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Analysis: Self-Defense Claim May be Legally Weak in Michigan Porch Shooting

Analysis: Self-Defense Claim May be Legally Weak in Michigan Porch Shooting

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 54-year-old white homeowner charged with MURDER after shooting dead black girl, 19, who knocked on his door asking for help after crash

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.

Conclusion

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.

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Comments

Thank you for walking through that one. Superb.

Mr. Wafer will wonder for the rest of his life why she chose his door to bang on at 4:45 in the morning. Would anyone be thinking clearly at that time after being rousted out of bed in that manner? Your analysis is very good and very thorough, but as they say, “. . . you had to be there”. Tough case.

OK, this is probably not relevant, because at best he could not have known any of it, but –

Was anything she did a felony ? That level of intox while driving ? Leaving the scene at that level of intox ? If so, was she then fleeing the scene of a felony when she banged on his door ? *IF* he had known that (he could not have), would it come in to play as to his state of mind (reasonable fear of a fleeing felon) ?

    As I write, her intoxication should be relevant, but not the (potential) felonies of driving while intoxicated. Frankly, one could argue (on the evidence available) that she was sober when crashed, was disoriented by crash, then spent the next 3 hours getting sloshed before finding herself on Wafer’s porch.

    No, I don’t believe that for a second–but the truth is we really don’t know. Makes the whole drunk driving thing speculative, and in any case she will of course never be tried or convicted of the offense.

    I also don’t think for a moment that Wafer killed from malice or racism or any intentional reason, really. I think he made a terrible, awful mistake, aggravated by the circumstances and hour.

    It’s not the kind of mistake us gun owners can allow ourselves.

    –Andrew, @LawSelfDefense

      Not to be too picky but her blood alcohol level was “set” at the time of death. Reversing the one ounce-per-hour burn off rate equals what blood alcohol level at the time of the crash? If she was .20 on his porch, I find it hard to believe she could even walk at the time of the accident.

      I speculate someone picked her up, illicitly had sex relations with her, and dumped her near Wafer’s house knowing she would be too drunk to ever articulate a rape charge or evidence of one.

      If the coroner’s report is not released to the public, I’d suspect a positive rape kit that they are trying to DNA-match.

        You miss the point – what if she did the drinking AFTER the accident, is what he’s saying.

          platypus in reply to pjm. | November 28, 2013 at 12:08 am

          I missed nothing. My view is that it is unlikely that she drank more alcohol after the accident. There was a reason she was at the house far from the accident. Just attributing everything to her drunken state is an effort to make irrelevant any unexplained phenomena. I have posited a reasonable explanation which incorporates all of the known facts. Branca has chosen to focus on the alcohol to the exclusion of anything else. Neither of us is wrong, but one of us is telling a better story with the available facts.

      stevewhitemd in reply to Andrew Branca. | November 28, 2013 at 11:14 am

      One could also speculate (without the autopsy report) that Ms. McBride was injured in the auto crash. Head injuries are not uncommon of course, and some serious head injuries take time to manifest. Even a simple concussion would have added to her confusion and disorientation.

      So there are multiple potential reasons (none mutually exclusive) why she wondered off after the crash and showed up at Mr. Wafer’s screen door.

      From the facts as put forward here, Mr. Wafer made a bad decision and is going to have to live with the consequences.

        Mr. Wafer’s judgments, decisions and actions cannot be evaluated by what he could not have known about the young woman he encountered, regarding the causes of her appearance and behavior on his front stoop, and we have only his account of what he observed, and how he interpreted and reacted.
        We know she was intoxicated, observably demonstrating confused and irrational behavior at the accident scene. Three hours later, she possibly was belligerent toward Wafer, although there has been no account of any attempt to force entry to his home.

        Read http://www.dailymail.co.uk/news/article-2507893/Pictured-Theodore-Wafer-54-charged-MURDER-Renisha-McBride.html

        There were several witnesses to her accident and to her behavior immediately thereafter, yet no one bothered to call 911 for assistance, or even for property damage, citizens’ dereliction of duty that may be counted as a proximate factor in her death (perhaps an implied evaluation of local police).

