GUILTY: Montana Homeowner Who “Baited” Intruder Convicted
Markus Kaarma is convicted of deliberate homicide
Markus Kaarma, the Montana man tried for deliberate homicide for shooting and killing a German exchange student whom prosecutors say was “baited” into entering the homeowner’s garage has been convicted of that crime, reports WRAL news.
The defense narrative of innocence was that Kaarma was in a heightened state of fear, having already been burglarized several times when at home with his common law wife and their 10-month-old child, that the police had been ineffective in dealing with the repeated burglaries, and that he acted in necessary self-defense when he spied the figure of Derin Dede in the darkened garage.
In order for the jury to come to their unanimous guilty verdict they would necessarily have concluded that the state had disproved this narrative beyond a reasonable doubt.
Kaarma faces a minimum of 10 years in prison on the conviction, and is scheduled to be sentenced on February 11. His lawyers naturally say they plan an appeal, but there is no indication as yet on the particular issue(s) on which they would base such an appeal.
True to form, the media continues to report this as a Stand-Your-Ground case, which it certainly is not. Kaarma would not have had a legal duty to retreat under any circumstance because the shooting took place in his home, and there is no state that imposes a legal duty to retreat when facing an intruder in one’s home, a doctrine known as the Castle Doctrine. Given that all Stand-Your-Ground does is relieve you of an otherwise existing duty to retreat, the absence of such a duty makes Stand-Your-Ground entirely irrelevant.
As an added bonus, the media is now adding doctrine of a legal presumption of reasonable fear to its already confused conflation of the Castle Doctrine and Stand-Your-Ground, creating a mish-mash of legal concepts akin to a child’s finger painting.
We have previously reported on the Kaarma case here at Legal Insurrection on numerous occasions, including:
VERDICT WATCH: Montana Homeowner Accused of “Baiting” Intruder
Trial Underway of Homeowner Accused of “Baiting” Intruder
Journalists Continue to Suffer From Rabid “StandYourGroundPhobia”
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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.
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Yup, I continue to be able to predict the outcomes of these trials with 100% accuracy, just like most everyone else on this site.
And that’s because those of us coming to this site are in search of truth, backed by facts and expert opinions.
It’s a jungle of lies and deception out there.
I’ve been shooting since age 2-yrs, love the attitude of law enforcement here in Florida for shooting intruders, car jackers and threatening thugs. That said, this guy in Montana has smelled foul from the start.
Baa-Daa-Bing. Like dat.
The times, they are a changin’.
Fifty years ago this probably would not even have made it to a trial.
So pretty soon America will be Great Britain where you can’t shoot anyone who breaks into your home.
No, I think it means that, if you’re going to bait burglars so that you can notch your rifle, you should not smack-talk about it before or after the act.
You’ll be prosecuted if you fail to offer them tea and biscuits.
It’s hog boilin’ time.
Just thought I would mention for those unfamiliar… Montana is a very Red state with two deep blue dots… Helena and Missoula. Sometimes they are blue enough to offset the rest of the state, but that’s a different topic. Analogy: Missoula is Montana’s Austin.
Didn’t he have a right to leave his door propped open? Didn’t he have a right to leave a purse anywhere on his property? Didn’t he have a right to shoot an intruder who posed a deadly threat?
See, is that last one where Kaarma had problems. There’s probably a presumption of deadly threat when an intruder is in the home, but Kaarma was mouthing off about shooting the next one, which shows a sort of premeditated desire to act regardless of if there was an actual threat. That gives the DA the opening to try to overcome any presumption regarding danger, who ch they obviously did to the Jury’s satisfaction.
Word to the wise: keep your trap shut, don’t joke (or speak) about shooting intruders. Don’t talk about “bait” for the local criminal element. Take reasonable safety precautions. Given the recent, repeated thefts, it was presumptively unreasonable to leave the purse in the garage with the door open. Period.
Hypothetical: what if instead of shooting, he holds the kid at gunpoint and calls the police and reports the burglary and while doing so tells the police that he will hold him here until they arrive. Then the kid grabs a prybar from the garage and starts swinging at the homeowner. Would that be enough to reestablish the deadly threat or and presumption of innocence?
OK, this isn’t rocket surgery.
What do YOU think…?!?!?
Well, sure if that’s what happens. But this guy shoots his mouth off like a Gatling gun so there’s no bet I’d take if he’s in the mix.
Yes, all of that is true, unless you announce your intention to do those things before hand, like to what was apparently the entire neighborhood, when you do that its becomes more of an ambush/assassination plot.
Remember Self Defense is an imminent thing, i.e. the threat is right now, yes you can plan what you are going to do IF, what you can’t do is plan what you are going to do and then lure someone into the trap, that’s the no no.
