Earlier this month, a man allegedly shot a woman through the front screen door of his porch when the woman knocked or banged on it after reportedly crashing her car nearby in suburban Detroit, Michigan. The case has since made news headlines.
I’ve been asked repeatedly to comment on the purported self-defense shooting by Theodore Wafer of Renisha McBride in Michigan, and now that the factual situation appears to have stabilized a bit it seems suitable fare for the Thanksgiving weekend.
Most of you will know that I was a vigorous supporter of George Zimmerman’s legal claim of self-defense in his shooting of Trayvon Martin. I also consider myself very much a member of the self-defense community, being an NRA instructor in personal protection (and other stuff) for ~20 years, a long-term competitor in the International Defensive Pistol Association (IDPA# 13; to provide context, membership now exceeds 20,000), and someone who arms himself as a routine matter of personal protection.
That said, the facts as currently available to me, considered in the context of Michigan self-defense law, suggests that Theodore Wafer is going to have considerable difficulty in successfully advancing a claim that the shooting of Renisha McBride was in lawful self-defense.
One caveat: The “facts” on which I rely are derived from the press, so as always should be taken with a grain of salt. I have, where possible, relied upon press sourced in the UK, rather than the widely discredited US press.
Michigan’s Law of Self Defense
Theodore Wafer has been charged with second-degree murder, manslaughter, and possession of a firearm used in a felony, for the shooting death of Ranisha McBride. He is claiming self-defense which, if successfully argued, would require an acquittal on all charges.
This case is likely to center on two Michigan self defense statutes. The first is 780.972, “Use of deadly force by individual not engaged in commission of crime.” This is essentially Michigan’s primary self-defense statute.
780.972 governs the use of both deadly force and non-deadly force in self-defense. In the context of deadly force, 780.972(1) provides that you can use deadly force against another person if you honestly and reasonably believe doing so is necessary to prevent imminent death, great bodily harm, or sexual assault to yourself or another person. Conditions to this allowance include that you must not be engaged in the commission of a crime and you must have been in a place you have a right to be–so active lawbreakers and trespassers need not apply. It also provides that there exists no duty to retreat, making Michigan one of the nation’s 34 Stand-Your-Ground states.
In the context of non-deadly force, 780.972(2) provides that you can use non-deadly force against another if you honestly believe that use of force necessary to defend against an imminent, unlawful use of force by that other person against you or another person. As with deadly-force, you must not have been engaged in the commission of a crime and you must have been in place you have a right to be. There is also no duty to retreat in the context of non-deadly defensive force.
The second self-defense statute relevant in this case is the lengthy 780.951, “Individual using deadly force or force other than deadly force; presumption; definitions.” The purported importance of 780.951 in this case is that it provides for a legal presumption that a person who used force against another had an honest and reasonable belief of imminent death, great bodily harm, or sexual assault, under certain conditions. This presumption is conditioned on both of the following:
(a) the person against whom the force was used was in the process of breaking and entering a dwelling or business or committing a home invasion, or had done so and remained in the building, or was attempting to forcibly remove someone from the building; AND
(b) the person who used the defensive force honestly and reasonably believed that the person against whom the force was used was engaged in the conduct just described.
A later section of 780.951 helpfully defines a “dwelling” as a structure or shelter used as a place of abode, including an appurtenant structure attached. Clearly, Wafer’s home and the porch on which McBride stood qualify as a “dwelling” under this definition (although the open accessible–some would say “inviting”–nature of a porch raises some interesting issues that would not be raised in the context of a closed and locked garage.
Much has been made in some internet postings that 780.951′s legal presumption makes Wafer’s use of deadly force in this instance an open-and-shut case of self-defense in the context of his home. Such confidence is, in my professional opinion, vastly overstated. If my opinion is insufficiently convincing, a 2012 Court of Appeals decision also suggests that 780.951 might not be all that a plain-text reading might suggest it is. More on that in a moment.
The Facts of the Case: Renisha McBride
I am basing this analysis on the facts as presented by the Daily Mail, a UK-based news organization that seems more guided by reality and good journalistic judgment, and less biased by racial and political considerations, than is typical of the US media. The specific news piece most relied upon is:
The facts, as stated in that news piece, are essentially as follows:
In the early morning hours of November 2, 2013, Renisha McBride, 19-years-old, was driving her car in an extremely intoxicated state. Forensic examination found her blood alcohol level (BAL) to be 0.218, more than twice MI’s legal limit for drunk driving. Toxicology also showed indications of marijuana in her blood.
