A Colorado jury has rendered a rare award to the family of a burglar killed in the course of a crime. Verdicts like this one are likely to be used by advocates of Castle Doctrine or “Make-My-Day laws — laws designed to protect citizens from criminal liability in the protection of their homes, or in some cases, their businesses. The El Paso jury awarded roughly $300,000 to the family of Robert Johnson Fox, who was shot in the course of an attempted burglary of a car lot.
Fox broke into Southwest Auto Sales in 2009 with a friend, Brian Corbin. Corbin testified that two armed men came running toward them — one shouting “we’re gonna get you.” Numerous shots were fired and Fox, who went into a small shed, was hit by a .45-caliber rifle bullet that passed through the shed’s door. Notably, Fox had knives in his pockets and one strapped to his ankle, but the police found that he presented no threat to Milanovic or father Ljuban Milanovic and brother-in-law Srdjan Milanovic.
Fox, 20, left a three-year-old daughter who will receive $269,500 for loss of companionship and loss of future earnings. The six-person jury deliberated for over two days before rendering the verdict.
There have relatively few cases of civil liability for the killing or shooting of burglars. The premise of such liability is that you cannot kill or maim for property. However, make-my-day laws statutorily dictate that any entrance into a dwelling constitutes a threat to person not property. This triggers the privilege of self-defense. This protection has been extended to include not just homes but their curtilage. One such case was Katko v. Briney, 183 N.W.2d 657 (Iowa 1971), where the defendant owned an unoccupied farmhouse left to him by his parents. It was repeatedly broken into despite no trespass signs and boards on the windows. Briney then wired the house with a snare gun and shot Katko. He was found liable. While this case also addresses the common law rule against man traps or snare guns, it was premised on the principle that that no property is worth more than a human life. The court held:
“The intentional infliction upon another of harmful or offensive contact or other bodily harm by a means which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other’s intrusion upon the actor’s possession of land or chattels, is privileged if, but only if, the actor reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect.”
This case presents a more difficult case for the defense as a business rather than a home. Notably, if Fox was brandishing a knife, the result would likely have been different. However, the witness insisted that the shooting began without any threat. Notably, there is no record of a criminal charge in the case.
We have seen cases, including the Horn case in Texas, where there was no threat to a homeowner, but no criminal charges were brought.
Source: Gazette
Jonathan Turley
http://www.denverpost.com/breakingnews/ci_18690929?source=rss This happened in El Paso County Colorado. The man was shot by three heavily armed mechanics that decided to take justice into their own hands. It has nothing to do with the crime in Juarez that I can see.
“Perception is real when it is your reality”
Bingo!
Is anyone “a reasonable person” when pumped up on adrenaline?
“I had to kill him, your honor, he scared me nearly to death.”
How do you sort that?
nal,
I think that the guy was in a shed and the other felt a bullet pass them by….Ig I was high on meth…and I came to your door….your perception might be different than a Monday morning quarterback…..I have been shot at…I have had a revolver pulled on me and they stated “white boy” you don’t belong here….
I was 17 or 18 at the time and I never went back…Perception is real when it is your reality….I have never flown a small or large plane….Not have I been trained to do either…If I fly a plane and kill someone should I be charged with a crime…heck yeah….reckless endangerment comes to mind…If I am high on meth and after I take off and decide to jump out of the plane…am I still liable for the damage….
I wonder if the the co-defendant was charged with anything…like Conspiracy, Felony Murder…Breaking and Entering, Trespass…I wonder what El Paso considers a inherently dangerous felony….For the felony murder rule in all U.S. jurisdictions, see felony murder rule.
Texas’ Law of Parties is a variation on the common law felony murder rule. Codified in Tex. Penal Code Ann. § 7.02, the law states that a person can be criminally responsible for the actions of another if he or she aids and abets, or conspires with the principal. However, all common law jurisdictions find that an accessory to murder will be criminally responsible. This liability can arise through solicitation, aiding and abetting, conspiracy, or any other doctrine of complicity.
http://en.wikipedia.org/wiki/Felony_murder_rule_(Texas)
Correction! Sorry, but I was mistaken – it was not a criminal conviction, but a matter of civil liability. The man involved was Robert Barnett of Douglas Az. According to the Douglas newspaper, the 9th Cir found that there was no error in not considering a claim of self defense because Mr. Barnett effectively conceded that he was not at risk.
I don’t know if the ‘shot in the back while running away” bit is fool proof in terms of the realities. If someone whom I was certain at first was threatening to harm me because they said so and was armed and ready to pull a trigger, but changed in a hurry and ran once they saw me raise my own weapon, am I then culpable if I shoot them?
At what point is it expected that my concern for my fellow man’s life strong enough to override the adrenaline fueled concern for my own?
I agree there’s a huge difference between the commercial vs domicile context, but I still think there are problems in either context with perception and normal hormonal reactions to consider. I don’t know that blanket laws can cover such things.
Blousie
I don’t recall all the details, but a rancher in southern Arizona was convicted of a crime (kidnapping I believe) for holding at gun point several illegal immigrants who had trespassed on to his land. The man lived on or close to the Mexican border and (I believe) he claimed that his land was frequently trespassed upon.
If someone wants to reasonably claim self-defense, then shooting another person who is trying to get away would seem to obviate that claim.
Martin, I’d say yes – but I’m no lawyer. We’ve deemed corporations to be persons, and from a taxation p.o.v. they are a taxable entity. Now, we’re extending use of deadly force in the protection of your life or an innocent third-party to… an X-Box game console? Alternators and water pumps?
