Man said he fired warning shot to stop burglar, now faces felony charges

[Teh One Who Knocks]

By JOHN QUINN - Union Leader Correspondent


http://i.imgur.com/R89JHm.jpg

FARMINGTON — A 61-year-old man is facing felony charges after he said he fired a shot into the ground to apprehend a burglar Saturday afternoon.

After discovering someone had rummaged through the drawers and taken items from his home on Ten Rod Road, Dennis Fleming said he grabbed a .38 caliber handgun from a shelf, went outside and spotted a man with a backpack walking down the road.

“It's a violation. I was pissed,” Fleming said, adding he realized he should have called police, but wasn't sure officers would arrive in time.

The sound of a crash at a neighbor's home — just over 1,000 feet away — drew Fleming's attention; he spotted the same man he'd seen on the road coming out of his neighbor's window.

Fleming said he wasn't sure he could stop the man, so he fired his pistol once into the ground — far off to the side — to detain the man, later identified as Joseph Hebert, 27, of 70 Bunker St.

“I just wanted him to take me serious,” Fleming said. “He did.”

Fleming said he unloaded the pistol and put it on a nearby rock after a couple of his neighbors arrived to restrain Hebert, who police said had broken his heel jumping out of Fleming's second-floor window.

After searching the backpack, Fleming said he found two pocket watches, some decorative pins, a handful of rubber bands, some rubber gloves and some tape that Hebert had taken from his house.

Fleming said he's owned guns all his life and had several weapons in his house Saturday, including two rifles, two shotguns and the handgun he used.

“I hadn't fired it in 20 years. It was all greasy and dusty up on the shelf,” Fleming said, adding the police collected all of the weapons after he turned himself in to authorities Saturday night.

Police Chief Scott Roberge said officers had contacted the Strafford County Attorney's Office, which recommended Fleming be charged with reckless conduct, a class B felony, for discharging his weapon.

“My understanding is that he (Fleming) fired a warning shot,” Roberge said.

Strafford County Attorney Thomas Velardi could not be reached for comment.

Fleming said he takes responsibility for his actions, which could result in 3 1/2 to 7 years in prison if he is convicted.

“I'm hoping it won't come to that, but I've got broad shoulders, so I'll deal with it,” Fleming said, adding he has 14 grandchildren and five great-grandchildren.

“Even knowing what I face, I would do it again,” Fleming said.

Fleming said he's surprised at the reaction of his neighbors, many of who have shaken his hand and thanked him.

“This is something that has struck a chord — nationwide,” Fleming said, noting he's received a tremendous amount of support from around the area and has been contacted by people as far away as the Midwest and Utah.

Herbert, who remains at Strafford County Jail, entered no plea to the three felony charges — two counts of burglary and possession of Vicodin — during his video arraignment in Rochester District Court Tuesday.

He admitted to being an addict and asked to be released so he could get the help he needs. Herbert, who appeared on crutches, also asked to be confined at his home, arguing he is not a flight risk, as he broke his heel.

“I've been very cooperative to this point,” Herbert said, adding he'd showed police several homes he allegedly stole from in town.

The prosecution argued against releasing Herbert, noting he was convicted of possession of controlled drugs, criminal threatening, robbery, criminal mischief and for violating probation in New Hampshire between 2004 and 2006. He added Herbert also was twice charged with breaking and entering in Massachusetts in 2010 and 2011.

Judge Daniel Cappiello set bail at $10,000, cash only, with the provisions he would be monitored by Strafford County Community Corrections Program, undergo a mental health evaluation and refrain from using drugs, if he is released. Herbert was ordered not to contact or go near Fleming or the other resident of the house he allegedly broke into.

Herbert is scheduled for a probable cause hearing March 1.

Fleming, who was released on personal recognizance, is scheduled to be arraigned in Rochester District Court March 20.

[Loser]

If you're going to be a gun owner, it's your responsibility to know the laws.

He can try to feign ignorance, but I doubt that will work.

[Acid Trip]

If you're going to be a gun owner, it's your responsibility to know the laws.

