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By Matthew J. Bergstrom, Esq.

Despite its location in South Africa, another high profile shooting offers lessons for US gun owners. International Athlete, Oscar Pistorius, stands accused of murdering his girlfriend on Valentine’s Day 2013, and now we’ve had the opportunity to see his case presented in a South African courtroom this week. Pistorius, known as the “the Blade Runner—the fastest man with no legs,” claims he thought he was shooting an intruder in self-defense inside a bathroom in his home . . .

The trial has met expectations for dramatic moments after a year of anticipation and speculation driven by the media. Pictures have circulated of Pistorius vomiting in open court during a witness’ testimony detailing the mortal gun shot wounds suffered by Reeva Steenkamp. Prosecutors also introduced physical evidence by erecting the bullet-ridden bathroom door in the courtroom to challenge Pistorius’ description of the crime scene.

For many reasons, the case is noteworthy for American gun owners because it highlights the legal hurdles one may face when claiming self-defense. If you shoot in self-defense, in order to escape criminal liability, you will have to justify not only your actions, but also your thoughts. Immediately after the Pistorius incident, the court of public opinion wasted no time in attacking the likelihood of his account of events. Many challenged Pistorius’ truthfulness in claiming he believed he was shooting an unknown intruder, others said his subjective beliefs were too unreasonable to accept. Some argued the circumstantial evidence disproved Pistorius’ claims of self-defense.

If this case occurred in the United States, Pistorius could also assert a self-defense claim. Traditional self-defense typically requires the jury to assess the “reasonableness” of the shooter’s actions. If the jury agrees that given the shooter’s circumstances, he or she acted reasonably, then they can find the defendant not guilty.

However, given the questions surrounding whether Pistorius’ actions were reasonable and depending on the state jurisdiction in which he was tried, he could also assert what is called an imperfect self-defense claim.

The doctrine of imperfect self-defense has come to mean three separate things, depending on the jurisdiction in which you may find yourself. First, some courts apply imperfect self-defense where the murder would fall within the perfect self-defense doctrine except that the defendant provoked the encounter. Second, other courts apply the doctrine when the defendant used unreasonable force in defending himself and, as a result, killed someone. Third, some courts only allow the doctrine when the defendant killed someone because of an honest, but unreasonable belief that he was about to suffer death or serious bodily harm.

Pistorius would hope to be in a state adopting the version of imperfect self-defense that allows a jury to find someone guilty of a lesser crime, even when the defendant’s beliefs were unreasonable. In states that do allow this defense, such as Maryland, courts have held that “the honest but unreasonable belief standard of imperfect self defense,” although not a complete defense, “mitigates murder to voluntary manslaughter.” State v. Faulkner, A.2d 759 (1984).

The typical jury instruction for this type of imperfect self-defense looks something like the following:

The defendant acted in imperfect (self-defense/ [or] defense of another) if:
1. The defendant took at least one direct but ineffective step toward killing a person.
2. The defendant intended to kill when (he/she) acted.
3. The defendant believed that (he/she/ [or] someone else/ ) was in imminent danger of being killed or suffering great bodily injury.
4. The defendant believed that the immediate use of deadly force was necessary to defend against the danger.
5. The defendant’s beliefs were unreasonable.

Some states, like Virginia, do not allow a jury to reduce your charges if you acted unreasonably to defend yourself. Instead, even if you acted on an honest, but unreasonable belief that your life was in danger, your defense would be an uphill battle to convince the jury to accept the application of complete self-defense and therefore fully acquit you of the crime. In states adopting such an approach, you would be judged not on what you actually believed, but on whether or not your beliefs were objectively reasonable. Pistorius would have a much tougher time beating a First Degree Murder charge in these states.

What does the inherent intricacy of a self-defense claim mean for the armed citizen who believes in being prepared to stop a threat to his life? It means training must be intellectual and emotionless, as much as it is practical. Time at the range should be balanced with reflection on situational awareness, threat perception, and study of the law.

Matthew J. Bergstrom, Esq. is Managing Attorney of Arsenal Attorneys, a law firm concentrating on the needs of gun owners. The Virginia-based firm serves clients nationwide for criminal defense, estate planning, business issues, and the Arsenal Gun Trust.

