NY homeowner shoots an intruder near Albany, and no charges

[Criticalt]

Someone didn’t read the article. I reported what the article stated. It’s not my decision or interpretation and that’s why I reported it because I was surprised as well.
Directly copied from the article. I’m confused as well.
State Police charged Jarvis with second-degree criminal trespass, a Class A misdemeanor. Investigators said he entered through an unlocked door without using force. That detail reportedly prevented authorities from pursuing a burglary charge.

I didn't read the article because id rather just theorize about what might have occurred here.
Maybe the bad guy entered, but the authorities believed they could not prove they came in to commit a theft or felony.
Ive seen several cases of drunk or drugged people "accidentally" entering a home.
The one famous one I remember was on the show "COPS". A guy was in someone's house taking a shower. Through investigation they learned he lived in a closeby identical looking apartment.
But, im sure the article would disprove my theory if I cared to read it.

 

[Saltwater60]

I didn't read the article because id rather just theorize about what might have occurred here.
Maybe the bad guy entered, but the authorities believed they could not prove they came in to commit a theft or felony.
Ive seen several cases of drunk or drugged people "accidentally" entering a home.
The one famous one I remember was on the show "COPS". A guy was in someone's house taking a shower. Through investigation they learned he lived in a closeby identical looking apartment.
But, im sure the article would disprove my theory if I cared to read it.

This very thing happened down the street from me a few years ago on the Fourth of July. Dude got invited to a party on we will say east Main Street of the major city by me. Well my street is the equivalent of just Main Street. Dude walked into the wrong house. Homeowners gun was in his truck glovebox. Next door neighbor is a cop friend of mine. Cop friend said dude was lucky his gun was in his truck or he’d have been shot and it would have been justified. Guy walked into the wrong house at 4 am on the Fourth of July. Cops not wrong, most would think it was for nefarious reasons. Anyone not permitted or invited into my home that enters I will surely think it’s for a bad reason as anyone normal would. Outside of someone yelling help that is injured or a small child coming in by mistake. There are exceptions, but a grown adult coming in isn’t there for no reason or a good reason.

 

[C3D]

That sounds exactly like a reasonable suspicion standard.

The homeowner needs a reasonable belief that a crime is in progress. That's exactly what reasonable suspicion is.

Well we're splitting hairs now but it's an important distinction between the two. Reasonable suspicion (i.e., the police investigative standard) require only an objectively justified suspicion. Article 35.15 requires a subjective belief by the person of the necessity of using deadly force and an objective reasonableness of that belief.

Stated another way: A police officer can have reasonable suspicion without actually needing to believe a crime has occurred (or is occurring), only facts exist that make the PO suspicious that there may be a crime. A defensive shooter must actually believe the deadly force is needed, and that belief is objectively tested (i.e., would an ordinary and prudent person likely have drawn the same conclusion).

The defensive shooter is held to a much higher standard under these tests, which is probably the right result. At least in theory and not how NY prosecutors and courts apply it.

 

[spat]

Well we're splitting hairs now but it's an important distinction between the two. Reasonable suspicion (i.e., the police investigative standard) require only an objectively justified suspicion. Article 35.15 requires a subjective belief by the person of the necessity of using deadly force and an objective reasonableness of that belief.

Stated another way: A police officer can have reasonable suspicion without actually needing to believe a crime has occurred (or is occurring), only facts exist that make the PO suspicious that there may be a crime. A defensive shooter must actually believe the deadly force is needed, and that belief is objectively tested (i.e., would an ordinary and prudent person likely have drawn the same conclusion).

The defensive shooter is held to a much higher standard under these tests, which is probably the right result. At least in theory and not how NY prosecutors and courts apply it.

In general that's correct.

But, burglary specifically allows deadly force as a special case in NY law, along with arson and sexual assault.

So you just need an objectively reasonable belief that burglary is occurring or is about to occur, and that deadly force is necessary to end or prevent it.

And reasonable suspicion for a police officer does require a reasonable articulable suspicion that an actual crime is occurring. Not just someone generically acting unusually.

