Castle Doctrine Under Attack in Montana

[Bartholomew Roberts]

The BBC has done a nice anti-gun propaganda piece that highlights one of the recent targets of gun control: self-defense laws.
http://www.bbc.com/news/world-us-canada-27243115

Summary: Recently in Montana, a homeowner who had been burglarized twice, shot and killed a young foreign exchange student who entered his separate, unattached garage around midnight. The homeowner had been waiting and watching via camera/motion detector.

In much the same way that "Stand Your Ground" laws were demonized after the Zimmerman shooting (despite the fact that Zimmerman never requested a "SYG" hearing), they are now targeting an ancient custom of Anglo-Saxon law that goes back to at least the 1600s for elimination.

Here is how the BBC describes the 2009 amendment to Montana's Castle Doctrine law:

Montana's so-called "castle doctrine" law was amended in 2009 to allow deadly force if a homeowner "reasonably believes" an intruder is trying to harm him or her....The legislation was backed by the US' largest gun lobby, the National Rifle Association (NRA).

There were two parts of this that horrified me. The first part is by the BBC's own description, the law says that if a homeowner reasonably believes* that an intruder IN HIS OWN HOME is trying to harm him, they can use lethal force. And they OBJECT to this. Think about that for a second. They aren't saying "O, you have to make sure it isn't a drunk teenager first." They are saying "You have no right to use lethal force against an intruder in your own home who an objectively reasonable person believes is trying to harm you."

*"reasonably believes" is a legal term of art meaning that an objectively reasonable person (or in this case 12 of them) would agree that there was an actual threat. It isn't enough that the homeowner genuinely believes there was a threat, that belief must also be reasonable.

The second part of this that horrified me is that the concept of Castle Doctrine goes back centuries. It predates the United States. The concept is so old, that William Blackstone quotes Marcus Tulius Cicero in Latin in describing the concept in his 1765 book on law. And yet from reading the BBC article, you might get the impression that Castle Doctrine is an invention of the NRA that just was passed into law in 2009.

Even more surprising was that at least some Montana legislators were willing to sign on to revoke the 2009 amendment:

State Representative Ellie Hill told the Missoulian newspaper she has proposed legislation to repeal the 2009 amendments to the law.

"What the castle doctrine has done in this country is it has created a culture of gun violence and vigilante justice," Ms Hill, a Democrat who represents Missoula, said.

The recent attacks on Stand Your Ground laws surprised me some, especially considering it is such a fine point of law that even few gun owners understand it well; but there was at least some historical (albeit misapplied) basis for the idea of a duty to retreat.

Castle Doctrine on the other hand is literally an ancient doctrine. We can find parts of the concept as far back as ancient Rome and it was a solid part of English law as far back as the 1600s. And now we are seeing shootings (likely illegal ones at that) being used to push an attack on an ancient civil right of the Western world. And not even a controversial one at that - once again, the idea being stated by Ms. Hill is that it is wrong for a homeowner, in his own home, confronting a person he reasonably believes intends to harm him, to use lethal force.

I think we are likely to see more of this in the future which is why it is important we do all we can to nip these things in the bud with politicians who would remove these ancient rights.

 

[dprice3844444]

Mr Kaarma, a 29-year-old firefighter, has told investigators his home had twice been hit by burglars, and he told a hair stylist he had waited up at night to shoot intruders, prosecutors said.

this part here,if true,might be the part that bites him in the ass.it brings an argument he intentionally set a trap to shoot somebody.just like that guy in minnesota,who shot those 2 kids,then executed them when he was on tape.he was found guilty.people have to learn not to telegraph what they are planning.they need to learn to play dumb and act like it was a surprise occurrance

 

[Midwest]

Pretty much in the same vein, there have been long threads at another forum talking about Australia and how people cannot defend themselves without risking possible prosecution. In addition some have even said defending oneself even with a pen knife is a bad thing.