He can try to feign ignorance, but I doubt that will work.

Seriously? That's what you got out of the entire article?

Let's dismiss the fact he stopped a serial robber in his tracks by simply firing a shot into the ground! Let's only focus on the retarded gun law he broke in the apprehension of a criminal! :roll:

[Muddy]

Obviously we have some cops that are intimidated by the fact that John Q Citizen isn't helpless without their help.

What a crock of shit..

[KevinD]

As I understand it, warning shots are illegal in Texas, dunno about where this happened as couldn't identify the state.

If it had been me, I would have gone with the "Accidental discharge" excuse.

[Loser]

Seriously? That's what you got out of the entire article?

Let's dismiss the fact he stopped a serial robber in his tracks by simply firing a shot into the ground! Let's only focus on the retarded gun law he broke in the apprehension of a criminal! :roll:

The fact of the matter is, it's against the law to shoot a firearm within city limits.

He broke the law.

Add to the fact that if he had actually shot the perpetrator, he would go to prison for murder.

His life was in zero danger. He broke the law. End of story.

[Acid Trip]

Obviously we have some cops that are intimidated by the fact that John Q Citizen isn't helpless without their help.

What a crock of shit..

:+1:

[Teh One Who Knocks]

As I understand it, warning shots are illegal in Texas, dunno about where this happened as couldn't identify the state.

If it had been me, I would have gone with the "Accidental discharge" excuse.

New Hampshire

[Pony]

The fact of the matter is, it's against the law to shoot a firearm within city limits.

He broke the law.

Add to the fact that if he had actually shot the perpetrator, he would go to prison for murder.

His life was in zero danger. He broke the law. End of story.

It's not a city, it's a farming town of less than 4000 people, the gun laws may very well be different that where you live. Even a little outside of where I live you can legally shoot outside. A warning shot into the ground may be a different matter but generally I think most small town cops would be shaking his hand as a hero.

[PorkChopSandwiches]

:facepalm:

[Loser]

It's not a city, it's a farming town of less than 4000 people, the gun laws may very well be different that where you live. Even a little outside of where I live you can legally shoot outside. A warning shot into the ground may be a different matter but generally I think most small town cops would be shaking his hand as a hero.

Flip the board.

If that bullet had ricocheted and hit someone in the head...What would you people be saying then?

There are laws for a reason.

Personal property is covered by insurance, a gun is to protect your life. If your life isn't in danger, then it shouldn't be fired.

[Acid Trip]

Flip the board.

If that bullet had ricocheted and hit someone in the head...What would you people be saying then?

There are laws for a reason.

Personal property is covered by insurance, a gun is to protect your life. If your life isn't in danger, then it shouldn't be fired.

I'll take "you people" as meaning "those who realize there are shades of grey everywhere because not everything is black and white".

If you fire a warning shot into the ground, and it ricochets and kills someone, then you should be tried for manslaughter/murder. Intentional or not, you killed someone.

If you stop a crime by shooting a gun into the ground (no ricochet), and no one is hurt, it's a non-incident and needs no further discussion/police investigation. I like to call it common sense.

[Pony]

I'll take "you people" as meaning "those who realize there are shades of grey everywhere because not everything is black and white".

If you fire a warning shot into the ground, and it ricochets and kills someone, then you should be tried for manslaughter/murder. Intentional or not, you killed someone.

If you stop a crime by shooting a gun into the ground (no ricochet), and no one is hurt, it's a non-incident and needs no further discussion/police investigation. I like to call it common sense.

Thank you, I was going to say the same thing. Every single law on the books must be enforced 100% regardless of the severity of the crime.

[FBD]

I'm fully with Loser on this one - I cant think of any place firing a warning shot at someone who is trying to escape would be legitimate. You dont friggin fire warning shots, you shoot to kill if you have to shoot, because if you're not shooting to kill then you arent in enough danger to be shooting in the first place. He could have chased the fker down and held him at gunpoint perhaps, but the warning shot is a no-no in just about every context I'm aware of that isnt very demonstrable self defense in the face of imminent danger.

