National "Stand Your Ground" debate hits home
Does the law give people a license to kill and legalize in-home murder?
By Jacob Wheeler Wednesday, Jan 30 2013
Last Thanksgiving, Byron Smith got more than turkey, cranberry, and mashed potatoes on his plate. The 64-year-old retired State Department employee shot and killed two wayward local teenagers when they allegedly tried to burglarize his home on Elm Street in Little Falls, a town of 8,000 residents approximately 100 miles northwest of Minneapolis.
Nicholas Brady, 17, and his cousin Haile Kifer, 18, had robbed an unoccupied home outside of Little Falls just days before, making off with prescription medication. Likely they were looking for more pills when they broke into Smith's house.
Smith, who told authorities that his home had been broken into eight times in recent years, was in his basement when he heard an upstairs window break. He saw Brady on the stairwell descending toward the basement and shot the unarmed teenager with a Ruger Mini-14 semi-automatic rifle. Then he methodically finished off Brady with a gunshot to the face at point-blank range. An audio surveillance recording at the house captured Smith saying the words, "You're dead."
Within 18 seconds, Smith produced a tarp, rolled up Brady's body, and dragged it into his workshop. Ten minutes later, according to the audio recording, Kifer called out for Brady, then crept down the stairs. Smith shot her once before his gun jammed, about which he sardonically quipped, "Oh, sorry about that."
"Oh my God! Oh my God!" Kifer reportedly moaned in pain.
Smith fired several more shots with a .22-caliber revolver, telling Kifer, "You're dying, you're dying," as she crumpled to the basement floor. He dragged her body next to Brady's, then noticed the teenage girl still gasping for air. That's when he fired what he later called a "good clean finishing shot" up into her cranium.
Upon seeing Kifer's body offer a death twitch, Smith commented, "It works the same in a beaver or a deer."
Byron Smith didn't call the police to tell them about the two dead bodies in his basement, instead phoning his brother in California. The next day he told a neighbor what he had done and, likely at their encouragement, hired a lawyer. Only then were the authorities alerted.
"He didn't want to trouble us on the holiday," Morrison County Sheriff Michel Wetzel says Smith told investigators.
Smith has been charged with murder and was released on bail December 18. Pretrial hearings will resume on May 6 as the court awaits toxicology and DNA results. In the meantime, a firestorm of public opinion has engulfed Little Falls. On one side are those who view Smith as a cold-blooded killer of unarmed kids. On the other are those who believe Smith had a right to defend his home from burglary.
William Anderson, Smith's neighbor and friend, says that if law enforcement had done its job in October — the last time Smith's home was burglarized — there wouldn't be two dead kids today.
"If they hadn't been breaking into homes, they would be alive today," adds Anderson. "That's what we're going to write in granite at the local school."
Byron Smith's defense in court will undoubtedly rest on his legal right to protect himself against intruders inside his home. Adam Johnson, an associate at Meshbesher & Associates, which will represent Smith, couldn't comment on the specifics of the case, but told City Pages, "We're preparing our defense based on both a person's right to self-defense and to defend their home."
Smith's lawyers will appeal to the "castle doctrine" or "defense of habitation law," which derives from the 17th-century British jurist Sir Edward Coke, who articulated in his The Institutes of the Laws of England that "an Englishman's home is his castle," and he has the right to exclude anyone from his home. The dictum followed colonists to the New World, where over the next 377 years it merged with America's frontier individualism and gun culture to metastasize into today's "Stand Your Ground" laws, versions of which exist in 26 states.
The doctrine designates a person's home — and in some states, car or place of business — as a place where that person has certain protections and immunities and may, under certain circumstances, use deadly force to defend against an intruder without threat of prosecution. Prior to the passage of these shoot-first-ask-questions-later laws, the homeowner had a duty to try to retreat and call authorities for help.
Morrison County Sheriff Wetzel alluded to the "castle doctrine" in a statement after Smith was arrested, but insinuated that the Little Falls man had gone too far.
"A person has every right to defend themselves and their homes, even employing deadly force if necessary," Wetzel began, but added that investigators believe Smith's actions went beyond self-defense. "The law doesn't permit you to execute somebody after the threat is gone."
Pete Orput, the veteran Minneapolis homicide prosecutor who will help Morrison County authorities put Smith on trial, says that this case isn't about gun rights, it's about murder.
"This case is big," Orput says. "This is Minnesota's Trayvon Martin case."
The fatal shooting of Trayvon Martin by George Zimmerman in Sanford, Florida, last February commanded national headlines and set off angry protests far beyond the Sunshine State.
The story had an explosive racial element, since Martin was an unarmed 17-year-old African-American and his killer was a 28-year-old white Hispanic. Even President Barack Obama commented on the issue, saying, "If I had a son, he'd look like Trayvon."
