Law of Self Defense: Setting an Ambush
Are the stakes worth the risks–death in the fight, life in prison, impoverishment?
This Case of the Week involves an Indianapolis man who successfully ambushed three home burglars, killing one and driving off the others, who were ultimately arrested. (Click here for a link to the news report by the IndyStar.)
Local prosecutors have announced that they do not intend to bring charges against the defender. Based on the reported facts this appears to be a perfectly sound call by prosecutors. So, a big win for the good guy, right?
The answer, in an immediate sense, is yes, this was a big win for the good guy. But was it a win worth achieving? Especially given the risks involved, both physical and legal? And the stakes being protected? Those are the issues I’d like to explore in this Case of the Week.
The Situation
Let’s start with the evidence around the actual fight, which is quite favorable to the defender, and what led prosecutors to decline to bring charges.
The defender was in his mother’s house when a dark van, unfamiliar to him, pulled into the driveway with three men inside. It is notable that the house had just the night before been burglarized, with a washer, dryer, and large-screen television stolen. Further, the hot water tank was found drained.
Two men emerged from the van and approached the house, with the third man remaining behind the wheel. When one of the men began to force the locked door of the house, the defender called 911. As the intruder breached the door, the defender ordered the man “to leave and get down.”
The intruder continued to approach the defender while holding “something large in his hand. The defender fired his gun at the intruder, who staggered back out of the house, followed by the defender. As the defender stood on his front porch, the second burglar approached with “something in his hand.” (This was allegedly Kevin Lemaster, shown in the right half of the featured image.) The defender fired multiple rounds at the second burglar, who fled on foot unhurt. The third burglar drove the van away, which had been struck by several of the defender’s shots.
Responding officers found the intruder deceased on the front lawn with a gun beside him. Officers arrested the second burglar as he sought to depart the neighborhood on foot. The next day an airsoft pistol was found along this burglar’s path of flight. The van driver was also later identified and arrested. (This was allegedly Benjamin Gardner, shown in the left half of the featured image.) The defender stood on the sidewalk in front of the home with his hands in the air when officers arrived.
Police recovered the defender’s 9mm handgun from the porch, where the defender had placed it after the burglars had fled.
Prosecutor’s Decision
As already noted, prosecutors have announced that they do not intend to charge the defender. So, does that mean the defender made all the best calls in this encounter? Well, maybe not, especially when we look at the stakes and the risks of the encounter.
First, this house was not an occupied dwelling. It belonged to the defender’s mother, who had the unoccupied house up for sale. It was only after the house had been burglarized of the washer, dryer, and TV, and the hot water tank had been found drained, that the mother asked her son to spend the night in the home, in the expectation that the burglars would return for the hot water tank.
In effect, the mother asked her son to establish an ambush for the burglars she expected to return.
As events proved, the mother’s expectation was correct. The burglars did return, they did encounter the son’s ambush, and the son emerged victorious, both in the physical fight and the legal fight.
It has to be noted, however, that this was not the only possible outcome of this encounter. There’s no magic pixie dust that says the good guy wins the gunfight. This son could well have lost that gunfight, and it could well have been the son who the police found bled out in the front yard.
Even had the son won the physical fight, there’s no certainty that the authorities wouldn’t choose to feed him into the gears of the criminal justice machine. I’ve personally seen many cases where prosecutors aggressively pursued charges in these kinds of ambush cases, on the theory that the purported defender in effect orchestrated a killing that didn’t have to happen.
Further, once the son is fed into those gears of the criminal justice machine the son faces the potential of the rest of his life in prison on a murder conviction. Best case, he’s acquitted and avoids prison, but only at the cost of every resource he has, or that he can beg, borrow, or steal for his legal defense.
Importantly, the defender has no control at all over whether he finds himself aggressively prosecuted, whether that prosecution is for legitimate or purely political reasons. His life is now in the hands of a stranger whose personal agenda might be wholly inconsistent with either a reasonable concept of justice or the defender’s best interests.
Stakes involved
And for what stakes were these risks incurred? What was actually at stake when the owner of this home placed her son’s life at risk and placed him in jeopardy of life in prison? Remember, the house was otherwise unoccupied, so absent the son being present for the ambush there was no threat to innocent persons. So what was threatened? A drained hot water tank? Is it really prudent to be willing to die or spend your life in prison over a drained hot water tank?