So, someone who is covertly and unlawfully present in a dwelling gets you about 90% of the way to "reasonably believes a burglary is occurring".

Just so we're all on the same page, here's the relavant statute

NY PL 36.20.3

3. A person in possession or control of, or licensed or privileged to
be in, a dwelling or an occupied building, who reasonably believes that
another person is committing or attempting to commit a burglary of such
dwelling or building, may use deadly physical force upon such other
person when he or she reasonably believes such to be necessary to
prevent or terminate the commission or attempted commission of such
burglary.

 

[C3D]

In general that's correct.

But, burglary specifically allows deadly force as a special case in NY law, along with arson and sexual assault.

So you just need an objectively reasonable belief that burglary is occurring or is about to occur, and that deadly force is necessary to end or prevent it.

And reasonable suspicion for a police officer does require a reasonable articulable suspicion that an actual crime is occurring. Not just someone generically acting unusually.

So, someone who is covertly and unlawfully present in a dwelling gets you about 90% of the way to "reasonably believes a burglary is occurring".

Just so we're all on the same page, here's the relavant statute

NY PL 36.20.3

Again the difference: the police officer only need suspect a crime *may* have occurred. The shooter *must* believe a burglary is occurring.

 

[spat]

Again the difference: the police officer only need suspect a crime *may* have occurred. The shooter *must* believe a burglary is occurring.

I would be interested in what set of circumstances you think would qualify for one and not the other.

In the context here where someone is already unlawfully present in the house.

 

[C3D]

I would be interested in what set of circumstances you think would qualify for one and not the other.

In the context here where someone is already unlawfully present in the house.

The situation is what I said. In probably a majority of NY's 62 counties the DA and police are going to do everything possible to *f* you even in a justified self-defense situation. (Ask Daniel Penny about that). You are now facing an additional element that you need to prove as a defendant to claim justification under 35.15. (The Article 35 defenses must be proven by the defendant, not by the prosecution.)

 

[spat]

The situation is what I said. In probably a majority of NY's 62 counties the DA and police are going to do everything possible to *f* you even in a justified self-defense situation. (Ask Daniel Penny about that). You are now facing an additional element that you need to prove as a defendant to claim justification under 35.15. (The Article 35 defenses must be proven by the defendant, not by the prosecution.)

I meant a set of circumstances that would qualify as reasonable suspicion of burglary, but not a reasonable belief that a crime was in progress for Art 35 purposes.

I'm talking about what the law actually says, not what some slimy DA will pull for political reasons.

 

[C3D]

I meant a set of circumstances that would qualify as reasonable suspicion of burglary, but not a reasonable belief that a crime was in progress for Art 35 purposes.

I'm talking about what the law actually says, not what some slimy DA will pull for political reasons.

Reasonable suspicion: police officer sees guy climbing into a window of a house at night. Reasonable suspicion is it may be a burglary. Or it could be a guy who lost his keys. PO does not need to be sure in order to temporarily detain that person and investigate.

Objectively reasonable belief that a burglary is occurring: guy is climbing through your window at night with a racoon mask and an empty bag emblazoned "loot".

Potentially unreasonable belief that a burglary is occurring: intoxicated guy in a business suit and tie breaks sidelight window on door and opens door and steps inside.

Not a theoretical issue. How would the below cases have been handled had they occurred in Queens, Westchester, Buffalo, etc? If the shooter was white and the victim black?



ETA: The broader point is being lost here. Don't use a gun in self defense, even in your own home, unless you are truly in fear for your life and have no other choice. The costs are too high and an intruder being in your house shouldn't be viewed as open season.

Man: Son killed while trying to enter wrong house

COLORADO SPRINGS (AP) – Sean Kennedy had been drinking at a weekend Broncos party when he drove to the wrong Colorado Springs house, scared the homeowner by pounding on the door and was fatally shot, his father said Monday.Police said…

www.dailycamera.com

University of South Carolina student killed after accidentally trying to enter wrong house: police

A University of South Carolina student was fatally shot when apparently he accidentally entered the wrong house on the street where he lived, according to police.

abc7ny.com

 

[Saltwater60]

The situation is what I said. In probably a majority of NY's 62 counties the DA and police are going to do everything possible to *f* you even in a justified self-defense situation. (Ask Daniel Penny about that). You are now facing an additional element that you need to prove as a defendant to claim justification under 35.15. (The Article 35 defenses must be proven by the defendant, not by the prosecution.)

