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Ambush and execution is not “self-defense”

Ambush and execution is not “self-defense”

Which is why I have not covered the Byron Smith home invasion “self-defense” case

This will be a short post, and is intended to just briefly answer the question I’m often asked as to why I haven’t blogged about Byron Smith.

I’ve had the question asked hundreds of times, and I’m going to defer now to a group response, and generate a source to which I can simply direct future inquiries.

Byron Smith is the Minnesota man just sentenced to life in prison without possibility of parole for the murders of 18-year-old Haile Kifer and 17-year-old Nick Brady after they broke into his house, as reported today by the Star Tribune.

I never covered this case because my interest lies in cases of self-defense.  And this never looked to me like a case of self-defense.

Instead, it looked to me from the start as a case of thoroughly premeditated, well-prepared ambush, followed by  unnecessary and excessive deadly force in the form of execution-style pistol rounds to the back of the head.

A person fighting intruders in his home has a presumption of reasonable fear of death or great bodily harm–either based on statute or based on common sense.  There’s a reason why defensive shootings of home intruders so rarely come to trial–they’re simply losers from a prosecutor’s point of view.

That presumption, however, is subject to being rebutted, in the rare and extraordinary case that such is possible.

And in the case of Byron Smith it was not merely possible, but inevitable.  There’s a reason the jury deliberated only three hours before convicting him.

Smith believed, correctly, that the youths would break into his home.  But instead of calling 911 when it happened, or using force in reasonable defense against a deadly-force threat, or in the defense of home when faced with an unexpected intruder, he instead prepared for their break-in . . . and for their execution.

He prepared himself with a comfortable hide position, complete with snacks and water, and a book to read while he waited.  He had tarps prepared, such that when he murdered them the mess might be contained.  He shot them first with a rifle, then finished them with execution-style head shots using a pistol.

If any of this sounds like reasonable self-defense or defense of dwelling to any of you, I don’t suppose there’s anything I could say that would change your mind.

But I can assure you that it doesn’t sound like reasonable self-defense or defense of dwelling to the law of self-defense. It sounds like deliberate and premeditated murder.

The law of self-defense is not some “murder algorithm” by which you can lawfully take another person’s life just because their conduct has checked off particular boxes.  The use of deadly force is always, ALWAYS premised on necessity.

Preparing a killing zone beforehand and waiting patiently for your prey to enter that zone does not ring of necessity.  It rings of premeditation.

And that’s about all I have to say about that.

–-Andrew, @LawSelfDefense

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, (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.


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Instead of self defense, what Byron Smith did sounds like hunting. It is similar to sitting in a blind near a water hole. That’s fine when you’re waiting for deer. Not so fine when you’re waiting for people.

    tom swift in reply to Pettifogger. | April 30, 2014 at 3:24 pm

    Of course, most deer don’t have criminal records. Nor do most of them break into your house looking for the water hole.

    If Mr Smith had set bear traps outside the yoot’s homes, then come around and plugged the little darlings after they were snagged, your analogy would be stronger.

never saw this as self defense either. no way it could be.
but I always saw it as protecting his property and I think shooting them saved a lot of others from losing stuff or getting hurt because I suspect they would have continued to rob people.
I have no problem with someone planning for a break in and shooting those that do it. if the dead idiots hadn’t been committing a crime in the first place he probably would not have shot them.
so hes paying the price for doing society a favor.
but I am a bloodthirsty racist ahole anyways (or so I am told) so we’ll have to agree to disagree here 🙂

    JimMtnViewCaUSA in reply to dmacleo. | April 30, 2014 at 11:41 am

    Yeah, I’m not convinced on this one either.
    a) The guy didn’t make a career out of going around killing people, as far as I can tell.
    b) Those kids would still be alive if they just didn’t take other people’s stuff. That’s a pretty low bar to ask for.

    The tricky moral part is shooting them after they are already down, I get that. It’s a shame that you have to go to lengths to protect yourself. The cops in my neck of the woods will take a statement (so you can claim insurance) but they don’t actively investigate theft or burglary anymore.

      MouseTheLuckyDog in reply to JimMtnViewCaUSA. | April 30, 2014 at 11:50 am

      Well that’s your fault for living in California!

      MouseTheLuckyDog in reply to JimMtnViewCaUSA. | April 30, 2014 at 11:59 am

      Yes. The biggest problem is shooting them while they are down.

      When he is being constantly burglarised, I don’t blame him for setting a trap. Seems so “Home Alone”.

      While Smith wasn’t right to do it, the second guy deserved to die on Darwin award reasons alone. You break into a shot. You don’t see your friend, you hear a shot, and then you go into the basement 10 minutes later? How very 80’s horror movie.

      tom swift in reply to JimMtnViewCaUSA. | April 30, 2014 at 12:00 pm

      they don’t actively investigate theft or burglary anymore.

      I actually had a blood sample of a burglar. He was in such a hurry to avoid an irate homeowner (i.e., me) whom he could hear closing in that he cut himself on some part of the window sill when bailing out.

      Real blood spoor – pretty cool. Just like hunting, though I had no intention of shooting the putz even if I’d apprehended him … which wasn’t likely, as I wasn’t trying to catch him, just drive him out of my damn house.

      The police wrote out a report but weren’t much interested otherwise.

    MarkS in reply to dmacleo. | April 30, 2014 at 11:43 am

    If I’m reading this correctly, in Maryland Byron Smith would have walked.
    Maryland Court of Appeals, Crawford v. State, 231 Md. 354, 361, 190 A.2d 538, 541 (1963).
    ” A man is not bound to retreat from his house. He may stand his ground there and kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of committing a felony, or of inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even a lodger in the house, may meet the intruder at the threshold, and prevent him from entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable.”

      You’re not, if you think it’s relevant to the Byron Smith case.

      –Andrew, @LawSelfDefense

        DavidJackSmith in reply to Andrew Branca. | April 30, 2014 at 9:15 pm

        The jury found him guilty of premeditated murder. Callous and viciously brutal, I might add, from what I’ve read, shooting an essentially unarmed, defenseless girl in head already shot multiple times in the body.

