Berger.Fan222
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More likely over $100k these days by the time all the civil and criminal dust settles.
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Shooter on Trial--St. Louis County, MO
- Thread starter Kleanbore
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More likely over $100k these days by the time all the civil and criminal dust settles.
Sam1911
Moderator Emeritus
jmf552, and Berger.Fan222,
I think I see exactly what Kleanbore is saying about context, and you've actually not quoted the part of the law which provides that context.
Look at the line given under section 2(3), "(3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual, ..., claiming a justification of using protective force under this section."
But, what is "this section," that this individual must be claiming a justification of using protective force under? You have to go up one level and read what the actual section heading says, which is:
"563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person..."
So the subsections, including all of line 2(3), only kick in if the overall condition laid out by the section heading is met.
In other words, IF the resident of the building reasonably believes there is the imminent use of unlawful force from an intruder, THEN, subsection 2(3) specifies that the violent actor being and remaining unlawfully in the building is one of the exceptions where force would be ok.
Read hierarchically, as an outline form text must be read, simple trespass does not meet the necessary standard on its own.
I think I see exactly what Kleanbore is saying about context, and you've actually not quoted the part of the law which provides that context.
Look at the line given under section 2(3), "(3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual, ..., claiming a justification of using protective force under this section."
But, what is "this section," that this individual must be claiming a justification of using protective force under? You have to go up one level and read what the actual section heading says, which is:
"563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person..."
So the subsections, including all of line 2(3), only kick in if the overall condition laid out by the section heading is met.
In other words, IF the resident of the building reasonably believes there is the imminent use of unlawful force from an intruder, THEN, subsection 2(3) specifies that the violent actor being and remaining unlawfully in the building is one of the exceptions where force would be ok.
Read hierarchically, as an outline form text must be read, simple trespass does not meet the necessary standard on its own.
Sam nailed it.I think "unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual..." is the very definition of trespass. Also if you are correct about "the burden of proof on the state is to prove beyond reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force," that is huge. SD is by default an affirmative defense, meaning the burden of proof is on the defendant to prove he did "reasonably believe..." If the wording of this statute changes the burden of proof to the state, and I read that the same way BTW, that is a game-changer in favor of the defendant.
Yes, that part of the statute does describe trespass, among other things, but it does not in itself provide any justification for the use of force, deadly or otherwise.
In Missouri, the burden of proof has resided with the state for decades. To my knowledge, it is only in Ohio that the burden or proof in a defense of justification for self defense is on the defendant.
Sam1911
Moderator Emeritus
I think we may be getting a little crossways on the burden of proof aspect.
When presenting an affirmative defense, the defendant does have to establish that their circumstances met the state's requirements to sustain that defense claim. That is a burden of proof carried by the defendant. But that is made somewhat simpler by "castle doctrine" sorts of laws which give certain direct instances where such a defense claim -- if not rebutted -- should be accepted.
(As opposed to pleading not guilty, wherein the burden of proof is fully on the state to establish that you did do it.)
But once the defendant has presented his/her case for that affirmative defense, the state bears the burden of rebutting any claims they feel are either untrue or which do not meet the law's requirements for a self defense claim.
When presenting an affirmative defense, the defendant does have to establish that their circumstances met the state's requirements to sustain that defense claim. That is a burden of proof carried by the defendant. But that is made somewhat simpler by "castle doctrine" sorts of laws which give certain direct instances where such a defense claim -- if not rebutted -- should be accepted.
(As opposed to pleading not guilty, wherein the burden of proof is fully on the state to establish that you did do it.)
But once the defendant has presented his/her case for that affirmative defense, the state bears the burden of rebutting any claims they feel are either untrue or which do not meet the law's requirements for a self defense claim.
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