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Discussion Starter · #1 ·
I see from packing.org that Arizona's legislature has just passed a law that the burden of proof in self-defense situations must lie with the prosecution. In other words, that a person claiming self-defense doesn't have to prove that it was self-defense, the prosecution must prove that it was NOT self-defense.

Does anyone know what Utah law is on that subject?
 

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Utah law holds that the claim of a person of "self defense" when they harm another is an "affirmative defense". Which means that you must show that it was self defense rather than an illegal act on your part. (Kind of like, guilty until proven innocent). Think about it, you call the cops and say I just shot someone who was trying to rob me. OK, IF they prosecute you your stance must come from the fact that you admitted to shooting someone. That act is illegal, except in the case of "self defense" which is what you have to show.

Now the burden of proof on your end is not the same as proof beyond a reasonable doubt that it was self defense, rather you must just show that you were in imminent and immediate fear of life or limb.

All in all it works about basically the same as in Arizona, they have just codified it.
 

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Discussion Starter · #4 ·
If I understand correctly, as the Utah law stands, the burden of proof for self-defense is on the defendant. And what protection from civil suits we have in Utah law only applies in our residence.

Also, if I understand correctly, the self-defense law in Florida would place the burden of proof on the prosecution to show a situation was NOT self-defense, bans civil suits except where criminal liability is proven, and the protection of that law applies in any place we have a right to be.

As things stand in Utah, it seems that we have to prove we are NOT guilty of a crime, by us proving our self-defense. Isn't that backwards from the way it should be? Do I understand this correctly? I think this is a problem that the legislature needs to address.
 

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I recalled reading something about the presumption of innocence and did some quick research. It appears that you are correct:

76-2-407. Deadly force in defense of persons on real property.
(1) A person is justified in using force intended or likely to cause death or serious bodily injury against another in his defense of persons on real property other than his habitation if:
(a) he is in lawful possession of the real property;
(b) he reasonably believes that the force is necessary to prevent or terminate the other person's trespass onto the real property;
(c) the trespass is made or attempted by use of force or in a violent and tumultuous manner; and
(d) (i) the person reasonably believes that the trespass is attempted or made for the purpose of committing violence against any person on the real property and he reasonably believes that the force is necessary to prevent personal violence; or
(ii) the person reasonably believes that the trespass is made or attempted for the purpose of committing a forcible felony as defined in Section 76-2-402 that poses imminent peril of death or serious bodily injury to a person on the real property and that the force is necessary to prevent the commission of that forcible felony.
(2) The person using deadly force in defense of persons on real property under Subsection (1) is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the trespass or attempted trespass is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or for the purpose of committing a forcible felony.


I think it is interesting that this verbage is including in Defense of Real Property (and also Defense of Habitation 76-2-405), but not in Force in Defense of Person (76-2-402).

However, in chapter five (76-5) I did find this as a defense in Offenses Against the Person:

76-5-305. Defenses.
It is a defense under this part that:
(1) the actor was acting under a reasonable belief that:
(a) the conduct was necessary to protect any person from imminent bodily injury or death; or
(b) the detention or restraint was authorized by law; or
(2) the alleged victim is younger than 18 years of age or is mentally incompetent, and the actor was acting under a reasonable belief that the custodian, guardian, legal guardian, custodial parent, or person acting in loco parentis to the victim would, if present, have consented to the actor's conduct.


However it doesn't seem to carry the same weight of presumption of self-defense. It would be nice to see self-defense spelled out to be presumed innocent in all regards. I am no lawyer and have mis-interpreted legal text before, so I stand ready to be corrected by Clark or another knowledgable person. I agree that a clear presumption of innocence in a self-defense situation would be nice although I have always wanted to believe in the innocent until proven guilty clause. :wink:
 

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Innocent until proven guilty still applies in Utah (and the USA as a whole). The Bad Guy who broke into your house and held you at gun point is innocent until proven guilty and receives a free multi-million dollar lawyer. However YOU the law abiding citizen defending his life (AKA: the trigger happy shooter) are Guilty until proven innocent… at your own expense to boot.
 

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Let me preface this by saying that I realize the military and civilian worlds are *NOT* the same thing... however, the training I received in the Navy served (for me) a good basis to understand these sorts of situations from... I realize this position may not be the MAXIMUM level of force you are allowed as a civilian, it certainly seems to me to be reasonable enough and covers your *** from any sticky legalities... what I was taught is this:

In the military (in general, there are specific exceptions in specific cases that are outlined in writing) you are not allowed to defend PROPERTY with deadly force. You are only allowed to use deadly force to defend:

* life, and
* violent physical crimes.

The caveat to that, however, is that, to a reasonable person, the offender must demonstrate:

* OPPORTUNITY
* INTENT
* CAPABILITY

The easy way to understand how someone would stack up to all (3) of these is to think about these examples: a thug of similar size to you has broken into your house and upon confronting him he reaches for your weapon in an attempt to take it from you -- this thug is demonstrating OPPORTUNITY to harm you (he is both physically similarly-sized (or larger) and there is a gun in his presence which he could likely take possession of), he is demonstrating INTENT to harm you (he is attempting to take your weapon from you) and he is demonstrating CAPABILITY (by attempting to take your weapon he is showing that he is CAPABLE of presenting a threat to you)... conversely, a little old lady who has pried your fence open to steal some of your cat food b/c her cats are hungry and she is poor and you confront her and she piddles herself, falls down trying to run away, and starts screaming wildly still has OPPORTUNITY but reasonably lacks INTENT and CAPABILITY)... and, for additional contrast, a thug on drugs stealing your bike from your back yard and is hopped up on drugs has OPPORTUNITY and possibly CAPABILITY (some drugs make you immensely strong and brave) but is not showing INTENT by merely backing up with his hands in the air and then turning to run away.

