Criminal Justice

Maybe Montana Didn't Legalize the Summary Execution of Unarmed Trespassers

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Video via The Missoulian

Last May The New York Times ran a story that suggested Montana's law regarding the "use of force in defense of occupied structures" was responsible for the death of Diren Dede,  a 17-year-old German exchange student who was killed while sneaking into a Missoula garage late one night last April. One of the homeowners, Markus Kaarma, fired four shotgun blasts into the dark, striking Dede twice. Kaarma, who lived in the house with his partner and their 10-month-old child, was on edge after being burglarized twice before. But there was evidence that he was itching for a confrontation and may even have laid a trap: He set up a surveillance camera in the garage, put a purse there, and left the garage door open. A hairstylist who knew him told police he had talked about sitting up with his shotgun for three nights running, waiting "to shoot some kid." The Times implied that the deadly shooting might nevertheless be justified under Montana law, thanks to changes made in 2009 that "allow residents more legal protections in using lethal force to defend their homes."

This week 12 Montanans disagreed, unanimously convicting Kaarma of deliberate homicide, which carries a minimum penalty of 10 years in prison. Under the instructions the jurors received, Kaarma's use of deadly force was justified only if he reasonably believed it was necessary to prevent an assault or other forcible felony. Given the circumstances, the jurors evidently concluded, such a belief was not reasonable. Although Dede entered the garage illegally, planning to steal something, he was unarmed and did not seem intent on violence. To fire at him in the dark without warning seems rash and excessive, which is one reason the case received so much publicity.

Another reason is that the shooting supposedly illustrated the recklessness of beefing up "castle doctrine" laws so that it is easier to justify the use of deadly force. Hence the headline over the story in the Times: "In Youth's Death, Some See a Montana Law Gone Wrong." In 2009, according to the Times, Montana legislators "placed the burden on prosecutors to rebut claims of self-defense." That is not true, since even before 2009 prosecutors had to prove beyond a reasonable doubt that a defendant's use of force was not legally justified, which is another way of saying they had to prove beyond a reasonable doubt that the defendant committed a crime. That approach prevails in courtrooms across the country, not just in Montana.  

The relevant change made in 2009, which the Times also mentions, was the elimination of a requirement that a home intruder enter in a "violent, riotous or tumultuous manner." But that revision did not save Kaarma, because he still had to argue that he reasonably believed firing his shotgun into the garage was the only way to prevent Dede from attacking him or someone else in the house. To acquit him, the jurors did not have to completely believe his account, but they did have to find it plausible.

This seems to be another case, like Michael Dunn's 2012 murder of Jordan Davis in Jacksonville, Florida, where a state's excessively broad self-defense law was blamed for a shooting it did not in fact justify. In both cases, the outrageous acquittals that critics of the laws anticipated never actually happened. That does not mean both of these laws are perfect. But in one case after another, shootings that supposedly highlight the flaws of recently revised self-defense laws turn out to be justified under the old laws or unjustified under both. Although I try to keep an open mind, this pattern makes me skeptical of the case against laws that strengthen the castle doctrine or eliminate the duty to retreat outside the home.

The Times has no such reservations. The paper persistently misrepresented the role that Florida's "stand your ground law" played in the Dunn and George Zimmerman cases, and it uncritically repeats similar claims about other shootings, usually without bothering to explain exactly how the controversial changes are expected to affect the legal outcome. 

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  1. [insert ‘Kaarma’s a bitch’ joke here]

    1. A couple of my classmates are interning with Kaarma’s defense attorney, Paul Ryan. They didn’t seem to take a liking to those who told that joke.

    2. Well, lawyers are generally humorless gits.

  2. Lefty NYT uses deception to push an agenda. I am shocked.

    No, really, I am.

  3. If he’d been a cop breaking into someone else’s home and fired recklessly like that he never would have gone to trial. “I felt skeered and it was dark!” “No worries, valiant knight. It was only a civilian. You got home safe, and that’s all that matters.”

    1. He shoulda said, “He reached for his waistband.”

    2. Yawn. Only took three posts before the obligatory anti-cop screed showed up.

      1. Good thing you showed up to suck cop dick and make them feel all better. Oh hey, you still have some on your chin.

    3. Just two days ago, again here in Montana, there was a cop who killed a man in his home. The cop claims the man was reaching for a gun when he shot him. Magically, the cop’s bodycam “wasn’t working” when this supposed encounter took place.

      1. cw, you modified your handle. Creative. Haven’t noticed you around in awhile, maybe that’s why.

