Minnesota: Man Charged in Deaths of Intruders

[manta49]

It takes a certain sort of cold blooded individual to put a gun to the head of someone who is injured and pull the trigger, not the type of person I would be trying to defend their actions in any way like some seem to be trying to do.

 

[steve4102]

These two thieves were without a doubt in "The Commission of a Felony" and from where I sit Mr Smith was Justified to "Take Their Lives" under MN law 609.065.
Questions.
Does this statute follow the same rules and "Self Defense" in that Deadly Force must end when the "Commission" of the Felony has ended? That is, once these two were down, has the Commission of a Felony Act ended and deadly force may no longer be applied, or is MR Smith Justified in "Taking A Life" based on the Felony Burglary itself?

I kinda sorta found and answer to my own question from the MN Court of Appeals.

http://mn.gov/lawlib/archive/supct/9708/c6952162.htm

1. Fear of death or great bodily harm is not an element of a "defense of dwelling" claim. Minn. Stat. § 609.065.

2. Jury instructions that required the jury to find that the defendant feared great bodily harm or death to justify his use of deadly force in preventing the commission of a felony in his place of abode were in error, and the error was not harmless.

So, if Smith did not have to Fear for His Life to justify Deadly Force, does he have to stop shooting when the threat is over? He didn't need it to start shooting so why and when would the Law require him to stop?

 

[Madcap_Magician]

Again these are not the facts, may your opinion, but not the facts.

You are correct about the number of shots and their placement, I don't believe the coroner's report was out when I originally posted. My original post was based on the information from the early media reports combined with the criminal complaint.

So, if Smith did not have to Fear for His Life to justify Deadly Force, does he have to stop shooting when the threat is over? He didn't need it to start shooting so why and when would the Law require him to stop?

I would think you are going to run up against the reasonableness issue very rapidly. While you could make a weak argument that the part of MS 609.065 that refers to "... or preventing the commission of a felony in the actor's place of abode" does not specifically contain the term "reasonable," the intent of the statute given the rest of 609.065 specifically and 609.06 in general is quite arguably that all use of force must be reasonable in the light of the circumstances. Indeed, Minnesota v. Carothers, which is the case that judicially determined the defense of dwelling exception to Minnesota's duty to retreat obligation also stated the following:

We emphasize that a person claiming defense of dwelling is still subject to strictures insuring the reasonableness of his or her behavior.   Defense of dwelling and self-defense within the dwelling serve a defensive and not offensive purpose, and do not confer a license to kill or to inflict great bodily harm merely because the offense occurs within the home.

And also:

...When faced with a defense of dwelling claim, the jury must determine (1) whether the killing was done to prevent the commission of a felony in the dwelling, (2) whether the defendant’s judgment as to the gravity of the situation was reasonable under the circumstances, and (3) whether the defendant’s election to defend his or her dwelling was such as a reasonable person would have made in light of the danger to be apprehended.

I think Smith can slam-dunk argue (1), and probably (2) for the first shots, at least, but then he fails both (2) and (3) for the follow-up shots, particularly the executing shots on both victims.

I am unsure of what effect the fact that Kifer was most likely dead when Smith fired the last shot will have.

 

[Gbro]

True, but these were the ME's words.

Mills testified that Kifer had six gunshot wounds, including two to the head at close range. She said the shot that killed Kifer, the fifth fired by Smith, was a close-range shot behind her left ear, striking her brainstem

Without the Brainstem, all bodily functions cease, even Breathing.

Edit:

Mills testified under cross-examination that the respiratory system in a body can make sounds after death if it is being moved.

Sounds, did not say Breathing.