There are definitely circumstances when the use of deadly defensive force is worth even the most severe consequences, including even losing the physical fight and spending one’s life in prison. But that list of circumstances ought to be a pretty short list. For what it’s worth, I personally don’t have “defending drained hot water tank” on my list.
Make sure the stakes you’re fighting for are worth the risks of the fight, folks. Maybe you believe it’s fine to kill or die over a hot water tank. That’s your decision to make. All I can do is try to help you make an informed decision.
And for Pete’s sake, think these issues and scenarios through today. Because you won’t have time for thoughtful consideration when the flag flies.
Remember: You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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[Featured image sourced from the Indianapolis Metropolitan Police Department.]
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Comments
I’m familiar with some of these cases and about this line in particular being used in the prosecution’s argument…
“on the theory that the purported defender in effect orchestrated a killing that didn’t have to happen.”
A lot of things didn’t have to happen if things went differently. If the burglars didn’t burglarize, it wouldn’t have happened either. Same argument was used by Justice 4 St. Tray defenders and it makes me sick, because what ifs can go both ways.
At what point does the defender of their home/neighborhood, whether expectant of criminal invasion or not, get the benefit of the doubt since our police forces can’t guard us every night preventing criminals from returning?
Let’s start with a drained hot water tank and move on to copper pipes, wiring, fixtures, cabinets… pretty soon you have a house that’s going to need possibly tens of thousands of dollars worth of rehab.
“Tens of thousands”??? I had a house being restored after some fire damage. Assholes broke in, stole brand new appliances, tore the copper wires out, broke the walls to discover that we’d used PEX instead of copper pipes, stole the AC compressor, and for some perverse reason, even stole the toilets! Cost to restore after the break-in was about $60K.
We had photos of the scum from outdoor security cameras. But the cops said that the photos prove trespass, but do not establish that the people in the photos were the ones who broke in and destroyed the house. The cops did not arrest these assholes.
I did not go for self-help justice. However, once the house was restored (second time), I slept there with my shotgun loaded, every night until the new occupants moved in.
It was only $60K at risk, but at some point, you need to take a stand.
Yeah, I just bought a property that I got at a huge discount because once the owners moved out of state, the thieves moved in. They stripped the kitchen cabinets out, the kitchen sink, the solar array and 9 out of 14 6v batteries (worth about 12k). They obviously didn’t know what the hell they were doing because the stuff they left behind was actually quite valuable. The house also has PEX so there was no tearing out copper pipes, thankfully. It didn’t put me off because I’d rather design my own kitchen and the solar would have needed an upgrade anyway. I’ve got one of the neighbors checking the place periodically because I won’t be able to live out there full time for 3-4 years which gives me time to do a lot of the work myself. My husband is worthless when it comes to home repair/maintenance/remodeling so he’s about to get a crash course (give the guy any gun and he can strip it down in about 10 seconds).
Well if the police would protect the house. Well if the police would have appeared out of no-where…….when seconds count, the police are only minutes away.
The police can always be counted on to show up . . .
. . . and draw the chalk lines
And also do the paperwork for the insurance companies on our dime.
It is a shame that the defender missed the second burglar and that one of the stray bullets which hit the van did not nail the driver.
I cannot help but think that society’s best interests are served when these types of people leave the scene in body bags. In most cases criminals cost us dearly, in and out of courts and jail, frequently the severity of their crimes increasing.
Some people are bad seeds.
I respect Andrew and have his book so I know how he thinks. But in a case like this what is the homeowner to do? As mentioned in another comment, it was just a matter of time until all of the wiring and plumbing was taken from the house. If we are to act as Andrew says then no unoccupied home is defensible. Where I live, businesses have to put locked metal grids over their A/C units or they will be stolen for the copper in them. As much as I hate to say it I would have done exactly what the son did in this case. I might not have ventured outside as he did but I certainly would have fired on the first guy and if the second guy appeared at the door he would have been dispatched as well.
Now if this had been one of Speaker Nancy Pelosi’s gated residences (walls don’t work) there would have been armed Federal Agents in wait and no charges.
