I’ve written several times about the lunatic ravings of Vice President Joe, “Double-Barreled Shotgun, The Sheriff” Biden, who repeatedly suggested that the shotgun is a magical death-dealing device superior to all other firearms. Mr. Biden actually suggested that one should buy a double barreled shotgun and when beset by home invaders, step outside and fire it into the air, a tactical and legal mistake he compounded by suggesting that one should fire shotgun blasts blindly through doors. Rational readers understand that while shotguns have their uses, like all firearms, they aren’t perfect for all circumstances, and if used as suggested by the Vice President, will promptly land the shooter in jail . . .
A recent New York Sun editorial illustrates the disastrous consequences of Bidenesque thinking:
“It’s going to be illuminating to see whether the defense calls Vice President Biden in the case of the shotgun shooting of the teenaged thief. The case is the subject of a riveting dispatch in the New York Times. It involves the killing of a foreign exchange student named Diren Dede, who was in the process of trying to rob the home-garage of a resident of Missoula, Montana, when a motion sensor awoke the owner, Markus Kaarma, who got his shotgun and fired four cartridges into the garage, killing the hapless youth.”
The New York Times pursued the Montana case in more detail:
“Teenagers call it garage hopping. The goal was to sneak into an open garage, steal some beer or other items and slip away into the night. It was dumb and clearly illegal. It was not supposed to be deadly.
Around midnight on April 27, a 17-year-old exchange student from Germany named Diren Dede left the host home where he played Xbox and drained cans of Sprite to set off with a friend through his dark hillside neighborhood. They passed a home whose garage door hung partially open. Using a cellphone for light, Mr. Dede headed in.
Inside the house, motion sensors alerted Markus Kaarma, 29, to an intruder’s presence. Two recent burglaries had put Mr. Kaarma and his young family on edge, his lawyer said, and he grabbed a shotgun from the dining room and rushed outside. He aimed into the garage and, according to court documents, fired four blasts into the dark. Mr. Dede’s body crumpled to the floor.
While Mr. Kaarma has been charged with deliberate homicide, Mr. Dede’s death has set off an outcry an ocean away in Germany, exposing the cultural gulf between a European nation that tightly restricts firearms and a gun-loving Western state. In his defense, Mr. Kaarma is expected to turn to laws enacted in Montana five years ago that allow residents more legal protections in using lethal force to defend their homes.”
As one might expect, the Times misrepresents the issues:
“Nearly every state has a law on the books giving residents the legal right to defend their homes, but Montana is among several that have gone further. With backing from the National Rifle Association and the support of the state’s Democratic governor, Montana passed a stronger law in 2009 that placed the burden on prosecutors to rebut claims of self-defense.
Under the old laws, residents were justified in using force only if an assailant tried to enter their home in a “violent, riotous or tumultuous manner.” The new law eliminates that language and makes it clear that residents can use force if they reasonably believe it is necessary to prevent an assault on themselves or someone else in the home.”
Modern castle doctrine laws have been written in large part in response to laws that essentially required citizens, in the middle of the night, awakened out of a sound sleep by criminal intrusion in their homes and have the ability—and time—to calmly assess and articulate highly specific statutory requirements—usually in the dark–before deciding whether to employ force, or indeed, what degree of force to apply. Some laws came–and come–very close to requiring citizens to flee their own homes lest a brutal criminal come to any sort of harm.
Castle doctrine laws—like Montana’s—assume that when someone breaks into one’s home they are not there for good and gentle purposes and the residents may presume that and take appropriate action to protect themselves. This puts prosecutors in the position not of protecting the rights of criminals, but of law-abiding citizens. Such laws very clearly say to criminals “when you commit a hot burglary—a burglary when the residents are present—you take your life in your hands. If you end up dead, too bad, but it’s your fault. If you’re not willing to assume the risks, don’t do the crimes.
The Times presents predictable arguments:
“The shooting has also focused political attention on the castle laws. State Representative Ellie Boldman Hill, a Democrat from Missoula, has proposed repealing the recent changes, saying that the rules have fostered a shoot-first culture in Montana.
‘I’m a liberal legislator from Montana, and I have a handgun in my closet,’ she said. ‘We are proud of our gun-owning tradition, but enough is enough. It’s like a license to kill. People are walking around exercising vigilante justice.’
Steve Daines, a Republican congressman running for the United States Senate, recently told a veteran’s group he supported the laws as they stand, a view echoed by gun enthusiasts. His opponent, Senator John Walsh, a Democrat, supports them as well.
Gary Marbut, president of the Montana Shooting Sports Association, said, ‘I think it’s working just fine.’
In times of emergency in Montana, Mr. Marbut said, the police are often an hour’s drive away. ‘Self-defense is a natural right. It is part of the nature of being a free person that your life has value and you can protect that life. It’s just not going to work to change Montana to a Chicago-style culture.”
“Vigilante justice?” It’s hard to square that mantra with the reality of criminals accosting people in their homes. However, there are a number of facts that make this incident something less than a perfect example of the clean and legitimate exercise of self-defense in a Castle Doctrine case.
“These laws are expected to play a crucial role in the criminal case that has been filed against Mr. Kaarma, who is out on bond and is to be arraigned Monday. His lawyer, Paul Ryan, says Mr. Kaarma feared for his family’s safety and panicked that night.
‘He doesn’t know who’s there, what they’ve got, anything,’ Mr. Ryan said. “He just didn’t know what was going on. Then he started to shoot…”
Because of recent burglaries in the area, Kaarma took steps to protect his family. Unfortunately, he also made what many would consider intemperate comments about his preparations:
“Ms. Pflager bought motion sensors and a video camera to track the intruders should they return, and put a purse with some marked belongings inside, so that they could be traced to anyone who stole them. Mr. Ryan said the purse was sitting in the back of the garage and had not been placed there to lure anyone in.