        You (slayer of Berkeley and acknowledged expert on SD law) explained why they found him guilty.

        Serial killers arrange the tools of their trade including tarps.

        Yes, it is horrible to be burgled. But what’s more horrible, is premeditated murder.

        I guess some people just can’t accept legal reality.

I was creeped out by the complete cold-bloodedness of Byron Smith. There was nothing even moderately like self defense going on here. The kids were stupid petty criminals and deserve little sympathy for walking into the trap of a killer in the process of their various robberies, however. Just because they’re adorable doesn’t make them innocent.

MouseTheLuckyDog | April 30, 2014 at 12:01 pm

He kills two guys and gets convicted on four counts of murder? Somethings off there. Oh wait the prosecutor and judge are using Common Core.

Given some of the facts of the case, I’m surprised the guy didn’t plead non guilty by temporary insanity. Given that he was broken into several times.

He lost the right to self defense when he gave the hudlums the coup de grace.

OTOH, the fact that it came to the point that he knew he was going to be burglarized should also be taken as an indictment of the police…and people in his locality should be looking to fire the police chief over this incident…

    Gremlin1974 in reply to 18-1. | April 30, 2014 at 8:08 pm

    Nope, he lost the right of self defense when he laid down the damn tarps. Sorry, that shows that he intended to shoot no matter what happened. Self Defense isn’t a shoot first and ask questions later thing it is a necessity thing. Just because the law says you can do something in certain situations doesn’t mean you can do it as part of a set up.

    Now, what he did do was remove all reasonable doubt regarding self defense when he shot them both in the head. If he had stopped at the rifle shots he might have still been able to pull off a self defense claim.

      tom swift in reply to Gremlin1974. | May 1, 2014 at 5:45 pm

      But preparation is not evidence of intent. I have a spare tire in my car, but I don’t intend to have a flat, and I don’t seek out road conditions likely to cause a flat. Someone with health insurance isn’t planning or hoping to get sick. And a person with a weapon can’t be assumed to have intent to inflict death or injury (much though the Angely Coreys of the world might like us all to think so).

      Smith thought it likely that malefactors would break into his house. He had rational reasons for that belief, and as it turned out he was right. Since he is not required to flee his house in anticipation of such a breakin (and that’s the only guaranteed way to avoid an actual, and probably violent, encounter), it is not unreasonable for him to provide for his own defense. Hence, the presence of his rifle is justified. So the burglars will probably break in, of their own volition; they will encounter the resident, who has every right to be in his own home (and being in your own home is not “setting a trap”); they will pose what he is entitled by Castle Doctrine to assume is a deadly threat; and, since he is entitled to use force to obviate that threat, the rifle bullet holes in the burglars are justified. Given that the bullet holes are both justified and likely to occur, it’s not at all clear that making preparation for dealing with the obvious consequence – bleeding – implies evil or even illegal intent on Smith’s part.

        Gremlin1974 in reply to tom swift. | May 1, 2014 at 9:07 pm

        Hang on just a second. “Preparation is not evidence of intent?” do you have any idea how silly you just made yourself sound.

        “Preparation is not evidence of intent”, well I am betting there are lots of folks who were rightfully convicted of pre-meditated murder who wish the courts believe as you do.

        “I have a spare tire in my car, but I don’t intend to have a flat, and I don’t seek out road conditions likely to cause a flat. Someone with health insurance isn’t planning or hoping to get sick. And a person with a weapon can’t be assumed to have intent to inflict death or injury (much though the Angely Coreys of the world might like us all to think so).”

        When did I ever imply that simply owning a weapon was the same as intent, not even the prosecution tried that one. But there is a far cry from simply owning or even carrying a weapon and what this man did. You realize there was about 10 minutes between each shooting right, confirmed by Smiths own audio recording of events.

        He did not just own a carry a weapon, he set up a hide at the bottom of a “fatal funnel” (staircase), he waited for Brady to walk into that kill zone and he shot him multiple times, he then placed Brady on a tarp he had prepared ahead of time to hold the bodies of the people he planned to kill. Then 10 minutes later the girl came in and went down the stairs, he shot her, then finished her off with a bullet to the head. Oh, yea all this was after he purposefully moved his vehicle, from the place he parked every day, to a place that made it look like he was gone from home.

        We aren’t talking about some weirdo who put down tarps every night just in case. This was planned in detail, it was never self defense. He even set up his own audio recorder so he could record sound of the events.

        So this guy planned his ambush, then prepared his ambush, then made the target look inviting to draw them into his ambush.

        “But preparation is not evidence of intent”, seriously? By the way the analog to car insurance and the spare tire, is ownership of a firearm.

        Your entire second paragraph is absolutely correct, if you ignore the extreme preparations that this murder made. Oh, he had his rifle and a pistol, btw, he used the pistol to at least finish the girl off.

        Also, the girls death is completely unnecessary, he had 10 minutes to call the police after he shot Brady, but what did he do? He waited so he could make sure he got both of them.

        From the extreme prep, to the making it look like he wasn’t home to draw them in, to the 10 minutes between shootings, to finishing at least one of them with a shot to the head, this was never self defense, it was a planned pre-meditated crime.

        You are usually one of the smarted folks here during these cases, but I don’t know if you didn’t research on this one or not, but on this one you are dead wrong.

        “Preparation is not evidence of intent” So if someone plans to assassinate POTUS, that plan isn’t evidence of intent? Just…WoW!

          tom swift in reply to Gremlin1974. | May 2, 2014 at 12:11 am

          Hey – buddy – snap out of it. Don’t go puerile on me; there are already enough flakes contending for that job. I’m not going to waste your time with silliness or hysteria, so maybe you’ll do the same for me.

          “Preparation is not evidence of intent” So if someone plans to assassinate POTUS, that plan isn’t evidence of intent? Just…WoW! That’s just daffy. Tarpaulins in the house aren’t by themselves evidence of anything, and that’s all there is to it. Now I posed a chain of logic which I thought you’d be able to follow. You usually manage pretty well here.

