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
OK, here are two:
http://www.animalrecoverymission.org/operations/illegal-horse-slaughter/
http://www.myfoxtampabay.com/story/18772367/investigator-horses-being-slaughtered-on-hillsborough-county-farms
Just GOOGLE “black market horse meat”.
Pete – here’s one from 2013. I could find more but don’t want to turn the post too much more than I already have!
http://www.examiner.com/article/miami-horse-stolen-from-stall-and-slaughtered-while-her-colt-looks-on
For those who have not been following the courts lately, the Ninth Circuit just reauthorized the roundup and slaughter of mustangs in the Western states.
Pete – it’s been going on for years, and FL is where it’s most common. At least where the horse’s butchered remains have been found. Throughout the US, thieves steal horses and either sell them as riding or breeding stock, or to slaughter. There is a website called netposse.com that is a common alert for stolen horses. Although the slaughter houses have been temporarily closed in the US, they still operate in Canada and Mexico, and there are still lots of kill buyers at the auctions. Which is where stolen horses can end up.
Thanks, Darren, both for clarifying robbery/theft/burglary, and for the article.
karen s@2:54p.m.
do you have a link to what you describe as
“There have been grizzly killings of horses around the US as part of an underground horse meat ring.”
the only articles i can find on this subject are 4 1/2’s y/o and only in south florida
thanks
I wonder if there is a problem with the common law ‘no duty to retreat’ defense as opposed to the SYG and Castle doctrines, in that the former would require the culprit to have entered the structure before there was a threat which would support the common law defense? If that is true, then the Castle doctrine permits the homeowner to take offensive (shooting) action before the would-be intruder intrudes. If that is true, I would much rather keep the intruder out than attempt to chase him out. If my original proposition is untrue, then never mind.
Karen.
This weekend one of us will write an article on the death sentence of the woman in Africa you mentioned.
Karen:
The legal definitions of robbery and theft differ with each state. But in general terms robbery is a theft coupled with assault or threats to cause bodily injury to the victim or another person. Robbery is not theft in a building where no other person within. That would be just a burglary and a theft.
As for theft there are degrees of theft depending on dollar amount and what was stolen. Generally the higher the value of the item taken, it would constitute a higher level of a theft. An example is a shoplifting of a $50.00 item would be, say a third degree theft but a shoplifting of a $500.00 item might be a second degree theft (depending on jurisdiction).
As for burglary, and each state is different, if the garage in this case was a detached structure from the house, then it would be a burglary in the ordinary sense. But, if the garage was an integral part of the house it becomes a residental burglary/home invastion. This carries a higher penalty than an ordinary burglary. The most aggravated burglary is where an assault takes place against someone inside, often times regardless if it is a dwelling or not. In that case a theft could be elevated to a robbery because either an assault happened or a threat was made.
“Drawing a jury pool in Missoula that is anti-gun”
What we have is an unncessary taking of a human life.
It is worsened by the fact that a deliberate trap was set.
This is not a matter of pro- or anti- gun.
It is a matter of pro- or anti- sick_inadequate_pervert.
Sling – was not aware that sick-inadequate-pervert was a crime in Montana.
KarenS, I just saw that story on CNN. Unbelievable if it wasn’t true.
Darren Smith 5/16@1701
Thank you once again. Your reasoning is always appreciated. I’d like to share one of your saved posts from 10/24/12 that bears on this thread.
” One thing that can be said, regardless of whether the Castle Doctrine is applicable or not, things are usually far better by not taking extreme measures. The least amount of force that can accomplish the goal is always best. Depending on the situation, I would either have called the police or escorted him off the property. Most likely, I would have most likely done the former. The reason: I don’t want to have to deal with any potential fallout as a result because it is a headache, risky, and what about the other person as well?
Personally, I don’t see why in this case the shooter did not just go inside and lock the door. What’s the worst that could have happened in the garage, the husband vandalized the property? Then he could be arrested for burglary and malicious mischief. (the shooter could have satisfaction in this) Or he could have broken down the door and well the law is a little more clear here.
There was no real need to shoot this man from what I read here. Just because you “can” do something does not mean you “must” do something.”
