'Home intruder' law vague to judge

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

[Leftism is Mentally Deranged]

Liberal judges strike again. Are you a member of the NRA?

[RustMartialis]

"The law, as stated above, clearly says that the homeowner, not a jury, is to decide if a crime was being committed."

So let's say I invite you over to my house, then when you step across the threshold, I shoot you dead, then claim you were breaking in.

In your view, I get to decide if a crime is being committed by you. In fact, you claim I can't even be arrested.

See any problems with that?

In criminal law, the judge decides matters of law. The jury decides matters of fact.

In this case, the shooter killed someone. That constitutes the crime of 'murder' or 'homicide', if done intentionally, or manslaughter (if the intent was not to kill).

Now under the new law, the shooter can claim the defense of self-defense. Like any other defense, it is the jury's right and duty to decide if the accused is guilty or not.

One part of the law does say as follows:
"(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful."

So you can indeed be arrested if the agency thinks there is probable cause you were not really defending your 'castle'.

I don't know a LOT about criminal law, but there are some real Grade-A wingnuts screaming on this thread already who clearly don't know ANYTHING (and don't care).

--R.

[BenLurkin]

Scroll down to 503.055 and 503.085 http://72.14.203.104/search?q=cache:HffQPwvPAyQJ:docjt.jus.state.ky.us/forms/legal/2006%2520statute%2520changes.pdf+krs+503.050&hl=en&gl=us&ct=clnk&cd=15

[BenLurkin]

The victim here has an immunity under statute. Once he has made a showing that he is entitled to that immunity, what factual dispute remains?

[traditional1]

"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."

Well, that's a shame for the people of Kentucky.

Either:

You don't know many Judges, or

Kentucky Judges don't understand English....

[Still Thinking]

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

But that doesn't make any sense. Is that to say that in other cases police can arrest someone absent probable cause to believe a crime has been committed. That doesn't seem right.

[Labyrinthos]

Whether a person acted reasonably under a given set of facts is a jury question. The role of the jury here is not to detemine the facts because the facts are not indispute, but to detemine whether the defendant acted reasonably. This is nothing new, at least not since the days of Blackstone.

[taxcontrol]

But isn't that question normally decided by a grand jury?

[Tax-chick]

That's a good point. It also might be resolved at the scene by the police.

[vox_freedom]

I especially liked the sentence in the law that reads:

A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

Is Judge Sheila too dense to understand that language?

[middie]

If you want the statute to study I suggest you go to my.findlaw.com and interpret it for yourself. It is apparnet that you are quintessentially qualified to make the classically wise decision that contradicts the law professor, the judge, me and my law firm partners. Good luck and please send us a copy of your published paper on the ignorance of all the many lawyers who find the statute impossible to interpret so as to assure due process to litigants before the Ky. court.

[middie]

It happened because the NRA, in its typical fashion, handed the proposed statute to the legislators in Frankfort, Ky. who, as one, flocked to rush its passage to demonstrate their fidelity to the NRA money machine. And none of those geniuses subjected it to staff study for clarity and intelligibility. Now the NRA has accomplish exactly the inverse result vis-a-vis that which was their intent.

[Sandy]

If the judge and the prosecutor cannot understand that one is allowed to defend oneself in ones home then they have a very low IQ or they are anti-American left-wing

The prosecutor obviously doesn't believe the guy's story, and the judge can't grant a motion to dismiss because there are unsettled questions of fact.

[Sandy]

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

It wasn't a shooting. It was a beating.

Clem is accused in the violent beating death of Keith Newberg. Police say the two were friends, but in August 2004 a fight broke out between the two inside a Lexington apartment. Investigators say Clem beat Newberg to death with a lamp.

Source

[Shooter 2.5]

Fifteen other states don't seem to have a problem. It may have something to do with an anti-gun, anti-freedom, anti-NRA, dem party appointed idiot judge.

If it wasn't for the NRA and the other gun groups, maybe you wouldn't have half the freedoms you're enjoying now.

[Huntress]

Thanks for the link. That statute is not a great example of draftmanship, but I could follow it. It seems to me that the role of the court in this situation should be to hold an evidentiary hearing to determine either that 1)this defense definitely applies, in which case the charges should be dismissed, that 2) it does not apply, or that 3) the evidence is sufficently murky so as to present an issue for trial.

[middie]

I have no issue with the NRA. They shouldn't be drafting legislation that defines criminal conduct, legislative immunity or definitions and categories of homocide. Look, it's a poorly drafted statute that needs refining and clarification sufficient to inform a citizen what line exists and its outer limits.

[Shooter 2.5]

Post the entire law so Freepers can judge for themselves.

[Lonesome in Massachussets]

"We are all kind of treading on unknown water," she said.

When we're not busy mixing new metaphors.

[Mind Freak]

Thank you Sandy. It's pretty obvious that no one here attended the trial of James Adam Clem; or even knew him or the victim Keith Stephen Newberg. By Clem's own words on his taped confession before he was arrested, he invited Newberg into his apartment with the intent of paying some money's that Clem owed Newberg, some of which was for bailing Clem out of jail for prior offenses. But Clem also wanted Newberg to front him more cocaine, and when Newberg refused, Clem attacked him. Is that "Home Intrusion or Self Defense"? By the facts presented in court before it was cut short with a plea deal offered by the prosecution, that would have nullified SB 38 in this case. Clem's girlfriend also perjured herself by saying that she had no knowledge of Clem being violent, but she herself had called 911 at least once because Clem was beating her! And what about the fact that Newberg had 5 deep gashes in the back of his head from the metal lamp with a concrete base that Clem admitted to using; is that "Self Defense" on Clem's part? Also, the evidence showed that Clem was preparing to dispose of the body when Newberg's girlfriend foiled his plans by making a commotion outside of his apartment, so Clem "Freaked Out" and ran off to hide in the woods after locking the door to his apartment with Newberg's cel phone in hand. Welcome to the outer limits of the twilight zone! Clem will be up for parole in 2 months. The lesson learned from Senate Bill 38? Don't go anywhere without at least one close friend to cover your back!!!