defense in a robbery

vermin99

Ok so I have heard a lot on this from different people and I'm not sure which to believe as its a serious matter , ok so I have a shotgun and say I heard noises down stairs grabbed the gun and a few cartridges,opened the door to find a thief lifting out my tv etc,obviously my first choice would be to shout and threaten to shoot unless they leave but if the thief goes for a knife and makes a run at me have I the right to shoot him in the leg to wound as protection? If not what would be the result of shooting a thief in self defense ?Guns taken ? ,jail time ,or a caution ? I dont think there would be a need to kill but what are my legal rights in such a situation,just curious handy to know? Thanks

Bepolite

Criminal Law (Defence and the Dwelling) Act 2011

2.— (1) Notwithstanding the generality of any other enactment or rule of law and subject to subsections (2) and (3), it shall not be an offence for a person who is in his or her dwelling, or for a person who is a lawful occupant in a dwelling, to use force against another person or the property of another person where—

(a) he or she believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act, and

(b) the force used is only such as is reasonable in the circumstances as he or she believes them to be—

If someone runs at you with a knife, do you believe it's reasonable to shoot them? Do you think you could convince 3 out of 12 people of your belief, case law suggests you would.

EDIT: To be completely, but somewhat necessarily pedantic, you're talking about a burglary not a robbery.

coylemj

Bepolite wrote: »

If someone runs at you with a knife, do you believe it's reasonable to shoot them? Do you think you could convince 3 out of 12 people of your belief, case law suggests you would.

If I had warned him that I had a gun and he still ran at me, with or without a weapon, I'd still feel that I was justified in shooting him.

It's impossible to define the boundaries, the only reason they made an attempt in legislation is because FG promised to do so as part of an election stunt pledge. It still comes down to whether the DDP decides to prosecute and whether they can find ten people to convict you or (as Bepolite says above) three people will refuse to do so.

vermin99

EDIT: To be completely, but somewhat necessarily pedantic, you're talking about a burglary not a robbery.

Yes a burglary of a house .....yes I think I would shoot to wound ! Would there be any chance of keeping the guns or would they be taken no exceptions ? As I do a fair bit of hunting and it would be nice to retain them ?
Also would you be better off to call the guards yourself and say you wounded him and explain the situation or wait for him to go to the guards ? I'm curious about this as theres a HUGE upsurge in the amount of robberys out in rural community's

Tom Young

vermin99 wrote: »

EDIT: To be completely, but somewhat necessarily pedantic, you're talking about a burglary not a robbery.

Yes a burglary of a house .....yes I think I would shoot to wound ! Would there be any chance of keeping the guns or would they be taken no exceptions ? As I do a fair bit of hunting and it would be nice to retain them ?
Also would you be better off to call the guards yourself and say you wounded him and explain the situation or wait for him to go to the guards ? I'm curious about this as theres a HUGE upsurge in the amount of robberys out in rural community's

There's a book called Neighbours and the Law published by Clarus Press. Buy it.

No comment on the FAOW Act, but you technically could shoot and may kill per section 2(7) of the Criminal Law (Defence and the Dwelling) Act, 2011. Ss.3 & 4 must be read as well.

johnnyskeleton

vermin99 wrote: »

Yes a burglary of a house .....yes I think I would shoot to wound !

Do you really own a gun? The reason I ask is that most gun owners know that there is no such thing as shooting to wound. A shot to the leg can be just as fatal as a shot to the chest or the head, if it hits an artery, and a shotgun firing shells will cause major damage to a leg if fired at close range.

Also, if you shoot a shotgun in a confined space you are also likely to injure yourself, albeit in a minor enough way.

If someone has broken into your house, ring the gardai asap

Cody Pomeray

Bepolite wrote: »

If someone runs at you with a knife, do you believe it's reasonable to shoot them?

As per Nally v. DPP, the test is an objective test, although admittedly some argue it is now both subjective-objective in light of Defence and the Dwelling .

I would say the OP has a duty to be the reasonable man.