          There are loads of possibilities in this case, if anybody wants to bother thinking about them. Here’s one: Maybe Smith planned to shoot the intruders who had been plaguing him, wrap the bodies up in the tarps, and drag them out back and bury them. But then he found that they were too heavy for a guy his age to handle unassisted, so he came up with a not terribly good Plan B to explain the tarps. He’d have to account for the tarps, because the police would find out about them even if he hid them, and after the bodies had been on them, they could be interpreted as evidence of intent, even if they couldn’t be interpreted as evidence of intent before the incident (that is, before the shooting, when they were just ordinary everyday tarps). If the bodies had been successfully hidden, then the police would never have investigated him, and wouldn’t find out about the tarps. If there was any reason to suspect that this was his plan, then yes, the tarps themselves would be evidence of malfeasance.

          That was an easy one, I’m sure someone could come up with others.

          Now take a few deep breaths, get some rest, and try again. I’d still be interested to hear a more reasoned critique of the logical chain I postulated, and I’m still sure you can do it.

          Gremlin1974 in reply to Gremlin1974. | May 2, 2014 at 11:19 pm

          @Tom Swift

          Yes, just having Tarps in the house isn’t proof of anything, but that isn’t what you said, so keep the hyperbole for someone else.

          Follow this train of logic, the man spent an entire career thinking about how to set up and circumvent ambushes, since his job was setting up security for embassies.

          You are just arguing now because you don’t want to admit that this is a Occam’s razor answer. Simple premeditated murder by ambush and if you can’t accept that then we will just have to agree to disagree.

There is a phrase they use up in this neck of the woods that perfectly describes Byron Smith (and I suspect in much of rural America). The phrase is “MINNESOTA NICE”.

I’m sure Mr. Smith was an acceptably nice neighbor to live next to, taking care of his property in the summer and shoveling snow for the 6 months of winter. I have never met the man, but thousands like him, He took care of his business and expected you to take care of yours. I doubt he had any problem stopping to help a car stuck in the ditch, if he knew the person – everyone else was on their own. Another man’s tears are merely water – this would be the credo (unspoken) that he lived by. Oh, and undoubtedly, he would probably be offended by this description of his personality. He would consider himself a peaceful man, just doing what needed done.

Mr. Smith had worked hard for what he had, and took good care of it – woe be to the person who tried to steal or destroy his property.

As a Southerner living on the upper plains of the United States, I see many Mr. Smith’s every year. I just consider them the equivalent to the sociopathic middle eastern tribal mentality. Family first, then community (if they’re acceptable) and then the rest of the world.

    tom swift in reply to C. Lashown. | April 30, 2014 at 12:31 pm

    From “Family first, then community (if they’re acceptable) and then the rest of the world” to “sociopath” is a hell of a jump.

A guy can get pretty worked up after a long period of victimization, such as a series of break-ins.

From the Star Tribune
“Prosecutors … argued that Smith, whose home and adjoining property had earlier break-ins, had planned to take matters into his own hands.”

One wonders what law enforcement in Little Falls was doing about this series of break-ins. If law enforcement was doing nothing, then it’s hard to object when the victim “plans to take matters into his own hands”. If no other hands are willing or able to do the job, it’s up to him.

The State reserves to itself the use of force, but one of the obligations it then assumes is responsibility for law enforcement and the maintenance of law and order. If that doesn’t happen – if the State fails in its obligations – then individuals, even whole societies, must compensate. Otherwise, society becomes dominated by brigands.

This is when we see the rise of vigilance committees, vendettas, etc. – to make up for the State’s systemmatic failure to control criminals. Although the press and historians are likely to call such a period a “breakdown of society”, it’s more accurately seen as a necessary adaptation by society to the failings of an ineffective government.

the law may recognize moments when use of deadly force is acceptable. It only guarantees the outcome in the case of lawful execution.

The right to use force is not the right to kill.

I sympathize with those who recognize the gap between what is legal, and what is moral or just.

But, as with most things, there too is a slippery slope on the far side of home defense. If it were permissible to execute criminals in the act there would be far too much ability for a person to stage events such that his intended target, while not an actual criminal, was made to appear sufficiently criminal.

    tom swift in reply to ThomasD. | April 30, 2014 at 12:42 pm

    If it were permissible to execute criminals in the act there would be far too much ability for a person to stage events such that his intended target, while not an actual criminal, was made to appear sufficiently criminal.

    That doesn’t seem to be a factor in this case.

    Laws which lock a man up for life because of something somebody else might do in different circumstances seem to me a bit draconian.

      ThomasD in reply to tom swift. | May 1, 2014 at 7:06 am

      Doesn’t seem to be?

      That’s not exactly a strong standard, is it.

      No, in this case, it is quite apparent that these were true criminals caught in the act. But I was not speaking specifically, I was speaking generally.

      And, generally speaking, that how things seem to be is often, upon closer examination, not actually how things are is exactly why this sort of execution cannot be legally permitted.

      Too much room for shenanigans.

        tom swift in reply to ThomasD. | May 1, 2014 at 5:18 pm

        That’s not exactly a strong standard, is it.

        All right then, it’s DEFINITELY not a factor in this case. Smith was not staging a fake crime scene, was he?

They had robbed his house before multiple times.

Their car was found with prescription medications they had stolen from other houses on the block that day. They were in the middle of a multiple-robbery crime spree.

They’d even been through the legal system already and been let out with a slap on the wrist to steal again.

It’s a pretty horrible situation. The takeaway lessons are ‘don’t shoot them when they’re down’ and ‘use the most reliable firearms possible.’

Bruce Hayden | April 30, 2014 at 1:47 pm

I agree with AB here, for probably the same reasons. It might have been self-defense if he had just shot the perps when they entered his house. But then he should have called 911 and told them that he had been forced to shoot some burglars, and that they needed medical help. If they bled out while they waited for the paramedics, then fine. Assumption of risk. Maybe self-defense. And, would likely work in states like this one, with a “make my day” law.

But, the execution style shots to the head turned this from possible self-defense, to cold blooded murder. There was probably no imminent threat of death or great bodily injury as they lay bleeding on the floor. If he could get close enough to shoot them execution style, he could have disarmed them, if necessary instead.

