NFOA MEMBERS FORUM
General Categories => Newsworthy => Topic started by: greg58 on June 01, 2020, 03:19:13 PM
-
https://www.ketv.com/article/officials-announce-no-charges-to-be-filed-at-this-time-in-the-death-of-22-year-old-james-scurlock/32733160
Seems the Shooting of James Scurlock was deemed self defense. The bar owner did have an expired CHP permit.
-
Well, I don't know about any of y'all, but...........
It doesn't seem to be a good move EVER to jump on a man who has a handful of loaded and oiled lethal force.
"He's got a gun," should be enough to light a fire under the heels of just about any sane person.
sfg
-
I'd like to know how he didn't get hit with illegal CCW considering the expired permit.
-
I'd like to know how he didn't get hit with illegal CCW considering the expired permit.
I was wondering this, and also that the bar owner said he fired two "warning shots" when he was attacked by the first two. I was wondering how he didn't also get hit with reckless endangerment, negligent discharge of a weapon or something similar for that (don't honestly know what the charge would be, but I've always read and heard that you don't fire warning shots).
-
I'd like to know how he didn't get hit with illegal CCW considering the expired permit.
He's also been charged (but not convicted) twice for other firearms offenses in the past (carrying a concealed weapon in 2011 and failing to tell an officer he had a concealed handgun in 2013).
https://www.thedailybeast.com/omaha-bar-owner-jake-gardner-held-in-shooting-of-black-protester-james-scurlock-has-gun-arrests
-
The lesser firearms violations will probably be charged later.
Or the prosecutor's office may just let the whole thing die down and then forget about the picky stuff.
sfg
-
28-1202.
Carrying concealed weapon; penalty; affirmative defense.
(1)(a) Except as otherwise provided in this section, any person who carries a weapon or weapons concealed on or about his or her person, such as a handgun, a knife, brass or iron knuckles, or any other deadly weapon, commits the offense of carrying a concealed weapon.
(b) It is an affirmative defense that the defendant was engaged in any lawful business, calling, or employment at the time he or she was carrying any weapon or weapons and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying the weapon or weapons for the defense of his or her person, property, or family.
(2) This section does not apply to a person who is the holder of a valid permit issued under the Concealed Handgun Permit Act if the concealed weapon the defendant is carrying is a handgun.
(3) Carrying a concealed weapon is a Class I misdemeanor.
(4) In the case of a second or subsequent conviction under this section, carrying a concealed weapon is a Class IV felony.
-
So, I just wonder if the 2 that jumped Gardner at first might face some kind of assault charge? If charged could they have some responsibility for the ultimate death of Scurlock?
We do have a Felony Murder law in NE.
-
LJUnaTIC's post raises a poignant question... what's the role of firearms in the defense of property in Nebraska?
In a series of tweets expanding on Kleine's decision, the World Herald's Alia Conley wrote this: "No one is justified in Nebraska to use deadly force to protect your property, like if someone steals something, Kleine says. But can only be used in situations and is justifiable if someone is in fear of their own life or serious bodily injury or they don't feel they can retreat."
But as LJUnaTIC highlights regarding concealed carry without a permit, Nebraska law says: "It is an affirmative defense that the defendant was engaged in any lawful business, calling, or employment at the time he or she was carrying any weapon or weapons and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying the weapon or weapons for the defense of his or her person, property, or family".
Nebraska law not only presumes the defense of property with firearms; it allows for unregulated concealed carry of weapons to defend property when prudent due to circumstances. Kleine has some explaining to do.
-
You can defend property with a firearm up until deadly force is necessary, and at that point you must only use deadly force to prevent serious bodily injury, rape, or death to yourself or others, not to protect the property.
So one cannot shoot a burglar, a looter or an attacker until they breech the threshold of what a reasonable person would agree is deadly force being deployed against you, and only during that time that the deadly force is being used against you or others.
So, an affirmative defense for carrying a concealed weapon is not a license to use deadly force to protect property.
