Stand Your Ground Test

I gotta say, I don’t like these cases:

A Montana man is accused of setting a trap and blindly blasting a shotgun into his garage, killing a 17-year-old German exchange student. A Minnesota man is convicted of lying in wait in his basement for two teenagers and killing them during a break-in.

The two recent cases take the “stand your ground” debate to a new level: Do laws that allow private citizens to protect their property also let them set a trap and wait for someone to kill?

…In Montana, Markus Kaarma told investigators his Missoula home had been burglarized twice within the last week before Sunday’s shooting death of 17-year-old Diren Dede. Kaarma told his hairdresser he had stayed up three nights waiting to shoot a kid, the woman told investigators.

The night of the shooting, Kaarma and his partner, Janelle Pflager, left their garage door open. Pflager left her purse in the garage “so that they would take it,” she told a police officer. She also set up a video baby monitor and installed motion sensors, prosecutors said.

After midnight, they heard the sensors trip. Pflager turned to the video monitor and saw a man in the garage. Kaarma took his shotgun, walked out the front door and to the driveway.

He told investigators he heard metal on metal and without speaking fired four times – sweeping the garage with three low shots and a high fourth shot. Dede was hit in the head and the arm.

Montana’s law says a person is justified in using deadly force if they believe it necessary to prevent an assault or a forcible felony.

…Smith was convicted of premeditated murder Tuesday. Prosecutors said Smith moved his truck to make it look as though no one was home. He turned on a handheld recorder, had a surveillance system running and waited in the basement with food, water and two guns.

Brady descended the basement stairs first, and Smith shot him three times, saying “You’re dead.” He dragged the body to another room and waited until Kifer followed, and he shot her. “You’re dying,” he told her, according to the audio recording.

Let’s first review this video:

Again the only thing that Stand Your Ground Eliminates is the duty to retreat. Let’s also look at this story. To quote myself:

This one minute clip has done a LOT of damage to this man’s future if he ever chooses to carry a weapon (and don’t think because he’s a “Progressive” and anti-gun that he won’t) and needs to use it.

What he is doing here is making a case for a future First-Degree Murder case against him. He is saying in a safe radio studio about a hypothetical situation that “He will feel threatened” and use it to shoot somebody he doesn’t agree with politically.

Now in the event he ever needs to defend himself, this clip will be admitted as evidence and it will make a defense trial VERY difficult.

While I don’t like laws that assume total innocence of an alleged attacker in a defensive shooting, we also can’t assume total innocence of the defender either…that’s why we have charges called “Murder”, “Manslaughter”, and “negligent homicide”, and while in these cases we do have what does appear to dead people committing trespass on private property, that isn’t the end of the story.

Self defense really needs to have the defender as a reluctant party to the violence, and while I oppose duty to retreat, I will damn well retreat from any violent encounter I can. My big dislike of it is that the time to retreat is BEFORE you draw your weapon, not AFTER, when your gun is out you are either in grave fear of IMMEDIATE serious harm, OR you are very possibly criminally brandishing a weapon.

For example, I’m walking home and I see a group of teens/young adults walking down the sidewalk, making a lot of noise and acting tough. I will cross the street or take a different street. Better safe than sorry. That’s a smart retreat! Now once those kids have engaged me and made threats is NOT the time to retreat, its the time to fight, but the more you attempted to avoid that confrontation the better.

Now in your home you are IN your retreat, and if somebody encroaches upon it it is ALWAYS time to fight…still reluctance must be there.

Right now it is the middle of the day, and my doors are locked. At night the doors are locked and the alarm is armed. This is not paranoia, this is PROTECTION, not only does it not make my home an easy target, but it also adds a unit of effort a hostile needs to expend to become a threat to me.

There is a lot of talks about the various stories where blackout drunks are shot in stranger’s homes because they wandered into the wrong house. Now we can talk about the threat posed by somebody so impaired that they aren’t aware what home they’re in some other time.

Still a drunk wandering into my open front door and rummaging through my fridge or laying down on my couch IS an invasion of my home, but weather I’m experiencing a threat is debatable. A debate is NOT what you want to be having in a court of law with your life on the line!

Now a drunk KICKING DOWN my door has shown a LOT more hostility, and a lot more similarity to a home invader of any ilk. Add in the din of my alarm going off, if somebody is sticking around through that, I’m going to be shooting at them.

Not because I want to, but because somebody doing all that is either dangerously stupid, or straight up dangerous.

Laying a trap in your home and staying up with supplies and guns really don’t make you look like a reluctant party! It really is starting to look like murder to me.

Double goes with letting a wounded intruder bleed out. You don’t need to render medical services to an attacker, and if they WERE trying to harm you, I’d say it was stupid, but you DO want to call the police and EMTs so THEY can do their jobs.