          “There were several witnesses to her accident and to her behavior immediately thereafter, yet no one bothered to call 911 for assistance, or even for property damage, citizens’ dereliction of duty that may be counted as a proximate factor in her death (perhaps an implied evaluation of local police).”

          In America? I’d be interested in hearing a law-based argument for that position.

          –Andrew, @LawSelfDefense

          Topnife in reply to Topnife. | November 29, 2013 at 4:24 pm

          @Andrew, respectfully,

          I realize that there is no LEGAL obligation to report even a crime, let alone just a distressed and disoriented person who has just suffered a traffic accident, may have unrecognized injuries (including brain injury) and who has incidentally caused damage to other persons’ property, as well. I believe there is a higher principle than the law.

          As I mentioned, one factor may be citizens’ evaluation of the quality of local law enforcement persons. Another is the “I don’t want to get involved” lament. I assert that there is a moral obligation, even if not a legal one, to render assistance, or at least to call responsible authorities.

          The classic case of witnesses failing to become involved (“diffusion of responsibility”) was that of Kitty Genovese in 1964, a young woman who was raped and stabbed to death in an attack that lasted 30 minutes, outside and in the hallway of her apartment building, that was witnessed at least in part by numerous persons, none of whom offered meaningful assistance, and only one of whom called police, and that only after 30 minutes of her screaming. None of her neighbors went to her assistance, during or after the attack.

          She is dead, and so is Renisha McBride. Renisha and Mr. Wafer will pay the consequences, for his actions, and for the prior negligence of the witnesses as well.

thinking she saw the weapon and said something stupid about grabbing it and we won’t be allowed to hear it.

I have no sympathy for her, shes lucky she didn’t kill someone shortly before.
karma is a blast……

    Fear she was going to grab the weapon will be a tough sell as reasonable with the screen door as a barrier between them.

    And, indeed, it’s only by sheer fortune that McBride didn’t take out a minivan full of kids, driving round with a 0.20+ BAL.

    –Andrew, @LawSelfDefense

      yeah, seems a lot would also depend on the door itself. a storm door is a lot stronger than just a screen door. have no idea exactly what style door is there not its physical condition at that point.
      no matter what the law is, with the little info we have at this point (same caveat you gave, we don’t know the quality of the info) I would have done the same most likely.
      was she a combative violent drink? we don’t know.
      hell for all we know she may have said she had a weapon, dealt with a lot of stupid combative drunks (was an MP and did leo ride alongs after I got out) and they are unpredictable as hell.

        Shane in reply to dmacleo. | November 28, 2013 at 10:47 pm

        As a gun owner putting myself in his position, I would find the avoidance route to be far safer to myself (and my family) than some sort of confrontation. A locked door with a phone wielding citizen behind it is far safer than opening said door to possibly gain information to ascertain the situation.

        Having previously been a bouncer it is far easier to convince friends to remove problems then to be “that guy”, and in a firearms situation it is essential to not be “that guy”. That is what the police are for. Police have something far more valuable in conflict situations than the average citizen, it is called a radio.

I’d have a very difficult time accepting a self defense plea if I were on the jury. She may have been sh*tfaced and banging on the storm door but she didn’t gain access to the house.

Acknowledging AB’s caution about details presented via the MSM, this guy is screwed.

Acknowledging the depth to which legally irrelevant social dynamics play into media-ized court cases, this guy is screwed.

Acknowledging that this will go to trial (plea notwithstanding) in the Detroit area, this guy is screwed.

My best guess is he was awakened by her pounding on the door, went to investigate while half asleep but amped by adrenaline, opened the door and saw a hooded stranger likely tugging at his screen door handle, and like Andrew said, made a very bad decision. He likely did not know it was a female, nor that she was grossly intoxicated, not that that makes a difference legally, but it does help explain his fatal jump to the wrong conclusion.

—————–

In 1996 I was awakened by Hurricane Fran – when it ripped the roof off my house. The combination of awakening from a dead sleep into an immediately life-threatening situation – dulled senses immediately charged with a huge adrenaline dump – is an incredibly discombobulating experience. It is no excuse for a wrongful self defense shooting, however.

