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Joe Fults




Location: Midwest
Joined: 02 Sep 2003

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PostPosted: Sat 13 Feb, 2016 4:36 pm    Post subject:         Reply with quote

Brian K. wrote:
An example would be from actual case that just happened 2 or 3 years ago when two teenager's were up to no good and in the early hours just after midnight they were attempting to break into a home. They started with a doorbell to which the family woke to but did not answer the door. The kids proceeded to go around to the backyard and attempted to break through the back sliding door. By this time the father had grabbed his handgun and heard the noises from them at the sliding door. Not knowing the intentions of these two he proceeded to shoot through the door killing one immediately. The other was hit, panicked, and began to flee. He made it to the street, fell over and bled to death.

Case was dismissed in favor of the home owners. The father never even had to go to court, and in fact was shown justified shortly after the police showed up.


I'm sure I'm missing some context but this sounds like something that would not be so easily dismissed in this part of the United States (mid-west) and I think I'm glad of that.

As a dumb high school kid doing things that do not sound all that different, at least on the surface (usually trying to get a girlfriend or buddy to come outside) admittedly a long, long time ago - was not that unusual. Not breaking in the door but getting it to make some noise or even trying to sneak back in my own house after I slipped out. Stupid in adult hindsight, sure. Still a very teenage thing to do and and almost every kid I grew up with did it (once or twice or three nights a week). Kinda sucks as a homeowner if, in your dirty harry moment, you shoot through the door and put a friend, LEO, EMT, Fireman, child, spouse or even a just an ornery prankster under ground like that.

Guess its a good thing I didn't grow up in place where everyone had a shoot first mentality. Pretty much everyone in my rural hometown at least had several long guns - so yeah...that would have sucked!

"The goal shouldn’t be to avoid being evil; it should be to actively do good." - Danah Boyd


Last edited by Joe Fults on Sat 13 Feb, 2016 5:44 pm; edited 1 time in total
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Joe Fults




Location: Midwest
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PostPosted: Sat 13 Feb, 2016 5:29 pm    Post subject: As to the original story...         Reply with quote

Having just completed all of the required concealed carry coursework today (which means I have 6 hours more class time than the average person at the grocery store) it is very clear that my state has a duty to retreat requirement "outside your home" and "outside your vehicle" . There is no duty to retreat when in your home or in your vehicle (the vehicle part seems a bit odd to me). At home castle doctrine applies. It was also made very clear to all of us that our conceal carry license would not make us adjunct members of law enforcement. In spite of our copious notes we would all lack the training, knowledge, liability coverage and responsibility to act without carefully considering things like "how much force would be REASONABLY justified" in any situation.

Following the bugler outside with a weapon could put you in hot water in this state. From my very limited instruction time I gathered that why you did it might not matter until much later. Based on my very limited non-legal/non-lawyer/non-LEO understanding of things, that does not mean the action cannot be justified. It does mean that somebody else is going to have to be convinced that you were acting reasonably before everything is all said and done.

All through the class we got told to think, think, think - and plan ahead and drill.

Now, before somebody accuses the wonderful-ish place where I live of being commie/liberal/bunny lover central, please note that I do live in a RED STATE with permissive gun laws. It has a version of "stand your ground" on the books. Never the less, even in the context of gun friendly middle America with at least a version of castle doctrine on the books, perhaps the homeowner in the story was right to be thinking as he acted. Given that he was not held or charged (in the story) even though he did follow the bugler and at least temporarily might have removed imminent threat from the "reasonable equation" (if that applies), maybe the government and law enforcement agencies there are not entirely unreasonable either.

Finally, to speak to relevance, and since somebody else in class asked, here sword = gun.

"The goal shouldn’t be to avoid being evil; it should be to actively do good." - Danah Boyd
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Robert Morgan




Location: Sunny SoCal
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PostPosted: Sat 13 Feb, 2016 6:20 pm    Post subject:         Reply with quote

Quote:
Quote:
The Sanctity of the home is very important in the USA. Typically there is no duty to retreat once an intruder breaks into your home. Proportionate response is not required. Deadly force can be used against an unarmed burglar. Further the state has the burden of proof, not the defense.


