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Home Defense: How Not to Do It

Hat tip to Joan Peterson for this story on a guy who shot two burglars execution style, and is being charged with murder. It is not often I agree with Joan, but I do agree that the homeowner’s behavior here was criminal and reprehensible. But I do want to explain the law here, especially as it relates to Castle Doctrine, so that we may dispel some common myths. First, from the story:

Brady fell down the stairs and was looking up at Smith when the homeowner shot him in the face.

“I want him dead,” Smith explained to the investigator for the additional shot.

Smith put Brady’s body on a tarp and dragged him to an office workshop.

A few minutes later, Smith heard footsteps above him. As in Brady’s case, Kifer too started down the stairs and was shot by Smith by the time he saw her hips, sending her tumbling down the stairs.

Smith attempted to shoot her again, but his rifle jammed, prompting Kifer to laugh.

Upset, Smith, pulled out a revolver he had on him and shot her “more times than I needed to” in the chest, he said.

Smith dragged Kifer next to Brady as she gasped for her life. He pressed the revolver’s barrel under her chin and pulled the trigger in what he described as a “good, clean finishing shot” that was meant to end her suffering.

Smith acknowledged leaving the bodies in his home overnight before calling a neighbor to ask about a lawyer and to request that authorities be notified.

In nearly all 50 states, including Minnesota, the mere use of deadly force in the circumstance of someone feloniously entering your home is, generally speaking, legitimate self-defense. In many states, forced entry into an occupied dwelling is considered prima facie evidence that a deadly threat exists. Minnesota, following traditional common law, allows for deadly force to be used to prevent the commission of a felony, though in MN limited to one’s place of abode, and burglary is a felony in Minnesota. Minnesota law states:

609.065 JUSTIFIABLE TAKING OF LIFE.

The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.

Regardless of whether castle doctrine has passed in Minnesota or not, there is already an absolute unqualified right (qualified by a duty to retreat in some circumstances in the home imposed by judicial fiat) to respond to burglars invading an occupied home in Minnesota with deadly force, but only if the purpose of such force is to prevent the continuing felony, or to protect life and limb. Murder is never lawful, and Minnesota, like most states, defines (in this case 2nd degree) murder as when someone “causes the death of a human being with intent to effect the death of that person or another, but without premeditation,” (emphasis mine). As soon as you say something like this to the police:

“I want him dead,” Smith explained to the investigator for the additional shot.

[...]

Upset, Smith, pulled out a revolver he had on him and shot her “more times than I needed to” in the chest, he said.

Smith dragged Kifer next to Brady as she gasped for her life. He pressed the revolver’s barrel under her chin and pulled the trigger in what he described as a “good, clean finishing shot” that was meant to end her suffering.

That’s the intentional infliction of death, which is murder. The intent in self-defense is never to inflict death, but to stop the attack, or in the case of Minnesota law, to prevent to commission of a felony. Once they are down, they are no longer a threat and no longer committing a felony. To take a “finishing shot,” becomes murder. This is regardless of the Castle Doctrine law.

I say this because our opponents characterization of this law as “shoot first,” and “license to kill,” creates the very real danger, when combined with an ignorant and unquestioning media willing to repeat their rhetoric, that some fool or whack job may actually believe it. This man confessed his crime willingly to the police. Why would he do that if he did not believe he was in the right? Let us not continue to peddle the myths about deadly force laws. Murder is always illegal.

22 Responses to “Home Defense: How Not to Do It”

  1. Harold says:

    In nearly all 50 states, including Minnesota, the mere use of deadly force in this circumstance is legitimate self-defense, as a forced entry into an occupied dwelling is considered prima facie evidence that a deadly threat exists in most states.

    Are you so sure about that? If so, why is there a need for Castle Doctrine laws? And why did Missouri’s “Missouri Plan” nominated judges then see fit to nullify our Castle Doctrine law (but not another, so you can use lethal force while someone is breaking into your home, but once they’re in it reverts to the usual imminent specific threat standard).

    And as of the ’80s the Massachusetts judiciary was obsessively biased towards a duty to retreat from your dwelling, no matter what the legislature said.

    Are you really, people may take your words as advice, sure of this “In nearly 50 all fifty states…” characterization?

    • Sebastian says:

      I’ll stand by that two people breaking into your home is lawful self-defense in nearly every state. Much of that is because of castle doctrine passing, but a lot of states always had relative broad self-defense statutes when it comes to the home. I think this could present a legal problem in maybe 10 states that I can think off, offhand. And even in most of those states, juries are going to be unlikely to convict in those circumstances.

