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Debate over Home Protection in Western New York

While the rest of the country is busy giving homeowners more leeway, it would seem the Buffalo, New York media is trying to stir a debate about whether home defense with deadly force should be allowed at all:

Cherry, a soft-spoken and polite Army veteran, said he was protecting himself from a home burglary at about 11:20 a.m. Jan. 21, when he fired 15 shots from a military-style assault rifle at the vehicle of a fleeing intruder.

OK, that’s a legitimate prosecutable offense, and the fact that it was his step-daughter probably isn’t going to play well in front of a jury. But this shouldn’t be a debate, and I see no reason to drag other, legitimate home defense cases in with this one:

• Willie J. Carson, 52, shot Parrish C. Spencer Jr., 22, in the chest Jan. 20, after the younger man broke into Carson’s 25th Street home and went upstairs, Niagara Falls police said.

No charges have been filed against Carson, but police have said the case has been turned over to the Niagara County district attorney’s office for further investigation.

• An 82-year-old Niagara Falls man, apparently scared and confused after a group of teens attempted to break into his home Jan. 15, fired one shotgun blast at police after they entered the home and found him hiding behind a closed door.

No one was hit, and the elderly man was not charged.

• Charles E. Gidney Sr., an off-duty Buffalo police officer, shot and killed one intruder, Reno D. Sayles, 36, and seriously wounded another inside his Buffalo home last April 22.

In his statement to police, Gidney said he grabbed his handgun, pointed it at the two men, one wearing a ski mask, and ordered them to “freeze.” Instead, they rushed at him, and he fired several shots, he said.

With the exception of the old man mistakenly shooting at police, all of these look pretty legitimate, even for New York. Fortunately, the Buffalo News goes on to describe the legal distinctions when it comes to using deadly force to defend the home. I think it’s OK for papers to cover this, but it’s not really a “debate” per se. I would find it hard to believe juries even in New York will convict people for shooting home invaders. Shooting at someone fleeing is a different matter.

23 Responses to “Debate over Home Protection in Western New York”

  1. Carl in Chicago says:

    While good statutes endeavor to objectively define lines …

    The media endeavors to subjectively blur them.

    Good thing that more and more of us are able to differentiate.

  2. Zak J says:

    “I would find it hard to believe juries even in New York will convict people for shooting home invaders…”

    Hopefully you are right, and most of the time I’d agree you are. Still, I wouldn’t want to gamble my freedom–let alone the money needed to retain a good lawyer–on the whims of a D.A. Juries are certainly easy to manipulate by a skilled prosecutor; the trick in preventing abuses is to stop charges from being filed in the first place. Seriously, if someone breaks into your house wearing a ski mask you shouldn’t have to be an off-duty cop in order to get people to believe you had justification from drawing on or even shooting.

  3. Ian Argent says:

    I went and read the article, and the car he shot up was in his garage when it started moving, and he was covering the car and his step-daughter (who was not in the car) in at least one version of the story; and the dispute seems to be whether the car was in reverse or not.

    At that point, the alleged shootee is in close contact, in control of a deadly weapon (the car), and had been called upon to surrender. It isn’t a case of emptying the magazine at a fleeing burglar; but rather of having to make a split-second decision of “is that guy backing up to take a run at me or is he fleeing?” In this case, no blood, no foul; and I would say he showed restraint in not putting a round through the windshield. If the car was an automatic transmission, even noticing that the car had started back a small amount wouldn’t suggest that the driver was fleeing; he could have dropped into Reverse on his way to Drive…

    Assumption that vehicle was in fact in the garage along with the shooter. That didn’t seem to be at question based on the police statements.

  4. LC Scotty says:

    Buffalo resident here. The thing that really spiked my blood pressure about this article is the implication in the first couple of lines that these victims were “hunting” when they were attacked and defended themselves. The snooze is a left wing as it comes, and it did not surprise me that they initially tried to portray the victims as vigilantes.

