Justified Homicide and the Diminishing Duty of Reasonability

In the wake of the Mike Brown shooting in Ferguson, Missouri, it is difficult not to reflect on the constant expansions of affirmative defense doctrines that seem to be increasingly lenient. Specifically, self-defense laws and the fleeing felon doctrine demonstrate how the law has steered away from “defending”, and has empowered the attacked to become the aggressor. By removing the duty to retreat, and not creating any sort of alternative action provisions to prevent deadly force, self-defense, in some states, has become a license to kill. The fleeing doctrine, on the other hand, allows trained law enforcement, which are skilled in using defensive methods to apprehend suspects, to use deadly force if the felon resists and flees. Instead of using other techniques to stop and subdue, deadly force is permitted if it is reasonable to believe that the officer is in danger of deadly force or physical injury, or if others are. While justifiable homicides are commonplace in our criminal law system, this shift from trained police to everyday citizens having these rights is concerning. On the one hand, there is a necessity to permit reasonable force to defend against injury/assaults on one’s person. On the other hand, where is the line between reasonable force and vigilante justice? When does that line begin to get disturbingly blurred at the hands of our judicial system? This entry will discuss state self-defense laws, their application in controversial cases, and potential reform efforts. 

Traditionally, the law allows the use of deadly force only when one reasonably believes that they are in imminent danger of death or serious bodily harm.  As it stands, the defense of self allows for individuals to use the necessary force to protect their person and their life. What is troubling is the constant expansion that states are using to create more lenient self-defense laws. From states that do not require there to be imminent danger of death to states that allow you to murder over property, the boundaries are constantly tested, pushed back, and blurred. This was exhibited in a study that showed the expansion of self-defense laws lead to more homicides by a significant 8%.

This 8% increase should raise eyebrows, as it directly impacts the role of the prosecutor.  That is an additional 600 homicides per year across states that have expanded the castle doctrine. Homicides are on the rise because they are “justified” through states permitting the use of unnecessary force. This will increase prosecutorial workloads. For those who are taken to trial, it takes up the court’s time, it is costly, and victims’ families are forced to listen to testimony that indicates deadly force was okay, even though the harm had passed. The prosecutorial role contains a duty to be an administrator of justice. That justice shouldn’t extend to self-proclaimed warriors, using the statutes as a shield to commit murder, but instead it should be used to ensure that self-defense is only allowed when there is a life to defend. These laws are tying the hands of prosecutors who wouldn't be able to bring forth a case where one of these expansions prevented it. So where is the accountability for those that intentionally manipulate the law in order commit these crimes?

In Texas in 2007, Joe Horn chased and shot down burglars after they stole property from his home. At the time he was on the 911-dispatch call and was alerted that there were officers en route. Since he was chasing them, there was also no apparent harm. However, a grand jury refused to indict him. It should be noted that throughout the call, Horn continuously said to the dispatcher that he had a right to defend himself and his property, and as he chased the burglars he stated “I’m going to kill them.” The law protected Horn as he chased down the burglars, and gunned them down.  

The “stand your ground” law that Texas modeled its castle doctrine after has long been deemed the vigilante justice doctrine that hands people a gun and a license to kill. By having no duty to retreat, even outside the home, states are empowering the attacked to become the attacker. This concept of allowing pursuance even when the danger has ceased brings us to present day Ferguson, Missouri. Legal experts in the media frenzy surrounding the Mike Brown killing have reported that self defense includes consistent pursuance until deadly force is used. In Tennessee v. Gardner, the Supreme Court ruled on this issue in relation to law enforcement. The Fleeing Felon Rule allows law enforcement to use deadly force to retrieve a felon. This justifiable homicide, which can be conducted while the felons are subdued, seems to deter the entire goal of the doctrine itself. By not requiring some level of retreat or at least avoidance, this doctrine can easily lead to a game of hunter and hunted. It completely contradicts the “reasonable” force expectations.

The modifications to justifiable homicide defenses for both citizens and law enforcement continue to be a rising issue. The attacked are given a license to kill and not a permit to protect. When states permit deadly force to the extent that one can hunt down their initial attacker, burglar, etc., it sends a very inconsistent message to communities. That message conflicts with the initial message of protecting your home, protecting your person, and protecting your community, because it contains no responsibility to retreat or use a lesser force.  That same message is being echoed through the application of the fleeing felon doctrine. Even though there must be a reasonable belief that serious injury or death from the hands of the felon may occur, there is still no requirement for an officer to first attempt a lesser level of force for apprehension before deadly force is used. Instead of taking measures to stop the criminal, they are permitted to kill. These steps taken by states are sending a message that it is okay to kill when you have to, but it is also sending a message that says you can kill if you want to. There is no duty to retreat, no duty to use a lower level of force, and therefore no duty to be held accountable.

Amber Cleaver

Staffer, Criminal Law Practitioner 

Photo by Mike Licht, via Flickr

Stand Your Ground: Renisha McBride, Trayvon Martin, and the Law of Self-Defense

#158477645 / gettyimages.com

Both parties agreed to the facts. On November 2, 2013, at 4:30am in Dearborn Heights, Michigan, Theodore Wafer shot and killed Renisha McBride, an unarmed 19 year-old woman who had been pounding on the front door to his house.  The case was quickly thrust into the public spotlight, spawning coverage from numerous news sources and even its own Wikipedia page.  The ensuing two-week trial ended last Thursday when, after two days of deliberation, the jury returned a guilty verdict, convicting Wafer of second-degree murder, involuntary manslaughter, and a felony firearm-related offense.

