View Full Version : NY - Man arrested for defending home against gang w/AK-47
I thought this was worth posting and could lead to some interesting discussion. Follow link for video & report: http://newyork.cbslocal.com/2010/09/07/long-island-man-arrested-for-defending-home-with-ak-47/
Disparity of force comes to mind and protection of one's family.
Perhaps, but where in the civilian environment, besides the movies, have warning shots been an acceptable deterrent? I'd have thought that the presence of the rifle would have been deterrent enough, but that's just me.
Disparity of force is pretty evident, regardless of if they were gang members or not. Still, I'd have preferred to let them come to me, not go to them and try to run them off. When I read this article the other day, it sounded like he had gone out to where they are. That's a pretty aggressive move.
Perhaps, but where in the civilian environment, besides the movies, have warning shots been an acceptable deterrent? I'd have thought that the presence of the rifle would have been deterrent enough, but that's just me.
I agree with you. However, I believe his intention was to show that he was committed to using it from what I read & listened to.
Belmont31R
09-09-10, 14:33
I personally don't see what he did wrong. Asked them to leave his property, and they then refused to leave and threatened his life (at least verbally).
I also think its pretty sad when a person responds to criminal behavior that could very potentially put his life in jeopardy, his families life in danger, property, ect, and he ends up being the one sent to jail.
He's also being charged with a felony and may not be able to possess a firearm ever again, which I think is BS.
Thomas M-4
09-09-10, 14:37
Perhaps, but where in the civilian environment, besides the movies, have warning shots been an acceptable deterrent? I'd have thought that the presence of the rifle would have been deterrent enough, but that's just me.
Disparity of force is pretty evident, regardless of if they were gang members or not. Still, I'd have preferred to let them come to me, not go to them and try to run them off. When I read this article the other day, it sounded like he had gone out to where they are. That's a pretty aggressive move.
I have had too. Dang wild dogs hiding under the truck.
I feel for the guy I might have done the same. With a bunch of shit birds on my lawn.
Reads like what got him into trouble was firing the warning shots. Another example of them being a bad idea.
What's NY law regarding property/home defense?
woodandsteel
09-09-10, 14:47
I'm not sure on the one.
I don't believe he should be charged with a felony. Especially when the lawyer spelled out what is needed in order to charge someone with it.
As far as shooting the gun, I'm leaning towards he shouldn't have done that, only for the reason that many places consider firing the gun as deadly force.
But, then again, his lawn was maybe 10 to 20 feet from house to street? With a gang forming and threatening his family, a person should be free to defend himself. If members decided to charge at him or the house, he wouldn't have much time to react. I could see where he was in fear of his and his family's safety.
I hate the idea of gang banging scum seeing a law abiding citizen being arrested when they are the one causing the problem.
I wish the home owner the best of luck. And I hope he gets his ak back soon. He's going to need it.
woodandsteel
09-09-10, 14:48
What's NY law regarding property/home defense?
That's what I would like to know as well.
What's NY law regarding property/home defense?
New York law states that you can only use physical force to deter physical force. However, the physical assault of 25 gang members against one man clearly constitutes deadly force, not physical force. http://law.onecle.com/new-york/penal/PEN035.20_35.20.html
Articles/events like this is why I love living in Colorado where we have the liberty to defend ourselves without worrying. Screw NY laws; they are arse-backwards.
No one has the right to tell me what a proportionate resposne to my life/families lives being put in jeopardy is; that is up to me alone to decide.
How anyone can be charged for protecting themselves/their family is so far beyond me I cannot even conceptualize it...
Really? So firing warning shots is Ok in Colorado? I live in AZ and we have some of the best laws when it comes to self defense and firearms. But, firing warning shots is a NO GO as far as I know and I suspect that in many other places it is as well.
I personally think (not a lawyer) that he should have actually shot some of them and he may have been better off. He could then possibly claim that due to the disparity of force he felt it was necessary to shoot.
He also should have shut up and called a lawyer first.
Articles/events like this is why I love living in Colorado where we have the liberty to defend ourselves without worrying. Screw NY laws; they are arse-backwards.
No one has the right to tell me what a proportionate resposne to my life/families lives being put in jeopardy is; that is up to me alone to decide.
How anyone can be charged for protecting themselves/their family is so far beyond me I cannot even conceptualize it...
I personally think (not a lawyer) that he should have actually shot some of them and he may have been better off. He could then possibly claim that due to the disparity of force he felt it was necessary to shoot.
He also should have shut up and called a lawyer first.
