Posted: 2/11/2015 2:03:53 PM EDT
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So I was watching a youtube video of a car chase in LA today, and the perp who carjacked multiple cars on the highway was doing so with a gun. That got me thinking about the use of force laws here in Nebraska. I've looked up some Nebraska codes to try and answer my own question but the way some of those read is confusing.
In Chapter 28-1409 paragraph 4 it states "The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat," and then goes on to say in subparagraph b that deadily force is not justified if "The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take," But in Chapter 28-1411 paragraph 1it says "Subject to the provisions of this section and of section 28-1414, the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary: (a) To prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property; Provided, that such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts;" MY question is that if you carry a concealed weapon, and someone tries to carjack you with a gun saying get out or I'll shoot you, is that reasonable enough justification to shoot first and defend yourself as stated in 28-1411 paragraph (1) subparagraph (a)? Or that shooting first to defend yourself is NOT justified as stated in 28-1409 paragraph (4) subparagraph (b)? |
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Only you can make that call...
Basically chapter 28-1409 (Par.4 Sub-Par.B) is briefly explaining the "Stand Your Ground Law" and how it doesn't apply in Nebraska. In court, it always boils down to what ones mind set was during these crimes or in such scenarios like this. The prosecutor could argue that you were NOT in a life or death situation or at risk of serious injury and you were given the opportunity to escape and surrender over property that could potentially prevent harm to yourself or others but you chose not to. However, it's very hard to prove that you THOUGHT you could escape unharmed. You could argue that you were in fear of your life because he had you at gun point with his finger on the trigger causing you to believe he was going to shoot. Remember, the prosecutor must prove you had the opportunity AND the belief you could escape unharmed... You do not need to prove anything. |
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but 28-1411 goes on to say that it is justifiable if i believe deadily force is immediately necessary to prevent or terminate an unlawful carrying away of tangible, movable property. which to me would include a vehicle, yes? and also, a gun in my face, a finger on the trigger, and the perp yelling death threats would make one seem that they are in an immediate life/death situation.
but now i have another question. could a bystander who witnesses a carjacking with gun, who hears the perp yelling death threats intervine by shooting? b/c according to how I am reading this... i have the right of self defense of others who i think are in immediate danger of death or serious bodily harm.. |
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either way it doesn't matter b/c it goes on to state in sub para (b) "The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either:
(i) Has employed or threatened deadly force against or in the presence of the actor;" the felonious theft being the carjacking and the threatening of deadly force being the perp obviously yelling such threats. |
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This subject is one of the many being addressed by the NFOA in the Unicameral this year, and has a hearing set for Friday February 27, 2015 in Judiciary Committee Room 1113 at 1:30pm.
Sen. Kintner LB612 - Change provisions relating to force in self-protection http://nebraskalegislature.gov/FloorDocs/104/PDF/Intro/LB612.pdf A BILL FOR AN ACT relating to crimes and offenses; to amend section 2 28-1409, Reissue Revised Statutes of Nebraska; to change provisions 3 relating to use of force in self-protection; and to repeal the original section.4 5 Be it enacted by the people of the State of Nebraska, LB612 2015 -1- 1 Section 1. Section 28-1409, Reissue Revised Statutes of Nebraska, is 2 amended to read: 3 28-1409 (1) Subject to the provisions of this section and of section 4 28-1414, the use of force upon or toward another person is justifiable 5 when the actor believes that such force is immediately necessary for the 6 purpose of protecting himself against the use of unlawful force by such 7 other person on the present occasion. 8 (2) The use of such force is not justifiable under this section to 9 resist an arrest which the actor knows is being made by a peace officer, 10 although the arrest is unlawful. 11 (3) The use of such force is not justifiable under this section to 12 resist force used by the occupier or possessor of property or by another 13 person on his behalf, where the actor knows that the person using the 14 force is doing so under a claim of right to protect the property, except 15 that this limitation shall not apply if: 16 (a) The actor is a public officer acting in the performance of his 17 duties or a person lawfully assisting him therein or a person making or 18 assisting in a lawful arrest; 19 (b) The actor has been unlawfully dispossessed of the property and 20 is making a reentry or recapture justified by section 28-1411; or 21 (c) The actor believes that such force is necessary to protect 22 himself against death or serious bodily harm. 23 (4)(a) The use of deadly force is shall not be justifiable under 24 this section if: 25 (i) The unless the actor believes that such force is necessary to 26 protect himself against death, serious bodily harm, robbery, arson, 27 burglary, kidnapping, or sexual intercourse compelled by force or 28 threat; , nor is it 29 (ii) The person against whom such force is used, at the time such 30 force is used, is unlawfully entering, by force or stealth, or has 31 unlawfully entered, by force or stealth, and remains within any dwelling, -2- 1 place of business or employment, or occupied vehicle of the actor using 2 such force; 3 (iii) The person against whom such force is used, at the time such 4 force is used, is unlawfully removing or attempting to unlawfully remove 5 another person against the other person's will from a dwelling, a place 6 of business or employment, or an occupied vehicle of the actor using 7 force; or 8 (iv) The actor using such force knows or has reason to believe that 9 any of the actions set forth in subdivision (4)(a) of this section are 10 occurring. 