I disagree with any attempt to call this an “ambush”. In my mind an “ambush” would require baiting the burglars to the home and inside the home while the defender fired from a covered/protected position. There is nothing in the facts to indicate that there was either baiting of the criminals or the preparation of a covered position from which to fire into the “kill zone”. If the guy is just sitting in house with a chair and sleeping bag, that is absolutely NOT an “ambush”.
I do understand Andrew’s points about a possible cost/benefit/risk analysis, but this was absolutely NOT an ambush.
Following and shooting at people outside the home was risky, but not shooting the guy who came in the house.
A year or two ago, there was a guy who deliberately left his garage door open in order to induce some scumbag to enter the garage and steal stuff, while the garage owner laid in wait for the burglar. [Well, that is one version of the fact. I think he was working in his garage and had the doors open for ventilation.] I seem to recall he was arrested for protecting his property.
Thank you. I was just about to post that.
On top of that he also called 911 while the guys were trying to break in and he told the thieves to leave.
Before shooting.
That’s not the actions of a person springing an ambush on someone.
In effect, the mother asked her son to establish an ambush for the burglars she expected to return.
What is the distinction between guarding and ambushing?
Guarding property doesn’t get anybody shot. A deadly threat to the guard is what gets somebody shot, and that’s defense of person, not property, and (once the attack is, at least to appearances, imminent) not ambush, either.
Not, of course, that I’d care to have to pay somebody to make this argument in court.
I agree. By this logic, the owner of a storage unit hiring a night watchman to patrol the area is setting himself up for a suit.
“My son wouldn’t have gotten shot if this criminal had not hired a merciless assassin to stalk the area!”
“Well, lady. If your son and his ten little thug friends had not started prying open storage units and waving their guns around…”
I appreciate these “law of self defense” posts. I learn a lot from them. That said, I have to disagree very strongly with one point: Characterizing the son spending the night in the house as an “ambush.”
This characterization is borderline insane, unless you also characterize every single security guard in the world as a potential ambusher.
Protecting your property (or your mother’s property) is entirely honorable and good. The belief that there may, in fact, be something to protect it from does not change that!
This is just my opinion. I can see where some prosecutors might – completely dishonorably – argue differently. It’s great that that did not happen in this case.
Just what I was thinking. Calling this an “ambush” would be the equivalent of calling every occasion when a security guard is compelled to fire on a burglar an “ambush”.
screw the law.
2 people did not get what they deserved. 1 did. whats right and whats legal are often at odds with each other.
glad I am in very rural area and don’t have to deal with this crap.
private property (especially a home, occupied or not) needs to be respected more by the law.
^^This^^ The law is an ass.
Yes indeed. And it will demonstrate that it’s an ass by locking you up for thirty years or so, whether you’re right or wrong. The fact that you’re dealing with asses won’t make your sentence any shorter. Which, I think, was A.B.’s point in this column.
BINGO!
you make a good point and in later comment I clarified that I appreciate the authors telling us the laws.
My issue is with the laws themselves.
I went and read the Indy article. The house had been sold and closing date was the following day. He wasn’t just guarding the house or risking his life over a water heater. He was guarding his mother’s financial future and well being. He was a good son and I’m glad it had a happy ending.
So, did he get back the rest of the stuff that was previously stolen?
Ambush: making it look like no one is there and possibly baiting criminals by leaving the garage door wide open (as happened in another case).
didn’t get to finish…. this site’s comment feature is finicky…
If you are making it look like someone is occupying the house- leaving a car in the driveway, lights on- etc to discourage would be burglars, as sane people do…and even have your dog there to bark- the forced entry being met with lead poisoning seems reasonable.
Leaving a garage door slightly open so that a stray cat can access a bowl of food, and then just happening to dispatch someone who uses that to break into the garage, that seems like a better scenario.
We had something similar to this locally but the defender took a few different steps: moved his car to make it seem like he wasn’t home, set up a pseudo snipers nest downstairs to wait for them, and then executing them after they had been shot and were laying on the ground. He may not have been charged if he hadn’t recorded the entire thing. Convicted – two counts of murder.
This is an interesting case simply because they hadn’t entered the house yet. Does the castle doctrine apply to porches?
