Someone Looking in my window and 1am last night

[rfontes]

dont point the gun at someone unless you intend to shoot without hesitation.

 

[Hammerhead]

Finity, I don't think that the scenario with the prosecutor/defendant is valid. You're putting in that the defendant shot the subject. I think the discussion in this thread is more of a point the gun/don't point the gun and not shoot/don't shoot. While the idea of shooting someone for just standing outside your window isn't a good one, standing in your home and drawing your weapon/pointing it at some peeper is reasonable to prevent an attack from occurring.

While I normally would not pull my gun unless I intend to make it go bang, if someone is standing outside my home peering through my window, I'm going to assume they're up to no good and prepare for an attack by drawing my weapon. If they recognize that they're on the business end of my gun and either need to GTFO or ID themselves and explain and no attack comes, I won't pull the trigger. Pointing can be a deterrent, which is preventative, which is reasonable under the law.

That doesn't mean I'm going to pull the trigger, but I'm ready, willing, and more able to.

 

[finity]

Finity, I don't think that the scenario with the prosecutor/defendant is valid. You're putting in that the defendant shot the subject. I think the discussion in this thread is more of a point the gun/don't point the gun and not shoot/don't shoot. While the idea of shooting someone for just standing outside your window isn't a good one, standing in your home and drawing your weapon/pointing it at some peeper is reasonable to prevent an attack from occurring.

While I normally would not pull my gun unless I intend to make it go bang, if someone is standing outside my home peering through my window, I'm going to assume they're up to no good and prepare for an attack by drawing my weapon. If they recognize that they're on the business end of my gun and either need to GTFO or ID themselves and explain and no attack comes, I won't pull the trigger. Pointing can be a deterrent, which is preventative, which is reasonable under the law.

That doesn't mean I'm going to pull the trigger, but I'm ready, willing, and more able to.

According to the court case I posted in resopnse to RichardR, the court decided that pointing a handgun at someone is considered deadly force. So in effect there is no difference between pointing it at him & using it. The only difference is what you'd be charged with after the fact. I included the killing part so that point wouldn't be lost on people.

Don't get me wrong, I argued from the same side as you & RichardR until someone posted that case a while back.

Read the above case (Nantz v state). It changes everything.

 

[LawDog76]

There I fixed your misplaced emphasis for you.


Here's how I see it possibly going down:

Prosecutor: What was the person doing when you fired your weapon at him?

LawDog76: he was standing outside my window.

Prosecutor: He was standing outside your window? Just...standing there?

LawDog76: Yes. Well...he was looking in.

Prosecutor: Was he trying to break in?

LawDog76: Not that I saw.

Prosecutor: Was he moving in a furtive or surreptitious manner which made you think he may try to break in?

LawDog76: Um...well he was just standing there but he was looking in my window.

Prosecutor: Did he have a weapon of any kind?

LawDog76: I don't know. I didn't see one but I assumed he did.

Prosecutor: What made you believe he had a weapon?

LawDog76: Well...he was standing outside my window.

Prosecutor: So since he was just STANDING outside your window you are trying to get us to believe you thought it was reasonable to shoot him & kill him?

LawDog76: I...I...guess so...but I asked him what he was doing there & he acted nervous & couldn't give me the answers I was looking for before I did it.

Prosecutor: Didn't you say that you were pointing a gun at him?

LawDog76: Yes.

Prosecutor: Do you think it's possible that he was nervous because you were threatening him with deadly force?

LawDog76:.............

Sorry. I can't see any evidence that deadly force was NECESSARY to be used on a guy who was JUST STANDING outside the window.

Could he have been plotting something? Sure.

I would liken the "reasonable belief" requirement to the "probable cause" requirement that LEO's have.

Without SOME sort of articulable evidence to make a reasonable person think that an attack/entry was imminent I could see you being in some serious trouble.

I'm all for using whatever means is necessary to protect yourself & your family from a legitimate threat but I just can't see someone just standing outside LOOKING in needing an immediate deadly force response.

We're talking about pointing at firearm to detain not just shooting them for being there.