  5. Jacob says:

    Do not confuse NY gun law with NY self-defense law. Gun law is bad, self-defense law is among the best in the country. There is no duty to retreat, and force up to and including deadly force is acceptable whenever a person reasonably believes it is necessary to save their life or the life of someone else.

    This would not cover Cherry who admitted firing at the car as it was leaving.

  6. mikeb302000 says:

    I would almost agree. Here’s how I would say it.

    “would find it hard to believe juries even in New York will convict people for shooting home invaders WHO ARE POSING A LETHAL THREAT. Shooting at someone fleeing is a different matter.”

  7. Bob S. says:

    MikeB3302000,

    In the middle of the night, with an intruder standing in YOUR house– how do you determine someone is a lethal threat?

    Did the criminal mail you a notice of intent the week before?
    Did the criminal leave a notice of intent to only rob you?
    Does the criminal announce “Hey, No need to shoot me. I’m only here to rape your wife and daughter”?

    Come on Sparky, tell us how exactly you determine “lethal threat”?

  8. Ian Argent says:

    There’s a problem with “reasonable person” requirements; the situation in which you potentially need to use deadly force is not a reasonable one. Also, there’s no way to predict which situations are going to violent.

    I’m of two minds on situations outside the house; but inside the house? You don’t want to get shot, don’t break into a house.

    Likewise, proportional force requirements can be used to prosecute the 90 lbs female because she shot the 250 lb male assailant who threatened to beat her with his fists. Again – don’t want to be shot, don’t offer violence. Any weapon or even bare fists can be a deadly weapon; and the notion that they aren’t is pernicious.

  9. mikeb302000 says:

    Identifying lethal threat in many cases will be difficult. But the first thing you’d have to do is drop that macho nonsense that Ian and many others keep repeating, “if you don’t wanna get shot, don’t break into my house.”

    A responsible gun owner cannot let adolescent school-yard dicta cloud his judgment. We’re talking about life and death, the gun owner’s and the burglar’s. Something that important deserves the most serious consideration possible.

  10. Mike w. says:

    There’s nothing “macho” about it. If a criminal breaks into someone’s home the onus should not be on the victim to determine the level of violent intent.

    The burglar has already shown violent intent by entering the home. In DE his actions would constitute a “forcible felony.”

    Yes we’re talking life & death. If you value your life don’t break into people’s homes. As Ian said, “if you don’t wanna get shot don’t break into my house.” It’s really quite simple.

  11. Bob S. says:

    MikeB302000,

    Once again, since you didn’t answer the question, how do you determine lethal threat?

    It really should be simple for you to elaborate a set of criteria that meets “lethal threat”, right?

    Next, are you saying that for anything less then a “lethal threat” people should not use firearms for protection?

    Women shouldn’t use a firearm to stop a rape?
    That a single individual shouldn’t use a firearm to stop an assault by two or more people?

    Come on Sparky, give us your wisdom. You’ve been blogging on firearm related issues for nearly 2 years now. Surely you can explain how you or anyone else can identify what a lethal threat is, how to recognize it in the middle of the night or in the midst of an assault.

  12. Ian Argent says:

    I’m not being “macho” about it. entering a house uninvited is not something that happens accidentally (no more so that being drunk is an accident – to cover the cases where someone is impaired and attempting to enter the wrong house. Getting drunk enough to not recognize the right door is not an accident). I am not Lamont Cranston – I cannot tell intent. I must judge intent based on actions and statements – and entering a house uninvited is a pretty blatant message of potential violence. *ANY* act of violence is potentially lethal – there is no such thing as a perfectly non-lethal attack. If I do not have the right to employ potentially lethal force in self-defense (particularly in my home) I do not have the right to self-defense; period. This is not school-boy posturing – there aren’t options between soft words and fast lead that do not require me to risk my safety to employ. And a requirement to retreat from my home is a logical contradiction (my home is my ultimate retreat) as well as a physical impossibility in many circumstances. Once you hve admitted the (basic human) right of self-defense, you have admitted that I can use lethal force in self-defense. The rest follows.

