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Archive for Sunday, December 12, 2010

Topeka homeowner thwarts theft by shooting at thief

December 12, 2010

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— Topeka police say a homeowner fired a shot at a man trying to break into his car, but missed.

The alleged thief was taken into custody after fleeing the area and hiding about a block away from the residence.

Police say the homeowner heard a suspicious noise outside his residence around 5:30 a.m. and found an unknown man breaking into his vehicle.

The Topeka Capital-Journal reports that the homeowner fired at the man when he turned toward him.

A police spokesman says the homeowner had every right to protect his property. Officers interviewed the homeowner and released him.

Comments

LogicMan 4 years ago

"A police spokesman says the homeowner had every right to protect his property."

Yes, but not to use excessive force in a semi-public or public area. Now if the guy threatened him with a gun, too bad he missed.

John Hamm 4 years ago

"fired at the man when he turned toward him." "I feared for my life officer. It was apparent he was going to attack me." Is your comment to suggest he should have waited until the would be thief was upon him before reacting?

LogicMan 4 years ago

Depends how far away the guy was, and if he was arm with a projectile weapon.

OldEnuf2BYurDad 4 years ago

ONE punch can kill a man. His hands were potentially deadly.

staff04 4 years ago

My thoughts exactly. Amongst others, never, ever take legal advice from a cop.

gchawk 4 years ago

Rules? There are no rules with a felony act. It's hard to read the mindset of a felon, but the bad guy knew perfectly well what he was doing, he was breaking the law. Granted, to be shot because of stealing a car might seem excessive, but who knows what else this person might be doing.

Sigmund 4 years ago

Self defense and defense of others, without first attempting to retreat, is allowed everywhere (not just "dwellings") in Kansas. However, depending on the DA and the circumstances you might have to explain at trial the "reasonableness" of your belief that deadly force was necessary. In Douglas County with a liberal democrat in the in the DA's office and a liberal jury, you had better be darn sure that 99.99% of the people agree. Take the conceal carry training to get a fairly thorough summary of Kansas cases.

21-3211. Use of force in defense of a person; no duty to retreat. (a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force. (b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. (c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person. http://www.kslegislature.org/legsrv-statutes/getStatute.do?number=11741

Note, there is a separate statue for "dwellings" (ie not just homes): 21-3212. Use of force in defense of dwelling; no duty to retreat. (a) A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such force is necessary to prevent or terminate such other's unlawful entry into or attack upon such person's dwelling or occupied vehicle. b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling or occupied vehicle if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or another. (c) Nothing in this section shall require a person to retreat if such person is using force to protect such person's dwelling or occupied vehicle. http://www.kslegislature.org/legsrv-statutes/getStatute.do?number=11742

yankeevet 4 years ago

The vehicle was not occupied.........so are u saying its ok to shoot someone for breaking into ur car........? Its only property..........is use of deadly force required for stealing a vehicle; i think not.

bad_dog 4 years ago

Deadly force is generally not justifiable in the defense of personal property. "And, since the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant's personal safety". Prosser & Keeton on Torts citing Elrod v. Burns 182 Or. 394. This incident did not appear to involve a defense of the homeowner's home/dwelling and the homeowner was not "occupying" the burglarized vehicle in any sense of the word so it is questionable whether the use of deadly force would be justified under the Kansas statutes.

If charged, the homeowner might have a tough time proving he reasonably believed he was in danger of imminent death or great bodily harm merely on the basis the perpetrator "turned toward him". That would seem to be a typical reaction for someone caught committing a criminal act-they turn toward the source of the sensory stimulus/interrruption, as much out of a recognition of wrongdoing coupled with the fear of capture as it is a natural response to noting the unexpected presence of another human. In the absence of a weapon possessed by the perpetrator, or facts such as a significant size difference coupled with aggressive behavior, male perpetrator/female homeowner, etc., the homeowner could face civil and criminal charges if he shot and injured or killed the perpetrator. There will also be a question why the homeowner didn't call 911 to deal with the crime rather than confronting the perpetrator. I remember a case from Texas, I believe, involving a homeowner that fired a warning shot at someone stealing the battery from his car. The bullet ricochetted and struck the perpetrator who then successfully sued the homeowner.

