting in Buffalo, have touched off a huge debate about homeowners shooting at those who invade their homes.
These are the other incidents:
• Willie J. Carson, 52, shot Parrish C. Spencer Jr., 22, in the chest Jan. 20, after the younger man broke into Carson's 25th Street home and went upstairs, Niagara Falls police said.
No charges have been filed against Carson, but police have said the case has been turned over to the Niagara County district attorney's office for further investigation.
• An 82-year-old Niagara Falls man, apparently scared and confused after a group of teens attempted to break into his home Jan. 15, fired one shotgun blast at police after they entered the home and found him hiding behind a closed door.
No one was hit, and the elderly man was not charged.
• Charles E. Gidney Sr., an off-duty Buffalo police officer, shot and killed one intruder, Reno D. Sayles, 36, and seriously wounded another inside his Buffalo home last April 22.
In his statement to police, Gidney said he grabbed his handgun, pointed it at the two men, one wearing a ski mask, and ordered them to "freeze." Instead, they rushed at him, and he fired several shots, he said.
An Erie County grand jury cleared Gidney in July, ruling the shootings a "justifiable use of deadly physical force," District Attorney Frank A. Sedita III explained.
These cases raise the issue of whether armed citizens have the legal — and moral — right to fight back, and whether they have to believe they're facing imminent physical danger to be justified in shooting an intruder.
Interpretations differ
Law-enforcement officials and legal experts have different interpretations of the law.
Niagara County Sheriff James R. Voutour said state law permits deadly physical force only when there's a threat of deadly physical force against the person.
"Otherwise, we'd have a Wild Wild West out there," he said.
"You have a duty to retreat if you can," Voutour added. "I'm not saying if I agree or disagree with it. That's New York State Law."
But Thomas H. Burton, who successfully represented Gidney, the off-duty Buffalo police officer, said that a person in his own home can use deadly force if it's "reasonably necessary" to foil a burglary.
"You don't have to believe that you're going to get hurt to pull the trigger," Burton said. "The law doesn't go that far. However, if you tried to stop the burglary without shooting someone, that obviously would play better with the grand jury."
The problem for Cherry, who fired the 14 shots into the vehicle, is that the shooting occurred outside the home, and authorities say the intruder was fleeing.
If so, law-enforcement officials say his actions don't seem to fit the definition of "justifiable defense" inside your home.
As Burton said of such cases, shooting an intruder inside your house during a burglary is probably permissible under the law.
"Outside, in the street, when the person presents no threat to you, I'd be calling my lawyer right after 911," he said.
Cherry has another view.
Following the first burglary, he got his gun and waited for the two young people.
He said his stepdaughter, Jenna M. Zsebhazy, 18, and Anibal R. Cordero, 24, both of Lockport, pulled into his driveway and drove into his open garage. He held on to Zsebhazy and ordered Cordero out of the car at gunpoint.
"The car was at my knees and lurched forward," Cherry said, adding that it had tinted windows and he had no idea who else was in the car.
"I don't do things like this on a regular basis," he said, showing his frustration about the pair of burglaries. "Maybe more people should."
State Police Capt. Craig Hanesworth said the break-ins of Cherry's home appear to be drug-related, with the thieves looking for things to sell to buy drugs. He also said it is common practice for burglars to come back to such a burglary scene.
Hanesworth said the physical evidence at the scene did not show any evidence that the car was coming at Cherry and that he was in any imminent danger.
"Mr. Cherry detained his stepdaughter, and when the male suspect in the car sees the gun, he immediately puts it in reverse to try and get out of there, and that's when Mr. Cherry starts firing at the car," Hanesworth said.
But Cherry's attorney, Jon Louis Wilson of Lockport, said Cherry did not give his full statement to state police at the scene. Wilson said he would consult with the district attorney in an attempt to have all charges dismissed against his client, who has been released on his own recognizance.
A tricky issue
Both Cordero and Zsebhazy, charged with attempted burglary, have been released from Niagara County Jail after posting $5,000 bail each. They also are being investigated for another unrelated burglary in the Lockport area.
The shooting of intruders represents a tricky issue for gun advocates, who support the rights of people to be armed but who caution against those homeowners going too far.
"Obviously, you have a right to [use a gun] if somebody breaks into your home and you're defending yourself," said Stephen J. Aldstadt, chairman of the Erie County chapter of the Shooters Committee on Political Education. "You're the victim in the case, and you should not be charged as if you're the criminal."
And the four incidents in Niagara and Erie counties in the last year?
"I think it is a good thing these people were armed and were able to defend themselves," he responded. "Obviously, it's never a good thing when anyone gets killed, but it's obviously better than the law-abiding person being killed in his own home."
How about the case of Cherry, who's accused of firing at a fleeing intruder?
