Montana: 70 years for man who shot thief

[Charles L. Cotton]

Doesn't our castle doctrine already require "forcible entry" or something like that?

It does to get the presumption, but the right of self-defense or deadly force to defend property does not hinge on forcible entry. Even the presumption is available when trying to prevent the "imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery[,]" and neither location nor forcible entry are issues.

The other two elements of SB378 (2007) are not impacted by forcible entry or location elements; i.e. no retreat duty or immunity from civil liability. (Location can be an issue for the no retreat duty, but only if you are not legally present at the place where you used deadly force.)

Chas.

[Keith B]

Doesn't our castle doctrine already require "forcible entry" or something like that?

Texas Penal Code 9.32 says:

The actor's belief under Subsection (a)(2) that the
deadly force was immediately necessary as described by that
subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person
against whom the deadly force was used:
(A) unlawfully and with force entered, or was
attempting to enter unlawfully and with force, the actor's occupied
habitation, vehicle, or place of business or employment;

So, there are two issues. If your garage was standing wide open, then force would not be required to enter. Secondly, habitation is defined in 30.01

§ 30.01. DEFINITIONS. In this chapter:
(1) "Habitation" means a structure or vehicle that is
adapted for the overnight accommodation of persons, and includes:
(A) each separately secured or occupied portion
of the structure or vehicle; and
(B) each structure appurtenant to or connected
with the structure or vehicle.

So the garage would count as part of the habitation. Not 100% sure if 'appurtenant' in real estate law also includes detached garages, but no matter, force would still have to have been used to gain entry.

So, as Charles beat me to it, to get the presumption, then forcible entry must be included.

[mojo84]

Charles, do you agree with the verdict and sentence?

[jimlongley]

So what was the kid doing in his garage, a foreigner sightseeing?

Due to the fact that I was forced by my yankee carpetbagger parents to grow up in NY State, I was well acquainted with their laws. NY had a no traps law when I was a kid, but a similar case, in the 60s, where a homeowner whose barn had been raided by neighborhood kids several times, was ruled justified when he shot one after waiting up all night, in the barn, for several nights. Now the barn was not locked, and the doors were not left open, but he did sit up in there, and when the kids walked in, he warned them and all but the one he shot ran. The one he shot advanced toward him and appeared to have a weapon (it was a flashlight) but nobody argued that he set a trap.

And how many times have we read "Armed Citizen" tales of people sitting up all night to guard their homes and businesses? Are those also now to be defined as traps?

Jim, I don't think that's the same thing. In the case you describe the guy was being harassed by repeated breakins, so he chose to "stand guard" over his possessions. When someone broke in, he warned them, and they all ran away except one. That one he shot. That's clearly self defense.

In this case the guy deliberately made his garage an attractive nuisance and then laid in wait. But he still would have been OK if he had simply warned the guy to leave. Instead, he shot FOUR times with a shotgun. To my mind he wanted to kill someone. He wasn't trying to stop the theft. He was trying to take revenge for the previous thefts. That's not self defense.

My point exactly, maybe I wasn't clear enough, but it's just a small increment from laying in wait at a "set trap," and laying in wait at your home or business that has been hit numerous times, and how do you go about proving the difference while the overzealous prosecutor sets the scenario in the worst possible light?

If he did indeed set a trap, then maybe he deserves some punishment, but the thing that seems to be overlooked in everything I read is the reason he set the trap, and the fact that the trap was tripped.

I would also like to know how they determined what order the shots were fired. I don't know that it makes a difference. Was the criminal home invader injured by any of the other shots? Was he trying to leave the garage? And consider the spacing of the shots per other witnesses, it would have to be an awfully large garage to allow three shots, with a pause, and then a fourth if the criminal was departing. Were the first shots merely warning shots and only when the criminal had not retreated did he shoot to stop the threat.

Well, I think the order of the shots is probably determined by two factors; what the guy told them about what happened, and the fact that the last one would have been instantly fatal. (He shot him in the head with a shotgun. If you've ever seen a shotgun head shot , it's not survivable and you wouldn't be functioning almost instantly after being hit.)

Actually I have seen a couple,. one where the entire top of the head above the eye sockets was gone, the range was inches, and my US Navy shipmate Kenyon Tuthill survived a shotgun head shot May 27 1986, and the range was inches.

