MA Castle Law Question

[terraformer]

Maybe so but there are numerous posts claiming that in that case the victim/homeowner will be jailed.

Most of the time, the victim is arrested. Whether they are charged or not is a different matter.

Plan for the worst and hope for the best.

Arrested and tried is different than convicted. An arrest can be absolutely devastating to a person. I spoke with someone tonight whose arrest devastated his life and the judge dismissed the charges with prejudice. The problem is it took over a year and by then the damage was done. The judge wasn't even sympathetic to the man's plight, he simply felt the pile on was done and that the man had paid for any perceived transgressions by that point.

Look at the guy in the hospital in boston. It took 6 months before the PD cleared him and you can bet they dug to see if he had any prior relationship with the dead guy or the doctor and anything else that would suggest it was anything other than self defense.

All of the best laws in the world won't protect you from biased and over zealous prosecutors/police. As I showed above, the laws here are really solid on SD but there has been crappy case law and questionable arrests/prosecutions on numerous occasions. In today's world, an arrest and prosecution can be as devastating as a conviction. See Greg Girard.

 

[M1911]

Indeed. Those of us who carry do so because we know bad things can happen to good people. We know the odds are against it, but it does happen, so we go to the effort to get licensed, get a gun, get trained, practice, and carry, all in case the worst happens, which we know is unlikely. We look down on the sheep who think that nothing bad could happen to them. Those sheep think we are all paranoid for being prepared for the worst.

And yet, as Ayoob points out, many of the our fellow gun owners who also carry think that if they actually do have to use deadly force, that nothing bad will happen to them in the justice system. Just like the unarmed sheep, they think we are paranoid for being prepared for the worst that the justice system can dish out.

The sheep maintain their heads in the sand even when bombarded with counter examples every day in the press. They see coverage of the Petit murders in Connecticut, where a family was terrorized for 7 hours, before the young women were tied to their beds, raped, doused with gas, and set on fire. And yet they still think we're paranoid.

Our fellow gun owners still think we're paranoid, even after reading about what happened to the woman in the Arlington shooting, or the guy in Manchester arrested and refused bail for no reason. It's the same basic delusion: "nothing bad will happen to me because I'm a good person."

People have been Nifonged in every state in the union. It happens on a regular basis.

Here in MA, if you shoot Mongo who was in the process of stabbing an innocent (like, say, a psychiatrist in her office), the cops aren't going to arrive, slap you on the back, hand you a cigar, say "good shoot" and walk away. The newspapers the next day won't read "Good guy: 1 Bad guy: 0."

Be prepared for the second fight.

 

[Realtor MA]

Is it possible that there's a middle ground between paranoid and sheepish? I'm not expecting a cake walk but I'm also not sitting here crapping my pants that if, God forbid, my home is invaded I'll be the one going to jail. A shooting out of the house is going to be a lot more problematic but we've got to do whatever it takes to stay out of harms way.
IIRC the shooting at the hospital DID NOT result in any arrests. As I mentioned earlier the Arlington case was not in the home. It was on the porch. Was the BG armed? Who opened the door? Did it appear that the BG was retreating?

 

[terraformer]

Is it possible that there's a middle ground between paranoid and sheepish? I'm not expecting a cake walk but I'm also not sitting here crapping my pants that if, God forbid, my home is invaded I'll be the one going to jail. A shooting out of the house is going to be a lot more problematic but we've got to do whatever it takes to stay out of harms way.
IIRC the shooting at the hospital DID NOT result in any arrests. As I mentioned earlier the Arlington case was not in the home. It was on the porch. Was the BG armed? Who opened the door? Did it appear that the BG was retreating?

There is a middle ground, but the best advice anyone can give you is to KEEP YOUR MOUTH SHUT, ask for a lawyer and ask to be taken to the hospital for observation from traumatic stress. The PD's job is to find reasons why SD doesn't apply. Statements make that job very easy, even when SD is justified, statements can be spun into something else. The burden of persuasion is on them, but lets face it, persuading people in these parts that a gun owner is a freak is not hard.

 

[GSG]

C 278, s 8a

The law you're quoting applies to criminal trials only, and is a general set of instructions, not a clearly defined set of laws defining how various levels of LE should or will treat an incident. Because of that, every cop's opinion will be different, and no two incidents will have the same response.

A cop would also have to be crazy to respond to this thread with anything other than their agency policy and perhaps a few clarifying details on that policy provided by local prosecutors, caselaw, etc. Defense attorneys have used prior forum posts against cops in court before. Heck, they've used a prior MySpace status against a cop in court.