Shoot a couple of the pricks and then the rest will be back for vengeance... Either way it's a shitty situation and he probably should've stayed in the house til the cops came.
I agree. Had they tried to enter or succeeded then he would have had a much stronger case. Go outside the house is probably not the wisest choice to make.
Even firing warning shots at these douchebags is enough for them to seek revenge. I wish that someone would finally call this group what it really is- a terrorist organization and go after them in full force.
Shoot a couple of the pricks and then the rest will be back for vengeance... Either way it's a shitty situation and he probably should've stayed in the house til the cops came.
New York law states that you can only use physical force to deter physical force. However, the physical assault of 25 gang members against one man clearly constitutes deadly force, not physical force. http://law.onecle.com/new-york/penal/PEN035.20_35.20.html
Interesting. The info at the linked site only mentions burglary of an occupied building and arson as being defensible by deadly force. It specifically exempts deadly force from being used in cases of criminal trespass.
If the ~25 people tried to rush him, fire away. If they were standing on the sidewalk, running their mouths, might be a different story depending upon NY law.
If his lawyer is good, he might be able to get the charge tossed out or at least reduced to a BS misdemeanor. I wish him luck.
Belmont31R
09-09-10, 15:18
Really? So firing warning shots is Ok in Colorado? I live in AZ and we have some of the best laws when it comes to self defense and firearms. But, firing warning shots is a NO GO as far as I know and I suspect that in many other places it is as well.
I personally think (not a lawyer) that he should have actually shot some of them and he may have been better off. He could then possibly claim that due to the disparity of force he felt it was necessary to shoot.
He also should have shut up and called a lawyer first.
In TX you can use force or deadly force to terminate one's trespass or unlawful interference on personal property. Deadly force is you can not end the trespass or unlawful interference without risk of death or serious bodily injury.
In this situation he would have been GTG here. He asked them to leave, and they refused (becomes trespassing), and they were unlawfully interfering with his property. You can also shoot people who steal something from someone, and attempt to flee. Remember there was a case here maybe last year or 2008 with the guy witnessing his neighbors house being burglared, and the thieves attempted to flee. The neighbor, who was told by 911 to stay in his house and LE was on the way, went outside, confronted them, and killed at least one of the burglars as he was fleeing. He was no billed. You can google info on the case...his name is Joe Horn.
Really? So firing warning shots is Ok in Colorado? I live in AZ and we have some of the best laws when it comes to self defense and firearms. But, firing warning shots is a NO GO as far as I know and I suspect that in many other places it is as well.
I personally think (not a lawyer) that he should have actually shot some of them and he may have been better off. He could then possibly claim that due to the disparity of force he felt it was necessary to shoot.
He also should have shut up and called a lawyer first.
I agree. I don't think a warning show would be allowed in many states. I think he should have kept the weapon sholdered and be ready to shoot if one of them made any sudden movements. Stay in the doorway so as to not have someone sneek up behind him, something like that. But then again, it wasnt me and I don't know how I would have reacted.
20+ asshats vs one law a biding home owner seems like deadly force to me, but then again, Im not on the jury. It will be interesting to see how this pans out.
Really? So firing warning shots is Ok in Colorado? I live in AZ and we have some of the best laws when it comes to self defense and firearms. But, firing warning shots is a NO GO as far as I know and I suspect that in many other places it is as well.
I personally think (not a lawyer) that he should have actually shot some of them and he may have been better off. He could then possibly claim that due to the disparity of force he felt it was necessary to shoot.
He also should have shut up and called a lawyer first.
The “Make My Day” law states that a home occupant is “justified in using any degree of physical force” against an unlawful intruder if he reasonably believes the person “might use any physical force, no matter how slight, against any occupant.”
"Any degree" would theoretically also includes warning shots.
NY (and elsewhere) tends to put you under the thumb even if you are justified in a SD shooting.
I agree he should've shot one of the gang memebers or all of them if they continued the aggression.
I agree, never ever talk to cops; always have your lawyer do it; best advice ever...
I remember that case well. Generated lots of controversy. I fear that because it happened in New York that the attitudes will be different. I hope that it works out for him.
In TX you can use force or deadly force to terminate one's trespass or unlawful interference on personal property. Deadly force is you can not end the trespass or unlawful interference without risk of death or serious bodily injury.
In this situation he would have been GTG here. He asked them to leave, and they refused (becomes trespassing), and they were unlawfully interfering with his property. You can also shoot people who steal something from someone, and attempt to flee. Remember there was a case here maybe last year or 2008 with the guy witnessing his neighbors house being burglared, and the thieves attempted to flee. The neighbor, who was told by 911 to stay in his house and LE was on the way, went outside, confronted them, and killed at least one of the burglars as he was fleeing. He was no billed. You can google info on the case...his name is Joe Horn.
