...it's not dark yet, but it's gettin' there...

January 28, 2005

See Publicola...?

See Publicola...? Not every 2A story out of California turns out badly.

A Modesto homeowner who said he's been the victim of numerous burglaries in recent weeks shot a man who allegedly broke into his home Thursday morning.

Greg Collins' home is undergoing extensive remodeling. Collins said he slept in his garage overnight with a shotgun in an effort to protect his property.

At 5:25 a.m., Collins said he was awakened by the sounds of an intruder breaking in to the garage.

'Luckily, I found the shotgun, pointed it at him, told him to freeze ... He chose to lunge at me, so I had no choice at that point but to shoot him. I did use a 12-gauge shotgun so that I wouldn't kill the man,' he said.

Apparently, there are no plans to prosecute the homeowner.

Is there hope for Cali yet?

Posted by annika, Jan. 28, 2005 |
Rubric: annikapunditry


"I did use a 12-gauge shotgun so I wouldn't kill the man"?

That can't possibly be what he actually said. Or if it is, he can't possibly know anything at all about guns. A 12-gauge shotgun is about the best thing you could possibly use to kill a man, inside of 30(ish) yards.

But -- not to preempt Publicola -- I'll say that this isn't really a 2A story. It's a self-defense story. The rights are related, but not at all coextensive. The fact that Californians are still permitted to own shotguns, and defend themselves with us, doesn't tell us very much at all about the status of their right to keep and bear arms. Shotguns are nearly always the last things to go.

Posted by: Matt on Jan. 28, 2005

If the state of CA actually gets this right and leaves the homeowner alone, understanding he was the victim here, I will be in utter shock. Please keep us updated.

Posted by: Serenity on Jan. 28, 2005


I predict that's exactly what will happen. Shotguns aren't licensed or banned in California (with a few exceptions that I'm assuming don't apply here), so the mere possession of the gun wasn't a crime. That's usually the problem in the really aggravating stories that garner all the attention (Wilmette, IL; NYC; etc.): Homeowner conducts "righteous" shoot with unlicensed handgun. Walks on the shoot, gets nailed for the handgun. (Or at least is in danger of getting nailed, until the public outcry reaches the ears of the politically ambitious scumbag prosecutor.) There's no unlawful possession issue here, and the initial facts are very strong for the homeowner, because Americans still largely believe in the "castle doctrine" and this f***er came into the victim's home. Even in Kalifornia, self-defense is still (mostly) legal.

Posted by: Matt on Jan. 28, 2005

What California does is only half the story. The homeowner might have been better off killing the intruder because dead men don't sue in civil court.

Posted by: Tom on Jan. 28, 2005


No, but their families do. Wrongful death.

I'm just being cynical, though. I've seen no hard evidence of how often such suits actually happen, or how often they succeed, and I'm skeptical that either is as common as the conventional wisdom holds.

Posted by: Matt on Jan. 28, 2005

Miss Annika,
Unless I am mistaken under Cali law this guy could be prosecuted.

You're a law student. Look up Cali's laws concerning self defense & specifically the "duty to retreat". In a nutshell if you can run you're required by law to run. If for some reason you can't run you can use deadly force if you feel your life is threatened.

This guy A: spent the night in the garage w/ the shotgun knowing that there was a chance of encountering a burglar B: is not happy about the financial loss burglars have caused him in the recent weeks C; claims to use a shotgun in order to avoid killing someone (which means that he beleived deadly force was not necessary to protect himself, which supports the idea that he was not in fear for his life) D: may have been able to reteat.

If my understanding of Cali law is correct then in light of the above he could be charged. He's not being charged yet, but he very well could be & the article never said he wouldn't be, just that as of now he isn't being charged. ("Not likely..." was the language used). If he isn't charged it's going to be because the DA doesn't want the grief that it would (& should) cause him. But as a matter of law he could prosecute under Cali law.

As has been pointed out either the guy was misquoted or he knows nothing about firearms. I can understand not wanting to kill out of hand, but choosing what you think is a less than lethal weapon to protect yourself against deadly force is niave at best. & he's thinking if selling the house now that he's succesfully repelled a boarder? His attitude is all wrong. In NC shooting an intruder usually makes people more determined to stay in their house. After all, what are the odds of having to do that again, especially if it's well known that you'll shoot someone who breaks in?

No; there's still no hope for Cali. All this story proves is despite Cali law (again if my recollection is correct) Cali isn't yet as bad as england. Yet.

In order for this story to have proven that there was hope for Cali the homeowner would have had to have known that he was using deadly force & that stopping someone usually equates to killing them; that the "authorities" advised everyone that they should act just as this man did in defending his home; that no charges could be filed b/c of Cali law & not the benevolence of the local DA; that the type of weapon he used would not be a factor (i.e. if he had an evil "assault weapon" the weapon would have been stolen by the cops & he'd be in jail) & finally that the Cali constitution had a provision acknowledging the Right to Arms in defense of self, home & state.

No, there's no hope for Cali yet. Think about Colorado or Arizona (though Az is still under the grasp of the 9th circuit).

Posted by: Publicola on Jan. 28, 2005

You mean they've read the Second Amendment in California? I am stunned!

Posted by: Mark on Jan. 28, 2005

Gawd, these lawyers are such windy bastards, and Matt used to be SUCH a nice young man. Publicola was always the product of a syphalitic union.

Don't hate us because we're beautiful! AND, don't judge all of California by what the nutsuckers in San Fran are down to. It's a very big state, and one still has the right to a jury trial.

I'm waiting for the natural progression of things, when ALL of the cops are Heather's other mommy. When they have me surrounded, I'm gonna pop that nuke that Roger gave me for Christmas.

Posted by: Casca on Jan. 29, 2005


After searching case law, the California Penal Code and the California Jury Instructions - Criminal, I believe that there is no duty to retreat in one's home in California. In fact, California Penal Code section 198.5 reads:

"Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred."


"When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein . . . "

Cal. Penal Code section 197.

Posted by: Matt on Jan. 29, 2005

That last should have read,

"Additionally, in California, homicide is justifable . . . "

Posted by: Matt on Jan. 29, 2005

Another victory for rascism!

Posted by: Um Yeah on Jan. 29, 2005

That's odd. I know I've read of some cases where a person was prosecuted for self defense because he didn't retreat. It's quite possible the papers were in error but I seem to recall too many of them to chalk it up to one sloppy journalist.

Course I thought it was in statute law but it very well could be a case law thing. Hell Matt - look at the last section of the penal code you cited. Do you really think a DA in Frisco is gonna not press charges if a guy shoots an intruder with an about-to-be stolen vcr under his arm? The law says "defense of ...property..." but I think case law has pretty much nullified that (though to be fair not just in Cali).

But I'll take your word for it - self defense is legal in Cali w/ no duty to retreat. It's still frowned upon though & that's almost as bad.

But since miss Annika is the law student & in Cali to boot, perhaps she can shed some light on the duty to retreat or lack therof in Cali.

Posted by: Publicola on Jan. 30, 2005

i yield to Matt, who's actually a lawyer.
: )

Posted by: annika on Jan. 30, 2005