Charles Curran | November 28, 2013 at 8:03 am

Granted her BAL was .20+, but he had the shotgun and a phone. Why not slam the door and lock it, dial 911 and wait? As was said above, she did not get in the house. This guy is toast.

I couldn’t agree more with your conclusion about self defense coupled with the accidental firing of the gun. I thought Wafer would claim the shooting was accidental for his defense. Since you’ve pointed out that almost never gets an acquittal, I better understand why council is going the self-defense route. I suspect that will just be a longer effort resulting an involuntary manslaughter conviction. Or maybe there’s more to the shooter’s side of the story than we know.

I enjoyed your coverage of the Zimmerman trial. I found your site because PowerLine linked you and provided some of your analysis. Great stuff!

“Some will argue that because Wafer’s porch is considered part of his dwelling…”

A weird notion. It is part of the property, certainly. But an intruder in the yard or on the porch is not normally considered to be in the dwelling.

For self-defense purposes, finding a stranger in your house at 4AM is cause for alarm. One need not wait for an overt attack to assume that there’s big trouble afoot. But finding a stranger on your porch is NOT cause for alarm.

I’ve had various sorts on my porch, everything from juveniles avoiding rain while waiting for the school bus (not at 4AM, obviously) to mailmen puzzled about a cryptic address (also not at 4AM) to drunks wondering why their house keys didn’t seem to work in my door (that WAS at 4AM). They were all outside my dwelling – that is, on the outside of my front door – and in no case could I assume that I was in deadly peril. I have plenty of deadly weapons – guns, swords, quaterstaffs, etc – but felt no urgent need to consider using any of them, even on the annoying drunk.

A stranger on your porch – and not in the process of breaking your door in – is a normal event. It isn’t even trespassing if legitimate business – such as asking for help or directions – is involved.

I concur. I mention it only because it’s been raised repeatedly in discussions I’ve had with others. I expect this “issue” will continue to be raised for all eternity by ill-informed parties–it’s in the nature of a little bit of (legal) knowledge being a dangerous thing, especially when combined with firmly held agenda.

–Andrew, @LawSelfDefense

    Oh, certainly.

    In some cases, such as the Landry shooting (which you reported on here last July 27), things are murky. But the Wafer case (subject to your caveat re the accuracy of news reports) seems clearer, and doesn’t look particularly promising for the defense, for the reasons you so clearly discussed.

A superb analysis. Too bad Mr. Wafer did not have the benefit of legal advice before he pulled the trigger at 0430.

The lessons for the rest of us to learn here are several:
1. Obtain a security-type screen door with a dead-bolt lock. This permits interview of a knocker without exposing oneself to invasion.
2. Avoid opening the front door at all, to a knock at 0430. If the knocker has a gun, it will be a “Mexican standoff” even if you are armed.
3. Assuming the veracity of the “accident” explanation, always keep the finger off the trigger until the target is sighted and a decision to shoot is made. An “accidental” discharge of a properly functioning firearm is negligence (if I am on the jury).
4. Acquiring the mindset, knowledge and skills necessary to deal with a deadly attack reduces the likelihood that one will make a “mistake”. As Massad Ayoob has observed, even if you shoot someone righteously, it will change your life forever.

    Were it me, at that hour, under those circumstances, I would most likely have remained silent on my side of the door, observing quietly through the peephole, waiting to see how things developed.

    I’m a patient person, I can wait quite a long time. Longer than someone who is confused, at the wrong door, etc. Should the person be acting with malice, it would be they who escalated matters to the point where a defensive response was warranted.

    Of course, that’s a tactical, not a legal, opinion–although, with all tactics I adopt, it’s consistent with a legally-sound self-defense strategy. And vice versa. (For those with the book, that’s Chapter 10, by the way.)

    –Andrew, @LawSelfDefense

      Henry Hawkins in reply to Andrew Branca. | November 28, 2013 at 8:06 pm

      I live rurally and have had the experience of an uninvited stranger on the premises at an odd hour. Last thing I’d do is open the door. I just kept a weapon and a cell phone ready and monitored as best I could.