Manach

Would not the factual scenario differ in Nally to the OP's original question - in that the event took place over a slightly longer time period, with the defendant following the victim outside the house to re-shoot him?

AFAIR, the case of Brown v. US could be cited to show that the stress of the
circumstances could also be used as a factor to determine defence.

Tom Young

Manach wrote: »

Would not the factual scenario differ in Nally to the OP's original question - in that the event took place over a slightly longer time period, with the defendant following the victim outside the house to re-shoot him?

AFAIR, the case of Brown v. US could be cited to show that the stress of the
circumstances could also be used as a factor to determine defence.

It's Barnes, Nally and the 2011 CL(D&TD) Act, here. Nothing else. If you want to discuss the differences in each case, so be it. Hardiman J in Barnes discusses, by way of seque the initial act of aggression perpetrated by the Burglar (who then retaliated, causing death of the occupant), can never be anything less than a manslaughter conviction. Ss. 3 & 4 now assist by removal of the common law position on retreat, and occupant civil liability (or lack concomitant thereto). This must also be looked at through and with the prism of the NFOAP Act, 1997, Ss. 18, 19, 20 and 21.

Taking up from Cody the test is Objective re. Discharge/threat, though when mixed with S.12 CJ TFA 2001, NFOAPA 1997, Crim Dam Act, 1991, subjectivity plays a not insignificant role in the defence.

Bepolite

Cody Pomeray wrote: »

As per Nally v. DPP, the test is an objective test, although admittedly some argue it is now both subjective-objective in light of Defence and the Dwelling .

I would say the OP has a duty to be the reasonable man.

I'm afraid I disagree. I believe academically the test is almost wholey subjective and in practice it will be almost impossible to convict due to the prevailing attitudes of juries. The subjective element is of course the circumstances rather than the force but it's distinction with minor effect at best.

Cody Pomeray

I'm not denying the incorporation of an initial, subjective element as it relates to s.2(1) a. of Defence and the Dwelling .

To deny the ultimate objectivity of the test, or to present it as "do you believe it's reasonable to shoot them?" is not based on anything, I'm afraid.

Bepolite

Cody Pomeray wrote: »

I'm not denying the incorporation of an initial, subjective element as it relates to s.2(1) a. of Defence and the Dwelling .

To deny the ultimate objectivity of the test, or to present it as "do you believe it's reasonable to shoot them?" is not based on anything, I'm afraid.

I see your point, however the OP described a scenario to which my post, fairly clearly, related. To be fair my question could have been framed in more precise terms.

vermin99

johnnyskeleton wrote: »

Do you really own a gun? The reason I ask is that most gun owners know that there is no such thing as shooting to wound. A shot to the leg can be just as fatal as a shot to the chest or the head, if it hits an artery, and a shotgun firing shells will cause major damage to a leg if fired at close range.

Also, if you shoot a shotgun in a confined space you are also likely to injure yourself, albeit in a minor enough way.

If someone has broken into your house, ring the gardai asap

Well yes I do! But you would be fair more likely to only cause a wound shooting in the leg area with a lighter clay pigeon type cartridge.....would you be charged with manslaughter if he did end up dying ?

vermin99

Thanks for the replies lads,just one more question would the guns be taken without any exceptions?

Jack Weasel.

I'd just chance it.

The way the country is going unless you killed him execution style a Jury is going to back you on this.

Cody Pomeray

vermin99 wrote: »

Thanks for the replies lads,just one more question would the guns be taken without any exceptions?