11 (b) The use of deadly force is not justifiable if: 12 (i) The actor using such force is engaged in a criminal offense, is 13 attempting to escape from the scene of a criminal offense that the actor 14 has committed, or is using the dwelling, place of business or employment, 15 or occupied vehicle to further a criminal offense; 16 (ii) The actor is seeking to remove a child or grandchild or is 17 otherwise in the lawful custody or under the lawful guardianship of the 18 person against whom such force is used; 19 (iii) The person against whom such force is used is a peace officer 20 who has entered or is attempting to enter a dwelling, place of business 21 or employment, or occupied vehicle in the lawful performance of the peace 22 officer's official duties, and the actor knows or reasonably should know 23 that the person who has entered or is attempting to enter is a peace 24 officer; 25 (iv) The person against whom such force is used has the right to be 26 in, or is a lawful resident of, the dwelling, place of business or 27 employment, or occupied vehicle of the actor using such force, and a 28 protective or no-contact order is not in effect against the person 29 against whom such force is used; or 30 (v a) The actor, with the purpose of causing death or serious bodily 31 harm, provoked the use of force against himself in the same encounter. ; -3- 1 or 2 (b) The actor knows that he can avoid the necessity of using such 3 force with complete safety by retreating or by surrendering possession of 4 a thing to a person asserting a claim of right thereto or by complying 5 with a demand that he abstain from any action which he has no duty to 6 take, except that: 7 (5 i) The actor shall not be obliged to retreat from any place where 8 the actor is lawfully present or by surrendering possession of a thing to 9 a person asserting a claim of right thereto or by complying with a demand 10 that he abstain from any action which he has no duty to take before using 11 force, including deadly force, his dwelling or place of work, unless he 12 is engaged in illegal activity, was the initial aggressor, or is assailed 13 in his place of work by another person whose place of work the actor 14 knows it to be. A finder of fact shall not be permitted to consider the 15 possibility of retreat as a factor in determining whether or not the 16 actor who used force reasonably believed that the force was necessary to 17 prevent injury, loss, or risk to life or safety. ; and 18 (6 ii) A public officer justified in using force in the performance 19 of his duties or a person justified in using force in his assistance or a 20 person justified in using force in making an arrest or preventing an 21 escape shall not be obliged to desist from efforts to perform such duty, 22 effect such arrest or prevent such escape because of resistance or 23 threatened resistance by or on behalf of the person against whom such 24 action is directed. 25 (7 5) Except as required by subsections (3) and (4) of this section, 26 a person employing protective force may estimate the necessity thereof 27 under the circumstances as he believes them to be when the force is used, 28 without retreating, surrendering possession, doing any other act which he 29 has no legal duty to do, or abstaining from any lawful action. 30 (8 ) The actor may be wrong in the estimation of the danger or the 31 force necessary to repel the danger as long as there is a reasonable -4- 1 basis for the belief of the actor and the actor acts reasonably in the 2 response to that belief. 3 (9 6) The justification afforded by this section extends to the use 4 of confinement as protective force only if the actor takes all reasonable 5 measures to terminate the confinement as soon as he knows that he safely 6 can do so, unless the person confined has been arrested on a charge of 7 crime. 8 Sec. 2. Original section 28-1409, Reissue Revised Statutes of Nebraska, is repealed.9 |
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Quoted:
but 28-1411 goes on to say that it is justifiable if i believe deadily force is immediately necessary to prevent or terminate an unlawful carrying away of tangible, movable property. which to me would include a vehicle, yes? and also, a gun in my face, a finger on the trigger, and the perp yelling death threats would make one seem that they are in an immediate life/death situation. but now i have another question. could a bystander who witnesses a carjacking with gun, who hears the perp yelling death threats intervine by shooting? b/c according to how I am reading this... i have the right of self defense of others who i think are in immediate danger of death or serious bodily harm.. I'll try to be more clear; if someone is robbing your property (car considered property), you can not use deadly force just for that reason alone. That part is clear and we both know it, regardless of what you've read in that section. However, if someone has you at gun-point, that COULD be justifiable means to use deadly force. I'm not saying it is or it is not. Only you can make that call during the crime. There's no other way I can put that and there's no right answer. I'm a law student and can't just advise you that it's OK or not to use deadly force, nor is it right for someone else to, including the state of Nebraska, when your life is being threatened in that manner. The law is filled with gray areas and people try to clear those areas up all the time. Maybe they purposely wanted it to be unclear so they won't be liable in the end? It's not unlawful to intervene to prevent death or serious harm to others if the location of the crime is within your vicinity and current time. |
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Quoted:
I'll try to be more clear; if someone is robbing your property (car considered property), you can not use deadly force just for that reason alone. That part is clear and we both know it, regardless of what you've read in that section. However, if someone has you at gun-point, that COULD be justifiable means to use deadly force. I'm a retired LEO and realize my previous rules of engagement are much different since I'm retired, but, I think you maybe misspoke? Did you mean someone is burglarizing your car ( a property crime) or did you actually mean robbing? Quite a different thing, as I'm sure a law student should know. Without massive mental contortions, I can only figure you mean a person (you) are in the car and being carjacked? (Robbed). I can't imagine a weapon based bad guy taking your vehicle, armed, with you in it, not being fully covered by the statute. Maybe as a civilian now I'm wrong? I don't think so though. BTW join NFOA it's helps us 2A folks. |