Don't mean to derail the thread, but I wanted to add to what you were saying. I'll give you the link if you are interested. I gave my two cents on the anti-gun mentality in Australia at that other site.

Seems that in other countries defending oneself, their families and their property is a foreign concept and frowned upon or possibly illegal. And it looks like that cancer is spreading here in the U.S.

Thanks for the informative post.
.

 

[JRH6856]

people have to learn not to telegraph what they are planning.they need to learn to play dumb and act like it was a surprise occurrance

So you are saying that when people plan to commit a murder (or other felony) they should not tell anyone about their plans? Yeah, OK. How about people just shouldn't plan to commit murders?

 

[Sam1911]

This case was the subject of a very good thread here last week: http://www.thehighroad.org/showthread.php?t=751084

This case, like the Ersland case a few years ago in OK, and the Byron Smith killings more recently, are HORRIBLE examples for "Castle Doctrine" or "Stand Your Ground" laws. They really do give the "antis" very dramatic ammo to use against us.

Sure you've got a right to make an attempt to stop someone who is stealing from your property (sometimes with force, depending on your state's laws). And you clearly have a right to stop -- with lethal force if necessary -- someone from physically hurting or killing you and your loved ones.

You do NOT have carte blanche to bait a trap, lure someone into your snare, box them in so they can't escape, and execute them for petty theft. That's murder, premeditated.

You can't lure someone into behaving badly -- in a relatively minor way, no less -- and then execute them for taking the bait.

No law in this country gives one person the right to decide that another person will die -- and even the state (who ultimately does hold that power) does not execute anyone for minor crimes like burglary.

This should go without saying, but clearly it is a point lost on many -- often willfully so.

 

[Ed N.]

You do NOT have carte blanche to bait a trap, lure someone into your snare, box them in so they can't escape, and execute them for petty theft. That's murder, premeditated.

Agreed.

But did this homeowner "bait a trap" or "lure" someone to commit a crime? Or did he simply, based on his prior experience, stay up at night to guard his property?

There's nothing illegal about guarding your own property.

----------------

Ah - never mind. Just re-read the story and it appears they DID bait a trap. "On the night of the shooting, Mr Kaarma and his partner Janelle Pflager left their garage door open, and Ms Pflager left her purse in the garage in order to bait intruders, she told police."

Bad, bad move....

 

[BSA1]

*"reasonably believes" is a legal term of art meaning that an objectively reasonable person (or in this case 12 of them) would agree that there was an actual threat. It isn't enough that the homeowner genuinely believes there was a threat, that belief must also be reasonable.

Could you expand on the legal definition on "reasonable" and how it is different than "genuine"?

To me "reasonable" means what the average layperson would believe is possible. In a self-defense situation I would also add probable.

Is it possible that Aggressor A 25 yards away can close the distance and stab you before you can shoot him? Sure.

Is it probable he can do it?

That would be the fly in the ointment. Is it reasonable to believe someone who has difficulty walking, such as using a cane, can close the distance so quickly you do not have time to react?

On the other hand a healthy adult in good physical condition is a different matter. It would be up to a jury to decide how close the attacker actually had to be to justify use of force but a good defense lawyer and expert witness could build a strong case.

 

[Romeo 33 Delta]

Still, the "good side of all of this" is: if some "kid" learns about what can happen when you break into another person's home, garage or business ... they might just not think it's such a good idea, especially if you end up getting killed for potential theft of what amounts to "petty cash".

 

[Arizona_Mike]

Intent to catch and confront and prior intent to kill are two very different things. It's not a crime to try to catch someone and end up in a self defense situation.

In the other recent case with the crazy old man, it is clear he intended a kill trap.

Mike

 

[Bartholomew Roberts]

This case was the subject of a very good thread here last week: http://www.thehighroad.org/showthread.php?t=751084

Yes, I am hoping we can focus on the nationally driven campaign to attack SYG and Castle Doctrine aspects rather than the specifics of the case, which I am sure have already been discussed in detail. I've read the charging affidavit and the statement of Markus Kaarma released today. It should be an interesting trial; but a lot of it is kind of off-topic.