    “If they bled out while they waited for the paramedics…”

    “Oh man, did I shoot you..? Are you bleeding…? Hold on, let me call the paramedics…now, what’s that number again..? 9…9….damn, I can’t never remember that num…what..? Your bleeding to…what…?”

In reference to the Darwin award comment made earlier, Mr. Smith deserves one, too. There are many ways a smarter man would have handled that situation differently in order to make it a clean self-defense case, even if he did lie in wait for them.
Especially the tarps. Ones of the things I’d thought about before when considering home defense (yes, I actually asked myself these questions, heh) was whether I would use something like a tarp to avoid as much cleanup as possible if, God forbid, I ever had to defend myself. That thought ended shortly after doing some research into self-defense law and cases. I learned that there was a certain “feel” you need for a shooting to be viewed as self-defense, and using a tarp does not accomplish that, even if the shooting is 100% justified.

    tom swift in reply to Xand3791. | April 30, 2014 at 8:49 pm

    And you better not buy paper towels in bulk, either, or the DA might convince a jury that you were deliberately planning for a big cleanup job … really big.

Only life in prison? Seems like a capital murder 1 case to me.

I guess I’m a minority here.

Nothing I’ve ever owned was worth someone’s life.

If I were asked to soberly consider what I would kill someone for as the cost of keeping even the home I live in, I would elect not to kill.

Now, if someone comes into my home uninvited, their life may very well be forfeit.

And it someone threatens my liberties…including the one to life itself…they are in deep kimchi.

But mere stuff can be replaced.

    tom swift in reply to Ragspierre. | April 30, 2014 at 3:14 pm

    To replace “stuff” requires an expenditure of resources. Usually, that’s money and time. The accumulation of money itself consumes more time.

    That’s what’s being taken from you when “stuff” is stolen. Time.

    Time you can never replace.

    The clock starts ticking the moment a person is born. He only has so much time before he hears his exit cues. How much of that time can we allow to be stolen?

      Ragspierre in reply to tom swift. | April 30, 2014 at 3:26 pm

      Waiting for my doctor to see me also expends my time.

      When do I get to kill my doctor for keeping me waiting?

      My personal calculus says never. I won’t trade a finite amount of my life for all of someone else’s.

        Xand3791 in reply to Ragspierre. | April 30, 2014 at 4:00 pm

        My argument against your point would be that the doctor is not committing a crime against you and is a contributing member to society that, by healing and helping people, is making the world a better place, not worse. The doctor is not the reason you have to lock your house, you get mugged in the street, or why women have to be afraid of being raped in a park after sunset.

          Ragspierre in reply to Xand3791. | April 30, 2014 at 4:30 pm

          And, instead of dealing directly with the idea of loss of property, you expand your argument to being mugged or raped, which are NOT the same. Are they?

          Try again, if you want.

          Xand3791 in reply to Xand3791. | April 30, 2014 at 5:44 pm

          Can’t seem to reply directly to your comment.

          My question would be what does killing your doctor have to do with property loss?

          Instead of dealing directly with the idea of loss of property, you expand your argument to killing a doctor, which are NOT the same. Are they?

          You seem to be guilty of doing the same thing as me, just being a lot more snide about it.

          Xand3791 in reply to Xand3791. | April 30, 2014 at 6:13 pm

          I think we’re arguing past each other. The post you linked to is that one I commented on. A person said that it’s not just property loss, it’s the time you needed to gain those possessions that you’ll never get back. You responded by asking when you would be able to kill your doctor for taking your time.

          My response was to point out that removing a criminal from the world (for trying to take your property and your time) is very different from removing a doctor from the world (for taking your time) due to the difference in what they contribute to society, and what they cause the world we live in to be like.
          I wasn’t directly equating property loss to mugging and rape, I was saying that the people who mug and rape should be viewed and treated very differently than contributing members of society who make the world a better place to live.

          Ragspierre in reply to Xand3791. | April 30, 2014 at 6:20 pm

          I have (too frequently) served clients who accepted many hours of my time, and who refused to pay me according to their agreement.

          So, do I get to shoot and kill them, too? Time is time. Property is property, whether my stereo or my payables.

          Xand3791 in reply to Xand3791. | April 30, 2014 at 6:36 pm

          I guess that depends on whether they break into your house in the middle of the night and give you reasonable cause to fear for your life, heh. If they do, then yes, you do get to.
          Now choosing to so is a very different question, and that’s where your argument is coming from, I believe.
          Some people apply more weight to what kind of person someone is if they are breaking into people’s homes, and therefore, have different levels of sympathy for them. I’m not really a rose-colored glasses kind of guy. The flip side to that coin is that I’ll give my shirt to a genuinely decent person.

          Ragspierre in reply to Xand3791. | April 30, 2014 at 6:58 pm

          “I guess that depends on whether they break into your house in the middle of the night and give you reasonable cause to fear for your life, heh.”

          Quite, and it appears we are in accord.

          The case in question here involved someone who never had cause to fear for his life.

          If someone breaks into my home in the dead of night, they are apt to get seriously killed, since I have no means of ascertaining their intent. And I haven’t had my coffee…

          But IF I know…or expect…they are coming, and are simple thieves, I don’t feel I could justify to myself (not the law…that would be easy) lying in wait for them and killing them.

          Conversely, and just for illumination, if I had someone verbally threaten to kill a member of my family, and I felt them capable of doing what they threatened, they would die as soon as I could make that happen, and damn the law.

          Xand3791 in reply to Xand3791. | April 30, 2014 at 7:09 pm

          I just thumbs-downed my own post by accident. Go me!

          You’re right, of course, about this case. What he did was premeditated murder, no question. Laying in wait for someone when there were other options is not self-defense, it’s, as pointed out earlier, called hunting. There, rightfully, should be no excuse for it.
          Based on your comments, especially about family, I believe our views aren’t really that far out of alignment.

          ThomasD in reply to Xand3791. | May 1, 2014 at 7:14 am

          Being a “contributing” member of society is a factor that should mitigate against the ability of people to kill you?