I've seen a true story on t.v. that is similar to yours.

From what state? Even if it was in Mass., crossing a county or town line can make all the difference in the world when it comes to how these things are handled. I'd also be very wary of anything shown on TV.

Breaking and entering while someone is home becomes a home invasion.

That's not the case in Mass.

Both quoted a flat rate of $100,000 for defense against a murder one charge. They said that this was a significant discount from their normal hourly rate, because murder defenses are all consuming, and if they charged their normal hourly rate then no one but a millionaire could afford a murder defense.

They're also not at all likely to take your case on "credit," since if you lose, you'll be stuck in prison not making any money or out of prison in several years with a felony conviction keeping you from getting a high paying job.

The MA castle law is really NOT an affirmative defense.

Well just to be clear, the court has to recognize any defense as part of the proceedings. It's not like TV where at the last second the defense can throw out something obscure they forgot about before and end the case on the spot.

Then there's this, particularly applicable to gun crimes:

http://www.mass.gov/courts/courtsan...pdf/3160-definitions-license-or-authority.pdf

A defendant who intends to rely on a defense based on license, claim of authority or ownership, or exemption, must provide advance notice of such defense to the Commonwealth and the court. Mass.
R. Crim. P. 14(b)(3).

and

http://www.mass.gov/courts/courtsan...f/7680-carrying-certain-dangerous-weapons.pdf

Advance notice of defense based on exemption. A defendant may not rely on a defense based on a license, exemption, or claim of authority or ownership unless he or she has filed an advance notice of such defense with the court and the prosecutor. For cause shown, the judge may allow late filing or a continuance, or may make other appropriate orders. Mass. R. Crim. P. 14(b)(3).

Have you seen My Cousin Vinny? It was explained a bit more colloquially there.

Mona Lisa Vito: Don't you wanna know why Trotter gave you his files?
Vinny Gambini: I told you why already.
Mona Lisa Vito: He has to, by law, you're entitled. It's called disclosure, you dickhead! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises.
[Vinny has a blank look on his face]
Mona Lisa Vito: They didn't teach you that in law school either?

BTW, I'm not calling you a dickhead.

Is it possible that the person would be arrested and then questioned before booking - thereby avoiding the lifetime arrest record?

Yes, but that may not get you off the hook for LTC applications, background checks and similar things where they're asking about arrests. Investigative detention counts for some of them, and a surprising amount of LE info and access to LE databases is becoming available to private entities, including fingerprinting.

Our fellow gun owners still think we're paranoid, even after reading about what happened to the woman in the Arlington shooting, or the guy in Manchester arrested and refused bail for no reason. It's the same basic delusion: "nothing bad will happen to me because I'm a good person."

You can lead a horse to water...

IIRC the shooting at the hospital DID NOT result in any arrests.

An in-depth investigation of the guy's personal life, trial-by-media, and potential loss of LTC while waiting for things to be sorted out are just a few of the things that a gunowner can face in a situation like that. I don't know if the shooter in that case lost his LTC in the interim, but if he did, he would be out of work, because he was employed as an SPO. He also may have been suspended, fired or have lost hours at work because he was under investigation for a gun crime, not to mention being treated differently by everyone because they know he killed someone.

Not getting arrested is helpful, but you can be charged at any time, if the statute of limitations is up then it's on you to argue that in court on your dime. And FWIW, there's no statute of limitations on a murder charge, and it's 6 years for most other crimes, but that depends on the charge and other factors. So if you shoot & kill someone (they don't have to die right there at the scene either) it could come back to bite you at any time that the jurisdiction feels that it was murder.

 

[IDPA Mike]

There is a middle ground, but the best advice anyone can give you is to KEEP YOUR MOUTH SHUT, ask for a lawyer and ask to be taken to the hospital for observation from traumatic stress. The PD's job is to find reasons why SD doesn't apply. Statements make that job very easy, even when SD is justified, statements can be spun into something else. The burden of persuasion is on them, but lets face it, persuading people in these parts that a gun owner is a freak is not hard.

What about a gun owner that reloads? Double freak. instant jail throw away the keys.

 

[IDPA Mike]

So basically,If I own a gun it's for target practice. If I ever need it for self defense,I,m screwed. The second I pull the trigger,its like pulling the stopper in the tub and my life gets swirled down the drain. At least I'm not dead.
Only problem for me is, I,m old small and don't think prison would suit me.
2 worst fears, Prison, 'GANG RAPE" and burning to death while being eaten by rabid dogs

 

[terraformer]

Well just to be clear, the court has to recognize any defense as part of the proceedings. It's not like TV where at the last second the defense can throw out something obscure they forgot about before and end the case on the spot.