        1. Thanks. First semester of the second year is the most challenging one in all of law school. At least at mine.

  4. “a 17-year-old German exchange student who was killed while sneaking into a Missoula garage late one night last April. One of the homeowners, Markus Kaarma, fired four shotgun blasts into the dark”

    My friend’s dad once killed a doberman firing into a dark garage that way.

    The dog belonged to his son. The dog’s name was Chris.

    It was supposed to be in the backyard.

    No, my friend’s dad wasn’t a cop, but he was drunk at the time, and that’s almost as good.

    1. My friend’s dad felt bad about it afterwards. He bought his son another doberman.

      They named it Chris.

      1. My friend’s dad makes $8900 a month by working only a few hours. Find out how you can to by visiting http://www.usajobs.gov

        1. Seems legit

      2. Thanks for the wholly unrelated tangent. I’m sure we’re all the better for having read it.

        1. You’re welcome.

          The important thing to remember is that it takes a really sick mind in the first place to want to be a cop.

          And the people who defend them generically are a bunch of panty waste wankers.

          https://www.youtube.com/watch?v=_Y47DoZ0KVU

          1. “Pantywaists”, Ken. Although they are indeed waste they are also sissyboys.

  5. The defendant missed a whole lot of good opportunities to STFU both before and after the shooting.

    1. Yeah, if he’d known his Fifth Amendment rights a little better…

      And why the hell would you go around telling people something like that beforehand?

      I think Missoula is a college town, or whatever passes for that in Montana.

      1. It is. It’s a hippie-college town, at that.

  6. Maybe we did. Maybe we didn’t.

  7. Although Dede entered the garage illegally, planning to steal something, he was unarmed and did not seem intent on violence.

    I don’t see how you can assume that.

    But beyond that, if you can’t defend your property by force, you have to rely on the government to do it for you. And likely can’t care less.

    1. To me, there’s a difference between defending your property and laying a trap waiting to kill the first person who wanders in, regardless of the threat they pose (what if the kid was someone looking for help, or if he had thought maybe something was wrong and wanted to check out the situation)?

      1. So, do cops go to jail for the same actions? Do they even go to trial?

        1. No. Yes, sham trials. See Radley Balko’s articles and be sure to wear a cup in your jock.

      2. Not really – in either case the kid would have still been alive if he had simply refrained from stealing.

        But I’ve never been a fan of the ‘attractive nuisance’ legal theory in tort, let alone criminal law – and the ‘kid’ was certainly old enough to know better than to steal.

        And ‘checking out the situation’ – if I leave my garage open my neighbors knock on the door first.

        While I’m ambivalent about it, I do think the jury got it right – even if possibly for the wrong reasons – we simply don’t want people firing blindly for any but the strongest reasons and I don’t think defense of property is sufficient justification, on its own, to not check your targets.

        1. “And ‘checking out the situation’ – if I leave my garage open my neighbors knock on the door first.”

          Sure, but someone who doesn’t shouldn’t get blasted by a shotgun. I could see someone in that situation grabbing the purse and then going to the door, just to make sure no one takes it in the meantime (I probably wouldn’t do that for obvious reasons, but I can see someone else doing that).

          Overall, I’m not sure what you disagreed with me about. I wasn’t saying the kid was in the right, just that the jury got the verdict right, which you agreed with.

          1. About setting up and baiting a trap.

            The police and the rest of our justice system obviously don’t think the *basic concept* is wrong – as the long history of prostitution stings, bait cars, even wallets left lying in public with an officer waiting for someone to pick it up before pouncing.

            http://news.yahoo.com/bait-nyp…..05239.html

            And I don’t find the examples you cite (picking up a purse and then ringing the door to turn it in) convincing.

            You simply do not go wandering through strange people’s garages without some evidence of an emergency. let me see a guy’s legs sticking out from under a car collapsed on the ground, not that he left some unattended valuables.

      3. what if the kid was someone looking for help…

        Because when I want to get help from my neighbors, or even complete strangers, the first thing I do is break into their garage, rather than knocking on the front door.

  8. even before 2009 prosecutors had to prove beyond a reasonable doubt that a defendant’s use of force was not legally justified, which is another way of saying they had to prove beyond a reasonable doubt that the defendant committed a crime.

    Hmmm. Classically, self-defense was an affirmative defense against a murder charge, and as such generally had to be proven by the defendant with a preponderance of the evidence.

