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.”
Don’t forget, if you like this kind of self-defense law insight, expertise, and analysis, you can always catch more of it, much of it free, at the Law of Self Defense blog, at lawofselfdefense.com/blog. And share and like and tell your friends and family. The only way we get to grow the Law of Self Defense community is by the efforts of folks like you who appreciate our work.
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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