Ryan Johnson, Published November 27 2012
Laws on use of deadly force in home depend on state
But Joe Parise, managing attorney for the 7th District public defender office in Moorhead, said deciding whether an action is done in self-defense or retaliation often comes down to a subjective call.
“The court will instruct the jury on a reasonable person’s standard, which is supposed to be more objective,” he said. “But when you really come down to it, a lot of times the person who’s asserting self-defense is looking at it from their own viewpoint, and then the jurors are trying to apply the instructions that the court has given them.”
The issue is once again in the news after a Little Falls, Minn., homeowner shot and killed two unarmed teenagers during an apparent Thanksgiving break-in.
Byron David Smith, 64, told authorities he feared they had a weapon. He was charged with two counts of second-degree murder for allegedly using an unreasonable level of force to protect himself and his home.
What is considered reasonable – and what is protected from prosecution – varies from state to state. Minnesota and North Dakota lawmakers have made efforts in recent years to change these laws.
Minnesota law offers a one-paragraph statute defining the justifiable taking of life in such cases, saying it’s only allowed “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 while preventing a felony in the residence.
Melton said jurors are provided clear instructions, based on this statute and case law, that outline a justified killing: It must have been done in the belief that it was necessary to avert death or great bodily harm, the defendant’s judgment of the level of peril needs to be reasonable under the circumstances and jurors must believe a reasonable person in this situation also would have decided to defend and didn’t have alternatives to avoid the peril.
Melton said he applied Minnesota’s standards for deadly force when he decided not to charge Vernon Allen in a recent Moorhead home invasion case. Allen shot and killed 17-year-old Joel LaFromboise in 2009 after the teen broke into his apartment and allegedly grabbed the barrel of Allen’s shotgun.
Melton said a reasonable person in that situation could have made the same judgment – something that might not be the case in the Little Falls shooting, where the homeowner told investigators he shot 18-year-old Haile Kifer several times in the chest while she was on the ground after he shot her while she came down a stairway.
Minnesota’s Republican-controlled Legislature passed a bill earlier this year that would have expanded the legal justification for self-defense by a so-called “castle doctrine” to cars, vehicles and tents, and deleting a requirement that a person try to retreat first. Democratic Gov. Mark Dayton vetoed the bill.
North Dakota legislators approved House Bill 1319 in 2007, something Rep. Al Carlson, R-Fargo, said was necessary to provide “a little better form of protection without having the law get in your way” in a residence.
“Before, it was kind of set up so that you were to seek shelter and not defend yourself in your home if you were broken into,” he said. “With this, the law follows the doctrine of your home is your castle and allows you to use reasonable defense of your home when you’re there.”
The bill was controversial at the time, earning the opposition of several law enforcement groups. But Carlson said it doesn’t appear the law has caused problems in the past five years.
“We made sure it didn’t expand out to people in their cars and parking lots and things,” he said. “It’s basically a home defense bill.”
Cass County State’s Attorney Birch Burdick said North Dakota still requires a level of restraint.
“Your home is considered a protected area, so you don’t necessarily have a duty to retreat, but you still have to consider what’s appropriate,” Burdick said.
He said it often makes more sense to call the police than use force.
“You shouldn’t just kill people because you might be able to explain it away,” Burdick said.
Carlson said North Dakota lawmakers weren’t unique in taking a look at self-defense and deadly force laws – more than half of the states have passed similar castle doctrines.
He said expanding legal protections to those who defend themselves isn’t meant to justify situations like the recent shooting in Little Falls.
“That was way excessive,” Carlson said. “That was never the intention of the law.”
Parise said if the Little Falls case goes to trial, it will be up to the jury to decide if the homeowner was justified or not.
He said he had a case near Willmar, Minn., involving a teenager who “got a little lippy” with college students in an apartment parking lot. When one of the students ran about 70 yards and chased him down, Parise’s client stabbed the pursuer and said it was in self-defense. The jury found him guilty.
Readers can reach Forum reporter Ryan Johnson at (701) 241-5587
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