A retired State Department employee has been indicted on two charges of first-degree murder in the latest case involving “castle doctrine” claims. There is little dispute that the two teens, Nicholas Brady, 17, and Haile Kifer, 18, broke in the Minnesota home of Byron Smith, 64, on Thanksgiving Day. Indeed, Brady may have broken into the home twice before. However, Smith’s shooting the unarmed teens and his actions captured on his own videotaping system led to the charges.
Smith was an expert in setting up security systems for embassies and that expertise could prove his undoing at the criminal trial. His own camera system captured his taunting the teens. The tapes show Smith telling Smith “you’re dead” after shooting him and then taunting Kifer and calling her a “bitch” while repeatedly shooting her. He then allegedly dragged the bodies to his workshop and left them until the next day when he called the police. Police report that he told them that he fired “more shots than I needed to” and fired “a good clean finishing shot” into Kifer’s head as she was gasping for air.
That is a bad record to take to a jury. However, he does have the Minnesota Caste Doctrine law:
609.065 JUSTIFIABLE TAKING OF LIFE.
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.
Notably, the law does not limit the use to a reasonable belief of a threat of great bodily harm or death but also “preventing the commission of a felony in the actor’s place of abode.” That would seem pretty sweeping. The teens were indeed in the progress of the commission of a felony. However, what does “necessary” mean if the teens were unarmed and Smith was armed?
Prosecutors say that Smith shot the teens multiple times as they walked down the stairs to his basement about 10 minutes apart. It will be difficult to prove that he clearly knew the teens were not unarmed unless the videotape shows the teens surrendering. Even under the common law, juries and judges would give a homeowner a considerable degree of deference. With a criminal charge, such uncertainty places directly into the question of reasonable doubt.
Notably, Minnesota’s Governor recently vetoed an expansion of the state’s Castle Doctrine law to extend its protections outside of the home to cars, motor homes, boats and even tents.
There was also an interesting increase in the charges. Smith was initially charged with second-degree murder but the grand jury required first-degree charges.
I have been a long critic of Castle Doctrine laws. The title refers to the old adage that “a man’s home is his castle,” which is not a common law doctrine of criminal law or torts but rather an aspirational statement. The Castle Doctrine is generally a reference to the modern trend of legislatively empowering homeowners to use lethal force solely on the basis of a home invasion.
Under the common law, there was not “fear of prosecution or civil action for acting in defense of themselves and others” so long as you acted in reasonable self-defense or even “reasonable mistaken self-defense.” In the case of Courvoisier v. Raymond, 23 Colo. 113 (1896), a man chased a group out of his home only to fire when a man approached him outside his home from the stone-throwing mob. It turned out to be a deputy sheriff but the court found that Courvoisier could rely on reasonable mistaken self-defense.
The common law has long offered ample protections even for reasonable mistakes. These laws are based on an urban legend that people are routinely prosecuted for defending their homes from intruders. The laws have produced perverse results as in the infamous case of Tom Horn in Texas. Yet, the popularity of these laws have spawned “Make My Day Better” laws that extend the privilege of lethal force to businesses and cars. Montana’s law had been invoked in workplace shootings. As with the Harper case, these cases raise the question of whether lethal force would have been used absent the law, which is criticized as enabling certain people in the use of force. In one case, a Texas man was acquitted after allegedly forcing teens to kneel before him before shooting one. The teens had stolen junk food in his trailer home.
This case raises many of these classic issues of where to draw the line in the use of lethal force. The law was written to allow the use of lethal force in response to felonies in the home. It could well come down to the meaning of “necessary.”
Source: Star Tribune as first seen on ABA Journal
The Carothers case indicates some duty to “retreat” before using lethal force.
Defendant Smith rettreated to his basement. Those committing the felony followed him.
After the first shooting the second person, 10 minutes later, rather than running also advanced toward Smith.
How could he know what caused the apparent lack of fear of the second person … a gun?
It takes something not normal to not leave the house immediately upon hearing gunshots from the basement where the home owner had retreated.
An aggressive move toward the home owner following that, 10 minutes later, makes me wonder what anyone would figure as the reason the second burgular was “coming after him.”
His crazed behavior after he shot the intruders may work to neutralize any benefits of the castle doctrine defense.
His crazed behavior after he shot the intruders may work to neutralize any benefits of the castle doctrine defense.
My question is still how many times was he allowed to shoot? Once, twice, or as in the NYC case of an unarmed man who posed no threat to the cops, 44 times? If one can legally kill a home invader, who has the incrdible guts to keep on coming after hearing gun shots, what is the problem if the homeowner shoots to make sure they are incapacitated, ie dead. One can reasonably assume the reason for this lack of fear would be that one or both were armed and/or on drugs.