How do they define intruder? Is that someone on your property unlawfully or is it actually attempting or entering the residence?
Just curious. I personally will not be going outside to engage/ confront anyone unless they are zombies or I am left with no other choice. I prefer to stand my ground inside and allow them to enter which gives me an advantage legally and tactically.
The “Make My Day” law states that a home occupant is “justified in using any degree of physical force” against an unlawful intruder if he reasonably believes the person “might use any physical force, no matter how slight, against any occupant.”
"Any degree" would theoretically also includes warning shots.
NY (and elsewhere) tends to put you under the thumb even if you are justified in a SD shooting.
I agree he should've shot one of the gang memebers or all of them if they continued the aggression.
I agree, never ever talk to cops; always have your lawyer do it; best advice ever...
He better get the best lawyer money can buy and pray his ass off; I would never want to face a NY jury no matter what the charge.
In TX you can use force or deadly force to terminate one's trespass or unlawful interference on personal property. Deadly force is you can not end the trespass or unlawful interference without risk of death or serious bodily injury.
In this situation he would have been GTG here.
Had he shot them I would agree with you, but in Austin, at least, it is unlawful to disgcharge a firearm unless defending one's self, family or property. Warning shots are a no go. You either shoot them or you don't shoot at all - similar to what Iraqgunz posted at 3:16 PM.
Edited at add: BTW, IIRC, Joe Horn did not fire any warning shots, he just shot them. But I could be wrong. It was in Pasadena, TX.
How do they define intruder? Is that someone on your property unlawfully or is it actually attempting or entering the residence?
Just curious. I personally will not be going outside to engage/ confront anyone unless they are zombies or I am left with no other choice. I prefer to stand my ground inside and allow them to enter which gives me an advantage legally and tactically.
I would never think of going outside either; thats bad new bears all the way.
From make my day law.org:
(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
Fact that a homicide victim was on the defendant's porch does not permit the defendant to claim immunity from prosecution for unlawful entry to defendant's dwelling unless the court finds that defendant believed that the victim intended to commit a crime or use physical force against the defendant. People v. Young, 825 P.2d 1004 (Colo. App. 1991).
I would think the NY man believed that 25 thugs were going to commit a crime against him; and I believe he is very right in that respect. It would be hard to argue that (25) known violent gang memebres weren't posing a threat; regardless of if they broke into the home or not.
In fact; not being threatened by 20+ violent gang members congregating on your property would be incredibly unreasonable to me. I don't know one person who wouldn't feel threatened if 20+ tatted up thugs were outside looking like they were going to do something illegal/bad.
http://www.coloradomakemyday.org/
I'm still looking for the link, but I have seen cases where the intruder "called" the person in the home out so to speak; or the engagement occured on the property, and the shooting took place on the property but not in the dwelling; it was seen as justified in the courts; if I can find a link I will post it.
I have also seen cases where warning shots were fired outside the dwelling prior to shooting and killing the intruder, and they were seen as justified in the courts eyes.
I'll keep looking for some links...
If this happened in Colorado there would be no national story (unless the NY times picked it up to demonize guns and their nasty owners), just a little blurb in the local news paper and local TV News.
Belmont31R
09-09-10, 15:50
Had he shot them I would agree with you, but in Austin, at least, it is unlawful to disgcharge a firearm unless defending one's self, family or property. Warning shots are a no go. You either shoot them or you don't shoot at all - similar to what Iraqgunz posted at 3:16 PM.
What law says warning shots are not justifiable force?
What law says warning shots are not justifiable force?
My understanding is that if you aren't defending yourself as in shooting the bad guy because you were defending yourself, family or property (let's don't drag Joe Horn's defending his neighbor's property into this discussion even though it is lawful in TX), it is the unlawful discharge of a firearm. That is my understanding but I could be wrong.
My understanding is that if you aren't defending yourself as in shooting the bad guy because you were defending yourself, family or property (let's don't drag Joe Horn's defending his neighbor's property into this discussion even though it is lawful in TX), it is the unlawful discharge of a firearm. That is my understanding but I could be wrong.
Although warning shots are not a viable defesne; they are still used defensively; so I don't get what you are saying here?
It was the "warning shots" and shooting outside that got him in trouble for "reckless endangerment."