          I thought that came with the basic member package…

        tom swift in reply to Ragspierre. | April 30, 2014 at 8:24 pm

        Well, I’d say that your postulate is correct – you’re a minority here.

        tom swift in reply to Ragspierre. | April 30, 2014 at 8:32 pm

        Waiting for my doctor to see me also expends my time.

        When do I get to kill my doctor for keeping me waiting?

        Come on, put some effort into it.

        Do you think that if you kill your doctor he’ll see you sooner? Your solution to a problem does not in fact converge to a solution, but to an aggravation of the problem.

        Preventing a criminal from stealing material goods which it will take you years to replace addresses the problem directly. If the criminal can’t abscond with the goods, you won’t have to waste years replacing them.

        Your analogy, or reducto ad absurdum, perhaps, would have some bearing on my comment if I had proposed that you burn all of your material goods to prevent them falling into the hands of ne’er-do-wells. Like your proposal to kill your doctor, that would be a solution which aggravates the problem, which makes it not much of a solution at all.

          Ragspierre in reply to tom swift. | May 1, 2014 at 10:18 am

          “Preventing a criminal from stealing material goods which it will take you years to replace addresses the problem directly.”

          1. You evoked the “time is life” fallacy to try to justify murdering a thief

          2. I skewered it rather neatly

          3. Name something besides your home you own that would “take you years to replace”; I don’t own anything…including my cars…that would true of

          4. How’s your “solution” working out for the now-convicted killer?

          5. Nothing I’ve ever said suggests to anyone rational that I advocate letting people steal your stuff

          6. There is no way to justify murdering someone, which is what this cat did

        MouseTheLuckyDog in reply to Ragspierre. | April 30, 2014 at 11:11 pm

        The time you sit in the doctors office is a a part of the fee you pay for better health. It is more of an exchange. Not at all the same.

      eblove in reply to tom swift. | April 30, 2014 at 5:08 pm

      If time is what you’re trying to save try again. Let’s say they steal $200,000 worth of stuff — way more than what most burglaries bring in. That’s alot of money. But if you decide to shoot them just for “stuff” expect to spend AT LEAST that much in legal defense funds, not to mention years of your life fretting over jail and perhaps waiting there if bond is denied. Then hours upon hours of time spent with lawyers trying to save your future, only to have to leave it up to 12 strangers to decide if your $200,000 cost you the rest of your future.

      No thanks.

      I’ll let them take my stuff. Especially since an expensive TV costs more like $2000, not $200,000.

        tom swift in reply to eblove. | April 30, 2014 at 9:00 pm

        If it’s dollar value, we have a well-developed insurance industry for that. But consider something with real time and dedication involved; as an obvious example, say, an antique car (or a boat, or an airplane, or anything rare and exotic), which you personally sweated over for decades to rebuild and restore, but some twit can steal in a few minutes. There’s no insurance which can get you back a few decades of that sort of sweat. In some cases insurance could get you another sample of the thing you restored, just one restored by somebody else; but in other cases, that’s not possible.

        Of course, people who have never invested a good chunk of their own lives in such a project won’t have any idea what I’m talking about. Those people can just take their insurance settlement and buy another of whatever-it-was.

          eblove in reply to tom swift. | May 1, 2014 at 4:18 pm

          I would rather spend the next 10 years rebuilding another classic car than risk being forced to put the car I defended with lethal force in long-term storage while I rotted away in jail.

          Especially since I have loved ones that would rather spend time with me than a classic car, boat, etc.

    gregjgrose in reply to Ragspierre. | April 30, 2014 at 4:50 pm

    Not a homeowner then? (Insert smiley here)

      Ragspierre in reply to gregjgrose. | April 30, 2014 at 5:06 pm

      Certainly DO own my own home.

      I also own a lot of stuff, much of which was, is, or could yet be involved with earning a living. 🙂

      I WOULD defend my ownership of it, but I would not ambush a pair of kids who I fully expected might come to take it.

    Phillep Harding in reply to Ragspierre. | April 30, 2014 at 5:01 pm

    Thanks to Obama, losing what I own means losing medical care I need to stay alive. So, killing two like those would be just self defense.

    How Smith went about it was really dumb, though.

    Gremlin1974 in reply to Ragspierre. | April 30, 2014 at 8:11 pm

    I wouldn’t shoot someone for taking my stuff, I would shoot them for violating the boundaries of a place that is supposed to be safe and private for me, whether that be my home or my person.

      tom swift in reply to Gremlin1974. | April 30, 2014 at 9:27 pm

      Interestingly enough, when I was hunting down my burglar, I had to make a decision about that very question. My conclusion was that I wouldn’t shoot anyone just for breaking into my home. The thought was tempting, for a few milliseconds, but I had no trouble rejecting it. (Legal justification had nothing to do with it.) However, I would shoot someone if he attacked me when I apprehended him. Those were my decisions at the time and I still think they were sound.

      I suppose the lesson is that we probably can’t tell what we’d want to do until the situation actually happens. I was peeved at the burglar once I realized that one was inside, but not peeved enough to want to hurt him. I was prepared to do so, but not planning to do it unless forced. That was actually a bit surprising; beforehand, I’d have said that I’d think otherwise.

        “I suppose the lesson is that we probably can’t tell what we’d want to do until the situation actually happens.”

        Actually, I strongly encourage that folks DO think through SD situations. The heat of the moment is not the best time to think these things through for the first time.

        We may all draw our “I choose MY life” line in a different place. It’s a personal choice. And every choice will have different legal consequences.

        But it’s best to know where that line is drawn beforehand. Because. action.

        –Andrew, @LawSelfDefense

          tom swift in reply to Andrew Branca. | May 1, 2014 at 4:41 pm

          The heat of the moment is not the best time to think these things through for the first time.

          Correct. But it’s not the best time to think them through the second or third time, either. But as rational beings, we can’t avoid thinking, right up to the moment of confrontation.

