Right, Wrong, And Fearless Predictions

For starters – the Thanksgiving shooting in Little Falls seems, according to what we know, to be a textbook case of how not to shoot in self defense.

64 year old Byron Smith allegedly shot Nicholas Brady, 17, as he came down the cellar stairs – and then allegedly shot Brady’s cousin Haile Kifer, 18.   He’s been charged with two counts of second degree murder.

And if the news accounts are accurate – and as we’ve learned, on all gun-related stories, we must distrust but verify the media, but this case seems fairly clear-cut so far – he’ll deserve the conviction.  While you don’t have a “duty to retreat” in your home in Minnesota, you still have to have reasonable fear of death or great bodily harm (or, nebulously, to “prevent a felony”, which in practice had better mean “the felony of killing, kidnapping or raping you or your family”), and the force you use has to be reasonable – in other words, no finishing people off.

According to the complaint, Smith told investigators:

He heard glass breaking around noon Thursday while he was in the basement. It was the latest of several break-ins that he’s experienced. Brady started coming down the stairs, and Smith shot him with a rifle by the time he saw the intruder’s hips.

Unless Brady had a chainsaw running around hip level, there wasn’t a whole lot of fear of death, there…

Brady fell down the stairs and was looking up at Smith when the homeowner shot him in the face.

“I want him dead,” Smith explained to the investigator for the additional shot.

And there’s your “unreasonable force”, right there.

And let’s be honest; you hear the same kind of talk from all kinds of people; “it’s best to finish them off”, one yahoo told me in a bar, “because then they can’t sue you”.

I’ve never heard it from anyone that’s been through carry permit training, of course.

And just in case there was some corner of his legal case that wasn’t already utterly self-sodomized…:

Smith put Brady’s body on a tarp and dragged him to an office workshop.

A few minutes later, Smith heard footsteps above him. As in Brady’s case, Kifer too started down the stairs and was shot by Smith by the time he saw her hips, sending her tumbling down the stairs.

Smith attempted to shoot her again, but his rifle jammed, prompting Kifer to laugh.

Upset, Smith, pulled out a revolver he had on him and shot her “more times than I needed to” in the chest, he said.

Smith dragged Kifer next to Brady as she gasped for her life. He pressed the revolver’s barrel under her chin and pulled the trigger in what he described as a “good, clean finishing shot” that was meant to end her suffering.

Hint:  virtually no deer-hunting etiquette is appropriate in self-defense shooting.

This is a case that should be used in self-defense classes as a punch-list of everything not to do in a self-defense case.

  • You just don’t get to shoot on sight.  Many juries will have a hard time accepting that you had a reasonable fear of death or great bodily harm if you shoot before you can fully see your perp in what amounts to an ambush zone.
  • You do not finish them off when they’re down.

And above and beyond that?  You call the cops immediately.  And – it should surprise nobody – Smith did not:

 Sheriff Michel Wetzel told reporters Monday afternoon that Smith explained to authorities that he didn’t call immediately after killing the two because “it was Thanksgiving. He didn’t want to trouble us on a holiday.”…Smith acknowledged leaving the bodies in his home overnight before calling a neighbor to ask about a lawyer and to request that authorities be notified.

Naturally, you should be on the phone with the police before the smoke clears.

And while I send my condolences to the victims’ families, of course, the kids had no business in his house.  Note, unruly teenagers; you’re not immortal, and you’re only as safe as your least-informed, least-stable victim lets you be.

But here’s the fearless prediction; this case will be used as a chanting point against “Stand Your Ground” at the very least, and most likely against any sort of self-defense reform.

Not because this case has any merit as an example – no factor in this case has any bearing on “Stand your Ground”, and indeed has to have been one of the least-justified self-defense shootings I’ve heard about since Sgt. Jerry Vick’s shooter tried to claim it.

Not because Smith is a carry permit holder – while the records aren’t public, let’s just say his behavior is not that of someone who knew what he was doing.

