Lack of Castle Doctrine

[ORE45]

This shooting in Fremont over the weekend punctuates the need for Nebraska law to include Castle Doctrine.   This assumed self defense individual will now have to prove he is innocent.  He is in jail for self defense of himself and his family.  His life will be totally changed.  Yet, he has a God given right to self-defense which Nebraska law does not fully protect.  Can you imagine a prosecutor Monday morning quarterbacking the heat of the moment decision process of that individual ! 

http://fremonttribune.com/news/local/crime-and-courts/fremont-man-fatally-shot/article_342d0de5-b648-50ed-a1c2-ca51ff7e0364.html

[tstuart34]

Sorry but this story is missing a lot of details that lead to his arrest. I think it might have turned into a self defense after the altercation started.

 But why open the door with the gun displayed? What was said before the altercation began? What happen during the altercation?

I understand protecting your family but it almost sounds like Campos was looking for a fight... if he was truly defending his family he should avoid a hostile situation by not answering the door and contacting the police after he asked him to leave. If the man would of entered the house by force. Blast him.

But like i said missing details..

[ORE45]

Granted.  Newspapers are mostly opinion and conjecture now days.  The wording of the headline gives a clue to the mindset of the editor/writer.   If you compare different news sources on the web, most all tweak it according to their choice.  Not factual news, just a tree to hang entertaining things on to keep readers attention.

My question is about the lack of Castle law in a self defense shooting.   What else can the police do if there is someone killed by a shooting?   They have NO statute for self defense which the Castle doctrine might provide if the perp entered the home.

Law enforcement was FORCED to charge under existing statutes, ie manslaughter.    They had no other option.

[Sandhillian]

What else can the police do if there is someone killed by a shooting?   They have NO statute for self defense which the Castle doctrine might provide if the perp entered the home.

Law enforcement was FORCED to charge under existing statutes, ie manslaughter.    They had no other option.

Not true.  Prosecutors have, and do refuse to file charges where the FACTS support claims of self-defense.  Nebraska's self-defense/use of force statutes are located at sections 28-1407 to 28-1416.  When the FACTS are made public, then we'll know whether the decision to charge the shooter was appropriate.

[AAllen]

Many comments to make here, First Nebraska has the Castle Doctrine, people need to lay off that.  Castle Doctrine simply means you may defend yourself in your home without needing to retreat when facing a reasonable threat (in other words you invite someone in and attack them it does not apply).  Since this did not happen (at least from what was reported it never entered the home) the Castle Doctrine does not apply.

So what you are wanting is "Stand Your Ground," that is what pertains to outside your home.  That also would not apply from what is reported, Tyler Childs went to the home of his ex-girlfriend (angry, drunk whatever it does not matter how as long as he is doing nothing threatening) and is meet at the door by her father.  Apparently when Childs knocked at the door or otherwise announced his presence, something completely legal.  At this point Walter Campos produced a firearm, which would be a threat, escalating the situation and causing Childs to fear for his life and fighting to defend it.

If law enforcement felt that Childs was reasonably threatening Campos's life, well being, or that of someone else present; and Campos produced the firearm and used it in defense of his life or of another they could have let Campos go and then give the evidence to the County Prosecutor who could have agreed and wrote it off as self defense or could have reversed that and put out an arrest warrant.

Since the police arrested Campos it is apparent that even if they have doubts that they believe that Campos was the aggressor and thereby the shooting was not justified.

This has nothing to do with a duty to retreat which is what both Castle Doctrine and Stand Your Ground are about, this is asking to justify shooting someone because you think they need shooting.  The Nebraska Supreme Court has held that any law saying that is unconstitutional, we had that law for a time back in the 1960's.

[ORE45]

FACTS, yes.   This is the defendant's problem right now.  No facts are public so everyone (news, social media, etc.) is developing opinionated and unsubstantiated  scenarios.

As a teaching moment:

Are any recent Nebraska self defense (with death) examples where the shooter was NOT charged at the scene, excluding LEOs?

