2 teens killed after allegedly breaking into home;

[tepin]

KSTP interview with Hamline law professor on defense of dwelling and Minnesota's "reasonable belief" doctrine:
http://kstp.com/article/stories/s3218766.shtml

[jshuberg]

The courts have ruled that 609.06 and 609.065 have to be construed together (Pari Materia: MN v. McKnown 1991). In other words, the reasonable test in 609.06 subd 1 (3) applies to statute 609.065. If this was not the case and we were simply able to interpret 609.065 as it was written, my wife could shoot and kill me for committing, for example, insurance fraud (felony) in our home.

This isn't correct. First, the case you cite has absolutely nothing to do with self defense, defense of dwelling, 609.06, or 609.065. It dealt with child neglect and 2nd degree manslaughter. It never spoke to the issues you claim:
http://www.leagle.com/decision/19915384 ... .%20McKOWN

EDIT

I stand corrected. Sort of, state v. McCuiston takes the Pari Marteria decision in McKown and applies it to 609.06 and 609.065. It also describes the insurance fraud scenario you provided, and stated that it would be unlawful to shoot someone for committing insurance fraud in your home, despite the fact it's a felony. The reason they used was that doing so would be unreasonable. Well, yeah. A person could prevent insurance fraud by other means. Its not like a physical or property crime that must be stopped at the time that it occurs. That ruling also predated the Hare ruling by 4 years, where the court determined that in order for defense of dwelling to apply, it must first involve a trespass. So the hypothetical scenario described wouldn't apply in defense of dwelling, not because of reasonableness (which is subjective), but becauase it doesn't involve a trespass (which is objective).

END EDIT

Also, your example is flawed. Defense of dwelling can only be used as a defense against an unlawful invasion in the home, and cannot be used against someone who has the right to be there:

An unlawful invasion into the home is also contemplated by Minnesota's law on "defense of dwelling." See supra at n. 4. Minnesota Statutes section 609.06 permits the use of reasonable force in self-defense "[w]hen used by any person in lawful possession of real or personal property, * * * in resisting a trespass upon * * * such property." Minn.Stat. § 609.06, subd. 1(4) (emphasis added). When this language is read in conjunction with Minn.Stat. § 609.065, it is clear that the defense of dwelling defense anticipates an unauthorized intrusion into the defendant's dwelling. Necessarily, when the defendant and the victim reside in the same dwelling, the defendant cannot raise the defense of dwelling defense.

https://www.courtlistener.com/minn/9VzU/state-v-hare/

A person is guilty of a misdemeanor if the person intentionally:
...
(3) trespasses on the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor;

https://www.revisor.mn.gov/statutes/?id=609.605

Before a person is guilty of trespassing, they must first be demanded to leave and then refuse. This is a misdemeanor crime. If while trespassing they are also committing any other crime, that crime becomes a 1st degree burglary if at any point someone else is also in the home. It is a felony, and it is a crime of violence. Only when both a trespass and a felony crime are being committed, can a person use deadly force justified by defense of dwelling.

I mean no disrespect, as you're obviously very knowledgeable on the subject, but you didn't answer my initial question. A persons actions needing to be reasonable is just plain common sense, one would never expect a judge or jury to be forced to believe a claim that is unreasonable, so I really don't understand the point of a "reasonableness" doctrine. It has absolutely nothing to do with whether the felony being defended against in a defense of dwelling claim needs to be a violent crime, as you claimed. Your statement was that there was existing case law from the MN supreme court that requires the felony to be a violent felony. You're not the only one who I've heard this from, so if there is such a case please provide it for us.

The reason I don't believe such a case exists is that given the fact that any crime committed in the home after the initial trespass becomes a 1st degree burglary if someone else is also in the home. It stands to reason that there is simply no way to commit a crime that is not both a felony and a crime of violence under these circumstances. It would certainly explain the lack of case law on the subject. For there to be a ruling requiring this, it would be as redundant as a requirement that the earth be round or the sky be blue in order for defense of dwelling to apply.