Jewelry and collectable bobble-heads?
How do you cite burglar (not armed-robber) Fox, with malice-aforethought, sought to deprive this waterpump from it’s quiet enjoyment of life on a shelf at Southwest Auto Sales? Was said water pump going to be torn limb-from-limb, sold-off for it’s component value, and be melted into ingots – thus depriving it the joy a lifetime of circulating automotive coolant?
No. The ethnic names of the defendants tells me that some old-country values were at-play. If we gun these fellows down, the others will stay-away.
The jury sent the right message in my opinion. One that everyone who picks-up a gun needs to have first and foremost:
There needs to be a viable threat to your physical safety:
Beaten severely or to death, forced to jump or thrown from height, strangled, raped in this age of HIV, stabbed, shot, etc…
Said autoparts – faced no such threat. Neither did the store owners.
That the Milanovics are not behind bars? Texas sensibilities. Don’t attempt this in New York.
What I think distinguishes these folks is that they are Political Refugees…They are from Yugoslavia…Just used to defending property….I think most rational folks as Mike has stated do not view property rights different than human rights when no threat of harm…I think some folks even view commercial property rights different than residential property right…The conundrum…that these burglars found themselves in…early in the morning they did not expect somebody to be there to defend the property….they found out differently….
The way I see it if someone enters my home when i’m there, I will use any method available to disable them up to killing them. My reasoning is that if the “burglar” gets the upper hand then there is a very high likelihood that they will kill or severely harm me and mine. If I could drive he/her/them away
then I would let them leave, even if they carried something of value and call 9/11.
In this instance though I see wrongdoing and liability upon the owner of the car lot. They were trying to steal something and were caught by the armed owner and son. They ran, rather than attacked. It did not warrant deadly force. The difference to me has to come down to a threat to the homeowner’s lives. Given what we know about home invaders any attempt by them to gain control of the residents, rather than fleeing, has to be viewed as a potential deadly peril that any reasonable person would respond to if able.
Blouise,
That story seems very credible…
I heard a bizarre story the other day told by the man who was involved in the incident. He was a dog breeder, chocolate labs bred for hunting, and one evening, hearing quite a ruckus from his dog kennel, he grabbed his shotgun and went to investigate. He though he would probably encounter a wild animal disturbing his dogs. What he came upon were two teenagers, both armed with hunting rifles (it was deer season). Both started to run away. He pointed his shotgun at them and ordered them to stop, then called the police from his cell phone.
The police found a set of bolt-cutters on the ground in front of the kennel run and part of the fence had been snipped open. The boys claimed no knowledge of the bolt cutters and said they were simply cutting across the owner’s land on their way home.
Because he held the boys at gun point while he called the police, the prosecutor was going to charge him with kidnapping. He hired a lawyer, who talked the prosecutor out of that charge and the guy paid a fine instead. The boys weren’t charged with anything.
I found his story to be a bit over the top but his wife was there through the telling and kept nodding her head in agreement with everything he said.
Does this story seem likely?
AY,
that “if” is a very big IF.
Property rights vs human rights. We’ve seen this before, some would say, with slavery or abortion.
Does the make-my-day statute create a presumption of a threat to person that is rebuttable?
A gross injustice…But…eniobob….If he is smart, I think he might also not touch this one…as the folks complained of are not only immigrants….but foreigners as well….
culheath….
I think what a lot of folks there maybe saying are saying the Killing must stop….El Paso is across from Juarez, Mexico…..I think this was a sympatico decision….But, I was not the attorney for the Plaintiff….. I remember once I got a fair decision in a lower court…it was taken to the COA and reversed….Knew it was useless to take it any further….and believe it or not it was an early case of state backed mortgage fraud…The guy now is doing federal time…..But not before he bilked 100’s of Millions and 1000s lost there homes…..
Here is a report from the el paso times….
Juárez nears 5,000 killings
By Daniel Borunda \ El Paso Times
Posted: 04/26/2010 12:00:00 AM MDT
Homicides in the Juárez drug war will soon surpass the 5,000 mark as a vicious conflict continues.
As of Sunday evening, there have been more than 760 murders this year, raising to 4,992 homicides in the Juárez area since 2008 when a drug cartel war erupted, according to a tally kept by the El Paso Times.
The war between the Sinaloa and Juárez drug cartels that began in January 2008 sparked an unprecedented wave of murder, including daytime street shootings, mutilations and massacres.
By comparison, the number of deaths in Juárez surpasses the 4,393 members of the U.S. military who have died in the Iraq war since 2003.
The killings in Juárez have been unrelenting.
http://www.elpasotimes.com/ci_14959082
We have had two shootings here in the past few months when homeowners confronted home invaders. One elderly man in his 80s shot the crook, hitting him in the privates at close range with a 12 gauge. From what I have been told, even though it did not kill the crook, it qualified him for a Darwin Award because he has been removed from making contributions to the gene pool, permanently.
No lawsuits have been filed.
What do you think Rick Perry would call this verdict?
There is something amiss here…Not sure….The decision purports not to be based on sympathy….I am not so sure….I think once it gets to the Sct of Texas it will be over turned….They set aside a Settlement in a civil trial based upon mistake….the Defense got nervous after the Jury asked for specific instructions 2 or three time and then found out that they were going to decide for them and asks the Court to set it aside…. Surprise it was granted by a GOP controlled Sct….
If the cops don’t have a right to kill someone for burglary why should a home owner?
However, if someone is intending burglary by breaking into a house and not to kill or rape or otherwise harm the person there, why should the onus of determining the actual intent of the intruder be placed on the person defending themselves?