I remember that one, Andrew did a write up on it to. Now that was an ambush. It is especially chilling when you think he actually was trying to get the 2 specific people he got.
As far as your “Castle Doctrine” question the answer is that it depends on the state/location. In some cases it is only the inside of the house or property (like a car), in some cases it also includes the area around the property. Funny enough in Cali, you can chase them down and keep shooting at them, lol. (Yes, that is a huge oversimplification, but IANAL.)
Does the castle doctrine apply to porches?
The Wafer/McBride case in Detroit comes to mind.
Incidentally, Wafer lost an appeal a couple of months ago.
this was not an ambush–the INTRUDER had an opportunity to end the assault and leave–he instead broke through the door–is that consistent with an intruder intent on THEFT only?–additionaly, he was armed–he dies, end of story–only criticism have of the whole thing is going outside against two, possibly more known assailants–that, to me, is where the “getting shot over a waterheater” comes into play–you’ve defended yourself against a lethal force attack–the rest is up to the boys in blue and would have waited for them to arrive
Had case in out local community occurred over a weekend. Local homeowner was remodeling a vacant home to occupy. Caught some teens and soon to be teens vandalizing the house. Forced them into a closet, locked it, and called the police. Police showed up, neighbor “discovered” it was his kids. Demanded the police arrest the homeowner for kidnapping, unlawful restraint, whatever- and the police did. He was quickly released on his own recognizance. Went viral on the internet. County DA showed up to work Monday morning- his email inbox was full as well as his voicemail- and he had no clue what it was about. He didn’t peruse the internet for news. My son was sitting on the grand jury. The DA went in and mentioned his quandary. The grand jurors had already been discussing it.They informed the DA what it was all about. Told him not to bother bringing the homeowners to the grand jury; they wouldn’t indict. (Grand jurors, unlike petit jurors, CAN get their information from anywhere they like.) He dropped all charges against the homeowner and pursued charges against the vandals.
Way the quote marks around discovered? Well, it was a local case. Apparently the adults involved were in some sort of dispute, and stories had it the kids were told to go over there… In any event, the neighbors ended up paying for all the damage.
Had another kid in HS at the time. The feeling amongst HS kids familiar with all the parties involved felt the homeowner was within his rights to shoot, shovel, and shut up. Everyone in town who doesn’t actually own acreage has a relative who does.
Viral on the internet, not covered in major newspapers if I remember correctly. No major columnists wrote about it. Possibly because everyone involved was white, and therefore, there wasn’t a storyline to exploit.
I completely agree with he Risk Analysis by Andrew, but, at the risk of diving into silly semantics, I also have to say that I don’t see this as an ambush for a couple of reasons reasons. He didn’t know the thieves would show back up, he knew it was possible, hence the guard. Also, it also might be nothing, but I think the fact that he called the cops first would argue against and ambush and he shouted a clear challenge and gave them an opportunity to turn their lives around.
I would have just hung out all night and made sure you could tell the house was occupied.
One does wonder how the closing went the next day?
“So when can we move in?!?!”
“Well first forensics has to finish then they have to take the yellow tape down. By the way do you guys own a good carpet cleaner? Maybe a pressure washer?”
@dmacleo “screw the law.
2 people did not get what they deserved.”
Dpn’t be too sure of that…I’m betting that those two will soon be looking at murder charges.
You seem to be referring to the mother and son. Don’t move to Texas, son. Even our neighbors get to shoot you when you run out of the home with the hot water heater.
I suspect @CalFed meant that the other two burglar would be facing murder charges for being complicit in a felony that resulted in death. Felony murder is the term I recall for such a situation.
Still, a better outcome would have been if they died, then there will be no more trouble or expense related to them.
In my humble opinion, if there were more people around willing to risk their lives, both legally and literally, in defending what they (or their mothers) have worked hard to earn, there’d be a lot less criminals willing to risk their lives to try to take it.
Was the risk worth it? Monetarily or pragmatically, perhaps not. Morally? No doubt about it.
I spent 21 years in the military. Was the risk worth it? The pay was low, the working conditions were miserable and the living conditions were worse than what we consider “cruel and unusual punishment” for criminals. If it was all about monetary or pragmatic considerations, there’d *be* no military.