What do y’all have to add?

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11 Responses to Stand Your Ground Test

  1. mike w. says:

    It all depends on what the actual facts are vs. what the media reports, but based on what I’ve seen this guy is gonna have a hell of a time claiming legitimate SYG self-defense. Even WITH SYG the reasonableness standard still applies to his actions. If he did in fact, as he says, lie in wait for the kid, set a trap, and then fire at him without warning, he’s going to have quite the task convincing a jury that it was legitimately self-defense.

  2. TS says:

    What’s simply amazing is that the antis will use cases like this where someone is convicted of murder to call for repealing the law. They’ll blame “stand your ground mentality” even though they are the ones who are saying you can “get away with murder” because of it, or say the law is confusing (while deliberately engaged in a national campaign of confusion over what the law protects). Some people even say it should be repealed because these guys unsuccessfully used it as a defense. Huh? That’s like saying we should make all consensual sex between adults a crime because a rapist said “she wanted it” at his defense trial.

  3. Maxwell says:

    My first reaction is, these cases come too close to cold-blooded murder. Waiting up for an intruder with a gun, and the STATED intention to shoot anyone who showed up, can’t really be called anything but premeditation.
    In the first case, The defendant’s partner ADMITTED to ‘baiting’ the garage. Entrapment is illegal for police, and should be illegal for civilians too. If she’d left the purse ACCIDENTALLY, it might be a different story (or even if the issue was left to question). Her admission, I think, is damning.
    In the second case, defendant “moved his truck to make it look like no one was home.” Again, if that was the stated reason, it’s the same sort of baiting/ entrapment. But the worst thing about this case is, not only didn’t he notify police/ EMTs immediately, he MOVED THE BODY (why?) and waited for a second ‘intruder’—implying that he knew beforehand that there would be another.
    As much as I hate thieves and home invader types, Stand Your Ground doesn’t (and shouldn’t) protect premeditated killing. These two should be convicted.

  4. Bill says:

    During my classes I teach a concept I call the “ZipLoc” test. That is, unless you are about to be put in a ziploc and taken to the morgue – leave your weapon in its holster. There should be no suprise that these guys are taking a hard fall – as well they should. Instructors continually emphasize that the use of a wespon for personal defense is a “tool of last resort”. Period.

  5. BenC says:

    I have no desire to kill someone but I also have no problem with either of these cases. They were in places they were not supposed top be doing things they were not supposed to be doing. When you steal form someone that is not just money or property you are stealing the time the person used to make that money and the time to replace the property and that time can not be replaced . I have no sympathy for a thief.

  6. Will Brown says:

    mike w and BenC illustrate the complexity caused by the lack of uniformity in the USA regarding the very concept of “self defense” as a matter of law.

    As you observed Weer’d, SYG only modifies one of the requirements generally required for a legitimate claim of self defense. For only one example of just how inconsistent self defense law is in the US, here in Texas the law stipulates that any intrusion onto private property is justification for a defensive shooting – the unlawful presence on your property establishes the presence of threat necessary to justify shooting. Other states have different standards, Massachussetts having none at all (as we discussed in a previous post of yours).

    I do know (but can’t quickly find a cite now) that setting a trap in your property to engage an intruder with a firearm is already established in law as being verbotten – I think from a case in Chicago back in the late 60’s or early 70’s. The Kaarma example however doesn’t appear to actually involve such criminal behavior. They are reported to have deliberately left property unsecured inside a structure – much as people commonly do with livestock or large farming equipment, for example. I suggest this behavior doesn’t begin to rise to the level of “trap” the Chicago case establishes as illegal. Once the intruder entered the structure, Kaarma was on fairly safe ground to claim self-defense during a crime-in-progress, however much his previous deliberate actions might have worked against making the crime less tempting appearing.

    The Smith conviction appears to be due to his actions post-shooting. Him guarding his property actively (and from within the confines of said property) seems a legitimate self defense action. He shot the intruders well within the structure from a position of personal safety. His actions afterward are what got him convicted I suggest; having legitimately (seemingly) shot the criminal home invaders, Smith deliberately withheld reporting the incident until the two criminals died of their wounds. Had Smith been a better shot and killed both outright, he might well have been acquitted or outright no-billed by the Grand Jury. Him recording himself gloating over the two after having shot them is simply one of the best examples I’ve yet discovered of human stupidity in action.

    It is a near-certainty that anti-2A groups will attempt to present both cases as evidence of what they are not, but liars are gonna lie.