At about 1:30AM, she crashed her car into another vehicle, apparently rendering it inoperable. Witnesses to the crash described McBride as bloodied and disoriented. Whether her confusion was a result of her sky-high BAL or injury from the crash, it appears to have been profound. She is described as exiting and re-entering her car several times. She is also described by witnesses as wearing a hooded jacket, with the hood up over her head–something that might well have contributed to a more menacing appearance than many of the pictures of McBride published after her death would suggest.
McBride then wandered away from her car, and for the next three hours her whereabouts and actions are apparently utterly unknown. Eventually, however, she found herself a considerable distance from the crash site, and stepped up onto the porch of the home of Theodore Wafer. At 4:46AM the police received a 911 call from Wafer saying that he believed he’d shot someone. You can listen to Wafer’s brief 911 call,here:
Wafer sounds genuinely upset in the 911 call, seeming almost in shock at the events that just passed when he abruptly signs off the call.
You can listen to the communication between the 911 dispatcher and the first responders who discovery McBride’s body, here:
McBride’s acts of driving while intoxicated and fleeing the scene of an accident are, of course, crimes in Michigan, as elsewhere. Those acts, however, are unlikely to be relevant in judging Wafer’s actions in shooting her. McBride’s great intoxication, however, likely will be relevant, as evidence of a “victim’s” intoxication is commonly admissible to support both the defender’s perception of fear as well as the probability that the intoxicated party initiated they physical conflict. (The Daily Caller article cites Prosecutor Kym Worthy as stating that McBride’s intoxication is irrelevant–I respectfully disagree.)
The Facts of the Case: Theodore Wafer
As noted above, Theodore Wafer called 911 to report the shooting at 4:46AM. For some reason he cut-off that communication communicating that brief information, but later reconnected with the 911 operator (it is unclear if he called them back, or if they initiated a return call as would normally be the case in such an instance). Exactly what happened in the minutes prior leading to McBride’s death is less concrete.
Information from Wafer is scarce, as is to be expected of a defendant in a murder case. Wafer’s lawyer, Cheryl Carpenter, is quoted in the Daily Mail piece as stating that Wafer was responding to “a lot of banging, a lot of noise, it didn’t sound like just knocking.” The “press facts” suggest that McBride was standing on Wafer’s front porch and knocking or banging at his front door.
It appears that there was both a primary front door and an exterior screen door, and that the shot that struck McBride travelled through the latter, but not the former. This suggests that McBride, armed with his shotgun, responded to the banging by opening the main door, but leaving the screen door shut. At some point, then, the shotgun was fired, striking McBride in the head, presumably killing her instantly.
Claim of Accidental Firing Walked Back
There were initial reports that Wafer claimed the actual firing of the shotgun was accidental. A claim of accident can have very serious consequences for any claim of self-defense. Interestingly, both accident and self-defense are perfectly legitimate legal defenses. Either, if believed by the jury, can justify an acquittal.
They are, however, mutually exclusive. An act of self-defense is an inherently deliberate act. You observed a threat, and you acted to counter that threat. An accident, in contrast, is well, an accident–the very opposite of a deliberate act. One may argue accident or self-defense, but generally not both simultaneously.
That said, there are unusual circumstances in which a death can be the result of some combination of self-defense and accident, and perhaps that is the case here. Arming himself with his shotgun, moving to the site of the banging front door, and aligning the barrel on the apparent aggressor may have been legitimate acts of self-defense. Then (speculating, of course) a care back-fired, startling Wafer such that he accidentally discharged the shotgun, killing McBride.
Even this scenario presents difficulties for Wafer, however. Although accident is a perfectly legitimate legal defense, it also requires essentially that the defendant had done nothing reckless or negligent to bring about the accident. This, however, is a very difficult standard to meet in the context of firearms. Firearms are considered inherently dangerous instruments, and a strict liability approach tends to be taken to their handling. That is, when managing a firearm you are deemed responsible for any harm caused, and held to a particularly high standard of responsibility in that regard.
As a result, a defense of accident in the context of handling firearms rarely results in an acquittal. At best, it may mitigate what would have been a murder conviction to involuntary manslaughter. Presumably this is why it is being reported that Wafer’s lawyer is moving away from any talk of accident, and focusing entirely on self-defense as justification for the shooting. For the remainder of this analysis I will set aside any consideration that the shot may have been fired accidentally.