No – because it involves two things that are catnip for anti-human-rights activists:

  • Dead “children”
  • Someone who is not, on the surface, a criminal doing something that is exceptionally rare among non-criminals; screwing up with a gun.

It’ll be wrong.  It’ll be legally as well as factually void.  It’ll be pure disinformation.

And as we’ve seen in the past two elections in Minnesota, legally/logically/factually void disinformation sells.

Just saying; if Heather Martens doesn’t put out a press release trying to tie this case to “Stand Your Ground” and/or concealed carry, I’ll be amazed.

23 thoughts on “Right, Wrong, And Fearless Predictions

  1. Since this first appeared in the paper a couple of days ago I’ve been surprised at how restrained and even circumspect the local papers have been in covering this. The articles have focused on the facts as they are known, and the interviews with the family on both sides and the relevant authorities haven’t been sensationalized. And so far, I’ve not read where the reporters have gone to outside sources from interest groups – no Heather Martens (and no Andrew Rothman, for that matter). Perhaps I’ve missed it.

    This is a far cry from the treatment that Jeanne Assam received in stopping a mass-murderer, or what was dug up and dished out a few years ago when an elderly man in his bed shot and killed a young intruder as he entered the bedroom. The news focused on the young man who “had just begun turning his life around” and the shooter’s history 25 years prior when he was a school principal dismissed for being too harsh and critical of students.

    As you noted, Mitch, this is (or will be) textbook of what NOT to do, and Smith’s actions do not track with any CC class I’ve been in, or anything I’ve read by Mas Ayoob or others. Nor do I think Smith’s actions, other than the first shot, are protected by Castle Doctrine and wouldn’t have been appropriate under Cornish’s “Stand Your Ground” bill as I’ve understood it.

  2. Two things come to mind.

    1. This is the poster child for why you shouldn’t *ever* say *anything* to coppers without a lawyer.

    2. Present circumstance being right or wrong, we all owe him a debt. If burglers start having to worry about crabby old fella’s looking to dole out nice, clean finishing shots they may start seriously considering a less hazardous line of crime…like welfare fraud, for instance.

  3. you still have to have reasonable fear of death or great bodily harm

    As someone who is in the process of looking to get a handgun and a carry permit, this is one question I have in this incident. Clearly I think he went too far with the girl, not to mention not calling the police immediately.

    But, I’d read where he had been victim of break-ins before. He’s in his basement, a window breaks, and someone is coming down the stairs. If I’m on a jury, I don’t think I have a problem saying that comes under the heading of “reasonable fear of at least great bodily harm.”

    Mitch, are you saying in this situation the home owner should wait till the intruder is in full view, so he can see the intruder’s hands, if they are carrying a weapon etc…? Then what, yell stop, the intruder runs back upstairs, and you’re stuck in your basement not knowing what or who is up there waiting for you?

  4. Jeff…I see it much like you. Yes, he went wayyyy to far, and something is goofy when he keeps the bodies there for a day and not call the police.

    But we have an older guy, living alone down a rural dead-end road. He has had his house broken into 6 times, including last month.

    Yes, he did over do it and I think I could have been more restrained. But as the old saying goes….it is better to be tried by 12 than carried by 6. Although not calling the police will not do him any favors in a trial.

  5. If you do the crime, you’ll do the time. Even if it is in your own castle. Every action has its consequences. 3 bad apples off the streets.

  6. I don’t have a problem with the initial shot. A burglar is inherently dangerous and you DO NOT know how many of them are involved nor can you tell if they have a concealed weapon. If they weren’t dangerous they wouldn’t be there The only question is just how dangerous. A man in his home shouldn’t have to parse that detail. What completely nails this guy are the finishing shots and the failure to call the police the moment he knew he was safe.

  7. Jeff K, an intruder in your house can be assumed to be a threat as you don’t know their motives or what they’re capable of. It’s also not a good idea to shout “freeze!” or “I’ve got a gun!” as the intruder likely will not react the way they do on tv shows (and forget about just “winging” them).

