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.
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