Tuesday, August 13, 2019

Think Before Shooting--Fleeing Suspects

Jason Moak--Suspected Burglar
Recently Concealed Nation ran an article that recounts a burglary incident and shooting that happened in German Township, Ohio. Richard Winegardner’s unoccupied home has been burglarized numerous times over the last few months; however, this time it happened while Winegardner was home and in the shower. You can click on these links to read the Concealed Nation article and news account.

Winegardner calls 911 while he is confronting the person in his house and simultaneously providing the dispatcher information. It seems that the suspected burglar (later identified as Jason Moak) at some point decided to flee and Winegardner apparently gave chase, ultimately firing numerous shots at Moak’s SUV. The news reports that police found the SUV with the back window shot out, bullet holes in the interior, and the rear bumper.

The Concealed Nation article closes with a comment that causes some concern. “While we never recommend shooting at a fleeing suspect, this particular case ended up working out. Had Winegardner shot Moak, well, that could have been a different ending for Winegardner.” It is not clear whether the comment implies that it was better to shoot at the fleeing Moak rather than using deadly force in the residence or whether it is fortunate that although Winegardner shot at Moak’s vehicle he did not hit him.

Ohio like many states has a form of a presumption of reasonableness if you use force or deadly force against someone who has unlawfully, or in some circumstances, unlawfully and forcibly entered an occupied habitation (and in some states) vehicle, or business. Under Ohio law* there is a presumption that a defender acted in self-defense or defense of another if he used deadly force against another if the person against whom the defensive force was used had unlawfully entered (or was in the process of unlawfully entering) the residence or vehicle that the defender occupied. Further, Ohio law does not require the defender to retreat before using force in self-defense, defense of another, or defense of his residence.

Ohio law does not say anything about chasing someone who is no longer in the occupied residence, who is in fact fleeing from the scene, and is not posing a deadly threat. I confess surprise that prosecutors did not charge Winegardner criminally for shooting at Moak’s vehicle.

Knowing your state’s specific laws associated with these circumstances can be very important. Texas law for example presumes you acted reasonably and justifiably if you use force or deadly force to defend yourself or another innocent against an intruder who unlawfully and with force enters your occupied habitation (home or residence), vehicle, or place of business or employment. 

Texas law requires meeting these two provisions to give rise to this important legal presumption. Someone unlawfully entering your occupied residence through an unlocked front door would not meet the use of force provision and therefore may not enjoy the presumption of reasonableness. Of course this does not mean that you could not argue self-defense under the totality of the circumstances if someone illegally entered through an unlocked door and subsequently presented a threat of unlawful deadly force.

Many people find themselves in trouble when an incident evolves from one in which deadly force was justified into one where the perpetrator is fleeing and the defender is now the aggressor. It is clear that some people cannot control what is apparently an irresistible urge to chase after and shoot at someone who is fleeing from a confrontation. A quick Internet search for “chases robber” or “chases burglar” shows numerous instances. Although some states have fleeing felon provisions in the law, using deadly force under these circumstances can potentially be very problematic for how and where you live the rest of your life.

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* Ohio 2901.05 Burden of proof - reasonable doubt - self-defense: Section B (2) A person is presumed to have acted in self-defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.

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