El Paso County Jury Rules In Favor Of Family Of Burglar Killed By Business Owner

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

75 thoughts on “El Paso County Jury Rules In Favor Of Family Of Burglar Killed By Business Owner”

  1. “Forty years after the fact, I dream about that kid on the floor.’

    Dennis,

    If all those licensed to carry guns were like you it would be a different matter. As you yourself point out, in many cases the gun carrier is irresponsible. It is a difficult problem any way you slice it. What I personally believe though is that being armed may indeed cause some immature, though of age, to use it foolishly. I believe the same about martial arts practitioners. In situations that involve life and death, or fear of same, sometimes the deadliest peril is to the one feeling secure in their armament and/or training.

  2. Cheney is all for Torture….for other people other than US Citizens….Hmmmmm…I wonder if ICE catches an illegal….is it ok to torture them?

  3. “You put the onus on the law abiding citizen and NOT the criminal who IS the one who has decided that a car battery is worth his life. Unfortunately, in this case, the crook guessed wrong about being able to get away with his crime.”

    Arthur,

    To me if you shoot someone stealing your car battery, you are not a law-abiding citizen, even if you get away with it. You seem to see things in quite draconian terms. I smoked pot up until 1980. Sometimes because it was convenient I would buy in quantity. If the police raided my home I could have been charged with a felony and sent to jail for years, even though I never sold it. Try reading “Les Miserables” because from the way you write I think
    you would find the policeman heroic.

    Since the crook guessed wrong and by your standards seemingly deserved to be shot, than what punishments should be given to the Investment Bankers that criminally ruined our economy. From what you write I would assume that they should be tortured first, before being put to death.

    “It is customary when giving descriptions of crooks to state their race and what they were wearing. I guess that we should edit out race from all police reports too now to be politically correct.”

    Arthur, you beg the question. you were relating a story where race played no role, not filing a police report where it does.

  4. Mike Spindell said, “Now I’m wondering if in a sense there is something about owning guns that in some way attracts attacks.”

    I think someone’s violence toward a victim might escalate if they knew the victim was armed. In my case, none of my attackers knew I had a gun. Once the attack begins, the victim’s use of a gun can also escalate the situation. I never wanted to rely on my vindication to shoot. I prayed each of my perpetrators would just stay still until the police arrived or I’d departed.

    Some gun-owners intervene unwisely. If I were a patron of a restaurant being robbed, I’d sit still – unless an employee or customer became endangered.

    Forty years after the fact, I dream about that kid on the floor. I live with the fact that I was going to shoot him before he shot me. I was already squeezing my trigger – slowly for accuracy – when I saw his empty hand. Had my finger finished its squeeze, I might have killed him. By the time the police arrived, my hair and shirt were sweat-stained. I quit my job when the day manager came in – and took a job as an armed guard in an empty factory. It seemed safer.

  5. Tomdarch said, “But then there’s the last sentence: ‘Before he could be tried, a homeowner shot and killed him while he was stealing the homeowner’s car battery’.”

    Yes, this is a poor example of gun use. The man claimed he found the kid stealing his battery. He claims he pointed a .357 magnum at the kid and told him to wait for the police. Allegedly the boy reached into his jacket, and the man fired. A grand jury voted for no bill. There was a persistent rumor that the man just shot him, and a neighbor suggested the “reached into his jacket” embellishment.

    In my case, I’d have let the store robber walk out – after I knew he had no gun. I’d have let the car burglar walk also. However, I recognize that pointing a gun creates a whole new world of possibilitites.

  6. I have a suggestion for news stories and comments on crime from now on. We will simply have a line that says, A______ person of the _____ sex committed a robbery and was shot dead. I guess it is OK to malign the male sex by mentioning the fact that they were male? Seems a little sexist to me to mention that fact too.

  7. Any reason the race of the 3 guys has bearing on the story?

    The reason is that they were black. When a white guy commits a crime, I also like to say that too.It is customary when giving descriptions of crooks to state their race and what they were wearing. I guess that we should edit out race from all police reports too now to be politically correct.

  8. You put the onus on the law abiding citizen and NOT the criminal who IS the one who has decided that a car battery is worth his life. Unfortunately, in this case, the crook guessed wrong about being able to get away with his crime.

  9. OS,

    I had a cousin who in his late teenage years was somewhat of a pety criminal. He told me this story and I found it funny because my cousin also fought a few professional fights. He and an accomplice decided to rob a homosexual man they met at a bar. The agreed to have sex with him. He drove them out to the country in his car. they all got out and when they did they attacked him. As they walked towards him he said something like “Guys
    the only thing I like as much as sex is fighting”. He put both of them in the hospital for weeks and since it was in the Catskills, they weren’t first found for more than a day. That’s the problem with macho toughness and overconfidence, there is always someone tougher than you think you are.
    Had I not been a pitifully slow runner in my youth, I’d have had appreciably less fights.

  10. Well Mike,

    Don’t you know, they all look alike and are armed bearing thugs…Geeze…they teach that in racism 101….

    The above was meant merely in sick humor….

  11. “I guy I knew was a jewelry store owner who was robbed by three young black guys armed with guns.”

    Arthur,

    Any reason the race of the 3 guys has bearing on the story?

  12. Mike, I tried to find the video and could not. The incident took place in England and was caught on security video camera. Seems these two cross-dressing guys were confronted and assaulted by some hooligans on the street. Bad idea. The “sissies” turned out to be professional cage fighters in drag. The result was predicable and rather messy.