Agonal Respiration's or Death Rattle could be what Mr. Smith heard. I have heard that on several occasions with gun shot wounds to the head. We would certainly follow all resuscitation protocols, but would not be very hopeful. These two links list them as not the same and I would define the Agonal respiration as short duration of the last efforts of a pulse-less body, and Death Rattle as similar but with a heart beat and could last a considerable time. (Just my $0.02)
Of course this is all moot for the purpose of this case because from what i see his intentions are to totally neutralize each threat just like some of us have trained in a double or triple tap exercise, like one to the body and one to the head, or two and one.
I am still looking for the defense to bring in his State Department background.
The one thing that i feel certain of is there is no need in playing by someone Else's rules when defending yourself in your own home. Like Phil Robertson say's "Out Here I Am 911" and Mr. Smith already experienced 911 responce.

 

[Aguila Blanca]

Of course this is all moot for the purpose of this case because from what i see his intentions are to totally neutralize each threat just like some of us have trained in a double or triple tap exercise, like one to the body and one to the head, or two and one.
I am still looking for the defense to bring in his State Department background.
The one thing that i feel certain of is there is no need in playing by someone Else's rules when defending yourself in your own home.

A triple tap (or "Mozambique") is executed very rapidly, all three shots in immediate succession. A triple tap is a completely different scenario than shooting someone multiple times, stopping to drag the body onto a tarp to keep the blood off the floor, and then firing two more shots to finish the person off.

Based on the criteria cited in Madcap_Magician's post, it would seem that there IS a need to "play by someone else's rules" even when defending yourself in your own home. Specifically, there IS a need for your actions to be reasonable. Firing a triple tap could easily be deemed reasonable, especially if you had prior training that emphasized that as a response. Moving the body and then administering a coup de grace is probably a lot less likely to be deemed reasonable.

Here's an example: http://www.youtube.com/watch?v=UiqwF_Y9S5Q

Cruise fires two shots (double tap) at the first bad guy, then three (triple tap) at the second bad guy. So far, so good.

Then he fires a "clean finishing shot" at the first guy after he picks up the briefcase. Makes for good Hollywood, but ... justified? I think not.

 

[Madcap_Magician]

The one thing that i feel certain of is there is no need in playing by someone Else's rules when defending yourself in your own home.

It's very interesting that the strongest and most vehement arguments in favor of Smiths' actions seem to come from other Minnesotans on the gun boards.

I certainly can't tell you what you should or shouldn't do, but I can tell you that refusal to play by the rules established by state law will get you in the same situation Byron Smith now finds himself.

 

[Evan Thomas]

It's very interesting that the strongest and most vehement arguments in favor of Smiths' actions seem to come from other Minnesotans on the gun boards.

Just for the record: emphatically not from this one. As far as I'm concerned, Mr. Smith is a murderer.

ETA: That said, I suspect the reason some Minnesotans think Mr. Smith's actions may have been justified is that the Minnesota laws are poorly worded; I hope this case prompts revisions that replace "taking of life" with "use of deadly force." It's an important distinction.

 

[steve4102]

As pointed out already, MN law says the "Taking of a Life" is justified when preventing the Commission of a felony in someones place of abode.

The question is, what constitutes "prevention"?

These are comments from another MN gun owner, any Legal basis for his "Opinion"?

If the burglary was the felony justification for the defense of dwelling, the crime is ongoing while the burglar is in the dwelling. Therefore the teens were still committing the crime until they were dead.

 

[Brian Pfleuger]

As pointed out already, MN law says the "Taking of a Life" is justified when preventing the Commission of a felony in someones place of abode.



The question is, what constitutes "prevention"?



These are comments from another MN gun owner, any Legal basis for his "Opinion"?



If the burglary was the felony justification for the defense of dwelling, the crime is ongoing while the burglar is in the dwelling. Therefore the teens were still committing the crime until they were dead.

That's a ridiculous claim. By that logic, he could have captured them and been justified in doing just about anything he wanted to them as long as he kept them in his house.

It saddens me that this situation even creates an argument. These are the actions of a calculating murderer, not a home defender.

 

[steve4102]

...but that's not what he did, he killed them. Was he justified in doing so according to MN Law?

He did not have to fear for his life and he did not have to stop a physical "Threat".

