Wednesday, November 28, 2012

License to kill

Castle Doctrine

A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine that designates a person's abode (or, in some states, any place legally occupied, such as a car or place of work) as a place in which the person has certain protections and immunities and may in certain circumstances use force, up to and including deadly force, to defend against an intruder without becoming liable to prosecution. Typically deadly force is considered justified, and a defense of justifiable homicide applicable, in cases "when the actor reasonably fears imminent peril of death or serious bodily harm to himself or another".The doctrine is not a defined law that can be invoked, but a set of principles which is incorporated in some form in the law of most states.

The term derives from the historic English common law dictum that "an Englishman's home is his castle". This concept was established as English law by 17th century jurist Sir Edward Coke, in his The Institutes of the Laws of England, 1628. The dictum was carried by colonists to the New World, who later removed "English" from the phrase, making it "a man's home is his castle", which thereby became simply the Castle Doctrine. The term has been used in England to imply a person's absolute right to exclude anyone from their home, although this has always had restrictions, and since the late twentieth century bailiffs have also had increasing powers of entry.

The Castle Doctrine is not a license to kill

Minnesota man who killed teens in break-in charged with murder
By NBC News staff and wire services

A 64-year-old Minnesota man was charged Monday with murder for killing two teenagers who he said broke into his Little Falls home, shooting them in the head, the Minneapolis Star Tribune reported.

Byron David Smith was arrested after he told police he shot and killed two teenagers who he said were breaking into his home on Thanksgiving Day.

"If you're trying to shoot somebody and they laugh at you, you go again," Byron David Smith of Little Falls told investigators, according to a criminal complaint filed Monday.

Smith was charged with two counts of second-degree murder in the deaths of Haile Kifer, 18, and her cousin, Nicholas Brady, 17, both of Little Falls. The teens were shot on Thanksgiving Day, but their deaths weren't reported until Friday.

Brady has also used the name Schaeffel, which is his mother’s maiden name, at times for family reasons, according to the sheriff's office.

In the criminal complaint, Smith said he was in the basement of his remote home about 10 miles southwest of Little Falls when he heard a window breaking upstairs, followed by footsteps that eventually approached the basement stairwell. Fearful after several break-ins, according to the complaint, Smith said he fired when Brady came into view from the waist down.

After the teen fell down the stairs, Smith said he shot him in the face as he lay on the floor.
"I want him dead," the complaint quoted Smith telling an investigator.

Smith said he dragged Brady's body into his basement workshop, then sat back down on his chair, and after a few minutes Kifer began coming down the stairs. He said he shot her as soon as her hips appeared, and she fell down the steps.
Smith said he tried to shoot her again with his Mini 14 rifle, but that the gun jammed and Kifer laughed at him.

"Smith stated that it was not a very long laugh because she was already hurting," according to the complaint.
Smith said he then shot Kifer in the chest several times with a .22-caliber revolver, dragged her next to Brady, and with her still gasping for air, fired a shot under her chin "up into the cranium."
"Smith described it as 'a good clean finishing shot,'" according to the compliant, but also that he acknowledged he had fired "more shots than (he) needed to."

The following day he asked a neighbor to recommend a good lawyer, according to the complaint. He later asked his neighbor to call the police.

A prosecutor called Smith's reaction "appalling."
"Mr. Smith intentionally killed two teenagers in his home in a matter that goes well beyond self-defense," Morrison County Attorney Brian Middendorf said after Smith appeared at Morrison County District Court on Monday morning. Bail was set at $2 million.
Minnesota law allows a homeowner to use deadly force on an intruder if a reasonable person would fear they're in danger of harm. Smith told investigators he was afraid the intruders might have a weapon.

Smith's actions "sound like an execution" rather than legitimate self-defense, said David Pecchia, executive director of the Minnesota Chiefs of Police Association. Pecchia said his statements to investigators suggest he had eliminated any threat to his safety by wounding the cousins.

Smith's brother, Bruce Smith, told the Star Tribune of Minneapolis that the incident was the eighth burglary at Byron Smith's home in recent years.

The only report the Morrison County sheriff's office has for a break-in at the home was for one on Oct. 27. It shows Byron Smith reported losing cash and gold coins worth $9,200, plus two guns worth $200 each, photo equipment worth more than $3,000 and a ring worth $300.

Little Falls is about 100 miles northwest of Minneapolis.
Brady's sister, Crystal Schaeffel, told the Star Tribune that Kifer had broken into her home before. Little Falls police records show Crystal Schaeffel reported a theft Aug. 28, but the department said the report was not public because that investigation was continuing and because it named juveniles.

Tessa Ruth, an aunt of Brady, attended Smith's hearing. She told the Star Tribune she wished the man had fired a warning shot or alerted the police instead of shooting the teens.
"It wasn't right for them to be there and, yes, he had a right to defend himself. But to execute them like that..."