[PorkChopSandwiches]

but the warning shot is a no-no in just about every context I'm aware of that isnt very demonstrable self defense in the face of imminent danger.

Even when it solves the problem with no deaths :roll:

[FBD]

yes, even when "it solves the problem with no deaths."

[Loser]

The sound of a crash at a neighbor's home — just over 1,000 feet away — drew Fleming's attention; he spotted the same man he'd seen on the road coming out of his neighbor's window.

Fleming said he wasn't sure he could stop the man, so he fired his pistol once into the ground — far off to the side — to detain the man, later identified as Joseph Hebert, 27, of 70 Bunker St.




I'll take "you people" as meaning "those who realize there are shades of grey everywhere because not everything is black and white".

If you fire a warning shot into the ground, and it ricochets and kills someone, then you should be tried for manslaughter/murder. Intentional or not, you killed someone.

If you stop a crime by shooting a gun into the ground (no ricochet), and no one is hurt, it's a non-incident and needs no further discussion/police investigation. I like to call it common sense.

Reread the story.

He wasn't stopping a crime in progress, he was attempting to detain the robber AFTER the crime was already committed.

There was no further threat to life or property, yet he still took it upon himself to put others at risk by firing a warning shot.

Again, reckless and asinine.

[Loser]

FYI, If I were the district attorney of this case, I wouldn't of filed felony charges against him, I would of remanded him to a firearms safety class.

[PorkChopSandwiches]

FYI, If I were the district attorney of this case, I wouldn't of filed felony charges against him, I would of remanded him to a firearms safety class.

thats a better attitude :)

[Acid Trip]

FYI, If I were the district attorney of this case, I wouldn't of filed felony charges against him, I would of remanded him to a firearms safety class.

Perhaps you should run for DA. Theirs is an idiot of the highest degree.

[Loser]

thats a better attitude :)


Perhaps you should run for DA. Theirs is an idiot of the highest degree.

I can understand the argument on both sides, and can look at it from a purely judicial point of view, but common sense says it was excessive.

[Acid Trip]

I can understand the argument on both sides, and can look at it from a purely judicial point of view, but common sense says it was excessive.

:-s

What is this "common sense" you speak of?

:-k

[KevinD]

NH state laws:



627:4 Physical Force in Defense of a Person.

I. A person is justified in using non-deadly force upon another person in order to defend himself or a third person from what he reasonably believes to be the imminent use of unlawful, non-deadly force by such other person, and he may use a degree of such force which he reasonably believes to be necessary for such purpose. However, such force is not justifiable if:
(a) With a purpose to cause physical harm to another person, he provoked the use of unlawful, non-deadly force by such other person; or
(b) He was the initial aggressor, unless after such aggression he withdraws from the encounter and effectively communicates to such other person his intent to do so, but the latter notwithstanding continues the use or threat of unlawful, non-deadly force; or
(c) The force involved was the product of a combat by agreement not authorized by law.
II. A person is justified in using deadly force upon another person when he reasonably believes that such other person:
(a) Is about to use unlawful, deadly force against the actor or a third person;
(b) Is likely to use any unlawful force against a person present while committing or attempting to commit a burglary;
(c) Is committing or about to commit kidnapping or a forcible sex offense; or
(d) Is likely to use any unlawful force in the commission of a felony against the actor within such actor's dwelling or its curtilage.
III. A person is not justified in using deadly force on another to defend himself or a third person from deadly force by the other if he knows that he and the third person can, with complete safety:
(a) Retreat from the encounter, except that he is not required to retreat if he is within his dwelling or its curtilage and was not the initial aggressor; or
(b) Surrender property to a person asserting a claim of right thereto; or
(c) Comply with a demand that he abstain from performing an act which he is not obliged to perform;
nor is the use of deadly force justifiable when, with the purpose of causing death or serious bodily harm, the actor has provoked the use of force against himself in the same encounter.
(d) If he is a law enforcement officer or a private person assisting him at his direction and was acting pursuant to RSA 627:5, he need not retreat.

