If you CREATE the necessity for using force in self-defense, it’s NOT self-defense.
The murder trial is underway of a Montana homeowner Markus Kaarma, accused of “baiting” an intruder into his garage and then shotgunning him to death has been proceeding in Missoula this past week, as reported by the Missoulian newspaper and other sources. The defendant is arguing that the shooting was lawful self-defense.
The essential facts are that a group of thieves–sometimes characterized as college students–have been raiding neighborhood garages and stealing from them, a practice referred to as “garage hopping.” Kaarma had been robbed in this fashion several times already, including one instance in which his cell phone was stolen resulting in him having an actual phone conversation with the thieves who answered when he called his own number.
The prosecution argues that Kaarma and his common law wife, frustrated with the continued thefts and the inability of the police to do much about them, “baited” the garage with a purse, leaving the door slightly open. This apparently attracted 17-year-old German exchange student Diren Dede to sneak into the garage. Alerted to the intrusion, Kaarma approached the open garage door from the outside and fired several shotgun blasts into the garage, killing Dede.
This is, of course, being cited as another “Stand-Your-Ground” related shooting. It is, naturally, nothing of the sort. All 50 states are–both those that impose a duty-to-retreat and those that allow you to stand-your-ground–are in agreement that there is no duty to retreat from an intruder in your home. Stand-your-ground in such scenarios is utterly irrelevant.
What is creating considerable difficulty for the defendant’s claim of self-defense, however, is considerable evidence that the defendant deliberately baited his garage to lure in the thief, with the intent of then bringing lethal force to bear against him.
The Great Falls Tribune reports:
Neighbor Jessica Bracey said she had a conversation with Markus Kaarma’s girlfriend, Janelle Pflager, days before the April 27 shooting. She told jurors she is certain Pflager used the word “bait” in describing plans to catch intruders after their garage had been burglarized April 17.
Kaarma’s next-door neighbor testified Tuesday that on the night of the first burglary, he heard Pflager threaten the people who answered his stolen cellphone. “If you return to our garage you could be killed,” Terry Fink said Pflager told them. “It was jaw dropping to me at the time.”
And abcfoxmontana reports:
Robin Rosenquist, who lives across the street from Kaarma and Pflager, told jurors about a conversation with Pflager shortly before Diren Dede’s death. Pflager told Rosenquist about a prior robbery, her frustration with police, but also the expectation that the burglars would come back because they planned to “bait” them.
Later, witness Jessica Bracey, whose yard is adjacent to Kaarma’s, recalls a similar conversation with Pflager, who told her about the burglary, told her “guns are loaded” and they planned to bait the burglars back into their garage and catch them on the baby monitors.
At the very core of self-defense (as well as defense of property) is the notion of necessity. The ability to lawfully use deadly force to take another person’s life is an awesome power, and the law allows it only when it is necessary to do so in defense of a greater good.
It is also required, however, that the necessity not be the result of the purported defenders own deliberate conduct.
You cannot be the aggressor in a fight and then claim the justification of self-defense for your use of force. By being the aggressor you yourself created the necessity for the use of force.
You cannot even be a mutual combatant–“Let’s go outside and settle this like men!”–and claim self-defense as justification for your use of force. In cases of mutual combat, everybody who agreed to fight is deemed the aggressor, because they all created the necessity for the use of force.
Similarly, you cannot lay out bait to attract intruders into your home, and then use self-defense as justification for your use of force against them. Again, because you have created the necessity for the use of force.
Kaarma’s defense is well aware of this difficulty, and argues stridently that there was no deliberate intent to lure a victim into the garage where they could be killed. Kaarma’s common-law wife, Janelle Pflager, has already testified on the stand that she did not intend to leave the purse in the garage as bait, but merely as an indicator of whether someone had been in the garage. She had purportedly made a list of the items inside the purse, so that if someone were caught with the purse or those items they could be connected with the theft.
The defendant, Kaarma, has not yet taken the stand. The only reason I could imagine that his lawyer would not have him testify under these circumstances, and given the neighbors’ testimony, is that it would only hurt him further.
Given his conduct to date, that seems a promising hypothesis.
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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.DONATE
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