          What I was illustrating via my anecdote was that thinking it through beforehand can result in different conclusions depending on just how far beforehand one is doing the thinking. A day earlier, I’d have said I’d be happy to shoot a burglar’s — off. A few seconds beforehand, I was still willing to hunt him down, but not to shoot him at all for being a burglar, although I was still willing (maybe even enthusiastically willing) to shoot him for being an attacker. Had an attack actually happened, I might conceivably have changed my mind again. I don’t see how that can be realistically determined beforehand.

        Gremlin1974 in reply to tom swift. | May 2, 2014 at 11:29 pm

        I should have also been more clear about one aspect of what I said, that of course doesn’t mean that I would hunt down someone for breaking into my home, if I wasn’t there, but if I am and you violate my safe space the I would absolutely defend that space.

        That may have “gone without saying” but I felt it was important to clarify.

    MouseTheLuckyDog in reply to Ragspierre. | May 1, 2014 at 12:35 am

    “Nothing I’ve ever owned was worth someone’s life.”

    Everything you have ever owned was worth a fraction of someones life. The time they spent earning the money for it.

Ever have something stolen from you? Ever been struggling to make ends meet, then have some punks steal your old and only car and trash it? Or have somebody enter your home, that’s right, YOUR HOME, to try to take what you’ve earned so they don’t have to work to get what they want?

After that happens to you, see if your feelings change about how to handle thieves.

    Ragspierre in reply to McAllister. | April 30, 2014 at 5:08 pm

    Sure I have.

    I’ve also had government do much the same under color of law.

    I decided in both cases I was not going to kill over it.

    Call it a flaw…

      tom swift in reply to Ragspierre. | April 30, 2014 at 8:37 pm

      If your reasoning is that

      1. The government is going to rob you, but you just have to accept it;


      2. If anybody else wants to rob you, you have to accept that too;

      then you’re right, it’s a flaw.

        Ragspierre in reply to tom swift. | April 30, 2014 at 9:30 pm

        Wow. How you twisted that out of anything I’ve EVER said is amazing.

        Ragspierre in reply to tom swift. | May 1, 2014 at 7:05 pm

        Your are hilarious!

        Should I have shot down the pencil-necked IRS puke at our kids’ Christmas program?

        Should I have hunted down the ex-employee who stole tools from me and gunned him down?

        What a moron.

      Gremlin1974 in reply to Ragspierre. | May 2, 2014 at 11:32 pm

      I call it a personal decision that each of us has to decide we we have the conversation with ourselves about when we would be willing to used deadly force.

      Much like I long ago decided that unless the danger is imminent then I would always try to run even if I wasn’t required to retreat. To me I would rather run than take I life if I can.

      Also, if you haven’t had this conversation with yourself the please take a few minutes and do so, you will be surprised by what you tell yourself.

He left off that last step. He didn’t bury them anonymously somewhere.

I personally believe he gave them a coup de gras so as to prevent a lawsuit later. He just didn’t think it all the way thru.

If you’re going to be ruthless and bloodthirsty, you can’t just go half way. Should’ve gone the full load. Might’ve got away with it.

Henry Hawkins | April 30, 2014 at 6:51 pm

While I understand Smith’s apparent accumulating anger and fear over multiple thefts and burglaries, exacerbated by aging and lessening ability to defend oneself physically, and while I have zero problem with what my state’s Castle Doctrine allows (NC), man, lol… this guy is a whole different animal.

What is his mindset if he actually believed what he did was a ‘good shoot’ to which he was entitled, due to the burglary in progress? How could he have believed he’d walk away from this? Laid down tarps for post-event convenience? Built a hidey-hole to ambush from? Mob style coup-de-grace shots to the back of the head?

No, I think somebody went wrong in the head and took advantage of on ongoing burglary spree to set up what he really wanted – to kill some-damn-body. In his mental state and ignorance of self-defense law, he probably thought it be a ‘freebie’, a justifiable homicide, and he’d walk away, maybe even get a hero’s local TV interview out of it.

That kind of planning is deeply pathological. Without examining him I couldn’t venture a guess as to conditions, but he ain’t crazy. His plan worked exactly as designed through the killing part, while the getting out of it part was so poorly conceived it was obviously the lesser goal than was the actual killing. Sick MF-er, yes. Legally insane, no.

Phillep Harding | April 30, 2014 at 7:22 pm

If they were stealing drugs, what were they doing, heading for the basement? Were there other things (like power tools) in their car?

    I don’t care WHAT they were doing.

    Once they were neutralized as a threat, to switch from rifle to pistol and shoot them in the back of the head is NOT self-defense.


    Doesn’t matter if everything up to that point was lawful (which I doubt, but will stipulate for discussions sake).

    A coup de grâce is NOT self-defense.


    –Andrew, @LawSelfDefense

      Gremlin1974 in reply to Andrew Branca. | April 30, 2014 at 8:15 pm

      I think laying down the tarps was the tipping point for me. I mean that pretty much says that he has already decided that all other options are off the table. He is going to shoot and he doesn’t want blood on his stuff. When I first read that I hadn’t even gotten to the execution style shots yet. Preparing a killing ground is murder period, how can you be in fear of your life when you know they are coming and you have all the advantages? It just isn’t reasonable.

        amatuerwrangler in reply to Gremlin1974. | May 2, 2014 at 1:44 am

        First, some picking of nits: Unless MN is significantly different from the rest of the states, robbery involves the taking of a person’s property by means of force or fear; burglary involves the entry of a building (definitions of “building” may vary from state to state) with intent to commit theft or some other crime (again, variations exist). The current case involved a burglary as the precipitating event.

        While the tarps give great insight as to Smith’s plans — and planning does constitute premeditation — and the coup d’ grace does serious damage to the self-defense concept, I find the idea that he hid and waited for the thieves to come into the kill-zone as important to consider.

        Note that he was hidden. How are you going to convince someone that you feared for your life, or at least feared GBI, when your hiding makes it questionable that the supposed assailant even knew you were present.

        Self-defense is predicated on a reasonable fear that one is facing GBI or death, and that the assailant possesses the means and ability/access to carry out the act. Entering the house is one indicator of hostile intent, especially if it was under circumstances to believe someone would be present to resist the entry and theft. The amount and value of property, or the time-equivalent to replace it, has nothing to do with it.

