A West Virginia lawyer Hiram C. Lewis IV, 41, narrowly lost a race to become the state attorney general in 2008 but has now found himself on the other side of the courtroom charged with malicious wounding and wanton endangerment with a firearm. Lewis is accused of shooting a man at his home in Procious, West Virgina. He is invoking the Castle Doctrine, which allows citizens to use lethal force in defense of their homes. I have been a long critic of Castle Doctrine laws, which have spinned off various extensions for the work place, cars, and other locations. Called “Make My Day” laws in some states, we now have “Make My Day Better” laws allowing people to use lethal force in defense of other property like cars as well as laws like “Stand Your Ground” involved in the Zimmerman case and other cases in Florida.
Lewis claimed the man, Stephen Bogart, tried to break into his home and he shot him in the leg. He told reporters “I was totally within my rights. I was in my home when I made the, when I shot him, after he barged in my residence and busted the door down. It’s in God’s hands now, but we are a Castle Doctrine state.”
However, Bogart says that he was living at Lewis’ house. Yet, Lewis said Bogart was not a house guest or roommate. Rather, he says that he is a homeless veteran he had allowed to live for a week at his camp while he looked for work
Lewis is a sole practitioner who served as the GOP treasurer and ran against Robert C. Byrd for US Senate in 2006. He also lost a bid for West Virginia Attorney General against Darrell McGraw.
These laws are generally written, making it difficult to prosecute homeowners even in cases of mistaken intrusion as when drunken neighbors come into a home.
Here is the code provision:
§55-7-22. Civil relief for persons resisting certain criminal activities.
(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section.(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker.
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force.
(e) The full and complete civil defense created by the provisions of this section is not available to a person who:
(1) Is attempting to commit, committing or escaping from the commission of a felony;
(2) Initially provokes the use of force against himself, herself or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; or
(3) Otherwise initially provokes the use of force against himself, herself or another, unless he or she withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
(f) The provisions of this section do not apply to the creation of a hazardous or dangerous condition on or in any real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct.
(g) Nothing in this section shall authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty.
Note: WV Code updated with legislation passed through the 2011 4th Special Session
Note the standard is “reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.” The question is whether Lewis reasonably apprehended that Bogart was there to harm him or commit a felony in the residence if he knew him. The key in the case may turn on the different accounts on whether Bogart was staying at the residence. Some reports state that Bogart was able to show that he had possessions in the home as proof that he was living there.
Lewis does not appear able to pay the $100,000 bail and remains in jail.
Source: West Virginia Recordas first seen on ABA Journal
Indigo:
“Civil society” is rarely civil and almost never social.
Some people here convince me more than ever that American justice is whatever they think it is.
As to trespassing, there is a law in Sweden, based on ancient custom, that one may pass by on any man’s land and remain there, but not camp without permission.
You may also collect mushrooms and berries without permission. But you may not be within sight nor sound of a residence nor use their boat pier, etc.
Nor may you damage by treading through growing crops, nor cause other damage, cut down trees, etc.
It is called allemansrätt.
oh yea, Jude, people trespassing- walking through my land are a real danger to your life. sure.
In Maryland, I used to have a farm in fox hunting country. All the farms had riding trails through them and jumps installed on fence lines by the hunt club, with permission of the landowner.
Everyone used these trails that rambled through private property, over fences and through the woods. If someone was dumb enough to ASK if they could ride through your property, you would have to say “no”.
This way, if anyone had a fall on private property, they did not have express permission from the landowner and were considered to be trespassers. If a trespasser had a fall or accident on your property riding their horse, they could not sue you.
Everyone knew these unspoken arrangements.
@importanttopics
Unfortunately, “common sense” isn’t all that common. That’s why we ought to defer to the terms of civil society and rule of law.
That comes from common sense and the ancient origins of the self-defense defense. You can kill someone attempting to kill or rob you or someone else, and not even be arrested, even in states without these types of castle or stand your ground laws.
I did say that there may be some foul play in this case. Maybe the guy did live there. But if he did, why didn’t he just call the police and tell them that he has been staying there and his belongings are inside but the homeowner won’t let him in? Why did he kick the door in instead? Kicking a door in is a vandalous and aggressive act, and an indication that the person is likely prone to violence.