[AAllen]

Are any recent Nebraska self defense (with death) examples where the shooter was NOT charged at the scene, excluding LEOs?

A few years ago in Omaha, Shooting at a Walgreens, that said even though the shooter was not charged at the scene it was reviewed by the county and district attorneys and money was expended on legal fees, which the NFOA assisted in paying.  I believe there was one recently in a Walmart or grocery store parking lot as well, something about a person that was supposed to point someone out to the police (who showed up late) and there was a confrontation.  I think there is another that I am not mentioning as well but I do not keep a list of these.

[ORE45]

But why open the door with the gun displayed? What was said before the altercation began? What happen during the altercation?

There are two interesting points. 

#1 The news article editorializes the word 'brandishing' or 'displayed'.  But really, if you were that close to a threat, would anyone still have their gun holstered?  Does this mean Nebraska law lays blame if your firearm is presented before firing ?  Everyone understand distance time threat equation.

#2 Is it illegal to open the door of one's home and family under assault to issue warning to leave.  (No news article has stated location of body or location of shooting.)

[ORE45]

Please don't take my comments as confrontational.   Understanding self defense is sometimes in the details, hence my back and forth comments on law and this event.

At this point Walter Campos produced a firearm, which would be a threat, escalating the situation and causing Childs to fear for his life and fighting to defend it.

I'm not sure that the sight of a gun from a homeowner gives a trespasser premise to self defense of his life ?  I would not take the sight of a gun as an escalation unless I was the aggressor.   Is this case law in Nebraska ?

[AAllen]

1 - Bringing a firearm into a situation such as this is an escalation of events, bring a firearm into what appears to be simply a verbal confrontation can be considered to be an aggressive act threatening the life and wellbeing of the other person.

2 - Is the act by itself illegal, no.  But you are responsible for the outcomes of that action, and what you are describing as being under assault has in no reporting of the incident been reported.  But if you open the door to someone that is committing something that could be considered to be an assault you are doing the exact opposite of what you should be doing to protect yourself and family, you are leaving your place of safety to confront a possible aggressive person.  At this point you become the aggressor, and your bringing a firearm into the situation...that's just stupid. 

Call the cops and stay in your safe home until they arrive and handle the situation.

[tstuart34]

1 - Bringing a firearm into a situation such as this is an escalation of events, bring a firearm into what appears to be simply a verbal confrontation can be considered to be an aggressive act threatening the life and wellbeing of the other person.

2 - Is the act by itself illegal, no.  But you are responsible for the outcomes of that action, and what you are describing as being under assault has in no reporting of the incident been reported.  But if you open the door to someone that is committing something that could be considered to be an assault you are doing the exact opposite of what you should be doing to protect yourself and family, you are leaving your place of safety to confront a possible aggressive person.  At this point you become the aggressor, and your bringing a firearm into the situation...that's just stupid. 

Call the cops and stay in your safe home until they arrive and handle the situation.

Agreed

Sent from my VS985 4G using Tapatalk

[ORE45]

I have a couple of comments for tomorrow.  Thanks

Call the cops and stay in your safe home until they arrive and handle the situation.

This family was in a camper, not nearly so safe as your stick built house.  Retreat behind a 1 1/2" wall ??   I don't know the escalation particulars that nite, either.

[tstuart34]

There are two interesting points. 

#1 The news article editorializes the word 'brandishing' or 'displayed'.  But really, if you were that close to a threat, would anyone still have their gun holstered?  Does this mean Nebraska law lays blame if your firearm is presented before firing ?  Everyone understand distance time threat equation.

#2 Is it illegal to open the door of one's home and family under assault to issue warning to leave.  (No news article has stated location of body or location of shooting.)

1.Yep it does. It never said anything about where it was pointed either. Allen takes about a firearm aggregating the situation.

I this was me I would have never opened the door. But if for some reason I had to it would be in a manner that that the agressor would not have instant display to it. Because now your getting into defensive situation and middle control...

2.why open the door?!

Use your big boy voice and yell a bit open a window a bit OR wait for in bound police.