Technically we don't actually have the full castle doctrine here in MN, but case law does get us 99.99% there. The only difference is that simply trespassing in someones home isn't enough, they must also be committing another crime, such as burglary, assault, etc. in order for deadly force to be justified under the law. There's a lot a gray area here, and not a lot of case law on defense of dwelling (as it almost always is accompanied with a self defense claim as well), but based on the statements made by the MN Supreme court in Carothers as to preventing burglary and protecting property, I stand by my beliefs and how I've been trained on the issue until someone can demonstrate otherwise.

Personally, I prefer MN's version of castle doctrine - that a person must be committing a crime other than the initial trespass before defense of dwelling can be applied. It prevents the homeowner from lawfully jumping the gun (pun intended) and shooting someone who somehow inadvertently found himself in someone else's home for entirely innocent reasons - like walking in the wrong door because they're drunk, a friend of a friend who's uninvited by the homeowner, etc.

Good discussion. I like this kind of thing.

[Mn01r6]

jshuberg - his example is spot on because the reading of 609.065 and 609.06 together is what REQUIRES you to be resisting a trespass (609.06) in your home before using deadly (609.065) force.

It also means the reasonableness of force (609.06) applies to defense of dwelling deadly (609.065) force. 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. - a jury gets to decide if your decision to kill over your flat screen was reasonable. I wouldn't trust a Minnesota Jury to decide that in your favor.

Minnesota law currently neither permits nor prohibits killing to protect the property in your home. In all cases, your actions must be found to be reasonable by the jury.

[jshuberg]

Agree, but again I think the "reasonableness" requirement simply goes without saying. It's not like there are other aspects of the law where judges or juries are expected to believe something that is unreasonable.

Here's a scenario - an 80 year old woman wakes up to hear someone robbing her house, she yells at them to get out and they laugh at her. She decides that she is going to attempt to stop the burglary, as is her right under the law. She shoots the bad guy. Was her using deadly force, as opposed to using a lesser level of force reasonable in order to stop the felony? Obviously it depends on the details and the jury, but the intent of the law as written and the associated case law is yes. It is in fact the purpose of defense of dwelling.

It's not about saving a TV (although a jury could decide to make it about that), it's about the level of force necessary to stop the crime. Tax evasion and insurance fraud are crimes that can be stopped at any point over a long period of time. Shooting someone to stop those crimes would not be reasonable. Burglary and assault happen in the moment, and if they are to be stopped they must be stopped in the moment they are occurring. It's also highly unlikely that someone will break into your house and commit insurance fraud. That hypothetical scenario posed by the court predated the decision that there first needs to be a trespass, which makes that scenario pretty much implausible if not impossible in the real world. A felony committed while trespassing in someones home would almost certainly be burglary or assault, which the supreme court referred to explicitly in Carothers as being crimes that would justify deadly force under a defense of dwelling defense.

If your usage if the term "reasonableness" or "reasonableness doctrine" is the same as saying no lesser force would do to prevent or stop the felony, then I understand and agree. If you mean something different by it, enlighten me cause it just seems completely redundant to me.

[gunsmith]

I always have the courage to ask a dumb question

How about the 21 foot rule?

Any assailant within 21 feet can inflict grevieous bodily injury before you can draw or your heart or head shot will be able to immobilize the attacker.

Is that principle accepted or presented in these cases....

Again not in this unfortunate case but in general.

I just have trouble seeing how a homeowner can be expected to act and think like a trained commando when woken up at 2 am in his underwear and barefoot.

[tepin]

I stand corrected. Sort of, state v. McCuiston takes the Pari Marteria decision in McKown and applies it to 609.06 and 609.065.

That was the point of referencing McKnown.
Now... back to the original point...

Actually you cannot kill someone over property in MN. The MN Supreme Court has ruled that the felony you wish to prevent in the home must be a violent felony.

