Tuesday, July 19, 2016

MA: Drunken Teens Attempt Break in. 1 Shot, Homeowner Charged

Massachusetts has a very weak "castle doctrine" law.  It provides for a defense that can be hard to prove.  It may provide little protection for the homeowner in this case.

Three young males, at least two of which had been drinking, approach a dwelling and pound on the door.  The door is locked. The resident "tried to communicate".  At least one continues to pound on the door.  The resident calls 911 to report an attempted break in. Someone (presumably the person pounding on the door)  breaks out some glass.  The resident, fearing a home invasion, fires through the door, striking a 15 year old suspect who later dies.  The resident is charged with murder. From masslive.com:
"It was determined that three parties went to the residence believing it to be (the home of) a friend. One party, the victim, was banging on the outside door, when the homeowner shot through the door, striking the male," Wilk said.

Investigators found the victim and a friend were drinking alcohol at a nearby home. The two friends were confused while walking in the neighborhood and believed they had arrived at the home of another friend, said James Leydon, spokesman for Hampden District Attorney Anthony Gulluni, said.

Lovell, the homeowner, tried to communicate with the victim, who was still knocking on the locked door, Leydon said.

"When a pane of glass broke, the suspect fired a single shot, striking the victim," Leydon said.
Notice the way the article is written after the fact.  The homeowner could not know that the people who were breaking in were drunk and disoriented.  He "tried to communicate", but they persisted to the point of breaking glass.

The article even goes so far s to use the passive voice "when a pane of glass broke".   Why not: When a pane a glass was broken?  If the victim did not intend to break the glass, I would expect some pretty heavy pounding on the door to cause a pane of glass to "break".

Note that the 15 year old was already engaged in illegal activity, underage drinking.   But in Massachusetts, there is no presumption that some one breaking into your home reasonably puts you in fear for your life.  You have to prove that.

Comments at the article indicate that the 15 year old shot may have a history.  From the comments:
Springfield 61 10 hours ago

Some of us know those kids. Assuming they weren't to be feared is a blind statement. They were under the influence, walking down the street yelling and not only continued to bang on the door but apparently broke the glass. The homeowner did call 911 to report the attempted break in. Any one of us could have been that homeowner and could very well fear for our safety. I'm not saying that the homeowner should have shot a gun but again we weren't there. For the people who assume 15 year old kids aren't to be feared haven't been around today's youth. People don't know their backgrounds and there is more to the story than has been reported. It is still under investigation.
The Massachusetts castle doctrine is stated at this site:
Massachusetts General Law, Chapter 278, Section 8(a): In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.
Compare it to  the law in Colorado, CS 18-1-704.5:
18-1-704.5. Use of deadly physical force against an intruder.

(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.
I recall a similar case in Colorado, where a drunk was dropped off at the wrong house.  As in this case, the homeowner called police.  As in this case the homeowner told the drunk to leave.  As in this case, a window was broken, and that is when the homeowoner fired and killed the drunken man.  In that case, the drunk was said to be reaching inside.  I do not know if that happened in the Massachusetts case.

The Colorado prosecutor determined that the homeowner was justified, and no charges were filed against him.  Under Massachusetts law, the homeowner is allowed a defense after charges are filed.  He also faces civil liability.  In the Massachusetts case, the homeowner is in for a rough ride, and may end up impoverished and bankrupt.

Know the specific laws in your state.  

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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Anonymous said...

Breaking the glass is criminal conduct. I see no reason to think that more violent behavior was coming. the police are not going to clean up the mess if the intruders get in and have to be shot inside the home. Pounding hard enough to break the glass is enough of a threat to defend yourself. Being out numbered is another reason. Arizona law used to require, when out numbered, that you could only shoot all but one and then you were required to fight the last one. the castle doctrine changed that. Now anyone trying to get into your house uninvited has made a big mistake. I dead bolt my front door and it has no glass. My front door is steel. If they get through that or a window they will be carried out. friendly people to do any damage to get in.

Anonymous said...

Look, I *FIRMLY* believe in the concept of self-defense, own numerous weapons and guns ranging from a .380 ACP to a Garand; but shooting someone through a door is considered dicey to illegal in all states except NC.

If every dumba44 kid who got drunk and/or broke a window were killed, humans would be headed towards extinction.

This is the sort of thing you see during hunting season when a city-rat buys a shiny, new rifle with a big scope on it and then shoots a guy wearing neo-orange, because he thought it was a deer.

The dumba44 guy who shot the dumba44, drunk kid is going to end up doing a nickel for involuntary manslaughter in Mass.

Gary Ware said...

I lived in Massachusetts and their neighbor New Hampshire for 10 years. Police friends and family told me that if someone attempts to break in or breaks in your home, you must leave the premises, unless...UNLESS, the burglar is between you and a family member and you are convinced you are in mortal danger.

Even then, you better get a great lawyer and be prepared to go to jail. Criminals rule. I told them I was used to laws of defense in Texas, Ohio and two others. Individually, all at some point, told me to get everyone OUT of our home and let the thieves have it all, rather than fight the system. They ranged from City Police to State Police.