Mom (18) shoots intruder to protect son (3mo.)

[armed and humorous]

AAllen:

Agreed, but how do we get prosecutors and judges to start enforcing the laws and using their power to put these criminals behind bars?  Plea bargains, probation, diversion, dropped charges, and such are undermining the intent and usefulness of the laws we have.  Some of it is in due to monetary issues (not enough jail space, etc.), but some of it is misguided interpretations  of the law (and technicalities) or the belief that we need to focus on rehabilitation rather than incarceration.

It may be outside the focus of the NFOA, but maybe we could monitor the performance of judges and prosecutors and publicly support removing the problem ones from their positions.

[bullit]

He is being prosecuted under "Felony Murder".  This term or simliar is used to prosectue a BG who participates in the commission of a felony and someone gets dead but not necessarily by said BG.

As an aside, the worthless "Drive By Media" has coined this poor widow as the "Make My Day Mom".  Just sick......

[HuskerXDM]

I hope, for her sake, all the media hype dies down.  I'm a member on another forum and a member's wife shot and killed an intruder in her home, but this guys family and friends threatened them so then ended up moving several times and have suffered greatly, emotionally and financially... even though she did the right thing. 

[armed and humorous]

Yes, it's not just the press and the law that try to criminalize some of these self-defense cases, but the family/friends/gang members of those shot an killed, as well as ordinary people who believe it is wrong to kill for any reason.

[Husker_Fan]

My recollections from law school:

Felony murder is the doctrine that applies.  There are different types and it varies by jurisdiction.  For example, in every FM jurisdiction, all accomplices are on the hook for the death of a victim.  In most, all accomplices are on the hook for the death of another accomplice.  In some, the death must have been reasonably foreseeable (an example of a death that wouldn't be foreseeable would be a white collar felony committed by an accomplice who had peanut butter on his fingers from lunch and a victim dies from a peanut allergy after touching paperwork).

As for castle doctrine, it's important to know that we have common law castle doctrine in Nebraska (and all other states that I'm aware of).  Under that, anyone forcibly entering a dwelling with the intent to commit a felony inside may have force, up to and including deadly force, used against them to repel them from the dwelling.  The intent to commit a felony inside is almost always implied by the fact a person is forcibly entering the dwelling.  The main time it is not is when the person has a legal right to be in the dwelling.  There is no "duty" to retreat in the home.

Typically, should a person be charged and taken to court, they admit that they killed the intruder, but must prove the affirmative defense of self defense.  If, however, the judge finds that the CD applies because the shooting was in the home and the intruder was forcibly entering the home, the burden shifts back to the prosecution to show, beyond a reasonable doubt, that the shooter did not have a reasonable fear (i.e. the prosecution must prove what the shooter was thinking).  That is such an insurmountable burden that I've never read of a case where the prosecution kept going once it was determined that the CD applied.

The statutes in those states on the maps expand this to make the CD apply to your vehicle and/or business, some provide a presumption against a finding of wrongful death for the death of the intruder.

I don't have a lot of time these days, but I might put together an article on CD for Nebraska that could be posted on the site and given to our resident CCW instructors.

[AAllen]

Husker Fan - the article from you would be a great addition to the cause.  One thing I wish to point out, like you say the statute requires the person defending themselves to have some knowledge, it speaks to their mental picture.  Unfortunately in practice the Nebraska supreme Court has placed a much lower standard, the reasonable man.  In other words the prosecution only needs to claim that a "reasonable man" would have known or should have known facts that the person defending themselves did not.  They stated in a case last year (I believe it may have been the year before) that their interetation may be wrong but without further guidance from the Legislature they are not going to change course.

[Husker_Fan]

Interesting.  I don't practice criminal defense, so I am not familiar with the quirks of Nebraska law.  I'm going to do the research and put something together.

[bullit]

Another reason I will advocate becoming a member of the Armed Citizens Legal Defense Network.