 

[finity]

We're talking about pointing at firearm to detain not just shooting them for being there.

Read the post just above yours (#43)

 

[RichardR]

According to the court case I posted in resopnse to RichardR, the court decided that pointing a handgun at someone is considered deadly force. So in effect there is no difference between pointing it at him & using it. The only difference is what you'd be charged with after the fact. I included the killing part so that point wouldn't be lost on people.

Don't get me wrong, I argued from the same side as you & RichardR until someone posted that case a while back.

Read the above case (Nantz v state). It changes everything.

Umm no.

The case before that appellate court was not if pointing a firearm constituted deadly force or not.

So that particular issue was not decided.

What was decided was that Nantz did not sufficiently prove his alleged property interest in the other guy's tractor & thus his act of pointing a firearm was unreasonable, and because his pointing of a firearm was unreasonable the appellate court upheld his conviction for both the pointing a firearm offense & the criminal recklessness.

You do understand the difference don't you?

 

[groovatron]

dont point the gun at someone unless you intend to shoot without hesitation.

Yeah, that's what cops do ......NOT!

Sounds good in theory, but not always practical.

 

[finity]

Umm no.

The case before that appellate court was not if pointing a firearm constituted deadly force or not.

So that particular issue was not decided.

What was decided was that Nantz did not sufficiently prove his alleged property interest in the other guy's tractor & thus his act of pointing a firearm was unreasonable, and because his pointing of a firearm was unreasonable the appellate court upheld his conviction for both the pointing a firearm offense & the criminal recklessness.

You do understand the difference don't you?

No the case was not specifically about deciding if pointing a firearm was deadly force but the discussion of the case said that, nevertheless.

By pointing a loaded gun at Petro's head, Nantz created a variety of risks that could have lead to serious bodily injury.  

 ‘Deadly force’ means force that creates a substantial risk of serious bodily injury

So, the court said (quotes above taken directly from the case):

pointing a firearm = a substantial risk of causing SBI

and

a substantial risk of SBI = deadly force

therefore

pointing a firearm = deadly force

That discussion will be used from then on to make later decisions. If you notice the court above used other courts discussion to come to that conclusion. Later courts will do the same.

If they would have said specifically that they weren't deciding that issue then nothing would have changed but they didn't. They said that pointing a firearm was deadly force. The reason the conviction was upheld was because he used deadly force & was not REASONABLY justified in using it.

Anything the court decides in the discussion will be held as precedent. From my understanding the only things that aren't binding on lower courts are things like footnotes that aren't an actual part of the decision.

The reason Nantz failed to prove his protection of property claim was specifically stated as being because he used unreasonable force against the other person NOT THAT HE FAILED TO PROVE AN INTEREST IN THE PROPERTY.

No decision at all was made about him having a sufficient property interest in the bulldozer. As a matter of fact that wasn't even an issue that Nantz raised on appeal. As a matter of fact the court specifically said that since he was not protecting a person from SBI but instead only protecting his property he was not justified in using dealy force, which was what he did when he pointed a firearm at Petro.

Consequently, we conclude that Nantz's conduct, pointing a loaded firearm at Petro's head, was unreasonable force to use to protect his alleged property interest in the bulldozer.   Thus, Nantz failed to prove his defense of property defense.

 

Surely you can understand that can't you?

 

[RichardR]

Finity,

You are incorrect.

What you are essentially trying to say is that the court's reasoning(rationes decidendi) for their decision sets a binding precedent, but that's not the way stare decisis works.

Here is how the 9th Circuit describes stare decisis (precedent);

"Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts."

Surely you can understand that can't you?

 

[LawDog76]

One case does not make "Case Law". Hell, neither does 2 or 3 especially when the cases do not deal with the exact same set of circumstance.

The first case was dealing with a guy pointing a gun at a Police Officer. You have to be pretty ******** dumb to do something like that.

Case #2 - Defendant fired at the trespasser several times. Again, NOT what the OP was asking.

 

[groovatron]

One case does not make "Case Law". Hell, neither does 2 or 3 especially when the cases do not deal with the exact same set of circumstance.