"The reality is that, if you're not in imminent danger and the person is fleeing from you, it's rarely, if ever, advisable to shoot," Aldstadt said.
Even law-enforcement officials realize how tough it is to judge Cherry's actions in firing at the fleeing vehicle.
"We have the right to bear arms, and I very much support those laws, but penal laws are very clear," Sheriff Voutour said.
"A lot of people think what [Cherry] did was the right thing, but a lot of people don't have all the facts," the sheriff added. "If his attorney can prove that he was in imminent fear of this guy using deadly force against him, then he will be justified."
Voutour said he can understand Cherry's frustrations with the legal system. And he added that the split-second emotions in use-of-force cases are difficult, even for trained officers.
"None of us were there," Voutour said. "None of us saw what he saw."
Police took the rifle that Cherry used to shoot at the intruders. He did not say whether his other weapons also were confiscated.
I'd like to see a pic of this scabbard too. I've got access to a leather sewing machine and know just enough about it to be dangerous. I've been thinking about making something like this for a while, and wouldn't mind a few ideas. And yeah, I think most of your higher end ruggedized optics would stand up to the abuse. If you're still that worried about it, consider putting it on an ARMS or Larue mount so you can take it off and carry it separately. I'd imagine that on a ranch in New Mexico, the added range would come in pretty handy.
The leather scabbard I carry the Colt 6920 on horseback provides only basic protection and it designed for the rifle to slide in and out easy. The optic on top would get a lot of wear on it. I'm sure the above mentioned optics have more than proven themselves in some of the worst conditions in combat, but I would rather not spend $550 to $1300 on fine equipment and beat it to death. The Colt takes enough abuse. Especially since I am not in a life or death combat situation daily. I do enjoy that 6920 HBAR; best varmit rifle for ranch work.
Back to my air cav days, I always carried a CAR-16 secured behind my seat. For the longest time I was a troop commander and usually flew left seat/gunner and had a CWO as pilot.
OH58D
In the 3 yrs I carried a gun for a living in the civilian world I only pulled my weapon on three people. 1. An attempted kidnapping, 2. A guy who reached under his car seat while I was standing next to his car, stolen .357 magnum was discovered under his seat, and finally, a group of teens driving their car straight towards me after commuting a burglary. In my training our lead instructor pounded the saying into our thick skulls. "It is not enough to be right in what you do, but being able to effictively articulate the situation and the evidence that supports your actions".
Interesting update: 14 out of 15 rounds hit the vehicle. Vietnam Vet, step-daughter is one of the burglars hooked on drugs... and so the plot thickens. http://www.buffalonews.com/cityregion/story/941022.html
If the suspects vehicle was struck 14 out of 15 times in the radiator that says to me that the car was traveling towards him, thereby this might be justified. If I read that correctly.
Judging by the pictures of his driveway I'd say it was more likely that they were backing down it away from him.
If the suspects vehicle was struck 14 out of 15 times in the radiator that says to me that the car was traveling towards him, thereby this might be justified. If I read that correctly.
Seems it was not going towards him.
"Mr. Cherry detained his stepdaughter, and when the male suspect in the car sees the gun, he immediately puts it in reverse to try and get out of there, and that's when Mr. Cherry starts firing at the car," Hanesworth said.
TheActivePatriot
02-08-10, 11:16
This is my take on the matter:
It is morally right under ANY circumstances to end the lives of those who do evil, both for your own safety as the current victim and because it is the only way to ensure that they will have no more future victims.
Unfortunately, the present legal system does not agree. As obedience to the law is necessary to the existence of stable society, we as good citizens are obligated to use deadly force only when there is legal justification for doing so, except in certain rare, extreme circumstances.
Except in situations where the law for practical purposes does not exist, it is more "right" to do what is legally just than what is morally just.
As an example, if my next door neighbor were a hardcore gangbanger, in a functioning society it would be wrong to go kill him unless he were actively a threat to my life.
In a long-term breakdown of social order where there is no legal system to protect him, however, it would be morally right to put a bullet in his head when the steps out his front door. A human predator deserves to die because of what he is, and preventing him from taking advantage of a bad social situation in an evil way outweighs the perceived "wrongness" of using lethal force against someone who is not a direct threat.
Why are so many people jumping to conclusions on whether or not the shooting was justified without knowing the facts?
If all the Police have to claim that the vehicle wasn't coming towards the homeowner at the time of the shooting is the word of the two drug addicts accused of being involved in this and an earlier burglary I would hope the charges will be dropped.
If they have compelling testimony from reliable witnesses or good physical evidence that this guy lit up a fleeing van without ever having been threatened by the occupant (for example the van never came at him and then started to back up, leaving him wondering if they were gonna make another pass) I hope the homeowner is prosecuted for this.
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