-
You can defend property with a firearm up until deadly force is necessary, and at that point you must only use deadly force to prevent serious bodily injury, rape, or death to yourself or others, not to protect the property.
So one cannot shoot a burglar, a looter or an attacker until they breech the threshold of what a reasonable person would agree is deadly force being deployed against you, and only during that time that the deadly force is being used against you or others.
So, an affirmative defense for carrying a concealed weapon is not a license to use deadly force to protect property.
Could be multiple reasons I'm not understanding this (rough day at work, not enough caffeine for the day, just plain stupid, etc), but I definitely need some more explanation. You state defend property with a firearum up until deadly force is necessary. My understanding was that use of a firearm was automatically considered to be deadly force.
-
I notice no one has yet pointed out regardless of any thing else right or wrong ….. He was still carrying a firearm in a Bar.
-
He was still carrying a firearm in a Bar.
According to WOWT, Gardner owns two bars. I believe it would be legal for him to carry in either of them, with or without a permit, in his capacity as owner.
-
Could be multiple reasons I'm not understanding this (rough day at work, not enough caffeine for the day, just plain stupid, etc), but I definitely need some more explanation. You state defend property with a firearum up until deadly force is necessary. My understanding was that use of a firearm was automatically considered to be deadly force.
define "use", merely holding a firearm at low ready is not deadly force
-
Here is the statute but it is pretty complex and not at all easy to understand
28-1409.
Use of force in self-protection.
(1) Subject to the provisions of this section and of section 28-1414, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(2) The use of such force is not justifiable under this section to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.
(3) The use of such force is not justifiable under this section to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
(a) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;
(b) The actor has been unlawfully dispossessed of the property and is making a reentry or recapture justified by section 28-1411; or
(c) The actor believes that such force is necessary to protect himself against death or serious bodily harm.
(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is it justifiable if:
(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
(ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape shall not be obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
(5) Except as required by subsections (3) and (4) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.
Source
Laws 1972, LB 895, § 4;
R.R.S.1943, § 28-836, (1975).
Annotations
1. Elements
2. Evidence
3. Jury instructions
4. Lawful force
5. Unlawful force
6. Miscellaneous
1. Elements
A defendant's use of deadly force in self-defense is justified if a reasonable ground existed under the circumstances for the defendant's belief that he or she was threatened with death or serious bodily harm, even if the defendant was actually mistaken about the extent of the danger. State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).
To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necessity of using force and the force used in defense must be immediately necessary and justified under the circumstances. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).
A defendant asserting self-defense as justification for the use of force must have a reasonable and good faith belief in the necessity of such force. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).
In order for the self-defense justification to be applicable, (1) the belief that force is necessary must be reasonable and in good faith, (2) the force must be immediately necessary, and (3) the force used must be justified under the circumstances. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).
The use of deadly force shall not be justifiable unless the actor believes such force is necessary to protect himself against death or serious bodily harm, nor is it justifiable if the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter or the actor knows that he can not avoid the necessity of using such force with complete safety by retreating. State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986).
When one is attacked within one's dwelling, the right to defend oneself and the privilege of nonretreat should apply equally, regardless of whether the attacker is a cohabitant or an unlawful entrant. State v. White, 20 Neb. App. 116, 819 N.W.2d 473 (2012).
Pursuant to subsection (4)(a) of this section, to deprive a defendant of the defense of self?defense, the defendant's provocation must be with the intent that the defendant will then cause death or serious bodily injury to the one that the defendant provoked, and it must all occur in the same encounter. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).
2. Evidence
Under subsection (5) of this section, evidence of victims' violent or aggressive behavior which occurred 4 months after defendant shot them was not relevant to the circumstances as defendant believed them to be the night he shot them. State v. Allison, 238 Neb. 142, 469 N.W.2d 360 (1991).
3. Jury instructions
A trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).
Jury instruction requiring, as an element of self-defense, that "before using deadly force the defendant either tried to get away or did not try because he reasonably did not believe he could do so in complete safety," was not erroneous under this section. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).