      • Harold says:

        Well, all I can say is that if you follow one of Ayoob’s biggest themes, of surviving the aftermath of an encounter In the Gravest Extreme, you owe it to yourself and those who would be distressed by your being prosecuted for a major felony (lower to mid 6 figures required for an adequate defense), and perhaps going to prison and being disbarred from ever owning guns in the future, to look up the the law and case law of your state.

        The latter is critical, since as we’ve discovered in discussing this case it’s not always straightforward. Either consult a lawyer ($$$ since they’ll likely have to do a fair amount of research since few specialize in this area) or for a first step read Self Defense Laws of All 50 States (With Plain-Talk Summaries), published in 2010.

        Which for your state of Pennsylvania says, in the plain talk summaries:

        You can use deadly force against an intruder in your home as long as you have no information to believe he’s in your house legally and as long as you believe that nothing short of deadly force would stop him/her.

        If you don’t meet the above requirements, you can still use deadly force if…

        The intruder is trying to dispossess you of your dwelling. [Excepting your landlord or mortgage holder.]

        You are preventing the commission of felony in you dwelling. We take this to mean violent or serious felonies. See the discussion of cases summarized in Chapter 4 describing the risk of using deadly force against an unarmed, non-threatening felon.

        So add Pennsylvania to the list of states without a clear cut Castle Doctrine.

        Hmmm, also add Ohio to the states without an effective Castle Doctrine or anything else self-defense related, simply because it’s the only state in the union where the burden of proof is on the defendant in establishing legitimate self defense.

    • Patrick H says:

      I was under the impression that Castle Doctrine Laws applied to confrontations OUTSIDE the house- IE applying the same no-duty-to-retreat standard from a a person’s house (their castle) to a person’s location where they have every right to be (a public street).

      • Harold says:

        Focus on the the word “castle”, as in “Your home is your castle”. Castle doctrine laws if properly labeled)refer to actions in one of your castles, i.e. homes and often businesses.

        You’re thinking of “Stand Your Ground” laws. Especially since too many states don’t really have a castle doctrine as that’s normally understood, as in the very presence of an intruder in an occupied dwelling must be assumed to present an imminent threat to your life etc.

        • Bryan S. says:

          PA’s “Castle Doctrine”, Act 10 of 2011, removed the requirement to retreat and clarified that you had this protection anywhere you were legally allowed to be, and added protection from civil cases brought by families of the perp.

          (It also added it for peace officers, who did not have such liability protection)

          • Harold says:

            Thanks! A great illustration of why a dead tree book can only be a starting point for this question.

            So it’s an improperly or incompletely labeled “Castle Doctrine”, and should be also? labeled “Stand Your Ground”. At least if you consider Castle Doctrine to provide grounds for using lethal force vs. just removing the pre-firearms, pre-USA common law derived duty to retreat, and the law includes that.

            But one needs to watch for case law; don’t know what your judges are like but since you’re in a Blue State I’d assume judicial nullification is not out of the question like in my Purple State of Missouri with it’s … “non-partisan” method of nominating judges.

            • Bryan S. says:

              Few things on that. It was dubbed a Castle Doctrine because it fixed the issues that existed in PA law when defending yourself on your property. Before,you had a requirement to retreat.

              The SYG portion just updated it, a prime example of this was defense in a carjacking.

              As for case law, the first person to be cleared under it was a defense using, of all things, a bow and arrow. So far it has stood up.

              One of the things we are trying to get is a clear disparity of force language added to it. Right now, (my understanding) is that you can only face deadly force with like deadly force. But, In some people’s eyes, deadly force means different things. Multiple assailants coming after me with just their fists could be considered deadly force… but that depends on the situations. And I dont trust lawyers to give any situation the benefit of doubt.

  2. SPQR says:

    If this clown thought his acts were legal, its actually Joan Petersen’s fault for her misrepresentations of what Castle Doctrine means.

  3. Robb Allen says:

    Isn’t it Japete who’s always telling us this is normal behavior and that the laws let guys like this walk the streets? If so, then why is he being charged with murder? Shouldn’t, according to her, the NRA be putting his story on the front page of “Murder Made Easy Monthly” instead?

    It’s almost like she’s insane and cannot tell reality when it walks up and sinks its pointy teeth right into her posterior.

  4. Great analysis – but I’ll nitpick on one point as a MN Carry Permit Instructor. Many forms of burglary and/or breaking and entering in Minnesota aren’t felonies – they’re misdemeanors. The use of deadly force may not be applicable in one’s home in those situations.

