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Any time the subject of the imputed presumption of reasonableness is discussed in the statute or when I have mentioned it.....and I have explained this many times before....it means that, assuming that you meet the disqualification, your belief WILL NOT be presumed as reasonable. This is not to say that it IS NOT reasonable. It is to say that it will not be PRESUMED reasonable.

You will have to defend your belief as reasonable at trial. Maybe the jury will believe you, maybe they won't.

When the statute states that the finder of fact can not use you failure to retreat, it is referring to subsection a which is about the determination of reasonable belief.

Ok. I've given my reasoning. I want to hear an answer to this....

If you are present at a location where you don't belong, or if you are committing a crime, or if you are provoking the guy, as to duty to retreat....

a) you do not have to retreat before using deadly force? or
b) you have to retreat before using deadly force?

which one?

tex

Here is my point

The rule states that if you do not do a, b, and c then you do not have to do d.

So when do you have to do d? And what can we deduce from the previous statement?

Whatever triggers d is not a, b, or c.

Something either triggers d or d can not be triggered by anything. What we do know is that whatever the answer d is not triggered by a, b, or c.

If nothing can trigger d then there is no need for this part of the statute...a simple "there is no requirement to do d" will do. Therefore we can also now deduce that there IS a need for that part of the statute. In other words there IS something that triggers a need to do d.

The context of that part of the statute is to tell us what doesn't trigger d. The only conclusion we can arrive at is that were it not for the triggers of a, b, or c that the need to do d is implied.

We have a rule in aviation that says I can't fly faster then 250 knots below 10000 ft. There is no rule saying that there is no speed limit above 10000 ft. I can infer that I am not restricted above that.

There is another rule that states that of an aircraft is holding on the localizer, on the protected procedure turn side of the localizer, at the intermediate or final approach fix, at or above the segment altitude...I do not have to issue an altitude with the clearance. That is interpreted to mean that I must issue the altitude otherwise.

The purpose of this part of the statute is meaningless if there is not a clear implication of the inverse of the rule.

One doesn't have to retreat BEFORE using deadly force if yada yards yada.

Come on Scott....

tex

ScottDLS wrote:

...that one IS REQUIRED to retreat before using deadly force if one is committing one of the listed conditions, namely, criminality, provocation, and trespass and one does not retreat BEFORE using the deadly force. This is in keeping with the centuries old doctrine of duty to retreat and its associated castle doctrine. Many states have nullified the retreat requirement by providing the enumerated nullifying conditions listed in this statute. Of course, in addition, your belief of immediate necessity will NOT be presumed reasonable by virtue of the trespass.

There is no centuries old doctrine in common law or case law, that one has the "DUTY TO RETREAT" in the face of an attack, prior to responding with deadly force. There is some case law that supports a duty to retreat, but the circumstances are not necessarily those that are specified in the statute. The statute states when there is affirmatively NO DUTY TO RETREAT. Only another statute, or case law relating to the specific circumstances (trespass by LTC) would specifically establish this duty. So you should be very careful when contemplating deadly force when violating 30.06, but there is currently no DUTY TO RETREAT. Perhaps a judge could find one...

I just watched a 2 hour NOVA or some show that was precisely on the history of the doctrine concerning retreat.

Yes. There has been a centuries old doctrine concerning this.

We can all read the words of the statute. One must not be trespassing, not be provoking, and not engaged in criminality If one does not have a duty to retreat before using deadly force.

tex

You are correct. You don't HAVE to retreat. You can stand there and let him beat you to death.

One can infer from the inverse of the statement...

"A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat BEFORE using deadly force as described by this section."

...that one IS REQUIRED to retreat BEFORE using deadly force if one is committing one of the listed conditions, namely, criminality, provocation, and trespass. This is in keeping with the centuries old doctrine of duty to retreat and its associated castle doctrine. Many states have nullified the retreat requirement by providing the enumerated nullifying conditions listed in this statute. Of course, in addition, your belief of immediate necessity will NOT be automatically presumed reasonable by virtue of the trespass.

You must retreat and return to a condition of not engaging in criminality, not provoking and not being present at a location where you have no right to be before you are "justified" in using deadly force. The test is simple, just before pulling the trigger pause the frame and ask if, at that instant, one is trespassing, provoking or, engaged in criminal activity. If the answer is yes you must retreat BEFORE pulling the trigger. So you retreat and raise the gun to fire...is that person trespassing, provoking or engage in criminal activity. Yes...still...so he retreats still. This test continues to fail until, at some point, the person can state that he is not trespassing, not provoking and not engaged in criminal activity. At that point, and not before, can that person be justified in using deadly force WITHOUT RETREATING (assuming he of otherwise justified under 9.31).

As to the trespassing issue...it's hard to imagine how one would make a defense to a jury that one was justified in killing someone in self defense when, by all legal standards, one could not even be legally present at the location in the first place!!! And, had one respected the trespass prohibition, one would not have been in the scenario requiring self defense in the first place!

THAT'S why one should not carry past a 30.06 or 30.07 sign! Your ability to defend yourself without ending up with a manslaughter charge is greatly if not completely reduced if you do not retreat BEFORE (there's that word again) using deadly force.

tex

Ruark wrote:This doesn't answer the question, but a couple of points:

1. Carrying past an 06 sign isn't "trespassing." It's "carrying past an 06 sign."

2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.

Incorrect. The moment you pass a compliant, properly posted sign, you are committing a Class C Criminal Trespass, BY DEFINITION. Do not let the fact that refusing to thereafter leave after subsequently being told to leave thus elevating it to a Class A Criminal Trespass, BY DEFINITION, confuse you into believing that committing the first trespass by walking past the sign is a gimme. You do not get two chances. Walk past a sign and at the least you are a Class C criminal and then refuse to leave when asked and you become a Class A criminal.

And, being in a state of committing a criminal offense, you have to defend yourself resulting in shooting someone, you will not receive a legal presumption that your belief that deadly force was immediaitely necessary was "reasonable" and you will have to defend and justify that element at trial which could result in 20 years for manslaughter rather than acquittal.

In addition, since you are present at a location where you have no right to be, by virtue of the criminal trespass, you do not have the right to not retreat. You must retreat before engaging in deadly self-defense. 9.32c

tex