Although this does show how now that these laws are being politicized and attacked, if someone at Bloomberg's HQ thinks your local shooting case will make good PR to weaken Castle Doctrine/SYG laws, you could see your out-of-context irreverent Internet comments pasted into a quick local news piece about the grieving family of the dead boy, who was just about to turn his life around - followed closely by the comments of your neighbor who doesn't like your crepe myrtles and relating the off-color statements you made at the local BBQ.

Gun owners now have to think about being randomly painted as the next Zimmerman when planning self-defense scenarios.

Could you expand on the legal definition on "reasonable" and how it is different than "genuine"?

In the context I wrote it, I meant that it isn't enough that homeowner really, truly believes he faces an imminent threat of death or serious bodily injury. It has to be an objectively reasonable belief as determined by the jury (typically using the AOJ criteria). To use an extreme example, a mentally ill person might genuinely believe you were preparing to kill him with your telepathic death ray. So for that person, there is a very real threat of death or serious bodily injury. However, the threat is not objectively reasonable and it won't support a self-defense claim no matter how true the shooter thought it was.

 

[Frank Ettin]

...considering it is such a fine point of law that even few gun owners understand it well...

I think that is part of the problem. We see on this and other gun boards that [I think] too many gun owners misunderstand the Castle Doctrine and seem to [mistakenly] believe it creates some sort of "free fire" zone.

But in fact, the Castle Doctrine as applied in court, is a relatively small, technical matter. It really doesn't turn a "bad shoot" into a "good shoot." It merely eases the burden on the defender of producing evidence to support his claim of justification.

...But did this homeowner "bait a trap" or "lure" someone to commit a crime?...

There's good indication that he did. Of course that will finally be decided by a jury.

In any case, let's not get side tracked. Let's stay focused in this thread on the OP. If anyone wants to discuss that Montana case, the thread Sam linked to in post 5 is still open.

...Could you expand on the legal definition on "reasonable" and how it is different than "genuine"?...

"Reasonable" is an objective standard, i. e., what a reasonable person under like circumstances would know, believe, feel or infer. "Genuine" would be a subjective standard, i. e., what you truly [think you] know, believe, feel or infer.

But what you truly [think you] know, believe, feel or infer could be wrong and unreasonable -- perhaps even the product of prejudice or delusion or drug/alcohol impaired perception. So in most cases in law an objective, reasonable person standard applies.

Still, the "good side of all of this" is: if some "kid" learns about what can happen when you break into another person's home, garage or business ... they might just not think it's such a good idea, especially if you end up getting killed for potential theft of what amounts to "petty cash".

And that is the sort of attitude that's helping to fuel this political backlash.

 

[Midwest]

I hope we never end up like it is in Australia

http://forum.opencarry.org/forums/showthread.php?121797-1-in-10-own-guns-in-NSW#10

.

 

[Frank Ettin]

I hope we never end up like it is in Australia

We need to understand that there are people, including many influential people, who specifically oppose, on principle, the use of force in self defense.

See, for example, Armed by Gary Kleck and Don Kates (Prometheus Books, 2001). On pages 116 - 121, they discuss various liberal, moral objections to the notion that one may be justified in defending himself.

Feminist Betty Friedan is cited as denouncing the trend of women to arm themselves for self defense as, "...a horrifying, obscene perversion of feminism...." Her ridiculous notion that , "...lethal violence even in self defense only engenders more violence and that gun control should override any personal need for safety...." is probably widely held in some circles. Indeed, according to Kleck and Kates, Mario Cuomo avowed that Bernie Goetz was morally wrong in shooting even if it was clearly necessary to resist felonious attack.