    MN laws aren’t perfect – and this is one area that could stand some improvement. Unfortunately, our governor disagreed and vetoed the bill this year.

    Bryan

    • Sebastian says:

      Actually, it looks like duty to retreat has been applied by judicial fiat in your state in some circumstances. I’ve updated the post.

      • Not correct…

        At the Court of Appeals, yes. You need to look at the MN Supreme Court case that overruled that one.

        http://www.lawlibrary.state.mn.us/archive/supct/9906/c89886.htm

        A duty to retreat does not attach to defense of dwelling claims. So long as a person claiming defense of dwelling meets all of the criteria for making his or her claim – that the killing was done in the belief that it was necessary to prevent the commission of a felony in the dwelling, that the person’s judgment as to the gravity of the situation was reasonable under the circumstances, and that the person’s election to defend his or her dwelling was such as a reasonable person would have made in light of the danger to be apprehended – the person need not have attempted to retreat from his or her home.

        Further amplified in State v. Glowacki

        http://www.lawlibrary.state.mn.us/archive/supct/0107/c8991507.htm

  5. MAJ Mike says:

    Went against everything I’ve heard in Texas concealed carry classes from 1996 to 2011.

  6. KM Flynn says:

    In response to Mr. Stawser’s comments about burglary in Minnesota statutes. There are four degrees of burglary with only fourth degree burglary being a gross misdemeanor; first through third degree burglaries are felonies. There are no Minnesota statutes called “breaking and entering” and I’m not aware of any misdemeanor burglary laws. A person doesn’t have to “break” something to gain entry for an act to be considered burglary. Don’t confuse trespassing with burglary.

  7. Jeff Dege says:

    That appeals case you cited: State v. Carothers, C8-98-86, from September 22, 1998, was overturned by the MN Supreme Court on June 17, 1999.

    http://www.lawlibrary.state.mn.us/archive/supct/9906/c89886.htm

    A duty to retreat does not attach to defense of dwelling claims. So long as a person claiming defense of dwelling meets all of the criteria for making his or her claim – that the killing was done in the belief that it was necessary to prevent the commission of a felony in the dwelling, that the person’s judgment as to the gravity of the situation was reasonable under the circumstances, and that the person’s election to defend his or her dwelling was such as a reasonable person would have made in light of the danger to be apprehended – the person need not have attempted to retreat from his or her home.

    Reversed and remanded.

    This is one of a series of cases in which the district court found reason to limit the exercise of self-defense, was upheld by the Court of Appeals, and then slapped down by the Supreme Court.

    All of which convinces me that:

    1. The law concerning self-defense is confusing and contradictory, and
    2. Even if you win in the end, the process is likely to be drawn out, expensive, and painful.

    • Harold says:

      Exactly. I expect any time now for the unique to Texas right to use lethal force to stop a theft after a verbal warning to be declared unconstitutional by their courts; the only quibble is that the judges responsible might find it hard to keep their seats after an election or two. Since it’s such an outlier in the laws of the states I wouldn’t depend on it, unless, say, the thief was stealing your livelihood and your insurance was inadequate (e.g. does it include business continuity?)

      Hopefully similar to this case, as of when the book I cited went to press Missouri’s judicial nullification of our crystal clear Castle Doctrine was at the appeals court level. Perhaps our Supremes will reverse, but given the Missouri Plan I wouldn’t bet on it, unless the case was sufficiently notorious they’d be worried about getting turned out of office. Which nationwide is extremely rare, I think this has happened in only two elections, the Rose Bird et. al. in California and another I forget.

  8. asdf says:

    What an idiot. He is a murderer, and a stupid one at that. Anybody with a 2-digit IQ should have known that they were going to be in trouble in this scenario. If he had half a brain, he could have at least buried the bodies in his basement or something rather than call the police on himself *the next day*. I mean, if nobody had contacted the police by then, he might have been home free!

    • ParatrooperJJ says:

      I personally would not convict on this.

    • Zermoid says:

      You should shoot to stop aggression, not to intentionally kill the person.

      That is the difference.

      When you intentionally shoot extra shots to make sure a person is dead it’s manslaughter at least, if not murder.
      And admitting such to the police when the only witnesses are dead is just plain stupidity……..

  9. TCK says:

    I agree with asdf that sounds like this guy’s problems go WAY deeper than just misunderstanding self-defense laws.

  10. Stu Cozza says:

    Application of the three S’s may have worked better for him. ;)

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