      I tell my wife and kids that if you don’t know who’s knocking on the door, don’t open it. My wife: “But that’s kind of rude…” Reply: “Tough. You cannot offend a stranger and any friend would understand your not answering. Don’t open the door.”

Andrew I would be fascinated to see you compare this case to Georgia man fatally shot neighbor with Alzheimer’s after mistaking him for a prowler. In this case the local sheriff, who knew the victim’s family, said the shooting appears “justified”, but the District Attorney can review the findings.

Facts are always difficult to come by, but even a cursory curbside opinion would be fascinating. Is this a difference in law, local custom, or facts?

I’m not sure how much trust I’d put in a media source anywhere that says “…who knocked on his door asking for help after crash…”, seeing as how we have no idea why she was at his door, although I suspect the ‘asking for help’ meme was inspired by the recent story out of Charlotte.

I will note that over in the UK that particular paper is often referred to as “The Daily Fail”.

Not that I’m bragging on what we’ve got over here.

As for her being diminuitive, I’d want to know weight as well as height before agreeing with that description, although I’d think Wafer’s impressions in the moment and under the circumstances should have more bearing than the ‘discovered after the fact’ facts.

I don’t know the source for topnife’s assertion that “…There were several witnesses to her accident and to her behavior immediately thereafter, yet no one bothered to call 911 for assistance, or even for property damage…”, but I’ve seen reports elsewhere that flatly contradict it.

    Topnife in reply to unitron. | November 29, 2013 at 6:08 pm

    Source of my assertion regarding witnesses was the report as published in the Daily Mail(link was supplied).

    The DA stated, ’13 days ago 19 year old Renisha McBride was involved in a car accident. At the scene witnesses reported that she was bloodied, disorientated and appeared to be confused.’

    Elsewhere, the article states:
    After the crash on the outskirts of Detroit, some witnesses said she appeared drunk, while others said she was just concussed from the impact. One neighbor, who lived just opposite the accident said he could not tell if she was under the influence, but revealed she seemed incredibly confused and walked to and from her car, getting in and out three times, before eventually leaving the scene with her hood pulled over her head.

    As I stated, had at least one of these witnesses taken it upon himself to at least call 911, it is likely that the young woman would still be alive, and Mr. Wafer would not be facing the ruination of his life.

    Topnife in reply to unitron. | November 29, 2013 at 6:10 pm

    Source of my assertion regarding witnesses was the report as published in the Daily Mail(link was supplied).

    The DA stated, ’13 days ago 19 year old Renisha McBride was involved in a car accident. At the scene witnesses reported that she was bloodied, disorientated (sic) and appeared to be confused.’

    Elsewhere, the article states:
    After the crash on the outskirts of Detroit, some witnesses said she appeared drunk, while others said she was just concussed from the impact. One neighbor, who lived just opposite the accident said he could not tell if she was under the influence, but revealed she seemed incredibly confused and walked to and from her car, getting in and out three times, before eventually leaving the scene with her hood pulled over her head.

    As I stated, had at least one of these witnesses taken it upon himself to at least call 911, it is likely that the young woman would still be alive, and Mr. Wafer would not be facing the ruination of his life.

Michigan needs Castle doctrine.

I’m sorry but I tend to have a low trigger threshold for anyone aggressively seeking unsolicited entry onto my property while my family sleeps.

I have no idea what weapons they may be concealing. I have no idea what their intentions and motives are. And I trust nothing that comes out of their mouth.

All of that comes from personal experience as well as shared experiences with others.

Sure, it’s possible he’s a sick puppy that just wanted to kill someone but its not like he sought this out. The hustle crowd can’t even use the “stalking” excuses for this one.

    “Michigan needs Castle Doctrine.”

    Michigan HAS the Castle Doctrine. ALL states have the Castle Doctrine.

    In any case, no one to my knowledge is arguing that Wafer’s fault lies in a failure to retreat , which is ALL that the Castle Doctrine means–it relieves one of an otherwise existing duty to retreat when defending oneself in one’s home (and sometimes business, occupied vehicle).