Didn’t he have a right to leave his door propped open? Yes
Didn’t he have a right to leave a purse anywhere on his property? Yes
Didn’t he have a right to shoot an intruder who posed a deadly threat? Yes
It’s that last one that’s tougher than it seems.
Wasn’t there a case in Minnesota where some guy baited two teens to break in and then he shot them? I think he was convicted too.
Yep, here it is: http://www.usatoday.com/story/news/nation/2014/04/29/minnesota-homeowner-kills-teens/8480047/
Guy moved his truck away to make it look like he wasn’t home, then sat waiting for them.
Andrew reported extensively on this one and even made it a part of his seminar, or at least the one I attended.
That one was bad, he not only moved his truck, he had a blind set up at the end of a choke point, he had snacks and water in the blind, he had a rifle and a back up handgun, and he had tarps ready and laid out for the bodies.
On top of that he recorded the entire event, so at the trial there was audio of him walking up to one of the wounded intruders and finishing her (I believe it was the girl) with a shot to the head. I can’t remember exactly but that may have been after he had moved her to the tarp.
That case was more than baiting, that was an assassination plot, plain and simple. Heck, if he had had the presence of mind to leave the cops out of it and just dispose of the bodies a good distance away, he might have gotten away with it.
I recall the audio on that was pretty damning as he came back and put extra rounds into intruders after they were no longer threats and said some stupid ass remarks while doing so.
I would not want a hothead like Kaarma running loose in my community, either. He was in a perfect position to either hold the burglar or put the kind of fear in him that would end the trouble, rather than kill anybody. He chose to kill, just like he said he would.
Apparently it didn’t take them long to come to their verdict.
the law is an ass.
What is so hard to see this couple were killers?
There are LOTS of sick people, and some them have houses, and some of them have stuff stolen by other sick people.
They are KILLERS when they conduct themselves as these people did, and they would do it again if they got off here.
I’m put in mind of a guy here in Houston who was a veteran firefighter with a clean record who just blew away a neighbor thinking he could justify it on “stand your ground”. He SWORE he had a real fear for his life when he killed. Now he’s got few concerns for the rest of his life.
why is it so hard to accept that if you are in someones house with the intention to steal you deserve to die?
the bait, as it was, didn’t force the thief to go in.
I reject that premise. You should try selling the idea that simple theft from a dwelling should carry the death penalty, or that you’d be justified in hunting down and slaughtering a burglar.
The obvious flip side to that scenario is for thieves to be armed during their crimes and to whack anybody in the house. It’s easier to defend a murder charge than a burglary charge. Something about strict liability IIRC.
Use bait, but fire blank shotgun shells. Rack off five 12 ga booms and then turn on your audio tape of attacking pitt bulls. Scare the piss out of the little sneak thieves. Film it for YouTube. Might get a viral video.
Henry, that sounds like a recitation born of experience. Did you do that to some poor miscreant?
if I can bait a bear I should be allowed to bait a dumbass.
not entirely convinced this was really baiting though.
point is, if I don’t belong in your house you should be able to shoot me for any reason.
Firing blanks at someone could still be considered assault, possibly assault with a deadly weapon. Andrew has often said, “Never fire warning shots!,” and firing blanks seems to be equivalent.
He could have easily just yelled out Aus! Sitz! Platz! Nein! Nein! Nein!
Talk about bad Karma.
What troubles me about this case is that Kaarma ran outside and fired into the garage from his driveway. I’m assuming that his garage is attached to the house. [If it was a detached garage, it is difficult to see a garage break-in as a threat to Kaarma or his family, even if a detached garage is included in Montana’s castle doctrine.] If Kaarma had entered the garage from the inside door, he would have been standing between the burgler and his family, and there is a strong appearance that he’s defending his family. By running outside and firing into the garage from the driveway, he put himself in the burgler’s path of egress, and deliberately put himself in hazard.
Kaarma is dumber than a bag of hammers. His two biggest problems were stupidity and malice. Such a mixture is pretty much guaranteed to produce a poor outcome.
Most certainly Kaarma did a slew of stupid things, but I find it hard to blame him for having malice, who would not after repeated thefts? How long should a citizen have to put up with law enforcement’s failure to catch the criminal? Should we allow non lethal measures to be used, as in traps to catch or greatly hamper the criminal’s ability to continue?
I had the same thought. By running outside he either blocked the intruders only escape, which isn’t sound tactically nor adds to a self defense claim. Also by running outside it would seem if the intruder decided to run he would have to run towards the family, also not sound tactically, nor does it add to a self defense claim.