627:7 Use of Force in Defense of Premises

A person in possession or control of premises or a person who is licensed or privileged to be thereon is justified in using non-deadly force upon another when and to the extent that he reasonably believes it necessary to prevent or terminate the commission of a criminal trespass by such other in or upon such premises, but he may use deadly force under such circumstances only in defense of a person as prescribed in RSA 627:4 or when he reasonably believes it necessary to prevent an attempt by the trespasser to commit arson.

627:8 Use of Force in Property Offenses.

A person is justified in using force upon another when and to the extent that he reasonably believes it necessary to prevent what is or reasonably appears to be an unlawful taking of his property, or criminal mischief, or to retake his property immediately following its taking; but he may use deadly force under such circumstances only in defense of a person as prescribed in RSA 627:4.

Plainly, the shooter was NOT justified in the first place to use deadly force, irregardless if he aimed at the perp or not.
At this point there are several things the shooter could be charged with. Discharge of a firearm inside city limits is the least of them.

Basically, again, it goes back to knowing the pertinent laws in your area. I'm familiar with mine, and would not ever fire a "warning shot".

[PorkChopSandwiches]

Basically, again, it goes back to knowing the pertinent laws in your area. I'm familiar with mine, and would not ever fire a "warning shot".

Just shoot 'em dead and drag 'em back in the house :tup:

[KevinD]

I refuse to comment on that, being as it could be used against me at some point. lol

[PorkChopSandwiches]

:dance:

[Acid Trip]

Just shoot 'em dead and drag 'em back in the house :tup:

Police look for drag marks. Use a wheelbarrow instead.

[Hal-9000]

The fact of the matter is, it's against the law to shoot a firearm within city limits.

He broke the law.

Add to the fact that if he had actually shot the perpetrator, he would go to prison for murder.

His life was in zero danger. He broke the law. End of story.

Read the story, thread comments....ok I'm confused.If the above is true, why the hell are all you gun people bitching and moaning about the right to have a firearm in your home? If you can't discharge a weapon for any reason within city limits I don't see the benefit of owning umpteen guns...

Here's a better way to ask - Let's say the home owner in the story woke up to find the guy moving about in his home.He doesn't know at that point that he's a thief.Can the gun owner fire a warning shot into the guy's leg and claim he felt threatened for his safety?

[DemonGeminiX]

Police look for drag marks. Use a wheelbarrow instead.

They'll pretend not to notice the drag marks if you're friends with them.

;)

[Teh One Who Knocks]

Read the story, thread comments....ok I'm confused.If the above is true, why the hell are all you gun people bitching and moaning about the right to have a firearm in your home? If you can't discharge a weapon for any reason within city limits I don't see the benefit of owning umpteen guns...

Here's a better way to ask - Let's say the home owner in the story woke up to find the guy moving about in his home.He doesn't know at that point that he's a thief.Can the gun owner fire a warning shot into the guy's leg and claim he felt threatened for his safety?

If it's in your own home, then all bets are off....you are authorized (in most states) to use deadly force if you feel threatened. Discharging a firearm wouldn't be in play if you were defending yourself/family/property

[Hal-9000]

If it's in your own home, then all bets are off....you are authorized (in most states) to use deadly force if you feel threatened. Discharging a firearm wouldn't be in play if you were defending yourself/family/property

So the real situation is what Loser pointed out....the guy walked out his door, was not in jeopardy and to turn a phrase, he brought the scene back to him by firing the warning shot....


confusing

[Hal-9000]

fecking tape and rubber glove thief...should get the chair! :x

[KevinD]

Read the story, thread comments....ok I'm confused.If the above is true, why the hell are all you gun people bitching and moaning about the right to have a firearm in your home? If you can't discharge a weapon for any reason within city limits I don't see the benefit of owning umpteen guns...

Here's a better way to ask - Let's say the home owner in the story woke up to find the guy moving about in his home.He doesn't know at that point that he's a thief.Can the gun owner fire a warning shot into the guy's leg and claim he felt threatened for his safety?