I don't believe this is true. I've heard it stated numerous times....

Do you still believe you can use deadly force in MN to protect personal property in the home e.g. a toaster, vibrator or pet? There might be a valid reason you have heard this multiple times from multiple people.

Personally, I prefer MN's version of castle doctrine...

We don't have castle doctrine in MN. Never have. Never will as long as Dayton is governor. Castle doctrine, in general, allows for the presumption that the person entering your home means to cause you harm and therefore the homeowner need not make any additional considerations as long as the force is still reasonable. The Little Falls Byron Smith case... he most likely could have put a bullet in each kid, called 911 and most likely not been prosecuted. Unfortunately, he crossed the line of "reasonable belief" that he was still in fear of a looming attack when the kids were gasping for air on the ground and he delivered final kill shots. Even if we had castle doctrine in MN, he would have still gone to prison. Not even the state of MN has the authority to execute (no death penalty). Again, we do not have castle doctrine in MN so posting stuff on the internet that suggests otherwise might get someone else in trouble down the road.

Read Mark Dayton's veto on SYG. On page 2 of the veto memo he explains use of force and cites the MN Supreme Court case.

How about the 21 foot rule... I just have trouble seeing how a homeowner can be expected to act and think like a trained commando when woken up at 2 am in his underwear and barefoot.

The "21 foot" rule would always be applicable in a self-defense case where the attacker had a contact weapon or was unarmed. The "21 foot" rule was an experiment conducted by Dennis Tueller back in 1983, known as the Tueller Drill. A prosecutor can argue that shooting a criminal with a contact weapon from 30-40 feet, that the threat was not immediate and deadly force unjustified. The Tueller Drill is used to combat this claim in court, showing that at 21 feet the criminal gets a bullet in the chest and the victim gets a knife in his. Common sense tells us that we therefore need to draw and or fire at 30-40 feet to avoid getting stabbed.

In the home, distance isn't really a concern because rooms are generally not that big.

Defense of dwelling should be a fairly easy concept to follow. The standard is lower than using deadly force outside the home. Focus on protecting family and preventing an assault. Talking to the cops about "burglary" could be interpreted as having more of a concern for your TV than personal safety. If there isn't a reason to be concerned for your safety, you cannot just shoot someone. If you come face-to-face with an intruder they should be taken at gunpoint. If they have anything in their hands (e.g. screwdriver) and have not instinctively dropped to the floor they should be shot: ability & opportunity exist. A reasonable person should conclude that anyone breaking into an occupied home is prepared to deal violently with anyone that confronts them (the intruder) and therefore jeopardy exists. If the intruder is not armed, issue verbal commands and create distance. Keep your gun pointed at the pelvic girdle. This allows you to more easily watch the hands and or waistband where a weapon may be hidden. Have them lay flat on the ground, ankles crossed and palms facing the ceiling. They should turn their head in your opposite direction so they cannot see what you are doing. Failure to follow commands along with furtive movements or advances toward the homeowner would warrant shooting the intruder. Furtive movements should be interpreted as the intruder going for a weapon.

In a criminal case you are judged by the reasonable and prudent person standard. However, it isn't just any reasonable and prudent person, it is the reasonable and prudent person that knows what you knew at the time of the attack. This is where training and research come into play. Example: you shoot someone with a knife at 40 feet and you know about the Tueller Drill at the time of the attack, your actions are reasonable because you had facts that told you the threat was immediate. Example: you are walking downtown St. Paul and someone pulls a knife and says, "money or your life". You reach for your wallet but instead pull a gun and shoot and kill the criminal. The prosecutor decides to file charges because your use of deadly force was voluntary. You could have just handed your wallet over, which contained no cash but instead you chose to execute this person and endanger those in the area. In this case, it might have been helpful if the permit holder had known about the many armed robberies in the Twin Cities where the victim had complied but was stabbed or shot anyway.