Shano, I wouldn’t go back in and call the cops. I would make sure they didn’t leave to commit another crime. That is my civic duty. I would call the cops and wait for them. However, during that time, the teen could put me in danger. Not everybody is going to stand there and wait for the cops to come when you apprehend them.
@importanttopics
“Part of the basis of a civil society is being able to personally protect your self, your family, and your property”
Where does that come from? You’re innocent until proven guilty. That’s civil society.
In this case I don’t see any evidence that the “invader” (who may have been living at the residence in question) meant to “rape, pillage, rob, kidnap, and/or kill” nor does that seem to be the case with George Zimmerman and Treyvon Martin, nor Bo Morrison.
If the bar is whether a person FEELS threatened, that opens the door to all sorts of mischief.
But these laws have a larger problem owing to their ambiguity:
Don’t like your ex-wife? Just invite her over to dinner. “The crazy bat was trying to break in.”
http://www.ajc.com/news/nation-world/texas-jury-convicts-man-1456976.html
This man lost his defense claim, he even videotaped his actions he was so sure he could legally gun down his neighbor:
Raul Rodriguez, 47, faces up to life in prison for the 2010 killing of Kelly Danaher. The trial’s punishment phase, which will include further testimony, was scheduled to begin Thursday.
Rodriguez was angry about the noise coming from Danaher’s home, where the family was having a birthday party for Danaher’s wife and young daughter. Rodriguez went to the home and got into an argument with Danaher, a 36-year-old elementary school teacher, and two other men who were at the party.
In a 22-minute video he recorded the night of the shooting, Rodriguez can be heard telling a police dispatcher “my life is in danger now” and “these people are going to go try and kill me.” He then said “I’m standing my ground here,” and shot Danaher after somebody appeared to grab his camera. The two other men were wounded.”
The names Stand Your Ground or Castle Doctrine themselves seems to be open to all sorts of interpretation. In the judicial system it seems to be a real LOTTERY whether or not a person who was avoiding injury (like Marissa Alexander) is set free or locked up; or whether a murderer like Zimmerman is charged with a crime at all.
Not even the courts are interpreting these laws in a way that encourages justice. It is a matter of pure luck who walks and who goes to jail for decades. A lottery.
“Vigilante justice by definition is illegal, therefore no law encourages it.”
Laws that are vague can encourage any number of unintended consequences.
“Laws that encourage vigilante justice subvert the basis of civil society.”
Vigilante justice by definition is illegal, therefore no law encourages it. Part of the basis of a civil society is being able to personally protect your self, your family, and your property. Do people take this too far sometimes? Of course. Such is the nature of mankind. People who wish to simply bend over and take it when home invaders break in to rape, pillage, rob, kidnap, and/or kill them and their family, are free to do so. Others will continue to enjoy the freedom to stand up for, and protect, the innocent.
Lewis seems quite the loose cannon. Here’s an account from the article of Lewis’ past encounters with the law:
“Lewis was visiting his great aunt at about 10:15 p.m., when Hodges [Retirement Home] employees told him that visiting hours were over and asked his to leave. Lewis refused, saying the law allows family members to stay past visiting hours, according to reports.
Eventually, Hodges employees called the Charleston Police Department. Two officers used pepper spray to forcibly remove Lewis and arrest him.
The charge was later dismissed.”
How’s that for propensity for violence?
These laws represent nothing short of the breakdown of civil society.
In the Second Treatise on Civil Government, John Locke (who inspired the phrase “Life, Liberty, and the Pursuit of Happiness”) states:
“Sect. 89. Where-ever therefore any number of men are so united into one
society, as to quit every one his executive power of the law of nature,
and to resign it to the public, there and there only is a political, or
civil society. And this is done, where-ever any number of men, in the
state of nature, enter into society to make one people, one body
politic, under one supreme government; or else when any one joins
himself to, and incorporates with any government already made: for
hereby he authorizes the society, or which is all one, the legislative
thereof, to make laws for him, as the public good of the society shall
require; to the execution whereof, his own assistance (as to his own
decrees) is due. And this puts men out of a state of nature into that of
a commonwealth, by setting up a judge on earth, with authority to
determine all the controversies, and redress the injuries that may
happen to any member of the commonwealth; which judge is the
legislative, or magistrates appointed by it. And where-ever there are
any number of men, however associated, that have no such decisive power to appeal to, there they are still in the state of nature.”