“My question is still how many times was he allowed to shoot? Once, twice, or as in the NYC case of an unarmed man who posed no threat to the cops, 44 times?”
It seems to me the focus on ‘how many times…to shoot’ obscures the real issue.
I would argue that what is relevant is the reasonable assessment of threat.
Shooting someone to put them out of their misery, to me at least, is a clear indication of no threat.
Dragging some one to another area could, in concept, indicate threat, but in this particular circumstance does not.
To my mind, Smith shot after he clearly understood there was no further threat to himself or to his home.
My guess is that Smith’s words and actions will cause problems for him with the jury.
In my opinion, Smith’s words and actions ought to also cause problems for him as a point of law.
Here is a Minnesota case where 1st degree murder was included in the charges.
The defense put on an affirmative defense a la the Castle Doctrine.
The jury returned a 2nd degree murder verdict: (State v Carothers). I think the past history of the victim weighed on the jury.
The defense in this Byron Smith case has a steep climb to keep the verdict to 2nd degree murder.
Tony C,
I think this guy was clearly wrong…. He executed these children…. I also think that trying 17 year olds automatically as adults is wrong too… I’m speaking about some of the high school pranks that but for connections and age some would have felonys….
AY: If you ARE 17 and commit a crime, I shall say they will sentence you as an adult… In most states
At first I thought you misunderstood my post, since we were saying the same thing. However, the above line, while probable, is non apropos, the teen was not charged with a crime, and certainly was not deemed an adult by any branch of law enforcement.
As I said, such determination can be made, but it cannot be assumed, and certainly cannot be assumed by Byron Smith. He purposely killed an unarmed child lying on the floor after being shot twice.
Although I have certainly heard of minors being tried as adults, I have never heard of a minor victim being declared an adult postmortem. I do not know if Minnesota has any special law regarding the murder of a minor or not, but maybe they do.
Dog: But if we kill him for killing them then how do we square killing him with the Sixth Commandment: Thou Shalt Not Kill. ?
The Biblical commandments are not the law of the land, we do not have to square them with the personal faith of any citizens.
Our motivations are different. I would not put him to death if he had killed somebody in self-defense (which he clearly did not). Say somebody threatening him with a weapon of their own, or making a physical attack on him.
That wasn’t the case; nobody threatened his life. His response was wildly out of proportion to any loss he suffered or was threatened with. Ours would not be, he took two lives, and we punish him by taking one. If anything, we should take the rest of his property and turn it over to the families of the teens he killed; that would move the losses further toward balance.
Darren Smith How many shots are you allowed then? How long between shots do you get? I recall the NYC cops who shot down a guy on the steps of his apartment who was unarmed, and five cops put 44 rounds into him and were found to be justified. Using that as a standard, then it would appear that an untrained homeowner in his own home has more leeway than the police. You stated that the perps should be restrained, but I know very few homeowners who have a set of cuffs in their cupboard or on their person.
Looking at the statute, it would appear that the guy should get a pass since it states that you can use deadly force to prevent the commission of a felony in ones own abode.I don’t think any person could say that these two were not committing a felony. I think that if you think or somebody has tried to kill you, one can be excused for killing that person in return. A person alone has no means of securing the crooks unless they have a means of restraining them such as cuffs, or they can take the chance that one may recover and do more harm. So how much risk is the homeowner supposed to take?
After the “threat” was neutralized it became an execution.” -bigfatmike
On the heels of lottakatz, well and succinctly said.
But I’d still like to know what might have caused Byron Smith to “go over the edge”, as it were — not to excuse or justify what he did but, rather, to better see the whole picture, perhaps. Were there triggers beyond those about which we’re already aware (no pun intended)? Were there neighborhood, community and/or law enforcement issues that might have altered events? Certainly, these subcultures should hold up under scrutiny.
Looking for possible explanations isn’t an attempt to excuse what he did but, rather, a way of trying to prevent future tragedies. Operating in a vacuum never serves the greater good.
bigfatmike at 1:56 pm: “I can understand firing when there is a question of threat or, perhaps, escape.
But I find it difficult to accept that the law would allow executing someone when there is clear evidence that the person is not a threat and not a threat to complete the felony.” ….
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What bigfatmike said. After the “threat” was neutralized it became an execution.
