Unusual intruder shooting case

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Originally Posted By: OVERKILL
Boy the lawyer sure cleaned those statements up, LOL!!!


If so, then the lawyer is as dumb as they are.

They were deeply concerned about burglaries having been burgled twice already. A wallet with credit card was stolen and there were unauthorized charges.

They were fearful for their safety.

Yet they still decided to leave the garage open at midnight with a purse in it?
 
If this guy can't say that he was fearful for his life with a straight face, I'm going to have to say that there should not be laws on the book that protect him.

It's one thing to shoot a person who you have some reasonable suspicion will do you harm. But it's hard to support someone who shoots another individual to prevent the theft of an insured item.
 
Originally Posted By: Sam2000
Originally Posted By: OVERKILL
Boy the lawyer sure cleaned those statements up, LOL!!!


If so, then the lawyer is as dumb as they are.

They were deeply concerned about burglaries having been burgled twice already. A wallet with credit card was stolen and there were unauthorized charges.

They were fearful for their safety.

Yet they still decided to leave the garage open at midnight with a purse in it?


They were smoking "cigarettes" in it
wink.gif


http://www.cbsnews.com/news/cops-pot-might-be-factor-in-exchange-students-killing/

Quote:
The search-warrant request says Kaarma's girlfriend, Janelle Pflager, told a neighbor that someone had taken all the marijuana and pot pipes out of the garage in a previous burglary.

Pflager also told the neighbor her husband smokes marijuana in the garage, and police found a glass jar of marijuana in his pantry the day of the shooting, the search warrant said.
 
Yep but I think they want the jury to easily conclude what you did and then accept the ventilation story.

If you want to ventilate marijuana smells, then do you need to open the garage door high enough to permit entry especially when you are fearful of burglaries?
 
http://bigstory.ap.org/article/alleged-shooter-may-have-been-angry-over-pot-theft

In a statement to the media, Ryan said Dede and a companion had broken into garages at least three of four times before the April 27 shooting, and the neighborhood was on alert after a series of burglaries.

Ryan said he received a transcript from a police interview in which the companion admitted to entering the garages. The statement did not identify the companion, but Ryan told the Missoulian newspaper he is an exchange student who has returned home to Ecuador.
 
Originally Posted By: Astro14
I think it's illustrative to consider an identical set of circumstances, but I'll use me in this hypothetical. .....

.... at his garage door .....

.... USP .... concealed holster .....

everything else omitted for brevity



In your hypothetical you are at the threshold of the garage door, but not within, if I understand you correctly? In the actual event, the intruder was within the garage.

In your hypothetical, if you're at the edge of the garage, and not in it, why not just duck down, or retreat around the corner out of the line of fire? In your hypothetical, can you retreat with safety? If you can, and you didn't, but mount your own attack killing the homeowner, I think you're in big trouble. If you retreat and the homeowner continues to pursue and press his attack, your deadly force response would be much more reasonable - you're out of good options at that point.

In my jurisdiction, if you crossed into the garage, then the law was broken as soon as you carried a concealed weapon into a private residence without notifying the homeowner.

See A.C.A. 5-73-306 (19)(A)(iv). ( a goofy law, I think, but it's the law ).

Again, could you safely retreat? Regardless, now you are in the unenviable position of having illegally entered into private property, with an illegal concealed weapon, a shoot out erupts, and the homeowner is dead.

In his own property.

You are probably looking at being charged with some form of homicide.

The only way to explain your good intentions, is for you to take the stand and be cross examined about the event. Now that your good character is in issue, the prosecutor will say all of your training made you a lethal weapon.

With good lawyering you might very well be acquitted, but it's not as simple as it sounds.

If the garage was not entered into, you're still in the unenviable position of being in a shootout on someone else's property, after having carried a weapon to the property, and the homeowner is now dead.

In his own property. See all of the above.

You're probably still going to be charged with some form of homicide.
 
It's going to be interesting where the other student was and if the shooter might have noticed him when he came out to shoot.

http://nytimes.com/2014/05/08/us/missoul...0&referrer=

They did not see who was in the garage until it was all over, Mr. Ryan said. The friend accompanying Mr. Dede that night, an exchange student from Ecuador, stayed outside the home.

Mr. Dede’s host parents, Mr. Smith and Kate Walker, who say they have never locked their doors and have never been burglarized, have spent the last week grieving for a 17-year-old who had begun to feel like a family member. They said they could not fathom why anyone would feel compelled to open fire.

“Whatever happened to turning the lights on and yelling, ‘Hey kids, go home’?” Mr. Smith said.

Ms. Walker added, “Or closing the garage door?”
 
Is this a case where all parties involved were wrong, but some were more wrong than others?
 
With all this new information coming in (the intruders had burglarized other homes, the pocketbook was out of sight, the garage door was open for ventilation, there was a baby in the house, and the marijuana angle), this is going to be a tough case to try. I think a lot will depend on the juror's perception of the homeowner's fear, as well as the definition of "garage".

