Ricebrnr

Sun, Dec 5, 2010 : 8:53 a.m.

"there may be some expectation that the homeowner give them at least a moment to surrender." After doing what/giving them a what? You're right you didn't say warning...

Andrew MacKie-Mason

Sat, Dec 4, 2010 : 4:08 p.m.

Whatever you were taught, under the Michigan law of self-defense the mere fact that a gun is drawn does not give everyone in the vicinity the right to shoot the holder of the gun. Justifiable deadly force requires more than the presence of a firearm: an honest and reasonable belief that the use of deadly force is necessary to prevent imminent death or imminent bodily harm. There are many situations where the mere presence of a gun is not enough to create an honest and reasonable belief, and the story above doesn't contain enough information to be sure that there was such an honest and reasonable belief. Regarding your claim that the police would instantly shoot the moment they shoot a gun, without any attempt to give warning, check out Tennessee v. Gardner: "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given."

Ricebrnr

Fri, Dec 3, 2010 : 5:40 p.m.

Once anyone "produces" a weapon it is considered use of deadly force. Every CPL holder in Michigan is taught by law if we "pull" our guns out, it is considered use of deadly force whether or not any shots are ever fired. Your intent to use it is presumed once you pull it out, hence my primer on brandishing. A pellet gun was recovered from the scene. How did the police find it? Because the victim claimed the teen drew it. If the teen didn't draw it how did she know it was there to be recovered? You may quibble over if it was or how it was brandished and ignore the other facts reported but real firearm or pellet gun when it's your life on the line, somehow I doubt you'll be as magnanimous towards the "alleged" assailant. When he produces a weapon are you going to wait to see if he's going to point a weapon at you, wait to see if he's going to pull the trigger, wait to see if real bullets come out, wait to see if you are actually shot, wait to see if that's a welt or a hole, wait to see if you're bleeding before then deciding if he's had enough chances to end your life? No one interested in their self preservation and no officer or soldier who goes into harms way EVER would.

Andrew MacKie-Mason

Fri, Dec 3, 2010 : 5:11 p.m.

@Ricebrnr: Except that my original comment was worded almost exactly the same way the law is, and nothing in the law you cited contradicts anything I said. All I said is that there is not enough information in the statement "he pulled a pellet pistol on a woman" to know whether "The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual." Was the weapon allegedly displayed? Was it allegedly in his hand? Was it allegedly pointing at the ground, or at her? Did it allegedly look realistic enough that she could reasonably believe that it was a real, dangerous weapon? The law and AG's opinion regarding brandishing a weapon are irrelevant. The perpetrator may or may not have committed the crime of "brandishing a weapon", but that analysis is independent of whether there was a reasonable fear of death or great bodily harm. The bottom line is that *assuming* the weapon was actually pointed at her, and *assuming* that in the time it took her to draw her own weapon the perpetrator didn't lower his weapon or otherwise attempt to surrender, and *assuming* that his gun looked like a real one, she would have probably been justified in shooting him. But that all assumes a lot of information not available in the story.

Ricebrnr

Thu, Dec 2, 2010 : 6:53 p.m.

Fine you want to quibble whether a porch attached to a dwelling applies then perhaps you might want to also peruse the Michigan Stand Your Ground Law. 780.972 Use of deadly force by individual not engaged in commission of crime; conditions. Sec. 2. (1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies: (a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual. (b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual. (2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual. "there may be some expectation that the homeowner give them at least a moment to surrender." Wow just wow, the level of naivete in this statement alone... In real life, the time between drawing a firearm (as in bringing it out of concealment/unholstering) and getting on target and firing is measured in fractions of seconds. No police officer is expected to give an assailant who already has "the drop" on them a moment to surrender. Look up "brandishing" also. Michigan Penal Code section 750.234e makes brandishing a firearm a misdemeanor. It says: (1) Except as provided in subsection (2), a person shall not knowingly brandish a firearm in public. [Subsection (2) provides an exception for police officers.] (3) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days, or a fine of not more than $100.00, or both. The term "brandishing" is not otherwise defined in the Michigan statutes. There is an interesting discussion of this point in an opinion by the Michigan Attorney General, which is available online at: http://www.ag.state.mi.us/opinion/datafiles/2000s/op10176.htm The key portion of this opinion says: Section 234e of the Michigan Penal Code does not define the crime of brandishing a firearm in public. The Michigan Criminal Jury Instructions, published by the Committee on Standard Criminal Jury Instructions, does not include a recommended jury instruction on brandishing a firearm. Research discloses that while the term "brandishing" appears in reported Michigan cases, none of the cases define the term. In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. n. A menacing or defiant wave or flourish." This definition comports with the meaning ascribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, "brandishing" a weapon is defined to mean "that the weapon was pointed or waved about, or displayed in a threatening manner." Bottom line, if someone pulls what a person reasonably would consider a lethal weapon (brandishing) that act is and should be considered a threat of lethal force and should be responded to in kind. In real life, people don't shoot to wound, shoot weapons out of other people's hands OR give them a moment to surrender. They fight in response to imminent threat for their lives and with all deliberate speed because they are already playing catch up. Seriously, this is clearly not your area of expertise.