Not precisely. It depends upon the jurisdiction. Every state and many counties have different laws on this point. Some require retreat, others do not. Some allow stand your ground, others do not. Some allow a freer use of deadly force, others do not. Some confer upon the homeowner a limited right to pursue, others do not. Imperfect self-defense (the right to act in the defense of others, like your family) is very different depending upon where you are here in the Colonies; trying not to be overtly political, but your more liberal cities, for example, often have very different interpretations of imperfect self-defense than your more conservative ones. You really have to go on a jurisdiction by jurisdiction basis.

Even then, as I stated earlier many juries simply will not convict adopting a, "He had it coming," position towards the criminal. Neither will many grand juries indict. You see a fair number of jury nullification examples in self-defense cases, even where the homeowner probably did objectively overstep his rights. Jurors will often place themselves in the defendant/homeowner's shoes and vote to acquit or not indict. Compare the Joe Horn case in Texas with the Tony Martin case in Great Britain to see how things are different.

Bob, impatiently waiting TWO MORE MONTHS for Game of Thrones to come back. My VCR remembers.

PS. I once scared an illegal alien away who was on the ledge outside of my bedroom with a katana. Seriously. He was trying to get into the flop house next door and went to the wrong window. Let's just say the sight of a three foot long razor blade glinting in the moonlight had the desired effect. The guy nearly fell off the second floor in fear, and all I did was display the weapon from behind my window, no more. I was in law school at the time and it really generated in me a desire to research self-defense laws so this subject is somewhat personal to me.
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Brian K.
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Location: Salt Lake City, Utah
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PostPosted: Sat 13 Feb, 2016 8:32 pm    Post subject:         Reply with quote

I'm not trying to ruffle any feathers or say what is right or what is wrong, I'm just trying to contribute to the conversion with interesting tidbits.

I happen to have a book of laws regarding self defense for every state in the USA right in front of me, and I quote (for Utah);

(1) A person is justified in using force against another when and to the extend that he reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his habitation; however, he is justified in the use of force which is intended or likely to cause death or serious bodily injury only if;

(a) the entry is made or attempted in a violent and tumultuous manner, serreptitiously, or by stealth. (e.g., breaking or sneaking into your house), and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation and he reasonably believes that the force is necessary to prevent the assault or offer of personal violence.

(b) he reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony.

It goes on. But I covered the important part. I followed the story closely on the news, and it's been a few years but that was the skinny of it.

Brian Kunz
www.dbkcustomswords.com
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Dan Howard




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PostPosted: Sat 13 Feb, 2016 9:59 pm    Post subject:         Reply with quote

My point is that it doesn't matter how liberal the law is, you still have to demonstrate that your actions were justified. That usually means proving that your victim had hostile intent, and that your actions were proportional to the threat. At the very least it means hiring a lawyer to talk to the prosecutor. If someone is killed it usually means showing up to court and arguing your case. Even if you have acted completely lawfully, you will still end up with a diminished capacity to earn income while the case is ongoing and a significant legal bill when it is finished. Unless your life is in immediate danger you are better to leave the guns and swords where they are and call the police. Your right to defend your "castle" and kill an alleged intruder will cost you a lot of money (there is a real possibility that you will lose your house entirely) no matter how justified you feel. In addition, there is always the possibility that the jury doesn't agree with your interpretation of the law and decides to send you to jail. Even if you are acquitted on appeal, your life is still ruined. It simply isn't worth the risk and expense unless you or your family are in immediate danger.
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Glen A Cleeton




Location: Nipmuc USA
Joined: 21 Aug 2003

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PostPosted: Sun 14 Feb, 2016 1:28 am    Post subject:         Reply with quote

[quote="Gordon Alexander"]
Glen A Cleeton wrote:
Joe Fults wrote:

When in doubt, your local police commander and local district attorney's office will have the facts for you.

Cheers

GC


Better have 'em on speed dial;-)


Knowing, beforehand, is only common sense. In this day and age of cell phones, 911 (in America) would/should always be the first response.

Cheers

GC
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Robert Morgan




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PostPosted: Sun 14 Feb, 2016 10:01 am    Post subject:         Reply with quote

Quote:
Unless your life is in immediate danger you are better to leave the guns and swords where they are and call the police.


In isolation, I absolutely agree with you. The problem is, when you only have seconds the police are minutes away. This assumes that you can get to a phone and call.

