For most prosecutors, it would seem an easy criminal case. Daniel Lira, 32, was working inside Wal-Mart’s loading dock area when he got into an argument with co-worker Craig Schmidt, 49. He ended up hitting Schmidt in the face. Schmidt responded by pulling out a .25-caliber semiautomatic Beretta handgun and shooting Lira in the head from as little as 10 feet away. Yellowstone County Attorney Dennis Paxinos, however, released Schmidt in light of Montana’s “castle doctrine law” which allows citizens to use potentially lethal force in self-defense — despite the escalation in the level of force by Schmidt from a fist fight to a shooting.
The bullet did not kill Lira but grazed his head.
For years, legislators have been passing “castle doctrine” laws or “Make My Day laws” that allow homeowners to use lethal force against anyone who enters their home. While these laws have produced a wide range of controversial shootings (here and here and here and here and here and here), legislators have continued to expand their scope to businesses, cars, and other areas while also expanding the right to carry concealed weapons into churches, bars, schools, school games and workplaces.
Some of these laws are called “Make My Day Better laws,” which allow the use of lethal force outside of the home to repel criminals. Montana’s law has sweeping language to protect the “natural right” to use lethal force.
Montana has various laws authorizing the use of lethal force with few limitations. This year, legislators expanded the law. They expressed great love for the prior Castle Doctrine law, they simply wanted to get rid of the castle part. As State Representative Krayton Kerns (R-Laurel) explained in one news report, “The ‘castle doctrine’ only applied to an occupied structure, one tiny little place, (but) what if you’re not in an occupied structure? What if you’re out in an alfalfa field? What if you’re walking down the street with your wife, your kids and your dog? It’s too restrictive to have it just be the ‘castle doctrine’. You are the castle. Wherever you go, your right to self defense goes with you.” The new Alfalfa Field law leaves the lethal force while dumping the castle. The legislation endorsed the use of lethal force to protect the “lives and liberties” of Montanans. It included the following provision:
Section 1. 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.
Note the reference to any “bodily injury.” The legislature went further to put a shot across the bow of prosecutors:
Section 3. Investigation of alleged offense involving claim of justifiable use of force. When an investigation is conducted by a peace officer of an incident that appears to have or is alleged to have involved justifiable use of force, the investigation must be conducted so as to disclose all evidence, including testimony concerning the alleged offense and that might support the apparent or alleged justifiable use of force.
Moreover, in the defense of a dwelling, the legislature removed references to the use of lethal force to stop a violent intruder as opposed to any intruder:
“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 such the other’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:
(1)(a) the entry is made or attempted and the person reasonably believes that such the force is necessary to prevent an assault upon the person or another then in the occupied structure; or
(2)(b) the person reasonably believes that such the force is necessary to prevent the commission of a forcible felony in the occupied structure.”
Notably, both criminal law and torts protected people in the use of lethal force when threatened with force that could cause serious bodily injury or death. What the criminal and common law did not allow was the escalation of force or killing people to protect property.
The case will now force a review of the new law. One argument that Schmidt is likely to make is that his age and size (Schmidt weighs 150 pounds as opposed to the 300 pound Lira) created a reasonable fear of serious bodily injury.
For the full story, click here.
YEAH, like all those restraining orders have ever helped anyone. Thank God we still have rights in Montana. The aggressors who attack others here will hopefully be repealed with what ever force is needed and before they can make a victim out of the peaceful. In other states, woman have to wait to be raped, abused and murdered before the police will act. Here, she gets to protect herself. If you do not like our gun laws move to LA or Chicago where the gangs have the guns and you tax dollars go to protect the elitist political leaders with guns and training that you and I will never be able to afford.
OR NOT!
MORE:
http://billingsgazette.com/news/local/crime-and-courts/article_04bd7b30-8889-11de-9c6e-001cc4c03286.html
Evidently there was a history of the victim terrorizing the shooter for some time at the workplace. I live in Billings
I just reread Jonathan Turley’s post above. I was sure that I’d read it wrong the first time, so I hadn’t put it in my comments. It’s his comment on Section 3 in the law.
No, Professor, that’s not a “shot across the bow of prosecutors.” It’s an insistence, in the statute, that the obligation of the police include finding out if the “…evidence . . . might support the … use of force.” It’s a command that the police not simply rush to judgment, but before trying to get a guy charged, find out if there’s evidence that what he did was actually a crime.