The first case was dealing with a guy pointing a gun at a Police Officer. You have to be pretty ******** dumb to do something like that.

Case #2 - Defendant fired at the trespasser several times. Again, NOT what the OP was asking.

I agree once again........I have yet to see an example of case law where a situation that even remotely resembles the OP's resulted in a homeowners arrest or prosecution simply based on "pointing" a firearm.


Still waiting.......

 

[finity]

One case does not make "Case Law". Hell, neither does 2 or 3

Then in your opinion how many does it take?

If the court of appeals makes a decision & then a lower court decides in opposition to that opinion is that grounds for appeal?

especially when the cases do not deal with the exact same set of circumstance.

The first case was dealing with a guy pointing a gun at a Police Officer. You have to be pretty ******** dumb to do something like that.

Case #2 - Defendant fired at the trespasser several times. Again, NOT what the OP was asking.

This case was about what we are talking about here. The specific details of the case may not be the same but the overall concept is the same. There NEVER will be two court cases that have the exact same details. If the court system used that requirement for their precedent then there would never be any. They work in the conceptual realm integrating the details of the case into that framework.

In the Nantz case the court used the reasoning in PREVIOUS DECISIONS (the two you cited) to reach it's decision in the case. JUST LIKE LATER COURTS WILL NOW DO BASED ON THIS CASE. No three of those cases remotely resembled each other BUT THEY STILL USED THEM TO DRAW THEIR CONCLUSION IN THE NANTZ CASE.

If you wait for case law that EXACTLY MATCHES detail for detail you'll be waiting a really long time.

Again the case is about pointing a firearm to protect property. Just like you would be doing by pointing a gun at someone standing outside your window. The court ruled that pointing a firearm to protect property is unreasonable deadly force, & since it is unreasonable, it negates a "protection of property" defense.

 

[finity]

Finity,

You are incorrect.

What you are essentially trying to say is that the court's reasoning(rationes decidendi) for their decision sets a binding precedent, but that's not the way stare decisis works.

Here is how the 9th Circuit describes stare decisis (precedent);

"Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts."

Surely you can understand that can't you?

Ok. It may not be "binding" per se but it will be used later (as I stated above) to craft later decisions.

Even if you use only the "decision" from the posted case, the conclusion is still the same.

I'll post the "decision" once more:

Consequently, we conclude that Nantz's conduct, pointing a loaded firearm at Petro's head, was unreasonable force to use to protect his alleged property interest in the bulldozer.   Thus, Nantz failed to prove his defense of property defense.

If you remove the extraneous or amplifying words you end up with:

we conclude that pointing a loaded firearm was unreasonable force to use to protect his alleged property interest Thus, (he) failed to prove his defense

That's the decision. That's the precedent.

You guys always want cases. Fine, proof is good.

I've shown you my proof & argued my case.

Now show me your proof.

Show me a case after the Nantz case where a homeowner was NOT convicted under similar circumstances (i.e. He pointed a gun at them to protect his property where there was no additional obvious danger to a person).

If there is none then based on the decision in Nantz, the next person who gets tried for protecting only property by pointing a handgun should be found guilty if the court stays true to precedent.

 

[RichardR]

Ok. It may not be "binding" per se but it will be used later (as I stated above) to craft later decisions.

You are still confusing stare decisis & rationes decidendi.

Even if you use only the "decision" from the posted case, the conclusion is still the same. no it isn't.

That's the decision. That's the precedent.

Nope, that is incorrect, while the court did find that Nantz was "unreasonable" in his actions, the court upon making that determination set no precedent in doing so.

You guys always want cases. Fine, proof is good.

I've shown you my proof & argued my case.

Now show me your proof.

Show me a case after the Nantz case where a homeowner was NOT convicted under similar circumstances (i.e. He pointed a gun at them to protect his property where there was no additional obvious danger to a person).

If there is none then based on the decision in Nantz, the next person who gets tried for protecting only property by pointing a handgun should be found guilty if the court stays true to precedent.

No offense Finity but I am getting weary of correcting all of your misstatements, you seem to have a real passion for arguing law, however you also seem to lack the basic knowledge required to do so successfully.