I completely agree.
While Andrew is absolutely correct in his analysis, what he fails to consider is that the man was not just defending a hot water heater. In reality the man is defending all the scores of people who would be the future victims of these criminals also. In essence, he is defending the very fabric of a civil society.
I would not risk my life solely to defend the property in my house, but I also understand that a criminal who would break into my house is a very dangerous person to have in society. I will not be his last victim and I feel I have a moral duty to stop this criminal from not just doing harm to myself and my family, but to prevent him from doing harm to all his future victims.
Is this the smart choice? Perhaps not, but sometimes the ‘smart’ choice is not the ‘right’ choice.
First of all, this case is NOT an ambush. The shooter was in the domicile legally, at the request of the owner. He did not immediately engage the intruders, who gained entry by forcing the locks on the door, bug told them to leave. It is reasonable to assume that their intent was to enter the property, forcibly and illegally, in order to commit the crime of theft. This makes the entry a felony, burglary. The shooter ordered the intruders to leave. They did not and first one, and then the other, advanced upon the man, holding what later turned out to be weapons, a firearm and a pellet gun. If the shooter had concealed himself, or even hidden, and engaged the intruders without warning, THAT would have been an ambush. But, that is not what happened.
Now, the main reason that use of deadly force would most likely be found to be legal here, is that, given the possession of a deadly distance weapon, a pistol, by the first intruder, attempting to escape could well have proven dangerous, if not fatal to the man in the house. If the people had proven to be unarmed, justifying this shooting could have been more difficult. But, shooting a person who continues to advance upon you, with an unknown object in his hand, after forcibly entering a secured domicile, after warning him to leave, should not be that difficult to justify.
Now. Mr. Branca is correct that defending yourself or your property CAN be legally, economically, or personally harmful. The problem is when should a person actively defend himself and his property. For decades, people were told not to resist violent physical attack or threat of such attack. The result was very clear, violent attackers were emboldened. Violent crime increased. Restrictive weapons possession and carry laws were relaxed.
EVEN CAVEMEN DEFENDED THEIR CAVE THOUGH THEY USED SPEARS AND STONE HAMMERS TO DO IT.
. When one of the men began to force the locked door of the house, the defender called 911. As the intruder breached the door, the defender ordered the man “to leave and get down.”
—————————–
Ambush? Had he shot without warning I could see the tenuous link to maybe calling it an ambush.
We really need Texas style laws that allow for homeowners to shoot to protect property also.
Want to steal? Lose your life in exchange if caught.
Remember: democrat voters include a large criminal base.
https://www.ihatethemedia.com/mugshots-with-obama-shirts
They just might vote us into slavery.
Ambush? I disagree. The house was occupied. Even if it was just for that night it was occupied. If the owner had instead of her son hired an armed guard to protect the property from possible future burglary would you still say ambush?
On top of that your article points out that the defender called 911 and told the thieves to leave. I don’t see how warning your opponent qualifies as an ambush. If anything it shows you were willing to let them go without using deadly force to stop them.
Andrew is overlooking the obvious altruistic motive in this case: the desire to act for abstract justice.
Of course the son did not act simply for the value of a prepped-for-stealing hot water heater. One of the great evils of the world had crossed his family’s path: a gang of career criminals who every night savage some innocent family’s security and prosperity and threaten their lives and he knew where they would very likely strike again. He had a chance to do a great good deed for his fellow man and he evidently valued that chance, as any moral person would.
This is why our system of law exists: to serve the PUBLIC’S interest in seeing the innocent protected and the guilty apprehended, and MOST citizens are public spirited.
There is no indication that the son had any inclination to use any force other than necessary for self defense, no indication that he wanted to usurp the role of our justice system in deciding how these perps should be punished.
True, there were the bullet holes in the fleeing vehicle, but this was only after 2 of 3 had attacked him, so he knew he was dealing with violent criminals and it USED to be the law in every state that fleeing violent criminals SHOULD be shot : they NEED to face justice and must not be allowed to escape it. Not letting someone evade justice is not the same thing as usurping justice, it is a necessary prerequisite for the administration of justice and our laws USED to recognize that.