Do you mean would your firearms certificate be revoked? The conditions for this are laid out in s.5 of the 1925 Firearms Act 1925 as substituted by s.35 of the Criminal Justice Act 2006. It provides:

(1) An issuing person may at any time revoke a firearm certificate granted by the person if satisfied that the holder of the certificate—
(a) has not a good reason for requiring the firearm to which the certificate relates,
(b) is a person who cannot, without danger to the public safety or security or the peace, be permitted to possess a firearm,
(c) is a person who is declared by this Act to be disentitled to hold a firearm certificate,
(d) where the firearm certificate limits the purposes for which the firearm to which it relates may be used, is using the firearm for purposes not authorised by the certificate,
(e) has not complied with a condition attached to the grant of the certificate, or
(f) where the firearm is authorised to be carried or used by a holder of a firearms training certificate, has, without reasonable excuse, permitted the holder of that certificate to carry or use the firearm while not under his or her super-vision.
(2) The reason for revoking a firearm certificate shall be communicated in writing by the issuing person to the holder of the certificate.
(3) Where a firearm certificate is revoked or otherwise ceases to be in force, the issuing person may direct in writing that the holder surrender the firearm or ammunition concerned or both to the custody of the superintendent of the district where the holder resides or to a member of the Garda Síochána acting on the superintendent's behalf.

The above indicates that a firearms certificate would not be revoked where the gun was discharged lawfully as per the defence & the dwelling act or the firearms acts or other.

it may be important to consider that a Garda Superintendent who issues a firearm certificate may formulate his own peculiar guidelines by reference to which he makes his decisions. See Magee v Murray [2010] IESC 28.

vermin99

Thanks,all I want to know is answered ,lot happier now:)

vermin99

. See Magee v Murray [2010] IESC 28.[/quote]

How?

Cody Pomeray

Superior Courts judgements search
http://www.courts.ie/Judgments.nsf/SearchPage?Openform

Magee v Murray judgement here
http://www.courts.ie/judgments.nsf/23fd4a34bad801d980256ec50047a0a8/bd7161898d06d73580257720003bed64?OpenDocument

Relevant at :

[67]On the other hand, it would be wrong to preclude a decision-maker from formulating guidelines by reference to which he makes it clear that he will make his decisions. It would be inimical to good administration and to consistency in decision-making to oblige all decision-makers to treat each decision entirely on its own, without reference to previous decisions or to criteria designed to serve the public interest. Keane J. in Carrigaline Community Television Broadcasting Company Ltd v Minister for Transport, Energy and Communications, cited above, said:

“In the case of this and similar licensing regimes, the adoption by the licensing authority of a policy could have the advantage of ensuring some degree of consistency in the operation of the regime, thus making less likely decisions that might be categorised as capricious or arbitrary. But it is also clear that inflexible adherence to such a policy may result in a countervailing injustice. The case law in both this jurisdiction and the United Kingdom illustrates the difficulties in balancing these competing values.”

Morte

johnnyskeleton wrote: »

Do you really own a gun? The reason I ask is that most gun owners know that there is no such thing as shooting to wound. A shot to the leg can be just as fatal as a shot to the chest or the head, if it hits an artery, and a shotgun firing shells will cause major damage to a leg if fired at close range.

Also, if you shoot a shotgun in a confined space you are also likely to injure yourself, albeit in a minor enough way.

If someone has broken into your house, ring the gardai asap

Also, the idea of picking off a limb is rather Hollywood. Aiming at a small, fast moving target when you're under great mental strain is not easy and there's a big chance you'll miss leaving yourself in danger. US officers, who are trained professionals, are told to just aim for the largest target, the torso. If somebody is dangerous enough to warrant shooting then just take them down.

vermin99

Morte wrote: »

Also, the idea of picking off a limb is rather Hollywood. Aiming at a small, fast moving target when you're under great mental strain is not easy and there's a big chance you'll miss leaving yourself in danger. US officers, who are trained professionals, are told to just aim for the largest target, the torso. If somebody is dangerous enough to warrant shooting then just take them down.

Well if he had a gun there's no question of shoot to kill.....I see your point but a shotgun would have a fairly large spread so you shouldn't really miss,only bad thing is you might damage the house !

johnnyskeleton

vermin99 wrote: »

Well yes I do! But you would be fair more likely to only cause a wound shooting in the leg area with a lighter clay pigeon type cartridge

I don't know about that, they still use a lot of shot and at close range it would have a terminal velocity more than sufficient to penetrate the leg.