A defendant is entitled to an instruction on self-defense if there is any evidence to support it; this is true even if the defendant does not testify. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).
A defendant is not entitled to a self-defense jury instruction when he could have safely retreated. State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983).
Defendant is entitled to have jury instructed on his theory of self-defense if there is any evidence to support it. State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981).
4. Lawful force
The policy underlying this section supports its application in situations where a suspect has resisted a pat-down search, even where that pat-down search is later found to be unconstitutional. State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).
This section provides no defense when a defendant uses force against another's lawful force. State v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990).
Use of force was prohibited where person being arrested knew that arrest was being made by a peace officer. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987).
The use of deadly force is justifiable when the actor believes that such force is necessary to protect himself or herself against death or serious bodily harm unless the actor knows that he or she can avoid the necessity of using such force with complete safety by retreating. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).
Pursuant to this section, if a defendant is justified in using force toward an individual, the defendant is justified in the force employed which mistakenly strikes the actual victim. State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999).
5. Unlawful force
Record did not establish that victim used "unlawful force" against the defendant. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).
6. Miscellaneous
The excuse of self-defense is applied to the threatening behavior of "another person", not to a generalized group of actors. State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999).
-
I notice no one has yet pointed out regardless of any thing else right or wrong ….. He was still carrying a firearm in a Bar.
before this shooting happened over 1/2 his windows were broken out by signs that were ripped out of the sidewalks across the street. i believe the news all so said rocks were use to break a few more windows. so violence started before the shooting occurred.
my point of view ... first, this happened out side the bar, in the street and was IMO 100% self defense.. both people that were shot/at were on top of the bar owner when the shots were fired.
second, he was the bar owner , not a patron . and i believe he has the right to protect his property . i do believe that means he can carry a firearm inside and out side his bar property ?? maybe a lawyer can respond on the last.. i all so believe that means he dose NOT need a permit to do so at least not on property.
-
Pretty sure carrying a weapon into a bar is only prohibited for CCW permit holders. His permit was expired.
-
Then Gun-hater Kara Eastman opened her mouth and showed her ignorance.
Fanning the flames in my opinion!
https://www.nrcc.org/2020/06/02/eastman-defends-spreading-false-information-during-riot/
-
Appears that Don Kline is now talking about sending the issue to a grand jury.
sfg
-
my point of view ... first, this happened out side the bar, in the street and was IMO 100% self defense..
My recollection from the legal class I took from Gary Young on self defense would indicate that going out onto the sidewalk to confront someone would be very legally questionable (like going out on your front lawn to meet someone rather than them coming into your house). Maybe the law is more flexible or maybe this guy got really lucky with the DA.
-
County attorney will convene grand jury to review evidence in death of James Scurlock
https://www.ketv.com/article/county-attorney-to-hold-news-conference-on-james-scurlock/32758239?fbclid=IwAR0NvuIjpbxlpjXElgEzhQQmjOOIyx4mtMu6LFk6RlCAR1JkvBYAEZNp0wM
-
My recollection from the legal class I took from Gary Young on self defense would indicate that going out onto the sidewalk to confront someone would be very legally questionable (like going out on your front lawn to meet someone rather than them coming into your house). Maybe the law is more flexible or maybe this guy got really lucky with the DA.
i was respond to the quote above my post about "Quote from: Phantom on June 02, 2020, 05:12:12 PM
I notice no one has yet pointed out regardless of any thing else right or wrong ….. He was still carrying a firearm in a Bar."
i would all so recommend watching the videos posted .. this WHOLE incident happened out side and caught on video , some even has sound .
https://www.ketv.com/article/officials-announce-no-charges-to-be-filed-at-this-time-in-the-death-of-22-year-old-james-scurlock/32733160
-
My recollection from the legal class I took from Gary Young on self defense would indicate that going out onto the sidewalk to confront someone would be very legally questionable (like going out on your front lawn to meet someone rather than them coming into your house). Maybe the law is more flexible or maybe this guy got really lucky with the DA.