So, you can't defend your house from being broken into, right??? *WRONG* When you realize a person is breaking into your house you grab your gun and confront them with your gun at the side of you leg pointing down in a non-threatening but visible position. You'd be best to have a small bat in your other hand, too. You confront them with a loud, authoratative voice, warning them you have a firearm and will shoot them if they come towards you and whack them good and hard with your bat (not deadly force and easily justified given the situation). Most will turn and run seeing the gun. If they instead turn on you, you shoot them -- why??? Because they knew you had a gun and instead of stopping they advanced on you in an attempt to take the gun from you to turn it on you (thus attempting to put themselves at a stronger position than yourself), they demonstrated both intent, ability, and opportunity to inflict serious harm on you... and you are then justified to use your firearm. If instead they actually ignore you (not likely) and continue ripping wires from your home stereo you continue to hit them with your bat... until they either stop and wait for the police, they pass out from being hit, they stop and flee, or they attack (and you shoot).

Again, I realize this may not be the strongest you are allowed under the law but this seems to me to be both reasonable as well as easily defensible....

... a few days ago I read on this board that your firearm is your last weapon of choice and that you should try to have other smaller tools/methods available to you... I agree.
 

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Without picking this apart (which I am sure others will do) I will generally agree with you. You shoot someone who is retreating or not an immediate threat and you will be spending time in prison (with very few exceptions).

The Biggest thing I would change is I wouldn’t have my gun at my side pointing down if confronting a BG in my house. I would have it cocked and locked aiming at center mast, probably with my finger on the trigger. This assumes I only took a handgun and not a pistol grip shotgun. As a side note the shotgun can also be used as a bat if needed, and I am sure would look great in court
[Lawyer: upon seeing my client in your home you proceeded to assault him?]
[Me: Yes I did]
[Lawyer: so you admit to assaulting my client?]
[Me: Yes, I was carrying a loaded shotgun had had 2 options: Shoot him, or beat him with the gun. I chose the less lethal option so I didn’t have to repaint my wall]
 

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xmirage2k,

Great point about the bit of actually pointing the weapon AT HIM -- actually, I agree... I was relating my training in the Navy (which the whole pointing DOWN is according to their methods unless the perp already has indicated they might use DF by having a gun themselves) and translated it directly into civilian self-defense without thinking about that aspect... but yeah, in my home, absolutely you are right!

BTW, the Navy's explanation for positioning the gun in that manner was always:

1) They felt it provided a less-threatening gesture to the perp and that some perps might become more aggressive if they thought you were actually actively preparing to shoot them...

2) They had to worry about "the CNN factor" (they used that phrase ALL THE TIME... even when training us not to hold our batons over our heads when actively using them).
 

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It is generally accepted legally that anyone that breaks into your house is there maliciously. You don't really need to give him the courtesy you'd give someone on the street. If someone's in my house, my gun would be ready to go and pointed center mass.

Now some people argue that you should just start shooting simply based upon them being in your home and that you're legally sound in doing so, but I think this general mentality of "someone's in my house, I shoot" could be dangerous. What if it's your friend, your kid, etc.?
 

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Yeah, I agree with your argument regarding safety (of your family, friends, etc)...

However, I disagree (completely) with the just start shooting approach. Just b/c the law may or may not allow you that approach doesn't (in my mind) make it morally valid (just legally valid). I refer, of course, to the general notion embodied in our Constitution that the punishment should fit the crime. Breaking into your house to steal your TV in and of itself doesn't warrant the death sentence.

Xavier (sp?) in Les Miserables stole bread (and according to French law at the time should have been sent to prison for a very long time; however, as the story plays out you learn that Xavier is actually one of the more upstanding citizens of the community who committed a minor crime under temporary pressures -- sure he should have been punished, but using the "just shoot" approach he would've rec'd the death sentence and been put on equal terms with rapists and murderers.
 

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When entering my house at 2am un-invited I think 2 to the chest and maybe 1 to the head would be your preferred method of leaving unless upon seeing me you instantly dropped to the ground and put your hands behind your head. The other options tend to be more painful and leave you less likely to recover fully. Now if I come out to see my TV in your arms and your back towards me it might be a different story (tazer or pepper spray maybe?). Unless I KNOW you are not intending to be a threat to me and my family you will be sorry, however probably not for too long :wink:

Now my goal isn't to kill you, just stop you from being a threat, but my weapon of choice for home defense is a 12ga . Wrong end of a 12ga.... well not to many different outcomes at 5-20feet (even in full body armor). Besides if you get past my security system and my Dog (who is very vocal when it comes to strangers) you are probably after more than a $300 TV that you might be able to sell for $50.

Just my $1.05 (as this is way to long for .02cents)
 
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