A legitimate self-defense case where the defendant is being prosecuted will nearly always require that the defendant testify and explain their actions. If you cannot explain it, don't do it.

[gunsmith]

Tepin: Thanks for the summary

In this case, it might have been helpful if the permit holder had known about the many armed robberies in the Twin Cities where the victim had complied but was stabbed or shot anyway.

When people ask me 'why' I carry a firearm I give them 5 names as a riddle-er answer:

Dru Sjodin,
Katie Pourier,
MICHAEL ZEBHUR,
Alan Reiter,
Mark Loesch.

I'm going to bet a lot of people remember the MIchael Zebhur case. It was sensational and I think the 'quality of life' in Uptown took a permanent hit after that robbery-murder.

Simply Michael Zebhur was EXECUTED by DeShaun Johnson a frickin 17 year-old IN FRONT OF HIS MOTHER AND SISTER AFTER HE HAD GIVEN UP HIS VALUABLES.
Also it's very likely the 'desparado' was high on some type of drug in order to amp himself up for the takedown.

Deshawn Johnson.jpeg (7.66 KB) Viewed 5486 times

In my opinion it's reasonable to assume that if I'm at the corner of Hennepin and Lake it's dark, a thug flashes a gun, my life is in immediate jeopardy WHETHER OR NOT I GIVE UP MY VALUABLES.

Michael Zebhur: Six feet under.

I've read the Victim Impact Statement written by his mother , she states 'Every day I am faced with the INDESCRIBABLE HORROR of my son's death'

Just wanted to get that out there.

In hindsight, I would argue that if Michael Zebhur had tossed DeShaun Johnson his wallet and while DeShaun was fumbling with it to see how much green was inside...If Michael Zebhur had pulled his gun and EMPTIED every round into DeShaun's heart / head....that would have been the reasonable and prudent thing to do....in hindsight.

He would have saved his mother a lifetime of "indescribable horror"

[tepin]

No problem. The more you know the better you'll be able to defend yourself in court.
I would highly recommend this class >>> MAG20 - I attended in 2013 and I would go again if the class were sponsored in the Twin Cities. Its 2 days and 20 hours of legal stuff related to self-defense.

[Lumpy]

So inside your home to prevent the felony of theft, can you assault a thief (tackle, wrestle, punch, etc.) AND THEN use deadly force if you're losing?

[LePetomane]

So inside your home to prevent the felony of theft, can you assault a thief (tackle, wrestle, punch, etc.) AND THEN use deadly force if you're losing?

It makes me wonder. In this state I would be afraid to use deadly force against an intruder. I'm inclined to believe that one is better off getting their ass kicked and robbed and then being sued by the intruder for tripping in the driveway while fleeing than properly defending themselves in a proper manner. You never know how a jury will rule. I spend a lot of time in Idaho and Wyoming where I know how a jury would rule in similar situations but there one does not have to worry about home intruders. But it is not an issue there.

[tepin]

So inside your home to prevent the felony of theft, can you assault a thief (tackle, wrestle, punch, etc.) AND THEN use deadly force if you're losing?

Yes. No doubt; as long as it's reasonable.

[jshuberg]

Do you still believe you can use deadly force in MN to protect personal property in the home e.g. a toaster, vibrator or pet? There might be a valid reason you have heard this multiple times from multiple people.

What I believe is that you made the statement that there was a MN Supreme Court case that stated that the felony crime in a defense of dwelling defense must be a violent crime. When I asked you about it, you went on to speak about reasonableness, insurance fraud, vibrators and toasters, but never answered my question, what is that case? While everything else is interesting and a worthwhile conversation in its own right, and since you do seem to be well versed on the issue, if such a case exists I'd like to read it. If you misspoke, that's fine, it's not a big deal, I just genuinely want to know.