I think this draws a line just a little to the left of "castle doctrine" (for the lack of a better term) and if it gets used as a precedent nationally the line may increment to the right just a little too easily. I can imagine a Moms Against Defense type prosecutor deciding that the fact that I keep a variety of firearms about my home and person, in ready condition, must also be a trap and that I am just as determined to kill someone. Makes me glad that in every conversation I have ever had about self-defense, I have advocated stopping the threat, not killing it.

And just as I dislike the misuse of the term "Assault Rifle" I dislike "Shotgun Blast" which seems to ascribe magical powers to shotguns.

I think there's no question this could be used for precedent. It obviously already is being used in the Montana legislature. (What the heck does forcible entry mean???) We just have to fight against that. But, by defending this guy we would send a message that we think we should have carte blanche to shoot anyone who enters our domicile regardless of their behavior. If, for example, you catch someone inside your house, yell "Stop or I'll shot" and they immediately put up their hands, should you have the right to shoot them? I don't think that's what the castle doctrine means. I think it means that if that person represents a threat, you have the right to shoot. That's clearly been the case here in Texas, where a man was shot through the door, and the homeowner wasn't charged, and a man halfway into the house through a window is shot and the homeowner wasn't charged. Then there's the guy who pursued two burglars breaking in to his neighbor's house and shot them, and was no-billed.

In this case the "attractive nuisance" and "open" garage would probably not constitute forcible entry, but if they defeated a door lock or jimmied a window it would be. I don't think if I told someone "stop or I'll shoot" and they did, I would be justified in shooting, but if they stop stopping, I think I would be.

[C-dub]

The door was left partially open. Force would have been applied if he opened it further. However, if the deceased just slipped under without opening it any further then not.

[Gaidheal]

FYI, in Texas detached garages do NOT count as a habitation. However if it is connected, at all, like in many duplexes, it is considered part of the same building and thus habitation if that other building is your domicile.

In the Montana case, this bloke had it coming, I am afraid. The original burglary was apparently some beers stolen from a fridge/cooler and was believed to be local youths (possibly including the German), the homeowner's response was inappropriate. All he needed to do was report the crime, look at whether he needed to more securely store his property or make his premises more secure and certainly would have been reasonable to increase his caution and perhaps even spend some time surveilling it. Instead, he made widely reported comments about wanting to kill the people responsible and words to the effect of 'next time I will kill them' and then proceeded to lie in wait before shooting without any provocation beyond trespass.

Even in Texas, mere trespass is not sufficient grounds for killing someone or indeed use of force at all, you must contact law enforcement and they will remove the trespasser(s) if they remain until officers arrive. Threats, assault, etc are different issues but even his own account is clear that he was not threatened, in fact he did not even give the trespasser opportunity to leave or surrender, he simply shot him multiple times with a shotgun, finally in the head. That's premeditated murder, ambush, and various other terms that may or may not apply in Montana.

[EEllis]

Even in Texas, mere trespass is not sufficient grounds for killing someone or indeed use of force at all, you must contact law enforcement and they will remove the trespasser(s) if they remain until officers arrive.

You can legally use force to prevent or remedy trespass. Deadly force is only allowed when the trespass cant be recovered any other way and/or when the landowner would be at substantial risk of death or serious bodily injury if they didn't use deadly force. Not every place has quick police response so what is reasonable one location might not be when you live in town. Generally speaking I don't believe trespass is considered a "breach of the peace" and if that is all they are doing, trespassing I mean, then you can't do a citizens arrest. You can and, many do, physically remove someone who is trespassing. The legal concern is that the trespasser may have a different story not that removing a trespasser is somehow illegal.

[Gaidheal]

You're right, I was too sweeping with the term "use of force" but aye, trespass alone is definitely not a situation where you may use actual deadly force. I seem to recall a lawyer (from [Pre-paid legal service], in fact) advising that you could threaten to shoot (use of force) but not actually follow through on that threat. The recommendation was to not even do that, since you have backed yourself into a corner but rather wait for assistance. Of course, if it escalates beyond simple trespass into an attempted assault, well, different story.

