Merritt Landry, a 33-year-old “white caucasian” shot the victim, a 14-year-old black boy, in the head. A single spent cartridge case was recovered at the scene, indicating that a semi-automatic weapon was used and suggesting that a single shot was fired. The hour of the shooting was approximately 2:00AM, on Friday, July 26, 2013. As of this writing the victim is reported to remain alive, in critical condition at a local hospital.

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The victim was shot within feet from the rear door of Landry’s dwelling in New Orleans, in an area accessible only by having to scale a locked fence, suggesting forcible entry onto the property by the victim.

A local resident and friend of Landry’s, Charles Hazouri, had security cameras on the exterior of the home which appear to have recorded the victim and a friend riding their bicycles up and down the street at 1:44AM. Earlier in the evening, another neighbor had seen the apparent friend biking around the neighborhood at 8:00PM. This neighbor, like Landry a “white caucasian,” considered calling the police, but decided against this for fear of being perceived as having racially profiled a “kid who’s just biking.”

The Hazouri recording purportedly shows the two teens talking in the middle of the street outside of Landry’s house at about 1:44AM. One wore a dark tank top and the other wore a light tank top. The teen in the light tank top climbed over Landry’s fence and into the yard. Landry’s large dog began to bark, alerting Landry to the intruder.

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The Landry’s pet dog which alerted the homeowner to the presence of an intruder within his gated and secured driveway at 2:00AM.

An anonymous friend has stated that Landry’s father reported his son believed he was shooting an intruder. In terms of the victim being an intruder upon secured property, this seems a reasonable perception. Whether the victim intended to intrude into the dwelling is not known, or that under the circumstances a reasonable person would have believed the victim was intending to do so, is less clear.

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The locked gate over which the intruder scaled at 2:00AM, shortly before approaching the home’s rear door and being shot through head by homeowner Merritt Landry.

Hazouri reports that Landry, who has a baby daughter and whose wife is pregnant, believed that the victim was trying to break into his house. “All I know is that Merritt had told his family that he had said: ‘Freeze!’ and it looked like the guy turned at him and had his hand on his hip,” Hazouri reported.

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The rear door of Merritt Landry’s home, and the driveway where car was parked, when Landry came upon intruder at 2:00AM.

Landry has been charged with attempted second degree murder. His bond was set to $10,000; he posted bond late Friday afternoon. Landry works for the City of New Orleans as a building inspector. The city says he has been placed on emergency suspension without pay pending the outcome of this case.

LOSD Analysis

Disclaimer: This analysis is based upon the “facts” as reported by the news media. These “facts” so must therefore be assumed to be elastic, selected to fit a hidden narrative, and perhaps even outright false. Nevertheless, they are the only “facts” with which we have to work. As new information becomes available we will adjust our coverage and analysis accordingly.

Attempted Second Degree Murder

The attempted second degree murder charge is as blatant a piece of overcharging as was the second degree murder charge brought against George Zimmerman.

Under LRS 14:30.1  Second degree murder, there are four paths to a conviction on second degree murder. Two of these involve the distribution of drugs and can be discarded on their face. A third involves a killing during the course of committing a violent felony, and this also clearly does not apply to these facts.

The last path involves the offender with a specific intent to kill or to inflict great bodily harm. Although such intent can form quickly, and Louisiana’s second degree murder charge does not incorporate the element of a “depraved murder” as is the case in Florida, it seems clear that Landry’s only use of force was in a perceived need to act in self-defense.

That perception may have been unreasonable, and therefore self-defense may fail in this instance, but even then the killing can not have been second degree murder where the killer possessed a genuine (if unreasonable) belief that he must use deadly force in self-defense rather than the intentional mental state of committing a murder.

A more reasonable charge would have been manslaughter, under LRS 14:31, if the victim’s intrusion into the property might be seen as adequate provocation, or perhaps negligent homicide under LRS 14:32.

LRS 14:19 Use of force or violence in defense

Landry will surely seek to advance self-defense against the charges. Louisiana has one self-defense statute for when the use of defensive force does not result in a death—LRS 14:19 Use of force or violence in defense—and a second self-defense statute for when the use of force does result in a death- LRS 14:20 Justifiable homicide.

As of this writing the victim remains alive, and the charge remains attempted murder rather than murder, so in this context we would look to LRS 14:19. Several sections of LRS 14:19 would seem to apply here.

First, LRS 14:19(A) provides that the use of defensive force is justifiable to prevent a forcible offense against a person or trespass against property. It states that the force must be reasonable and necessary under the circumstances, but does not explicitly limit the degree of force to non-deadly force. If, however, the person against whom the force was used actually does die, LRS 14:19 is no longer applicable and instead LRS 14:20 comes into play. If the defendant’s apparent testimony that the victim turned towards him at being challenged and appeared to be reaching for a weapon is believed, the element of prevention of a forcible offense against a person will have been met.

