Disagreement with a Law Prof on Self-Defense--Help Me Argue

[Flyboy]

We were discussing torts today in class, and the discussion turned to self-defense. My prof said a couple of things that didn't sound right, though, so I'm trying to do some research to discuss with her later. First, she said "shoot to maim, not to kill." I know this is wrong (for oh-so-many reasons), but I need examples of cases where the prosecution argued that the defendant shot to maim, and therefore didn't think that the situation warranted deadly force. I'd prefer cases where that claim was successful.

Second, she said that "make my day" laws are not as indemnifying as they may seem. She argued that, even with legislation like this:

§21-1289.25. Physical or deadly force against intruder.
PHYSICAL OR DEADLY FORCE AGAINST INTRUDER
A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes.
B. Any occupant of a dwelling is justified in using any degree of physical force, including but not limited to deadly force, against another person who has made an unlawful entry into that dwelling, and when the occupant has a reasonable belief that such other person might use any physical force, no matter how slight, against any occupant of the dwelling.
C. Any occupant of a dwelling using physical force, including but not limited to deadly force, pursuant to the provisions of subsection B of this section, shall have an affirmative defense in any criminal prosecution for an offense arising from the reasonable use of such force and shall be immune from any civil liability for injuries or death resulting from the reasonable use of such force.

courts have ruled that homeowners must determine the intent of the person, etc. I know I've seen cases in which people were shot erroneously--kids playing pranks, in at least one--and the homeowner was either acquitted, or the prosecutor declined to pursue the case. Can anybody give examples? Bonus points if you can give me proper citations, but just a case name will work. We were discussing Oklahoma law primarily, but we discussed other states as well, so anybody can chime in here.

 

[patentnonsense]

1) Check the date on your statute - I think OK changed this law fairly recently, so pre-change case law would presumably be inapplicable.

2) "Shoot to maim??" What a MORON!

3) But don't forget that the key goal in law school is to pass the exams, not to pierce the pretenses of pompous professors.

Just .02 from a southern suburb...

 

[bogie]

I think that one is safest if one shoots to stop. If you're in fear of your life, or the life of someone else, you want to stop the threat.

Were I to be called as an expert witness, I would explain about how the extremities are not good targets, even for the most expert shooters. Extremities move, and move faster than the brain can process. Center mass can also move, but it is more predictable. About the only situation where I could see shooting an extremity to obtain a reliable stop to events would be in a static situation where the extremity would not be moving, and where a great deal of accuracy could be utilized. And if the loss of the extremity is _guaranteed_ to put a stop to the situation. An example would be where Bubba is sitting in a car with a hostage, he's holding a weapon in his hand, the weapon is NOT pointed at the hostage, there's a clear shot, with a 100% guarantee that he would not pick up the weapon with the other hand. Oh heck. In other words, ain't gonna happen.

You don't wanna shoot Bubba the Berserker in the leg, have him go down conscious, and start spraying hostages or bystanders.

I suspect that the prof may have been watching a little too much TV, where the adroit policeman can always shoot the gun out of the bad guy's hand at 50 yards with his trusty snubnose .38...

 

[Coronach]

Your law prof is probably not an expert on self-defense caselaw or the practicalities thereof. What is probably meant by "shoot to maim" is "shoot to stop". If that's the case, I certainly agree with it. If it isn't, I don't.

Mike

 

[Wildalaska]

Send me a plane ticket and let me debate her.,.

WildkickbuttAlaska

 

[Flyboy]

Coronach:
I specifically replied "shoot to stop," and she said "no, shoot to maim."

patentnonesense:
I pulled that statute from the http://www.lsb.state.ok.us/OKStatutes/CompleteTitles/os21.rtf (official web site) about an hour and a half ago. It's fresh. However, I agree with you on caselaw. We're going to discuss this in more detail at a later date.

Bogie:
I agree 100%. However, I need cases, not facts (even if the facts are as plain as the nose on your face).

WildIintendto!Alaska:
I'm a college student. With a budget to match. Heck, I can barely afford to keep the magazines full. No dice, bubba.

Anybody else have anything to contribute? I'd love to give her a few dozen cases to consider.

 

[Ivy Mike]

shooting to maim is a BAD idea. While you could say that you aimed poorly, the prosecution could just as easily claim that you weren't in fear for your life, hence the shot to the knee. Ditto for warning shots. If you aren't defending your life (this is the gist in most states although laws may differ) you shouldn't draw on someone. Don't point till you are ready to pull.

You shoot to stop a threat, not to maim. Center of mass is your best bet during the situation and afterwards in court.

 

[nico]

have you tried LexisNexis? That should be a pretty good database for finding the kind of info you're looking for.

 

[patentnonsense]

"Shoot to maim" may be a trap question - anyone who admits to that is up s. creek, civil or criminal. Your prof may be a plaintiff attorney; I don't know if all torts profs are, but mine certainly was.

 

[F4GIB]

Try these:
State v. McQuiston, 514 N.W. 2d 802 (Minn. App. 1994)
State v. Pendleton, 567 N.W. 2d 265 (Minn. 1997)
or run Minn. Stat. 609.065 thru Westlaw.

