A Montana Court Decided Wednesday That A Citizen Did Not Have The Right To Kill An Intruder In His Garage - Read This Discussion of That Case and What It Means To Those Of Us Who Defend Our Homes With Firearms
By Scott T. Weber
Last Wednesday a landmark self-defense case was decided in Missoula, Montana that further defines just when one can use a firearm in defense of self or family while in their “castle”.
The facts of the shooting are this: Earlier this year a Missoula homeowner, Markus Kaarma and his family experienced two break-ins of his home. He and his family were on edge because of the crimes and Mr. Kaarma armed himself with a shotgun to protect himself and his family from further crime related to their home.
In April, Mr. Kaarma heard a disturbance in his garage. He armed himself with his shotgun and went to investigate. There he found a 17-year old boy in the garage area – without weapons - and Karrma shot four times killing the boy.
The 17-year old boy was a foreign exchange student whose host family lived down the block from Kaarma on Grant Creek Drive in Missoula. The student was attempting to steal alcohol from the garage – the door to the garage was slightly open and inviting to him.
Kaarma claimed self-defense and the “Castle Doctrine” defense, but was found last Wednesday guilty of deliberate homicide. In 2009 the Montana legislature passed a law that required the prosecution to prove someone claiming self-defense was GUILTY, instead of making the defendant prove innocence. Big difference legally.
A similar case might come to mind to those in the gun world: Back in 1992 in Baton Rouge, Louisiana, a family was in their home when they saw a figure come to the front door, ring the doorbell and then engage in an erratic behavior as he ran back to his car. The wife yelled out to her husband, “Get the gun!” When the armed head of the household opened the door, the oddly dressed figure rushed the door. The father yelled: “Freeze!” but the suspect advanced in what he determined was a threatening manner. When the suspect came within five feet, the man fired.
The dead “assailant” was, again, a foreign exchange student from Japan who not only had a language barrier, but in fact had mistaken the shooter’s home for a home several doors down that was hosting a Halloween party in which he was invited.
The shooter was acquitted of murder citing self-defense, but later convicted in a civil court proceeding. He had to pay the deceased student’s parents back in Japan over $650,000.
Should these two landmark “self-defense” cases serve as a chilling effect to those of us who carry concealed handguns every day of our lives? Should these cases have a chilling effect on those of us who keep firearms at ready in our homes for intruders? I say absolutely not. And here's why.
Here’s the BOTTOM LINE (and there is no other in this respect!): If you are going to use your firearm in the defense of your home (and let us restrict this discussion just to the “castle” defense) you MUST convince a jury of 12 peers that you were JUSTIFIED in wounding an intruder or killing an intruder IN your “castle”. Not your backyard, not your doorstep, not your barn or property. Locations matter.
You also have to prove your life was in eminent danger. Look at both of these cases in terms of criminal law: The first case mentioned – the Kaarma case – is a classic example of a person NOT being in eminent danger. The teenager was NOT armed. The teenager was NOT in the house per se. The teenager did NOT charge the homeowner. The teenager did NOT issue threats. The teenager did NOT pose a threat after the first shot hit him and was in fact immobilized after the first shot that hit him (he received three most shots). It is interesting to note that the homeowner felt “unsafe” and “threatened” due to previous resident breakins and the prosecution argued that he was “trigger happy” and prone to excessive violence.
Let’s now compare the Baton Rogue case of that teenager. The teenager from Japan was in a jolly mood and thought he was going to a party, so therefore behaving erratically. There was a language barrier, so he did not heed any warnings from the shooter. He CHARGED the homeowner behaving in this manner. The shooter in this case had great apprehension that he and his family were being threatened. The supposed assailant went through his warning. The shooter shot the boy once through the heart at five feet. Big difference in cases. The Baton Rogue shooter won in court, the Montana garage shooter did not.
What does this mean for those of us who keep firearms in our homes for protection? And many do in all states, but especially in Wyoming we keep firearms for home protection because of the long response time of law enforcement. Essentially we are “on our own” out here on the frontier. This is how it has always been.