Considering Wafer’s Actions as Self-Defense, Exclusive of 780.951
Analysis of this case necessarily involves both 780.972 (MI’s self-defense statute) and 780.951 (MI’s legal presumption statute). The analytical approach most consistent with Michigan case law suggests, however, that it would be prudent to conduct this analysis in a two-step fashion. That is, let us first consider whether Wafer’s conduct is likely lawful self-defense in the context of 780.972 alone. Once a conclusion is reached, we can consider how 780.951 might change things.
Applying 780.972 to the facts of this case, Wafer’s use of deadly force in self-defense would be justified if he honestly and reasonably believed that the use of deadly force was necessary to prevent his imminent death or grave bodily harm. Let us stipulate, for convenience of analysis, that Wafer honestly believed this to be the case–that is, that he did not act from racial or other impermissible considerations, for which there is no evidence.
That leaves us needing to determine whether Wafer’s perception of an imminent threat of death or grave bodily harm was reasonable. That is, would a reasonable and prudent person, in the same or similar circumstances, possessing the same or similar skills and knowledge, have done as Wafer did–respond to the banging on his door at 4:30AM by arming himself with a shotgun, opening his front door, and firing a shot through his screen door into the head of Renisha McBride.
To put it another way, what facts or circumstances would have led a reasonable and prudent man to perceive a threat of imminent death or grave bodily harm sufficient to Wafer’s deadly force response. A useful tool for evaluating this question is the AOJ triad.
The AOJ Triad: Ability, Opportunity, Jeopardy
The AOJ triad is a useful cognitive tool for both evaluating the imminence of a threat in real-time, as well as in articulating your perception of that threat to those will will i]retrospectively investigate and evaluate your use of force (e.g., police, prosecutors, judges, juries).
“Ability” asks whether there existed some disparity of force between your “attacker” and yourself that could be countered only by an escalation in your defensive force. Here, did McBride present herself in such a way that a reasonable person would believe she possessed the ability to bring deadly force to bear against Wafer. In other words, what was the disparity of force presented by McBride that could only be countered by Wafer’s shotgun?
Circumstances that would represent such a disparity of force include if McBride had displayed a weapon, or if she was substantially stronger or larger than Wafer, if she had been accompanied by others such that there was a disparity of numbers. Unfortunately for Wafer, neither these nor any other factors known to me support a finding of such a disparity of force. Wafer’s argument for the “Ability” prong of the AOJ triad therefore seems weak.
“Opportunity” asks whether there existed a means by which the purported “attacker” could bring their “ability” to bear against the defender. Absent McBride possessing a gun or other projectile weapon, the main issues around opportunity typically involve distance and obstacles. Unfortunately for Wafer if the Daily Mail’s characterization of the shot being fired at “a distance” is accurate it undermines any reasonable perception that McBride possessed the necessary opportunity, in the context of distance.
In the context of obstacles, it appears that there was at least a closed screen door between McBride and Wafer. Granted, most common screen doors aren’t all that much of an obstacle to a determined intruder, but absent some bizarre circumstances ought to have been sufficient to prevent an unarmed and diminutive (5′ 4″) McBride from having the opportunity to harm Wafer. Further undermining the opportunity leg of the AOJ triad is that McBride presumably had the means to simply shut his front door on McBride–or, even more tactically sound, not opening the door in the first place, and thus depriving McBride of being able to cause him death or grave bodily harm.
Jeopardy refers to whether the purported “attacker” is conducting themselves in such a way that a reasonable and prudent person would believe the attacker intended to bring their “ability” and “opportunity” to bear against them. An armed guard in a bank, for example, possesses both ability and opportunity, but does not present jeopardy–and so does not present an imminent threat of harm.
In this case, we simply do not know how McBride was conducting herself on Wafer’s porch. It is here that considerable degree of intoxication becomes relevant. Grossly drunk people are more likely to act in loud, aggressive and generally alarming fashion than are sober people. Strongly undercutting this leg of the AOJ triad for Wafer, however, are his original references to the shot being an accident. A person who fired at the perception of jeopardy would be expected to state as much, and not turn to accident for refuge.
In short, Wafer’s position is weak on “ability,” weak on “opportunity”, and weak on “jeopardy.” This is not a good argument for a reasonable perception of an imminent threat of death or grave bodily harm. Based on 780.972 alone, and the facts as currently understood, I would expect that State prosecutors have a strong probability of disproving self-defense beyond a reasonable doubt, as is their duty if they are to win a conviction.