        Earlier, Tom (not so) Swift referred to “hunting down his burglar…”. At best that activity could be used to shift the aggressor label to him, especially if the hunt took him outside the dwelling. He should do two people a big favor and buy and read Andrew’s book. The favors? For Andrew the buying, for himself the reading. Really.

      Phillep Harding in reply to Andrew Branca. | April 30, 2014 at 9:50 pm

      No, I was just questioning that only drugs were mentioned as being in the car. It did not seem reasonable, but druggies are not exactly the sort to think things out, so it was possible. Just not consistent with heading for the basement.

      rokiloki in reply to Andrew Branca. | May 2, 2014 at 12:14 pm

      I have a question –

      At what point does it cease being self defense?

      I know the obvious answer is when they are no longer a threat. But when a person is in such a situation and in a state of fear, how do you gauge when the threat is really ended? When they stop moving? After you’ve searched them to make certain they don’t have weapons?

      I’m not arguing your point about the coup de grâce. I totally agree with you. And the fact Smith did not immediately call police suggests he didn’t feel imminent danger.

      But just hypothetically, in a frightening situation like having your home invaded by unknown persons, how is it possible to know absolutely when the threat is over?

      The forensic pathologist Vincent Di Maio in the George Zimmerman trial brought up a case in which a man was shot with a shotgun in the heart. The guy’s heart was destroyed (I think Di Maio said it was “shredded”) but he was still able to run 60-70 feet before collapsing.

      So it isn’t beyond belief that a severely wounded intruder could pull out and use a weapon. Not to mention, people have been conditioned through movies that just because a bad guy appears dead, doesn’t mean he is dead and no longer a threat.

      So, when does a threat really end?

      If its me, I’m shooting until the gun is empty and then I’m reloading just in case that first clip wasn’t enough. Even if the intruders appear dead, I still won’t feel safe until the police arrive.

        Gremlin1974 in reply to rokiloki. | May 2, 2014 at 11:45 pm

        That is so situational that it is hard to answer. To me this was never ever a self defense case. There is defending your home, but this goes well beyond that simple definition. To me this is more like booby trapping your home with deadly traps.

        I think the Michael Dunn case is a good example of when a self defense situation can become something else.

        Just for the sake of argument lets say that the kid that Dunn shot did have a shotgun. So Dunn would have been perfectly justified in firing the first 3 rounds. However, even if the kid did have a gun Dunn would still be hard pressed to explain the second burst of rounds, much less the 3rd burst. Especially, since for the 3rd burst he had moved out of his own vehicle, taken a kneeling stance, aimed, and fired at a fleeing vehicle, which by that time surely had to be out of effective shotgun range.

        Now if they had been firing at Dunn while driving away that might be different. That is why Dunn was convicted on Attempted Murder, because the Jury could not find a justification for the final 2 bursts.

        So every situation is different so there is not blanket answer you have to use your best judgement and common sense. Also it never hurts to take classes or go to defensive pistol events such as IDPA to help train yourself.

    Henry Hawkins in reply to Phillep Harding. | April 30, 2014 at 8:54 pm

    I’ve worked with this.. clientele for a long time. Many/most drug burglars are efficient, at least efficient in the way desperation makes one operate. They take anything that can be translated into the drug. Sure, they’d love to find desired prescription drugs sitting in a pill box on the shelf, very handy, but they’ll also take anything pawnable, and cash, of course. And they love finding weapons.

    I knew one fellow who said his first burglary sold him on doing more. A dealer at age 22, he smoked up all the rock he’d been fronted to sell and his supplier was looking for him hard. So he decided to pull some break-ins to buy his safety from his supplier, maybe even enough to pay him off. He breaks into his first place, a trailer, and among other items he finds a brick of marijuana and twice the cash he needs to pay off his bad guy supplier. He said he thought in his head, “well, shit, this is easy..”

I actually have no problem with Mr. Smith’s putting down tarps or making himself a hunter’s blind to wait in. I have no problem with his shooting people who had broken into his castle. But I do have a problem with the coups de grace he delivered. As Andrew states, “A coup de grâce is NOT self-defense.


complete with snacks and water, and a book to read while he waited.

I wonder what the book was.

And if the snacks included Skittles, I don’t want to hear about it.

BannedbytheGuardian | May 1, 2014 at 1:10 am

Wow . Out there! If it were a movie , I would have him be an average occasional hunter who befriended some kids . Said kids begin to come around regularly then subterranean impulses begin to evolve . The kids sense he is a likely victim as does he they. The kids up their psychological warfare & he plays the weakening animal . Then they come again but he has set the trap . Then there they are likea bear in the basement looking for the honey & he has them . He plays real psychological torture games far more superior than their kiddy efforts. , then at his leisure he shoots them between the eyes.

This is why I never let my kids watch horror movies .

evan13579b | May 1, 2014 at 1:38 am

It seems to me that you are implying that robbers should be immune to the castle doctrine as long as they are obvious enough.

If these teenage sweeties (who I assume got off easy the first time because of looking attractive and popular) are so predictable yet the police won’t do anything what exactly is one supposed to do?

Evidently one cannot defend one’s home because its so freakin obvious they are going to show up.

They utterly deserved this. They were vermin.

evan13579b | May 1, 2014 at 1:46 am

Additionally supposedly if you prepare for this that is somehow a factor?

If robberies are happening around you the law should dissuade you from setting up an ambush? If you have the right to defend your property you have the right to prepare for an invasion of it.

I agree that “finishing them off” is over the line, but they did deserve what happened.

    “I agree that “finishing them off” is over the line, but they did deserve what happened.”

    Guess I missed “they deserved what happened” as a prong of justifiable use of force.

    –Andrew, @LawSelfDefense

    Sian in reply to evan13579b. | May 1, 2014 at 10:36 am

    Prepare when you are reasonably sure a robbery is imminent? Sure. Set a blind and trap them? OK. Ambush them with a rifle? That’s really pushing it. Finish them off once they’re wounded and absolutely no threat? No fucking way.

    tom swift in reply to evan13579b. | May 1, 2014 at 5:10 pm

    If you have the right to defend your property

    Do you?

