Journalists Continue to Suffer From Rabid “StandYourGroundPhobia”
Stand-Your-Ground can have no application in one’s home when the Castle Doctrine already relieves any duty to retreat.
Well, the media is still suffering from StandYourGroundPhobia., raising it in explanation of two recent killings by homeowners, that of Byron Smith in Minnesota (recently convicted and sentenced to life in prison) and Markus Kaarma in Montana.
Naturally, all their scriblings truly reveal is their ongoing ignorance of what Stand-Your-Ground is (and isn’t), and their perpetual obfuscation of Stand-Your-Ground with other discrete self-defense law doctrines, such as the Castle Doctrine, presumptions of reasonableness, defense of dwelling, and self-defense immunity (which they also do not understand).
Indeed, some of these “journalists” have been reduced to writing euphemistically about the issue, using terms like “Stand-Your-Ground-like,” in effect conceding the fuzziness of their understanding. The latest event to spark media attention just happened in Montana, Man Who Set A Trap To Kill 17-Year-Old Intruder Invokes Stand Your Ground-Like Defense:
Seventeen-year-old Diren Dede lost his life Sunday, while in Missoula, Montana on a high school exchange program from Germany. He was shot dead at the home of Markus Kaarma, after Kaarma set a trap for intruders by intentionally leaving the garage open and placing a purse in clear view.
After motion sensors detected someone in the garage, Kaarma shot Dede. And while he has since been charged with first degree murder, he is already invoking a Stand Your Ground-like defense.
KULR-8 Television, Billings, MT
The first and most obvious error in attempting to apply Stand-Your-Ground to the Smith and Kaarma cases–indeed to ANY case taking place in or immediately around the defendant’s home–is that Stand-Your-Ground is utterly irrelevant in that context. Every state already has in place, by either statute or case law, the Castle Doctrine. The Castle Doctrine eliminates any otherwise existing duty to retreat if you are in your home, or its curtilage (some states do suspend the Castle Doctrine if the person being defended against is also a lawfully present in the home).
That’s ALL the Castle Doctrine does–suspend an otherwise existing duty to retreat.
Given that the Castle Doctrine already relieves an otherwise existing duty to retreat in one’s home, there can be no rational application of Stand-Your-Ground, the purpose of which is also solely to relieve any pre-existing duty to retreat. If any such duty has already been removed–whether by the Castle Doctrine, or because safe retreat was not possible, or some other reason–then Stand-Your-Ground has no possible role.
The second error in their coverage of these cases is to presume that because a defendant claims some legal defense, that such claim is in fact an appropriate application to the facts of the case. Smith and Kaarma both claim “Stand-Your-Ground” in cases with bizarre fact patterns and in ways that would lead to bizarre outcomes, so there must be something wrong with “Stand-Your-Ground,” right?
Wrong.
Any defendant is free to throw any legal defense theory up against the wall to see what sticks, particular in speaking with the press pre-trial. Doing so doesn’t magically make that defense relevant to the facts of the case, any more than a judge reading a particular jury instruction magically makes the instruction relevant to the facts of the case (I’m talking to you, CNN “legal analyst” Sunny Hostin).
As we’ve already noted, Stand-Your-Ground can have no application inside one’s home–because the Castle Doctrine is already at play. Statements made by defense counsel to the contrary do not change the law. Most likely, counsel has made the same error as the journalists they are attempting to communicate with–using legal terms of art like “Stand-Your-Ground” in incorrect ways that facilitate news story writing but obscure the legal principles involved.
Perhaps these legal counsel simply don’t understand what Stand-Your-Ground actually is–based on my personal observation this is as true of most lawyers, even criminal defense lawyers, as it is of the general public (though not nearly as bad as the degree of misunderstanding or deliberate obfuscation demonstrated by “journalists”).
The “journalists” third error is that there is as yet no evidence that Stand-Your-Ground leads to any of the bizarre legal outcomes with which they and their gun-control colleagues are so concerned. Smith was convicted and sentenced to life in prison. Kaarma’s case is only in its earliest stages. Neither Zimmerman nor Dunn were Stand-Your-Ground cases (safe retreat was not possible in either case at point when the defendant deployed deadly force). The Marissa Alexander simply isn’t self-defense at all.
Nevertheless, I expect “journalists” will continue to provide innumerable opportunities for me to again point out their standyourgroundphobia.
Because, “journalists.”
–-Andrew, @LawSelfDefense
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, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.
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Comments
I don’t believe the Castle Doctrine or Stand your Ground statutes allow one to act if there is no reasonable fear of death or great bodily harm. At most such laws create a rebuttable presumption.
Is there any state that allows a person to use deadly force without being in fear of death or great bodily harm?
