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Author Topic: "Stand your ground" law  (Read 4021 times)
Cutter
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« on: March 30, 2017, 03:18:40 AM »

Is anyone aware of any new legistration for Delaware to become a "Stand your ground" state?
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MarcWinkman
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« Reply #1 on: March 30, 2017, 05:37:26 AM »

Nothing that I'm aware of, and unfortunately, I just don't see it happening anytime soon with the way that our general assembly is. 
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muleman88
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« Reply #2 on: March 31, 2017, 07:50:18 AM »

I would like to see this happen .. although I have not heard of any legislation regarding it. Common sense tells me if someone breaks in my home their there to do harm  Huh. But for now I can gather all the kids and head back to bedroom and lock the door while they help themselves with our belongings we have worked so hard for . I just hope they let me know when their done so I can come out to see what I need to replenish. Sorry for the rant  Angry
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MarcWinkman
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« Reply #3 on: March 31, 2017, 01:56:21 PM »

I would like to see this happen .. although I have not heard of any legislation regarding it. Common sense tells me if someone breaks in my home their there to do harm  Huh. But for now I can gather all the kids and head back to bedroom and lock the door while they help themselves with our belongings we have worked so hard for . I just hope they let me know when their done so I can come out to see what I need to replenish. Sorry for the rant  Angry

In the home there is no duty to retreat. Deadly force may be used in the home so long as you are faced with deadly force when responding in kind.
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Wire Paladin
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« Reply #4 on: April 01, 2017, 12:40:18 PM »

According to  the laws of Delaware... unless the law was recently updated against what I'm saying here and now, the Castle Doctrine prevails in Delaware.

Such says that I don't have to flee when in my house. And, does any level-headed person really, really think turning his back on a thug who already made aggression against him
is a good survival strategy Huh I wouldn't suppose a thug breaking in is doing so to study the Bible with me.

Besides that, Delaware law states my shoot first right prevails if the situation to do so calls for it.

Take a look at youtube and type in " Sarah McKinley. " The Castle Doctrine in action.
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Cbmarine
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« Reply #5 on: April 01, 2017, 04:49:40 PM »

All of us who carry must be conversant with the DE laws for protection of self, other persons, and property. It is best to read the actual law not a summary.
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Smelly deplorable dreg of society clinging to God and guns
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topper
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« Reply #6 on: April 02, 2017, 02:54:16 PM »

All of us who carry must be conversant with the DE laws for protection of self, other persons, and property. It is best to read the actual law not a summary.

In looking at 464(b), it almost looks like a stand your ground law, but farther down under 464(e)(2)  

The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform.

Is this part the reason it is not a stand your ground law? And does this mean that I would have to give my wallet to someone if they demand it?
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Cbmarine
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« Reply #7 on: April 02, 2017, 07:39:52 PM »

...
In looking at 464(b), it almost looks like a stand your ground law, but farther down under 464(e)(2)  

The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform.

Is this part the reason it is not a stand your ground law?
Yes.
Quote
And does this mean that I would have to give my wallet to someone if they demand it?
my interpretation is if the surrender of possessions can be done in "complete safety" which, in today's environment, is unlikely.
I'd like to hear more opinions on this subject.
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oldgraygeek
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« Reply #8 on: April 03, 2017, 04:04:39 AM »

The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto...

Is this part the reason it is not a stand your ground law? And does this mean that I would have to give my wallet to someone if they demand it?
I'm pretty sure the phrase highlighted above does not refer to someone demanding your wallet: that person is not "asserting a claim of right thereto," as (s)he is not claiming to own that wallet. I think it refers to someone who is saying "Hey, that's MY wallet! Give it back!" with some legitimacy. (If the wallet is in my back pocket, unless they just watched me swipe it, such a claim would be clearly illegitimate).