If you have had any home defense course worth salt, you KNOW that there has to be a threat to the HOME itself. Garage, out-buildings, immediate property, vehicles, barns, etc. are a very IFFY property to defend with a firearm. I would say: DO NOT DO IT.
Example: If someone is riffling through your automobile in the middle of the night, the FIRST THING you would do is call the police. Then you would issue your warning that you ALWAYS HAVE MEMORIZED: “Leave immediately! The police have been called. I have a firearm and I will use it! Leave immediately!”
ALWAYS there must be a WARNING given. Always. All criminals are cowards and this is usually plenty to send anyone packing. But you NEVER fire into the dark and you never fire prior to this loud warning.
It is always better and looks good to law enforcement/the jury if you stay in the house and let the assailant come to YOU. For instance, if someone is prowling around outside, issue your warning through a window or through the wall. If they then attempt to breach a door or window and get inside, THEN YOU GET IT ON IMMEDIATELY. There’s not a jury in the world that would convict you. None.
You gave a warning, you called 911 and told them what was going on – this was recorded – and then you fired your firearm ONLY when your life or your loved ones’ lives were in eminent danger. A good case. Iron clad.
The “Castle Doctrine” means simply that anyone not invited in your home is intent on harming or killing you and you can react with violent force. Of course. This is common sense. However, the “Castle Doctrine”, as you saw in the Montana case fades quickly when two factors are present: The shooting did not occur in the immediate home and the shooter’s life was NOT in eminent danger.
Some homeowners – very versed in the law – take the “Castle Doctrine” must further and MAKE SURE should they ever shoot an intruder that the jury will see their side of the story. These homeowners install a “safe room” in which they can RETREAT when their alarm sounds or an intruder is detected. This safe room could be a highly secured room where there is a cell phone to call 911, firearms with ammunition, a camera monitor that allows viewing of the home, bullet proof vests, pepper spray and other security devices. Other prepared homeowners have a reinforced bedroom door that is locked every night – with firearms inside that space. Alarms are set so that any exterior doors or windows that are breached sounds, but the occupants can walk through the house at night without triggering motion sensors.
With a “safe room” you achieve a “gold star” with any jurors – even anti-gunners who somehow get seated on the jury. Now the homeowner has “retreated” and any use of force would be justified as the perp is solidly in the “castle” and a “threat”.
If there is not a safe room, a WARNING must be said prior to any shooting. Think about it: What if your son or daughter returned early from college exams and arrived home at 3 am to surprise you? What if your drunken next door neighbor mistook your apartment door for his and tried to kick the door in? What if your friend was playing a trick on you for your birthday and was prowling around outside or in your garage? What if a relative was sleep walking? There are LOTS of reasons for unauthorized persons to be in your home both during the day and night. A warning is essential. The jury had to KNOW you issued a warning and there was not a response. The jury has to know that you without a DOUBT felt your life was in danger.
Being so far away from town as many of us are in Wyoming, we have a good defense system for using our own violent force. Weather conditions often make it impossible for law enforcement to even reach us through impassible mountains roads, private roads and remote areas. We may or may not have phone service, but sometimes the only way into many residences is by snow cat or snowmobile. So we arm up. This is what our ancestors have done for decades and we will continue to do so. The jury would KNOW that law enforcement response could be HOURS to get into some of the ranches or mountain homes. Crimes are usually over in SECONDS.
Recently there was a column in the Cody Enterprise about this case and the author of that column then proposed to give his best choice for home defense: A Marlin .357 magnum cal. lever action carbine. Let’s discuss that choice and what really constitutes the IDEAL home defense weapon.
First, real life is NOT “Hollyweird”. In other words: The movies ain’t real. Bullets don’t just “find” the “bad guys”. Sometimes they find the “good guys” too. Period. Bear that last complete sentence in mind with the following discussion.
