'Home intruder' law vague to judge

Lexington Herald-Leader (Kentucky) ^ | 7/27/06 | Brandon Ortiz

[Mister Da]

The law says a person has the right to use lethal force if he has "reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred."

Isaac sided with prosecutors, who said that whether Newberg was an intruder or had committed a crime is a factual question that jurors must decide.

The law, as stated above, clearly says that the homeowner, not a jury, is to decide if a crime was being committed. Furthermore, according to the article, Issac herself admitted the law bars the police from even arresting Clem. So, why was he arrested, & why didn't Issac throw out the case, as she should.

Could it be the Issac & the prosecutor refuse to uphold the law as it is written? I suspect they prefer those 500 page laws, chock full of loopholes, so they can administer "justice" as they see it.

What was it Lincoln said? "...of the lawyers, by the lawyers, for the lawyers".

[Still Thinking]

"It is the worst legislation I have ever seen in 40 years," said Lawson, the principal drafter of Kentucky's penal code, which was adopted in 1975.

Supporters of Senate Bill 38, also called the castle doctrine, said that previous law required Kentuckians to retreat from robbers breaking into their home or car.

Not so, Lawson says: Unlike many states, Kentucky never had such an obligation.

When drafting the penal code, the General Assembly voted down such a requirement, he said.

So if the homeowner already had the right of self defense without obligation to retreat even before the new law was passed, how is this a big conundrum for the judge?

[Still Thinking]

But according to the law prof qutoed, KY never had a duty to retreat.

[jiggyboy]

Sounds like the judge is miffed that he can't spin the case or just make stuff up that sounds like an "interpretation of the law" as he gives instructions to the jury.

[middie]

There's not a single judge known to me, and I know many both personally and before whom I appear regularly, who could interpret the Ky. confusion any differently than the judge in question. What is there about ''due process of law'' that bothers you? Before a person can either be adversely subjected to or benefit from a statue it must be capable of clarity and that such a person must know that he is either criminally subject to it or protected by it. In neither instance is the Ky. statute possesed of that clarity and sufficient to make a person knowlegable of what it means when applied to him.

[Still Thinking]

So self defense is an affirmative defense where the burden of proof still falls to the state. Is that about it?

[longtermmemmory]

This judge is intentionally ignorant. This law codifies the common law maxim that retreat is not required in ones own home.

The judge does not like the law so the judge says it is controversial. Sooooo big brother.

[Beckwith]

The judge would know what a home intruder was if she woke up one night with a large figure looming over then end of her bed.

[Panzerlied]

"In neither instance is the Ky. statute possesed of that clarity and sufficient to make a person knowlegable of what it means when applied to him."

How did that happen and, more important, how can it be rectified?

[Tax-chick]

I don't know.

[Tax-chick]

And this report does not make that clear or that the shooter was in fear of his life.

I don't think that "fear of his life" is required for it to be considered a self-defense shooting. However, there must be some evidence available, other than "two men, one dead"! Damage indicating forced entry, perhaps, or the dead man was armed. These would support the occupant's report of what happened.

That's why it's a question of fact, to me, rather than of law.

[Gorjus]

Not a very informative article as to the facts of the case.

I think that's the real issue. People on this forum are arguing other topics, but what are the facts?

Scenario 1 (assumed by most posters to this board): Intruder breaks into house and gets shot. End of argument, and the judge should let the innocent self-defender off.

Scenario 2: Two friends, well known to each other, sit around drinking in an apartment belonging to one of them. They have an argument, and the apartment dweller shoots the other guy, then declares him to have been an intruder.

I know which one I think is more likely, but the whole point is that determining which of those two (or other) scenarios really happened is the job of the jury, not the judge. However, I don't find the law as written all that unclear, so I'm siding with the common sense interpretation once the facts are established.

[Tax-chick]

Good post - just what I was trying to say, only more clear!

[BenLurkin]

"There's not a single judge known to me, ... who could interpret the Ky. confusion any differently than the judge in question."

What do you base that on? Do yo have the text of the statute? If so, kindly share it with us so we can decide for ourselves.

I've known a few judges myself and . . . I'll put it this way . . . a judge is just a another lawyer -- but with too much power.

[Hazcat]

I don't think that "fear of his life" is required for it to be considered a self-defense shooting. However, there must be some evidence available, other than "two men, one dead"! Damage indicating forced entry, perhaps, or the dead man was armed. These would support the occupant's report of what happened. That's why it's a question of fact, to me, rather than of law.

Agreed on all points. I knew when I posted it some one would point that out but I'm just too lazy to type out "fear of bodily harm, theft, defense etc." :)

[hschliemann]

A Fayette judge struggled to make sense of Kentucky's new "home intruder" law yesterday, calling the National Rifle Association-backed legislation confusing, vague and poorly written.

She forgot nebulous and well-financed.

[Tax-chick]

All clear, then :-). I'm usually posting in haste, myself!

[BenLurkin]

http://www.lrc.ky.gov/record/06RS/SB38.htm

Still researching.

[Labyrinthos]

BTW, a factual question need be submitted to a jury ONLY when there is a factual dispute.

Your statement is incorrect: As a general rule, the jury is responsible for determining whether the use of deadly force was reasonable under the factual circumstances, even if those circumstances are not in dispute. IMO, the judge made the legally correct decision.

[longtermmemmory]

ALL judges get the "black robe fever".

Judicial colleges DO teach them that they are the "god" of their courtroom. Remember MOST have criminal contempt powers.

Most judge KNOW they can get away with ANY misinterpritation of the law because VERY FEW cases go up on appeal. This is due to the cost, the need for bonds in civil cases, or the fact the person placed in jail ends the matter since they are financially destroyed.