The other issue is that in the US, the Supreme Court (in its "wisdom") has ruled that the police possess no legal duty to protect you. There are a number of cases on this point, but one of the best known is Castle Rock v. Gonzales, although that incident did not occur inside of a house. However, the court's ruling was that the police have discretion to decide how to enforce the law. They possess do constitutional duty to come when called. So, you can call 911 all you want, that doesn't mean that the police are en route. Police resources are stretched really thin - there just aren't enough law enforcement assets out there to handle the volume of calls (usually), so you may well find yourself in a damned if you do, damned if you don't situation.

Other cases that bear reading are DeShaney v. Winnebago County Department of Social Services, Balistreri v. Pacifica Police Department, Freeman v. Ferguson (this is a particularly horrid fact pattern involving the police willfully choosing to not enforce the law against a friend of the police chief), and so on. Absent a "special relationship" like a police officer having physical custody of a prisoner, there exists no duty for the police to protect and defend individuals. The courts have ruled that a duty is owed to the public at large, but not to individuals. Legally, they can sit outside of your house while you're knowingly being attacked and do nothing, and they are immune from prosecution for not assisting, as the Freeman case suggests. So, while I totally agree that calling the police should be the first and most preferred option, it sometimes isn't a viable one, and there exists no legal certainty that they'll even show up because remember, constitutionally they don't have to.

Bob
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Glen A Cleeton




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PostPosted: Sun 14 Feb, 2016 11:11 am    Post subject:         Reply with quote

Robert Morgan wrote:
Quote:
Unless your life is in immediate danger you are better to leave the guns and swords where they are and call the police.


In isolation, I absolutely agree with you. The problem is, when you only have seconds the police are minutes away. This assumes that you can get to a phone and call.

The other issue is that in the US, the Supreme Court (in its "wisdom") has ruled that the police possess no legal duty to protect you. There are a number of cases on this point, but one of the best known is Castle Rock v. Gonzales, although that incident did not occur inside of a house. However, the court's ruling was that the police have discretion to decide how to enforce the law. They possess do constitutional duty to come when called. So, you can call 911 all you want, that doesn't mean that the police are en route. Police resources are stretched really thin - there just aren't enough law enforcement assets out there to handle the volume of calls (usually), so you may well find yourself in a damned if you do, damned if you don't situation.

Other cases that bear reading are DeShaney v. Winnebago County Department of Social Services, Balistreri v. Pacifica Police Department, Freeman v. Ferguson (this is a particularly horrid fact pattern involving the police willfully choosing to not enforce the law against a friend of the police chief), and so on. Absent a "special relationship" like a police officer having physical custody of a prisoner, there exists no duty for the police to protect and defend individuals. The courts have ruled that a duty is owed to the public at large, but not to individuals. Legally, they can sit outside of your house while you're knowingly being attacked and do nothing, and they are immune from prosecution for not assisting, as the Freeman case suggests. So, while I totally agree that calling the police should be the first and most preferred option, it sometimes isn't a viable one, and there exists no legal certainty that they'll even show up because remember, constitutionally they don't have to.

Bob


The phone call is complimentary to any further action.

In this day and age of cell phones, it is more likely an individual has a phone nearer than a weapon, or certainly as close. It is simply an emergency beacon if deadly force is truly at hand. I know that even at less than a five minute response to my abode, deadly force on my part might be required in an extreme situation. Some do live strapped while in their home but it is not the norm. Phone in hand has become almost ubiquitous. Another housemate keeps a can of Raid by the bed Wink

Cheers

GC
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Dan Howard




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PostPosted: Sun 14 Feb, 2016 1:37 pm    Post subject:         Reply with quote

Robert Morgan wrote:
In isolation, I absolutely agree with you. The problem is, when you only have seconds the police are minutes away. This assumes that you can get to a phone and call.

So you let them rob the place and then call the police. As I said, attacking the suspect isn't worth the risk unless you are in immediate danger. Killing someone to protect your belongings is going to cost you a lot more in legal fees and lost income than the theft of your TV and laptop. How many employers are going to let you turn up late for work every day because one of your bail conditions is that you have to report daily to the police? How many people can keep paying their rent or mortgage if they can't work for a few months while the case goes to court?

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Last edited by Dan Howard on Sun 14 Feb, 2016 8:57 pm; edited 1 time in total
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Mart Shearer




Location: Jackson, MS, USA
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PostPosted: Sun 14 Feb, 2016 1:53 pm    Post subject:         Reply with quote

Dan Howard wrote:
So in your state I can invite someone over to the house, shoot him dead, break a window, put the prybar in the victim's hand, and get off scott free.