Kleck and Kates also report that an article was published by the Board of Church and Society of the United Methodist Church condemning defensive gun ownership. In the article, Rev. Allen Brockway, editor of the board's magazine, advised women that it was their Christian duty to submit to rape rather than do anything that might imperil the attacker's life.

Kleck and Kates also note that the Presbyterian Church (U. S. A.) has taken a strict anti-self defense view. Rev. Kathy Young testified as a representative of that group before a Congressional Panel in 1972 in support of handgun control that the Presbyterian Church (U. S. A.) opposes the killing of anyone, anywhere for any reason (including, in the context of the testimony, self defense)

While we don't agree, such views have some following. Note, for example that self defense is not considered in many countries to be a good reason to own a gun. Indeed in Great Britain, the natural right of self defense has been significantly curtailed by law. For an excellent study of the erosion of gun and self defense rights in Great Britain see Guns and Violence, the English Experience by Joyce Lee Malcolm (Harvard University Press, 2002).

The point of the foregoing is that the universal acceptance of the ethics of self defense can not be taken for granted.

 

[JRH6856]

It might help to understand what might be driving this growing opposition to a right of self-defense.

“Hell of a thing, killin’ a man. Take away all he’s got, and all he’s ever gonna have.”
— Clint Eastwood as Will Munny in The Unforgiven​

I think this sums up the current attitude of many people, toward the capital punishment, and self defense laws such as The Castle Doctring and Stand Your Ground. That life is precious and is to be valued above all else, and for those who believe this most strongly, that life is so precious that no private person has the right to take it from another for any reason.

These people may grudgingly accept that perhaps police officers may be forced to take a life in self defense or defense of others, but they in no way condone the action and deep down, believe such action should be avoided. Yes, it may be that someone will die, but they believe no one has the right to choose who will live or who will die. So if threatened with death, one should do everything possible to avoid that fate without inflicting the same fate upon another.

Of course, only the fully committed true believer will practice this if threatened. Self=reservation is the first law of nature and most will do whateveris necessary to survive. But that doesn't mean that they accept the necessity, especially when they are not involved.

There was a time in the past when life was much more perilous than today and life spans were shorter. Death was much more commonplace and life was not so highly valued. In western culture especially, the predominance of Judeo-Christian belief in an afterlife with an eternal day of judgement made life on earth seem a temporary condition (other religions had similar beliefs in an afterlife). Capital punishment was more common for even lesser crimes and could be seen as simply passing the case on to a "higher court" for final disposition.

But times have changed, and beliefs as well. The belief in the certainty of an afterlife is no longer as prevalent, and there is declining faith in the existence of a higher court. Hence the belief that in a society of equals, no one has the authority to impose a final judgement upon another.

This is a battle of core beliefs, can only be won at that level.

 

[Sam1911]

These people may grudgingly accept that perhaps police officers may be forced to take a life in self defense or defense of others, but they in no way condone the action and deep down, believe such action should be avoided. Yes, it may be that someone will die, but they believe no one has the right to choose who will live or who will die. So if threatened with death, one should do everything possible to avoid that fate without inflicting the same fate upon another.

In truth, this doesn't fall far outside the way that modern morality (as codified by self defense law) sees things. No matter what your circumstances you do not have the right to DECIDE the life or death of another.

The significant difference is that you may do what is absolutely necessary to prevent your own death, including taking actions which may, and even can be reasonably expected will, end the life of another.

In other words, you may do what you must to stop a clear threat to your life. The attacker might die due to that action, and you can be resolved of the crime of assaulting him or killing him if your reason for taking the actions leading to that are sufficiently clear and necessary.

But you can not, and no person (citizen, police officer, etc.) can, decide that he must die and carry out that sentence.

 

[JRH6856]

The significant difference is that you may do what is absolutely necessary to prevent your own death, including taking actions which may, and even can be reasonably expected will, end the life of another.

