Interesting self-defense narrative
It took the Sparks NV jury fewer than 7 hours last night to find 74-year-old Wayne Burgarello not guilty of all charges in the shooting of two squatters, one of whom died of his injuries, reports the Reno Gazette Journal. Burgarello had been charged with murder for the death he caused and was also subject to conviction on the lesser included charge of manslaughter; he was also charged with attempted murder for the victim who survived.
Here’s Burgarello leaving the courtroom following the verdict, in the company of his defense lawyer Theresa Ristenpart:
It was uncontested that Burgarello had fired the shots, but he sought at trial to justify that use of force as self-defense. As indicated by the verdict, the jury unanimously agreed that the State prosecutors had failed to disprove self-defense beyond a reasonable doubt (the legal standard in every state except Ohio).
This was something of an unusual successfully argued self-defense case in that arguably the fight did not come to Burgarello, but rather he went to the fight in February 2014. Alerted to the fact that there were squatters on his property, an otherwise unoccupied apartment, Burgarello armed himself with a 9mm semi-automatic pistol and a .357 Magnum revolver and set out to confront the interlopers.
Burgarello entered the apartment, guns in hand, and called out to the squatters, 34-year-old Cody Devine (male) and 30-year-old Janai Wilson (female), both habitual meth users. Wilson had so habitually squatted in the apartment that she’d changed her driver’s license to reflect that address and was seeking to obtain outright ownership via “squatter’s rights.”
Devine was shot five times, including once in the head, and died of his injuries; Wilson was shot in her leg, arm, and stomach, and managed to flee the scene.
Prosecutors had sought a first-degree murder conviction because of that fact that Burgarello armed himself and “went to the fight” arguably to seek a deadly confrontation. Burgarello owned a number of rental units, some empty for as long as nine years, and many had been subject to repeated vandalism and burglaries. Witnesses testified at trial that Brugarello had talked of plans to hide inside the units for squatters to enter and then “shoot them,” and thus premeditating the shootings.
Prosecutors argued that Burgarello opened fire without lawful provocation immediately after he awoke the sleeping Devine and Wilson by challenging their presence, a claim based on the testimony of the surviving Wilson.
Burgarello, in contrast, told police that he had perceived Devine pointing a gun-like weapon at him in the darkness (Burgarello did not testify at trial). Although no weapon was found at the location where the squatters were shot, a black flashlight was recovered from under Devine’s body. The fact that Devine may not actually have possessed a weapon is, of course, legally irrelevant. The legal question is whether Devine’s conduct with whatever object he possessed might have been reasonably perceived to have represented an imminent threat of death or grave bodily harm.
Defense Attorney Ristenpart argued to the jury that he had a right to arm himself and check his properties, stating that “Wayne could have had 10 guns that day, and that is still lawful and legal.” She further claimed that Burgarello first shouted into the dwelling numerous times, asking if anyone was inside and telling them they needed to come out. This narrative was buttressed by the testimony of a retired firefighter who witnessed the events.
Other defense witnesses who owned adjacent rental properties testified about times they had squatters threaten them with knives, after which they had armed themselves with handguns much as had Burgarello.
Ristenpart also argued that it was the squatters, not her client, who:
created the dangerous, threatening situation, trespassing, getting high on meth and being where they shouldn’t be, where they had no right to be. . . . The aggression is against Wayne. . . . Here are two people who broke into your home to use drugs and trash the place. That’s the aggression, and that’s what caused this threatening situation.
Even the prosecution felt obliged to concede:
They had no business being there, but did they deserve to die?
Of course the news story commits a random act of “journalism” and makes a gratuitous reference to “stand-your-ground,” stating:
Nevada’s stand-your-ground law allows deadly force against attackers who pose an imminent threat, regardless of whether they are armed. But it specifies the shooter cannot be the initial aggressor.
Replace “stand-your-ground” in that sentence with simply “self-defense,” and it would be far more correct.
I’m a strong advocate of avoiding violent confrontation whenever possible. I would certainly not encourage anybody to arm themselves to take on some unknown number of potentially armed squatters in a darkened apartment at night for both tactical and legal reasons.
Tactically, it’s a situation likely to result in someone’s death, and there’s no guarantee that it won’t be you bleeding out on the floor, instead of the squatters. (For some perspective on how fast an armed fight can happen, and not necessarily with a happy ending, see: VIDEO: How fast does the fight go down? THIS fast.)
Legally, it’s typically far harder to sell a self-defense narrative when you arm yourself and go to the fight, as opposed to a situation in which a fight unavoidably comes to you. In many states, including Massachusetts where I live and practice law, aggressive conduct of the type engaged in by Burgarello could well result in him being denied a self-defense jury instruction entirely.
That said, this fight happened not in Massachusetts but in Nevada. Certainly the fact that the victims were habitual users of meth, a particularly vicious scourge in the Southwest, could not have helped the prosecution’s narrative of guilt. If, as the defense claims, the police were routinely ineffective in responding to complaints of sometimes lethally violent squatters, the community would naturally become more forgiving of property owners arming themselves and resorting to self-help to enforce their rights.
In any case, after hearing both the prosecution’s narrative of guilty and the defense’s narrative of innocence, the jury in this case took merely an afternoon and evening of deliberations to unanimously find Burgarello not guilty for the killing of Devine and wounding of Wilson.
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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 (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.