Justified Homicide Or Just Bad Kaarma? Montana Man Accused Of Laying Trap In Killing German Exchange Student

article-2626808-1DCE739600000578-307_306x600I 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.

article-2626808-1DCE739E00000578-168_634x603Police 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

106 thoughts on “Justified Homicide Or Just Bad Kaarma? Montana Man Accused Of Laying Trap In Killing German Exchange Student

  1. Wait a minute, hold on a second. The shooter had a hairdresser!? Look at him – . Anybody else find that troubling?

    • rafflaw – you have to learn the magic words

      I was in fear for my life.

      Every cop knows this by heart, if he doesn’t learn it at the academy either his training officer or the union drills it in to them.

  2. Paul Schulte,
    Defending property doesn’t look like unlocked doors and windows, open garages and purses in eye sight. If you consider that “securing one’s property” I’d hate to hear what you call unsecured property.

  3. The police create traps like this all the time and then if need be kill those who come into them. If under the same set of circumstances the police would not be charged with anything had it been them who shot the kid, how can it be justified to charge the homeowner for doing exactly what the police do every day?

    • Tom,I know of no police dept where the cops have the right to shoot suspects on sight. You contention is absurd. The whole point of police is to bring people to court, NOT to execute them. Now in a dictatorship, the idea of a court is moot, so shooting people just because is quite appropriate. You might want to consider a change of country if you feel that is good policing. The rest of us do not.

  4. Was the house attached to the garage? If I was defending the case I would take a video of the walk from the door where the perp penetrated, to the side door to the kitchen, to the hall, to the bedroom. It would talk about as long as the yawn from juror number one in the front row when the prosecutor says our guy had no right to shoot the perp.

  5. Max-1 – I think the case is iffy, but I think he has a better than even chance of beating the charges given all the givens. Personally, I would have stopped with the cameras, but I clearly am not the shooter.

    • pete – it is my understanding after being both accused of threadjacking and accusing others of threadjacking, that the crime does not exist. One of the things I like about the Turley threads is that they ebb and flow like a real conversation. I have learned over time that you do not have to answer questions put to you and should not expect answers to questions that you put to others. If you want to have a conversation about black market horse meat I personally am not offended.

  6. Tom: “The police create traps like this all the time and then if need be kill those who come into them…

    “if need be”
    Can give examples of when a need to kill people would arise?
    Did any of those arise in this case?
    Can you supply links to cases where police have set traps like this and ended up killing?

    If anyone sets up a situation where the inevitable result will be a death, they are engaged in a premeditated killing.
    This guy set himself up as judge, jury and executioner of a petty thief.

    He had other options.
    He could have secured his property against opportunistic thieves.
    His CCTV could have been used to ID the person.
    Given that he had a prepared trap in his garage, he could have arranged net/barrier/obstacles that would stop an intruder from getting to him after being challenged.

    He could have set up a physical trap – think “Home alone”. This one could be problematical if the person was injured.
    Is it not insane? Execute a human being and you walk free. Inflict some minor damage/discomfort in the same circumstances and you could be in trouble.
    Any legal system that would support such insanity is not fit for purpose.

    • Sling – in most states, MT may be one, set up a human trap is illegal. And just for reference, ‘Home Alone’ was fiction.

  7. in most states, MT may be one, set up a human trap is illegal

    Yet this is what the guy did in this case. He set up a trap for a human.
    He left the door open – with the purse on view as added bait.

    Could it possibly be that shooting the prey dead is legal whereas trapping him alive in a net or cage is illegal?
    That would be totally insane. It should be fiction.

  8. @Karen S, for information about what you can do regarding the awful sentence rendered to the Sudanese Christian woman please go to http://www.aiusa.org
    Personally this demonstrates once again the horrendous inhumane actions at the hands of religious extremists.

  9. was not aware that sick-inadequate-pervert was a crime in Montana.
    It’s quite probable that *being* a sick-inadequate-pervert is not illegal.
    Some might say that it is a sacred God-given right to be so. Constitution and all that!

    *Behaving* like a sick-inadequate-pervert is an entirely different matter.

    • Sling – acting like a sick-inadequate-pervert would have to be codified before it became illegal to act like one.

  10. All of this discussion about the castle doctrine is misplaced. As I read the statute, Kaarman cannot rely on the castle doctrine because there is no reason to believe Dede intended to assault anyone or commit a forcible felony upon entry. Unless Montana defines forcible felony to include theft of an unattended bottle of liquor or underage drinking, this ain’t no castle doctrine case. Kaarman would, under the Montana statute, be permitted to use non-deadly force only. I think Kaarman will be found guilty, although, I agree, there is no sympathy to be had for Dede. This case presents no reason to gripe about the castle doctrine.

  11. The name does not sound German and the face looks Italian or Spanish. From where does the thief actually hail? I don’t usually think of a German student being a garage prowler. Walk into a garage in Montana and expect to get shot. Someone should have loaned him the vest which is discussed in a later topic on the blog here.

    • Al – since the aforementioned vest appears to have been defective, loaning it to our dead foreign exchange student would not have changed anything.

  12. Two points:

    1) why isn’t the shooter’s wife, Janelle Pflager being charged as an accomplice?

    2) German Consul Peter Rosen putting the Montana Governor and prosecutors on notice that he expects that the law will be fully applied and he trusts that:

    “justice will be done by not letting go unpunished the shooting of an unarmed juvenile … German penal law also applies for crimes committed against German nationals abroad, enabling German state prosecutors to open investigations in such cases.”

    If Kaarma gets off via castle doctrine defense, it will be interesting to see how/if the German Consul’s thinly veiled threat to try Kaarma in Germany plays out.

