Second Amendment, Castle Doctrine, and OWS Oakland...
On Wednesday, when a developer in Oakland saw that his newly renovated building was under imminent threat of vandalism by the OWS anarchists he did what most property owners would do...he protected it. With only the visual of his shotgun and the sound of it being racked the lawless vandals scattered like spooked cockroaches.
So, here's the question…
Mr. Tagami was clearly exercising his Second Amendment right to keep and bear, but was further exercising Castle Doctrine rights, which may or may not apply in California or, particularly, in the San Francisco area. In states like Missouri or Texas where gun rights are strong, if this story had taken a different turn and Mr. Tagami had had to use his shotgun, he would have the protection of the law on his side, as well as the sentiment of the people. But in Oakland? What would have been the response if this property owner had been forced to fire a shot to rightfully protect his property?
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Comments :
Dec '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
I think the California law is written specifically with the protection of people in mind rather than the protection of property. Here's the relevant section. As far as protecting property, the Council of California Criminal Jury Instruction 3476 (p. 1075, pdf p. 2509) says that a person can use reasonable force. It's up to the jury to determine if the force used was reasonable, so I guess in the Bay Area reasonable force may be limited to throwing one's European Shoulder Bag at the perpetrators before running away screaming.
Dec '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
This happened in Oakland? I'm surprised Mr. Tagami isn't cooling his heels in the slammer already! Certainly, there's some statute outlawing obscene displays of 2nd amendment fundamentalism or something.
Maybe his Japanese heritage shielded him from police action. I imagine California Democrats might be a little sensitive to appearances when putting a law-abiding man of Japanese descent behind bars.
Jan '11
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
Your post is quite coincidental, the Wisconsin State Legislature just passed a Castle Doctrine Bill this past Wednesday (Thursday?) that protects home owners, business owners and drivers if they shoot an intruder. This is on the heels of a concealed carry law that's been signed, though there's been quite a bit of wrangling over training requirements and carry rules.
The press & the Left are pushing the memme that this is being done prior to yet another round of recall petitions, this time to include Gov. Walker. I'm not so sure, there seems to be a real shift in outlook in this once blue state.
In regards to your question, with or without a castle doctrine law - it seems that much of how property owners react depends upon the local District Atty's - if you have 'goo goo libs', they'll prosecute the property owner.
Oct '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
Here, in the State of Washington, you would be prosecuted for the use of deadly force in defense of property. You are protected from prosecution if you have a reasonable expectation of violence against your person, especially in your own home, but property is not protected.
Dec '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
Actually, GB, I think the statement "In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is," (RCW 9A.16.050, emphasis added) allows for protection of one's home. This may envision things such as arson or other seriously destructive acts, but the protection of certain property seems to be there. For such a liberal state, we sure have some conservative laws.
May '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
These are all great, well-reasoned, and thoughtful responses. I guess the bigger question is do the states have the right to narrowly define how we're allowed to protect our property and person? Our Bill of Rights, as part of our Constitution, is sacrosanct…and it gives us the right to self-defend. If one’s property is under attack by thieves, vandals and dirtbags who is to assume their intent? If they are there purely to dispense violence and destruction why would it not be considered a threat of bodily injury to the property owner, as well? The dirtbags have the access, the intent, and the means to do harm. So, I don’t understand the dividing line between the *threat* of harm to the homeowner and that of his property.
May '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
A day or two ago, Duane Oyen sent this link to me. Powerline posted a story about a good samaritan coming to the rescue of a woman who was robbed and pistol whipped in the face. It ended with a dead robber. What was most remarkable, though, was the fact that the District Attorney, a liberal Democrat, not only refused to prosecute the good samaritan, but actually commended him. Here's an excerpt from the article...
There's hope, after all.
Dec '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
If you take a Lockean view of property (as the founders likely did), then what makes property private vice public is the mixing of individual labor with it. In a sense, attacking a person's property is attacking that part of the person that makes the property private. Many are unlikely to take such a view and see inanimate property as having any real connection to a person.
May '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
I like that view.
Sep '11
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
Question:
Is legal precendent set by well-publicized decisions to not prosecute?
On the second day of the South Central riots, Korean-Americans took up arms to defend themselves and their stores from rioting and looters. This Wikipedia article claims the Korean-Americans took action when they saw the police "abandon" Koreatown.
Those Korean-Americans didn't just brandish firearms--they fired.
Where any of them charged? Were any convicted?
If not, might a property owner in California, faced with a similar situation (rioters headed toward you; no apparent hope of police intervention; rioters with well-known prior history of looting in previous days) rack that shotgun--and use it--believing that the riots in South Central give him some precendent?
(This is a theoretical question: I would think that brandishing a gun in California without being an A-list celebrity would automatically qualify you for jail time. But I'm still curious.)
And--for that matter--mightn't our theoretical property owner also consider that people who hid inside a building being attacked by anarchists in Greece with a similar bent were burned to death when the rioters lit the building on fire?
Edited on Nov 5, 2011 at 2:20pmMay '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
John Murdoch:
Is legal precendent set by well-publicized decisions to not prosecute?
On the second day of the South Central riots, Korean-Americans took up arms to defend themselves and their stores from rioting and looters. This Wikipedia article claims the Korean-Americans took action when they saw the police "abandon" Koreatown.
Those Korean-Americans didn't just brandish firearms--they fired.
