Saturday, May 3, 2014

Someone Is Wrong On The Internet (Maybe)

First place I saw it was at Weer'd Beard's and the consensus was that murder had been committed.  Then I read about it at Say Uncle, who thinks there is no "castle doctrine" or maybe "stand your ground" claim involved.  And finally I read it again at Pagun Blog (properly titled Shall Not Be Questioned) Another "Castle Doctrine" Case That Isn't.

With so much authoritative assertion on display, imagine my reaction when I read the Montana Code Annotated.  Better yet, don't imagine, read for yourself:
Montana statute seems to specifically say it is a “no duty to retreat” case.  
See Montana Code Annotated Sections 45-3-102 Use of force in defense of person, 45-3-102 Use of force in defense of occupied structure, 45-3-110 No duty to summon help or flee.* 
The first statute says in pertinent part, “A person is justified in the use of force … to prevent the commission of a forcible felony.” 
The second section says in pertinent part, “A person is justified in the use of force … only if:  
     (a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault on 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.” 
And thirdly, 45-3-110 reads in pertinent part: “… 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 assistence prior to using force.”
Kaarma and Pflegger were in the structure lawfully. Dede (the dead criminal) was apparently in the commission of a home invasion (unlawful entry of an occupied structure, much more dangerous then a B&E) when Kaarma shot him. Kaarma went outside the still-occupied (by Ms.Pflegger) structure and engaged Dede with a firearm, resulting in Dede’s death. 
Montana law would seem to support a legitimate claim of self-defense with the added justification of no duty to retreat from a lawfully occupied “location or place”. I don’t find any requirement in Montana statute that property must be secured in order for the above to have force of law (those arguing that Kaarma and Pflegger “set a trap” must equally believe that cattle ranchers are also guilty because they don’t secure their livestock from tresspassers). 
If that isn’t a reasonable (and actually word-for-word explicit) description of SYG and the so-called “castle doctrine” (verbiage which never appears in any state’s pertinent legal code that I have discovered so far) both, then I think we will just have to agree that we disagree on the definition of “reasonable”. 
As to anyone’s guilt or innocence in this matter, that’s what trials are for, aren’t they? I also have to say that the defense declaring this to be a SYG/CD case seems quite reasonable to me given the statutes that apparently address this type of action in Montana. We’ll see. 
* Source: Self-Defense Laws of All 50 States.*
Quite aside from the widespread reluctance to call the BBC on their bald assertion that Kaarma fired without saying anything (and implying that Dede didn't either) - something not otherwise in evidence, I find the equally widespread ignorance on display by at least three well-respected gun bloggers as to the actual statutory meaning of "stand your ground" and "castle doctrine" in the Montana statutes to be the most disturbing aspect of this whole story.

I don't expect the BBC to get it right - I actually don't expect the BBC to honestly report the facts of this story whether or not they might support the pre-existing bias of that organization.  I do kinda expect at least as much effort to determine the actual facts of the law addressing this case as I made from those who seem willing to accept the mantle of "subject matter expert" that their respective blog reputations provide.  Everybody makes mistakes (and let me just say right now that IANAL and my reading of Montana statute could very easily be completely wrong), but the presumptive bias demonstrated in the reporting of all concerned takes the schaden right out of the freud, doesn't it?

Was this a legitimate case of self-defense or was it murder?  12 Montanans are going to have the duty to make that call, after being presented with all the facts (along with the evidence in support) and with a clear idea of what their states law has to say regarding killing someone in these specific circumstances.  A case to be followed without doubt and I hope we all do so as closely as our personal circumstance allows.

* A book I wholeheartedly recommend any gun owner own a copy of.


Bob S. said...

Personally, based only on media reports. I don't think it will end well for the homeowner.

There are a couple of key phrases
"only if
That set the stage and really sets the bar fairly high (which is why most absurd SYG claims fail).

Then we get into this
the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault on the person or another then in the occupied structure; or

The entry was made but is there any evidence to suggest that an assault was imminent? I haven't seen any.

(b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.”

With the garage door left open and the purse unattended; it would be hard to claim there was any 'forcible' felony in the offering. Just my opinion of course.

Will Brown said...

Hi Bob,

With very little of the actual evidence collected regarding events in Montana on display in the media, I think it sorta pointless to try to discuss the merits of the case. Once the evidence - and a better supported timeline of events - is made public, then we will have something to debate. Until then, it's all just speculation about someone else's speculation and unsupported assertion.

Which is kinda the main point of my post; there have been entirely too many people whose writing I respect (and their commentariat, whose opinions are their own) that seemed completely willing to pronounce an ultimate finding based upon essentially nothing more than personal supposition and the BBC (to the extent there is an actual distinction to be made there). I at least attempted to point out what I amateurishly (IANAL) believed to be the relevant Montana statutes that seemed to apply to the circumstances that had been reported. Which, not to belabor the point, apparently substantially refuted the assertions of others.

Early reports are always wrong, sometimes fundamentally so. Bias and ideology always color reporting on any controversial event. It just seems a more honest and less misleading practice to confine commentary to what can be independently ascertained and lucidly discussed by those with training, education and experience of the matter.

Adding to the confusion and feeding false expectations was what I objected to. I await the trial to learn about guilt and the discovered facts of the case.

Bob S. said...


I agree and that is why I limited my comments to the applicable law.
The evidence isn't in or could be wrong; looking at what laws applies helps evaluate the evidence as it comes out.

I also tend to wait and see what develops before I comment. Had been that way for a while but the Zimmerman case really sealed it for me.
I started to write about how he screwed the pooch but looking at more detail had me holding off writing...and learning more and more.