    • I think if the US can go after those who harm or kill US citizens abroad, then it is perfectly fine for the Germans to do the same for Kaarma. The Germans should put in their bid soon before the jury may free this killer.

    • JC – I think if Kaarma is found not guilty, double jeopardy would apply to any German law. However, I think it is out of line for Germany to threaten the Governor of Montana, who really has no part in any of this. And knowing Montanans, I am sure they are literally quaking in their boots over this threat.

  13. @ Al Zheimers: Dede was not a thief, he was a trespasser, who if not killed by Kaarma may or may not have burgled. His family were Turkish immigrants to Germany.

  14. I think Montana should reconsider accepting Turkish students who attend German universities and apply to prowl garages in Montana.

  15. Ok, we can take isolated fringe cases that are heavily reported like these nutjobs here who clearly misunderstood the castle doctrine law as some sort of pseudo-hunting license without having the legal cojones or indeed probably the legal capacity to understand the specific nuance of the Law even if he had a copy stapled to the back of the door leading to the garage for his immediate review before the shooting.

    These are the lunatic fringe. Their misinterpretation of the law and the very sad, but isolated any very thankfully (in a country with more than 300 million souls within its borders) rare, though every case receives national attention by those who fear the castle doctrine laws.

    Those who TRULY fear the castle doctrine laws and want to see them overturned are not the gun hating progressives and liberals (though they do and do), those who try fear it are those who make a twisted living breaking into other people’s homes – some by stealth (burglary), some by force (robbery & home invasions). Google or search any all town rural or big city major metropolitan newspaper for “home invasion” “home robbery” “burglary” and just watch the hundreds of results scroll by – even if you look for just one month of data!
    Not some single isolated kid killed by a nutjob in Montana that should go to jail for his laying in wait, and MOST DISTURBING HIS RAKING OF THE GARAGE WITH 12Guage 00
    Buckshot pellets 9×32 caliber pellets per shot traveling between 1200 & 1600 fps x at least 5 maybe 7 shots spread over the garage across an open garage door in a residential neighborhood. It’s like spraying 63 shots from an 8″ .32cal revolver into the neighborhood
    And just praying nobody else in the neighborhood gets shot.

    That alone demonstrates a reckless and wanton disregard for life, a basic negligence that only sets the stage for his depraved indifference homicide.

    But this guy isn’t Everyman and he isn’t acting reasonably

    It is unfair to judge the value of the law because he does not understand it and takes a wrongful action because of that mistake. He deserves to be punished.

    However – those who really fear this law are those who would victimize us in our homes. It creates a climate of fear, uncertainty and doubt. They must fear the armed homeowner – or even his mere possibility. They must plan and act accordingly. These laws specifically reduce and/or deter those violent home invasions that are the most feared and most damaging of all home crimes.

    Eliminating them would allow criminals to think homeowners won’t shoot, will hesitate. (A fatal mistake at my home, regardless of any law). They may attack the homeowner instead of flee.

    By deterring some of the most vile, vicious, and feared violent
    Crime we have these laws serve a valuable purpose and should not be taken away. Instead those who misapply the thoughts behind the law should be prosecuted

  16. Reblogged this on veritasusa and commented:
    Ok, we can take isolated fringe cases that are heavily reported like these nutjobs here who clearly misunderstood the castle doctrine law as some sort of pseudo-hunting license without having the legal cojones or indeed probably the legal capacity to understand the specific nuance of the Law even if he had a copy stapled to the back of the door leading to the garage for his immediate review before the shooting.
    These are the lunatic fringe. Their misinterpretation of the law and the very sad, but isolated any very thankfully (in a country with more than 300 million souls within its borders) rare, though every case receives national attention by those who fear the castle doctrine laws.
    Those who TRULY fear the castle doctrine laws and want to see them overturned are not the gun hating progressives and liberals (though they do and do), those who try fear it are those who make a twisted living breaking into other people’s homes – some by stealth (burglary), some by force (robbery & home invasions). Google or search any all town rural or big city major metropolitan newspaper for “home invasion” “home robbery” “burglary” and just watch the hundreds of results scroll by – even if you look for just one month of data!
    Not some single isolated kid killed by a nutjob in Montana that should go to jail for his laying in wait, and MOST DISTURBING HIS RAKING OF THE GARAGE WITH 12Guage 00
    Buckshot pellets 9×32 caliber pellets per shot traveling between 1200 & 1600 fps x at least 5 maybe 7 shots spread over the garage across an open garage door in a residential neighborhood. It’s like spraying 63 shots from an 8″ .32cal revolver into the neighborhood
    And just praying nobody else in the neighborhood gets shot.
    That alone demonstrates a reckless and wanton disregard for life, a basic negligence that only sets the stage for his depraved indifference homicide.
    But this guy isn’t Everyman and he isn’t acting reasonably
    It is unfair to judge the value of the law because he does not understand it and takes a wrongful action because of that mistake. He deserves to be punished.
    However – those who really fear this law are those who would victimize us in our homes. It creates a climate of fear, uncertainty and doubt. They must fear the armed homeowner – or even his mere possibility. They must plan and act accordingly. These laws specifically reduce and/or deter those violent home invasions that are the most feared and most damaging of all home crimes.
    Eliminating them would allow criminals to think homeowners won’t shoot, will hesitate. (A fatal mistake at my home, regardless of any law). They may attack the homeowner instead of flee.
    By deterring some of the most vile, vicious, and feared violent
    Crime we have these laws serve a valuable purpose and should not be taken away. Instead those who misapply the thoughts behind the law should be prosecuted

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