You can get away with murder if the police are incompetent, or if you sufficiently hide the evidence. Victim has no previous criminal history? Expect a more thorough investigation, including checks of his and your internet and phone records. I suspect if you randomly went off with a rifle and shot someone totally unconnected to you from a distance, you would probably get away with it if there were no witnesses and you could keep yourself from ever confessing to your horrible crime. In both cases, it's murder, and there is no statute of limitations on prosecution.

ferrum ferro acuitur et homo exacuit faciem amici sui
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Pieter B.





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PostPosted: Sun 14 Feb, 2016 5:14 pm    Post subject:         Reply with quote

Dan Howard wrote:
Kiling someone to protect your belongings is going to lost you a lot more in legal fees and lost income than the theft of your TV and laptop.


And it's completely contrary to what civil society expects and stands for.

A professor of mine and litigation lawyer summed up quite nicely how to get through life with the minimal amount of stress. Your biggest risks in live are your wife and kids, your car and your house. Insure all four of those and keep two thousand on a bank account for when you are unlucky and cannot find the right person to sue.
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Robert Morgan




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PostPosted: Sun 14 Feb, 2016 6:16 pm    Post subject:         Reply with quote

Quote:
Another housemate keeps a can of Raid by the bed


That's a god one. My Mom kept a can of mace at her bedside when we all moved out to attend college (she's a widow). I keep an arming sword and a tactical tomahawk within easy reach. Just in case... Big Grin Big Grin

Quote:
So you let them rob the place and then call the police.


Also the preferred option to avoid bloodshed. But... You may not have time. In this age of home invasions and really violent crime in Southern California, allowing the nice criminals to rob you blind and leave you, your young pregnant wife and your pretty teenaged daughter alone might not be a viable option. Yes, I'm probably tossing in some hyperbole there but who wants to take that chance?

I wish self-defense and the castle doctrine weren't necessary. I wish perps, troglodytes, dirtbags and assorted miscreants weren't out there doing society wrong, but they are. Until they aren't, the self-defense issue will always be a hot button one. By the way, I want to thank everyone for being so nice about this topic. I was on another board lurking when this came up and the other board members were, um, volcanic in their responses. I just sat back and watched the fireworks and they weren't pretty. Thank you to everyone for allowing everyone else to verse their views freely.

Bob
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Dan Howard




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PostPosted: Sun 14 Feb, 2016 9:23 pm    Post subject:         Reply with quote

Robert Morgan wrote:
Also the preferred option to avoid bloodshed. But... You may not have time. In this age of home invasions and really violent crime in Southern California, allowing the nice criminals to rob you blind and leave you, your young pregnant wife and your pretty teenaged daughter alone might not be a viable option. Yes, I'm probably tossing in some hyperbole there but who wants to take that chance?


I'm not sure that we really disagree. I specifically said "immediate danger" several times. If your family is in one room and the dirtbags are in another then you aren't in immediate danger. The sensible option would be to grab a weapon just in case and stay put. Let them rob the place and call the police. The risk of forcing a confrontation in this situation is way too high. If they bust into your room then the danger becomes immediate and the situation is completely different. Personally, I'd attack and keep swinging until one of us stopped moving.

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Robert Morgan




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PostPosted: Mon 15 Feb, 2016 10:15 am    Post subject:         Reply with quote

The thing is, you may not know if you're in immediate danger under the law's definition, and that's what makes these cases so dicy. We had one here in SoCal a decade or so back where an elderly woman awoke to find a stranger literally standing over her in bed. She panicked (who wouldn't?) grabbed her gun which she kept at her bedside and shot the man dead right there. Well, to everyone's surprise the local prosecutor charged her with homicide, arguing that she wasn't in any immediate danger because the burglar hadn't by her own admission started sexually assaulting her yet. Therefore, she wasn't justified in killing him. Was she in immediate danger? I'd say so. The perp had a history of violent sexual offenses, so you don't need a doctorate to figure out what his intent was, and its doubtful that he wold have idly stood there while she called the police in his presence. However, the prosecutor had a point on a purely legal basis according to the letter of the law; he hadn't yet attacked her, and she could have retreated to the other side of the bed. So, who was right and who was wrong, here? I'll only say that public opinion came down harshly on the side of the woman and criticism of the prosecutor's office for filing charges assumed epic proportions.