[E.Marquez]

I just don't understand how this can happen in America. It goes to show that justice is not always the goal of our justice system.

Prosecutors argued Kaarma was intent on luring an intruder into his garage after it had had been burglarized at least once in the weeks before the shooting. Three witnesses testified they had heard Kaarma say he'd been waiting up nights to shoot an intruder.

On the night of the shooting, authorities said, Kaarma left his garage door partially open with a purse inside. He fired four shotgun blasts, pausing between the third and fourth shots, witnesses said.

If the above is true, I can see exactly how this verdict resulted.

[mojo84]

I just don't understand how this can happen in America. It goes to show that justice is not always the goal of our justice system.

Prosecutors argued Kaarma was intent on luring an intruder into his garage after it had had been burglarized at least once in the weeks before the shooting. Three witnesses testified they had heard Kaarma say he'd been waiting up nights to shoot an intruder.

On the night of the shooting, authorities said, Kaarma left his garage door partially open with a purse inside. He fired four shotgun blasts, pausing between the third and fourth shots, witnesses said.

If the above is true, I can see exactly how this verdict resulted.

I can too after getting more information. See my second post in the thread.

[VMI77]

If, for example, you catch someone inside your house, yell "Stop or I'll shot" and they immediately put up their hands, should you have the right to shoot them? I don't think that's what the castle doctrine means. I think it means that if that person represents a threat, you have the right to shoot. That's clearly been the case here in Texas, where a man was shot through the door, and the homeowner wasn't charged, and a man halfway into the house through a window is shot and the homeowner wasn't charged. Then there's the guy who pursued two burglars breaking in to his neighbor's house and shot them, and was no-billed.

I agree with most of what you wrote, but what I've put in red gives me pause. In the first place, saying stop or I'll shoot may not be a particularly smart move in the middle of the night when you have no idea if the guy you're confronting is in your house with accomplices. If he has an accomplice or two you've just put yourself in a bind. You'd better hope he's alone at that point or that he runs out the door because if he does stop you've got to deal with him not knowing who else you may have to deal with. I'm not saying you should shoot at this point, but that you'd shouldn't have warned him and his potential accomplices to start with, unless you were absolutely sure he was alone.

I'm also not saying you should necessarily shoot without a warning. You should identify the target before shooting anyone. It might be an unarmed neighbor kid for instance. It might be a friend or family member being stupid, or just being where you didn't expect them. But if a person is inside your home that doesn't belong there their mere presence represents a threat. You don't know if he's got a gun tucked in his belt, he's picked up a knife from your kitchen counter, or he's got a buddy or two around the corner.

So when in your mind does an intruder constitute a threat? If one guy busts through your door while you're watching television is he a threat if he doesn't appear to be armed? Do you shoot him or wait until his buddies come crashing through behind him? If he's advancing towards you, all 6'4" muscled up 250 lbs, telling you sorry, I thought this was my girlfriend's place? To me, anyone inside my home that isn't supposed to be there is an immediate threat. There has been a thread discussing the Tueller drill....would you wait until he rushes you and try to get a shot off then? Have you seen the video of the guy with his hands up, cops in front and behind him, who still tries to shoot the cop in front of him? Would you assume him putting his hands up is not a ploy? His hands are up and he's walking towards you...what then?

I agree that there are circumstances where you shouldn't shoot someone when it would perhaps be legal under the Castle Doctrine, but I also don't think an intruder inside your house putting his hands up necessarily means that there is no threat.

[baldeagle]

If, for example, you catch someone inside your house, yell "Stop or I'll shot" and they immediately put up their hands, should you have the right to shoot them? I don't think that's what the castle doctrine means. I think it means that if that person represents a threat, you have the right to shoot. That's clearly been the case here in Texas, where a man was shot through the door, and the homeowner wasn't charged, and a man halfway into the house through a window is shot and the homeowner wasn't charged. Then there's the guy who pursued two burglars breaking in to his neighbor's house and shot them, and was no-billed.

I agree with most of what you wrote, but what I've put in red gives me pause. In the first place, saying stop or I'll shoot may not be a particularly smart move in the middle of the night when you have no idea if the guy you're confronting is in your house with accomplices. If he has an accomplice or two you've just put yourself in a bind. You'd better hope he's alone at that point or that he runs out the door because if he does stop you've got to deal with him not knowing who else you may have to deal with. I'm not saying you should shoot at this point, but that you'd shouldn't have warned him and his potential accomplices to start with, unless you were absolutely sure he was alone.