Declaring a defense and having to justify an affirmative defense are two different things. Affirmative defenses allow someone's culpability to change based on their state of mind. Self defense is not a state of mind, nor is it a justification. It negates elements of the crime thereby causing people to be INNOCENT of the crime and not simply just less culpable (as in the case of insanity defenses). I know this is splitting hairs but until we start talking about SD as a core human right, we will continue to play into the hands of those who seek to negate that right.

The simple act of claiming that SD is a "justification" puts one accused of it on the defensive. This is not insanity, this is a right.

 

[M1911]

Is it possible that there's a middle ground between paranoid and sheepish? I'm not expecting a cake walk but I'm also not sitting here crapping my pants that if, God forbid, my home is invaded I'll be the one going to jail. A shooting out of the house is going to be a lot more problematic but we've got to do whatever it takes to stay out of harms way.
IIRC the shooting at the hospital DID NOT result in any arrests.

It still took months before he was cleared.

As I mentioned earlier the Arlington case was not in the home. It was on the porch. Was the BG armed? Who opened the door? Did it appear that the BG was retreating?

You are wrong. The shooting was INSIDE the house. He was on the porch, she opened the door, the perp then moved towards her, entering the house. Now, he was not retreating, he was advancing. No, he was not armed.

 

[Coyote33]

Read our lips: MA DOESN'T HAVE A CASTLE LAW!

It's an affirmative defense. That means that when they ARREST you and PROSECUTE you, you can raise the defense at your trial and then the state has to go a little further than normally to convict you. That's a good thing but please wake up and open your eyes. Yes, defend your family - but understand that you're very likely going to go to be arrested and stand trial.

I'll disagree with this. MA has a "Castle Law" in the original form of such laws. These laws originally just said you didn't have to retreat from your home, which is basically what MA law says.

In recent years, some states have passed what some call "Make My Day" laws, which presume that anyone who breaks into your home is a threat of death or grave bodily injury. The 1985 Colorado law was perhaps one of the first. In a bit of revisionist history, many folks are now referring to Colorado's law (and similar laws) as Castle laws.

Factually correct but given the current understanding of 'castle law' misleading. To the general pubilc castle alws and make my day laws are the same thing and are referred to as castle law.

I disagree. More states have traditional, no duty to retreat Castle Laws than Make My Day laws. Nevertheless, we're arguing semantics.

Holy back and forth, Batman!

Now I am more confused than ever.

At this point, laws become more dim. If it is life and death, wouldn't most people choose life (their own)?

 

[Miamivice]

That's why insurance is available for gun owners. If the 911 recording got everything you may not be charged, but you may be, and you'd have to hope the grand jury doesn't indict you.

Bottom line an unarmed person was shot and in MA the shooter faces an uphill battle.

Get insurance!!!!!!!

Sent from my SAMSUNG-SM-G930A using Tapatalk

 

[fishgutzy]

There was a case back when Maahtha Cokehead was Middlesex DA.
19 year old called 911 because his mom's live in boyfriend was beating the crap out of her.
Before the police got there, it became clear to the young man that his mom's life was in danger. He grabbed a kitchen knife and permanently stopped the attack on his mom.
He was arrested.
But the grand jury refused to indict. It was a clear case of defense of another.

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[Chevy 2 65]

These threads sucks.

"Halls of justice painted green. Money talking, power wolves beset your door hear them stalking. Soon you’ll please their appetite. They devour Hammer of justice crushes you Overpower"​

 

[Rob Boudrie]

There is a common misconception that "not talking to the police will make you look bad" and "hurt your case". Police are trained to take advantage of this, even though it is not true. Note that the Miranda warning does not include "talking to us will not help your case, and the fact that you did not talk to us cannot be used against you". (but it should)

As to insurance - be careful of the fine print. The NRA self defense insurance includes "Reimbursement for criminal defense costs when you are acquitted of charges" - which is absolutely useless when you are trying to come up with the $100K retainer typically needed to hire a high caliber attorney like Redington. On top of that, there is an excellent chance you will plead out to something if your case is strong - the ADA will offer a deal to preserve his/her win/loss record, and you may face the choice of "swallow hard, plead out and go home a PP, or come up with another $50K or so and take a chance at flushing your life down the prison toilet".... then, no NRA insurance reimbursement. The insurance company knows the amount you spend of a defense will be lower if they don't front any cash, and even if innocent, you will probably cop a plea. This no doubt allows a hefty commission to the NRA for recommending such a useless policy.