Cases like this illustrate why the law for self-defense, the Castle Doctrine, Stand Your Ground, etc., are so different here in the states than in other places around the world. We tend to take the viewpoint that if you are threatened, you have the very broad right to defend yourself. I'm not saying people in other parts of the world don't posses that right, but its far more muted.

Bob
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Dan Howard




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PostPosted: Mon 15 Feb, 2016 12:40 pm    Post subject:         Reply with quote

If you want to risk the rest of your life by relying on the judicial system then go ahead. The odds don't favour this strategy except in extreme circumstances.. You should ask some of the people in your examples how much their "day in court" has cost them.
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Michael Beeching





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PostPosted: Mon 15 Feb, 2016 3:24 pm    Post subject:         Reply with quote

Dan, I think that point is arguable, but I'd also state that such a point is very easy to make when your own life or livelihood is not under apparent threat.

My argument from a philosophical perspective is that your life is more valuable than an assailant's. You should not be forced to forfeit your existence for one who bears little respect for that of others, and in retrospect, their own. Certainly, the law does not always see things this way, but I recoil with disgust when I see what the victim mentality does to people. I don't see it making society more civil or just, merely progressively more lacking in regard to its own self-worth.
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Dan Howard




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PostPosted: Mon 15 Feb, 2016 3:40 pm    Post subject:         Reply with quote

Michael Beeching wrote:
Dan, I think that point is arguable, but I'd also state that such a point is very easy to make when your own life or livelihood is not under apparent threat.

My argument from a philosophical perspective is that your life is more valuable than an assailant's. You should not be forced to forfeit your existence for one who bears little respect for that of others, and in retrospect, their own. Certainly, the law does not always see things this way, but I recoil with disgust when I see what the victim mentality does to people. I don't see it making society more civil or just, merely progressively more lacking in regard to its own self-worth.

I've already said what I would do if the thief came face to face with me. In that situation I would fight and then take my chances in court. I'm talking about deliberately setting out to force a confrontation just because it is legal to do so. If you are safe in one part of the house and the thief is in another then how is it reasonable or sensible to escalate the situation?

It has nothing to do with your alleged "victim menatlity". Think about it rationally; what are the pros and cons? On one side you might save some of your possessions and get a boost to your ego. On the other you have a costly legal bill, damaged property, loss of income, potential medical expenses, and a possible stint in prison.

The vast majority of burglars don't want a confrontation. They will run if they can. Personally I'd like to catch them and beat the crap out of them but that is emotion, not reason. When looked at rationally, it isn't worth it. Police really are giving us the best advice no matter how much we don't want to hear it. It isn't being a coward or a victim, it is simply a matter of risk vs reward. The only upside in forcing a confrontation is to spare ourselves some humiliation.

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Michael Beeching





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PostPosted: Mon 15 Feb, 2016 4:19 pm    Post subject:         Reply with quote

I suppose it comes down to what you can do, and as you're noting, what you should do in the situation. If you are not in a position to deal with an assailant, it is best to avoid a confrontation (which is painfully obvious). If you can ward off the intruder, that course of action should be pursued, in my opinion, as relying on the good-will of that person is not a reliable means of guaranteeing your own safety, or the safety of your loved ones; rather, assuming that conditions will not change, and the intruder will avoid you is a poor choice for survival in my estimate. As to resorting to unnecessary violence, I don't think anyone here is suggesting that. The issue - from my perspective at least - is fear of litigation when defense of your person is in question.
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Tyler Jordan





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PostPosted: Mon 15 Feb, 2016 5:12 pm    Post subject:         Reply with quote

Glen A Cleeton wrote:
Another housemate keeps a can of Raid by the bed Wink


Raid is great for wasps, but terrible for an intruder, unless you just want to irritate and anger them. Also it's generally illegal to use wasp spray on people, not to mention that you could be sued.

Check youtube for 'pepper spray vs wasp spray'. Wasp spray doesn't even slow the guy down.
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Philip Dyer





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PostPosted: Mon 15 Feb, 2016 5:57 pm    Post subject:         Reply with quote

Tyler Jordan wrote:
Glen A Cleeton wrote:
Another housemate keeps a can of Raid by the bed Wink


Raid is great for wasps, but terrible for an intruder, unless you just want to irritate and anger them. Also it's generally illegal to use wasp spray on people, not to mention that you could be sued.

Check youtube for 'pepper spray vs wasp spray'. Wasp spray doesn't even slow the guy down.

Could be extremely effective as a deterrent if paired with a lighter :P
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