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. This is the first I’ve heard about Kaarma having marijauna at his house and maybe even being under the influence. Many (most? all?) stand your ground type laws require that you not be committing a crime (felony?) at the time of your use of deadly force. I’d have to review the Montana law, but Kaarma may not be able to use SYG/Castle Doctrine as a legal defense.

  2. I have to correct Prof Turley on the Horn case once again. While Horn cited the Castle doctrine law on the phone, he was flat out wrong since it did not apply. The law that did apply made Horn’s actions perfectly legal in every way. I even had a lawyer on this site agree that once he read the applicable statute, I and Horn were correct in the use of deadly force under Texas law.

    I also have to disagree that Horn was eager to kill which he clearly was NOT. In FACT, Horn went beyond the requirements of Texas law in trying to get the two illegals who were making their living as burglars to surrender. The law did not require Horn to confront them and demand that they stop. He could have simply shot them without a word being said. It was the crooks who thought that the stolen goods were worth risking their lives for. They must have thought that they were still in CA where such action would have put Horn in prison. There the law thinks that crooks should not have to fear deadly force when they are committing crimes. THAT is the REAL problem when the law gives crooks a bigger break than law abiding citizens. Since that Is the case in too many states, this is why such laws as stand your ground get passed.

    A word to my fellow Texans, the law only allows you to shoot if the crook still has the stolen goods in his possession. As Johnny Cochran would say, if he drops the loot, you cannot shoot! There was a good incident in Fort Worth where a 50 year old woman who had an Obama sign in her front yard drove home one night and saw three men in her house stealing her stuff. She stayed in her car and called the cops. While waiting for the cops, she saw the burglars coming out of her front door with her stuff. She pulled her pistol out, and killed the first crook with one shot, only wounded the second one who managed to limp away. She shot at and missed the third crook as he dove out a side window. I guess the crooks thought that an Obama sign meant that she is a liberal and would not or could not have a gun and shoot them. She shot them without warning, unlike Horn who gave them a chance to give up. As a long time liberal, I fully support the current Texas law, and I have a number of guns which I will be happy to use in similar cases should some crooks be so stupid as to hit my place.

    The real conflict is between those who feel that deadly force in defense of property is wrong, and those who think it is right. It would be more productive to debate this question than to use various incidents to use to buttress one side or the other.

    1. randyjet – I think if they are in the house in Arizona, their goose can be cooked.

  3. Simms – sounds like you’re right and these teenagers had a history of petty theft. He was not innocent.

    But I also agree that this was a case of lying in wait rather than defending himself against forcible entry.

    1. The police around here use ‘bait cars’ all the time. In NYC cops pretend to be sleeping drunks in the subway so people will rob them. What is the difference here. He did not put a gun to the kid’s head to make him go in his garage, and this seems to be a sport among some of the Missoula yutes.

      Waldo – they found marijuana in his house so they are doing drug tests to see if he was under the influence. I do not think you are required to be sober or straight (drug wise) to use the ‘castle defense’ in Montana. I am linking an op-ed from a Missoula paper on the subject which mentions he might have been under the influence.


  4. Justagirl, I can’t see you here w/o thinking of our buddy, idealist. I hope all is well w/ your family and those damn Swedes!

  5. Let me pick the jury for the defendant and I will predict an acquittal.

  6. What happened to my comment just posted? Am I getting screened? Ask me what day Christ was born and I will tell ya. Where is my comment?

    1. Al – a lot would depend on whether you picked the jury the day before or the day after payday. 🙂

  7. @Karen S “But a kid strolling into an open garage is a different thing.”

    This wasn’t just an impulsive act when the kid happened to notice an open garage door. The friend with him that night admitted they were, and had been on previous nights, “garage hopping.” http://www.reuters.com/article/2014/05/13/us-usa-montana-shooting-idUSBREA4C0QB20140513

    This doesn’t excuse Kaarma in the least, but as Dan noted, Dede wasn’t some innocent hapless kid in the wrong place at the wrong time like the Japanese kid who accidentally went to the wrong address. Kaarma left the safety of his home while his wife called 911. He could have waited for the police. This wasn’t some isolated Montana ranch. It was a college town with a police force.