He needed to have retreated into his house and got his family into his house. Only if his family was being attacked outside the house could he have done that. He needed to retreat into the safety of his house in NY, not grab the gun from upstairs and go back out and confront them outside. In NYS you need to do everything you can to safely retreat into your house, not safely retreat into your house and then go outside and reengae them. If they were trying to break in he could have shot them. That is NYS law.
Belmont31R
09-09-10, 16:17
My understanding is that if you aren't defending yourself as in shooting the bad guy because you were defending yourself, family or property (let's don't drag Joe Horn's defending his neighbor's property into this discussion even though it is lawful in TX), it is the unlawful discharge of a firearm. That is my understanding but I could be wrong.
The Austin city code doesn't say you have to actually put rounds into another human being.
(B) A person may discharge:
(2) a firearm in the exercise of the person's express or implied right to discharge a firearm under state or federal law
Threat of force, force, and deadly force all fall under the realm of "defense of" according to state law, and state law doesn't outlaw warning shots.
Not saying they wouldn't try to convict you but the big cities in TX like to think they make up their own laws outside of TX state law. Houston got the AG on their ass for charging people with unlawful possession of a firearm despite the "traveling" exemption in state law, and even after it was revised by the state to prevent what Houston was doing. They continued to arrest people for unlawful possession, and the AG had to step in with threats.
pilotguyo540
09-09-10, 16:24
I think this is just a play by the left. We can discuss the merits and legality of warning shots all day but I think we are side tracking ourselves. The left just lost a pretty big supreme court battle over the second amendment. They cant stop gun ownership, so they will be restrict legal uses and transport and everything else they can think of. I think this will be the battle going forward. Every little hiccup will turn into a similar crucifixion.
Although warning shots are not a viable defesne; they are still used defensively; so I don't get what you are saying here?
I don't know what your state and local laws are in CO and wouldn't even try to apply our's to your's. Here is Austin's:
Austin City Code 9-6-7 FIREARM DISCHARGE RESTRICTED.
(A) Except as provided in Subsection (B), a person may not discharge a firearm:
(1) in the city limits; or
(2) on, across, or into Lake Austin or the Colorado River within the city limits.
(B) A person may discharge:
(2) a firearm in the exercise of the person's express or implied right to discharge a firearm under state or federal law
Again I say, and maybe I am wrong, it is my understanding that the exception in (B)(2) does not include warning shots.
I am not a lawyer nor did I stay at a Holiday Inn last night. And I have no clue what is legal in Colorado.
Belmont31R
09-09-10, 16:30
I don't know what your state and local laws are in CO and wouldn't even try to apply our's to your's. Here is Austin's:
Austin City Code 9-6-7 FIREARM DISCHARGE RESTRICTED.
(A) Except as provided in Subsection (B), a person may not discharge a firearm:
(1) in the city limits; or
(2) on, across, or into Lake Austin or the Colorado River within the city limits.
(B) A person may discharge:
(2) a firearm in the exercise of the person's express or implied right to discharge a firearm under state or federal law
Again I say, and maybe I am wrong, it is my understanding that the exception in (B)(2) does not include warning shots.
I am not a lawyer nor did I stay at a Holiday Inn last night. And I have no clue what is legal in Colarado.
A city cannot preempt state law here, and warning shots are not illegal by state law.
Yes the City of Austin would likely still try to charge you. Thats why I don't live in Austin or Travis Co.
Threat of force, force, and deadly force all fall under the realm of "defense of" according to state law, and state law doesn't outlaw warning shots.
Can your refer me to the correct section within the State law? I am not saying you are wrong, and hope that you are right, but I would like to see the language.
Edited to add after your previous post: I thought the State laws only dealt with the use of deadly force, not warning shots or otherwise discharging a firearm. Again, maybe I am wrong.
Belmont31R
09-09-10, 16:33
Can your refer me to the correct section within the State law? I am not saying you are wrong, and hope that you are right, but I would like to see the language.
http://www.statutes.legis.state.tx.us/docs/PE/htm/PE.9.htm
Charge him with discharging a firearm in an incorporated area and be done with it.
By his own words he never intended harm, and no victims are coming forward saying otherwise.
http://www.statutes.legis.state.tx.us/docs/PE/htm/PE.9.htm
Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
I guess it hinges on the interpretation of "otherwise" and I also would bet the lawyers would be fighting over that one in Austin. But I didn't get arrested, the guy in NY did. Maybe I missed it, but what does the guy's state and local laws say?
I don't know what your state and local laws are in CO and wouldn't even try to apply our's to your's. Here is Austin's:
Austin City Code 9-6-7 FIREARM DISCHARGE RESTRICTED.