I think anyone who keeps a gun should be required to read “In the Gravest Extreme: The Role of the Firearm in Personal Protection” by Massad Ayood. I think you and he have shared philosophies
Would one of the guest bloggers consider getting the word out about this story? A woman has been sentenced to die because she married a Christian. She is the daughter of a Muslim man, and a Christian woman. She considers herself Christian, but Sudan considers her an apostate Muslim because of her father. They sentenced her to 100 lashes for adultery, because they do not recognize her marriage, and to death for apostasy. She is 8 months pregnant, and her 20 month old son is with her in prison.
Is there anything the State Department can do to negotiate her release and bring her and her family to the US?
http://www.cnn.com/2014/05/15/world/africa/sudan-christian-woman-apostasy/
I doubt that the US State Dept can do much or will do much. Maybe if they had some guts, they would hint that the rulers may wind up with a drone up their rear ends. That is about the only thing that will impress such Muslims.
randyjet – considering who the last two SOS were and the current President, you expect any kind of action.
True. There are a lot of hunters in Missoula, and a high rate of gun ownership. Foreign exchange students might not understand the danger of breaking into someone’s home in Montana. If he had pumped his shotgun, he might have gotten an apology, and “I’m leaving”.
Sling – given the over reactive deadly force we have seen on this blog by cops, I am not sure where this particular case is going. And much depends on the jury. Drawing a jury pool in Missoula that is anti-gun is not the same as drawing one in NYC
Thanks, Waldo. I did not know that the difference between robbery and petty theft was the causing or threatening personal injury. Isn’t there also a dollar amount threshold? If someone steals money from a bank vault after hours, that would also be a robbery, right? I am not familiar with the legal distinction between terms.
Karen S 5/16@1513
There is nothing louder that a 12GA racking in the middle of the night. Anyone who is fool enough to force the door automatically becomes a Darwin award candidate.
Darren Smith, you got this one right… “Force” and “Deadly Force” are quite a bit different. We have police to do the latter. If we all started being vigilantes, we’d have anarchy, which is, of course, what some people want.
“these teenagers had a history of petty theft. He was not innocent.”
Petty theft carries the death penalty now.
.
“In NYC cops pretend to be sleeping drunks in the subway so people will rob them. What is the difference here.”
When the person approaches and looks like trying to rob them, the cops make no effort to make an arrest. They simply shoot the person dead.
In both of the above, the only difference is that in one case the shooter would be a cop.
In both of the above, a premeditaded killing is involved.
Alternatively, if it is not usual for the cop to shoot the person dead, then the difference is that the cop is not a sick inadequate pervert.
I saw somewhere, I don’t remember the website, of the home security camera images of the garage. The photos were very good renditions of the victim. If Kaarma had instead simply turned the images over to the police and ended it there this entire tradgedy would have been avoided. That young man wouldn’t have lost his life and the family would have not suffered his loss.
There is an important aspect the article is not addressing. There are two definitions in the Montana statute. “Force” and “Deadly Force”.
“Force” is defined in section 1 and is codified to mean the reasonable application of necessary force to remove or deter a person from entering an occupied structure. The elements are “reasonably believes” that the force is necessary and reasonable.
“Deadly Force” as codified in section 2, is justified ONLY IF the victim reasonably believes they are to be assaulted or a forcible felonly will be committed.
The common terms here are “reasonable” and “reasonable use of force.” There is nothing in this Montana Statute that grants any ability for a person to kill as Kaarma was alleged to have done. Nothing in the actions alleged by Kaarma were reasonable either. Kaarma should not be afforded with the deferrence the statute creates of an ordinary homeowner who was faced with a threatening burglar.
If the charges against Kaarma are proven in my opinion he could be charged with premeditated murder, given the propensity he is showing to kill another person. I do not see the Montana Statute as being one that grants license for people to do as Young was alleged. If someone takes a crazy and uninformed interpretation of the law, or any law for that matter, it does not infer that the law is wholly problematic.
The argument that these “castle doctrine” laws encourage others to unreasonably assaut or to kill others and should be repealed does not address the fact that the same could be said about the common law self defense provisions where a person could unlawfully assault another and claim the common law protection.
The problem with not having a statutory remedy to the person acting in self defense is that the person could, in some areas, have to wait until they are criminally charged and put on trial before they may then bring up the self defense issue. In this case the Trier of Fact (Judge or Jury) determines if self defense is a factor. But if the statutory rememdy is available the state must prove the defense was unreasonable before charges may be filed. The legislature in ratifying these laws sought to protect homeowners from having to be arrested before they can prove self defense.