Yes.
–Andrew, @LawSelfDefense
Sorry, to clarify, because your post mixes together several distinct legal concepts.
You are quite correct that neither the Castle Doctrine nor Stand-Your-Ground change in any way other elements of self-defense beyond the issue of retreat. So they do not change in any way the issues of innocence, imminence, proportionality, or reasonableness.
Note that last one–reasonableness. Neither the Castle Doctrine nor Stand-Your-Ground creates any presumption of reasonableness–that’s the job of specific “presumption of reasonableness” law, which is distinct.
And there are numerous states that have some provision for the use of deadly force even in the absence of a deadly threat. Two examples are Colorado’s 18-1-704.5 (http://is.gd/efwNo1) and Texas’ 9.42 (http://is.gd/xYBMLr).
–Andrew, @LawSelfDefense
Florida:
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and..
Sorry, 776.013 does not provide for justification of deadly force in a situation where there is no deadly threat, it merely provides a rebuttable presumption of reasonable fear.
Not at all the same thing.
–Andrew, @LawSelfDefense
I don’t understand…
..isn’t THAT what 776.013 says, literally?
Isn’t WHAT what 776.013 says? Please be specific, then show me those words in the statute.
–Andrew, @LawSelfDefense
How this looks to me, is that if deadly force is used agaisnt someone who is in the process of breaking and entering an occupied dwelling or vehicke (home invasion etc) shooting them for reasons of fear of death or great bodily harm is presumed to be reasonable. (as if someone is willing to bust into an occupied home, you can/must assume that they aren’t going to have any qualms about maiming/raping/killing the occupants)
I’m not a lawyer.
And on second look I could have worded that better. I hope it wasn’t terribly unclear.
I like presumptions of reasonableness as public policy statements, but the legal utility of a presumption of reasonableness is questionable at best.
As the defendant, your conduct is already considered reasonable to a reasonable doubt. That is, to destroy your claim of self-defense on the element (or “prong”) of reasonableness, the prosecution must disprove the reasonableness of your conduct beyond a reasonable doubt.
There’s no mathematical definition of what “a reasonable doubt it,” but it’s surely a vastly greater standard of proof than a preponderance of the evidence–which is all a presumption of reasonableness is–a presumption that can be rebutted by a preponderance of the evidence.
If we pretend that disproving reasonableness beyond a reasonable doubt means the state has to have, say, 90% of the evidence on their side, a statute that states they must disprove reasonableness by a preponderance of the evidence (51%) wouldn’t seem all that useful–they already face a far greater burden of proof even absent the presumption of reasonableness statute.
(Obviously, things are quite different in Ohio–there a presumption of reasonableness could have real utility.)
–Andrew, @LawSelfDefense
I’ll very slightly disagree here with you, Andrew.
I concluded several decades ago that journalists almost never know what they are writing about, specifically WRT science. But that extrapolates to almost anything.
They not only don’t know, they seem decidedly determined not to learn.
Like the old joke about the wise man who’s asked what the two great evils are in the world, and who comes back with “ignorance and apathy”. Next asked what should be done to fight these evils, he responds, “I don’t know and I don’t care”.
I think that nutshells journalists as a group very nicely.
I used to work at a newspaper and I pretty much agree with your assessment of what journalists understand. I would also add that they tend to be very sure that they understand (fill in the issue here) better than everyone else.
I don’t work there anymore. Now I’m surrounded by PhD’s with basically the same attitude but the pay is much better so it’s okay.
I suspect that some of these “journalists” understand the laws but are pushing political agendas or marketing, creating “controversy”.
That’s ALL the Castle Doctrine does–suspend an otherwise existing duty to retreat.
Now that’s interesting. The first time I heard a LEO talk about “Castle Doctrine” was in Massachusetts sometime in the early 1970s. His short form explanation was that according to CD, should you encounter a stranger in your own home, you would be considered to be “in fear for your life” more or less automatically, and forcible self-defense would be justified. I’m pretty sure he said nothing of duty to retreat. He also said that by “forcible self-defense” he meant you could shoot the intruder, but that you’d be in trouble if you shot him twice.
Now, Mr. LEO may have been wrong (it’s not like he’d “written the book” or anything), I may have misunderstood him, I may have forgotten what he actually said, or that all may have been right then but is ancient history now. But what I brought away from all that was that CD removed your obligation to wait for the encounter to develop into something more obviously dangerous. This seemed sensible, as in your own home you’d know who is supposed to be there and who isn’t (unlike a chance encounter on the street) and can reasonably assume that the intruder is a criminal who is not likely to be interested in your welfare.
It would be a great help to me (and, hey! maybe even to someone else) if you could elaborate a bit on this.