Victor

vermin99 wrote: »

Well if he had a gun there's no question of shoot to kill.....I see your point but a shotgun would have a fairly large spread so you shouldn't really miss,only bad thing is you might damage the house !

In a typical indoor setting, that spread might only be 100-150mm in diameter.

seamus

Would going downstairs with the gun before assessing the threat possibly be seen as malicious intent? i.e. you're taking the gun with the intention of using it.

On the "shoot to wound" issue, a teacher of mine used to say that if you're going to defend yourself from a burglar, you're better off killing him. Because then it's your word against a dead man's rather than your word against a liar's. Aim for the chest, shoot when he's only a metre from the muzzle.

IRLConor

I'm a target shooter not a lawyer but I've thought about this and discussed this with friends several times.

• You shouldn't ever shoot at anyone/anything you're not willing to kill. Even a light birdshot load could kill someone if you're unlucky or if you screw up so don't count on that saving you.
• You may face questions from the Gardai as to why you had time to assemble & load the shotgun or retrieve it from a safe rather than take other action. (For those of you not familiar with the laws on firearm storage: If you have one shotgun and no other firearm you may store it dismantled and trigger locked. In all other circumstances guns must be stored in a gun safe.)
• Unless you had quite a sympathetic Super I would expect that you'd have your guns confiscated at least until all investigations are finished. This could take years.
• There's a pretty good chance that your firearm certificate would not be renewed. At the very least you might find it harder to license other/extra guns.

For those reasons, if anyone breaks into
my home my rifle will stay in the safe.

Tom Young

seamus wrote: »

Would going downstairs with the gun before assessing the threat possibly be seen as malicious intent? i.e. you're taking the gun with the intention of using it.

On the "shoot to wound" issue, a teacher of mine used to say that if you're going to defend yourself from a burglar, you're better off killing him. Because then it's your word against a dead man's rather than your word against a liar's. Aim for the chest, shoot when he's only a metre from the muzzle.

See my post above and the comments from Hardiman. The context is Art 40.5 of the constitution - inviolability of the dwelling interningled with Criminal Law (Defence & the Dwelling) Act, 2011.

Victor

seamus wrote: »

Aim for the chest, shoot when he's only a metre from the muzzle.

You mean when they are within arms reach? And you hope the first round isn't a dud?

OU812

Two shots.

1. Fatally shoot the intruder
2. Shout out "That was a warning, leave or I shoot again"
3. Discharge gun into ceiling.


In all seriousness. Shoot to kill. There is absolutely no need to be two sides of the story.

Disclaimer: I don't have a gun, but if I did I'd have no hesitation to use it on someone who entered my property with malicious intent. I'd consider my life & my family's lives to be at risk & take appropriate action. I do have various methods of defence and also a very large very territorial dog.

Victor

OU812 wrote: »

3. Discharge gun into ceiling.

4. Kill family member upstairs.

OU812

Well "wall" then

Bepolite

OU812 wrote: »

Well "wall" then

4. Kill family member in next room.

OU812

I feel like I'm trapped in the old text based Hitchiker's Guide To The Galaxy

1. Press vending machine button
2. A Babelfish shoots out the slot, across the floor into a mouse hole in the wall
1. Put towel over mouse hole
2. You place your towel over the mouse hole, blocking it.
3. Press vending machine button
4. A Babelfish shoots out the slot, across the floor and stops at the towel you placed over a mouse hole in the wall.
5. Put Babelfish in ear
6. You don't have a Babelfish
7. Pick up Babelfish from towel
8. You pick up the Babelfish
9. Put Babelfish in ear
10. Are you sure?
11. Yes
12. (Sigh) you put the Babelfish in your ear.

Continue game...

vermin99

Thanks ah sure ill hope I won't have to ever use it but just to be sure, I can see your point sure the forensic boys would be able to have yer man's prints etc on the knife or whatever and anyway if I was a thief and someone came down the stairs with a gun I wouldn't be long leaving !:P