 

[Woodrow]

(rationes decidendi) [/COLOR]for their decision sets a binding precedent, but that's not the way stare decisis works.

Surely you can understand that can't you?

I'll not hurl insults or nasty phrases, but it seems to me that it is the ratio decidendi that establishes the precedent. The ratio decidendi of previous cases is what is taken into account to prevent ruling from the bench as it were--we want to maintain that jurisprudence constante that has become so elusive nowadays. Because the decision at hand was adjudicated in a Higher Court, is would be binding.

I'm no wikipedia legalista, and I'll not point fingers at those who are, but I will dust off the old Civil Procedure book from 1L and do a little light reading from time to time.

Please correct whatever needs correcting. It's been a long time for me and I am, perhaps, a bit rusty.

 

[RichardR]

I'll not hurl insults or nasty phrases, but it seems to me that it is the ratio decidendi that establishes the precedent. The ratio decidendi of previous cases is what is taken into account to prevent ruling from the bench as it were--we want to maintain that jurisprudence constante that has become so elusive nowadays. Because the decision at hand was adjudicated in a Higher Court, is would be binding.

I'm no wikipedia legalista, and I'll not point fingers at those who are, but I will dust off the old Civil Procedure book from 1L and do a little light reading from time to time.

Please correct whatever needs correcting. It's been a long time for me and I am, perhaps, a bit rusty.

Woodrow, that is essentially correct.

The ratio decidendi from a previous case may be used as ratio decidendi in another case, however it is not the same as stare decisis which is a binding precedent that must be adhered to by lower courts.

 

[Woodrow]

Woodrow, that is essentially correct.

The ratio decidendi from a previous case may be used as ratio decidendi in another case, however it is not the same as stare decisis which is a binding precedent that must be adhered to by lower courts.

Eh...the ratio decidendi is binding on lower courts because of the Principle of stare decisis. That's kind of the whole purpose of stare decisis. I don't understand what you mean when you say that they aren't the same. I don't know if you quite understand that stare decisis is entirely supported by the ratio decidendi. They are not mutually exclusive concepts. Like I said, it's been a while since Civil Procedure, but I do remember the basics.

 

[finity]

I'll not hurl insults or nasty phrases, but it seems to me that it is the ratio decidendi that establishes the precedent. The ratio decidendi of previous cases is what is taken into account to prevent ruling from the bench as it were--we want to maintain that jurisprudence constante that has become so elusive nowadays. Because the decision at hand was adjudicated in a Higher Court, is would be binding.

I'm no wikipedia legalista, and I'll not point fingers at those who are, but I will dust off the old Civil Procedure book from 1L and do a little light reading from time to time.

Please correct whatever needs correcting. It's been a long time for me and I am, perhaps, a bit rusty.

Hehehe

Eh...the ratio decidendi is binding on lower courts because of the Principle of stare decisis. That's kind of the whole purpose of stare decisis. I don't understand what you mean when you say that they aren't the same. I don't know if you quite understand that stare decisis is entirely supported by the ratio decidendi. They are not mutually exclusive concepts. Like I said, it's been a while since Civil Procedure, but I do remember the basics.

Hahaha

No offense Finity but I am getting weary of correcting all of your misstatements, you seem to have a real passion for arguing law, however you also seem to lack the basic knowledge required to do so successfully.

So what was it you were saying, again? Hhmmm...?


(sorry Woodrow, I just couldn't resist...)

 

[RichardR]

Eh...the ratio decidendi is binding on lower courts because of the Principle of stare decisis. That's kind of the whole purpose of stare decisis. I don't understand what you mean when you say that they aren't the same. I don't know if you quite understand that stare decisis is entirely supported by the ratio decidendi. They are not mutually exclusive concepts. Like I said, it's been a while since Civil Procedure, but I do remember the basics.

Not according to the 9th Circuit.

"Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts."

 

[Woodrow]

Cut and paste from Wikipedia all you want, brother. You don't seem to be understanding what it says. This isn't in depth legalese, it's basic concepts.