Law of Self Defense: Man Shoots Two Threatening Trespassers, Charged with Murder
Doing it wrong: “I shot him because he threatened to kill me . . . eventually.”
Today’s Law of Self Defense post based on a shooting reported this past Monday evening in Alaska.
The news reports that a homeowner confronted two trespassers. The homeowner was threatened with death by one of them as the two trespassers sat in a car. The homeowner shot and killed the man who threatened him, then emptied his pistol into the second man who lunged towards the rear of the vehicle, killing him, as well. The homeowner then called 911, reported what happened, and waited by the end of the driveway for the police to arrive.
The result: the homeowner has been arrested and charged with two counts of murder.
So, how does a homeowner end up charged with two counts of first-degree murder on these facts?
Violating the Element of Imminence
Well, the homeowner violated one of the required elements of a claim of self-defense, the element of imminence. The element of imminence essentially holds that in order for your use of defensive force to be lawful, it must be force necessary to stop an imminent harm to you. That is, the harm you are defending yourself against must either be actually happening, be in progress, or be about to happen right now. Example: “I’m going to draw my pistol and shoot you,” as the speaker reaches for his holstered pistol.
Conversely, a threat of future harm is insufficient to justify a use of deadly defensive force, if by future harm we mean some prospective future event that is not about to happen right now. Example: “I’m going to go home, get a gun, come back here, and shoot you.” For this kind of future, prospective threat that may or may not ever actually happen, the law expects you to pursue other options rather than an immediate use of defensive force. Call the police, seek the assistance of others, leave the area, etc.
The evidence on the issue of imminence is often subjective and ambiguous—was the bad guy drawing back his fist in preparation to strike, was he moving his hand to his waistline in preparation for presenting a weapon. Sometimes, however, the evidence is crystal clear—and particularly so when it comes right from the “defender’s” own mouth.
In this particular case when asked by police why he shot the first trespasser, the homeowner himself gave up the element of imminence. As reported in the news story linked above:
When asked if there was something specific that caused Chandler to draw his gun, he told troopers it was when Marx said he would kill him “eventually.”
“Eventually” does not mean “right now” and does not qualify as a sufficiently imminent threat as to justify an immediate use of defensive force—and especially not deadly force that snuffs out two human lives.
With imminence lost, so is lost any legal justification for the use of deadly force in killing the two trespassers, and thus the homeowner is facing two charges of first-degree murder.
Same Rules Apply in Context of Bad Guys
Another, separate, observation: If you go read the linked news story, and a second news story here with some more details, you’ll find that the two trespassers were apparently not nice people, and may very well have been trespassing with felonious purpose in mind:
[Both trespassers] were both out on bail for felonies when they were killed, court records show. [One] had been charged in October 2018 with second-degree theft, among other crimes, and [the other] was facing several charges, including second-degree burglary.
The fact that they were apparently not nice people, however, doesn’t change the rules governing the use of force in self-defense for the homeowner. All the normal conditions—the five elements of a claim of self-defense—must still be met, regardless of how nice or not nice the victims of that purported use of force are.
Indeed, had the two men been observed actually engaged in the act of burglary—rather than, speculatively, merely thinking about becoming engaged in the act of burglary—the use of deadly force might well have been warranted. Burglary is commonly treated as sufficient grounds for the use of deadly force, and, of course, in that hypothetical, the unlawful conduct would actually have been occurring, rather than having been merely speculative.
A threat of future, speculative harm or unlawful conduct will never be sufficient to justify the use of deadly force in self-defense, regardless of the merits or lack thereof of the person doing the threatening, at least so long as there remained non-forcible alternatives to the person threatened.
Additional Points of Interest
A couple of other ancillary points on this story.
First, if the homeowner had known and followed the Law of Self Defense recommendations for interacting with the police in the aftermath of a use-of-force event he would likely not now be charged with two counts of first-degree murder.
Second, when the officers arrived in response to the homeowner’s 911 call reporting the shooting, he met them at the end of the driveway while visibly armed with his pistol in a drop holster hanging against his leg—that’s a pretty good way to get shot.
Third, when police relieved him of his gun and ammunition, it was found that he had reloaded a full magazine into his gun and then, my point here, put the empty magazine into his mag pouch. Putting an empty mag into a mag pouch you’re wearing is just poor tactical form, folks, and could eventually lead to a “click” when you really needed a “bang.”
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In closing, remember:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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Stupid in the first degree.
prison is full of people who talked their way into it.
If he’d left out the “eventually” he’d probably not had any problem and walked! I personally own a backhoe so making trespassers dispersal isn’t a problem vehicle and all!
Or as we say here: Big Desert, Little Body.
They are bad guys, but the crimes that you mention are not really violent crimes. Is there any history of violence on their part?
He’s got to hope for some jury nullification now.
Man, if I ever find myself in the unfortunate position of one of these situations, I’m calling my lawyer first and he can call the cops.
A clear cut case of not knowing when to use deadly force AND not knowing what to say and not to say to the police.
That’s why we have lawyers. I knew as soon as I saw, “I shot him because he threatened to kill me . . . eventually” that the guy was going to jail.
“Second, when the officers arrived in response to the homeowner’s 911 call reporting the shooting, he met them at the end of the driveway while visibly armed with his pistol in a drop holster hanging against his leg—that’s a pretty good way to get shot.”