 

[Hypnogator]

If you accurately reported your law professor's teaching (and I'm not saying you didn't) then she's an idiot. Guess you already figured that out.

Shoot to maim? How incredibly stupid! I can justify shoot to kill, (what I teach is, shoot to stop; shoot until it stops), but how can you justify intentionally causing traumatic disfigurement to another?

True, if you have to shoot, you may well end up maiming your attacker, but the intent is always to stop the life-threatening behavior!

I pass through Norman occasionally. If you'd like me to stop by and enlighten your prof some time, PM me.

 

[Old Fuff]

I think if you review Oklahoma statutes on Deadly Force you will find that they clearly define under what circumstances Deadly Force may be used, but nothing about maiming vs. killing.

Further, police officers are trained to shoot at the center of mass, and not some extremity.

If it could be shown that someone shot and wounded a person, and then without justifiable cause or reason shot them again to deliberately execute that person, a court or jury might find that this was excessive, and exceeded the legal right to use Deadly Force. However it is usually presumed that if Deadly Force is justified, specifics concerning the what and how are not included in any definition. However something might be found in case law that conflicted with this.

 

[Boats]

A: Shoot to maim? With all due respect, that leaves a live plaintiff and it is much, much easier to defend against the estate of a dead criminal when one or more of their gold-digging relatives comes forth as the personal representative.

When you don't have the law handy, just argue the facts.

 

[Jeff OTMG]

Let me address each issue.

1. Shoot to maim, not to kill.
In a way true, but not stated correctly. Shoot to stop, not to kill. You must NEVER admit to trying to make a shot with a firearm that was intended to NOT be lethal. I am NOT saying that you intend to make a lethal shot either, but never an intended non-lethal shot. The problem is that in every state that I am aware of shooting at someone, whether you hit them or not, is considered the use of lethal force. To employ what is defined as lethal force in an intended non-lethal role leaves you liable for excessive force. In fact, you just admitted that you did not feel that lethal force was justified because you intended your shot to wound. That could easily translate to an attempted murder charge because you used a LETHAL WEAPON. Bottom line is that if lethal force is NOT justified then don't use a gun, use pepper spray, stun gun, or a baton, if legal. If lethal force was justified, never admit to trying to use it in a less than lethal role.

2. Make my day laws.
I helped the Make my day law pass in Oklahoma even doing a televised editoral to counter a bunch of lies spouted by Bob Fink the then station manger at KTVY in OKC. The editorial director lost his job over it. Oklahoma's MMD law was little more than a restatement of the existing statute for justifiable homicide. The civil liability exemption was a nice add on, but I question how much force it actually has. An arguement that can be used goes as follows:
We all know that 85+% of crime is committed by repeat offenders. Being a repeat offender means that the offender has spent time in prison. Inmates spend time practicing disarming techniques while in prison and there are video tapes and expert testimony available to show that. If a person broke into your home either knowing or not caring that the home was occupied, and it can be assumed that over 85% of crimes are committed by repeat offenders, then the person that broke into your home has probably been trained in disarming tactics knowing that you have not been trained in weapon retention techniques. You may then assume that the intruder if quite confident that he is capable of disarming any homeowner that he might encounter and you may assume that he is capable as well. Therefore the intruders intent is obvious and you are encouraged to shoot the intruder because if you do not then he will take your gun away from you and kill you with it.
To further the arguement we look to Title 21 of Oklahoma Statute and the defintion of Justifiable Homicide.
§21 692. Homicide classified.
Homicide is either:
....
4. Justifiable homicide.

§21 733. Justifiable homicide by any person.
Homicide is also justifiable when committed by any person in either of the following cases:
1. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is; or,
2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or,
3. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace.

Note that you are protected by the definition of justifiable homicide under numerous sections:
1. 'to commit any felony upon him, or upon or in any dwelling house in which such person is'
The burglary or intrusion is a felony so you are justified.
2. 'When committed in the lawful defense of such person'
If you have others in the home at the time of the intrusion then you are protecting others from great personal injury.
3. 'to apprehend any person for any felony committed'
Individuals have more lee way in Oklahoma than LEO's do. The intruder was in the commission of a felony, you attempted lawful apprehension and the intruder failed to comply with your orders. You have a justifiable homicide.

One occurrance and two if not three separate justifications.

 

[Graystar]

You don't shoot to maim, and you don’t shoot to kill. Under the law, “deadly force†is not determined by where you shoot the person or your intent while shooting. It is determined by the mechanism used. Even if you aim for his big toe, by law you’re still using deadly force.

Under the law, your right to use deadly force is a “yes/no†determination. If you are under a violent attack, you can use deadly force. There are no degrees placed on violent attacks. That is, under the law there are no distinctions between “a little violent†or “more violent.†A violent attack is a violent attack, and can always be countered with deadly force.

That said, if you have time to think about where to hit your target, and the target is stationary enough to actually hit your mark...then you probably should NOT be shooting in the first place, as you are probably not in imminent danger of losing your life. When questions arise that end up in court, it’s usually on issues of whether a violent attack was actually taking place, as in cases of battered wives killing their abusive husbands while they sleep.