In my case, I'm outside city limits, so, no problems there.
In a nutshell, it is illegal to "recklessly" discharge a firearm inside city limits in basically every city in the US. If you are using a firearm to protect yourself/property under your state's Castle Doctrine/law, then it is legal to discharge said firearm, even inside city limits. In the OP case, under NH laws, he was NOT justified in pulling out his firearm, much less shooting it, warning shot or otherwise.
Hope that helps your confusion.
Oh, and a warning shot to the leg is not a warning shot. That's non-deadly force. lol

[Hal-9000]

your last sentence is what I was really after....

I wake up and bump into a stranger in my house.Can I shoot him in the buttocks and not worry about court?

[Teh One Who Knocks]

So the real situation is what Loser pointed out....the guy walked out his door, was not in jeopardy and to turn a phrase, he brought the scene back to him by firing the warning shot....


confusing

The reckless discharge of a weapon law is to prevent a scenario like Loser brought up....you fire the weapon, the bullet either directly (direct hit) or indirectly (ricochet or the like) injures or kills someone. That is what those laws are meant to prevent.

[KevinD]

Oh, and BTW, Texas defines it's Castle Law to include a vehicle under your lawful control, any home or property you are lawfully in as well as traveling between them. Thus, If a person was to shoot someone outside their home, it could be justifiable homicide, and if so, also exempt from civil suit.

No need for wheelbarrows.

[KevinD]

your last sentence is what I was really after....

I wake up and bump into a stranger in my house.Can I shoot him in the buttocks and not worry about court?

In a word. No.

If you shoot anyone, any way, for any reason, you DO need to worry about court.

I'd be happy to give a link to relevant Texas law, but, you'd need an hour or two to read it all. lol

[Hal-9000]

The reckless discharge of a weapon law is to prevent a scenario like Loser brought up....you fire the weapon, the bullet either directly (direct hit) or indirectly (ricochet or the like) injures or kills someone. That is what those laws are meant to prevent.


I gained an inch of respect for gun laws reading that today....

[Loser]

your last sentence is what I was really after....

I wake up and bump into a stranger in my house.Can I shoot him in the buttocks and not worry about court?


In a word. No.

If you shoot anyone, any way, for any reason, you DO need to worry about court.

I'd be happy to give a link to relevant Texas law, but, you'd need an hour or two to read it all. lol


I'll answer these both at the same time.

If a state has a castle law, it generally goes like this.

If you, at any time feel your life, or the life of others inside your house is in danger, you can use lethal force without fear of conviction or civil suit.

Texas's castle law may be different, but here in indiana, if I woke up to someone hovering over me and felt like my life was in danger, I could legally plug that fker.

[Hal-9000]

If I woke up to someone hovering over me...only one question

Are you my mother?



then it's bootfucking time :dance:

[KevinD]

I'll answer these both at the same time.

If a state has a castle law, it generally goes like this.

If you, at any time feel your life, or the life of others inside your house is in danger, you can use lethal force without fear of conviction or civil suit.

Texas's castle law may be different, but here in indiana, if I woke up to someone hovering over me and felt like my life was in danger, I could legally plug that fker.

Fear of conviction and or civil suit is not what he was asking. If you do shoot someone, you WILL go to court in most cases. There it will be determined if the shooting was justifiable under said castle doctrine, Not all Castle doctrines provide exemptions from civil suit.

In Hal's example, under Texas law I could indeed shoot said stranger, BUT (and this is the biggie) you (the shooter) have to prove that you were in fear for your or others lives.

[DemonGeminiX]

In Hal's example, under Texas law I could indeed shoot said stranger, BUT (and this is the biggie) you (the shooter) have to prove that you were in fear for your or others lives.

But a man is innocent until proven guilty. The burden of proof should fall on the prosecution to show that you weren't afraid for your or other's lives when you shot the perp.

[Loser]

Generally, in most cases involving a castle doctrine, if it's a clear cut case of home invasion the D.A won't even attempt to file charges, thus no court.

Now if for example, the person that broke into your house was shot in the back, your ass is going to court :lol:

[KevinD]

But a man is innocent until proven guilty. The burden of proof should fall on the prosecution to show that you weren't afraid for your or other's lives when you shot the perp.