    As the sheriff indicated in the story, shooting an intruder is a reasonable and legal response. Even the shot is fatal, you’re still within the law. Continuing to shoot, however, when the intruder is incapacitated, is the issue here, along with the shooter’s failure to notify authorities. A case can be made that an elderly person, confronting a teen, even wounded, may still be at risk if you’re not certain they are incapacitated, but the shooter’s own testimony does not suggest this was the situation.

    Finally, since you’re researching the subject, I’d strongly suggest you read some of Mas Ayoob’s books or articles. He is an expert on firearm self-defense who is highly respected by police and military as well (and even mentioned in a Vince Flynn novel). He writes well, and clearly, about every aspect of using a handgun, from considering the possibility, selecting a weapon, using it safely AND the emotional, moral and legal ramifications of using the weapon even in a life or death situation. All valuable information when making this decision.

  8. Just to be clear, here: while the initial shot may have been legitimate, one is only as safe in that decision as their County Attorney will let them be.

    So when you say:

    A man in his home shouldn’t have to parse that detail.

    …you’re right. But depending on the county you live in, the decision may well be parsed at that level of detail anyway – by the county attorney, and then by plaintiff’s attorneys in a civil case.

    My latest carry permit instructor had a great example. You DO have the right to shoot under MN law to prevent a felony – say, the theft of your new Macbook (in a robbery that is not otherwise explicitly life-threatening). Will killing the robber be ultimately be worth the arrest, the arraignment, the expense of retaining a defense attorney, the trial process by which you successfully argue that the shooting was justified, and the inevitable civil suit?

    It’s why my first carry permit instructor, the late Joel Rosenberg, drilled into our heads that shooting someone in self-defense is the second-worst possible outcome.

  9. Night Writer, I disagree that an intruder can be assumed to be a threat IN THE EYES OF THE LAW. That was the point of the Castle Doctrine legislation – to create that legal presumption – that Democrats defeated. Mitch is correct: you cannot assume he’s a threat, you must be able to recite the specific facts that caused you to be afraid and you must convince a jury your fear was justified by those facts. “Shoot on sight” equals “go to prison.”

    As for Mas Ayoob, I agree and recommend “In The Gravest Extreme” as it’s an excellent primer.

  10. >>> Will killing the robber be ultimately be worth the arrest, the arraignment, the expense of retaining a defense attorney, the trial process by which you successfully argue that the shooting was justified, and the inevitable civil suit?

    If my wife and children are in the house? Absolutely.

  11. PS I suppose it easy for me to say that. If our county sheriff aggressively pursued a reasonable self-defense claim in a home (unlike finishing someone off when they’ve been neutralized) he’d never get reelected. The Metro area has the same law but the people who enforce it are so radically different that it might as well be different law. You’ll note that the Morrison County sheriff (where I used to live) was very careful to inoculate himself against election problems by openly stating that “a person has every right to defend themselves and their homes, even employing deadly force if necessary.” His voters like to hear that.

  12. Jeff, last August, from the leafy backyard of my secret North Minneapolis Villa, I witnessed a couple of hood rats jump out of their cars, stand 10 feet from one another and empty full clips into each other….talkin’ smack the whole time.

    They jumped back into their cars; one made it up the curb into my villa wall, the other about a block before they both died at the wheel.

    If I hear an intruder breaking into my house, I automatically know it’s those two back from the dead and working together, and I’ll react appropriately. That’s my story, and my lawyer will stick to it.

    My point is, if you’re gonna arm yourself to defend your house, it’s not a great idea to overthink legitimate use. Just don’t talk to the coppers afterwards, that’s what lawyers are for.

  13. By the way, Swiftee, the law is not what you learned on TV, it’s a minefield. If the cops ask you “Why did you do it?” and you fail to deny it, they MIGHT be able to use your silence against you,

    If you were in custody, undergoing interrogation, received your Miranda warning and then remained silent, they can NOT use your silence against you. Doyle v. Ohio (US Supreme Court 1976)

    BUT, State v. Borg (2011) says pre-arrest, pre-Miranda silence CAN be used against you.