Ask the son now if he only thinks he saved a hot water heater. He saved a thousand families from traumatic invasion and possible grievous injury or death. What is a hot water heater compared to that?
That … was beautiful.
Everyone has a RIGHT to defend their property ,, Everyone !!! I’ll bet those that are Whining about the perp who got killed are Lunatic Liberal DemonCraps. Boo Hoo, we lost a voter.
Appreciate the analysis but there’s more “upside” potential than just saving a hot water heater and other property of his Mom’s – he removed 3 guys from their present “occupation” and thus multiple future possibly deadly encounters for other people. Too bad he can’t be rewarded.
When patriots are on the jury juror nullification ensures either a not-guilty verdict or a mistrial forcing the scum public defender to either refile charges or to go through another trial where juror nullification ensures either a not-guilty or yet another trial but for cases such as this it is likely the process stops here.
Criminals need to know that the decent folks of the land are fed up with their anti-social deeds.
Ambush? Ambush?
The son as guarding the premises (he has that right, no?) told casualty #1 to leave; he didn’t leave, but continued to approach the son “with something in his hand” that turned to be a gun. Casualty #2, despite hearing this tumult of casualty #1 getting shot, approaches the son and also has something in his hand.
That does not seem to be an ambush.
The risk? Immediately to hand it’s a drained water heater. Being a little more expansive, the risk of not defending the property would be the message to this gang of burglars that they can raid vacant properties with impunity. Interrupting an armed burglary is risky, even to the police. Should the police overlook such things, since it’s only a little bit of property that is at stake?
Sure, the police have certain legal protections that the son guarding the house does not, but cops get shot too…or let one of the burglars be black and the cop white and BAM! we have a riot of BLM folks jumping in. And the cop’s life is now ruined. That, too, is a risk of interrupting an armed burglary.
I would like to clarify that my earlier comment was not intended to disparage the author in any way.
His telling us the laws has been a valuable asset.
my point was the law itself can be the problem.
I do greatly appreciate the info this author has provided us.
mr branca is all about ” proportional response ” and after-the-fact consequences–both of which presume that you survive an armed assault–to my mind, this guy responded properly and survived–personally, as he was alone and there for the purpose of protecting his mother’s property(and not his loved ones), would not have gone out on the porch,especially with a handgun–the wrong weapon against multiple assailants–one of the few scenarios that would justify owning a class 2 weapon–he was lucky in that regard as alone on the porch, even armed with a handgun, he made himself a sitting duck target–again, he’s alive and the authorities decided it was a good shoot so all’s well that ends well but, in most cases, would not venture outside with less than a shotgun at a minimum
He called 911, then called out to the men to leave before they kicked the door in. He’s lawfully inside a premise that his family owns. They try kicking in the door with unknown intentions. Castle Doctrine applies–shoot the intruder to self yourself inside the house. Chasing after the other two and shooting is where it gets fuzzy.
“In effect, the mother asked her son to establish an ambush for the burglars she expected to return.”
Sorry Andrew Braca but that Is NOT the way most see it. We have a right to protect our property whether it is the Korean Store Owner in California arming themselves to defend against mobs that loot, burn, and destroy, or a house that was about to have one remaining item the burglars failed to take on their first successful attempt stolen.
Who else is going to protect one’s property except perhaps the police who were not there and didn’t show up until later??
And “YES”, protecting property is absolutely worth the loss of lives when those lives are thugs that come armed willing to kill to carry out their thievery. If they weren’t stopped there, then they would go on to burglarize and perhaps harm another.
These thugs obviously came prepared to take the life of anybody who interferred with their intent to steal the water heater by having a loaded gun AND THEY GOT EXACTLY WHAT THEY SHOULD HAVE GOTTEN: QUICK JUSTICE.
So much talk about what the law is or the morality of a situation. Unless the DA is your brother, you are well advised to use the least force necessary to counter a threat and keep a low profile on the internet. Your family will thank you.
Face it Branca. Some people need killing and these scumbags were prime candidates. It was a lot more than about a hot water heater.
I would love to hear Mr Branca’s take on the ending of season 3, episode 4 of “True Detective.” Is inviting “Mr. Claymore” to the party too much?