I’ve read a lot of criminal defense attorneys writing about the wrong of the police rushing to judgment — and I’m shocked, shocked that a fine, upstanding defender of civil liberties like Jonathan Turley should be opposed to a law that at least tries to limit that.
So the prosecutor declined to prosecute a case where you think he should have. That may actually be okay. Or it may not. From your account of the story, it is possible that:
a: Lira punched Schmidt in the face, doing him little harm and then backed off — apparently not very far — at which point Schmidt shot him once to punish him for the punch, or
b: Lira, after an argument in which he threatened to kill Schmidt, punched Schmidt in the face and started to move toward him to carry out the threat. Lira weighs 250 pounds and has fists the size of small hams; Schmidt, who is recovering from heart surgery, is on coumadin and reasonably feared that the much larger man — who had just threatned to kill him, and committed a violent act in demonstration of that — fired one shot, which barely hit Lira.
Now, I don’t know whether either of those two scenarios is the case, or whether the actual issues are something else, and I’m going to hazard a guess that you don’t, either, Professor Turley. But what you’re willing to do is dismiss this as “the escalation in the level of force by Schmidt from a fist fight to a shooting.”
Maybe. Maybe it was just an innocent little fist fight in which nobody could reasonably fear being crippled or killed. (Me, I find such activities far too exciting, and prefer tamer entertainment, so I don’t know much about them.) Until Schmidt ruined the festivities by getting all shooty. Or maybe it wasn’t. I dunno, and you dunno either.
As to your oversimplification of the change in carry laws, it’s just that. It’s a lot more complex — in Minnesota, for example, our own carry reform bill (which changed Minnesota from a “may issue” to a “shall issue” state) actually restricted places where guns can be carried by permit holders. (I’m one of the permit holders, and was before the change. Before the change, I could carry in my kids’ schools; now, absent written permission from the principal, I can’t.) — but, yes, in a lot of states (including mine) it’s lawful to carry in bars, workplaces (a very few exceptions aside), churches, and such.
Well “Just Shoot me, I work at Wal-mart.” New employee manual.
Can I be shot as an employee of Wal-Mart and keep my status as an employee?
The answer is yes, while Wal-Mart does everything humanely possible to hire the best employees for the job, we realize that there are just some people who would be better suited else where and we encourage them to go. You may carry a gun and only shoot a co-worker but never management. (If management is shot see Employee Section 88 for how to deal with management.)
If you shoot a coworker on a regularly scheduled day to work and you are not at your designated work site you will not be compensated. If you length of absence for this shooting and it last for more than three day, you will be considered to have abandoned you duties and subject to the rehire pre-employment qualifications. Remember that just because you were on company time when the shooting occurred it was not a company sponsored or sanctioned event.
I hope this answers your questions as to whether you may shoot a coworker.
The above was only meant as humor. I just can’t believe this story.
I’m tempted to take the stance that the commission of warcrimes should be considered “the commission of a forcible felony”. If that were the case then would we not be “justified in the use of force likely to cause death or serious bodily harm” to prevent such action?
Well, in Montana at least.
“said Gary Marbut of the Montana Shooting Sports Association, who crafted the bill.”
Personally I can think of nobody better suited for writing legislation than somebody who represents a gun-owner lobby. Should they be consulted, absolutely. Should they be allowed to craft the bill? No. As far as I can tell nobody elected the MSSA to office.
Feel free to extend that to any local or national issue you want. Healthcare, Banking reform, or any of the numerous and nonsensical liquor laws around this country.
A couple points. First, all the police did was release the guy from custody. So what. There’s nothing in the article about dropping charges or not pursuing charges. In fact, the article seems to make clear that the case is being investigated and the potential for charges still exist.
As for Yellowstone County Attorney Dennis Paxinos, who whines that he has to do an investigation while the potential accused is not in jail–suck it up, grow a set, and do your job. If the only way you can get convictions is by locking your suspect up first and doing the investigation later, you’re in the wrong business.
I fail to see how a statutory requirement that criminal investigations collect both inculpatory and exculpatory evidence can possibly be described as a “shot across the bow of prosecutors.” Shame on any prosecutor or law enforcement agency that fails to conduct a thorough and impartial investagation. The goal of a prosecutor, after all, is not to secure convictions but to ensure justice is done. Furthermore, an “inculpatory evidence only” investigation looks bad under cross examination at trial.
Well that’s not over broad at all.
Nice definition, Montana Legislature. Good to see the people of the Big Sky state get the same quality law makers as the rest of the nation.