    Relatively recent activity around self-defense has been changing this, as we saw in the Trayvon case. Currently, I think its about a 50/50 split who has the burden of proof on self-defense. (As a purely jurisprudential matter, I don’t believe that requiring the prosecution to disprove an affirmative defense is the same as requiring the prosecution to prove that a crime occurred.)

    That said, it looks like Montana put the burden on the prosecution, but not in the 2009 amendment, which doesn’t look to me like it changed that provision of the law.

    1. Oh, before I forget:

      Super-mad props for giving us the link to the actual primary legal source material. Awesome.

      1. So rare that you get that from any news organization

    2. If the good old common law required the defendant to prove self-defense, that’s a strike against the good old common law, just like other abuses of the common law which needed to be corrected by statutory or constitutional provisions – e.g., the partial denial of counsel.

  9. Based on something I read the other day, the burden of proof was shifted from the person claiming self defense to the prosecution by a change to the law.

    If the guy really intentionally laid a trap and blasted the first person to fall into it, and the jury apparently believed that was the case, I have zero sympathy for him.

    If he had made an increased effort to secure the property, and was still burgled that would be different.

    And who the fuck shoots wildly into a dark room?

    1. the burden of proof was shifted from the person claiming self defense to the prosecution by a change to the law.

      Not by the 2009 amendment (linked in the article).

    2. And who the fuck shoots wildly into a dark room?

      I think we all know the answer to this one.

      1. Colonel Mustard, in the library, with the duelling pistol?

      2. Rick Hunter?…

        Are we still playing?

      3. Hitler? Its Hitler, right?

  10. Prosecution required to rebut self-defense claim, women, minorities, hardest hit…

    Wait a minute! What if a woman or minority finds it necessary to defend his/her home against, let us say, a mob of people who don’t want him/her to be there? Under the NYT’s suggested policy, such a person should be required to prove his/her innocence.

    http://law2.umkc.edu/faculty/p…..ccount.HTM

  11. Shorter NYT: Montana man gets 10 years for acting unreasonably in defending his home against an intruder – are Montana laws too lenient to homeowners?

  12. Kaarma is a sick man who acted completely within his rights and should not have even been brought into a court let alone a jail.

  13. (what if the kid was someone looking for help, or if he had thought maybe something was wrong and wanted to check out the situation)

    Somewhere along the line, I read something which alleged this series of break-ins was some sort of “I DARE YA” game at the high school. This may be bullshit, but if this kid was on the up-and-up, why didn’t he go knock on the front door? Based on what I have read abut this event, my suspicion is that the kid was in fact up to no good, but posed no meaningful threat any of the people in the home, and did not deserve to be gunned down for it.

    1. I’m torn on this one.

      Should be able to defend your property with deadly force, and what I do in my own home, as far as setting traps goes, is my business.

      Shooting into a dark room makes you a fucking idiot.

      Shooting without attempting to first apprehend seems wrong at first blush, however, should you need to risk your life and gamble that he’s not armed and going to shoot immediately, while in your own house?

      This guy was obviously an asshole but I’m not sure what he did should be criminal. If you break into someone’s home, you should expect to be shot.

      1. He wanted to shoot the people breaking into his house.

        He laid a trap for them, intending to use deadly force from the get-go.

        That’s very different from a guy who – concerned about the burglaries – carries a gun with him for self protection, stumbles across a burglar, and shoots him out of fear (he was coming right for me!)

        The use of deadly force should be proportionate to the crime being committed. And simply stealing a purse with no valuables left in plain view on private property is not a crime that justifies deadly force.

        1. The use of deadly force should be proportionate to the crime being committed.

          That’s not how self-defense works. Proportionality is a croc.

          1. Uhm, that’s *exactly* how self-defense works.

            You know – credible threat of grievous bodily harm or death, that sort of thing?

            1. The force I am entitled to use depends on what is needed to deter the crime, not the crime itself.

        2. And simply stealing a purse with no valuables left in plain view on private property is not a crime that justifies deadly force.

          Serious question – why not? I mean, here was a guy who wasn’t bothering anyone and the dead kid and his friends decided breaking into his house and stealing from him was a great pass-time. He seems to have gone to the authorities and they weren’t much help in getting him satisfaction.

          So, what is it you propose the guy do? Make himself the perpetual victim of whatever group of assholes decide they want to come along and avail themselves of his property? Pull out a shotgun and hope that scares them off permanently?

  14. Bloodthirsty chickenhawk speaks: who acted completely within his rights and should not have even been brought into a court let alone a jail.