In Alaska? They are used to seeing people open carry. Anywhere else in the country it might not be a good idea.
“I presumed to execute Michael White as he was reaching for something.”
Doesn’t sound like even the shooter, Chandler, really considers it a case of self-defense.
I have to disagree with you on two points.
First, as no firearms, were found in close proximity to the bodies, or even in the van, the shooter was going to go to jail. As you note, a verbal threat is not enough, in itself, to justify using any force, including deadly force, against another. In order to use force in self defense, you need an threat of action, the means to carry out that threat and the person making the the threat has to commit some action which would lead a reasonable man to believe that he intended to carry out that threat immediately. In this case, the shooter would have to explain to the investigators the nature of the threat and why he believed the threatening party had the means to carry out the threat and that he was about to carry out the threat. Otherwise, this is simply a homicide.
The second thing is your claim that placing an expended magazine into a magazine pouch is poor tactics. In some cases it may be. However, in this case, Chandler only had two magazines, one in the weapon and one on his belt. He had expended one magazine and replaced it with the fully charged magazine on his belt. So, it is safe to assume he would have charged the empty magazine before he ventured out again. We do not usually simply discard expended magazines, but collect them to be refilled, once the excitement is over.
What is interesting about this case, is that it appears that Chandler may well have known the subjects, if Chandler’s quote naming Michael White was accurate. If this is the case, it could either help or hurt his case, depending upon the nature of the relationship and Chandler’s attorney.
First, as no firearms, were found in close proximity to the bodies, or even in the van, the shooter was going to go to jail.
A firearm is not necessary for a legitimate or even convincing claim of self-defense. No weapon is strictly necessary for an assailant to present a credible imminent threat, even if a weapon would make the threat more obvious and more certain to lead to serious harm.
In this case, the only hardware we know that the deceased had was a car. But a car is rather a dangerous weapon; more Americans are killed by cars than by firearms.
While your statement is accurate, in some cases, the facts in each case determine if a firearm would be needed to provide sufficient reasonable belief that a deadly force attack was imminent.
In this case, you had two men inside a vehicle. As Chandler was not standing in front of the vehicle, the vehicle could not be used as an immediate weapon. Also, because these men were ensconced in the vehicle, they could only attack Chandler with a distance weapon. While they may have had access to a bow and arrows or a speargun, the most common distance weapon is a firearm. And, Chandler would have had to have knowledge, or a reasonable belief, that the men possessed distance weapons [i.e. firearms] in order to justify shooting them. As no firearms were found, in the van, Chandler would have to articulate a very strong reason why he believed that the men possessed firearms and that their use was imminent. Otherwise, what you have is the killing of two unarmed men, who were not in a position to immediately harm Chandler.
So, in this case, the lack of any firearms, in the immediate vicinity of the deceased, and no articulated reason why Chandler would reasonably believe they were present and their use was imminent, he would have been arrested, and probably charged. Every use of force case is unique.
If someone threatens to kill me or my loved ones, I will take them at their word that they intend to do so, and I will note to myself that the police couldn’t really do anything to protect me or my family, or to prevent the threatened(s) from carrying out their threats (particularly if it is some random time in the future). So I would note to myself that the only way to be sure the threatener(s) could not carry out their threat to kill me or especially my loved ones would be to kill the threatener(s). And so I would, to protect myself and especially my loved ones. Imminency should not be a consideration in such cases, any more than hostile nations amassing troops on a country’s borders and threatening to drive them into the sea should preclude that threatened country from making a pre-emptive strike against those countries in order to protect itself.
Your analogy is defective. The correct analogy would be if the purportedly hostile nation merely SAID they were going to amass troops on the border … EVENTUALLY.
Attorney Andrew F. Branca
Law of Self Defense LLC
While it might be nice be allowed to kill people for what they say, this is not a good idea. People are not allowed to kill another because the other MIGHT, at some unspecified time in the future, cause harm to another, would be very hard on the population. In fact, under the terms you specify, if some said that he was going to kill you, someday, he would have to kill you then, or face the possibility that you would kill him…someday.
There is a very good reason why our society has set the requirements for using deadly force against another in self defense as being intent, opportunity, means and action which creates a reasonable belief that an attack, which will result in great bodily harm or death, is imminent.
You’re wrong about international law too. Preemptive strikes are not allowed unless the threat is imminent.
That’s why when the GWB administration was proposing to invade Iraq it acknowledged that the threat from its supposed WMDs was not imminent, and therefore in normal circumstances it could not justify an invasion, but argued that in that case we couldn’t afford to wait for imminence, because the first sign we got of an imminent threat could be a mushroom cloud.
Good news! Three idiots are out of circulation.
Thinking a bit about it, if I were a lawyer arguing on his behalf, I might try to argue that “immediately” was interpretable as “after we get done beating the crap out of you”.
So he was in danger of immediate death but great bodily harm which would end in death, when he was no longer capable of defending himself.
Sorry, I meant “eventually” instead of “immediately”.
after we get done beating the crap out of you
If he’d given that as his justification for a claim of self-defense, he might not be in jail now. Instead, he gave a justification which isn’t self-defense.
That might work, if the victims were outside the vehicle, or getting out of the vehicle. The problem with this case is that there is no evidence of a reasonable belief that ANY attack was imminent.
We’ve gone from Kate Smith’s “God Bless America” to obama’s favorite minister screaming “God Damn America.”