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re: Let's keep an eye on this one.....
Posted on 1/28/11 at 1:35 pm to USMCTiger03
Posted on 1/28/11 at 1:35 pm to USMCTiger03
What determines reasonable and apparent necessary force in this situation from a legal standpoint?
Posted on 1/28/11 at 2:11 pm to 4X4DEMON
quote:
What determines reasonable and apparent necessary force in this situation from a legal standpoint?
LSA-R.S. 14:20 gives the following presumptions which tends to answer your question:
quote:
Justifiable homicide.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
Not a lot of caselaw on it, but I did find:
"Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary, for purposes of claim of self-defense, are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant's knowledge of the assailant's bad character." State v. Mincey, App. 3 Cir.2009, 2008-1315 (La.App. 3 Cir. 6/3/09), 2009 WL 1531570.
I'd argue that "the excitement and confusion of the situation" would nearly always apply in a home/property invasion scenario, and how could they prove otherwise? Also "the possibility of using force or violence short of killing" is a pretty vague term, but in the case of the OP, appears clearly met by the multiple warnings given.
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