BlackVelvet 4 years ago

uh, not according to state law. He must show his life or the life of another was in imminent danger in order to use lethal force. Period.

KSManimal 4 years ago

That thief will never target that home again.

Just think - if the bearing of arms were not simply allowed, but in fact required,.....so the dirtbags knew that every person, every house, was armed...there would be very little crime of this sort.

bullydad1 4 years ago

Are you serious Manimal? That would be your Utopian society... Justice served with a shootout on the front lawn. This is not the wild wild west. Glad the paper boy wasn't close to the kill zone.

OldEnuf2BYurDad 4 years ago

"if the bearing of arms were not simply allowed, but in fact required" then the person with the poorest judgment would be armed with a deadly weapon. Think of the dumbest person you know and ask yourself "would I want him walking around with a gun?"

Flap Doodle 4 years ago

I see the "blame the victim" crowd was up early this morning.

lorielasseterfoltz 4 years ago

Our Daughters house was broken into, in Topeka 5 years ago. It just went to trail last month. I wish she had shot him. I realize this was a vehicle break in but for anyone that makes a car payment and a insurance payment every month it is a correct response. We lived in Lawrence for 20 years and learned nothing outside my house was safe ;)

SDTPlant 4 years ago

Sorry TomShewmon,

I consider myself an "uber-liberal" and if I had caught the thief, I wouldn't have missed with my 12 ga.

I find it "verrrrrrrrrrrrry interesting" that you use a German (Nazi) term to make your way into this discussion that really has very little political basis. It's more about self preservation and protection of ones property. How's that political? Can you see Russia from your place?

Centerville 4 years ago

'bitter clinger' = 1. lowlife = 0. All in all, a good evening in that neighborhood.

LogicMan 4 years ago

Any news yet on where the missed shot did hit? Hopefully not a neighbor's.

beaujackson 4 years ago

He wouldn't have missed if he used a 12 ga. w/# 4 buckshot.

riverdrifter 4 years ago

Ever try to load that in a shotshell? Fairy tale.

RoeDapple 4 years ago

I have a few of those fairy tale loads around here somewhere . . . only I call 'em "lawsuit loads".

riverdrifter 4 years ago

I tried it once. The salt doesn't weigh enough and the primer pops the shot column waay too far up the barrel as the powder ignites, resulting in a blooper and barrel that badly needed cleaning. Never again. Now, a muzzle loader, you might have something -if you want to put salt in your gun.

Don Whiteley 4 years ago

Thieves have been having it WAY too easy in America over the past 30 years. Six years ago, a guy broke into my car, causing over $1000 damage (which I had to pay $500 for the deductible). The police caught him, he admitted to the robbery, admitted it was to get drug money, and the judge gave him one year probation. Time we start putting more bullets into more thieves.

just_another_bozo_on_this_bus 4 years ago

Why, yes, I was thinking just the same thing the other day-- what this world needs is just a little more violence.

bad_dog 4 years ago

Yet they will all be judged under the same law. Did the defense involve realty or personalty?Was it a reasonable use of force? Was there imminent danger of death or serious bodily injury to the homeowner or others?

kernal 4 years ago

Didn't the Court order him to pay restitution?

BlackVelvet 4 years ago

even if the Judge had ordered restitution, the criminal would have to break into someone else's car to raise the money to pay the restitution. vicious circle.

bad_dog 4 years ago

Or perhaps as a condition of probation, impose the sentence if the convict fails to gain employment and complete restitution within a certain period?

slowplay 4 years ago

So you are openly advocating the murder of judges? I certainly hope the LJW has taken note and reported your post to local authorities.

bad_dog 4 years ago

"Or more judges."

Not something the real Solomon would have said...