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  1. An intruder barricaded in my bathroom? Leave them there. Get out of the apartment. This guy is in deep trouble. Better yet, spray the floor outside your bathroom with WD40 and set up a video camera and wait…

  2. Murder, pure and simple.

    And he never should have been allowed to compete in foot races, either.

    • This.

      I have closely followed this case.

      And while the scrutiny of, you know, actual facts made it clear to me that Zimmerman (while a douche) seems to have acted in self defense, the facts in the bladrunner case just prove that the knee jerk public opinion is probably right in this case.

      Nothing at all in this case adds up, and just points more and more to the gf locking herself in the bathroom to get away from Pistorius and he killed her through the door.

  3. Blasting somebody behind a bathroom door? Don’t know how to justify this one. At the very least you can move to another part of the house. Then barricade and wait for the cops or the perp

    • To be fair, in a lot of locales (such as mine), the mere presence or even (violent) attempted entry into my home automatically gives me the legal right to shoot. Just because you barricaded yourself in one of my rooms after realizing I’m armed doesn’t mean I have to run away from you because I can. You might be armed or waiting for a better opportunity.

  4. Here’s a legal tip: never shoot a supermodel through a closed bathroom door because you think she’s a burglar trying to steal your Charmin.

    When it comes to a defense to this murder charge, Pistorius doesn’t have a leg to stand on.

  5. I’ve read about the myriad horror stories of thugs breaking into homes, raping and beating the residents to death with hammers in South Africa, but this story has stunk from the beginning, especially since there is absolutely no chance of a satisfying outcome for anyone involved.

  6. That’s a lot of legal information but it could be distilled to “don’t be unreasonable.” So:

    1) Don’t murder your girlfriend
    2) Don’t just start blammoing whenever you hear a bump in the night coming from your bathroom which happens to contain above-mentioned girlfriend you freakin’ psycho.

    There was nothing objectively reasonable in what happened there.

  7. Cases like this make me wonder if a “Know your target” law night not be in order. IE, if you haven’t made a positive ID of your target, you can be held liable (civilly or criminally) for their death or injury.

    But I can also see how this might be abused if not properly codified to not interfere with other laws (SYG, Castle Doctrine, etc.)

    • It depends on whether someone you cannot identify can be construed as a deadly threat. Someone on the other side of a door? Probably not a deadly threat unless they’re trying to bust the door down. It might not be necessary to complicate the law when common sense can (should?) be used to identify deadly threats.

      • Objective reasonableness is “supposed” to take care of that common sense.

        “Ladies and gentlemen of the jury, put yourself in the defendant’s position at the time in issue. Ask yourself one question: were you in fear for your life?”

        That should be it.

        But no. We have 1-2 years of news media talking heads, pundits, experts and rabble rousers stirring up every possible set of circumstances and “what ifs” that can be conceived. They try to say crap like “Oh, well he could have just…” and what he could have done is often so ludicrously pathetic no one in their right mind would have EVER thought of it in those circumstances.

        In other words, objective reasonableness has been replaced by 20-20 hindsight in the court of Popular Media.

        My personal opinion is that the news media should shut the HELL up about all criminal cases between arrest and trial beside reporting of bare facts. “So and so was arrested today.” “So and so made bond today.” “So and so got true billed by the Grand Jury today.” Etc.


        Then MAYBE a jury has at least a fair chance of applying objective reasonableness. A defendant’s story might make sense or it might be full of garbage. At least the dog and pony show would not be an influence.

  8. While I would be one of the first to tell people police can’t always get there in time when you really need help, if you take his story at face value (which I don’t), it would be a great exception.

    Suspect not actively trying to harm you? Suspect contained in a small area with no real escape? Homeowner armed and some short distance away with eyes on the exit of the area where the suspect is barricaded? Perfect time to call police and just wait a few minutes. That is, if you believe him. Which I don’t.

    • That’s about sums it up and I agree with you. Even if you take everything he’s claimed as being 100%, then he’s still guilty. It’s simply unreasonable to go blasting through a door like that when he wasn’t sure who was there. Granted, he can claim all day and night that he “thought” it was an intruder, but the reasonableness of that is just ludicrous and not something I would (with Texas law informing my mindset) accept as justification.