A hairstylist named Felene Sherbondy told the police that Mr. Kaarma had come into the Great Clips salon three days before the shooting and talked about how he had been waiting up with his shotgun for three nights ‘to shoot some kid.’ Ms. Sherbondy told the police that Mr. Kaarma was being ‘extremely vulgar and belligerent,’ according to court documents.
Mr. Kaarma told the police that in the moments before Mr. Dede’s death, he heard the sound of metal touching metal as he stared into the pitch-black garage, and swept the gun across the width of the garage as he fired. Ms. Pflager told the police she heard a few yells of ‘Hey!’ or ‘Wait!’ from inside the garage, and then gunshots. It all happened in less than 10 seconds, the couple told the police.”
Police also found a jar of marijuana in Kaarma’s kitchen pantry. They did draw blood for a drug and alcohol test. The results of the drug screen haven’t been released, but Kaarma’s attorney has said the alcohol screen was negative.
As is sometimes the case, Kaarma apparently is not a perfect, blameless person calmly and perfectly exercising armed self defense under the very letter of the law. The primary relevant Montana statues are:
45-3-101. Definitions. “Force likely to cause death or serious bodily harm” within the meaning of this chapter includes but is not limited to:
(a) the firing of a firearm in the direction of a person, even though no purpose exists to kill or inflict serious bodily harm; and
(b) the firing of a firearm at a vehicle in which a person is riding.
(2) “Forcible felony” means any felony which involves the use or threat of physical force or violence against any individual.
45-3-102. Use of force in defense of person. A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the conduct is necessary for self-defense or the defense of another against the other person’s imminent use of unlawful force. However, the person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that the force is necessary to prevent imminent death or serious bodily harm to the person or another or to prevent the commission of a forcible felony.
45-3-103. Use of force in defense of occupied structure. 1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person’s unlawful entry into or attack upon an occupied structure. (2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if: (a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or (b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.
45-3-104. Use of force in defense of other property. A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the conduct is necessary to prevent or terminate the other person’s trespass on or other tortious or criminal interference with either real property, other than an occupied structure, or personal property lawfully in the person’s possession or in the possession of another who is a member of the person’s immediate family or household or of a person whose property the person has a legal duty to protect. However, the person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes that the force is necessary to prevent the commission of a forcible felony.
Considering these statutes, it’s easy to see why Kaarma was charged and what the prosecution’s primary arguments will be. They’ll argue that the garage was not an occupied structure, hence 45-3-104 applied. However, Kaarma could have had no reasonable belief that deadly force was necessary to prevent an assault on his person or the commission of a forcible felony, therefore he can’t claim the protections of 45-3-103. How can we know that? Because Kaarma blindly fired four rounds through the exterior of his own garage, having no idea what was happening within or who or what—it could have been an animal—was there. The prosecutor will also argue that by leaving his garage door partially open and in effect, baiting a trap with the purse, he actually encouraged a burglary and bragged about his intention to kill beforehand. This will be effective when he points out—as he surely will—that Kaarma demonstrated his intentions by leaving his garage door partially open at a time when he knew burglars were preying on the neighborhood. If Kaarma had been smoking pot, that will not be helpful to his defense.
The prosecution also has another powerful argument: Kaarma had no need to confront anyone in his garage. He could have simply called the police, ensured that his doors were locked, taken up his shotgun and waited. It may have taken the police quite awhile to respond, true, but until or unless someone tried to break into his home, he and his family were safe, and since he had video in his garage, the identity of the burglar could be determined.
Unlike what the Times implies, the Montana statute is hardly a license to indiscriminately kill burglars found in one’s home. A forcible felony is any felony where force or threat of force is used. Practically, this means if one confronts a burglar in their living room and the burglar immediately submits or turns and runs for the front door there is no justification to shoot. However, if they raise a hand or move toward the homeowner, arguably, the statute allows deadly force. Remember that the burglar is illegally in the home of another, committing a felony at the time. It’s possible a burglar might be shot and killed when he wasn’t actually trying to attack, and of course, the homeowner will be the only witness, but once again, who best to survive, an innocent homeowner or a criminal shot in the act of committing a felony? Why should any innocent citizen suffer in any way because of the choices of a felon?
That said, Kaarma is in real trouble, and not unreasonably so. Obviously, Dede should not have been in Kaarma’s garage, and this is not a cultural issue. Burglary laws exist in Germany and America; he knew better. However, Kaarma did not take advantage of the legal protections in Montana law. Moreover, he was not confronted in his home and forced to make a split second decision. Two of the most important factors in any confrontation were in his favor: time and distance. Kaarma chose to go to his garage, and having no idea of his target, indeed, even if a target was present, fired blindly through the wall of the garage. It is his and Dede’s very bad luck his panicky marksmanship was effective.
Ultimately, this case is not an argument against Castle Doctrine or Stand Your Ground laws. The Montana law is actually and unremarkable representative of its kind. Arguing otherwise is to demand criminals, not their victims, should be favored in the drafting of criminal law. While that makes sense to some, it does not, at least for the moment, make sense to most Americans.
As with all news accounts, all of the facts of the case remain unknown, so it’s difficult to make definitive statements, butbasic safety rules apply here as everywhere: don’t shoot unless you’re sure of your target and your backstop. It’s also wise not to put oneself in a position where shooting may be necessary unless there is clearly no choice. From the available accounts, Kaarma had a choice.
Above all, never, ever listen to Joe Biden’s advice on firearms or the use of deadly force.
Mike’s Home blog is Stately McDaniel Manor.