Posted on 11/21/2011 10:46:05 AM PST by marktwain
When Patricia Billings fired a handgun at an intruder reportedly breaking through her bedroom window in Rutland Town last week, the legal ramifications were probably the furthest thing from her mind.
“No one thinks of self-defense law when they’re in a dangerous incident,” said Michele Martinez Campbell, an associate professor at Vermont Law School. “When you’re in harm’s way, you do what you have to do.”
In Billings’ case, police say the 49-year-old fired three rounds from a handgun at a man trying to enter her home on Tuesday. The intruder fled the property on Quarterline Road leaving behind no evidence that any of the bullets found the mark.
As police continue to search for the home invader, state police Lt. Charles Cacciatore said the Rutland County State’s Attorney’s office has indicated that no charges should be brought against Billings for her actions during the incident. Billings could not be reached for comment.
But Cacciatore said it is possible that police may be called on to investigate the attempted use of deadly force if the intruder — once found and arrested — files a complaint.
The idea that a homeowner like Billings — who bought the handgun she used after her home was burglarized in August — could be at fault in the incident may appear strange.
But provisions for self-defense claims in Vermont — and nationwide — require that certain elements exist to be justifiable uses of deadly force.
Perhaps the most important element that must be proved in self-defense claims is that the person exercising deadly force had a “reasonable belief” that they were in jeopardy of being seriously harmed or killed, said Martinez Campbell and Assistant Attorney General John Treadwell.
But deciding what’s “reasonable” in such incidents can be difficult to pin down.
“It varies according to the situation,” Martinez Campbell said. “A person’s fear of bodily harm or death is a very subjective point of view. What’s “reasonable” has to be decided through an analysis of what a reasonable person would have thought.”
A tricky process to be sure, she said, and one that requires — to a certain extent — that police and prosecutors put themselves in the shoes of the person making a self-defense claim.
In Billings’ case, for example, any analysis of reasonable use of force would have to factor in the fear generated by the earlier burglary at her home four months ago.
Histories between individuals, including issues such as prior domestic assault, could also be factors during reviews of self-defense claims, she said.
But fear of serious harm alone isn’t enough to justify the use of lethal force, Cacciatore said.
In the same way that police officers must prove their own decisions to use deadly force, homeowners and anyone else in Vermont who kill to defend themselves must show that the threatening individual had the ability to do harm, the opportunity to carry out the threat and the threat of harm must be “imminent.”
“Just because someone is in your house doesn’t mean you’re in jeopardy,” Cacciatore said. “The question that is key in these things is ‘what is the immediacy of the threat?’”
Cacciatore, who said he has conducted self-defense discussions in classroom settings, says he has often asked students to measure the threat in inches. Is a man brandishing a knife 5 feet away from your position a threat? What about if the same person is 10 feet away? Or what if there is a locked door between you and your assailant?
“It comes down to when are you in immediate danger of harm to yourself and when does that immediacy no longer exist,” he said. “And if you can articulate how afraid you are in a given situation then you could be in jeopardy.”
But the analysis is further nuanced by the fact that Vermont, unlike some other states, does not have a so-called “duty to retreat” — a concept that requires a person to exercise nonlethal means of escaping a dangerous situation before resorting to force.
“Say someone came up to you in your car and they were presenting an immediate threat to your life,” Martinez Campbell said. “A duty to retreat would require you to drive away first if you’re able rather than use a firearm if one were available.”
In the context of a person’s home, the discussion becomes even more clouded under the language of a Vermont law that defines justifiable homicides in part as killings that take place “in the suppression of a person attempting to commit murder ... burglary or robbery with force or violence.”
In the context of an attempted burglary carried out through forced entry into a home — an act often involving the use of some tool — the statute would seem to apply to a broad number of incidents reported regularly in the state.
And the statute has been the cornerstone of more than one self-defense claim involving interrupted burglaries — including a well-known case in Rutland County involving the death of a 17-year-old high school junior in 1991.
In that case, 46-year-old Robert Bizon of Clarendon shot and killed James Ashcroft during a burglary in which Ashcroft and several other high school students were breaking into Bizon’s garage to steal a bottle of whiskey.
Bizon, whose case went to trial, was acquitted of a manslaughter charge brought against him even though evidence presented at the trial indicated that Ashcroft and the other intruders were running away when Bizon fired four shots from a .357 Magnum handgun.
During the trial, Bizon’s attorney, Peter Langrock, argued that his client believed his life was in danger when he saw the youths running out of his garage in the dead of the night — one of them with a tire iron in his hand.