The national handwringing over guns in Florida was in some ways fitting. Seven years earlier, Florida Gov. Jeb Bush signed the nation's first "Stand Your Ground" bill into law. Prompted in large part by the Trayvon Martin case, the Tampa Bay Times published a comprehensive study of nearly 200 Florida Stand Your Ground cases and their outcomes: Among them were cases of drug dealers avoiding murder charges, but also exonerated defendants legitimately acting in self-defense, including a woman who stood her ground after being choked and beaten by an irate tenant.
Among the Tampa Bay Times' findings: that 70 percent of those who invoke Stand Your Ground to avoid prosecution have gone free; defendants claiming Stand Your Ground are more likely to prevail if the victim is black; and that the number of cases is increasing as defense attorneys use Stand Your Ground in ways that state legislators never envisioned. Stand Your Ground claims have arisen following incidents outside an ice cream parlor, on a racquetball court, and at a school bus stop. Two-thirds of the defendants used guns, but other weapons have included an ice pick, a shovel, and a chair leg.
In November, another grisly tale emerged in Florida of an older armed man initiating an argument with a black teenager that ended in a fatal gunshot. This time 17-year-old Jordan Davis was shot by gun collector Michael Dunn following an argument over loud music outside a Jacksonville convenience store. The reaction to Davis's death didn't reach the fever pitch of Trayvon Martin's case because local police quickly charged Dunn with murder.
Since it was born in 2005, Stand Your Ground has spread like wildfire. Seven years later, more than half of the states in the union have adopted some version of it — not by organic political means, but after they were pushed as "model legislation" by the National Rifle Association and the Koch brothers-funded American Legislative Exchange Council (ALEC), a corporate-sponsored neo-conservative consortium of lawmakers.
According to Mother Jones magazine, the year after Florida adopted Stand Your Ground, the stepchild of England's castle doctrine spread to 12 other states across the Deep South as well as Kansas, Michigan, and Indiana.
In Miami that year, a man shot 14 bullets at a car full of gang members and avoided prosecution by citing the law. In 2007, justifiable homicides more than tripled in Florida, while four more states adopted "Stand Your Ground."
In 2008, a 15-year-old boy in Tallahassee died after getting caught in a shoot-out between rival gangs — two of the gang members successfully hid behind "Stand Your Ground."
Meanwhile, Ohio and West Virginia joined the list of states to adopt the statute. Four months after the law took effect in Montana in 2009, a Walmart employee in Billings was released from custody after claiming he shot a co-worker in the face in self-defense.
Has the introduction of Stand Your Ground laws by state legislatures emboldened gun owners to shoot and kill without fear of prosecutorial reprisal? Has Stand Your Ground, as Florida state Sen. Steve Geller warned, encouraged people to think that "you ought to be able to kill people that are walking toward you on the street because of this subjective belief that you're worried that they may get in a fight with you?"
It apparently did for Joe Horn.
In the Houston suburb of Pasadena on November 14, 2007 — two months after Texas passed Stand Your Ground — the 61-year-old retiree saw two burglars breaking into the house next door. He called 911, but also grabbed his shotgun.
Horn told the operator, "I've got a shotgun; do you want me to stop them?"
The Pasadena emergency operator responded: "Nope. Don't do that. Ain't no property worth shooting somebody over, okay?"
A back-and-forth ensued, and the operator told Horn that officers would arrive soon.
"Okay," Horn countered. "But I have a right to protect myself too, sir," adding, "The laws have been changed in this country since September the first, and you know it."
"You're going to get yourself shot," countered the operator.
To which Horn replied: "You want to make a bet? I'm going to kill them."
When the authorities arrived, they found Hernando Torres and David Ortiz dead from bullet wounds fired from behind them. Eight months later, a Harris County grand jury declined to indict Horn on any criminal charges.
"Stand Your Ground serves to enable paranoid crazies to commit murder without fear of any consequences," said Elliot Fineman, CEO of the National Gun Victims Action Council. "The most cursory look into basic psychology shows the certain potential of Stand Your Ground for stimulating aggression, and all for the fantasy of self-protection by way of a carried gun in public."
Examples abound of Stand Your Ground promoting vigilantism around the country in 2012. Last March in Wisconsin, Bo Morrison was shot and killed by a homeowner who found the unarmed 20-year-old on his porch early one morning. Morrison had tried to evade police responding to a noise complaint at a neighboring underage drinking party. The homeowner was not charged by the local district attorney.
Wisconsin doesn't officially have Stand Your Ground, but Gov. Scott Walker signed an "intruders bill" in 2011 that presumes somebody who uses deadly force against a trespasser in their home, business, or vehicle acted reasonably, whether or not the intruder was armed.
In April, 22-year-old Cordell Jude shot and killed Daniel Adkins Jr., a mentally disabled pedestrian who walked in front of Jude's car as he was pulling up to the window of a Taco Bell drive-thru in Arizona, which passed Stand Your Ground in 2010. Jude thought he saw Adkins wield a metal pipe in the air, but it was actually a dog leash. No arrest was made.
