I'm reading this case from 1942/48 [Vaughn v. Jonas, 31 Cal. 2d 586, if you're really curious; it's not very interesting.]. In March 1942, a barkeeper and a patron exchange heated words. Barkeeper takes his gun from a drawer behind the bar, puts it in his belt. Closing time. Patron walks out towards the car with his friends. They're still making a bunch of noise. Barkeeper goes to check what's up. Patron walks toward barkeeper, picks up a very large rock, motions to throw it at barkeeper. Barkeeper shoots at patron, hits him in the abdomen. (The barkeeper didn't even know he hit the patron until the sheriff arrived several hours later.) Patron sues bartender. Bartender defends on a theory of self-defense. Bartender loses, big time. He's found to have acted with malice and/or oppression.
In reviewing the record for evidence of malice or oppression, one of the things the court hit upon is that the barkeeper shot at the trunk at short range, rather than a limb. I've never even touched a gun, and even I know, if you're going to shoot, you shoot to kill, not to scare or wound, unless you're an expert marksman with time to plan your shot. In a contemporary case, especially in the San Francisco Bay Area where so few law-abiding people are familiar with guns (and only very law-abiding people serve on juries), there'd be expert testimony on this rule, and the reasons. But not in the 1940s. So, were the 1940s judges wrong, even for the conventional wisdom of the '40s? or has the shoot-to-kill rule of thumb developed more recently?
It was a civil suit. The burden of proof was on the patron to prove unlawful touching/injury by a preponderance of the evidence, and malice or oppression by clear and convincing evidence. "Beyond a reasonable doubt" and other burdens of proof familiar from criminal cases do not apply.
Pretty sure bi-[forget the word] paralysis would stop a drunk guy with just a rock.
Very interesting, Bauer. I've done informal study of how the US got very scared of violent crime in the post-War years, but I haven't studied how that changed our gun laws. Except, I don't see it as changing our gun laws. Not directly. The only statutory criminal law provisions about guns I know of enhance the punishment or kind of crime if there's a gun; they show a kind of taboo fear of guns. Sounds like what you're talking about was done through common law. Judges and juries got better informed. And this case is an example. In 1942/48, the justices thought you could aim for a foot. Now, the defense would call Quinn to say that's silly, if the defendant really feared for his person (and that of his wife, inside behind him).
Rebakah, you are right. Let me say alos that I do not tetify as an expert unless I am truly and expert 'experience wise' in exactly what the case turns on. I am very carefull about that too.
Sometimes a DA is susopect of client becasue the attacker was also shot in the back for example.But the fact is person shot frontally often spins around thus taking allmost instant folow up shots in the back. Also a person qwinging with an axe or heavy blunt instrument and miises the defender often spins himself in that attack attempt so the bullets hit the attacker in the back and side.
Perronaaly I wonlt hesitate to shot and kill if need be at all, yet I am personnaly repelled by violence in the most fundamental sense as i have expereinced it for real. It is really quite disturbing and gross in the extreme.It just the ony opiton at times, but then you have done it without relaizing it too. People have hard time understanding that I feel as they have no common frame of reference really as a rule.
Again thats where jury selction come sin for defense and the DA, the decision is near made then once though the jury is picked and before evidence is even presented.
JUroes are not impartial or they would not likley get put on the jury in the first place.In genral they feel "he must have done something or he would not be here on trial'. This is why the defense concentrates alot on was the defendant charged correctly, that si with the right level of crime.
Let me tell you good people the very first personooyu must convince of oyur inncoense is your own defense attorney. This is because many defense attorneys have never represented an innocent person before.
They thus use tactics to 'muddle evidence', 'cast doubt on whitness' and cloud the picture with extranious ideas in a jurie's mind as they are not used to thinking in terms of actually trying to prove a clent's innocense.
Interesting information on this thread. Since this happened in California I thought I'd chime in as a resident and CCW holder. The legal mentality here is "Shoot to Stop". That is what's taught in CCW courses. Whether that's good, bad, right, or wrong is a discussion for another thread but that's just the way it is here. If it can be shown that you shot with intent to kill, you are up the fecal tributary with no means of locomotion. You shoot to stop, and if the assailant dies while waiting for medical care to arrive, that's his problem, not yours. Aim for center mass. In most cases of a shot to center mass with an acceptable self defense caliber (Yes. In CA you can be charged with use of excessive force for using a larger caliber than "necessary". It actually happened.) the assailant will survive. Also, even if you are cleared of any criminal charges, this is still the sue-happy state of CA. You can bet your sweet ass the assailant, or his family if he died, will press civil charges for damages or some other nonsense. So be prepared to spend a fortune in legal costs even if you did justifiably defend yourself.
Agreed. But some of us are stuck here.
Now I return to my primary area of practice: What does owning a gun do to your homeowner's insurance rates? [Or is there an exclusion in homeowner's insurance for gun-related accidents? I could have ignored it.] It would seem there's a statistical increase in the likelihood of having to defend a major claim when there's a gun in the household.
I've never been asked.
I've never been asked either. I would have to question the legality of something like that. Might as well raise the rates of every household with a baseball bat and a butcher knife too if they're going to put a tax on defending oneself.
I was only asked in regards to how much I wanted to insure them for(ie replacement value)
Fascinating. That means that the actuaries, like the American public, find the issue in equipoise. A household with guns is more likely to have to defend a serious personal injury claim. You have more ways of causing serious injury than us yuppies. [Outside a car accident, my worry for a personal injury claim is tripping on my briefcase strap on the subway platform and accidentally pushing someone onto the tracks.]
BUT, so the arguments go, you're less likely to experience a property loss.
I wonder how the actuarial tables would work out if we separate property and liability insurance. Obviously gun-related businesses have high insurance rates. But I doubt it's worth it to crunch the numbers for the personal liability market.
Thanks for indulging this insurance law nerd.