  9. His self defense claim is total BS. First, Oscar lives in a high security gated, and high electric fenced community. These places are like fort knox in security. Also, South African home owners insurance almost always requires burglar bars on the windows. So for him to say that someone got over 12″ electric fences, many of them, though the bars, and then into the bathroom is just not a plausible theory. I was with the SAPS the day this shooting happened. They were all dumbfounded by his reported excuse.

    • It sounds to me like Oscar can at least file and win a discrimination lawsuit against his housing complex … clearly those 12 inch high electric security fences would only hinder someone without two fully functional legs.

  10. He had a history of reckless behavior involving firearms that would have resulted in jail for a non-celebrity. Then he blows his girlfriends head off from behind a locked door while she is using the bathroom. Or maybe while she’s behind a locked door to protect herself from him.
    Why shoot through a door when you have a gun to protect yourself and you don’t have more than a hunch that it’s an intruder?
    The issue here is “reasonable”. Nothing he did, even if you believe his story, was reasonable. The only issue in question is if it was premeditated.

  11. I just don’t see a self-defense claim here, either.

    He’s in a very low-crime, gated, and (allegedly) very secure neighborhood. He also has a record of reckless behavior with firearms, and has repeatedly refused to be safe or proficient with them.

    Then there’s the issue of a barricaded subject in a bathroom. Probably the best course of action would be to simply leave them there and, if possible, make sure they couldn’t get out until the police arrived. Could always wait for them to come out, too, though that presents its own set of hazards. From what I can discern, the alleged intruder wasn’t trying to break out, either.

    It’s nothing like shooting at someone though a door who’s actively trying to break in, which has happened more than a few times here States-side.

  12. Another lesson might be, “don’t shoot through the door unless somebody is already shooting at you through the door.”

  13. Something something Achilles heel. I’m sorry, but it’s late and all the good foot jokes have been taken.

  14. On the topic of home defense, I just bought a reliable [expensive] flashlight just so in the event of a DGU, prosecution cannot say I did not have a positive ID on the home invader. Plus with little ones in the house that is a good idea anyway. A friend of mine recommended that even before optics, the first accessory any gun owner should get is a good weapon light. Gun safety rule #4.

  15. Maybe he was just taking good old uncle joes advice?? Anyone thought of that yet?? He did fire through the door just like uncle joe said to do. He only forgot to go outside and fire the warning blast maybe that’s why it didn’t work out!

  16. Who mistakes a super hot model girlfriend for a dangerous intruder? He shot her because they got in a fight and he is a maniac.

  17. I’m going to go out on a limb and say Oscar Pistolius is going to be punted into a cramped cell for a very long time with the citizens of South Africa footing the bill.

  18. Putting aside the Pistorius case for a moment….
    I’ve often thought that the notion that we are restricted to ‘reasonable’ actions in the face of a completely unreasonable criminal attack is ludicrous. It is the product of arm chair quarterbacking by bored lawyers examining the lint in their navels when they weren’t suing somebody over spilt milk.

  19. We forget that he is a great hero in South Africa, therefore the O.J. factor will come into play. There will need to be video of him planning the shooting, confessing it to camera, and begging to be jaied for life, before he will be convicted. His past record of shooting everything in sight may lead to impressions he was just reverting to default shoot ’em up mode in a domestic crisis. He will definitely get special (favorable) treatment if he does end up in prison.

  20. Ok I’m not sure about all the details here in this case. I know there was an issue with an investigator being indicted ? Also I believe the defendant claimed some prior break in happened through that window? I could be mistaken.

    That said I am generally reluctant to shoot where I can’t see. One it is often at best a waste of ammo and two it can be dangerouse. I certainly would have first called out to my wife and kids and did a roll call to place the people who are supposed to be in my house before I shot through a bathroom door or any door!
    As to shooting a legit intruder , without a doubt. In my state we have reasonable home defense laws. It is safe and legal to assume any one who forcibly breaks into your home is armed and ready to use
    Deadly force on me and or my family

  21. Just what is he going to do in jail as a double amp? They are going to have to isolate him and that makes the sentence far worse for him. They should just give him the option of a short rope in a big hurry.

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