People unhesitatingly take legal advice from cops, but would they ever call a lawyer to serve a felony warrant? 🙂
Your LEO had no idea whatever what he was talking about.
In any case, legal advice on use of force from cops is always fraught with peril, because they live in a different use of force environment than us–only slightly because of legal differences but enormously because of cultural, societal, and “thin-blue line” differences.
There’s a reason why a civilian who has an ND is charged with reckless conduct, whereas there’s almost never any criminal consequences for a cop who does the same. Different rules, different application of the rules.
As I said in the post, the Castle Doctrine speaks solely to the issue of retreat in the home, and every state has it.
Some states–and most certainly NOT Massachusetts–also have statutes that allow for a legal presumption of reasonableness in defense of the home. This is NOT the “Castle Doctrine,” this is a “presumption of reasonable fear.” The mere fact that it applies also in your home does not make it transform into the “Castle Doctrine.” Different legal doctrines.
Incidentally, merely finding a stranger in your home–BY ITSELF–is not a license to execute them.
Finally, how many times you shoot the intruder is strictly a function of how many shots it takes before he stops presenting an imminent threat of death or grave bodily harm. That has nothing–NOTHING–to do with the particular spot you happen to be standing in when compelled to defend yourself. Any notion that “you could shoot the intruder, but that you’d be in trouble if you shot him twice” is simply the mark of someone talking out their ass, LEO or no LEO.
–Andrew, @LawSelfDefense
Right-o.
Thank you.
Some advice I just heard about shooting an intruder, for those who are very proficient with their firearms. If you are able to have the element of surprise in that situation, you might easily dispatch the miscreant with a double tap.
The problem this creates is in a courtroom with low info jurors. What this gentleman said was if just such a thing happened, fire several more shots wildly into the walls surrounding where the target once stood, safety permitting. This will give YOUR lawyer the ammo (so to speak) to show how scared for your life you were to 12 people who may know nothing about firearms.
Oofah.
Please don’t do that.
–Andrew, @LawSelfDefense
yeah, because tampering with a potential crime scene is *always* a good idea…
i’ll pass on your bit of “folk wisdom”.
If there are holes in the wall around the intruder, then that probably means I reached the shotgun first and the intruder was further away than I thought.
Ohhhhh, lordy.
Do not do that. Nope. Among /many/ other problems, it allows reporters to claim that firearms should be restricted to only those with badges because they are “better shots” and “highly trained”.
Yah, no. I live alone.
But I STILL want to know where any round I fire will end up.
This is why I do NOT recommend a shotgun as your best choice of a home defense gun. Too many projectiles, and too much power.
Hit what you shoot at, and only shoot when you must.
Now, I DO recommend an AUTOMATIC shotgun for outside work. Why? Because too many LEOs and FBI agents have been killed because they carried pump guns, and got hurt.
It just depends on where I am in the house and if it is one of those rare times when I don’t have a handgun in arms reach, most of the time it would be a handgun, but I also have some half brass buckshot in my Semi-auto shotgun, just in case.
As far as the Auto vs Pump, I kind of disagree. To me it is usually more of a training issue than an issue with the actual action of a gun. I know some folks that can crank off rounds from a pump 870 faster than I can with my semi auto, but they practice. Remember, LEO’s, even federal ones usually don’t actually practice that much other than right before qualifications.
The point is, what happens if your left (or forearm) hand/arm are shot to hell?
That’s why the auto=loader.
Ragspierre if your pump hand/arm/forearm is shot to hell that autoloader isn’t going to be much use either.
Yeah, it’s a little harder to work a pump when one of your arms/hands are fouled up. Can at least shoulder and fire a semiauto one handed.
#4 buckshot gets the job done without over penetrating. Don’t even thing of saying you’ll have shot everywhere because you’d be 100% wrong.
I suggest you look into the short shot shells. The first I heard of were made by Aguala for the Mexican Police, tactical loads that did NOT blow holes through everything, were not as loud, and had a lot less recoil. They do not work in all shotguns, so be sure to double check that issue before buying any.
In any public gathering, journalists are frequently the most ignorant people there in spite of their vain belief that their profession confers an aura of knowledgeability upon them.Worse yet, they did not learn stuff in school and demonstrate very little interest in finding out.
“News” is a specialized field, one devoted to superficial description of current events. And it can’t really be anything else. If there’s delay, the reporting won’t be news any more, it will be history.
The things one must do to understand an event take time – time to dig out and evaluate all relevant facts, their antecedents, and their contexts, and time for enough cogitation to realize their implications and their interactions with other current events. The time needed for understanding simply isn’t available, not when the news desk is squawking for X column-inches or Y minutes of air time to fill up the evening edition. The business needs reporters, not experts.