    Rather, Wafer’s fault appears to be either (depending on which argument he’s pursuing today) that his use of force was (1) an accident (and therefore not self-defense and almost certainly criminal negligence being that it involved a firearm), or (2) that his perception of an imminent threat of death or grave bodily harm was not objectively reasonable.

    “anyone aggressively seeking unsolicited entry onto my property”

    Evidence of aggressive effort to enter the property? The most I’ve heard is vigorous knocking–but knocking, by it’s nature, is a request for entry, or at least interaction, not an act “aggressively seeking unsolicited entry”.

    “I have no idea . . . I have no idea . . . ”

    That’s about as pure an example of speculation as could be presented. Speculation is not evidence. What Wafer needs is an articulable reasonable perception of a threat–for example, that he saw something shiny in her hands (even if it later turned out to be a cell phone)–mere speculation is not enough.

    Perhaps you could specify for us the reasonably perceived act of imminent death or grave bodily harm committed by McBride that warranted her death? Because certainly Wafer hasn’t suggested such.

    –Andrew, @LawSelfDefense

      If (and this is a huge IF) the doors are reversed, and the screen door is on the inside and the security door on the outside (I’ve only ever seen this a few times) then would that change this man’s legal chances?
      Or, if her DNA is found on either the main door handle or the screen door handle, regardless of which door comes first, could that make any meaningful difference for his defense? If it could be shown that she did actively try to enter his home?

frederickvoss | December 2, 2013 at 6:02 pm

It is going to be an extremely tight case. The castle doctrine in Michigan includes appurtenants which would be the porch. I viewed George Zimmerman as not being able to lose based on the evidence and law. I see Michael Dunn not being able to win. He should be charged with second degree murder, and 8 counts of reckless endangerment. A defense could be to put on no evidence, rely on the presumption of acting reasonably, and point out the state has no evidence to rebut the presumption. There may also become an issue of the sleep inertia effect. That is your brain does not work so well when you are suddenly awakened. Sitting where I am, I can figure out different solutions to the problem. She was causing a disturbance. That can cut both ways. Most burglars want to get in and out with a minimum of fuss. Banging makes it less likely she was a burglar. But it makes it more likely that the person making the noise is dangerous.

    “It is going to be an extremely tight case. The castle doctrine in Michigan includes appurtenants which would be the porch.”

    First of all, this is NOT a Castle Doctrine case. What is at issue is not whether Wafer could have or should have retreated–to my knowledge NOBODY is suggesting his claim of self-defense should fall on the grounds of his failure to take advantage of a safe avenue of retreat. The ONLY issue addressed by the Castle Doctrine is that issue of retreat.

    You are, I presume, referring to some increased right to use defensive force in the context of protecting your domicile.

    You may choose to believe that MI jury will perceive a person stepping onto an open porch and knocking–even banging violently–on a front door in a similar manner to someone forcibly invading another’s home, and warranting the same degree of response.

    That is not my expectation.

    –Andrew, @LawSelfDefense

Would any responsible jury member or American want to make it a rule that knocking on a person’s door is an action or offense that warrants being fatally shot in the face with a shotgun (even if standing on that person’s front porch to do so)? Granted that the 0430 time makes it less routine, it also would explain a necessity to knock much louder, as would the relative emergency.
A simple knock on a person’s door is a request for an opportunity to speak to the occupant. If the occupant does not wish to be interview the knocker, he does not open the door.
So far, there has been no information from Mr. Wafer regarding his perception of what constituted a threat to him, from this 19 year old female, even if she was drunk (fact) and screaming at him.
And pointing a shotgun at someone and “accidentally” discharging it is negligent homicide at best.
One factoid gleaned from the story is that Ms. McBride’s “lifeless body was found by the police, near the porch of a Dearborn Heights house” (Prosecutor’s statement). A person shot in the face at short range with a shotgun would almost certainly fall right where they are standing. The actual location of the body may become a very important issue in Mr. Wager’s assertion of self-defense.

    ^^^ This ^^^

    Excepting the body position stuff. Not disagreeing with that, just not sufficiently informed to have a solid opinion.