Second, LRS 14:19(B) provides a legal presumption of a reasonable belief that the use of force was necessary if the person using the defensive force was inside his dwelling and the force was necessary to prevent unlawful entry into the dwelling or to compel an unlawful intruder to leave the premises. The facts do not suggest that the victim here was actually inside the dwelling, but rather was a few feet from the door to the dwelling. There are two conditions to this presumption. First, that the victim either had or was in the process of unlawfully entering the dwelling, and second that the person using defensive force had reason to believe that an unlawful entry had, or was about to, occur. It seems likely that Landry will claim that he believed his use of force was necessary to prevent the victim’s unlawful entry into the dwelling.

The presence of an unknown person immediately outside one’s backdoor at 2:00AM, under circumstance that would have required them to scale a fence in order to be so situated, would seem to allow a reasonable belief that an unlawful entry into the dwelling was intended.

Alternatively, depending on how Louisiana defines “dwelling” and “curtilage” for defenses purposes, the defendant may also rely on the claim that he reasonably believed the force was necessary to compel the victim to leave. This seems a more tenuous defense, however.

Finally, 14:19(C) is Louisiana’s Stand-Your-Ground law in the context of non-fatal defensive force, relieving the defendant of any generalized duty to retreat, and 14:19(D) prohibits the jury from even considering whether retreat was possible.

LRS 14:20 Justifiable homicide

But what if the victim in this matter dies? Then 14:19 goes out the window, and we turn to LRS 14:20 Justifiable homicide.

14:20(A)(1) provides, succinctly, that a homicide is justifiable “When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” If Landry’s claim that the victim here turned and being challenged and appeared to be reaching for a weapon is believed, and particularly under the circumstances of the hour of night and the need for the victim to have scaled a locked fence, (A)(1) would appear to fit the facts well.

Section (A)(2) justifies a homicide when committed to stop a forcible felony involving danger of death or great bodily harm. Interestingly, it does not require that the person using force be in reasonable fear of death or great bodily harm, only that these are possible dangers of the violent felony. This section does, however, require that the use of defensive force reasonably believe that an attempt to prevent the forcible felony without killing would expose him to a serious danger to his own life or person.

The state may argue that the victim was merely attempting to break into Landry’s car, rather than enter the dwelling. A car break-in does not usually involve an act of violence against a person, and car break-in is not explicitly listed in LRS 14:2 Definitions as among the states’ defined “crimes of violence.” The defense could well respond, however, that this was not a simple car-break in, that the car’s position within feet of Landry’s door and the need for the victim to have scaled a locked fence transforms what might otherwise have been a relatively innocuous car break-in to a crime that, like a burglary, substantially raises the risk that the thief may be confronted by the car owner and violence erupt.

Section (A)(3) is Louisiana’s Make-My-Day law, and justifies a killing of a person believed to be likely to use any unlawful force against someone in a dwelling, while that person is committing or attempting to commit a burglary or robbery of the dwelling. Whether the facts, as they develop, can support a reasonable belief that the victim here was attempting to commit a burglary of the dwelling shall be seen.

Section (A)(4) justifies the killing by a person lawfully inside a dwelling of another who either has or is attempting to unlawfully enter that dwelling. Again, we will need to see whether the facts support a reasonable belief on Landry’s part that the victim was attempting to unlawfully enter the dwelling.

Section (B) of 14:20 creates a legal presumption that an occupant of a dwelling had a reasonable belief that the use of deadly force was necessary to prevent unlawful entry by, or compel the departure of, an intruder into that dwelling if two conditions are met: first, the intruder either had or was attempting to enter the dwelling forcibly and second the person using defensive force reasonably believed the intrusion to be unlawful.

Section (C) is Louisiana’s Stand-Your-Ground law in the context of a fatal use of defensive force, and section (D) prohibits the jury from even considering whether retreat was possible.

9:2800.19 Limitation of liability for use of force in defense of certain crimes

Finally, it is noteworthy that Louisiana has a self-defense immunity statute, 9:2800.19 Limitation of liability for use of force in defense of certain crimes. Unlike Florida’s 776.032 Immunity from criminal prosecution and civil action for justifiable use of force, however, Louisiana’s statute applies only to civil liability where the defendant’s conduct was found justified under 14:19 or 14:20. Like Florida’s, it provides that the civil trial court shall (not may) attorneys fees, court costs, and even compensation for loss of income and “all expenses” to the defendant in a civil action where self-defense immunity is found to apply.

Look to Legal Insurrection for Continued Coverage of Landry Case

In summary, we’ll be following the Landry case just as closely as we did Zimmerman. Keep your eyes here for the latest and greatest new information and legal analysis.