Andrew, is very clear that “establishing your innocence” as early as possible is important, doing things like blocking an intruders escape doesn’t help do that.
Would have been found innocent in TX, guaranteed. God Bless Texas.
If you bet on that, you’d lose.
I’m pretty sure walls would win that bet. Also see Joe Horn.
Can you even read a statute, Milhouse?
That statute seems pretty clear to me, Rags. And it supports walls’s claim.
How is this “baiting” different from what the police do all the time, standing around and waiting for drug dealers to approach them, or looking like dealers and waiting for buyers to approach them? The courts have consistently held that this is not entrapment, because if the defendant were not already looking to buy or sell drugs he would not have taken the bait.
Or how is it different from what Bernie Goetz did, going around with a gun and waiting for someone to try mugging him? Again, if the muggers hadn’t tried it they would not have been shot.
If this burglar had been a normal person he would not have been in the garage, open door or no open door. And so long as the law presumes that every burglar is a threat to the householder’s life unless he is proven not to be, I don’t see how this person is guilty of anything.
Poor Milhouse. Is your Asperger’s kicking up?
As to the police, is their intent to shoot and kill or to arrest? Have they made statements to witnesses that they are going to kill a john or a drug buyer?
If so, they are not LEOs, but just killers.
How’d that whole deal work out for ol’ Bernie?
See, Milhouse, the whole deal swings on intent. Self defense is obviated when you INTEND to use deadly force and you set up the circumstances to lure someone into your scheme.
I’ve heard many a gungrabber argue that the mere act of acquiring a firearm shows intent. I think that road is fraught with mines and we should avoid it.
I think the poster was talking about the whole “baiting” aspect of the case more so than the shooting itself.
Goetz didn’t set up the circumstances for the subway shooting; he was just ready for them since nothing much was done about a prior vicious assault and robbery he suffered. There’s a difference between that and what Kaarma did. Goetz didn’t have his ducks in a row as far as his weapon registration as he’d been denied a carry permit even though he’d been assaulted, robbed, and routinely carried valuable electronics. That’s a lot different than what Kaarma did. It appears his dogma ran over his karma this time. Goetz’s case was instrumental in highlighting urban crime and caused public pressure to bear on the city fathers who didn’t give a shit.
Self defense is not obviated when you intend to kill only if you have to, even if you put yourself in a place where you’re likely to have to. It’s still up to the bad guys to either put you in danger or not. If they don’t, then you don’t get to kill them.
Might want to check out a concept called “mutual combat” or “combat by agreement” or “affray,” depending on what state you’re in.
Never self-defense. At BEST, mitigates murder to manslaughter.
Self-defense is what you do when events happen TO you, NOT what you GET to do when YOU create the necessity for the events.
I know plenty of people wish it were different. I get it.
Not telling you what’s “right,” just telling you what “is.” 🙂
Be very thankful that we live in the USA. Europe, with its Civil Code, or the versions twisted by Nappy, many years ago, might have an even worse outcome than what happened in Montana.
Years ago, 1958-59, I served in Turkey. We were told that if a burglar even injured or killed while robbing our apartment, hotel room, or home, we were liable for causing that harm. Now that’s almost as twisted as what the Montana couple did. Just another example of how our Constitution does not follow us when we’re in another country. Pity!
Andrew: Please help me out. I have loaned my copy of your book to a close friend and don’t have another dependable “go to” reference available. I have homes in NH and FL. I am fairly familiar with their laws. I certainly exercise an abundance of caution when I venture near the MA border. In the article you said no states impose a duty to retreat in your home. Does that hold true for MA. Decades ago I recall a meeting at a NH gun club where Mas Ayoob was expounding on self defense and recall a situation where he spoke about a women who had retreated to the basement of her home in fear of her enraged husband. She was found guilty of murder because she failed to use her bulkhead door as a further avenue of retreat. Has MA become a more enlightened state since then? I have for years assumed that MA was an absolute duty to retreat environment.
In `1975 the Massachusetts Supreme court did indeed rule in Commonwealth v. Shaffer, 326 N.E.2d 880 (MA Supreme Court 1975) that the duty to retreat applied even in one’s home. (This is the case of the woman in her basement that you recall being mentioned.)
This decision led to the MA legislature immediately adopting a statutory “Castle Doctrine,” §278-8A, to this day the ONLY self-defense statute in the Commonwealth (all our other self-defense law is case law).
The current law is MA is no duty to retreat within one’s home, but only LITERALLY within the four walls of the home (no curtilage) and ONLY from intruders (not others lawfully present).
