On April 27, 2014, Markus Hendrik Kaarma shot and killed a 17 year old suspected burglar here in Missoula, Montana. Kaarma was charged with deliberate homicide, but is pleading not guilty and claims it was self-defense under Montana’s “Castle Doctrine” statute.
Read one of the early news reports and charging documents here.
The incident has made national, and even international news. Some stories are more about different “Stand Your Ground” and “Castle Doctrine” statutes, such as this article from The Christian Science Monitor: Stand your ground laws: Two cases may suggest limits to their protections.
The Christian Science Monitor article prompted my friend Marc MacYoung, who just finished a book on legal aspects of self-defense to post on e-mail lists and facebook. You can read Marc’s comments here.
I then responded with this:
I’ll share a few comments in regard to Marc, and then the Montana case since it happened just across town and I’m good friends with the hairdresser who told the police that they guy was making comments a few days earlier about shooting some kid. (I went to high school with the person and she still cuts my hair.)
First, I agree that there is a difference between stand your ground and castle doctrine laws, but not so much you have to worry about them being lumped together. When you look at five important principles in regards to a self-defense claim, they fall under the same principle – avoidance. So I don’t have as big a problem lumping them together some, and didn’t have as big a problem with the article as Marc did, because I guess I just expect that kind of reporting and ignorance from lay people. It was close enough, and that’s what they want. And I do agree with you that parts were, well…. Like comparing this case in Missoula with the Japanese kid who was killed at Halloween a few years ago? Yeah, right.
Anyway, the five principles I mention:
1. Innocence – Not in terms of “not guilty” but in terms of not being the aggressive party. You can’t start, forcibly sustain, or escalate a fight and call it self-defense.
2. Imminence – Immediate danger, etc. This is where Ability, Opportunity, and Jeopardy come in to help determine if you are within imminence window.
3. Proportionality – The force in self-defense cannot be greater than the force you are threatened with.
4. Avoidance – This is where duty to retreat come in. There are around 13 states that you have a duty to retreat before using deadly force. And then there are exceptions to this duty. Sometimes these exceptions are found in a castle doctrine statute that give an exception to retreating in your home, and some states have included curtilage, place of business, and occupied vehicles. (There are also exceptions to the castle doctrine statutes, and some states have adopted specific stand your ground statutes and castle doctrine statutes even though there isn’t a duty to retreat statute.)
5. Reasonableness – This can trump the other 4. (If you can show something of the other four was not reasonable.) Some states have a legal presumption of reasonableness, and others don’t.
Here is a cool little video I made of these five principles:
Kaarma , the guy who shot the high school kid here in Missoula, is going to try and use Montana’s Castle Doctrine statute as his defense. He will have the burden of production to produce evidence of self-defense. The burden of persuasion, to both prove the crime and disprove self-defense beyond a reasonable doubt, falls on the prosecution. (Except in Ohio, it’s different there.)
These are the statutes they will be working with in Montana. (45-3-103 is Montana’s “Castle Doctrine.”)
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.
45-3-110. No duty to summon help or flee. Except as provided in 45-3-105, a person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat or summon law enforcement assistance prior to using force. The provisions of this section apply to a person offering evidence of justifiable use of force under 45-3-102, 45-3-103, or 45-3-104.
45-3-105. Use of force by aggressor. The justification described in 45-3-102 through 45-3-104 is not available to a person who: (1) is attempting to commit, committing, or escaping after the commission of a forcible felony; or (2) purposely or knowingly provokes the use of force against the person, unless: (a) the force is so great that the person reasonably believes that the person is in imminent danger of death or serious bodily harm and that the person has exhausted every reasonable means to escape the danger other than the use of force that is likely to cause death or serious bodily harm to the assailant; or (b) in good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that the person desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
45-3-101. Definitions. (1) ‘Forcible felony’ means any felony which involves the use or threat of physical force or violence against any individual. (2) ‘Force likely to cause death or serious bodily harm’ within the meaning of this chapter indicates 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.”
45-2-101. General definitions. Unless otherwise specified in the statute, all words must be taken in the objective standard rather than in the subjective, and unless a different meaning plainly is required, the following definitions apply in this title: (47) “Occupied structure” means any building, vehicle, or other place suitable for human occupancy or night lodging of persons or for carrying on business, whether or not a person is actually present, including any outbuilding that is immediately adjacent to or in close proximity to an occupied structure and that is habitually used for personal use or employment. Each unit of a building consisting of two or more units separately secured or occupied is a separate occupied structure.
Conclusion
I think this will be very hard for the Defendant, Kaarma, and easier for the Prosecution based on what I’ve heard so far. If it is shown they did plant the purse as bait, I think that blows any claim of SD or defense of premises. It appears they created the necessity to use force, and that is similar to verbally provoking with the intent of using force against them when they respond to the provocation. That is not self-defense either. Also, I don’t think a forcible felony was happening. These kids that were going into garages (Yes – wrong! The kid should not have been there.) were not armed and never threatened physical force or violence against any individual. And this guy knew that because he’d had some stuff stolen before. These kids were wrong, but there were no cases of any physical force or violence. Wrong, but nothing deserving to be killed over. (As Marc said, can’t shoot someone over stuff. Statute says must involve threat of physical force or violence against an individual.)
Marc wondered about the garage, but reading the definition above, I believe the garage falls under occupied structure. I’ll have to find out if attached or not.
However, when you apply the Reasonable principle to everything, I think the shooter is up a crick without a paddle and is going to pay for it. You can’t bait people, you can’t shoot people over stuff, and it is going to be hard to show there was an imminent threat that was justifiable to meet with deadly force.
One thing I don’t like is all the people up in arms to do away with the above statutes. Let the case play out and let the law work. It might be an interesting case to follow.
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