I have written it on this blog many times before, but some things bare repeating, so let’s hit the basics again – IMOP

For the use force to defend yourself to be justified the threat must be immediate.
In order to be an immediate threat, an individual must display (and you must be able to clearly articulate how you  knew) three (sometimes four) things:
  • Intent
  • Means
  • Opportunity
  • Preclusion (civilians)

Intent is the desire to do something bad, e.g. harm you, or a third party; break a law; or refuse to comply with a lawful order.

From the information available it is clear the cousins were breaking a law, but clearly showed no intent to harm Smith.

It seems that the cousins didn't even know Smith was even in the house. 

Why would an unarmed 18 year old girl walk down stairs if she knew her cousin had been killed and the man who just killed him was still down there waiting for her?

Remember self defense is an affirmative defense.  Meaning you are stating yes, I did kill these people, but it isn’t murder because…

Because it is an affirmative defense the burden of proof is on you.  So in regards to intent prosecutors may ask, “Are you a mind reader?  How could you possibly know what was going on in the mind of the deceased?”

We are very good at reading intent but many of us are very poor at articulating intent.  (Another reason why it is so important to include articulation exercises into your training).

You can’t read anyone’s mind but their actions (even very subtle ones)  will display their intent.  (Not unlike a tell in poker).

Did the cousins’ actions display any intent to harm Smith?  Would a reasonable person in the same circumstance shoot someone the moment they saw the potential threat’s legs as they walked down the stairs? 
In a self defense situation you have to ask yourself – Do I need to engage?

If you have time to ask the question you most likely don’t.  If you don’t have time to ask the question you better already be engaging.

When Smith heard the window break he had plenty of time to employ a multitude of other self defense strategies besides the use of lethal force.

If those strategies failed, it would show a clear intent on the part of the cousins to harm Smith.
Don’t read that last sentence as me suggesting to attempt a lower level of force than justified.  Rather reinforcing the need for all to understand what level of force is necessary and the ability to articulate why not only that the force you used was just but also why lower level of force wouldn't have worked.

Generally the level of resistance dictates or greatly influences the level of force appropriate, mirroring the “commensurate harms doctrine”.

If nothing but your feelings can get hurt, you cannot escalate it to pain. 

If no injury is offered, but there is a duty to act (or you cannot escape) and lower levels will not work, ‘commensurate harms’ allows pain, but not injury. 

If injury is offered, injury, but not death, is the answer.

If death is threatened, death is on the table.

Contrary to popular belief someone breaking into your house does not automatically justify lethal force.

A kid that comes home from college, has a couple of drinks and stumbles into the wrong house because all the houses in his parent’s subdivision basically look all the same is a world apart from MS13 kicking in your door to commit atrocities against you and your family heinous enough that they send a message to the entire area.

You will know the difference, we are very good at reading intent but many of us are very poor at articulating intent. 

The threat must have the ability to carry out intent.
A person threatening to shoot you must have a gun to be an immediate threat, for instance.

An unarmed teen aged girl at the top of the steps does not have the means to harm an armed adult man all the way down in the basement.

The threat must be able to reach you with the means.

If an Internet tough guy in a different country doesn’t like this blog and threatens to punch me, he clearly has no opportunity to do so even if he has the intent (threatened to punch me) and the means (because he is so tough)

Again, in both cases an unarmed person at the top of the steps does not have the opportunity to harm Smith all the way down in the basement.

Preclusion generally means if you don’t have to be there get out of there.  Before you use force you have to show that you attempted to leave (remove opportunity).  If the threat prevents you from leaving it helps make your case that the use of force was justified. 

The castle doctrine recognizes that someone does not have to leave their own house and has a right to stand their ground and defend themselves there.  So preclusion does not apply in this case. 

But as I stated earlier in this blog the castle doctrine is not a license to kill.

The use of force ends when the threat is no longer immediate.  The means and / or the opportunity no longer exist.

When Smith shot them and they fell down the stairs the cousins clearly no longer had the means to harm Smith.

Walking over to a threat laying on the ground, suffering from a gun shot wound.  Burying the muzzle of your gun under his jaw to deliver a “clean finishing shot”, “into the cranium” is not self defense.

"If you're trying to shoot somebody and they laugh at you, you go again,"  "Smith stated that it was not a very long laugh because she was already hurting," – That is not self defense.

 You also have an obligation to render aid.  You don’t have to start 1st aid yourself but you at least have to call the authorities so that help can be sent.

You sure as shit can’t just chill out for a day and a half with two corpses in you basement.

Obviously those kids shouldn’t have been in this guys house, but this whole incident could have been resolved so much easier.

It is a tragedy for all involved, and I am sorry for the families.

Castle doctrine is a sound principle.  I hope it’s misuse does not remove it’s protections from responsible citizens.

Knowledge of force laws will not cause you to freeze under pressure anymore than knowledge of traffic laws will cause you to freeze when you suddenly need to change lanes in traffic.

Make sure you know you local laws.

If you teach others to how use force you have an obligation to teach them when force is justified

Train hard, Train smart, Be safe

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