    That having been said – entering my home uninvited is not an automatic death sentence. I *don’t want* to kill anyone. Most people don’t. I *will* call on the intruder to surrender (even if I wasn’t legally required to); and if he runs, even better.I thought Caleb’s encounter with the mugger ended about as well as it could have under the circumstances (I would have preferred the mugger be arrested, tried, and convicted; but there’s not a likely set of circumstances under which that would have happened). I will use the soft words before fast lead if I can

  13. Weer'd Beard says:

    Seems the MikeB was unhappy that his first comment wasn’t offensive (I’m sure this was unintentional) so now he must double-down to better troll!

  14. mikeb302000 says:

    Ian said, “That having been said – entering my home uninvited is not an automatic death sentence. I *don’t want* to kill anyone. Most people don’t. I *will* call on the intruder to surrender”

    I apologize for lumping you in with that bunch of tough talking pro-gun commenters. The way you said it is exactly right for me.

  15. Bob S. says:

    MikeB302000,

    What’s up?

    You complete ignore a point that I made, a question that I’m trying to resolve — how do you determine “lethal threat”?

    Come on Sparky, let us have the benefit of your Marine Training, your years of gun ownership, your years of blogging about firearms.

    You’ve posted enough stories about home invasions, robberies and other firearm related crime that you should be able to articulate a reasonable method of determining “lethal threat”.

  16. Ian Argent says:

    Except that if I’m looking at you over the gunsight in my home, I don’t care what level of force you appear to be capable of… You get the one warning and then all bets are off. It is neither safe nor legal for me to fire a warning shot, either.

    And remember, I am the guy who is defending the Buffalo man for shooting up a reversing car! On the gunblogs I may be a moderate as far as things go, but I was just defending the guy’s actions in shooting a car reversing away. A car is a deadly weapon, and at the close quarters claimed in the article reversing away is not a guarantee of retreat. Nor am I shocked by the expenditure of 15 rounds. Cars take a lot of stopping by small arms. Let him be judged by 12 to a standard that is fair.

    Incidentally, one of the LEOs in that article is quoted as saying there is a duty to retreat; where upthread a commentor posted otherwise… Wonder who is right? (I would give 60/40 on the commentor w/o resorting to google)

  17. Bob S. says:

    MikeB302000,

    By the way, the fact that you automatically assume the rest of us won’t take every step possible to avoid killing someone says more about you then it does us.

    It once again exposes your bigotry.

  18. Ian Argent says:

    BTW – it looks like NY is “duty to retreat” outside the home; and at least one court in NY has held that being in a doorway to an apartment invokes the duty to retreat… (first hit on “New York state Duty to Retreat” is an article by Clayton Cramer written about the time of the passage of FL’s “stand your ground” law; which, entirely unsurprisingly, has not led to increased illegitimate/immoral shootings).

    These “duty to retreat” laws, however, include a “in perfect safety” clause – you are not bound to retreat if it puts you in harm’s way…

    I’m going to go a bit confucian here and opine that the upright man does not require a law to behave properly with a firearm and the criminal will not behave properly regardless of the law – so the law is superfluous.

    It is already (and justifiably so) to threaten to harm, inflict harm, attempt to inflict harm, etc, with pen or pen-knife, cross-cut saw or crossbow, fire or firearm, slingshot or shotgun; without good cause. Making the use of a firearm more illegal isn’t going to change things.

    The underlying assumption of the majority of firearms laws is that every person owning or possessing a firearm is criminal who hasn’t yet committed a crime, but could at any moment, and therefore must be tightly constrained. That’s a blatant violation of the principles of American justice.

