Unlawful and Forcible

[Sanford]

Reading through another thread where this was posted:

A person or a owner, manager or employee of a business is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, occupied vehicle, or a place of business, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, occupied vehicle, or place of business; and

2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

It was the "and" part that got my attention - it can be an important little word. So what's considered "forcible" and how much does it come into play? Say your garage door was open or maybe just unlocked and you go out and find a baddie there - does the statute still apply? For that matter, is it really even unlawful to step inside someone's open garage without their permission or knowledge?

Wondering if this all might actually mean something a bit different than many/most of us think it means.

 

[Gabriel42]

 

[SoonerP226]

Edit: Misread it. Never mind...

 

[Old Fart]

Close the garage door and lock after you finish.

 

[Sanford]

Yeah, but they do tend to get smelly and messy after a while if you just leave them where they dropped.

 

[SoonerP226]

I'm sure there's a statutory definition of forcible, but I couldn't find it in a quick search, and didn't feel like doing actual research while on vacation. I think it's written that way to distinguish an unlawful entry from a lawful "forcible entry," such as what can be allowed under landlord and tenant law.

 

[Sanford]

Interestingly enough, the first part says "forcefully" instead of "forcibly", then uses both in the same sentence, almost looking like "forcibly" is being used as a past tense of "forcefully"?

A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes or places of business.

B. A person or an owner, manager or employee of a business is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, occupied vehicle, or a place of business, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, occupied vehicle, or place of business; and

From Merriam-webster's Dictionary of Law.

the unlawful taking of possession of real property by force or threats of force or unlawful entry into or onto another's property, especially when accompanied by force.

From "Constitutional and administrative law" (Pollard, Parpworth and Hughes), 2007, p.723

Judge Donaldson considered the question of forcible entry in the UK, in Swales v. Cox (1981):

"... he uses force if he applies any energy to the obstacle with a view to removing it. It would follow that, if my view is correct, where there is a door which is ajar but it is insufficiently ajar for someone to go through the opening without moving the door and energy is applied to that door to make it open further, force is being used. A fortiori force is used when the door is latched and you turn the handle from the outside and then ease the door open. Similarly, if someone opens any window or increases the opening in any window, or indeed dislodges the window by the application of any energy, he is using force to enter..."

No solid definition of the term in OSCN that I can find, though. Was why I asked initially if anyone knew.

 

[ProBusiness]

'AND" should not be there and does not matter. I discussed with the CLEET attorney that made the material for the SDA course. The main fact is if anyone is in your home illegally which means they have entered without your blessing, then it is an illegal entry.

Your front door can be wedged open, say you are moving furniture, and left open while you carry something heavy to the back of the house, look up and there is a bad guy. He did not 'forcibly' enter through the front door but he is in your house illegally and you can protect yourself.

The attorney said he would consider removing the 'AND' in future course material.

I wished they had changed this with the other 11/1/13 revisions.

This bugged me in quite a few open/concealed carry classes because the 'AND' just did not work and people would catch it.

 

[n8thegr8]

in my SDA class, the teacher said the courts have used the physics definition of force (technically walking through an open door is exerting force on the floor)

whether or not he was full of it is another story

 

[prophet]

Does this help any?
http://www.oscn.net/applications/oscn/DeliverDocument.asp?citeid=69782