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9/22/2017 12:11:25 AM
Posted: 6/14/2003 8:17:59 PM EDT
Can anyone tell me what section of NYS laws deal with the question of when the use of deadly force is justified? Or maybe a link to the code?

I remember reading it several months ago, but don't remember where. From what I remember, you're allowed to shoot if someone is inside your home at night, or threatening you or another person with deadly force, or if you catch someone in the act of arson, but I'd like to re-read the specifics from the source.

So what section of NY Penal Code is it? Thanks.

-Nick Viejo.
Link Posted: 6/14/2003 8:57:04 PM EDT
Sorry man, its at my office. Aimless can probably help, he is a NY lawyer.

From what I recall you are under an obligation to retreat if at all possible, ecept from your own home. If you are threatened, but can reasonably escape the threat, deadly force is not authorized. You may use deadly force in defense of somebody else's life, to stop a rape in progress and arson.

This is not the definitive word as I am conveying it as I recall. If Aimless doesn;t get it for you, I will on Monday.
Link Posted: 6/15/2003 6:58:11 AM EDT
[Last Edit: 6/15/2003 6:58:48 AM EDT by rkbar15]
Link Posted: 6/15/2003 7:17:44 AM EDT
Link Posted: 6/15/2003 7:43:03 AM EDT
That link to the Suffolk County book is great. That's one of the best written pieces I've ever seen on NYS pistol licenses.
Link Posted: 6/16/2003 7:14:37 AM EDT
Thanks for the replies. I had a late night "suspicious visitor" the other day and was wondering where I stood as far as the law goes.

He turned out to be harmless, but I considered it a wake-up call to really educate myself better as far as the laws of this wacky state.

The way the law is written, it seems as if you're not allowed to use "deadly physical force" unless the other guy does it first, even if you're in your own home.

So what happens if you hear the crash in the middle of the night and someone is stealing all your stuff? Are you supposed to verify that he's armed before you get out your own weapons?
Link Posted: 6/16/2003 7:23:37 AM EDT


So what happens if you hear the crash in the middle of the night and someone is stealing all your stuff? Are you supposed to verify that he's armed before you get out your own weapons?



I guess that depends on .."


c) He reasonably believes that such other person is
committing or attempting to commit a burglary, and the
circumstances are such that the use of deadly physical force is
authorized by subdivision three of section 35.20.

Link Posted: 6/16/2003 3:12:47 PM EDT
[Last Edit: 6/16/2003 3:13:41 PM EDT by rkbar15]

Originally Posted By N_Viejo:
The way the law is written, it seems as if you're not allowed to use "deadly physical force" unless the other guy does it first, even if you're in your own home.



That is not correct. You need to print out all of Article 35. It spells out in detail when you are authorized to use DPF in NYS. The key word here is "reasonably believes."

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 reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.
Link Posted: 6/16/2003 3:19:53 PM EDT
I my licensing course the sheriff's deputy went so far as to say that someone forcing their way into your home in the middle of the night is reasonably considered to be a potential threat to your life. He also said privately to make sure you kill the intruder if you are going to use force.

My view on this is if you are in my home under the cover of darkness I consider you there to take my life. Better to be judged by twelve than carried by six...
Link Posted: 6/16/2003 3:47:53 PM EDT
Hmmm. For a while I kept a shotgun loaded with less than lethal buckshot and beanbags as my home defense weapon. I no longer keep the shotgun, but I'm wondering about the advisability of using less than lethal ammo -- better to kill the guy probably.
Link Posted: 6/16/2003 6:18:56 PM EDT

Originally Posted By rkbar15:

Originally Posted By N_Viejo:
The way the law is written, it seems as if you're not allowed to use "deadly physical force" unless the other guy does it first, even if you're in your own home.



That is not correct. You need to print out all of Article 35. It spells out in detail when you are authorized to use DPF in NYS. The key word here is "reasonably believes."

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 reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.



That's tricky, rkbar. The key word is "burglary" but in the suffolk county handgun permit handbook, they make the distinction that if some guy breaks into your house and starts stealing things, he is commiting larceny. If he uses physical force to carry out his larceny, then it becomes burglary.

This fuckin shit is too complicated and has too many contingents on it. I guess it really boils down to what a jury of your peers would say.
Link Posted: 6/17/2003 11:44:14 AM EDT
The key is that there is NO duty to retreat in your home as there is in public (as long as you're not the initial aggressor, and even then it's not cut and dry). There is no day time/night time distinction. An intruder can harm you or your family just as easily in the day as he/she can at night and that's why the law is written as it is. This comes from the "A man's home is his castle" school of thought, and one I completely agree with. If you're in someone's home without permission they can and should reasonably believe you are there to do them or their family harm. I heard that directly from the mouth of a former assistant county DA who currently works for the NYS Attorney General's Office Criminal Division, who has been involved with many deadly force cases in NY over the years (LE and non-LE). A State Police inspector who was present at the time agreed with the above.