Certainly if unknown intruders had illegally entered the house through an unlocked back door or a window in the middle of the night, there is a presumption of threat that would justify deadly force. So is the garage the same as the house? I can see the prosecutors arguing that the garage is not the occupied house in that there is a barrier (door) between the garage and the house and therefore there was no imminent threat to the occupants of the house. But then can't the same could be said if someone entered through a laundry room?

Prosecutors will note that the garage door was left open, but is that any different than an unlocked door? Many people don't lock their doors. They will say the garage door was left open to lure in a thief, but that will be difficult to prove as the homeowner says it was for ventilation.

Prosecutors may also argue that other options existed such as retreat, but Castle Doctrine does not require you to take such options. Then there is the issue of whether the homeowner was on drugs at the time of the shooting, and the presence of other innocents in the house, including a baby, and the homeowner's alleged statement that he was waiting to shoot a kid.

The jury will have it's hands full with this case, and the outcome will likely hinge on whether the jurors believe the homeowner reasonably felt threatened when all factors are weighed, and whether he provoked the confrontation. In many states, provoking or escalating a confrontation nullifies the self defense argument

Personally I would not have shot someone in my garage, even at night, because I would not feel threatened as they are on the other side of a locked door, but if they tried to enter my home that's a different story. The jurors may see it differently here, especially in Montana. It will be an interesting case to follow.

Tom NJ
 
Originally Posted By: Tom NJ
With all this new information coming in (the intruders had burglarized other homes, the pocketbook was out of sight, the garage door was open for ventilation, there was a baby in the house, and the marijuana angle), this is going to be a tough case to try. I think a lot will depend on the juror's perception of the homeowner's fear, as well as the definition of "garage".

Certainly if unknown intruders had illegally entered the house through an unlocked back door or a window in the middle of the night, there is a presumption of threat that would justify deadly force. So is the garage the same as the house? I can see the prosecutors arguing that the garage is not the occupied house in that there is a barrier (door) between the garage and the house and therefore there was no imminent threat to the occupants of the house. But then can't the same could be said if someone entered through a laundry room?

Prosecutors will note that the garage door was left open, but is that any different than an unlocked door? Many people don't lock their doors. They will say the garage door was left open to lure in a thief, but that will be difficult to prove as the homeowner says it was for ventilation.

Prosecutors may also argue that other options existed such as retreat, but Castle Doctrine does not require you to take such options. Then there is the issue of whether the homeowner was on drugs at the time of the shooting, and the presence of other innocents in the house, including a baby, and the homeowner's alleged statement that he was waiting to shoot a kid.

The jury will have it's hands full with this case, and the outcome will likely hinge on whether the jurors believe the homeowner reasonably felt threatened when all factors are weighed, and whether he provoked the confrontation. In many states, provoking or escalating a confrontation nullifies the self defense argument

Personally I would not have shot someone in my garage, even at night, because I would not feel threatened as they are on the other side of a locked door, but if they tried to enter my home that's a different story. The jurors may see it differently here, especially in Montana. It will be an interesting case to follow.

Tom NJ


This post and those by Win pretty much nail down the situation. There is ample case law in many jurisdictions that someone entering an occupied residence by force or stealth is sufficient for a resident to assume they are in immediate danger of serious bodily harm or death justifying the use of deadly force. That includes an attached garage.

This case will hinge on the weight the jury places on the shooters comments prior to the shooting and his engineering of the situation.

My guess, and its nothing more than that, is the worse case scenario for the shooter is he will plead guilty to, or be convicted or, manslaughter.
 
Originally Posted By: Mykl
Is this a case where all parties involved were wrong, but some were more wrong than others?

Yes. Sadly, with all politically charged events, it's always polarizing.
 
If they rule what is called "imperfect self defense" (unreasonable fear of threat) that would result in manslaughter.

If they rule it was a reasonable self defense he might be acquitted, unless there are other charges (discharging a firearm while under the influence or something like that).

If they rule it was a setup ambush it would be murder, possibly first degree.

I read the public opinion in Germany (the home of the deceased) is very strong in favor of convicting the shooter, so it does make it a bit of a political situation.
 
Win - I appreciate your legal experience.

You're right, in my hypothetical, I would probably have a burden to withdraw before exercising my right to self-defense. I was trying to figure how to get this point across: the right to self-defense exists, even for those who might be considered "in the wrong" on a minor point like trespass.

A great deal of case law supports this, including cases where burglars (felons) flee, are pursued by the homeowner, and then defend themselves against the homeowner. Those felons have been found not guilty simply because the homeowner shifted from defender to attacker as soon as the burglar fled.

That role reversal is a key point in determining who is defending and who is legitimately exercising their right to self-defense.

This case hinges on several points:

1. the use of lethal force in defense of property.
2. the stated intent of the shooter to catch someone.
3. the deliberate creation of the attraction to lure a criminal into the garage.
4. the crime of trespass and the intent of the trespassers.
5. the reasonable fear of the shooter for his safety.
6. definition of residence in castle doctrine (are garages included?)
7. shooting without aiming/being certain of one's target (a crime in and of itself in many places)

It's pretty easy for a prosecutor to look at the pre-meditated nature of this shooting and make an argument that it was not defensive in nature. I have made that argument. Whether that argument is valid will depend on the presentation of evidence that we have not yet seen, in court, and the subsequent determination of a jury after considering the evidence.