Considering 780.951: Legal Presumption of Reasonable Fear
At this point of my analysis, supporters of Wafer are surely jumping up and down and pointing furiously at MI statute 780.951, which creates a legal presumption of reasonable fear of imminent death or grave bodily harm when one acts in self-defense against a person seeking to break and enter a dwelling. “Forget all that AOJ triad, nonsense,” they must be screaming, “Wafer’s already PRESUMED to have been in reasonable fear.” There are, however, several problems with this approach.
First, McBride would have had to be engaged in breaking and entering of Wafer’s dwelling, or home invasion. There appears to be zero evidence of either of these. Some will argue that because Wafer’s porch is considered part of his dwelling, McBride’s uninvited presence on his porch meets the legal requirement of breaking and entering. I’m afraid this simply fails the straight-face test. Absent clear labeling to the contrary–”Anyone stepping on this porch is subject to being shotgunned in the face!”–a porch is commonly understood as inviting visitors to your front door. Indeed, that is where the doorbell is found, or where one would traditionally knock to request a meeting with the homeowner. (This would seem to be particularly the case where the “porch” is actually quite small, what this New York native would have called a “stoop.”) Such perfectly normal behavior–even at 4:30AM–cannot alone be sufficient to warrant being shot in the face.
Second, the legal presumption provided by 780.951 is a rebuttable presumption. That is, the State can argue contrary to the presumption, and defeat the presumption by a preponderance of the evidence. Arguments such as described in the paragraph above would seem to go a far way in doing exactly that.
Finally, there exists Michigan case law that essentially holds that a failure on 780.972 itself makes the legal presumption provided by 780.951 useless from any practical point of view. That case is State v. Hubel, 2012 Mich. App. LEXIS 1051 (MI Ct App. 2012).
State v. Hubel and the Diminution of the Legal Presumption of Reasonableness
Hubel, the defendant, lived with his brother in an apartment complex. They were apparently a noisy pair, and had repeated confrontations with their downstair neighbor complaining of noise at all hours of the night. On July 2, 2009, at 3:30am, another such confrontation took place. This time the complaining neighbor ended up stabbed, and Hubel arrested and tried for felonious assault.
At trial, Hubel argued self-defense. The jury was instructed extensively on Michigan’s law of self-defense. They nevertheless found Hubel guilty, an outcome that necessarily required them to conclude that self-defense had been disproven beyond a reasonable doubt.
Hubel appealed, this time arguing that his conviction should be reversed because the jury had not been instructed on the legal presumption of reasonableness allowed under 780.951.
The appellate court agreed that an instruction on 780.951 would have been appropriate. They nevertheless declined to reverse the conviction, arguing that even had it been given to the jury the outcome of the trial would have been the same. They wrote:
The jury was instructed that the prosecutor had to prove defendant did not act in self-defense beyond a reasonable doubt, a much higher standard of proof than that required of a rebuttable presumption. A rebuttable presumption is one that may be overcome if the evidence demonstrates that the presumption is incorrect. While the jury was not instructed regarding a rebuttable presumption, they were instructed that “[t]he defendant does not have to prove he acted in self-defense. Instead, the prosecutor must prove beyond a reasonable doubt that defendant did not act in self-defense”
. . .
The jury found that the prosecutor proved beyond a reasonable doubt that the defendant was not acting in self-defense . . . and there is nothing to suggest the outcome would have changed if a rebuttable presumption instruction was given.
This rationale, if applied to Wafer’s case, would seem to lead to the same outcome. If Wafer’s claim of self-defense can be disproven beyond a reasonable doubt, that claim is unlikely to be resurrected on the basis of 780.951′s rebuttable presumption of reasonableness.
New facts and evidence could well drive considerable changes to this analysis. As things currently stand, however, I expect Wafer to have a very challenging task in sustaining a defense of self-defense as justification for his use of deadly-force against Renisha McBride. Frankly, based on what is known, I strongly suspect that this shooting was, indeed, one of those unusual circumstances combining both initial steps of genuine self-defense, and ending with an accidental, unintended discharge. In that event, the appropriate penalty would be involuntary manslaughter (or equivalent).
[NOTE: Images of trial postings from the live blog of the Detroit Free Press have been removed at their request.]
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.