In their eyes, there is no difference between an action that will result in death or may result in death. There is no right, in their eyes, to endanger or threaten the life of another, even in defense of your own. You have a duty to retreat, or if that fails, to accept your fate.

 

[Sam1911]

In their eyes, there is no difference between an action that will result in death or may result in death. There is no right, in their eyes, to endanger or threaten the life of another, even in defense of your own. You have a duty to retreat, or if that fails, to accept your fate.

Right. That's the core disconnect between beliefs. Is your life worthy of protecting even if it could cost the life of someone doing you harm? Or not.

 

[JRH6856]

It is the ultimate example of "turn the other cheek" But how many cheeks does one have to turn?

 

[BSA1]

Ok let's try this situation;

It's nighttime in a parking lot when a man holding a gun confronts you and snarls "give me your wallet and you won't get hurt!" (movie bad guys always snarl). You draw your heater and shoot the B.G. DRT. (Handguns are called Heatersin the movies). When the Police arrive it turns out the B.G. was using a airsoft replica.

A "reasonable" man defense would be it was night, I was alone, the B.G. threatened me and the gun looked real.

However under the "genuine" standard the gun would have to be real and loaded with bullets to be a actual threat.

Am I correct?

 

[Frank Ettin]

...
However under the "genuine" standard the gun would have to be real and loaded with bullets to be a actual threat.

Am I correct?

No. You're wrong.

The issue is the state of mind of the actor. He reasonably believes he is the subject of an imminent, lethal threat (the gun reasonable looks real), it's justified. If he genuinely but unreasonably believes he is the subject of an imminent, lethal threat (he genuinely believes the BG's obvious water gun is a Klingon death ray), he goes to prison.

 

[barnbwt]

"It is the ultimate example of "turn the other cheek" But how many cheeks does one have to turn?"
All four. (too easy ) Also, it was all too easy for Jesus to promote the notion of 'turning the other cheek' since A) it was actually a political gesture to defy authority (first strike was a backhand reserved for despised underlings, and the second blow would be a fist reserved for equals --and the third strike would then merit retribution) and B) it's not like the Christians had real means to defend themselves anyway, so enduring the violence was kind of unavoidable; might as well muscle through it and hold your head up. Since the Brits typically speak from the "B)" point of view these days, being thoroughly disarmed, I can see how pacifism holds a phony allure. Why fight back? You'll just get yourself shot (well, that's only if you aren't able to shoot the other guy first, duh )

"That life is precious and is to be valued above all else, and for those who believe this most strongly, that life is so precious that no private person has the right to take it from another for any reason."
I think this is a core tenant of a lot of failed ideologies. It's a very pretty sentiment, but history has shown time and again, is currently showing, and will continue to show, that lives are all too often meaningless in certain circumstances. Nature reveals life in and of itself holds no value, and is mercilessly crushed by calamity. Our defense of it is what gives life value (which is why we save, why we build, why we procreate, and why we achieve, and why we fight).

TCB

 

[armoredman]

...

 

[Deltaboy1984]

Well the SBC not gone soft in the head. We have denominational security team training. I as a Minister of the Gospel carries and I no issue with being willing to send you to meet your maker. We must defend our Castle Doctrines in every state. Now I generally like the BBC but on this issue they can go join Pierse and pound Sand.

 

[BSA1]

Thanks Frank. I got it now. It does suggest that insanity or diminished capacity might be the best defense in Court.

 

[Frank Ettin]

...It does suggest that insanity or diminished capacity might be the best defense in Court.

Only if you've decided to give up on a claim of self defense.

A several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyer, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1:

...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....

Pleading insanity or diminished capacity can reduce the severity of the result, but neither really exonerates you. A "not guilty by reason of insanity" verdict means you don't go to prison, but you do get institutionalized.

Diminished capacity can severity of the crime you're convicted or (e. g., from murder to voluntary manslaughter). But you'll still be convicted, usually of a felony; and quite possibly spend some time in prison.