    –Andrew, @LawSelfDefense

    mmagnus in reply to Topnife. | December 6, 2013 at 11:51 am

    “Would any responsible jury member or American want to make it a rule that knocking on a person’s door is an action or offense that warrants being fatally shot in the face with a shotgun”
    In Detroit. At 4am. With what I assume the defense will portray as a menacing, drunk, potentially violent person? Sure, I could see a responsible jury taking the side of the homeowner in that scenario.
    Are we really to believe the speculation that this was just an innocent woman looking for help? My assumption is that the defense will bring a lot to the table to suggest otherwise. And that job will be made easier by the fact that this woman was drunk, had crashed her car, had fled the scene and showed up hours later banging on the door of a random home. Probably not too far of a stretch to make the case that he had a reasonable fear that he was in danger.

      Topnife in reply to mmagnus. | December 6, 2013 at 10:40 pm

      Do you seriously believe that even in Detroit at 4 AM, a 19 year-old, 5 foot 4 inch unarmed drunken female is such a formidable threat to the life and well-being of a robust and healthy male, one who has chosen to open his door voluntarily after arming himself with a shotgun, that he must use lethal force to protect himself from deadly attack? Granted, not all the facts are known, and may never be known, but on the face, this looks like a real tough sell.

        mmagnus in reply to Topnife. | December 7, 2013 at 10:27 am

        Do you seriously believe that,at 4am, after having just been awoke from a dead sleep, looking out onto a dark porch and seeing a hooded figure that you could determine the age, gender, height and threat ability of that figure in a split second? It’s not like she came inside for a drink, handed him her license, he looked her over and made a conscious, informed decision of her threat level.

This is, of course, not a legal opinion but rather a passing observation. But how is a homeowner to feel safe and secure in his home if, when awoke in the middle of the night by a drunken stranger, his response will be endlessly scrutinized by the legal system with no apparent consideration for the fact that he did not choose to be put in this chaotic situation?
He wasn’t drinking and driving. He didn’t crash into anything. He didn’t flee the scene. He didn’t run from police. He didn’t drunkenly accost anyone’s home. He was asleep, minding his own business in his own home. She brought chaos to his home, not the other way around.
If there is no monumental benefit of the doubt for a person in that situation, I think there should be.

    Topnife in reply to mmagnus. | December 6, 2013 at 2:27 am

    Staying secure in your own home is simple: Good locks, secure windows, and have a firearm available for aggressors who are manifestly threatening your life or well-being.
    There is no obligation for a homeowner to open the door when someone knocks, especially at 4:30 in the morning. If a knocker calls for help, call 911. She brought chaos (perhaps), mainly to his front yard. Call the cops!
    It is not reasonable or permissible to shoot someone who knocks on your door, however, even if being awakened is annoying to you.

      ^^^ This ^^^

      mmagnus in reply to Topnife. | December 6, 2013 at 10:46 am

      I understand there is no legal right to do what he did, assuming all the “facts” so far reported are accurate. I am simply suggesting that a homeowner who is minding his own business, in his own home, who did not choose to be put in that situation should be given the greatest benefit of the doubt possible by our legal system. 2nd Degree Murder? What would the charge have been had he walked out into the street, stopped the first car he saw, pulled the driver out and shot them dead? Probably 2nd Degree Murder. What kind of system charges the same for these two completely different scenarios?
      Just as police are given a tremendous benefit of the doubt when they are put in chaotic situations not of their making, so should homeowners be given that benefit. We understand as a society that police are often put in dangerous situations and forced to make split second life and death decisions. And even though they often get it wrong and shoot innocent people, we hardly ever throw the book at them. We accept that they did not create the danger and chaos. We understand that they have only seconds to possibly save their lives and react to the situation, often with limited and incorrect information. And as such, we extend to them the greatest possible benefit of the doubt.
      I am simply suggesting that homeowners be given that same consideration when being judged for their reactions to similar situations.

mmagnus writes: “I am simply suggesting that a homeowner who is minding his own business, in his own home, who did not choose to be put in that situation should be given the greatest benefit of the doubt possible by our legal system.”