I’ll see what I can find in the case law.
Can you get us some cites on those cases where the homeowner must determine intent?

And please, I realize there can be a hostage situation where you’d aim at the guys head while he’s standing still, and it would be a good shoot. The world is complex, these situations are complex, and I can only speak in generalities.

 

[benEzra]

If the danger level is low enough that you don't have to shoot to stop, YOU AREN'T JUSTIFIED IN USING POTENTIALLY LETHAL FORCE.

 

[CAS700850]

Flyboy,

Don't take this as anything but some advice from someone who has been there (law school, being taught by a professor that doesn't seem all that qualified to be lecturing on a given subject). I would suggest that you fly under the radar rather than instigate an in-class debate with the prof., especially if you prove she was wrong. She'll never admit being wrong, and may remember you in a bad way next time she wants to abuse someone in class.

Learn what she's teaching long enough to regurgitate it back on the exam. Pass teh class, and avoid her in the future if you can.

Good luck in law school. Just do what you need to do to graduate, then focus on the Bar.

 

[Tory]

Where is this Portia?

"I specifically replied 'shoot to stop,'a nd she said 'no, shoot to maim.'"

You're right; she's wrong. Just what law school is this fair Portia of the bar preaching at?

"I would suggest that you fly under the radar rather than instigate an in-class debate with the prof., especially if you prove she was wrong."

Good advice. Been there, done that, got a "B" instead of an "A" for pissing off a prof (also a sitting justice of the Appeals Court).

Not to say that all profs are petty and vindictive; some will make a provocative assertion to kick-start a debate and get the class going. This does not sound like one of those professors...

 

[Parallax]

If you actually have to shoot someone, it means you or someone else's life is in danger. Shoot until the threat is neutralized and worry about the legal proceedings later.

Dead men tell no tales

 

[Matthew Courtney]

State of Louisiana v Rodney Peairs

RE: The killing of Yoshihiro Hattori.

 

[Flyboy]

Clarifications:
1) It's a law class, but I'm not in Law School. The class is listed as LSC3323; that's Legal Science. This is through the business school, and is called Legal Environment of Business. While I intend to go to Law School, this ain't it. Nonetheless, she is a lawyer.

2) I'm at the University of Oklahoma in Norman.

3). The prof is not an idiot, just (I think) misinformed. She also doesn't seem to be the type who'd hold it against me. We've had several discussions before, and she's been pretty open to discussing things. I'm also not going to show her up in class--this is extracurricular research, to be discussed as a point of interest. I don't think she intended to start me down this road, but she does seem open to discussion. I'm not worried, in any case.

To those who've given me cases: THANK YOU! I haven't looked them up yet, but I'm going to run by the law library in the next few days and look. I'm still looking for the case of the kids who broke into a house on a prank, got shot, and it was called a good shoot--anybody know the one I'm talking about?

Jeff: I agree with your reading of the law, and thanks for pointing out the other section I'd missed. She said, however, that the courts have "interpreted" (I hate that word!) those laws differently, and offered to find cases to that effect.

 

[HankB]

Assuming you won't get dinged for asking the prof a hard question, you might consider something like "Professor, I've read the statutes which discuss when a citizen may lawfully employ deadly force, that is, when it is lawful to kill a person who poses a real and immediate threat of grave and grevious bodily harm. But I've been unable to locate any statutes on the legal employment of maiming force. Would you please provide me with a written law reference or cite on lawful use of maiming force in this state, and the definition of what constitutes maiming force?

 

[Jeff OTMG]

Flyboy, I knew the Justifiable Homicide stuff since reading through Title 21 in 1980. If you live in Oklahoma you NEED to become familiar with Title 21. When the MMD bill came out I knew it was a rewording of the existing JH statute geared specifically to home occupants. Frank Sherdan, Senator from Henryetta, who I work closely with for the concealed carry legislation, was able to provide me with a copy of the bill to use for my editorial rebuttal. I even had to show the bill to the editorial director to prove to him what I was going to say was true. This was all back in 1986.

 

[beerslurpy]

Its BS.

Shooting is always "to kill" in the legal sense. Even when you intend to maim or just to frighten, you are using lethal force and you will be treated accordingly. If you arent shooting to kill, then you dont have a good enough reason to shoot.

The laws are indemnifying in both the civil and criminal sense and even when there is ample caselaw, often provide explanations of what situations can justify lethal force. For example, someone who has broken and entered into your house can be presumed to be committing common law burglary (or some worse crime), which in Florida is justification for using lethal force, regardless of any other facts. Burglarly is one of the many enumerated "violent crimes and felonies" which permit the use of lethal force in defense of self and others.

In Florida at least, if anyone sues you for having applied lethal force, the fact that they were committing a felony is a defense against their suit. Furthermore, when you prevail, the plaintiff-felon who brought the suit will be further punished by restriction of prison privileges.

 

[patentnonsense]

Careful guys, not every state is as pro-citizen as Florida and Texas -
in many states burglary alone is NOT enough justification for use of lethal force. In some states you might have to show that you saw him holding or pulling out something that looked like a weapon, and that he was advancing toward you (or already within lethal range), and that you couldn't retreat.