Quote
...or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform.
IANAL, but...
Someone is threatening violence and telling you NOT to do something ("Don't touch me!" "Don't come near me!" etc.). You are not legally obligated to tough them or to go near them. If you continue, and are then required to use deadly force as a consequence of that refusal, you would be in violation of this part of the law.
This part of the law also protects you:
Two pr three dudes suddenly surround you at an outdoor ATM and demand your money. You're on video. You draw your licensed firearm and loudly proclaim "Don't come near me! Don't touch me!" THEY have a duty to retreat, because they have no legal obligation to go near you or touch you. If they persist and use force against you, they have failed to retreat and thus cannot use this part of the law as a defense. (Hopefully, they are dead, so they're busy defending their virtue in Hell anyway)...
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MarcWinkman
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« Reply #9 on: April 03, 2017, 07:23:27 AM »

...
In looking at 464(b), it almost looks like a stand your ground law, but farther down under 464(e)(2)  

The defendant knows that the necessity of using deadly force can be avoided with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that the defendant abstain from performing an act which the defendant is not legally obligated to perform.

Is this part the reason it is not a stand your ground law?
Yes.
Quote
And does this mean that I would have to give my wallet to someone if they demand it?
my interpretation is if the surrender of possessions can be done in "complete safety" which, in today's environment, is unlikely.
I'd like to hear more opinions on this subject.


Okay gang, time to try and clarify § 464, et seq.  The duty to retreat is absolute everywhere except for (1) your own home, and (2) your place of business so long as you are not the first aggressor. 

Now this is all going to be super simplified, but here goes:

In the context of the home defense (and place of business so long as you are not the first aggressor):
If you have an intruder in your home and you have a reasonable fear that you or someone else in your home will be killed or gravely harmed by the intruder, you may use deadly force to repel the anticipated attack.  That said, if you fire and hit the intruder, s/he falls, and it becomes apparent that you and others are no longer in danger, your continued use of force against the intruder is no longer merited.  Likewise, if you fire and miss, but the intruder begins running for the door, your continued use of force is no longer justified and continuing to use force at this point will create a whole world of problems for you.  In regard to the fear or apprehension that you or others will be gravely harmed or killed, it's a subjective standard that a jury will apply to the facts presented to them. 

In the context of self defense everywhere outside the home or place of business:
The same subjective fear of harm is applied, however, you now have the duty to retreat to contend with.  In the statute, the phrase that pays is "with complete safety".  Whether or not you were able to retreat in complete safety is a question for a jury at trial.  If you are suddenly threatened with a deadly weapon, very slight evidence is sufficient to justify a jury finding that there was no time or opportunity to retreat, and the assault apprehended so fierce and imminent as not to allow you to yield a step without manifest danger of life or great bodily harm, then you , in your defense may stand your ground and kill your assailant instantly.  See eg, Quillen v. State 110 A.2d 445 (Del. 1955).  Even though that standard was laid out in 1955, it's still the prevailing rule that applies to self defense.  Having said that, use of deadly force is only appropriate when faced with deadly force.  Basically, if you're in a situation where you are the victim of a strong arm (i.e. no weapons presented) robbery, you may not use deadly force.  The bottom line is that use of deadly force outside the home is always a last resort, not a first response. 

Something else to consider, if you are being tried for acting in self defense, odds are you got something wrong.  The Department of Justice has enormous leeway in deciding whether or not to charge an individual.  If the DOJ makes the decision to charge you with a crime for defending yourself, odds are that something doesn't add up to justifiable use of deadly force.  What I can tell you is that there are a lot of cases dealing with use of deadly force in self defense dating back as far as the late 1890's.  In each many of those, the case was brought by the State because there was a requirement that the person relying on the self defense justification meet the objective reasonable fear of grave bodily harm or death.  That standard has since been supplanted in 1983 by a subjective reasonable belief.  In the time since,  there's really not much on the books in regard to folks having used deadly force to act in self defense.  The most recent case that I found dates to 2015 where an individual used a pump shotgun to kill two men who were at a party with him.  The killing occurred while the two decedents were waiting for an elevator.  The defendant there had the shotgun, and upon seeing one of the decedents reach for his waistband, fired multiple shots killing both individuals.  The defendant there testified at trial that because of the reputation that the decedents had for violence, he feared for his safety and that of other party guests.  It is noteworthy that no weapons were found on the decedents.  See Spence v. State, 129 A.3d 212 (Del. 2015).