    How unsurprising.

    1. Enter my property without permission, put your life into my hands. Pretty simple.

      That includes my lawn.

      1. Wow, so if I am invited to a neighbor’s house, am told, don’t knock, just come in the back door, and get lost, that’s a capital crime in our book?

        Have you warned your neighbors about your violent savage nature?

        1. t, dude, it’s a troll. Your time is your own to waste, but word to the wise, eh?

        2. What are you talking about? That’s not trespassing.

    2. You know you’re a giant coward when you won’t even respond directly to my post. It’s okay to be afraid of me just don’t make it so obvious.

    3. Okay, then I’m sure you have an alternative course of action that Kaarma could have followed that would have allowed him to remain secure in his possessions and not hurt the poor, poor victim who thought it was just incredibly fun to rob him.

    4. Okay, then I’m sure you have an alternative course of action that Kaarma could have followed that would have allowed him to remain secure in his possessions and not hurt the poor, poor victim who thought it was just incredibly fun to rob him.

  15. *Diren Dede, a 17-year-old German exchange student who was killed while sneaking into a Missoula garage late one night last April. One of the homeowners, Markus Kaarma*

    Love how the “German” is a Turk and the gun-wielding lunatic Montanan is Asian. God Bless Murica.

    1. So his life is less worthy of human dignity because he’s Turkish? Is that because they’re damn dirty Mooselimbs?

      1. The fuck are you talking about? Where did you get that from?

        I must not have my insane race-baiting glasses on, because I saw his comment as pointing out how silly it is to describe this person as “German”.

        1. He was an exchange student from Germany, that makes him a “German exchange student.”

  16. That includes my lawn.

    Good luck with that, Dirty Harry.

  17. This guy was obviously an asshole but I’m not sure what he did should be criminal. If you break into someone’s home, you should expect to be shot.

    I am deeply ambivalent about this one, but the entrapment aspect really bothers me. If the idiot had secured the garage, instead of (apparently) intentionally leaving it open with an item of value in plain sight, I’d be on his side.

    1. Yeah, that’s part of the assholishness. But one should be under no obligation to take precautionary steps to protect one’s own property from theft either.

      If I leave the keys in my car and the windows down, the guy who steals it is just as much of a shitbag thief as he’d been if I’d locked it up.

      1. To me, it’s not important that he didn’t take precautionary measures, but that he intentionally didn’t do so in order to lure someone in and shoot them. That’s completely reckless and at that point I’m not going to give you a pass for “defending your property.”

        1. …in order to lure someone in…

          Well, not just any someone. The particular sort of someone who would be willing to rob his home. Honest people wouldn’t be at risk from Kaarma’s “trap”. And this was a guy who was regularly having his home robbed.

  18. the guy who steals it is just as much of a shitbag thief as he’d been if I’d locked it up.

    Unquestionably true.

    But I’d still be reluctant to kill him. That’s why I could never be a cop.

    Oh well, time for a DRINK!

    1. But I’d still be reluctant to kill him.

      And that’s the rub in this case. This guy WANTED to kill someone.

      1. The guy wanted to kill the people who were robbing him. Again, not just any someone.

  19. So both people got what they deserved. Finally a story that leaves my balls unscathed. Which is good since I can’t buy Comfyballs here.

  20. In Columbus we’ve had a lot of cases of people following delivery trucks watching for people getting their Christmas packages delivered so they can steal them. Don’t think they should be killed. Maybe just their thumbs cut off. Just kidding. Kind of. Assholes.

    1. On the other hand, should one get shot in the ass I would bet the porch snatches would abate.

  21. I think what really sunk Kaarma was that he told his barber (to which she and two other workers testified), “I have been up for three nights and I’m going to kill some fucking kids.” That, and also that he left his garage door partially open (why would someone do that if they’ve been burglarized?).

    His and his girlfriend’s demeanor and answers on cross didn’t help, either. I remember that when the girlfriend was being crossed, her answer was something like, “Yeah, I’m retarded sometimes.” That didn’t help.

    1. would someone do that if they’ve been burglarized?

      Who knows? But maybe, based upon this bravado:

      “I have been up for three nights and I’m going to kill some fucking kids.”

      He was frustrated, stressed, and drinking.

      Could explain it all, if it weren’t for the fact that too many Americans seem comfortable criminalizing “threats” (real or not) like Facebook posts.

  22. There you go man. Well done.

    http://www.TheAnonBay.tk

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    per-hr . official website ———- http://www.jobsfish.com

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