  19. mikeb302000 says:

    Bob, You’re right there’s no easy or clear way to determine lethal threat. At least I think that’s your point in hammering me about it. I admitted as much when I said “in many cases [it] will be difficult.” I went on to say you have to drop the preconceived attitudes about burglars deserving death. No where did I indicate that I “automatically assume the rest of” you “won’t take every step possible to avoid killing someone.”

    Why do you so often exaggerate what I say and attack me for it? I covered all this pretty well in The Famous 10%. If you feel you are among the 90%, why are you so defensive?

  20. Bob S. says:

    MikeB302000,

    You stated that people shouldn’t be convicted if the criminal was posing a “lethal threat”.

    I’ve asked and you’ve still not answered how YOU as an individual home owner determines who is posing a lethal threat.

    You’ve said it would be difficult, you’ve said it would not be clear or easy….yet you seem to think that home owners who shoot someone not posing a lethal threat should be prosecuted and convicted.

    Since that is your standard –lethal threat — again — how does a home owner determine what is a lethal threat?

    See you are showing your bigotry again —
    I went on to say you have to drop the preconceived attitudes about burglars deserving death.

    Can you show me where I’ve said or anyone else here has said that burglars deserve death?
    That is your preconceived prejudice getting in the way of reasonable discussion.

    You did lump us all altogether when you apologized to Ian, remember?
    I apologize for lumping you in with that bunch of tough talking pro-gun commenters.

    Now you turn to the victim, poor picked on MikeB302000. You simply come by trolling, implying that we are all bloodthirsty, vigilante minded, gun owners wanting to gun down innocent burglars (contradiction of terms), then get yourself in a snit fit when you are called on your statements.

    You infamous completely made up 10% is a joke and you know it. Since you illegally and legally owned firearms, do you think that you are part of that 10%?

    I’m offended by your 10% bullcrap because you are talking about me, my friends, my family, my fellow gun owners without a shred of evidence or proof.to back up your ridiculous claims.
    You are simply trolling for hits on your blog — you link to the 10% garbage so that people will drop by and see what you mean.

    Once again you show your true colors by not contributing to the discussion in a meaningful way — how do you determine lethal threat (stop saying it will be difficult and list some ways to do it) and trying to pimp out your blog.

  21. mikeb302000 says:

    Here’s the answer Bob. You make a judgment call.

  22. Ian Argent says:

    That’s dandy – but you started out by saying”

    “I would almost agree. Here’s how I would say it.

    “would find it hard to believe juries even in New York will convict people for shooting home invaders WHO ARE POSING A LETHAL THREAT. Shooting at someone fleeing is a different matter.””

    We then came back and said that the judgement call being made is that inside the home == posing a potentially lethal threat. You then called me a macho and nonsensical. (which you backed off of later when I clarified). I still stand by my statement – “Don’t want to get shot, don’t break into my home”.

    I am neutral on duty to retreat outside of the home, as long as the standard is based on the actor’s knowledge at the time and has the “in perfect safety”-only clause. A “reasonable person” standard invites too much monday-morning quarterbacking by the prosecutor, the grand jury, and the petit jury. On your own property (not just inside the home)? No legal requirement to retreat. The upright man will do so anyway where possible, and the low man won’t regardless of the law.

  23. Bob S. says:

    MikeB302000,

    That was always MY standard.

    Once again, I’m asking how you — MIKEB302000 – gun owner, former Marine, home owner, father, husband and human being possessed of enough intellect to operate a computer — determines is someone poses a “lethal threat”.

    See you’ve owned firearms in the past – while you don’t want to talk about it – you obviously owned them for a reason. Was that reason to protect yourself or your family?

    Where would you draw the line?
    How do you determine if someone is not just a threat to your family, but the standard you set of a lethal threat?

    You are very comfortable with asking current gun owners questions, demanding answers and accountability from us but let’s here how you make the decision.

    Come Sparky, surely you can spell out in simple terms what constitutes the standard you set, right?

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