The defendant will want to exclude the evidence of the video. I dont know if Minnesota is a state that adopts or mimics the Federal Rules of Evidence in civil and criminal trials. In any event, the very best trial evidence book has just been published by the National Insttitute of Trial Advocacy. It is: Objections At Trial, by Bright, Carlson, Imwinkelreid, Sixth Edition. For the trial lawyers out there this is The Gospel. If you Google: NITA and go to Publications then it will show up. This is a small pocket book with a spiral binder so that you can leave it open to the right page when you sit at counsel table and get ready for your objection or response. You can find it in your library in the federal district court near you.
Heaven help us, unless Ralph is joking, and even then . . .
Section 609.065 does not apply in this case:
609.065 JUSTIFIABLE TAKING OF LIFE.
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.
This law does not apply for two reasons: (1) The circumstances of the shootings can in no way support a conclusion that Smith reasonably believed that he was exposed to “great bodily harm or death; and (2) Smith was a retired State Department employee, not an “actor,” and this law only applies to actors, whether working on the stage, TV, movies, radio, Internet, or any media whatsoever. It is not clear if this law applies to retired actors or unemployed actors, but in any event, because Smith can in no way be deemed an actor, professional or otherwise, the law is irrelevant.
Minimal force to protect yourself? How about minimal DEADLY force when someone invades your home and you are protecting self and home? Home entails the kids sleeping upstairs, the dog sleeping in the tv room while Animal Planet is on the tube. The Castle Doctrine does not say “sort of kill em when they invade your home.”
People who invade homes should know that they can be killed. Period. No time off for good behavior.
If the parents of the two dead intruders have other kids under age 18, or living in their abode, then those kids should be removed from the home by the state and placed in foster care. Those parents, after the grieving, should be questioned about what they knew about their kids behavior. If indeed the two perps had commited crimes recently and mommy and daddy were letting them roam, then mommy and daddy should be charged with the crime of chlld endangerment.
Some commentors beleive it is appropriate for the state to seek the “death penalty” against this guy. That in raw language means to kill him. Kill him for killing them. That is cleaner language. But if we kill him for killing them then how do we square killing him with the Sixth Commandment: Thou Shalt Not Kill. ?
When our time comes and we are called before the Pearly Gates we are going to have to answer for our sins and transgressions. This guy will personally be closer to the killing than say the People of the Great State in which he lives who killed him by lethal injection. But, how will Saint Peter parse the difference? If I was a citizen of the Great State of Texas I think I would emigrate to a state that does not kill. There is no exception to the Sixth Commandment of Y’all Can.
Personally I think it was permissible to shoot the intruders. They invaded his home and he was under threat of death. Anyone whose home is invaded is under threat of death. He mocked them when he killed them. I did not see an exception in the Castle Doctrine which says that Y’all cant mock when defending the home.
Sounds cruel and unusual coming from man’s best friend. But we dogs live in homes too.
nick spinelli
1, April 26, 2013 at 1:34 pm
ap, People report burglaries to the cops unless there is a reason they don’t want the cops @ their house, or don’t want to report what was stolen, eg; drugs. “If you steal from a thief they can’t call the cops.
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also a good reason to wait a few hours before calling and reporting a shooting. gotta clean out the house.
I could see the shooting going either way until he finished off the two youngsters. Coup de grâce? Doesn’t hold water in the legal system here.
I wouldn’t go with the premetidation bit but I would hold there might be PC to arrest for second degree murder (2x).
Once they were down, he could have phoned the police and held them at gunpoint for his safety until they arrived and took charge. But instead he choose to blow them away. It is that act that bought him the murder charge in my book.
I’ve been in situations where I had to use force against people, once the other person is no longer threatening you, it is time to restrain them if possible so that they will not further harm you or anyone else and to no longer use force if they are not using force against you.
This is a situation where this guy should have looked at the worst case scenario and tried not go head in that direction. Once you cross that line, it is a huge big deal that can go on for years and result in worse harm to you than what the threat actually might have been.
Best to keep in mind. Minimal force to protect yourself.
In light of the fact that his last words to the decedents are going to be used against him, what happens to the person who pulls the switch on the electric chair in Texas when he says “Have a nice day” to the condemned shortly before killing him in the name of Y’all?
bustercherrydog:
do you know Phil Makraken?
A message went out to those who break into hearth and home. Be aware or be square.
If you think it wrong of one man to execute another person for merely commiting a crime in his presence then how do you reconcile The People of The Great State of Texas executing one man for any reason. Your collective objection to this guy’s shooting to death the intruders is his breaking of the Sixth Commandment. Thou shalt not kill. That is encripted into the criminal statute of every state. How that state deals with violators tells us how much the People of that particular state have any sense of Commands. Here is a guy who goes too far in defending hearth and home. He kills someone and now some of you want to kill him.
Y’all can. But he can’t.
Spot on Mike A.
This homeowner is dirty.