  8. EC: The temptation an open garage may present to a stupid kid may not be an excuse for entering but it does indicate that the person entering may be doing so out of opportunity,and is likely to run away rather than use force if they hear noises indicating they have been discovered and are being observed, or see someone with a gun. An issue I see in these cases as well as police shooting cases is the gradual lessening of the burden on the person using force to show that the facts actually created a reasonable belief that force was necessary to avoid harm. We have gotten to the point that the possibility that someone could use force, no matter how small, has become a justification for the use of deadly force.

  9. Come on…. we all knew that some gun nut would WANT to shoot and kill somebody just to see what it felt like…..and this law GIVES them that reason and justification…. This is pretty sick in my opinion…..

  10. An open garage door is no more temptation for theft, than a woman is temptation for rape. Good riddance. One less scumbag.

  11. These goof balls screw up regular folks to possess guns lawfully.

  12. This one is a little more extensive if I remember. This guy actually shot them again and killed them after he had first shot and disabled them. I think the cops would have bought the first one, but killing them after shooting them is frowned on in Montana. You have to give them a sporting chance.

  13. Lrobby99: and thank the NRA, too. Behind a lot of these stand your ground bills and backs dems as well as republicans, albeit fewer of the former.

    agreed, a sick country. And how anyone can see this as reasonable belief that the use of force is necessary…reasonable?

  14. A friend of mine was attending medical school at the Univ of Chicago – at a time when the nearby neighborhood had seen some grizzly break-ins. Coming home late at night after working long hours he realized he didn’t have his door key and not wanting to awaken his wife, he tried to open a window. His wife had a gun next to the bed and came within seconds of shooting him, fortunately recognizing him in time.

  15. Criminals have no guarantee of their safety when they break into a stranger’s home. But a kid strolling into an open garage is a different thing. And if the report is correct, the shooter suspected it was “a kid.”

    This man would rather shoot a kid than close his garage and take reasonable precautions.

    You don’t park your car with the doors unlocked and your purse on your seat if you don’t want to be robbed.

  16. If there is a flaw in the law that allows this type of lying in wait, then it needs to be fixed.

    The point of castle laws is to protect one’s right to defend yourself against intruders without requiring you to retreat, or flee your house. It is my understanding that, without the castle law, you have to prove that you were in imminent danger of harm or murder, and that you could not escape. With a castle law, someone forcibly breaking into your home is enough of a reason to fear for your safety.

    In CA, we routinely have criminals sue homeowners for injuries they sustained during their crime.

    Obviously, we want enough protection for people to be able to protect themselves in their own homes, without shielding people who want to deliberately bait a trap and lie in wait. I recall the case of a man who did a similar thing with teenagers, and when he’d shot them, he continued to shoot them until they died, when by definition, he was in no fear for his own life.

    I am curious – can one of the lawyers on this site tell us if entering an open garage satisfies the requirements of a castle law? Wouldn’t it be considered almost like an attractive nuisance?

    Clearly we need to find the right balance between self defense and giving an opportunity for murder.

  17. From the accounts in the press, there is clear evidence of premeditation. If things have been reported accurately, I don’t see how he can escape conviction.

    But it is important to keep in mind that Dede isn’t innocent. The evidence is that he did intend to rob the garage. I don’t feel particular sympathy for him, although I recognize it is a tragedy for his family.

  18. A “Make my Day Law” actually exists. I feel sick which is far preferable to what Dede feels now. A similar case is in MN where 2 teenagers were deliberately gunned down and killed with a “clean kill shot” in the words of the homeowner.
    This is a sick, sick country and you can thank the Cons for this one.

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