Those who insist on a quality product just can’t deliver the goods when it comes to the news. Just as you would never hire a meticulous perfectionist to design prizes to be put in boxes of Cracker Jacks, you wouldn’t hire one to report news. Should you hire one by mistake, it will soon be obvious, as he’ll still be working on the details of last month’s library bake sale while a more superfical reporter has managed to cover a hotel fire, two car crashes, fifteen celebrity wardrobe malfunctions and maybe an invasion from outer space. Not cover them well, but to a news bureau which must provide a product which customers will buy, superficial coverage is far better than no coverage at all.
I just remembered another weird home invasion (?) self defense (?) case – Caleb Gordley in Virginia last year. Drunk 16 year old breaks into neighbor’s house at 2:30 AM. Another essentially dumb situation which resulted in a dead body. There don’t seem to have been any charges.
Andrew, these people don’t believe in Castle Doctrine or self defense either, so it’s no surprise they lump it all together and couldn’t care less when we point out their mistakes. It’s the job of the police to protect us from the poor victims of society who are forced into lives of crime and violence, and armed citizens are either anti-establishment militia prepper nutbags or micropenis-possessing bloodthirsty power addicts who are looking for an excuse to gun down some/any minority kid and get away with it.
TL:DR there’s no reasoning with the unreasonable.
“it allows reporters to claim that firearms should be restricted to only those with badges because they are “better shots” and “highly trained””
Yep, even though all evidence says cops are much more likely to shoot bystanders than civilians. Their lax shooting discipline comes from, in my opinion, the knowledge there will be no legal consequence.
This is due to the combination of the felony murder rule, which means the guy you’re shooting at takes the fall when you miss, and near impossibility (compared to a civilian) of being charged for a bad shoot.
I guess what has me confused about this case is the question if Montana has a breach de jure provision that ANY intruder into the house can be considered a deadly threat, and if Kaarma was in the curtilage region around the house (driveway, porch, outside the home), then he may claim innocence/imminence/proportionality/reasonableness in self defense even though it was dark and he couldn’t assess imminence/proportionality/reasonableness. (Castle eliminating the Avoidance because he was in his house–SYG not applicable here)
Still, it bugs me that one could set a potential trap, lure the thief in through the open garage door, and use the above to walk outside and blast away, especially after telling the barber he was going to shoot some kid (definitely appears to negate the ‘innocence’ argument)
So my guess is Kaarma can ONLY claim SD if there’s a de jure condition of any-intruder-is-a-deadly-threat, otherwise he’s going to not fare so well and may wind up in jail for a long time. Again, only my guess.
Yeesh. I gotta find out what California does in this situation (I always worked on the impression I just wasn’t EVER going to take the loaded weapon outside my house)
Your 2 cents welcome.
There’s no absolute legal right to kill someone SOLELY because you find them on your property, in your curtilage, or even inside your house. The killing, to be justified, must still be borne of necessity, and mere presence does not necessity make.
Say, for example, you woke up at 2AM thirsty and on your way to the kitchen to get some juice you find some total stranger fast asleep on your couch. Can you lawfully simply shoot him through the head? Of course not.
Now, being in/around one’s home does provide considerable benefit in terms of self-defense. In some states there’s a legislatively created presumption of reasonable fear of death of grave bodily harm, and in all states there’s a pragmatic recognition that the level of apparent threat needed to justify a deadly-force defense is much MUCH lower than would be required outside of that special environment.
But being much MUCH less does not mean ZERO. And even where there is a statutory presumption of reasonable fear, it is a rebuttable presumption. Shooting an unconscious person is not going to meet the standard.
In other states the statutory language would seem, on plain reading, to justify the use of deadly force to stop the commission of any felony. This is why simply relying on statutes is so dangerous. Read the case law and you’ll find that the legislative language was crafted when there were only a handful of felonies, all of which were violent and threatened death or grave bodily harm. The case law makes clear that the use of “felony” in the context of self-defense should be read narrowly to encompass only these types of violent felonies.
With that in mind, re-examine these situations where the “defenders” have purportedly (in this case by their own admission, albeit later denied by their lawyer) baited a trap with the intent to attract and draw in a burglar specifically so they could shoot and kill him.
Sound like “self-defense borne of necessity” to you?
It doesn’t to me, and it won’t to a jury.
I know there are lots of folks who would like to be within their rights to simply shoot and kill someone solely because some magic checkbox has been checked off. And I understand the sentiment. I work hard for my stuff, too.
But it’s just not the law. Nor, would I argue, should it be. The fault that needs fixing lies elsewhere.
–Andrew, @LawSelfDefense