(A) Except as provided in Subsection (B), a person may not discharge a firearm:
(1) in the city limits; or
(2) on, across, or into Lake Austin or the Colorado River within the city limits.
(B) A person may discharge:
(2) a firearm in the exercise of the person's express or implied right to discharge a firearm under state or federal law
Again I say, and maybe I am wrong, it is my understanding that the exception in (B)(2) does not include warning shots.
I am not a lawyer nor did I stay at a Holiday Inn last night. And I have no clue what is legal in Colarado.
I'm not talking about colo. VS TExas law; or applying either to the other. I am merely stating that a warning shot is used as a "Defense" (Not a viable one, but used as a defense none the less) so your statement that a warning shot is illegal because you are not defedning yourself makes no sense to me.
Belmont31R
09-09-10, 16:54
Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
I guess it hinges on the interpretation of "otherwise" and I also would bet the lawyers would be fighting over that one in Austin. But I didn't get arrested, the guy in NY did. Maybe I missed it, but what does the guy's state and local laws say?
Already mentioned but NYS is a duty to retreat state so him go confronting him removes his right to self defense. Its not a good idea to live in a duty to retreat state esp in a municipality that actively goes after people for self defense.
TX doesn't have a duty to retreat but there are exemptions to justified self defense. Such as you cannot provoke a fight, and then shoot the person in SD. You cannot verbally provoke a confrontation. You can read the exemptions at the link I gave you. Pretty basic stuff. Just don't be an instigator/provoker or being doing something illegal at the time.
So no "Castle doctrine" law in NY, huh?
To be honest, going outside and showing them that you have a gun was not the smartest thing. He should have stayed in and called the cops to disperse the crowd. That being said I can't really fault him for doing what he thought was needed to protect his family.
I've never been in that situation, so I don't know what I would do. I imagine that I would allow them to break the law (B&E) before displaying a gun or firing it. But to be honest taunting them with the fact that you have a gun will incite a "mob rule, who's going to be the badass in the gang to test this guy out" mentality.
So no "Castle doctrine" law in NY, huh?
There is nothing known as Castle Doctrine, but you can use deadly physical force against a burglar or homebreaker as long as you can make a credible argument that you were in fear of your life--as close the presence of a burglar or intruder would make most people.
Here is some relevant relevant NYS statutes:
http://i102.photobucket.com/albums/m115/edagain/nylaws2.jpg
In this case the shooter left the situation into the safety of his house and then returned with a firearm. Unless the aggressors were posing a threat to someone who was still out there, the threat was over once he retreated into the house.
Further, firing warning shots can be argued to be an indication that he did not feel justified in shooting the aggressors.
I agree. Had they tried to enter or succeeded then he would have had a much stronger case. Go outside the house is probably not the wisest choice to make.
Even firing warning shots at these douchebags is enough for them to seek revenge. I wish that someone would finally call this group what it really is- a terrorist organization and go after them in full force.
Ditto that
those thugs will be back and realize he has a gun so they will take full advantage of that fact ! or the fact he might not have a gun now and take full advantage ?
I would love to know if a garden wall fence etc.. on edge of your property with a locked gate on it ? so someone inside that wall had to go over a wall or over a locked gate was more trespassing ? inside/outside living ?
I was going to do this to our place build a wall in front yard and gate anyway ?
but curious if that is more justified ? since they would be INSIDE your outdoor LIVING space ?
Don Robison
09-11-10, 16:43
What law says warning shots are not justifiable force?
In many if not most states warning shots are considered deadly force. Why would you use deadly force and intentionally miss?
I just ran a news search and this was on the top of the list:
www.myfoxny.com/dpp/good_day_ny/Man-Fires-At-Gang-On-His-Lawn-Uniondale-20100909
I think it's worth the time to watch the videos. If the homeowner's story is basically true , lethal force would have been legally and ethically justified at the moment he fired the warning shots. The young man demonstrated restraint above and beyond that required by law or any rational ethical system , but he is charged with a felony that includes "depraved indifference to human life ".
Seems exactly backwards to me.
Give the vid's a careful look & listen and see what you think.
GermanSynergy
09-15-10, 17:30
Most Blue states/municipalities favor the criminal over the law abiding citizen. I pray for this man but fear that he will lose his RKBA over this. :mad:
Moose-Knuckle
09-15-10, 18:08
Shoot the oxygen thieves, call 911 and say little as possible, then call your attorney. Exercise your right to remain silent and invoke your right to council. Expect to spend the night in jail like a criminal.
Warning shots.. What warning shots.. I was trying to shoot them.. I'm just that bad of a shot..
That's my story I'm sticking to it.
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