I don't remember how clear this was made in my pistol permit course, but I think they pretty much skirted the issue if I remember correctly. I hate to say it but my course was taught by people who didn't know their asses from their elbows, on several topics. I think they basically said that "guns were for hunting only and if someone tries to kill you or your family, put down your useless AR-15/Glock/shotgun, call 911 and hope the perp is in a good mood", or some crap to that effect. I remember them specifically saying guns are no good for defense. Great bunch to teach new pistol owners, eh?
Link Posted: 6/17/2003 4:12:27 PM EDT

Originally Posted By N_Viejo:
That's tricky, rkbar. The key word is "burglary" but in the suffolk county handgun permit handbook, they make the distinction that if some guy breaks into your house and starts stealing things, he is commiting larceny. If he uses physical force to carry out his larceny, then it becomes burglary.

This fuckin shit is too complicated and has too many contingents on it. I guess it really boils down to what a jury of your peers would say.



N_Viejo: You need to use the legal definitions as defined in the NYS PL for burglary, robbery, larceny etc. and not the meaning that is used in everyday language for these terms when trying to interpret Article 35.

PL Sec. 35.20 3. authorizes you to use DPF during the commission of a burglary of a "dwelling" (your home). No stealing of property (larceny) or forcible stealing (robbery) or any other crime needs to take place

As BMANSAR15 said "A man's home is his castle" and you have no duty to retreat in your home. Even though you are authorized does not mean that you must or should use DPF however. You need to use your best judgment under the circumstances. You will only have a split second to act so have a plan of action in mind before an incident occurs.

Link Posted: 6/17/2003 4:27:33 PM EDT
Link Posted: 6/17/2003 4:50:36 PM EDT
Aimless, that is incorrect. Any judge may change your permit at any time. Can't remember the case, but there was an individual who had an unrestricted carry permit in Albany and it ended up in front of a different judge than the one who issued it for an amendment. Not only did that judge change it to a restricted, he told the person he could only keep a certain number of guns and he had to dispose of the others because the judge felt it was too many. That case was appealed and the judge's actions stood.
Link Posted: 6/17/2003 5:28:44 PM EDT
IN THE MATTER OF JERALD O'BRIEN, RESPONDENT, v. THOMAS W. KEEGAN, AS JUSTICE OF THE SUPREME COURT, APPELLANT.
87 N.Y.2d 436, 663 N.E.2d 316, 639 N.Y.S.2d 1004 (1996).
February 15, 1996
3 No. 15[1996 NY Int. 26]
Decided February 15, 1996

www.law.cornell.edu/ny/ctap/I96_0026.htm#muscat_highlighter_first_match

Link Posted: 6/17/2003 5:37:35 PM EDT
Link Posted: 6/20/2003 5:26:33 PM EDT
What if this is not your home but your place of business... the bad guy is holding a gun, is pointed to the sales clerk and demanding the money from the registers.
It happened to us 2 years ago in one of my stores and I often think about it, I was not at the place when it happened (Thank God) but what should I have done if I was present?
Every time I think about it, my first answer is to distract him to make him move the gun from the girl and shoot him.
Or just give him the money and HOPE that he is not going to shoot. But then, what if he does????

Awww I feel another headache coming.
Link Posted: 6/20/2003 5:49:34 PM EDT
Bear, you are not under an obligation to retreat if you are defending another. Situation, assailant has gun pointed and your clerk is cornered. You have an exit aveneue. You may use deadly force to protect your clerk's life, you are not under an obligation to retreat.
Link Posted: 6/20/2003 6:33:14 PM EDT
... Yeah, like I'm going to "review the law" if I'm attacked.
Link Posted: 6/20/2003 6:45:46 PM EDT
What's to review Winston? You should know the law as it applies in advance. I know when I am authorized to use deadly force by law.
Link Posted: 6/20/2003 6:55:29 PM EDT

Originally Posted By HiramRanger:
Bear, you are not under an obligation to retreat if you are defending another. Situation, assailant has gun pointed and your clerk is cornered. You have an exit aveneue. You may use deadly force to protect your clerk's life, you are not under an obligation to retreat.



That has been a reocurring nightmare of mine, and everytime I dream about it it has 3 different endings,
1.- The guy takes the money and I deal with the insurance company.
2.- I don't do anything, the guy panics and shoots someone.
3.- I kill the bad guy.
In a way I am glad I was not there and it worked out ok, I would have felt obligated to defend the clerk and who knows what the end result would have been.
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