    Some folks need to learn how to pick better targets.

  13. “Would that include Chuck Norris? roflmao”

    Probably about 30 years and forty pounds ago. As you also know I’m not against people’s right to bear arms, but here’s the problem. Carrying a gun gives someone a false sense of superiority and security. That is the antithesis of “street smarts” which is to be always well aware of your surroundings. Overconfidence always leads to mistakes as does male macho.

    Ironically, I think there is that same problem with some martial artists, who may be quite capable, but could be too over confident when it comes to using weapons. To me the greatest action scene of all time in a movies is in the first Indiana Jones one where this guy is brandishing two scimitars and glaring at Harrison Ford and so Ford just shoots him. Self defense is always the matter of having a plan and then improvising as the situation evolves. The optimal plan is just to get the hell out of there, even if someone is questioning your manhood.

  14. Suzi Drake
    1, August 30, 2011 at 11:56 am

    If you think you hear something, you can run out to the street and shoot someone in the back in Texas.
    Castle Doctrine.
    —————————————-

    I don’t know what kind of lunatic parent would allow their kid to come to the US as an exchange student:
    http://en.wikipedia.org/wiki/Yoshihiro_Hattori

  15. Very interesting! I read all of Dennis’ stories. They seem like generally good examples of, I guess we could say, an individual using a handgun to reduce the severity of criminality. (“crime” as a whole wasn’t prevented in any of those instances, as at least one crime was committed in each of them, but additional crimes probably didn’t happen.) So far so good.

    But then there’s the last sentence: “Before he could be tried, a homeowner shot and killed him while he was stealing the homeowner’s car battery.”

    To my mind, that last situation – a human life lost over nothing – wipes out all the complicated “good” described in Dennis’ situations.

    Having a gun in the home or in a retail business to counter burglaries is it’s own complicated issue. But if someone can make a coherent argument for the specific number of used car batteries that a human life is worth, I’d be interested to see that argument.

    Given that Canada has a comparable number of guns per capita as the US (possibly more?) and has a different take on laws related to guns, I’m curious what the laws are like there regarding guns in the home or when they can be used in a commercial break-in.

  16. I guy I knew was a jewelry store owner who was robbed by three young black guys armed with guns. They decided to not leave a witness at which point he got his pistol and killed all three of them. This was in L.A. a number of years ago.

    Unfortunately, those kids should have read their US history better and understood that old guys that age had PLENTY of experience killing other armed men. My friend was a WWII veteran of the 10th Mountain Div and had lots of time fighting in the Italian mountains against some of the best killers in the world. Most of that fighting was up close and personal hand to hand combat. He could have gone up against the LAPD in similar numbers and come out on top. Needless to say, he was thrilled to find he had not lost his skills.

  17. http://www.hg3law.com/blog/murder-trial-opens-man-shot-intruder/
    Here’s another story of Texas justice.
    A guy shoots a 19 year old five times, in the back and on the ground, 40 yards from his house, and is not convicted due to the “castle doctrine”.
    The kid was visiting his sister whose house was next door to the shooter and, as in many subdivisions, looked similar.
    In testimony, it came out the shooter saw the sisters lights on at 2 AM and thought she must be “up to no good”, showing the shooters animosity towards the family.
    The wife wakes the shooter at around 2:30, says someone’s in the house.
    The guy picks up his glock, runs outside and shoots the drunk college student in the street, 5 times. Forensics say the shots were fired in the back and lying on the ground. Forensics also show no evidence the kid was in the house and the couples story was inconsistent on that claim.
    Two trials later, aquittal is granted.
    If you think you hear something, you can run out to the street and shoot someone in the back in Texas.
    Castle Doctrine.

  18. Mike S.,

    “while I can fight, five on one is not good odds, except for the very skilled.”

    Would that include Chuck Norris? roflmao

  19. Dennis,

    Don’t take this personally but you have led a charmed life and one that seems to have attracted some dicey situations. I’m in my 60’s. I worked for
    many, many years in what were considered the most dangerous areas of NYC, both day and night, alone. I’ve also extensively traveled to every State in the continental US, except for Texas and Oklahoma. Spent many years camping in wildernesses all over the US. I’ve only experienced two attacks, both in upscale areas and had a gun pointed at me once, never robbed.

    The gun incident happened when I saw six teenagers mugging an old man at the bottom of steps leading to a subway. I was bigger than all of them and
    and took a step down thinking that with my momentum I could scatter them. One drew a gun, motioned for me to back off, which I did. They stole the mans’ wallet and ran off. Then I went to help him and had the station clerk call the police. If I had a gun I don’t doubt I could have drawn it, but the old man probably would have been killed in the shootout.

    The second occurrence happened when I was walking home from a bar at Two A.M.. I passed a group of five teenagers drinking beer on the sidewalk.
    I was about six inches taller and thirty pounds heavier than the biggest one, since they seemed around fourteen. One of them punched me in the forehead, which I guess was because he had to extend himself to hit me.
    I looked him in the eye and said “Are you crazy?” and walked off with them staring at me. The stupidity of the attack pissed me off so much that if I had a gun someone might have been shot and while I can fight, five on one is not good odds, except for the very skilled.

    Now I’m wondering if in a sense there is something about owning guns that in some way attracts attacks. I don’t know if that’s valid, but I personally wouldn’t own one, though I’m a good shot. That said there are many other strategies for self defense and being a street smart City Boy I think of them in advance.

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