Andrew MacKie-Mason

Thu, Dec 2, 2010 : 5:55 p.m.

@cinnabar7071: "Andrew MacKie-Mason your a very funny man. Yes pulling a gun on a home owner would in fact be a justifiable self defense in all situations nobody in their right mind would stop to ask what he was planing once he started to pull the gun. Pulling a pellet gun on a person that has a real gun is suicide. But you are right I wasn't there, just saying." What exactly does "pulling a gun on" mean to you? Because to me it could be anything from displaying a weapon to pointing it directly at them and threatening to shoot them. Depending on what exactly the person drawing the weapon did, there may be some expectation that the homeowner give them at least a moment to surrender. @Ricebrnr: "You might want to review Michigan's Castle Doctrine before making your opinions on the subject matter in the future." You may actually wish to review it before citing it. I presume you're referring to MCL 780.951, which creates a rebuttable presumption that there is a legitimate fear of imminent harm sufficient to justify a finding of self-defense. In a residential setting, it doesn't apply throughout the entire property, but just in the dwelling. And: '"Dwelling" means a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter.' First of all, it's not clear whether all porches qualify as "appurtenant structures" under the law. Two of the Michigan cases I've been able to find (People v. Hensley, 2009 WL 131692; People v. Stewart, 2006 WL 2033987) seem to take it as necessary that a porch be enclosed for it to count as an appurtenant structure. One (People v. Canales, 243 Mich.App. 571, 624 N.W.2d 439) seemed to think that any porch counted as an appurtenant structure. As far as I can tell, the Michigan Supreme Court hasn't taken up the issue yet. Anyways, it's not actually clear from the story whether the drawing of the weapon allegedly occurred on the porch or elsewhere on the property. My original comment was directed at cinnabar's seemingly more general claim (and I guess yours, where you talk about the "property" in general). The castle doctrine does not apply everywhere on your property, just within your dwelling and other structures. The porch may or may not count. But even when the castle doctrine applies, it merely creates a rebuttable presumption. It's not an absolute rule that you can shoot people who are invading your home. (You can't shoot someone in your home after they've already surrendered, for instance.) If the gun obviously wasn't real, if he only displayed it and never directly threatened her with it, etc. then the presumption could probably be rebutted.

Jimmy McNulty

Thu, Dec 2, 2010 : 8:42 a.m.

I agree that the gun-wielding teenager is lucky not to have been harmed by a homeowner protecting his or her own self. My question is what were the teens doing there at 1 PM on a Tuesday? Was school let out early?

Ricebrnr

Thu, Dec 2, 2010 : 6:33 a.m.

@Andrew if someone is on your property and draws a weapon (when asked to leave or otherwise) at what point do you think its permissible to defend yourself with deadly force? You might want to review Michigan's Castle Doctrine before making your opinions on the subject matter in the future.

jim ralston

Wed, Dec 1, 2010 : 11:20 p.m.

I know that house. The police have to go to that house 1 or 2 times a month. Why are the teen's there? They don't live there. Do you think the house should be watched? Whats next,a shooting?

M.

Wed, Dec 1, 2010 : 9:44 p.m.

Wasn't there an article a week or so ago about a group of teens jumping someone, and one of them shooting at the victim's car with a pellet gun?

cinnabar7071

Wed, Dec 1, 2010 : 5:46 p.m.

Andrew MacKie-Mason your a very funny man. Yes pulling a gun on a home owner would in fact be a justifiable self defense in all situations nobody in their right mind would stop to ask what he was planing once he started to pull the gun. Pulling a pellet gun on a person that has a real gun is suicide. But you are right I wasn't there, just saying.

obviouscomment

Wed, Dec 1, 2010 : 5:32 p.m.

i saw this...i was driving by and there were 3 police cars blocking traffic on mich ave and a bunch of teens sitting on a porch talking to the police...why were they even up there? crazy

Andrew MacKie-Mason

Wed, Dec 1, 2010 : 4:02 p.m.

@cinnabar7071: You mean, if he did what he was alleged to have done? And, of course, shooting someone for merely producing a weapon would not be justifiable self defense in most situations. There's not enough information in the story to know what "threatens" means in this specific circumstance, so you can't say whether the woman would have been put in reasonable fear of her life in these alleged circumstances. @John Hritz: Perhaps it's relevant because "the boy was upset" is part of an explanatory sentence offering a reason why the kid may have allegedly pulled the gun? There's no suggestion in the story that being upset was a justification or legitimized the alleged actions.

John

Wed, Dec 1, 2010 : 10:29 a.m.

I'm trying to understand how "the boy was upset" is relevant in this situation. He was trespassing, invited to leave and produced a weapon.

cinnabar7071

Wed, Dec 1, 2010 : 9:35 a.m.

The Boy is lucky to be alive, I know some homes were if he had pulled that he would be dead.