Sorry I don't think this is a defensive shoot if it was it was avoidable. I would like to see the police report.

Sent from my VS985 4G using Tapatalk

[farmerbob]

Didn't VP Joe Biden recommend blowing both barrels of your double barrel shotgun through the door before you open it??
^^^^^^^^^BAD ADVICE ^^^^^^^^DO NOT TRY!!!

[Kendahl]

Didn't VP Joe Biden recommend blowing both barrels of your double barrel shotgun through the door before you open it???

Not exactly. He recommended firing both barrels into the air from the deck at the back of the house. Still stupid advice. Illegal discharge plus a waste of ammunition.

[Sandhillian]

I'm not sure that the sight of a gun from a homeowner gives a trespasser premise to self defense of his life ?  I would not take the sight of a gun as an escalation unless I was the aggressor.   Is this case law in Nebraska ?

Take a look at this link to section 28-1409.  The annotations provide several excerpts from Nebraska case law.  Reading the statute and annotations will tell you much of what there is to know about justifiable v. unjustifiable use of force.  Section 28-1409 is about self-defense.  Defense of others is covered by section 28-1410, but the law is essentially the same for both (i.e. you can use force to defend others when you would be justified in using force to defend yourself).

http://nebraskalegislature.gov/laws/statutes.php?statute=28-1409

[Kendahl]

What else can the police do if there is someone killed by a shooting?   They have NO statute for self defense which the Castle doctrine might provide if the perp entered the home.

As AAllen stated, Nebraska does have a Castle Doctrine. When faced with death or serious injury at home, you are not obligated to look for a lesser alternative before resorting to deadly force. If Nebraska had Stand Your Ground, when faced with death or serious injury out in public, you would not be obligated to look for a lesser alternative before resorting to deadly force. As it is, when faced with death or serious injury out in public, you are obligated to use a lesser alternative only if there is one that is completely safe for you. Ninety nine percent safe isn't good enough. In the absence of a completely safe alternative, you may use deadly force. Note that each example contains the phrase "when faced with death or serious injury". Without that, neither Castle Doctrine nor Stand Your Ground gives you the right to use deadly force.

I pay attention to news reports of shootings in the Omaha area. So far, the Douglas County attorney has declined to file charges in every case that looked to me like legitimate self defense. Usually, a spokesman explains that the shooting was self defense. What I can't say is how the defenders were treated before the county attorney made his decision.

[AAllen]

This family was in a camper, not nearly so safe as your stick built house.  Retreat behind a 1 1/2" wall ??   I don't know the escalation particulars that nite, either.

You are correct the camper walls are not as solid as those of my home, and there are others whose homes are even stronger construction.  That does not change the situation.  They would not have been retreating into the camper, they were already there.  If Childs broke into the camper then Campos would have had justification for self defense, but going out (even without a firearm) is an escalation of the situation and at that point Campos became the aggressor.

[Dan W]

I think the question here is this...

Did Campos have a reasonable fear of death or grave bodily injury or rape of anyone present inside the camper at the hands if the alleged attacker?

Did the alleged attacker have the ability and opportunity, and did he place Mr Campos in deadly jeopardy?

Without these conditions, deadly force was not the legal response.

Just guessing, but the Police apparently did not find Mr Campos had reasonable justification for the use of deadly force

[Gunscribe]

A lot depends on what the shooter told arriving gendarmes as well. Peace Officers do not respond to self defense shootings or suicides. They respond to homicides. The investigation will determine the circumstances of the death. Understand that self defense in most states is defined as justifiable HOMICIDE by a citizen.

The absolute worst thing you can do if you survive a life or death encounter is immediately claim self defense. By claiming self defense you are admitting guilt to what is normally a crime. Now you are no longer innocent until proven guilty. You have confessed to what is normally a crime. The burden to prove the act was justifiable is now on you. Say Nothing except for requesting a lawyer.

No matter what YOU think it is Self Defense is a legally defined term your actions must conform to for society to deem what you did was justifiable.