I was recently interviewed about the highly troubling case involving the killing of German exchange student Diren Dede (left) in a Montana garage. The shooter was Markus Kaarma who has been charged with deliberate homicide after he allegedly set up a trap for Debe with bait, motion cameras . . . and the state’s castle doctrine law.
Police say that the shooting was premeditated and unnecessary. Kaarma’s garage had been burgled twice because Kaarma and his long-time girlfriend (right) often left the door open to smoke. He had had enough and allegedly told his hairdresser that he was “waiting up nights to shoot some [f******] kid.” He installed motion detectors and a video monitor. He then reportedly left the door open with his wife’s purse inside. Within days, he had his pigeon. He saw Debe on the monitor and raked the dark garage with shotgun fire. Dede, 17, and Ecuadorian foreign exchange student Robby Pazmino were out walking in the Missoula neighborhood when Dede entered entered the garage looking for alcohol.
The Montana law reads:
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 the other person’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:
(a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon 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.
History: En. 94-3-103 by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, 94-3-103; amd. Sec. 1644, Ch. 56, L. 2009; amd. Sec. 4, Ch. 332, L. 2009.
As with many of these laws, Montana Castle Doctrine allows the use of force to “prevent or terminate the other person’s unlawful entry.”
We ironically last discussed the law in another case of an alleged set up involving a husband and the lover of his wife.
As many on this blog know, I have been a vocal critic (if not one of the most vocal critics) against Castle doctrines laws that are often related to SYG legislation. I have written extensively against the Castle Laws currently in place in a majority of states and the SYG laws that extend these laws outside of the home. My argument for years has been that these laws are not necessary and encourage people to use lethal force with often disastrous results.
The common law does not impose a duty to retreat. It preexisted the Stand Your Ground laws in most states — as was discussed in the George Zimmerman case. If it didn’t, hundreds of thousands of cases of self-defense would have had different results after people defended themselves rather than flee. Indeed, this is a point that I often made in opposing these laws: you already have the right to defend yourself and not to retreat. There are slight difference in the jury instruction among the states, including Florida, but the Zimmerman instructions reflected the general common law standard for self-defense and the justified use of force. If the President was referring to the no duty to retreat rule in his call for reform, he would have to change not the SYG laws but the common law in the majority of states. This has been a rule either through statute or common law for a long time. The change would require citizens to retreat or flee when attacked in most cases or lose the defense in the use of lethal force.
As I explained in my interview, the Kaarma case has remarkably close similarities to past controversies. Like the Tom Horn case, the shooter appeared eager to kill. It also bears similarities to the most notorious case involved the shooting of a Japanese student in Baton Rouge. The 16-year-old Japanese exchange student, Yoshihiro Hattori, was looking for a Halloween party and scared the wife of Rodney Peairs when he spoke a strange language and approached the house. Peairs shot him in the chest with a .44 Magnum handgun and was later cleared under a Make My Day law as mistaken defense of his home and self. It perhaps has the closest similarities to the earlier Montana case. All involved easily avoidable killings and two involved shooters who seemed empowered and enabled by the law.
One report says that Kaarma’s live-in girlfriend told neighbors that someone had previously stolen marijuana from the firefighter’s garage. Police Missoula police reportedly found a jar of marijuana in Mr Kaarma’s home the day he shot Dede and believe Kaarma ‘may have been impaired by alcohol, dangerous drugs, other drugs, intoxicating substances or a combination of the above, at the time of the incident.” They have taken blood samples pursuant to a court order.
In the end however the prosecutors are facing a law with sweeping protections, even in cases where there is an allegedly premeditated set up. He can still claim that regardless of any temptation created by him, he still had a reasonable belief “that the force is necessary to prevent the commission of a forcible felony in the occupied structure.” That is the problem of abandoning the long-standing common law rule — it removes elements of reasonableness and creates a sweeping immunity issue as the threshold and determinative question.
Source: Daily Mail