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General Categories => Laws and Legislation => Topic started by: ORE45 on July 27, 2015, 12:00:08 PM
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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 (http://fremonttribune.com/news/local/crime-and-courts/fremont-man-fatally-shot/article_342d0de5-b648-50ed-a1c2-ca51ff7e0364.html)
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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..
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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.
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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.
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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.
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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?
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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.
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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.)
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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 ?
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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.
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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
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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.
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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.
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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!!!
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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.
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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 (http://nebraskalegislature.gov/laws/statutes.php?statute=28-1409)
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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.
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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.
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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
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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.
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ORE45 ... by your number of low postings, I will assume you are new to our forum ... Welcome. IMHO ... may I STRONGLY recommend you obtain and READ a copy of "In the Name of Self Defense" by Marc MacYoung. In fact, I would encourage ALL gun owners who care about "self-defense" to do so.
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Anytime you have one person dead and another clearly being the one who caused the death, the police will have probable cause to believe it or was criminal and will likely arrest the shooter.
It may not sound fair but there has to be a way to determine if it was self defense. Another reason it is done is to remove the shooter from the situation and avoid immediate altercations with the deceased friends or family.
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Anytime you have one person dead and another clearly being the one who caused the death, the police will have probable cause to believe it or was criminal and will likely arrest the shooter.
This was my initial point of view concerning the need for Nebraska Castle Doctrine-Stand Your Ground legislation, plus, providing some protection from the possible civil litigation following the criminal outcome.
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Having a stand your ground law won't change that. Whether or not the law applies still has to be determined by investigation.
The police won't simply take the shooters word for it at the scene.
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2.why open the door?!
This will be a controversial point, yet, IMHO non-deciding point in this event. However, the porch would be considered part of your "castle" if Nebraska had a Castle Doctrine.
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http://nebraskalegislature.gov/laws/statutes.php?statute=28-1409
Yes, thanks this is helpful.
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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
This is a good point. Not holstered, but not visible would be prudent. Brandishing a weapon is wrong. Yet a defensive prepared posture is also prudent. Opinions ?
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This will be a controversial point, yet, IMHO non-deciding point in this event. However, the porch would be considered part of your "castle" if Nebraska had a Castle Doctrine.
Why do you think this? Can you name any state whose Castle Doctrine law includes "land outside the residence" as part of the "Castle"? (And as people have pointed out, Nebraska already has a Castle Doctrine.)
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This will be a controversial point, yet, IMHO non-deciding point in this event. However, the porch would be considered part of your "castle" if Nebraska had a Castle Doctrine.
No, the porch is outside the home, so stand your ground is what you are talking about. Now some states extend your home to include what is refered to as the curtilage which would cover that but that has nothing to do with Castle Doctrine.
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However, the porch would be considered part of your "castle" if Nebraska had a Castle Doctrine
Mr. Wil E. Prosecutor: "Mr. ORE45 ... can you tell the court why you went out onto your porch when according to you the victim was a screaming drunk belligerent young man who you FEEL was threatening your life? I am curious why you simply did you not stay behind your locked door and wait for the police ... if indeed you felt your life in danger?"
See how that works ? And you get pay ALL the money you ever had/have/and ever have in an attempt have to "prove" why you did what you did ..... KILL another human being ..... "who was simply a broken hearted young man ladies and gentlemen of the jury ...."
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Peace officers will investigate every death as a homicide because it is a homicide until proven different. The investigation will determine the type of homicide; murder, self defense, suicide. Again by immediately claiming self defense you are admitting to a crime.
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Personally I believe the best thing here would of been as bullitt said, stay behind lock door and call law enforcement, at least there would of been a record that you and your family felt threatened.
We have had inebriated individuals walk up to our place in the middle of nowhere, I first phone sheriff then tell them their ride is on it's way, takes law enforcement around 30 to 45 min to show up if they hurry.
When confronting them I CC , non threatening and it's something I do all the time, if my life was threatened and I had to bring gun into play, I would not of grabbed a gun just to answer the door because it's always on me.
(edit wrong case)
Still bad idea to interject gun into argument.
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First Nebraska has the Castle Doctrine,
And as people have pointed out, Nebraska already has a Castle Doctrine.
As AAllen stated, Nebraska does have a Castle Doctrine.
There needs to be more clarity on this ....
Castle Doctrine - Wikipedia (https://en.wikipedia.org/wiki/Castle_doctrine)
"States with weak or no specific castle law
These states uphold castle doctrine in general, but may rely on case law instead of specific legislation, may enforce a duty to retreat, and may impose specific restrictions on the use of deadly force:
District of Columbia
Nebraska - a bill was introduced in January 2012 that allowed deadly force against a person who broke into a house or occupied vehicle or who tried to kidnap someone from a house or vehicle; however, the bill was revised to include only an affirmative defense from lawsuits pertaining to justifiable use of force.[32]"
US Map of Castle Doctrine States (Not Nebraska) (http://www.lawyerscommittee.org/admin/public_policy/documents/files/Stand-Your-Ground-Castle-Doctrine-Map-LC-Logo.pdf)
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ORE45, As one of the people who worked on the bill in 2012, please do not use Wikipedia as a source nobody excepts that as a correct or through understanding of anything. Nebraska allows self defense in the home (Castle Doctrine) and has since 1972. The bill in 2012 was trying to expand upon those protections to include anyplace you have a legal right to be (Stand Your Ground) and add Civil Protections (there was also provisions to end the "affirmative defense" requirement, which basically says you must say you are guilty but justified).
What we got was a watered down Civil Protection but it gave a foothold. Those who worked on the bill at that time were not happy with the outcome but sometimes we need to take what we can get, believe me I was the person that was about to go scorched earth over what happened.
Is the subject dead, no but there is a lot of other things that need to happen to make it possible to get more. It's a matter of not putting the cart before the horse and setting things up for success.
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There needs to be more clarity on this
Clarity will rarely, if ever, be found in legislation, as the courts always have the final word
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Hey everyone...
So joined a Nebraska glock group on FB and someone posted the article about us being 34th gun state. Someone brough up the lack of a castle doctrin and stand your ground hurting us. Becuase of this thread I was able to do a couple things...
1. Have 2 feet to stand on and say someone was wrong!
2. Solid information to give to them about the subject.
3. I was able to show what the NFOA has to offer for Nebraska Gun owners! And urged them to join!
Thanks again for everyone who has and does participate in everything here. I learn something everyday and always feel the urge to pass on what I have learned.
Thanks
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Tstuart34, thanks for the note and this is why I try to explain the differences between "Castle Doctrine" and "Stand Your Ground" whenever it comes up. This is an issue that keeps coming up and if we can keep educating people about the differences and what we have and the difficulties with the language we will some day get enough people to come together and where we need to go to make a big push, all working together with one goal and one set of language. If everyone else joins in and helps explain the myths away and teach the language we will get there faster.