First rule of selecting a home defense weapon: It must be sufficient to stop an intruder who is bent on harming you or your loved ones, but it must NOT have penetrating power. So your souped up .40 caliber auto pistol is NOT a good candidate for HOME protection. No handgun is a good choice for home protection. This may be contrary to advice you have heard from gun shops or at the gun range. Why? Penetration means that you might shoot at an intruder and the bullet could easily go through a wall or partition and KILL YOUR LOVED ONES or it could exit your home and KILL SOMEONE ON THE STREET OR IN A NEXT DOOR RESIDENCE.
Rule One: You the shooter are strictly liable for every bullet you let loose. Example: Shoot a deer rifle at a perp and you may be in the right in doing so, but that bullet that passes through the perp and kills your neighbor, you will be CHARGED WITH MANSLAUGHTER or worse. Count on it. It is an absolute.
So the advice of the Cody Enterprise columnist must NOT be heeded. Period. Look at the history of the .357 magnum cartridge: It was developed for the FBI in 1935 and its adoption was for PENETRATION – it was needed to disable auto engine blocks of the time period and penetrate windshields. Put a .357 magnum revolver cartridge in a 16” or 18” rifle barrel and it gains in penetration considerably! Cutting loose with a .357 magnum carbine in a house is begging for trouble. In other words you could shoot at an intruder in the living room and KILL your wife or kids three rooms away!
Same with .223 cal. semi-auto military style carbines/rifles. These have incredible penetration with military bullets and your bullets could easily escape the structure of your home and end up MILES down the road or street killing people. These AR-15 and AK-47 style carbines are OFTEN sold as “home defense”, but are the worst choices. Period.
So what is the correct “home defense” weapon? As any security consultant will tell you it is this: A 12 ga. or 20 ga. pump action shotgun with a short barrel of 18” – 20” with cylinder choke and BIRD SHOT. Reread those last two words. Not 00 buckshot. Not deer slugs. But regular #4 or #5 bird shot – either lead or steel. Why?
First, a short-barrel shotgun loaded with bird shot does NOT overly penetrate unless held right to the wall (unlikely to happen, but the shot holds together for several feet and acts like a slug). A larger pattern can develop quickly with the cylinder choke and birdshot is deadly at CLOSE RANGE, but disperses quickly with distance and resistance like drywall, structure framing and glass.
Second, the “rack” of a pump action shotgun is something EVERY perp knows. So if someone is attempting to breach your door or window and you issue your warning and then loudly rack your shotgun in the still of the night, FOR 99% OF PERPS THAT MEANS “BEAT FEET” AND GET THE HELL OUT OF THERE. No one will come through the threat of a shotgun.
Third, a “long gun” – in this case a shotgun with an 18” barrel – is your best bet to score a hit in the dark on a perp. Rapid shots may be made with a pump or auto shotgun. Many of the more “tactical” shotguns have extension magazines raising the capacity to seven shotshells, bright lights (which are good to blind the assailant as well as light up rooms for inspection) and lasers.
Fourth, let’s discuss accessories for home defense. I have a red laser sight on all of my home defense weapons. Law enforcement has long used these red dot “projections” to prove to a perp that there is a gun on them. Any street trash KNOWS that a red dot on their body means a gun is on them. It causes them to flee immediately. One thing all perps do is watch lots of TV – either at the flophouse or in prison. Red dots are often used on the Silver Screen. So they KNOW what it means. So if there is someone prowling around outside your house or they refuse to leave your door, put that red dot on them. Game over – they will run and try another house.
I also like bright LIGHTS on a home defense weapon. These gun lights light up an entire room and can blind an assailant. They make a target recognizable. Again, they are used with your warning. The only disadvantage is once the assailant regains their eye sight, it betrays your position. Again, another great deterrent. When you scoop your weapon up in the middle of the night, everything is with it.
I also like shell “loops” on the stock of my home defense gun. Then when I get into action I have a loaded shotgun, extra shells on the stock, light, laser and sighting system all in one package. Seconds matter.
These two court cases will set precedents, be sure of that. If you have to use your home defense weapon, you need to use it INSIDE THE HOUSE after your warning, after you have called 911 and you are SURE OF YOUR TARGET and that the target represents a threat to your life of those you love and live with you.
And you better be able to convince a jury of the above.