    AND Johnson v. State (MN Ct App 2012) says post-arrest, pre-Miranda silence CAN be used against you.

    Joel Rosenberg’s advice seems to be holding up: In response to every question, you say “On advice of counsel, I decline to answer any questions without my lawyer present and I do not consent to any search.”

  14. BTW, in my new home of South Carolina, “castle doctrine” is applied a couple times each month in Columbia, Spartenburg and other urban environments….the newspapers lovingly cover stories of convenience store clerks and elderly people sending armed thugs to their reward.

    As a side benefit, people are *very* polite down here.

  15. Nate, with all due respect to Joel, I’ll take some copper’s *opinion* to what he *thinks* my silence means against saying *anything* he can twist at will, any time.

  16. …and of course, jounalism is dead, and has been replaced with sensationalism and spin. The former dictates that the media must immediately report the story, sans any resolved fact. The latter dictates that they must follow up immediately with their so-called experts to discuss the evils of firearms in the use of home defense.

    My opinion on this case, as with the Martin/Zimmerman shooting is that I don’t NEED to have an opinion, and i would hope the facts be dealt with fairly and objectively in court if necessary. Hell, I am not even entitled to the facts.

    But when I hear of a home invasion shooting, typically through the mouth of the Second Amendment hating mainstream media, and the inevitable subsequent discussion devolves into statements such as “they were just kids, probably playing a prank” or “stealing isn’t worth taking a life”, I am immediately reminded of situations like that of the Long Prairie family that was slaughtered by two felons fresh off killing an elderly man and his daughter in Minneapolis, or the Cheshire CT family in which the father was nearly beaten to death…so badly that when he escaped to the neighbors he was unrecognizeable…the mother was raped and strangled, on of the daughters raped and then the three of them were doused with gasoline and set ablaze. Both instances home invasions and who knows when the threat of bodily harm made itself evident.

    Forgive me if I have less sympathy for someone knowingly illegally entering someone elses home, but I do have an opinion…when you commit a crime there SHOULD be an inherent element of risk.

  17. I saw a video of a speech given by a cop, or ex-cop, about how you should not talk to the police, no matter how innocent you are. If I can find it I’ll post a link, but it was chilling.

  18. I’ll be talking about this case on The Late Debate tonight at 9.

    I am pretty sure it will come up at my carry class this weekend as well.

    KARE11 talked to John Caile, who was more geographically convenient than I was.

    This one is so clear cut that there isn’t a lot of controversy that can be manufactured.

  19. On the subject of the post, the homeowner is clearly nuts. The initial break-in might have been a legal shoot, but the homeowner’s own testimony of the following actions make me wonder if he is trying suicide-by-cop. You’d have to be over the horizon, not just over the hill, to think that the homeowner’s own version of the incident is justifiable.

    I’d be careful about believing the initial break-in story, too, given how nutty the homeowner is. I think the reason the cops and press are being so restrained is because Smith gave them so much rope to hang himself that there’s no need to be sensational or even question his version of the events.

  20. Years ago, when I lived in Minneapolis, there was a notorious case where a guy killed a punk who was trying to break into his car. The guy’s car had been broken into several times. He parked on the street so it was hard to secure.
    One night he sat by his window waiting and watching. He saw a teenage punk walk up to his car and start messing with the doors. He ran out with a gun. The kid took off and the guy chased the kid down the street. Finally the kid got tired and tried to hide under a park bench. The guy dragged him out and BLAM! one round to the head.
    The funny thing was the guy was shocked when the police showed up and arrested him. He actually thought it was legal to chase an unarmed, would-be-thief several blocks and kill him in cold blood.

  21. Yeah, Terry…stupidity and ignorance actually does exist on either side of the criminal/victim fence.

  22. Thanks for finding and posting that nerdbert.

    It’s amazing what can happen to you without legal help.

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