RoeDapple 4 years ago

"A police spokesman says the homeowner had every right to protect his property. Officers interviewed the homeowner and released him."

slowplay 4 years ago

I believe the police are 100% correct, but how would this story have turned out if that bullet struck and killed an innocent bystander? A shotgun would have been more effective and less apt to cause collateral damage. Handguns are the worst choice for homeowners. If that thief had been armed this story could have been about a homeowner killed during theft.

sissezz 4 years ago

whose to say if u were in that same situation what you would do..... if it was me.... yeah id shoot, but WELL above his head.... just to scare him off. And id make sure not to aim at anything else. I kno i kno the bullets gotta go somewhere. But im talkin shotgun here and the pellets would just scatter... right? LOL Im sorry but i work WAAAAAY to hard to have some punks take my things

fu7il3 4 years ago

So, you would shoot above his head, not knowing where the bullet is going to go and perhaps hitting someone who didn't do anything? If you are going to shoot, shoot at the guy you are trying to scare. A bullet wound will scare him.

gphawk89 4 years ago

Not sure that the pellets would just harmlessly "scatter". If you're using 00 home defense rounds like you should in this situation, yeah, they'll scatter all over your neighborhood, going through your neighbors windows, etc. If I absolutely HAD to fire a warning shot, I'd be apt to shoot at a steep angle into the ground (and only then if it was soft soil). Much less chance of scattering, and it shooting into the ground still makes the same loud noise that you want to scare the guy away.

RoeDapple 4 years ago

"It's all your fault people want to steal from you."

Undoubtedly the all time most ignorant statement of the year! Would you suggest it is a woman's fault for getting raped because of her anatomy or clothing?

The slime you extrude is stinking the place up. Crawl back under your rock.

Dixie Jones 4 years ago

When my car was broken into last week on wannamaker theives stole my purse ( i know stupid to leave it in there but it was totally covered they were watching me in the parking lot) the officer told me now that they have my address among other items of mine that if they were to show up at my house i could take matters into my own hands as long as they were in the house , but i was not to fire at them if they were in the yard...i guess i could hit em in the head and drag em back inot the house .....lol

optimist 4 years ago

I can't be sure what I would have done in this same situation. I'm not sure I would shoot someone over property but I certainly believe I have the right to use whatever force necessary to protect my property. I won't question this property owners response. I wasn't there and unless you were you can't really know what you would have done.

I have an alternate scenario for you to consider. Instead of confronting the criminal the homeowner calls the police. The police arrive as the criminal starts the car and he flees. The police pursue the thief at high speed. Not sure if this is just a car thief or a murderer who just killed an innocent person and stole the car in an effort to get away. During the pursuit the criminal in his efforts to get away collides with another vehicle carrying an entire family on their way home from grandma's house.

In all likelihood many of us would say he ought to be shot, or in this case shot at.

Sigmund 4 years ago

Self defense and defense of others, without first attempting to retreat, is allowed everywhere (not just "dwellings") in Kansas. However, depending on the DA and the circumstances you might have to explain at trial the "reasonableness" of your belief that deadly force was necessary. In Douglas County with a liberal democrat in the in the DA's office and a liberal jury, you had better be darn sure that 99.99% of the people agree. Take the conceal carry training to get a fairly thorough summary of Kansas cases.

21-3211. Use of force in defense of a person; no duty to retreat. (a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other's imminent use of unlawful force. (b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. (c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person. http://www.kslegislature.org/legsrv-statutes/getStatute.do?number=11741

Note, there is a separate statue for "dwellings" (ie not just homes): 21-3212. Use of force in defense of dwelling; no duty to retreat. (a) A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such force is necessary to prevent or terminate such other's unlawful entry into or attack upon such person's dwelling or occupied vehicle. b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling or occupied vehicle if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or another. (c) Nothing in this section shall require a person to retreat if such person is using force to protect such person's dwelling or occupied vehicle. http://www.kslegislature.org/legsrv-statutes/getStatute.do?number=11742

gphawk89 4 years ago

The key here is "fired at the man when he turned toward him". I don't think anything in the statutes allows you to step out of your house and shoot someone just because they're breaking into your (unoccupied) car. There has to be a threat towards yourself or a third person. Or, in the absence of any other witnesses, you have to convince the police and/or jury that you felt threatened. If the police find the guy slumped over the car with bullet holes in his back, well, you'll have to come up with a pretty good story.

JayCat_67 4 years ago

I'm thinking he meant that the intruder acted on his own free will. No one was forcing him to do what he was doing.

Peacemaker452 4 years ago

100% true. Actions taken of your own free will have consequences, some good and some bad. If you can’t live with the consequences, don’t perform the act.

independant1 4 years ago

The police released him? For what.