In June, a judge in Miami dismissed a second-degree murder charge against Greyston Garcia after he chased a suspected burglar and stabbed him to death. The judge decided the stabbing was justified because the burglar had swung a bag of stolen car radios at Garcia. The judge found Garcia was "well within his rights to pursue the victim and demand the return of his property."
In October, citing the state's newly strengthened castle doctrine law, Montana prosecutor Ed Corrigan declined to indict Brice Harper, who had shot and killed Dan Fredenberg, the husband of the woman with whom Harper was having an affair. Harper killed an unarmed Fredenberg when he walked into Harper's garage.
"I told him I had a gun," Harper told the police, "but he just kept coming at me."
And on December 10 in Rochester, Minnesota, a 61-year-old man shot and critically wounded his 16-year-old granddaughter when he mistook her for an intruder entering his house just before 11 p.m. The grandfather, who reportedly had a recent burglary at the nearby Rochester Recreation Center on his mind, responded to a noise outside by arming himself with a handgun and firing two rounds at the figure he saw standing on his patio. The girl was in critical condition but is expected to survive.
Minnesota has a law on the books that stipulates that shooting an intruder is legal if the shooter has a reasonable belief that doing so would prevent a felony from occurring inside the home. Nevertheless, Gov. Mark Dayton early last year vetoed a "Stand Your Ground" bill that the Republican-controlled Legislature had passed with the support of some Democratic lawmakers from rural districts.
Minnesota's Stand Your Ground bill, H.F. 1467, was sponsored by Republican state Rep. Tony Cornish and state Sen. Gretchen Hoffman, and would have been among the "craziest gun laws in America," according to Salon. Had Dayton not vetoed it, the Minnesota version would have exempted homeowners from any duty to retreat if an intruder enters illegally; allowed the use of deadly force if someone is threatened with substantial, albeit temporary, bodily harm (including a punch to the face); granted total immunity from criminal prosecution; and disallowed the arrest of the suspect until police had fully considered any claim of self-defense.
Tom Weyandt, a former assistant city attorney in St. Paul, published a detailed critique of H.F. 1467 last year in which he did a line-by-line reading of Minnesota's vetoed Stand Your Ground bill in comparison to Florida's law, coming to the conclusion that Minnesota's version was far worse.
"The law currently says you can use deadly force if you're subjected to the risk of great bodily harm or death," explains Weyandt. "They [proposed changing] it to lower the standard to substantial bodily harm, which could mean as little as a bruise — a temporary visible injury. If you feared that I was gonna punch you in the eye, under their proposal you could kill me. Every doofus on the street who says 'self-defense' would get a much greater chance of a walk than he has now."
The deluge of Stand Your Ground killings hasn't deterred gun-rights advocates like Representative Cornish — nor did the December school massacre in Newtown, Connecticut. Cornish said in November that, with his party now in the legislative minority, there was "zero" chance he'd propose the "deadly force" bill again this session. But the Sandy Hook tragedy, and a push by the White House for stronger gun laws, apparently changed his mind.
Cornish recently reloaded, insinuating that he'll make another effort to allow teachers and staff to carry concealed weapons even if a school's principal or administrators don't approve. Current law requires permission from administrators before a teacher can bring a weapon to school. Cornish will also try to require public colleges to let students carry handguns on campus if they have the applicable permits.
Had it passed Governor Dayton's desk last year, would Minnesota's shoot-first bill have given Byron Smith a get-out-of-jail-free card? Cornish doesn't think so.
"You could feasibly see [Smith] mounting a defense for the first shot," Cornish says. "But after that initial one shot, then he went completely out of the realm of reality and executed two helpless people."
But if Minnesota had Stand Your Ground, would Little Falls authorities even have had the power to question Smith, listen to the audio recordings, and learn how he killed the two teens?
"They would not have been able to arrest him until they could come up with enough evidence that his claim of self-defense was unreasonable," says Weyandt. "In Florida, everybody gave the chief of police [in the Travyon Martin case] a ton of crap. But [under a Stand Your Ground law] you can't arrest a guy until you can prove his claim of defense was invalid."
Morrison County Sheriff Wetzel, who was part of the team that arrested Smith at his house the day after Thanksgiving, agrees that Cornish's bill would have proved problematic.
"How would you ever again convict someone of homicide in their own home?" asks Wetzel. "One could just say, 'I was afraid and I feared for my life.' But there needs to be an objective standard. Was it reasonable for you to be afraid?"
Law enforcement around the state took a strong stand against the shoot-first bill. The Minnesota County Attorneys Association, the Minnesota Chiefs of Police, the Minnesota Sheriffs Association, and the Minnesota Police and Peace Officers Association all lobbied lawmakers and Governor Dayton to shoot down Stand Your Ground.
"Our concern was that, had that legislation been signed into law, it would have made a Byron Smith-type situation more difficult to prosecute," says John Kingrey, executive director of the Minnesota County Attorneys Association. "Most people would agree that you have the right to use force with force, but once an intruder is incapacitated, your duty to continue using force ceases."
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