Where any of them charged? Were any convicted?
If not, might a property owner in California, faced with a similar situation (rioters headed toward you; no apparent hope of police intervention; rioters with well-known prior history of looting in previous days) rack that shotgun--and use it--believing that the riots in South Central give him some precendent?
(This is a theoretical question: I would think that brandishing a gun in California without being an A-list celebrity would automatically qualify you for jail time. But I'm still curious.)
And--for that matter--mightn't our theoretical property owner also consider that people who hid inside a building being attacked by anarchists in Greece with a similar bent were burned to death when the rioters lit the building on fire?
Great question and very insightful.
Dec '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
I would certainly hope that self defense could be assumed when one is faced with a mob sized group of grumpy folks brandishing various and sundry weapons.
They could say after the fact that they just wanted to destroy the building, but history has shown us time and again how often "just destroy the building" ends up with a body count.
Given a lawyer worth his salt, and even one reliable witness, it would seem to me that a very plausible case could be made for the use of deadly force in this situation.
Happily, most folks who go about in mobs tearing stuff up like this aren't really the sort to stand and fight, as illustrated by the outcome of the situation in question.
Keep your powder dry and your eyes up folks, 'cause it's going to get worse before it gets better.
Mar '11
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
This story is the clearest illustration why the left opposes the 2nd amendment.
Dec '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
25 years ago, my wife and I lived in a very sketchy neighborhood in Oakland: the apartment building at the end of our block was a known drug "supermarket." We invited the OPD to send someone to talk to us and our neighbors about creating a neighborhood watch. The sergeant told us that a shotgun was preferable to a pistol for home defense as the pellets were less likely to penetrate neighboring homes, and that it was important (a) to wait for an intruder to be mostly inside our residence before shooting him and (b) make sure we didn't shoot him in the back.
May '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
Actually, a 9 mm or a .45 at approximately 1,100 feet per second and a deforming hollow point bullet will penetrate much fewer layers of drywall than 00 Buck at 1,600 feet per second and non-deforming pellets.
I definitely agree not to shoot someone in the back. But Castle Doctrine in Missouri considers if someone (who should not be) is inside your home they are considered an imminent threat to your life, armed or not, and it doesn't matter where you shoot them.
May '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
CoolHand: I would certainly hope that self defense could be assumed when one is faced with a mob sized group of grumpy folks brandishing various and sundry weapons.
They could say after the fact that they just wanted to destroy the building, but history has shown us time and again how often "just destroy the building" ends up with a body count.
Given a lawyer worth his salt, and even one reliable witness, it would seem to me that a very plausible case could be made for the use of deadly force in this situation.
Happily, most folks who go about in mobs tearing stuff up like this aren't really the sort to stand and fight, as illustrated by the outcome of the situation in question.
Keep your powder dry and your eyes up folks, 'cause it's going to get worse before it gets better. · Nov 5 at 6:50pm
I agree with all of that. I feel like a spectator watching something horrible about to unfold. And urban population centers seem like something to avoid right now.
Oct '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
Kowaliczko Tom: ...
In regards to your question, with or without a castle doctrine law - it seems that much of how property owners react depends upon the local District Atty's - if you have 'goo goo libs', they'll prosecute the property owner. · Nov 5 at 10:37am
While it's certainly true that a DA would have prosecutorial discretion in a case like this, the political process requires that they not stray too far from the values of the voters in their community. So a prosecutor certainly could dismiss or plea down charges against someone who uses a gun to defend his or her property, but he risks angering his anti-gun constituents -- and I assume Oakland is crawling with them. That's particularly true in a high-profile case.
All I can say is: Thank God I practice in Texas, not California.
May '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
Blake
While it's certainly true that a DA would have prosecutorial discretion in a case like this, the political process requires that they not stray too far from the values of the voters in their community. So a prosecutor certainly could dismiss or plea down charges against someone who uses a gun to defend his or her property, but he risks angering his anti-gun constituents -- and I assume Oakland is crawling with them. That's particularly true in a high-profile case.
All I can say is: Thank God I practice in Texas, not California.
So prosecutorial discretion is political and not based purely on the law. My original wondering was whether there was Castle Doctrine in California, but your answer has taken me in a completely different direction. Your fate then is just thrown to the winds of politics...that's a scary place to go. You're going to make a life or death decision that is legally allowed at the whim of the politicians. It's already difficult to survive there economically now your physical safety/self defense is in question based on politics, not law. California is becoming a witch's brew of badness.
May '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
The state of California is broke and the cities are broke. The police force is woefully underfunded and the Dirty Harry's were run out long ago as dinosaurs. The mayor...the leader of civil government...is actively espousing the views of Occupy Oakland. So no one is going to protect anyone there. The question is...is it legally or politically acceptable to protect yourself there? Does the Second Amendment apply to Oakland, or anywhere in California, or are they a law unto themselves?
Jul '10
Re: Second Amendment, Castle Doctrine, and OWS Oakland...
In some of the articles I've read about this incident, Mr. Tagami stated that he acted out of fear for his safety and the safety of some of his employees and janitorial staff, who were still inside the building. Not just property.
They still might try to prosecute him, but I doubt it. Apparently, Phil Tagami is kind of a big deal in Oakland. I'm sure he could afford a good lawyer, even if he didn't have cash donations from me and many other people to help, which he most certainly would.