 

[OldMarksman]

Posted by steve4102:...the teens were still committing the crime until they were dead.

I think that the "reasonable persons" who will try the case would find that statement ludicrous on its very face.

More importantly, I would most assuredly not want a statement of that kind attributed to me, should I ever find myself in the position of having used deadly force against another human being.

 

[Gbro]

Firing a triple tap could easily be deemed reasonable, especially if you had prior training that emphasized that as a response.

Aguila Blanca, those are interesting word you added there.
And that is why i posted what i did about the double/triple tap.
AND, that is why i am interested in Smiths past State Dept. training!
And i haven't seen anything so far on any training Cmnt might have had.
As posted a while back someone thought maybe he should have a FOID card taken away, well here in Minnesota there is no requirements for any training or registration to own and use a firearm in home defense and any other legal activity related to firearms outside of the Personal Protection act (Permit to carry).
And do i think Cmnt went to far, Certainly I do, but i also was not the one walking in his shoes.
Back in 2003 one of the first Permit to carry cards that was lost by a Minnesotan was when he was defending his person and property, called 911 and then went into his house to retrieve his handgun. He put a couple of rounds into the front of his brothers car as his brother was ramming property, and then when the brother pulled away another shot was fired at the fleeing vehicle. That was a violation of the defense of life or property.
He was held to a higher standard because he was trained and failed to act within that training.

 

[manta49]

Posted by steve4102:...the teens were still committing the crime until they were dead.

It's that type of thinking and some trying to defend his actions that give gun owners a bad name. Ok they shouldn't have being in his house does that justify a death sentence and a self appointed executioner. I am sure there self defence shootings that people should defend the actions of the person that protected themselves this is not one of them. That's not forget that two teenagers died here they were in the wrong but most right thinking people do not like to see another person killed unless absolutely necessary. I personally would not pull the trigger unless absolutely necessary its something I would have on my conscience the rest of my life even if I had no choice.

 

[solvability]

The home owner was wrong. He shows a pathological psychopathic response to the threat under the color of law. I would not want him free in my community.

 

[sfwusc]

I know nothing about the case.

If they broke into his house, then they signed over the rights to their lives to him while they were in his house.

I don't care what he did... I would have a very hard time finding him guilty of anything if I was on the jury.

What is the moral of the story? Don't break into people's houses.

 

[steve4102]

Ok they shouldn't have being in his house does that justify a death sentence and a self appointed executioner. I am sure there self defence shootings that people should defend the actions of the person that protected themselves this is not one of them.

Maybe?

MN Law says that Killing may be justified in the Prevention of a Felony In one's abode. He did not need to defend himself or feel his life was in danger. MN laws says the Felony Burglary is cause for killing.

 

[manta49]

I know nothing about the case.

If they broke into his house, then they signed over the rights to their lives to him while they were in his house.

I don't care what he did... I would have a very hard time finding him guilty of anything if I was on the jury.

What is the moral of the story? Don't break into people's houses

You think for breaking into someone's house the person deserves to be executed. I am surprised by the callous disregard some seem to have for human life. I don't think that type of attitude does anything for the pro gun cause.

MN Law says that Killing may be justified in the Prevention of a Felony In one's abode. He did not need to defend himself or feel his life was in danger. MN laws says the Felony Burglary is cause for killing.

Maybe, but just because you have right to do something does not mean its the right thing to do.

 

[steve4102]

You think for breaking into someone's house the person deserves to be executed. I am surprised by the callous disregard some seem to have for human life. I don't think that type of attitude does anything for the pro gun cause.

Doesn't really matter what you or I think,it matters what the Law says.

609.065 JUSTIFIABLE TAKING OF LIFE.
The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

 

[WyMark]

The jury will be instructed to rule on the evidence as it's presented, and only the evidence before them, and within the context of MN law. So there's probably a better than even chance that Steve is right and Smith will walk.

 

[steve4102]

I'm bettin Hung Jury.