The way I understood the law (please note, I'm not a lawyer, this is only my understanding), you can see the bar owner (I keep forgetting his name) clearly backing up on the sidewalk, away from the group. Whatever had happened before that is pretty irrelevant, because he's actively trying to disengage from the situation, and 2 or 3 others (I saw 2 initially, with Scurlock jumping in afterwards, take your pick on exact numbers) coming down the street at him in a pretty aggressive manner. The way it was explained to me is that, per the law, that initial confrontation is now ended and a new one is starting. Then the bar owner is jumped by 2 people (disparity of force), so he pulls his weapon and fires it. Those 2 people then take off, which ends the now second confrontation, and Scurlock jumps on the bar owner, which starts the third and final confrontation.
I definitely may not be 100% on it, but that was how I remember it situations like this being explained to me once upon a time.
-
Then Gun-hater Kara Eastman opened her mouth and showed her ignorance.
Fanning the flames in my opinion!
https://www.nrcc.org/2020/06/02/eastman-defends-spreading-false-information-during-riot/
i think the US needs to implement a new Law . that states that any person wanting to run for a Public office in this Country needs to pass a , Common sense and I.Q tests .. because wow.. this one is a Dip **** !
is it just me? but that clinched teeth Bull**** fake smile of hers make you want to vote for her ?? lol Not ..
-
https://www.facebook.com/watch/live/?v=251413712854787&ref=watch_permalink
-
Forum acting weird and didn't post my comments with the video link.
I definitely may not be 100% on it, but that was how I remember it situations like this being explained to me once upon a time.
I don't recall ever learning it that way but the fact is he was trying to deescalate. He was walking backwards saying "just get out of here" or something like that. Then yeah, two people initially jumped him and then ran when he fired. Then Scurlock jumped on his back. I believe he even said to get off him a couple of times before firing but they didn't show the video that has that audio. DK just mentioned it. Go back and watch it and look at all of the Facebook live comments. People saying James Scurlock was trying to get the gun away from him or was trying to help. What would James have done had he take the gun away? We don't know.
-
There are no sympathetic victims in this mess. Everyone involved made his own contribution, mostly illegal. As a result, whether it was self defense, voluntary manslaughter or murder depends on who did what in the last few seconds before the fatal shot. It's possible for a bad guy, whose previous behavior was provocative, to regain his innocence at the last instant. Andrew Branca goes into this in his book, The Law of Self Defense.
Suppose A walks up to B, shoots him dead, then turns and runs. A is guilty of murder. Suppose one of B's friends goes after A with the apparent intent to shoot him. At this point, A has become the innocent victim of an aggravated assault by the friend. The reason is that the murder of B is over and done with. Shooting A can't save B's life. The purpose of defense is to prevent imminent unlawful harm, not to avenge or punish previous unlawful harm even if it occurred mere seconds ago. If A had continued by trying to shoot C, it would be defense to shoot A in order to save C. To get back to B's friend, it would be self defense for A to shoot him. This may seem convoluted but it makes sense if one thinks of self defense as force used to prevent imminent unlawful harm. The three critical words are "prevent", "imminent" and "unlawful". Unless all three are satisfied, it's not defense.
In my opinion, The Law of Self Defense is essential reading for anyone who would use any kind of defensive force. Gary Young and Chris Zeeb do a good job in the classes they teach but Branca goes far deeper. He has managed to organize statutes and case law governing self defense in a logical way that enables his graduates to avoid breaking the law in the course of defending themselves.
-
https://www.ketv.com/article/family-of-james-scurlock-and-their-attorney-say-theyll-do-their-own-investigation/34149623
Scurlock Father wants new self defense laws, does not believe Jake Gardiner has committed suicide, feels the County Attorney should not have mentioned his sons actions before the shooting or his criminal history.
Don Kleine has been the voice of reason and truth in this whole sad affair, his comments about the Special Prosecutor and his Grand Jury indictments are spot on in my opinion.
Greg