There is a no stand-your-ground case out of Oklahoma where Alexander Feaster, 46 is claiming that he shot Kyndal McVey, 27, in the back while she ran away as an act of self-defense. McVey had just torn down Feaster’s Nazi flag and he claimed that he was in fear of an “imminent Antifa attack on his home” last June, according to a court motion in the case. McVey was attending a party across the street when, around 2:55 am, she decided to tear down the flag. Feaster (an Air Force veteran) said that he was ready with his AR-15 rifle after being warned by a neighbor of a “plot” by “antifa activists.” He shot McVey in the lower abdomen and legs as she ran away.
Feaster’s lawyers are relying on Oklahoma’s Stand-Your-Ground law to argue that he had a “sincere and reasonable fear of imminent peril of death or great bodily harm” that were supported in “the summer of 2020, with the media and left-wing activists drumming up riots and praising violence against their political adversaries.” They argue that his Nazi flags are protected First Amendment speech and that he had a right to defend himself under the law. It is certainly true that the flags are protected (if disgusting) expression of free speech. However, the reasonableness of this use of force is not supported by the facts cited in the defense papers in my view.
B. A person or an owner, manager or employee of a business is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, occupied vehicle, or a place of business, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, occupied vehicle, or place of business; and
2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
Notably, the law defines a dwelling relatively narrowly: ” “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people.” However, pictures show the flags attached to the house.
There is also a provision to use the SYG law outside of the home:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Again, these provisions raise whether he had a “reasonable belief” that it was necessary to “meet force with force.” There is no disagreement that McVey was unarmed and running away.
Nevertheless, the defense insists that Feaster
“correctly thought that the men at the party were armed… and that all the persons there were highly intoxicated. An all too familiar pattern of events was occurring and Mr. Feaster reasonably believed his home was soon going to be attacked…‘Believing he was under attack, [Feaster]… used defensive force on McVey and… acted to deter others from similar conduct or deadly force. After he used such force, Feaster retreated into his home… and did not emerge until the Sheriff’s Deputy arrived.”
He is now charged with assault and battery with a deadly weapon. I do not see the reasonable basis for such a use of force in this case even under the highly deferential standards of SYG laws. It is based entirely on what Feaster claims to have been told by a neighbor.
McVay is also suing for $75,000 toward medical bills, lost time and negligence. I teach these cases in my torts class and they raise many of the same issues. Indeed, one of my criticisms of “Castle Doctrine” laws and SYG laws is that the common law already has ample protections for individuals in the use of self-defense.
The common law does not allow the use of force calculated to cause serious bodily injury or death in protection of property. In famous cases like Bird v. Holbrook, 4 Bing. 628, 130 Eng. Rep. 911 (1825), courts have ruled that “[n]o man can do indirectly that which he is forbidden to do directly.” Not only are such devices viewed as immoral (because human life is more valuable than property), but dangerous because such devices cannot tell the difference between friend and foe. The case however also has been cited for the long-standing rule that no property is viewed as more valuable than a human life. That does not mean you cannot take steps to protect your property and a case of protection of property can become protection of self (with the right to use higher levels of force) when the suspect resists or attacks.
When it comes to self-defense, the protections under the common law are ample. There are even protections for 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.