I find it interesting you keep referring to Daniel Penny because there’s almost no correlation to someone breaking into your home and what he did.
I get you’re point about the DA trying to scree him, but he was never threatened and killed someone in a situation where deadly physical force wasn’t justified and in the most liberal county in the entire state. I’ll also add nyc is very against this man’s actions more so than any other county or city in the state and arguably in the country.
What they did is wrong, but there are justifications for it under Nys law for what they did. I’m thinking justified use of force e and duty to retreat. I think these laws are garbage but they are still here. Penny didn’t mean to kill him but did.

 

[spat]

Reasonable suspicion: police officer sees guy climbing into a window of a house at night. Reasonable suspicion is it may be a burglary. Or it could be a guy who lost his keys. PO does not need to be sure in order to temporarily detain that person and investigate.

Objectively reasonable belief that a burglary is occurring: guy is climbing through your window at night with a racoon mask and an empty bag emblazoned "loot".

Potentially unreasonable belief that a burglary is occurring: intoxicated guy in a business suit and tie breaks sidelight window on door and opens door and steps inside.

Not a theoretical issue. How would the below cases have been handled had they occurred in Queens, Westchester, Buffalo, etc? If the shooter was white and the victim black?



ETA: The broader point is being lost here. Don't use a gun in self defense, even in your own home, unless you are truly in fear for your life and have no other choice. The costs are too high and an intruder being in your house shouldn't be viewed as open season.

Man: Son killed while trying to enter wrong house

COLORADO SPRINGS (AP) – Sean Kennedy had been drinking at a weekend Broncos party when he drove to the wrong Colorado Springs house, scared the homeowner by pounding on the door and was fatally shot, his father said Monday.Police said…

www.dailycamera.com

University of South Carolina student killed after accidentally trying to enter wrong house: police

A University of South Carolina student was fatally shot when apparently he accidentally entered the wrong house on the street where he lived, according to police.

abc7ny.com

The drunk guy who broke in *is* committing burglary, whether he intended to or not.

So a belief that he is isn't just reasonable, it's objectively correct.

 

[C3D]

The drunk guy who broke in *is* committing burglary, whether he intended to or not.

So a belief that he is isn't just reasonable, it's objectively correct.

No he did not under NY Penal Law.

 

[C3D]

I find it interesting you keep referring to Daniel Penny because there’s almost no correlation to someone breaking into your home and what he did.
I get you’re point about the DA trying to scree him, but he was never threatened and killed someone in a situation where deadly physical force wasn’t justified and in the most liberal county in the entire state. I’ll also add nyc is very against this man’s actions more so than any other county or city in the state and arguably in the country.
What they did is wrong, but there are justifications for it under Nys law for what they did. I’m thinking justified use of force e and duty to retreat. I think these laws are garbage but they are still here. Penny didn’t mean to kill him but did.

Daniel Penny is only used as an example of the mindset of much of NY law enforcement and DAs. Not as a legal analogy.

 

[spat]

No he did not under NY Penal Law.

Ok, I just double checked it. You're right he would have had to have knowingly broken in to actually be committing burglary.

But really don't think it's reasonable to expect the homeowner to try and ascertain the mental state of the guy breaking in before acting.

If someone vandalized your house and then entered it, you can't be expected to have to try and determine if they they thought they were home or not.

So I still say that would be a reasonable belief that a burglary was in progress.


Now, I'm certainly not trying to say that shooting them is the best course of action, just that it's legally justified in NY.

 

[C3D]

Now, I'm certainly not trying to say that shooting them is the best course of action, just that it's legally justified in NY.

And therein, as the Bard would tell us, lies the rub.