Should've said, I fired a warning shot.

mom_of_three 4 years ago

If it was a relatively new car, then the owner could have pushed the panic button on the door opener and made lots of noice That would have scared him off. If the car didn't have a panic alarm or noise on it, then was the car entirely worth it.
I understand protecting ones property, but I am not sure firing a gun to protect it was worth it if an innocent bystander was injured. Maybe the owner could have just shot out a tire or two and then the car wouldn't have went anywhere.

RoeDapple 4 years ago

Woulda, coulda, shoulda. What if, somehow, some way. You can all "what if" until the cows come home, it won't change what happened. One shot fired. No one hurt. Break in interrupted, crime prevented. Suspect captured. Home owner released, having committed no crime.

Only a few "happy endings" better than this . . .

beatrice 4 years ago

What if the cows don't come home? Should I fire a warning shot then?

RoeDapple 4 years ago

I don't do "what if" bea, but "what if" a 747 fell out of the sky in the next few minutes? Should I step outside and keep watch for the possibility? It has happened, so what if it happens to me? Maybe I should petition law makers to draft even more laws to protect me from such an event. Then I will be even safer, right? But then, 747s will still be flying . . . should I still fear them? Maybe all 747s should be grounded, then I know there will never be a chance of being crushed by one. I'm feeling better already!

But, but, wait! There's still those pesky 767s flying around up there! I just don't think I will be safe until I have inconvenienced all travelers and gotten all aircraft removed from the skies.

bea, as a weapons enthusiast ("gun nut" is so last week) I don't have any fear of being shot nor do I anticipate ever shooting anyone. I own them because I CAN, and because I enjoy them as a hobby. I will never see them as anything but a tool, no more (or less) dangerous than the hammer in the shed or the car in the garage.

Nice visiting with you bea, but I gotta go check on the cows. It's getting late and I haven't heard them come home yet . . .

beatrice 4 years ago

747s falling from the sky? We're gonna need a bigger net!

kjellifritt 4 years ago

Good! If that criminal would have come towards me, I would have shot too. It's dumb enough to break into a car and even dumber to go towards the owner. How about just trying to get away? Criminals aren't too smart!

Good for the owner for standing up for themselves!

TopJayhawk 4 years ago

Why do you think so many cirminals now go to Lawrence? You guys are soft. I am a touch embarrassed that he missed however.

TopJayhawk 4 years ago

A few yrs ago someone shot and killed a guy for breaking into his car.
the DA put him on trial, I think it was an election yr. Shortest trial in history. The guy walked in less than a day. No jury will convict you here for that.

beeshlii 4 years ago

shoot first, than ask question later?

Kirk Larson 4 years ago

Good thing it wasn't another "Man shoots son mistaking him for burglar" story.

RobertMarble 4 years ago

Good to see another citizen taking a stand & helping to curtail crime. Too bad the dirtbag was neither shot nor captured by law enforcement personnel. There is very little information presented in the story as written so it's far too early to debate the legality of the shooting, although it's good the crime was stopped & the homeowner suffered no injury.

RoeDapple 4 years ago

"The alleged thief was taken into custody after fleeing the area and hiding about a block away from the residence."

beatrice 4 years ago

Yes, it is good that the crime was stopped and the homeowner suffered no injury. Absolutely. It is also good that the homeowner caused no injury to any of his neighbors as well.

Peacemaker452 4 years ago

America: If you don't want to get shot, stay the hell away from my family and my stuff.

RoeDapple 4 years ago

America: Where many types of trees grow.

Such as "Oak" which was known by many other names . . .

And now there is "thuja", a member of the cypress family of trees . . .

Posting since March 10,2010 . . .

and very similar posts . . .

Care to write a blog, Hermi?

MyName 4 years ago

This is just dumb. Either he knew WTF he was doing and missed on purpose to frighten the guy off, or he didn't know what he was doing and the thief got lucky (in that he didn't get killed) and now has a chance to reevaluate the way his life is going.

I mean, we don't even know anything about "the man" with the gun. He could be 70 and not wanting to have the guy get close enough to him to cause trouble, or he could be some nervous kid. Or anywhere in between.

The only thing that matters is the thief is in jail and no one got killed.

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