Life in the state of Nature is what Thomas Hobbes called “nasty, brutish, short, and solitary.” People have perfect freedom, but they are constantly subject to the infringements of others. This perfect freedom is practically worthless, as nothing is certain, and there is no security to be found. It is a state of perpetual war, of all against all.
People therefore, by compact, arrange themselves into civil society, and relinquish their absolute freedom in favor of liberty, which is a more rarefied form of freedom. The executive power of the law of Nature, which every person possesses in the state of Nature, is relinquished to intermediary bodies, to which all must then appeal for justice.
“Sect. 8. And thus, in the state of nature, one man comes by a power over
another; but yet no absolute or arbitrary power, to use a criminal, when
he has got him in his hands, according to the passionate heats, or
boundless extravagancy of his own will; but only to retribute to him, so
far as calm reason and conscience dictate, what is proportionate to his
transgression, which is so much as may serve for reparation and
restraint… And in the case, and upon this ground, EVERY MAN HATH A RIGHT TO PUNISH THE OFFENDER, AND BE EXECUTIONER OF THE LAW OF NATURE.”
In civil society, however, freedom is not “a liberty for every one to
do what he lists, to live as he pleases, and not to be tied by any laws:
but freedom of men under government is, to have a standing rule to live
by, common to every one of that society” (22).
Rather, “in all the states of created beings capable of laws, where
there is no law, there is no freedom: for liberty is, to be free from
restraint and violence from others; which cannot be, where there is no
law: but freedom is not, as we are told, a liberty for every man to do
what he lists: (for who could be free, when every other man’s humour
might domineer over him?) but a liberty to dispose, and order as he
lists, his person, actions, possessions, and his whole property, within
the allowance of those laws under which he is, and therein not to be
subject to the arbitrary will of another, but freely follow his own.” (57)
Laws that encourage vigilante justice subvert the basis of civil society.
As in the recent case of Bo Morrison, in Wisconsin, it allows individuals to be at once judge, jury, and executioner, capable of exacting a capital punishment for such minor infringements as trespassing.
“Note the standard is “reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary.”
I have seen people get off when this was not true at all. Homeowners shooting teens who hide on a porch are not in danger of their life if they go back into the house and call the cops.
What’s a man with his background doing good deeds helping homeless and unemployed vets?
Always ready to impugn the motives of the “holier than normal” folks.
Sexual? Could be. Sounds like domestic violence to me. Short honeymoon. Consenting adults don’t always consent.
Well, the news reports state that the guy kicked his door in. What are you supposed to do, cower in the corner and beg for your life? Maybe the guy did live there, and this was more of a domestic dispute. But when someone kicks a door in, you have to give the benefit of the doubt to the person inside the house until more details emerge.
I almost believe the lawyer, assuming he has more intelligence than a frog. A devious “in the wrong” person could have shot a second time, very quickly. I believe the law allows two shots (or more) by the victim in this situation. The lawyer could have removed most of the testimony against him with one more squeeze. This is not proof of innocence, but it does add weight to any means necessary. He stopped after one !!
He must not of been using the new and very popular LAYS brand of bullets,
“Bet you can’t shoot just one.”
“As these things get more attention more people will feel the need to be armed at all times & to shoot first.”
Frankly,
A modest proposal:)
we really do need more SYG type laws & they need to be made more broad. Given the great work we have done in feeding the nation and ending diseases that used to wipe out millions the nation has become too crowded. If we can get a huge spike in murders and extra-judicial executions we could go a long way to reducing the surplus population.
As these things get more attention more people will feel the need to be armed at all times & to shoot first. Thats exactly what we need!
Lots of fact we don’t know yet. EG. I wonder what it means that he “tried to break in”? How did he do that? Use a key that didn’t work? Or try to break down the door?
“It’s in God’s hands now…” Looks like an appeal to the deity has become the first refuge of a scoundrel.