Another recent case, Stevenson v. State, 2013 WL6798899 involved a burglary.  In that case, it is actually one of the defendants who was shot.  The two defendants broke into the home of a married couple, struck the husband with a crowbar and threatened the wife with a gun on the deck.  When the husband had a safe window, he got to his gun, fired a number of shots, striking one of the defendants who was later arrested after going to Crozer Chester hospital for treatment of a gunshot wound.  The husband was not charged in that situation.  Furthermore, taking this case as an example, it is a good illustration of stopping once the threat has abated.  Here, once the defendants began to flee, shots stopped.  Had shots continued as the defendants were fleeing, I assume we would have a different outcome. 

Bottom line, use you best judgment.  Do as we all do, don't go looking for trouble, but IF trouble does happen to find you, act judiciously. 

Be safe out there.
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AudiQ
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« Reply #10 on: April 03, 2017, 12:38:10 PM »

Thanks, Marc, for translating legalese into everyday English, which helps us all understand our grave responsibilities as we carry, concealed or open. I'm guessing the acronym IANAL doesn't apply for you.
« Last Edit: April 03, 2017, 02:48:21 PM by AudiQ » Logged

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rikwick
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« Reply #11 on: April 03, 2017, 03:46:50 PM »

"Something else to consider, if you are being tried for acting in self defense, odds are you got something wrong.  The Department of Justice has enormous leeway in deciding whether or not to charge an individual.  If the DOJ makes the decision to charge you with a crime for defending yourself, odds are that something doesn't add up to justifiable use of deadly force."

I'd like to add that this has the potential of not being entirely true.  Politics is still alive and well and could play a part in whether we are charged or not.  George Zimmerman comes to mind. 
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MarcWinkman
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« Reply #12 on: April 03, 2017, 05:20:13 PM »

"Something else to consider, if you are being tried for acting in self defense, odds are you got something wrong.  The Department of Justice has enormous leeway in deciding whether or not to charge an individual.  If the DOJ makes the decision to charge you with a crime for defending yourself, odds are that something doesn't add up to justifiable use of deadly force."

I'd like to add that this has the potential of not being entirely true.  Politics is still alive and well and could play a part in whether we are charged or not.  George Zimmerman comes to mind. 

As much as I'd like to agree with the politics remark, that really isn't a factor in Delaware charging decisions as those decisions are made by senior deputy attorney generals who are not elected officials. The absence of myriad case law pertaining to deadly force self defense is a good litmus test. Aside from a couple of cases where the defendant raising the affirmative defense of self defense in the 2000's where the defendants were reaching anyway, there isn't anything seriously examining the law since the 80's when the State Supreme Court supplanted the objective fear of death or great bodily harm with a subjective fear of same. In effect, the circumstances for resorting to use of force has been relaxed slightly. That said, there is still the need to appropriately measure the amount of force needed to stop a threat as use of excessive force will place you up a certain creek without a paddle in a hurry.
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rikwick
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« Reply #13 on: April 04, 2017, 03:40:47 AM »

So far you are right,  but I know most of the Attorneys General personally, and all the Superior Court judges in NC.  There are many in this state who would like to see us more like NJ when it comes to gun rights.  It is certainly possible that should the right case come along to push that agenda, you can bet the DOJ will go for it. 
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MarcWinkman
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« Reply #14 on: April 04, 2017, 07:57:54 AM »

So far you are right,  but I know most of the Attorneys General personally, and all the Superior Court judges in NC.  There are many in this state who would like to see us more like NJ when it comes to gun rights.  It is certainly possible that should the right case come along to push that agenda, you can bet the DOJ will go for it. 

Possible, but not probable.  I worked at Delaware DOJ right out of law school and still work with the criminal division AG's, though in a different capacity.  Basically when an arrest is made, no one from the DOJ really looks at the case aside from rubber stamping the initial charges drawn up by the arresting officer.  A DAG really doesn't look over the case until after the preliminary hearing when the assigned DAG does his/her case intake with the chief investigating officer(s) and ultimately makes the decisions of what charges to seek indictment for.  This is why when you pull a Superior Court docket sheet in the top section where charges are listed, a good number of them will have a designation of NOLLE PROSEQUI next to them indicating that the State did not seek to indict those charges.  Basically when a person is arrested, the arresting officer is making the initial charging decision, and more times than not, they get a little over ambitious.  Cooler heads tend to prevail at the felony screening level at DOJ when the case intake is performed after the preliminary hearing. 
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