Florida’s Stand Your Ground Law on Trial, Again

On Monday, February 3, 2014, Angela Corey began jury selection as she prepares to prosecute a second, high profile murder case in Florida.  Corey is prosecuting Michael David Dunn for the murder and attempted murder of seventeen year old Jordan Davis and his friends.  Davis was killed in the parking lot of a Jacksonville, FL gas station on November 23, 2013.  Corey is the prosecutor who was hand selected to investigate the Trayvon Martin case in March 2013.

Self Defense or Murder?: Is the Shooting of Renisha McBride the Next Big Story?

As the country begins to move past the media frenzy that followed the killing (or murder, depending on where you stand) of Trayvon Martin, a new incident has occurred that seems prime to dominate headlines.  Around 1:00 am on November 2, 2013, Renisha McBride drove her vehicle into a parked car in suburban Detroit.  Tests would show that McBride had a blood alcohol content of 0.218%, well above the legal limit in Michigan.  A few hours later, a “bloodied and disoriented” McBride approached the porch of Dearborn Heights resident Theodore Wafer.  Sources report that McBride began to knock on Wafer’s door, prompting Wafer to come downstairs with his shotgun.  Wafer, standing in his home, discharged his weapon through a closed screen door, striking and killing the twenty-four year old McBride.  Wafer then called 911 to report the shooting.  Wafer told investigators that he brought down the shotgun because he believed McBride was attempting to break into his house (though there were no signs of forced entry).  He also claims that the weapon accidentally discharged while he was investigating the situation.  McBride died shortly after and Wafer has been charged with second degree murder.

There is no doubt that the story will garner attention because of its societal implications.  McBride was young, black, unarmed, and presumed to be committing a crime by a fifty-four year old white man.  Further, while there are not many witnesses, it is far more likely that McBride was seeking medical aid than trying to rob a house.  The case has already drawn comparisons to the Martin case, with reporters and bloggers putting extra emphasis on the issues of racial profiling and gun control.

While the lack of a post-racial society and the potential cry for stricter gun laws are more likely to pull readers in, the criminal law elements of the story are also fascinating.  Like Florida, Michigan has a “stand your ground law,” a statute that permits individuals to use lethal force rather than flee when they are threatened.  Section 780.972 of the Michigan Code states:

(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.

(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.

(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.[1]

More importantly, section 768.21C of the Michigan Code states that an individual does not have a duty to retreat before using deadly force if the individual is in his or her own dwelling or within the curtilage of that dwelling.[2] Like most self-defense statutes, the individual must have a reasonable belief “that he is in imminent danger of either losing his life or suffering great bodily harm, and that the use of deadly force is necessary to prevent that harm.”  The reasonable belief standard is that of an objective reasonable person.

The case will likely come down to two questions: (1) would an objective reasonable person in Theodore Wafer’s position believe that he was in imminent danger of losing his life or suffering great bodily harm to the extent that the use of deadly force would be necessary to prevent that harm, and (2) did Wafer accidentally discharge his weapon or did he purposely shoot at Renisha McBride?  While the legal scholar in all of us would love to ignore the societal and policy implications of the case, they are intrinsically linked to these questions.  To the first question, race clearly plays a role.  An objective, reasonable, person would not presume an individual is breaking into their house simply because of the color of their skin.  Other factors are also at play (though it was four am and McBride was covered in blood, albeit her own, there were no signs of attempted forced entry).  If he testifies, Wafer will have to answer questions regarding why he thought McBride was trying to break in.  If that answer insists it was because she was black, then it is likely a jury would find that an objective, reasonable person would not have believed they were in danger.

The second question plays more to the role of guns in society.  Arguably the most vocal argument regarding guns is their use for protecting individuals in their homes.  A handgun or shotgun in the dwelling seems to be the backbone of the second amendment, for it insists upon one’s right to protect themselves in their most sacred place (not to mention the notion of keeping the government out of one’s home).  Yet the Renisha McBride killing brings light to the issue of responsible gun ownership, even within the home.  How do we as a society justify the shooting of an injured twenty-four year old woman?  Defending one’s castle?  The facts of this case will no doubt bring light to the age old debate of whether guns make society safer or more dangerous.  This will also broaden the debate on self-defense laws in the United States.  On both sides of the argument, supporters and detractors of “stand your ground” or “defend your castle” laws will be keeping an eye on this case, as will Congress who has reviewed stand your ground policies in the wake of the Trayvon Martin case.

Renisha McBride’s death is a tragedy.  As Huffington Post and Fox News start preparing their editorials, the criminal law scholars will certainly have a lot to consider.  The case presents interesting legal issues that are directly tied to national policy concerns.  Like the Trayvon Martin case, the Nation will certainly have questions: How do we become a post-racial society?  Are we too quick to label something as racial profiling?  How can we protect ourselves from guns?  How do we protect ourselves from tightening gun laws?  Hopefully a courtroom in Michigan will provide criminal law practitioners some answers to these complicated ideas.

Calen Weiss

Articles Editor, Criminal Law Practitioner

Image from Facebook.

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[1] Mich. Comp. Laws §780.972 (2013).

[2] Mich. Comp. Laws §768.21C(a) (2013).