As far as castle doctrine in MN goes, and whether we have a form of it or not, it depends on who you ask. Read Carothers, the Supreme Court refers to the common law notion of the home being a man castle, and that it is the basis of defense if dwelling. I believe it was Rep. Tony Cornish who made a correction during a committee hearing last year stating that MN does in fact have a version of castle doctrine through case law. It depends entirely on how rigidly you want to define castle doctrine. Do we have what Florida has, no. But we do have something similar that has been described as a form of castle doctrine by many people familiar with the term.

Other than these two points, I agree with everything you've stated.

[gunsmith]

Good News? : This Smith shooting is turning out to be less of a black eye than it could have been.

Media (at least channel 5) is not 'sensationalizing' it with lurid comparisons to "Trayvon" and discussion on this forum is bringing out thoughtful info.

??? Why haven't politicians been smearing with this story ???

It's an election year and there's nothing to be gained. Smith is being percieved as a lone Wac-o not a 'citizen with a gun'

Next time there is Second Amendment legislation in the legislature someone will mention it and hopefully it will fly like a lead balloon.

[gunsmith]

This should ultimately have a thread of its own but here the Minneapolis Police dept is being sued for excessive force / wrongful death.

I smell a lawyer looking for 40% of a 'settlement'.

These professional officers have hours and hours of training and they're being sued for split second decisions made during a struggle with a suspect who had grabbed on of their guns..... Don't know the facts....don't really want to.

http://kstp.com/news/stories/S3428821.shtml?cat=1

The attorney representing Terrance Franklin's father plans to file an excessive force and negligence lawsuit against the Minneapolis Police Department. Officers shot 22-year-old Franklin to death on May 10, 2013, after a chase that ended in the basement of an Uptown home.

A grand jury cleared the officers of any wrongdoing.

The attorney plans to file the lawsuit on Friday, one day before the one-year anniversary of Franklin's death.

"The evidence makes it clear that this was a wrongful killing," said Mike Padden, the attorney representing Franklin's father.

The chase began as a report of a burglary suspect. Police say Franklin fled a traffic stop, and broke into a home on Bryant Avenue, where he struggled with officers and a police dog in a cluttered basement of the home. Police said Franklin grabbed one of the officer's guns and shot the officers. Two officers then returned fire, hitting Franklin eight times in the head, neck and torso. Franklin was killed, and officers Ricardo Muro and Michael Meath were hit with gunfire. Both officers survived.

The lawsuit claims that Franklin's killing should not have happened, and was "entirely foreseeable," and states Franklin "presented no threat to the SWAT Team since he had been successfully apprehended, clearly had surrendered, had both of his hands in the air at the moment he was killed in a surrender position, and was unarmed, but was killed, nonetheless, in an execution-type fashion."

The lawsuit claims the two officers were shot as a result of an "accidental discharge" from one of the officer's firearms, and that two officers shot Franklin multiple times out of anger.

"This was a completely botched investigation. Why? Because there was a conflict of interest. This is the kind of case that you have to have an outside entity do the investigation," Padden said.

"I think these are lies," said John Delmonico, president of the Minneapolis police officers' union.

He said the lawsuit gets the case completely backwards.

"Terrance Franklin was not the victim. He was the criminal," Delmonico said.

[gunsmith]

Looks like there's a 'Smith case' brewing in Montana...just heard about it on Greta Van Sustern.

http://www.washingtonpost.com/news/morn ... e-student/

Montana homeowner who set trap for burglar is charged with killing German exchange student

According to court documents, 29-year-old Markus Kaarma of Missoula, Mont. was in a foul mood on April 23 when he went in to get his hair cut at Great Clips. His home had been burglarized a couple of times, he complained to the stylist. He had been up for three nights straight, with his shotgun, waiting for it to happen again.

“I’m just waiting to shoot some f—ing kid,” he told stylist Felene Sherbondy.

On Sunday, according to the Missoula County Attorney, he did.

The dead 17 year-old was an exchange student from Germany, Diren Dede, attending Big Sky High School in Missoula.

Homeowner and family in happier times...


The same google search 'Montana homeowner shoots' also brought up images of Byron Smith...