Self-defense for the homeowner: the wrong way

A friend of mine brought this story to my attention. Please take a look at it first before you read on as I’ll only give you a condensed version here. The standard disclaimer applies, as usual: I wasn’t there and neither were you. All we have is this report, of which we don’t know how accurate it is but we’ll assume it is correct as it seems to quote from official documents. That said, the incident seems to have happened like this:

• Byron David Smith hears a window break upstairs in his home while he is in the basement (or he retreats there to begin with, this part was unclear.) Then he hears footsteps.
• The footsteps come closer to the staircase.
• As soon as Smith sees burglar number one, Nicholas Brady, from the waist down, he shoots him. Brady falls down the stairs.
• Smith shoots Brady, who is down on the floor, in the face.
• Smith drags Brady’s body into his basement workshop and then sits down on a chair.
• A few minutes later burglar number two, Haile Kifer, comes down the stairs.
• As soon as her hips are visible, Smith shoots her too.
• He drags her body next to Brady.
• She is still alive when he puts his gun underneath her chin and fires a bullet up into her head.
• He waits a day to contact his neighbor and asks him both to recommend him a good lawyer and to call the police.

At that point, he gets arrested and charged with two counts of second-degree murder. Bail is set at $2 million.

Again, we weren’t there and I’m sure more information will come out eventually but lets look at what he did right along with everything he got wrong.

What he got right:

• He defended himself successfully. No matter how much he messed up everything else, you can’t argue with this part: burglars came into his house, he shot and killed them while he remained unharmed. Had he hesitated to pull the trigger, we might have had a different headline then. Something along the lines of “Howmeowner shot dead with own weapon.” This is of course purely hypothetical, all that really matters is what did happen.
• He was prepared. He had weapons at hand and got to them in time before the burglars could potentially harm him. This sounds silly but you’d be amazed at how many people have weapons (firearms or other) at home in a place they can’t access quickly enough to do them any good.
• He said some of the right things. Again, let’s assume that the article is accurate and Smith was truthful in his statement when he claimed being afraid for his life. This is apparently the exact legal justification you need for lethal force against an intruder in the state of Minnesota: you need to be in a situation where a reasonable person would fear for his life. As Smith has been burglarized before, this argument makes his case of self-defense stronger. More in a bit.
• He asks for a lawyer. Smith defended himself the wrong way in my opinion but he did have enough sense to realize he needed a lawyer. He messed up big time here too though. More on that too.

 

Before we go on, understand that I’m not justifying the shooting or sideing with Smith by pointing out the above. Things aren’t black and white, no matter how much people want it to be. Smith seems to have made several huge mistakes but he also got certain aspects of self-defense right. Don’t let the bad blind you to the correct actions you can learn from this example. That said, he got a lot of things wrong, terribly wrong.

Let’s take a look at those too:

• He opened fire as soon as he saw a target. As soon as he saw both burglars (one from the waist down, the other from the hips), he opened fire. I don’t consider this to be wrong per se as it’s good tactics (shoot the opposition before they know they’re in a gunfight) but in this case, it could be considered an aggravating factor and used against him in court. I don’t know Minnesotan law, nor do I have any knowledge of case law in that state, but this fact might be viewed as going against the actions of what a reasonable person might do. No matter what you think, that is the standard to which the law holds you to: what would a reasonable person do? Would a reasonable person wait to make sure he is justified in shooting or is the fear for your life in that context sufficient cause for lethal force? Personally, I think it looks bad for Smith in light of his testimony and his other actions, but I might be wrong and will defer to any Minnesotan lawyer with experience in self-defense cases.
• He drags the body of the burglars away after he kills them.  It never looks good when you start changing a crime scene, unless you have a solid explanation. I don’t really see what that might be. Remember that he shot Brady once to the body and then in the face while he was on the ground. It’s reasonable to assume the guy is dead. So why drag his body around then? The same goes for Kifer. My guess is that a good DA will use this against Smith too, claiming Smith tried to hide evidence.
• He executes the two burglars. This is the big one. As far as I can tell, he would have been legally in the clear had he only shot both burglars when they came to the basement. Once they were down and apparently unarmed, it is reasonable to assume Smith was no longer in danger of his life. We can argue about this but I think a jury can be convinced to see it this way. Again, that is the legal standard: you have to be in mortal danger to be allowed lethal force upon others. No matter how much the situation scares you, as soon as that danger is gone, you are no longer allowed to use lethal force. If you do, you move from self-defense to murder. To those who howl “They had it coming! Serves them right for breaking into the guy’s house.” I’m not arguing the morality of it here; I’m simply stating what the law says, which is the only thing that matters. Your or my opinion of what should be legal is irrelevant. Dura lex, sed lex and if you disagree with it, petition your legislators for change. But until then, the law as is will apply.
• He waited a day to report it. Picture this: you just shot two people in your house. You then go about your business  (eat, drink, watch TV, sleep) until the next day before asking your neighbor to call the police. You might argue the man’s in shock but for a reasonable person (that pesky legal standard again…) this is not normal behavior. Reasonable people don’t let two corpses rot in their basement while they have dinner upstairs. Reasonable people also don’t give “I didn’t want to bother the police on a holiday.” as a justification for it.
• He gave a statement without his lawyer present. Despite asking for a lawyer, he seems to have given a statement to the police before his counselor arrived. Because I cannot imagine any layer allowing his client (who just admitted to killing two people) statements like: “I want him dead” or “I fired a shot under her chin up into the cranium” and describe that as a “a good clean finishing shot“. These statements are evidence and the DA will use them in court. In no way, shape or form do they help Mr. Smith’s case and any decent lawyer would have told him that. So I very much doubt that one was standing next to Mr. Smith when he said those things.
• He didn’t report the other burglaries. Mr. Smith claims to have been burglarized repeatedly but only filed a complaint once. For the law, only that single instance is on record and valid. All the other cases are irrelevant. Had Smith reported numerous instances of burglars robbing his house (no matter how little came of it), he might have had a much stronger case. A paper trail is your friend.