I'm also not saying you should necessarily shoot without a warning. You should identify the target before shooting anyone. It might be an unarmed neighbor kid for instance. It might be a friend or family member being stupid, or just being where you didn't expect them. But if a person is inside your home that doesn't belong there their mere presence represents a threat. You don't know if he's got a gun tucked in his belt, he's picked up a knife from your kitchen counter, or he's got a buddy or two around the corner.

So when in your mind does an intruder constitute a threat? If one guy busts through your door while you're watching television is he a threat if he doesn't appear to be armed? Do you shoot him or wait until his buddies come crashing through behind him? If he's advancing towards you, all 6'4" muscled up 250 lbs, telling you sorry, I thought this was my girlfriend's place? To me, anyone inside my home that isn't supposed to be there is an immediate threat. There has been a thread discussing the Tueller drill....would you wait until he rushes you and try to get a shot off then? Have you seen the video of the guy with his hands up, cops in front and behind him, who still tries to shoot the cop in front of him? Would you assume him putting his hands up is not a ploy? His hands are up and he's walking towards you...what then?

I agree that there are circumstances where you shouldn't shoot someone when it would perhaps be legal under the Castle Doctrine, but I also don't think an intruder inside your house putting his hands up necessarily means that there is no threat.

A stranger in your house is not necessarily a threat. It takes action to create a threat. The mere action of entering your house without force does not constitute a threat. It could be a drunk neighbor. It could be someone who was being pursued and ran into your house to find safety. Being too quick on the draw can put you in a difficult situation that can cost a lot in lawyer's fees. The circumstances of each case determine the justifiability of the actions you take. If someone is breaking down your door, then by all means shoot. If someone runs into your house through your unlocked door and screams Help me! Help me! then you might want to consider aiming the gun at the door rather than the person who entered uninvited. (Wisdom would dictate keeping a safe distance from them and keeping them within your sight range, because it could be a ruse.)

There's just too many variables to make blanket statements about when it's justifiable to use deadly force and when it's not. (I'm not saying that's what you are doing here.) The use of deadly force requires careful consideration, well before the need arises, to ensure that you understand what's justifiable and what's not.

[C-dub]

A stranger in your house is not necessarily a threat. It takes action to create a threat. The mere action of entering your house without force does not constitute a threat. It could be a drunk neighbor. It could be someone who was being pursued and ran into your house to find safety. Being too quick on the draw can put you in a difficult situation that can cost a lot in lawyer's fees. The circumstances of each case determine the justifiability of the actions you take. If someone is breaking down your door, then by all means shoot. If someone runs into your house through your unlocked door and screams Help me! Help me! then you might want to consider aiming the gun at the door rather than the person who entered uninvited. (Wisdom would dictate keeping a safe distance from them and keeping them within your sight range, because it could be a ruse.)

There's just too many variables to make blanket statements about when it's justifiable to use deadly force and when it's not. (I'm not saying that's what you are doing here.) The use of deadly force requires careful consideration, well before the need arises, to ensure that you understand what's justifiable and what's not.

I think that unless it can be proven that the shooter/homeowner knew who the intruder was and/or set them up to be killed, which is basically what this guy did, it would be difficult to be found guilty in a situation like this. Unfortunately, for bad guys, but fortunately for good guys, I think the definition of forcible entry is pretty clear. Unless the entryway has no obstruction whatsoever, then force will always be required to enter. Even if a door is unlocked, force is still required to open that door. And while that drunk may have wandered into my house without any malicious intent, how am I to know that?

[Jumping Frog]

A stranger in your house is not necessarily a threat. It takes action to create a threat. The mere action of entering your house without force does not constitute a threat. It could be a drunk neighbor. It could be someone who was being pursued and ran into your house to find safety.

To use your language, entering without force, implies you left the front door open. The simple act of turning a door knob and opening the door is considered to be entering with force, so the only remaining question is the word "unlawfully".

Of course, we know that entering unlawfully and with force is presumed to be reasonable.