Although you have to be very careful about case law, after that legal atrocity and as I recall countering law (Massachusetts is not entirely hopeless), in the early ’80s another homeowner was convicted for not leaving his sleeping daughter to the tender mercies of a home invader. Which as I recall was followed by another law (perhaps the current text our host cites), and then the courts interpreting that as narrowly as possible, for example you aren’t covered if you rent but your name is not on the lease (or so I remember hearing). Which is very common in the tight housing marker of the Boston area.
I left before the state inevitably passed its first batch of “assault weapon” laws, so I’m not up on it as our host is, my major point here is that you must know the case law as well as statutory law, since in a lot of states the courts like to negate crystal clear self-defense laws, and that case law can change, specifically in your case.
There are many consequences to living in a state or region of a state where the executive and judicial branches of government are hostile to self-defense; I read that the DA for a county I spent a lot of time in always charged first degree murder in self-defense cases, “the jury will sort it out” sort of thing (which actually wouldn’t be a terrible bet, but still…).
Of course the story is entirely different if you’re politically connected in this supremely corrupt state. Left unmentioned in that account is how, miraculously, a couple of the major players in the cover-up managed to win million dollar or more state lottery prizes
Unconnected to the case, I’m sure, just an indication of how brazenly corrupt the state is. Or look at the three proven criminal Speakers of the (state) House prior to the current one (so far…).
Since he threatened to shoot the next burglar and his wife told the neighbors they were ‘baiting’ the garage, it was a foregone conclusion.
It might even be questionable if the perp had a weapon, once the homeowner laid in ambush. Hard to convince a jury you are in fear for your life when you laid in wait with a shotgun.
A wise man once told me that nothing is often the best thing to do, and always the best thing to say. Their big mouths convicted him.
As a guy I once knew who worked in the garbage industry put it:
“Never write when you can speak, never speak when you can nod, never nod when you can wink.”
“Never write when you can speak, never speak when you can nod, never nod when you can wink.”
That sage advice is worth the price of lunch. 🙂
I’ve a weakness for a good Sheperd’s Pie and a pint of Guinness. 🙂
Andrew – I’m good for it if you can do a seminar anywhere within a 75-mile radius of Rockville Maryland on a day that I’m available. The information you have provided here on this website, for free, is invaluable for anyone who would just take the time to read and understand it. The discussion comments alone are extremely valuable.
I’d even ‘cross the line’ into Northern VA for a seminar, though you probably would not focus much on MD law, in that case.
The more I read this blog and subsequent discussion the more I realize how little I actually know about self-defense law, and how hard it actually is to keep yourself outta the slammer if you must resort to it.
“Do right and fear no man: don’t write and fear no woman.”
I’m going to say something that I tell people in every self defense class that I participate in.
Do not use deadly force against anyone unless you have to. In this country, the use of force, including deadly force, is reserved for self defense, accept in the case of LEOs, who are also authorized to use force to effect arrests. Citizens are not authorized to execute criminals. And, the use of force, in other than clear-cut self defense, will likely be viewed as an execution.
In this case, baiting or enticement, is really not exceptionally relevant to the case. Unless the enticement is done in such a way that almost anyone would be expected to succumb to temptation, then it is not a strong factor in defense of an obviously illegal action. However, if the enticement is a deliberate act, conducted as a means to further another act of dubious legality, it can negate any self defense immunity that may be derived from statute, or even case law.
The deciding factor, in this case, is that the homeowner opened fire immediately upon confronting the intruder in the garage. There was no evidence given that the intruder did anything to actively threaten the homeowner. He was not obviously armed. The home owner gave him no opportunity to surrender, or to even attempt to escape. The homeowner simply executed him. Civilized society frowns upon private citizens conducting roadside executions. It kind of undermines the criminal justice system.
While their big mouths didn’t help them I think there was more too it.
Even if he had just held the kid at gun point for the police to arrive, I think he’d been in trouble.
I mentioned yesterday the guy in our county who did that and ended up shooting the kid. However in Colorado, a homeowner tried to stand between some guys stealing a trailer from his property and the road. They were going to run him over to get out and he shot them… and he was the one who went to jail.
So even if this had played out differently and he’d tried to just hold the kid until police arrived and shot the intruder as he rushed the homeowner to get out… I think he’d be in trouble.
So then you go to less deadly force (say an attack dog biting an intruder in a gated yard) and you get in trouble for your dog injuring them and have to put the dog down. At some point we should at least be able to stop burglars for stealing w/out a county issued permit to steal. Tolerance for theft sets the baseline for what thieves know they can get away with.
so what do they call it when a police officer dresses like a whore to catch perspective “clients” – baiting?
Does the cop SHOOT them for the offense of solicitation, then claim self-defense?
I don’t think so. 🙂
Were you using euphemisms there…???