 

As far as I can tell, Smith got crucial elements of homeowner self-defense totally wrong. As a result, he is facing 21-30 years in prison if convicted. Perhaps even more and it looks like his lawyer will have a very hard time defending him.

Don’t let this happen to you.

You have the right to defend yourself in your own home but as this case illustrates so well, it can all go horribly wrong in the blink of an eye. I’d like to offer a couple of things for your consideration:

• Know your state or country’s laws. You need to know what exactly constitutes legal self-defense (lethal or otherwise) in the place that you live. Not your opinion on it, but the actual laws and preferably also case law. Go talk to police officers, lawyers, etc. to get that information. Only with solid information can you have a hope of staying out of jail after successfully defending yourself.
• Shut your mouth and get a lawyer. Anything you say can and will be used against you in a court of law. Police officers will obviously question you and you’ll probably be better off cooperating with them. But if you volunteer information, it better not be of the “I want him dead” kind… As silly as it sounds reading these words now, you’ll be in a slightly more agitated state right after you kill somebody and your words might come out wrong. If they do, they can be used against you. So be careful that you don’t talk yourself into jail and wait for a lawyer. Remember the Renzo Gracie Twitter incident? That’s a prime example of saying all the wrong things. By the way, it’s amazing to see the New York DA not bother to even question Mr. Gracie on this. You’d think he’d jump at such a high profile case but I wouldn’t count on being this lucky if I were you…
• End the threat, not the person. This is not the contradiction it may seem. Your goal in self-defense is to end the threat to your life. If that means running away, then the law requires you to do so. If it means killing your attacker, then that’s what you should do. But doing a “good clean finishing shot” is not self-defense if the threat is already gone. Nor is shooting an unarmed man in the face when he’s already down. Those are executions and you are not allowed to do that according to pretty much all self-defense laws in Western societies. That said, there are situations in which you might have to finish your attacker. I don’t claim otherwise and I actually teach these. Some of these moves are lethal, others not. The crucial aspect is this though: there are only a very limited set of circumstances in which you are legally justified in using them. The problem I often encounter when I teach these techniques is that people like them too much. They think it’s “cool” and want to practice them all the time. When I tell them they shouldn’t make killing somebody their instinctive response to every kind of violence they might encounter, they are disappointed. When I teach them to use other options or to just run away, they still want to come back to the finishing moves. At that point, I shake my head and walk away. Just because you can legally kill somebody, doesn’t mean you have to. Don’t forget: if the law says you judged it wrong, you end up in jail or worse. Just ask Mr. Smith…

 

 

Conclusion

It’s easy to second guess these incidents and I’m not claiming any particular special knowledge of this one, other than what is stated in the articles. The reason I write about them is because they serve as powerful lessons on how you should train self-defense: for your own safety and well-being as well as that of your loved ones. No matter how good you become at certain killing techniques, it is just as important to know when not to use them.

Be safe out there.