PC §9.32.(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

That said, there are certainly circumstances where I may be legally justified in using deadly force, but choosing not to do so would be a wiser choice.

[VMI77]

If, for example, you catch someone inside your house, yell "Stop or I'll shot" and they immediately put up their hands, should you have the right to shoot them? I don't think that's what the castle doctrine means. I think it means that if that person represents a threat, you have the right to shoot. That's clearly been the case here in Texas, where a man was shot through the door, and the homeowner wasn't charged, and a man halfway into the house through a window is shot and the homeowner wasn't charged. Then there's the guy who pursued two burglars breaking in to his neighbor's house and shot them, and was no-billed.

I agree with most of what you wrote, but what I've put in red gives me pause. In the first place, saying stop or I'll shoot may not be a particularly smart move in the middle of the night when you have no idea if the guy you're confronting is in your house with accomplices. If he has an accomplice or two you've just put yourself in a bind. You'd better hope he's alone at that point or that he runs out the door because if he does stop you've got to deal with him not knowing who else you may have to deal with. I'm not saying you should shoot at this point, but that you'd shouldn't have warned him and his potential accomplices to start with, unless you were absolutely sure he was alone.

I'm also not saying you should necessarily shoot without a warning. You should identify the target before shooting anyone. It might be an unarmed neighbor kid for instance. It might be a friend or family member being stupid, or just being where you didn't expect them. But if a person is inside your home that doesn't belong there their mere presence represents a threat. You don't know if he's got a gun tucked in his belt, he's picked up a knife from your kitchen counter, or he's got a buddy or two around the corner.

So when in your mind does an intruder constitute a threat? If one guy busts through your door while you're watching television is he a threat if he doesn't appear to be armed? Do you shoot him or wait until his buddies come crashing through behind him? If he's advancing towards you, all 6'4" muscled up 250 lbs, telling you sorry, I thought this was my girlfriend's place? To me, anyone inside my home that isn't supposed to be there is an immediate threat. There has been a thread discussing the Tueller drill....would you wait until he rushes you and try to get a shot off then? Have you seen the video of the guy with his hands up, cops in front and behind him, who still tries to shoot the cop in front of him? Would you assume him putting his hands up is not a ploy? His hands are up and he's walking towards you...what then?

I agree that there are circumstances where you shouldn't shoot someone when it would perhaps be legal under the Castle Doctrine, but I also don't think an intruder inside your house putting his hands up necessarily means that there is no threat.

A stranger in your house is not necessarily a threat. It takes action to create a threat. The mere action of entering your house without force does not constitute a threat. It could be a drunk neighbor. It could be someone who was being pursued and ran into your house to find safety. Being too quick on the draw can put you in a difficult situation that can cost a lot in lawyer's fees. The circumstances of each case determine the justifiability of the actions you take. If someone is breaking down your door, then by all means shoot. If someone runs into your house through your unlocked door and screams Help me! Help me! then you might want to consider aiming the gun at the door rather than the person who entered uninvited. (Wisdom would dictate keeping a safe distance from them and keeping them within your sight range, because it could be a ruse.)

There's just too many variables to make blanket statements about when it's justifiable to use deadly force and when it's not. (I'm not saying that's what you are doing here.) The use of deadly force requires careful consideration, well before the need arises, to ensure that you understand what's justifiable and what's not.

We both understand it could be a ruse. I don't have unlocked doors. I usually lock the door behind me even if I'm outside near the house and my wife is inside. In the three places I'm most likely to be inside I can monitor our security cameras. If I'm watching something on television all I have to do is flip over to another input to see what's going on outside. If I'm on my computer a separate monitor is showing the camera feeds. If I wake up in the middle of the night to barking dogs I grab the remote from the night stand and turn on the TV....and it comes up showing the camera feeds.

OTOH, because I'm way out in the country I don't have the luxury of keeping someone asking for help on my porch and waiting for the police. If someone is pounding on my door claiming to be in danger I'm going to have to decide whether it's a ruse or not and let them in if it isn't, because it is highly unlikely that police will arrive at my door any sooner than about 30 minutes after everything is over. On the plus side, it's also highly unlikely, given the particulars of my location, that the person pounding on my door will be stranger, and finding a neighbor there will make my decision much easier.