But the same argument has failed homeowners in other cases, including Chittenden County resident Frederick A. Little, who was found guilty of second-degree murder for the 1993 shooting of a friend he mistook as an intruder when the man entered his bedroom and began crawling toward the bed in the middle of the night.
Little,who leapt out of bed and wrestled with the victim, Robbie Pasho, argued in an appeal to the state Supreme Court that he acted to interrupt a burglary when he chased Pasho — who he told police he didn’t recognize — outside and shot him in his car.
In their decision rejecting Little’s appeal, the high court wrote, “It is clear that it requires evidence that the victim acted ‘with force or violence.’ ... There was no evidence of force or violence on Pasho’s part until he was attacked by defendant.”
brent.curtis
@rutlandherald.com
As an aside, it is comes the closest, of any case that I know of, where a homeowner was charged and convicted of shooting someone who was breaking into their home. American juries believe that a person's home is their castle, and they act accordingly.
“I feared for my life”.. Say it often, like every other sentence.
Come into my home uninvited in the dead of night if you will. The night won’t be the only thing dead.
In case of an armed robber or intruder, a reasonable person would assume that the weapon is intended to be used. That includes a crow bar or tire iron being used for breaking and entering, as far as I am concerned.
“Just because someone is in your house doesn’t mean you’re in jeopardy,” Cacciatore said.”
You’re in my house uninvited in the middle of the night - I’m looking at being in jeopardy and I’m thinking deadly force.
What idiots some of these people are.
The fact that they broke in while I was at home is clearly an intent to do violence. They believe that they will be able to subdue me, or kill me. They can only assume that I would resist. Therefor I am not going to see what weapons they brought till I drop them.
I may be old, but I am not stupid.
Come into my home uninvited in the dead of night if you will. The night won’t be the only thing dead.
I considered how safe my family was while cleaning the shotguns and handguns. We have a dog, alarm, fence and capable shooters with loaded firearms in touch safes from the sleeping position. Though I have ended up on the front lawn on a couple of occasions when the dog went nuts in the middle of the night, I feel pretty safe too.
I also have 6 fire extinguishers in the house, one next to my bed. I hope to never have to use any of my protection devices for protection.
Exactly! Only an attorney could ask how you could be sure you were in danger with a straight face.
I would love to ask that attorney where he lives and send someone over to his house in the middle of the to steal a gallon of milk from his fridge. "How did you know he wasn't breaking into your house to steal some milk?"
But in the Vermont case, the woman did not use deadly force. No one died. She fired three rounds from a firearm. It might as well have been firecrackers.
What if she was loaded with blanks? Would it be deadly force then?
Note to Santa: Phone this guy before you get there.......
More proof that we are in more danger because of lawyers than criminals breaking into our houses.
If, as these mental midgets claim, it is too difficult to determine if one is in danger from someone breaking into their house, then it is proof positive the greatest evil are the lawyers.
Once you enter my house, uninvited, in the middle of the night, I don’t care what your intent is, you will be laying in a pool of your own blood. And if some JBT tries to arrest me for such an action then From My Cold Dead hands come to mind.
Does one have to prove that they have not an ounce of common sense to be a law professor or DA in Vermont?
(2.1) Except as otherwise provided in paragraph (2.2), an actor is presumed to have a reasonable belief that deadly force is immediately necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat if both of the following conditions exist: (i) The person against whom the force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered and is present within, a dwelling, residence or occupied vehicle; or the person against whom the force is used is or is attempting to unlawfully and forcefully remove another against that other's will from the dwelling, residence or occupied vehicle. (ii) The actor knows or has reason to believe that the unlawful and forceful entry or act is occurring or has occurred.
“Reasonable” is arbitrary and capricious and has no place in American law. It is an invitation to abuse.
“In Billings’ case, police say the 49-year-old fired three rounds from a handgun at a man trying to enter her home on Tuesday. The intruder fled the property on Quarterline Road leaving behind no evidence that any of the bullets found the mark. “
More range time needed.
Well said.
I disagree. It is the very basis of our law of self defense. A jury gets to decide if you, knowing what you knew at the time, in the situation that you were in, acted reasonably in believing that you were under a serious threat.
It is not perfect, but it works pretty well most of the time.
The full statement is “I feared for my life and fired to stop the threat. That is all I will say until I have my lawyer present.”
Oh, and then be sure to say nothing else, just to make it explicit.
“Just because someone is in your house doesn’t mean you’re in jeopardy,” Cacciatore said. “The question that is key in these things is ‘what is the immediacy of the threat?’”
Texas=Castle Doctrine. Come on down!
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