To take a life in defense of another life is completely justifiable. The attacker gave up any right to his continued existence the instant he presented a threat (ability, opportunity and intent) of serious bodily harm or death to the defender.

But, I find that the roles of attacker/defender in this case are blurry...they're not clear cut...though there are many on this forum that believe the roles are clear cut. I think that my advice to antiqueshell remains sound: if there are ever "perps" in your garage, I suggest that you rack the shotgun, and stay inside the kitchen while your wife calls 911. If the perps come inside, then you'll know their intent and you'll have a decisive tactical advantage, because you'll know where they're coming from, their number, and they'll know nothing of you.

By following that advice, the clear intent of the intruders will be provable in court, but more importantly, for those who have had to live with the emotional aftermath of a fatal shooting, provable to your own conscience: they left your valuables in the garage to come after you. You would be certain of your target, in clear danger, and justified in using lethal force to defend yourself.

Regardless of the legality of shooting in defense of property, I find it morally repugnant. To take a life in exchange for defense of a thing is simply wrong, even if the law might allow that in your jurisdiction.

To me, shooting in defense of property violates both necessity and proportionality principles of lethal force that I previously discussed.
 
Originally Posted By: Astro14


..... I was trying to figure how to get this point across: the right to self-defense exists, even for those who might be considered "in the wrong" on a minor point like trespass. ....

(my emphasis added)




I agree, and I was waiting for someone to bring it up.

Let's assume, for the sake of argument, that everything bad about this defendant is true: he really did say to, or in the presence of the hairdresser, that he was going to shoot some kid, he really did cock the garage door half open as an inducement, and he really did sit around in his house waiting for an intruder.

And then he got unlucky, in the middle of the night, he got what he wanted - two intruders showed up.

Now that he has got what he wanted, does this turn of events now preclude him as a matter of law from having a reasonable fear that these intruders might do his family some harm?

I would have to say no. All of the public policy reasons behind castle doctrine laws still exist - a family is in need of protection from intruders.

We now know, there was a 10 month old in the house. The child has a right to be free of harm from intruders. He/She could not possibly have had any role in creating the circumstances that potentially threaten him/her.

Does the child forfeit it's right to an intruder free home because mommy and daddy are dim wit dolts?

Of course not. The parents have a duty to protect the child.

So you are very much right - being a bad guy does not automatically forfeit your right of defense.

We can argue in good faith whether his fear of harm to his family was a reasonable belief, and no doubt that will be hotly contested, but to me all of his prior bad behavior is mostly window dressing - this case should turn on the reasonableness, or lack thereof, in his belief that the intruders presented a risk of bodily harm to his family, however it was that they got there.

Whether this guy is a likeable guy or pure pond scum matters not - important principles are at issue here and his case can be, and should be, vigorously defended, if nothing else, for the benefit of everybody else that is not pond scum.

As an aside, Castle Doctrine laws are written to benefit homeowners. Concepts like breaking and entering, trespass, residence, and other rigid legal concepts do not appear to be part of this statute. It appears to me that this law was clearly written to be very broad in its protection to the homeowner: instead of residence, it speaks of occupiable structure. Instead of trespass, or breaking and entering, it speaks of unlawful entry. This, I think, is to give the homeowner the broadest leeway and free him or her from having to make nuanced legal judgments in the heat of an unpleasant moment.

The statute says what it says for a reason, and the language of the statute should be followed in discussing its effect.
 
Quote:
Regardless of the legality of shooting in defense of property, I find it morally repugnant. To take a life in exchange for defense of a thing is simply wrong, even if the law might allow that in your jurisdiction.

To me, shooting in defense of property violates both necessity and proportionality principles of lethal force that I previously discussed.


I for one believe that theft is a reason to use lethal force.

Property is obtained through the fruits of one's labor, and that labor consumes time out one's life. Time is a limited commodity of life that cannot be replaced. So when someone immorally removes your property, they are really stealing irreplaceable time from your life.

I recently had several hundred dollars worth of tools removed from vehicle by a thief, so I can understand the feelings this homeowner was experiencing. However, firing (apparently) blindly into a dark garage is not a responsible use of a firearm, IMHO.
 
Originally Posted By: Astro14


Regardless of the legality of shooting in defense of property, I find it morally repugnant. To take a life in exchange for defense of a thing is simply wrong, even if the law might allow that in your jurisdiction.

To me, shooting in defense of property violates both necessity and proportionality principles of lethal force that I previously discussed.


A person should be allowed a route to citizen's arrest (at gunpoint, if needed) in defense of property... though in practicality, he'd make a statement that "the guy tried to run" or "he rushed me" depending on if he was shot in the front or the back. One shouldn't have to get close enough to the perp to muscle them. The law should include a duty to yell "Stop."

I'm thinking of a rancher protecting his cattle, or a disabled mechanic defending a garage full of tools he hopes to use again someday. One's livelihood.
 
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