He IS, as ALL defendants are. He is presumed innocent unless the state can prove him guilty BEYOND A REASONABLE DOUBT.

THAT IS the “greatest benefit of the doubt possible by our legal system.” The only step further would be absolute immunity.

–Andrew, @LawSelfDefense

He is given the same benefit of the doubt as “all defendants.” That’s the problem. He would be given the same benefit of the doubt whether he chose to put himself in a violent, chaotic situation than if he was awoken from a dead sleep and placed in one, without his choosing.
I understand every legal point you’ve outlined here and very much value your analysis and can’t believe we all get that analysis for free! Heck, paid analysis often isn’t half as good as yours, and yours is free!
“The only step further would be absolute immunity.” for a homeowner, awoke from a dead sleep, on the border of Detroit, to loud banging, I would rather see “immunity” than “presumption of innocence” if I had to pick between the two. But, that’s just me…

    Ah, well, if we’ve transitioned from analysis of a particular case to a discussion of wholesale revision of our system of criminal justice, I’m afraid adult beverages will be required.

    🙂

    –Andrew, @LawSelfDefense

      Haha, yes. None of my comments were intended to be legal in nature. Just observations of how I perceive the entire system to be unfair in the way these situations are dealt with.
      And needless to say, this is Detroit, so we pretty much never stop drinking… It’s the only way to cope.

    Topnife in reply to mmagnus. | December 6, 2013 at 8:02 pm

    You are campaigning for a fundamental alteration in our legal system, essentially to take into account some assumed mystical factors such as the presumed confusion and and innocence of the homeowner, his lack of preparation for a knock in the middle of the night, and a lack of mindset to deal with an emergency. The law already recognizes the right to defend one’s home and family against attack, with deadly force if necessary. The prosecutor must convince 12 persons like oneself, that the actions of the homeowner exceeded those that a reasonable person in like circumstances would have performed. If just one jury member disagrees, the killer will be acquitted.

    Andrew Branca is trying to tell you the way that things ARE, the way that the legal system works, and hopefully what one should do, when awakened in the night by someone knocking on your door! Rather than arguing (hopelessly) for some change in the system, it is better to learn what the rules of the system are, and prepare one’s mindset to act within them. It’s possible to decide one’s actions in advance, prepping your mind, so that you already know what to do, when half-awake, and don’t make the mistakes this unfortunate man did.

      mmagnus in reply to Topnife. | December 7, 2013 at 10:19 am

      Topknife. I am not arguing with anyone. Nor am I debating what the law is. The very first thing I said was “This is, of course, not a legal opinion…” then you respond with “that’s not how the law works.” Well no sh*t Sherlock, what was your first clue? The fact that I said that right out of the gate?

      I, me, some guy you don’t know, thinks that MAYBE we should have more protections fro homeowners built into the system than we do for the typical defendant. You perhaps disagree. GREAT. No need to shout it at me.

      My opinion is that a system that affords police near immunity when they are forced to make split second decisions with no room for error, in the middle of the night, when confronted with situations they did not choose, should PERHAPS also afford similar consideration for homeowners. But take that one step further, how is it that this system affords police absolute immunity even when they choose to create violent, chaotic situations (think no-knock home invasion raids) but a homeowner in Theodore Wafers shoes is given no extra consideration for the fact that he played no part in creating the volatile situation.

      I am NOT suggesting that is how things currently are in Michigan. I was simply making a passing remark that I would like to see the law here in Michigan move more toward that. And you shout back “that’s the way the law is!” Great. Got it. Thanks.

      A little more insight: I’m from Goshen Indiana where what Ted Wafer did would be perfectly legal. There was a case in (I think) 2007 or 2006 where a grown man shot through a security day in broad day light and killed an unarmed man who had banged on his door. The homeowner assumed he was going to break in, so he killed him. No charges filed. Several similar cases like that out of Indiana when I lived there. And I’m more okay with that than I am with a system endlessly scrutinizing me over my reaction to being woken up by a shadowy figure on my porch at 4am in Detroit.

      But hey, that’s just me. No need to get your panties in a twist if you disagree…

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