  7. John says:

    Ben C.: It’s not about sympathy. It’s about due care and the law. As Massad Ayoob wrote ( decades ago! ), you can’t just shoot some guy and then get let off because he turns out to be a criminal dirtbag. The only justification that is accepted throughout the U.S. is immediate danger of death or extreme bodily harm. This goes along with our ( if you other guys will pardon my speaking for you ) defense against charges of “vigilante” behavior: a vigilante decides who is guilty, decides what that person deserves, and delivers punishment. A defender stops the immediate attack and lets the law worry about apprehension and punishment. Saying that you have no problem with someone dealing out a death penalty for trespassing and burglary is saying that you really don’t care much about the rule of law.

  8. Archer says:

    The man himself, Andrew Branca, covered the Byron Smith case here. In short, innocence/reluctance and reasonableness are fundamental tenets of a solid self-defense claim. Laying a trap/ambush – with bait – with the express purpose of ending a person’s life shows pre-meditation, as well as a guilty mind and a distinct lack of reluctance, and is also not a reasonable “preparation” for a home intruder. This was not self-defense; this was pre-meditated murder, and should be treated as such.

    These kinds of cases piss me off to no end because it’s only going to make things harder for us who are acting responsibly and reasonably. The MSM is going to run us all through the wringer – from attacking SYG and Castle Doctrine, to conflating our activities (carrying a lethal tool for self-defense) with these guys’ actions (laying a lethal trap for intruders, including bait), to advocating more “gun control” laws that would not and could not have prevented these cases.

    To make an analogy, there’s a fundamental difference between going into the woods with a big gun in case of bear attack, and going into the woods with a big(ger) gun to hunt bears. You and I and everyone here know the difference, but all the MSM will see/broadcast is Yogi or Boo-Boo or Teddy Ruxpin lying motionless on the ground and asking why gun owners are so bloodthirsty.

  9. Will Brown says:

    @ Archer

    I think your hunting analogy fails due to the lack of a shooter being within a dwelling/private property structure.

    That said, while I differ on the interpretation being applied to some of the pre-shooting events Smith is said to have taken (no legal interpretation of “self-defense” of which I am aware prohibits a property owner or other class of lawful resident from taking precautionary actions as a result of a belief in the likelihood of criminal attack) that doesn’t mean I disagree with his conviction. What it does mean is that this case in particular illustrates how the law covering self defense and defense of property can be contradictory at times. The two teenagers Smith killed were unquestionably in the act of a classic home invasion. Smith’s having parked his vehicle elsewhere from his usual spot alters that fact not a wit. Smith shooting home invaders is unquestionably an act of self defense; being confronted with perpetrator(s) of a felony-in-progress is commonly regarded as presumptive justification for a violent act of self-defense.

    Smith’s obvious preparations for doing so, especially when combined with the manner in which he killed the two criminals, makes Smith equally criminal himself.

    It is sad that recognized experts on this issue (like Andrew Branca) seem unwilling to help point out how the current state of the law regarding these matters plays a roll in people violating principles that rightly ought to be reasonably universal throughout our national society. That he and “they” will not makes determining what the limits of the law actually are that much more difficult for the rest of us.

    In addition to Branca’s own book, I recommend Self-Defense Laws of All 50 States as an essential guide for all gun owners to consult. What the “experts say” and what the law actually reads aren’t always as reasonable or consistent as they are often presented as being. Or, indeed, as they ought to be.

    Smith’s actions were reprehensible and he got the sentence he deserved. That said, the various (and varied) legal standards within the USA regarding violent defense of self and property are reprehensibly inconsistent when they are not out-right contradictory themselves. All of which aides those who work to deny our constitutionally recognised right while making our exercise of that right more difficult and dangerous. There’s a lot to be pissed off about here.

  10. Archer says:

    Re-reading it, I see what you mean about the analogy. I probably should have said “baiting” a bear, instead of hunting it. The gist still stands though: there’s a difference between setting out to mind your own business while carrying a tool to defend yourself if accosted, and setting out expressly to kill a bear.

    “no legal interpretation of “self-defense” of which I am aware prohibits a property owner or other class of lawful resident from taking precautionary actions as a result of a belief in the likelihood of criminal attack”

    I’m not aware of any, either, but I’d note that those precautionary actions must be seen as “reasonable,” for some definition of the word. Making your home a “harder” target is a reasonable preparation, and might include a homeowner arming him- or herself, closing and locking doors and windows, trimming back shrubs to increase visibility, installing and/or turning on more lighting, installing a surveillance/alarm system, etc. Reasonable people don’t want a burglar in their homes, so they make their home less attractive to burglars.

    Intentionally making your home a “softer” target – leaving a garage door open with a purse in plain sight, and moving a car to make it look unattended – in order to lure intruders in, I don’t think is reasonable. Certainly not lying in ambush with a firearm. The jury seems to agree.

    I do see your point about incomplete, inconsistent, and/or contradictory home- and self-defense laws, and “expert” interpretation of the same. It always seems as though we’re damned if we do and damned if we don’t.

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