    You can defend your own health and safety with force. This is what self defense means.

    You can defend some else’s health and safety with force.

    Beyond that, not so much.

      Ragspierre in reply to tom swift. | May 1, 2014 at 6:49 pm

      “Do you?”

      Yes. You have the right.

      You don’t have license. You may not murder to protect property.

      Damn, you’re dense.

        tom swift in reply to Ragspierre. | May 1, 2014 at 8:26 pm

        Don’t be so petulant.

        If you have some useful information to convey, please do so.

        What obtuse or even imaginary distinction are you trying to draw now? A “right” vs. “license”? How about a “law”?

        I am aware of no “right” of any sort to kill someone to protect property in my part of the country.

        I am also aware that many members of the general public are very vague about this. Maybe you are too, or maybe you actually know something this time.

        So, let’s hear it.

          Ragspierre in reply to tom swift. | May 1, 2014 at 8:55 pm

          “I am aware of no “’right’” of any sort to kill someone to protect property in my part of the country.”

          Then it seem that YOU are ignorant, dunnit.

          Spend a lil’ time learning what rights to defend your property you DO have.

          Report back with citations to the law. We’ll take it from there.

          Also, look up the difference between “rights” and “license”. Those are not illusory. Learn something.

          tom swift in reply to tom swift. | May 2, 2014 at 12:39 am

          Can you answer a straightforward question, or not?

          The question is, “do you have the right to defend your property?” And the context is use of lethal force. You can define “right” any way you please; the question was unspecific, and so far as I’m concerned can remain so.

          I don’t know of any way to interpret the question so that a “yes” can be justified, at least around here (which is Massachusetts).

          You imply that you have an answer, but are unable or unwilling to articulate it. If you do have an answer, don’t try to be so cute about it; that’s typical of bluffers who don’t actually have the answer at all.

          I’m sure other readers would also be interested in your font of secret knowledge.

          amatuerwrangler in reply to tom swift. | May 2, 2014 at 10:54 am

          This is a lost cause.

          Yes, you can use force to protect property. Grab them by the arm, push them to the floor, hold them until the police arrive. All acceptable to protect property, and all these things are considered force.

          DEADLY force is a different breed of cat, however. Until Mr. Swift comes to grips with the difference, and the acceptable use of either, there is no use of further discussion.

          I do however have great admiration for Rags in his efforts to educate the fellow… but its looking like a fools errand at this point.

          I also know who my nominee for Troll of the Month is.

          Ragspierre in reply to tom swift. | May 2, 2014 at 11:57 am

          Tom is a FLAGELLATOR of deceased equines.

          He has some strange kinks.

I have no problem with a person preparing for a break-in whether they are just paranoid or have a legitimate reason. If someone wants to lay down tarps to avoid a mess just in case something happens, that is their business. If the police are unwilling or unable to protect your home after multiple break-ins, then a homeowner should be able to take steps to defend the home.

Smith never invited the couple over. They took it upon themselves to illegally enter his home. He had every right to wait for them, to confront them and to use force if he felt threatened. (I would feel threatened by any teen or adult entering my home illegally.)

Smith crossed the line when he continued shooting them after they were incapacitated. Granted, they could have been armed and posed a danger even though they were wounded. But by Smith’s own admission, he fired the final shots to end their suffering, rather than out of any fear. That is where self defense became murder, imo.

    Phillep Harding in reply to rokiloki. | May 1, 2014 at 7:06 pm

    The finishing shots, problem. Did he call 911 after the first? Ifno, problem.

    “Tarp”? Why not open a can of paint so he can paint the wall over the stairs, or whatever is close?

I hope someone will explain this to me, because I really don’t understand it. The issue seem to be the final shots. But how do you know when a guy is really done? If he means you harm, how do you know he won’t get up and attack you? Unless he is running away, you don’t know what he – or she – is capable of, once it is clear he means to do you harm.

I recall a case here in Israel where a passerby stopped a terrorist by using his pistol. He kept shooting until the guy was dead. I believe that this was the only safe thing to do under the circumstances. (And believe me, Israel is no Sparta; we have our own ROE issues, not to mention gun control.)

    rokiloki in reply to mzk. | May 2, 2014 at 11:38 am

    I think the lesson here is to have a weapon that completely incapacitates with the first shot. Anything less, you may as well hide in a closet and call 911.

    Sian in reply to mzk. | May 5, 2014 at 3:15 pm

    I think the issue is he changed weapons and executed them once they were already incapacitated and offering no threat.

Another Ed | May 3, 2014 at 5:31 pm

There are some interesting concepts raised here. It would appear that some have seen too many episodes of “Dexter” and are extrapolating art to life.

At night, in preparation for sleep, I turn off all lights and noise producing appliances such as radios and televisions. To an outsider, it would appear that no one is home and offers an invitation to those with ill intent. If some one breaks in and I respond by shooting him/her without leaving my comfortable bed or calling 911 first, can I be accused of premeditation and setting an ambush?

Does moving to a hiding place while armed establish an ambush when discovered by the intruder?

Doesn’t talking on a telephone (for the 911 conversation) from a position unknown to an intruder reveal your location and unintentionally make you a target waiting to be surprised by the intruder? If you are talking and focusing on providing information to the 911 operator then you are distracted and not paying complete attention to things exclusive of that 911 conversation. Until an intruder leaves and is well on their way then he/she may still be a threat.

If you shoot until someone is no longer a threat (prone and compliant, unconscious, paralyzed or dead) and that someone attempts to get up, are they not a threat again, allowing them to be shot again? It may be several minutes before shock and blood loss lowers oxygen delivery to the brain, allowing the once shot motivated intruder to resume his activity. If he/she does resume and again becomes a threat, must you take extra care to only shoot him/her in the front or sides? Would this extra care not to shoot him/her in the back or the back of the head be considered premeditation?

Can weapons possession within your home be considered premeditation? Can practice at a range to acquire proficiency with a weapon be considered premeditation? Can any method of preparation be considered premeditation?

The biggest takeaway I see is, not matter what you do, do not put down tarps.