WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

WV gun owner stops home invasion. When can you legally shoot someone?

There was an article yesterday in the Charleston Gazette about a gun owner in Logan, WV who stopped a home invasion in progress at his neighbor’s home.

He shot one of the burglars, and held the other at gunpoint until police arrived.  This brings up a common topic of interest to people – especially in West Virginia, which has one of the largest percentages of gun owners per capita (we are no. 5 I believe).

When can you legally shoot someone in a home invasion scenario?  

In the end, it comes down to whether or not you reasonably believe that you, or someone else (anyone else – it doesn’t have to be a family member) is in imminent danger of death or serious bodily harm.  People tend to get obsessed with the “castle doctrine.”  Just understand that to mean, that if you are in your home, you have no legal obligation to run out the back door, if given the opportunity.  It all comes down to whether you believe you, or someone else, is going to be killed or seriously hurt if you don’t take action.

There is no guarantee that, even if you do believe you’re about to be killed, and you fire your weapon, that the shooting will be deemed justified.  Your fear must have been reasonable – based on something that your peers would likely also consider as significant enough to cause them fear as well.

Everyone should think about these types of things ahead of time.  You should draw a mental line in the sand regarding when you shoot, and when you do not shoot.  What is enough?  What if someone in a ski mask is lurking outside your house?  What if someone in a ski mask is outside your house with a gun in their hand?  What if someone is burglarizing your vehicle in your driveway?  What if someone is burglarizing your neighbor’s home?  Or car?

There is not necessarily a right answer for these types of scenarios.  But you should never pull the trigger unless you really do fear for a life.  It’s not that they don’t deserve a dirt nap.  If it were up to me, all thieves entering your property at night should be executed.  But unfortunately it’s not.

Many people in West Virginia do believe that if someone is breaking into their car at night, that they can run outside and shoot them.  Unfortunately, here we are not allowed to use deadly force in order to protect property.  For this reason, electric companies are not supposed to keep lines active for the sole purpose of deterring trespassers.  Now if the car burglar approaches you, or if he has a weapon and has the imminent ability to use it against you – that is different.

1.  It’s always going to be more difficult to justify a shooting where the person shot was “unarmed”.  I knife, gun, or even a stick could count as a weapon.  It is never a good idea to provide your own weapon after the shooting.  The facts are what they are.  Never try to change them.

2.  It’s always going to be more difficult to justify a shooting where the person shot was shot in the back.  This would indicate that the person was walking, or running, away from you.  That causes a problem because at that point it’s hard to argue that your fear was reasonable when the threat was leaving.  It’s also hard to argue that the threat was imminent.  But, if the person shot was in your house, it’s probably going to be a good shoot, because the threat was still in your home.  Generally when we shoot someone, our natural tendency is to keep shooting.  So there have been cases where the first shot was in the front of the person’s body, and several more shots went into the guy’s back as he turned to run away.  Good shoot, but bullets in the back are always going to make things more difficult.

3.  In your home, it’s game on.  Like I said, draw a line in the sand.  If someone maliciously invades your home, you generally can eliminate the threat with extreme prejudice.  But it still has to be reasonable.  You wouldn’t want to shoot a drunk neighbor who wandered in the wrong house – or a family member sneaking back in from a night of partying.  For this reason, always have a good home defense light.  You have to know your target – and what’s behind it.

It’s outside the home, where most of the grey areas live.  So be very careful venturing outside your castle with a gun in the dark of night.  Know where your line in the sand is.

As for the shooting in the article, the 800 pound gorilla is the fact that was left out of the story.  Did the shooter believe that the neighbors were in the home at the time he saw the attempted home invasion?  If so, good shoot.  If not, he may have a more difficult time due to the fact that we are not allowed to use deadly force in order to protect (only) property.

4.  Lastly, all gun owners who anticipate ever having to use their firearms in self defense should get some formal training, such as in a defensive handgun class.  A basic concealed weapons class does not qualify as training.  This is me at a handgun class a couple of weeks ago.  It’s a lot of fun, and it’s part of our obligation as citizens under the 2nd Amendment.

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December 23, 2013 Posted by | Burglary, Concealed Weapons, Murder, Negligent Homicide, Robbery, Self Defense, West Virginia Concealed Carry Laws, West Virginia Gun Laws | Leave a comment

WV Senate Committee Passes “Castle Doctrine”

Note: Some states impose a duty to retreat from an intruder, even in one’s own home. Although West Virginia does not impose an actual duty to retreat from confrontation in one’s own home, it has somewhat been left up to interpretation. Furthermore, homeowners legally defending themselves can be sued civilly for personal injuries to an intruder – which is absolutely ludicrous.

This legislation is common sense. We know that in WV, especially in rural counties, we cannot depend on calling 911 to protect us from home intruders. We must be allowed to protect ourselves and our families from the crazy people of this world. As Charlie Daniels said, he’s “the kind of man that wouldn’t harm a mouse,” but if he catches somebody breaking in his house, he’s “got a twelve gauge shotgun waitin’ on the other side.” – John H. Bryan, West Virginia criminal defense attorey.

From today’s Beckley Register-Herald:

Panel approves ‘Castle Doctrine’ proposal

Mannix Porterfield
Register-Herald Reporter

CHARLESTON — West Virginians could yet face a lawsuit for gunning down an intruder in their homes, but using deadly force to protect hearth and home would be a “full and complete defense” in court under a Castle Doctrine bill approved Wednesday.

Without any discussion, other than counsel’s brief explanation, the measure cleared the Senate Judiciary Committee unanimously.

For two years, Sen. Shirley Love, D-Fayette, has pushed the idea at the behest of the National Rifle Association, which has succeeded in getting similar bills enacted in 20 other states, starting with Florida.

While existing state law doesn’t require that a homeowner retreat as much as possible to avoid a showdown with an intruder, as some states insist, it does leave open the door to civil suits by a wounded prowler.

Under the committee-approved bill, however, the “justified use of reasonable and proportionate force” can be used as “a full and complete defense to any civil action” pursued by an intruder or attacker.

“People have got to remember, this is not a license to kill,” Love said after the committee, on which he doesn’t serve, moved the measure out with a favorable recommendation.

“This is something that gives you protection in your own home.”

Last year, the full Senate approved an identical bill, but it became mired in the judiciary committee of then-new Chair Carrie Webster, D-Kanawha, in the House of Delegates.

The measure draws its moniker from old English common law that held every citizen, regardless of station in life, could consider his property as a castle, in which, as one old saw held, the wind, but not the king, may enter.

“It’s a bill that a high majority of West Virginians have wanted for so long,” Love said.

In the Senate, the sentiment was unanimous. All 34 members have signed on to it.

“It’s been the intruder that has been protected by the law instead of the home that he’s intruding in,” Love said.

Judiciary Vice Chairman Mike Oliverio, D-Monongalia, pointed out West Virginia enjoys the lowest crime rate in the nation.

“But I think West Virginians really support their Second Amendment rights,” he said.

“And they believe it’s important that they be able to protect themselves. “

Over the years, he said, courts have issued rulings that reflect those constitutional guarantees.

However, Oliverio said a new Supreme Court some day might not see things as the current one does with regard to the Second Amendment.

“There may be changes that impact the ability for persons to protect themselves the way they see fit,” he added.

February 14, 2008 Posted by | Burglary, Legislation, Self Defense | 2 Comments