Am I being too paranoid here?

[RobertNashville]

Based on the statute, I can't help but wonder if it would be possible to be legally justified to discharge your weapon and kill an intruder because you were "in fear for your life" and still be held liable for civil damages to the intruder/intruder's family if a court later found that the intruder was not actually committing one of the enumerated crimes?

For example...

1. 3AM; an intruder is drunk, "breaks" into your home by mistake (he's drunk and thinks your house is actually his house) but he has no actual criminal "intent" and at this point, his only real crime is a simple burglary (if that).

2. You, a responsible homeowner and owner of a 12ga shotgun you purchased specifically for home defense are in bed asleep when your burglar alarm goes off alerting you to the "break-in".

3. You grab your shotgun, aim it at your bedroom door while your spouse is calling 911

4. The drunk intruder lumbers down the hallway and opens your bedroom door and you shoot and kill him

In that situation, I would say you (the homeowner) has every logical reason to be in fear for your life yet the intruder, hasn't actually committed any felonies that I'm aware of.

Maybe this is far-fetched but it seems like it could happen and if it did, I wonder what the eventual outcome would be???

Edited December 14, 2010 by RobertNashville

[Fallguy]

Based on the statute, I can't help but wonder if it would be possible to be legally justified to discharge your weapon and kill an intruder because you were "in fear for your life" and still be held liable for civil damages to the intruder/intruder's family if a court later found that the intruder was not actually committing one of the enumerated crimes?

For example...

1. 3AM; an intruder is drunk, "breaks" into your home by mistake (he's drunk and thinks your house is actually his house) but he has no actual criminal "intent" and at this point, his only real crime is a simple burglary (if that).

2. You, a responsible homeowner and owner of a 12ga shotgun you purchased specifically for home defense are in bed asleep when your burglar alarm goes off alerting you to the "break-in".

3. You grab your shotgun, aim it at your bedroom door while your spouse is calling 911

4. The drunk intruder lumbers down the hallway and opens your bedroom door and you shoot and kill him

In that situation, I would say you (the homeowner) has every logical reason to be in fear for your life yet the intruder, hasn't actually committed any felonies that I'm aware of.

Maybe this is far-fetched but it seems like it could happen and if it did, I wonder what the eventual outcome would be???

Well isn't that when 39-11-622 would kick in?

39-11-622. Justification for use of force — Exceptions — Immunity from civil liability.

(a) (1) A person who uses force as permitted in §§ 39-11-611 — 39-11-614 or § 29-34-201, is justified in using such force and is immune from civil liability for the use of such force, unless:

(A)

The person against whom force was used is a law enforcement officer, as defined in §

39-11-106

who:

(i)

Was acting in the performance of the officer's official duties; and

(ii)

Identified the officer in accordance with any applicable law; or

(iii)

The person using force knew or reasonably should have known that the person was a law enforcement officer; or

(

The force used by the person resulted in property damage to or the death or injury of an innocent bystander or other person against whom the force used was not justified.

( The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by a person in defense of any civil action brought against the person based upon the person's use of force, if the court finds that the defendant was justified in using such force pursuant to §§ 39-11-611 — 39-11-614 or § 29-34-201

So all that is needed for the immunity from civial liabilty in 39-11-622 to apply is that force in 39-11-611 (or the other SD laws besides 29-34-201) be justified. Which in your situation about the drunk intruder would seem to fit.

Edited December 14, 2010 by Fallguy

[RobertNashville]

Maybe I'm just a little more pessimistic than you Fallguy but I'm not completely convinced that my "catch -22" sort of situation might not happen - at the very least, I could see this issue being something that would have to be decided at trial which, even if ultimately good for the person who defended himself, would not be a fun time of life!

[Fallguy]

Maybe I'm just a little more pessimistic than you Fallguy but I'm not completely convinced that my "catch -22" sort of situation might not happen - at the very least, I could see this issue being something that would have to be decided at trial which, even if ultimately good for the person who defended himself, would not be a fun time of life!

Oh I whole heartedly agree it could go to trial, especially a civil trial.

[DaveTN]

Maybe I'm just a little more pessimistic than you Fallguy but I'm not completely convinced that my "catch -22" sort of situation might not happen - at the very least, I could see this issue being something that would have to be decided at trial which, even if ultimately good for the person who defended himself, would not be a fun time of life!

I don’t see where your scenario is a “catch 22â€.

Would a reasonable person believe they were in danger of death or great bodily harm? Certainly they would. In this state that is assumed in your home. A Prosecutor would need to prove that you knew or should have known you were not in danger and shot the person simply because they were there before you could have problems. (Keep in mind Castle Law is simply a legal presumption that you were in danger. However… it does not prevent a Prosecutor from removing that presumption if he can.)

Maybe this is far-fetched but it seems like it could happen and if it did, I wonder what the eventual outcome would be???

It has happened. It was in one of the TV shows about shootings. A guy came home drunk and headed for the bedroom. Problem was he lived one street over in an identical house. The homeowner engaged him in the living room and ordered him out of the house; he thought he was in his own house and continued moving at the homeowner. The homeowner shot him. I don’t remember if he went to court or not. The show was the same one that showed the case of a guy shooting his wife after she came back into the house and set off the alarm.

There are very few situations where you can say a shooting would not end up in either criminal or civil court. Cops and Prosecutors can do what they like. If you are involved in a shooting a process starts that will determine if you go to court or not. Do not stand on the sidelines and watch that process direct you to court.

We see these cases come and go. Some go to court; some don’t.

Because of my training I never have the attitude that I can kill someone in a given set of circumstances; I always have the attitude that I must expend all reasonable options prior to pulling the trigger.

Edited December 15, 2010 by DaveTN