While I agree, lawyers don't always, lol


Generally, in most cases involving a castle doctrine, if it's a clear cut case of home invasion the D.A won't even attempt to file charges, thus no court.

Now if for example, the person that broke into your house was shot in the back, your ass is going to court :lol:

And buttocks is also "back" so, again, in Hal's example, he'd be going to court

Also, if the DA doesn't file charges, and the shooting isn't found to be "Justified" that can leave the door open for a Civil suit. Hmm, thinking about starting a thread on this stuff so can get it all in one place.

[Godfather]

your last sentence is what I was really after....

I wake up and bump into a stranger in my house.Can I shoot him in the buttocks and not worry about court?

Hal up here, unless you're on Crown land or in an official firing range you just can't shoot a gun (unless you're a cop or doing work bear-country). Not at a person whether they're a rapist or murderer or burglar, not near them, not in the foot, not at a skunk or raccoon in your yard. Never. Not without serious penalties.

I kind of like that in the US, if someone seriously threatens your family, you can shoot them in your own castle. But it seems that every major stat points towards it being more dangerous to own a gun than to not, so maybe I'm kidding myself wishing the same laws be enacted up here....

[KevinD]

Deep (iirc) was always pointing out that simply owning a gun automatically increased the danger (if it wasn't Deep, I apologize) but I don't recall any statistic that actually backed that up.

I would suppose, that yes, simply having a gun (along with ammo of course) in my house would increase the likely hood of some one being shot IN MY HOME, by MY gun, but that doesn't increase my overall chances of being shot significantly imho.

[Godfather]

I don't want to be caught on this end of the debate, but from what I've read (based on peer-reviewed studies like out of Penn State), as numbers go, gun owners are shot almost 5 times more than non-gun owners.

Again, not reflective of my feelings on the matter.

[KevinD]

No, no..I wasn't trying to start a debate on that GF. I'm actually curious on the data.

[DemonGeminiX]

If I woke up to someone hovering over me...only one question

Are you my mother?



then it's bootfucking time :dance:

:huh:

Wait a second... you'd fuck your mother's boot? You Canadians have some really weird passtimes up there.

[Loser]

I don't want to be caught on this end of the debate, but from what I've read (based on peer-reviewed studies like out of Penn State), as numbers go, gun owners are shot almost 5 times more than non-gun owners.

Again, not reflective of my feelings on the matter.

There's several reasons for this. I'll list a few.

-Most people that get shot prior to owning a firearm, generally want to own one of their own to level the playing field.
-Most people that own a firearm, due so because of the shitty neighborhood they live in.
-Generally when someone needs to pull a firearm in self defense, it because the person trying to kill them has one himself.

etc..

The list goes on.

And tbh, it's a flawed idea to base a poll on.

For instance, I bet people that own cars get into more accidents than people that don't. ;)

[Godfather]

There's several reasons for this. I'll list a few.

-Most people that get shot prior to owning a firearm, generally want to own one of their own to level the playing field.
-Most people that own a firearm, due so because of the shitty neighborhood they live in.
-Generally when someone needs to pull a firearm in self defense, it because the person trying to kill them has one himself.

etc..

The list goes on.

And tbh, it's a flawed idea to base a poll on.

For instance, I bet people that own cars get into more accidents than people that don't. ;)

Yeah those are all very fair explanations. I won't argue with any of them.

I guess there are still a few stats in my mind that I'd need to see if CC permits were an options to me - maybe they exist, maybe they don't. Basically I'd just like to see the comparison of injury/murder rates of victims of B&E's/muggings/carjackings/sexual assaults between owners and non-owners of guns.

The stat would still be obscured by the things you mention to some degree. Still, it'd be a more accurate number than simply "firearms deaths vs. ownership"

Not sure what those would look like, I hope they favor firearms owners but it's hard to know. The car comparison is apt - How many people drive cars but are totally irresponsible :wha:

[FBD]

Yes, it was deep who continually asserted that and entirely neglected the myriad ways a gun makes you safer. it got old (like some other topics, I'm sure :dance: