When Self-Defense can equal 2nd Degree Murder

 

One of the most neglected and under-stated subjects regarding Civilian Operator training is the legal aspect of self-defense. It not only behooves the CO to be well versed in their particular states Self-Defense laws and statutes, but also to be aware of HOW Self-Defense trials are conducted, and often how POLITICS and other un-related social issues, can impact the verdict. Most people think that the fight for one’s life is over once the threat has been neutralized, but in most cases, and as this story shows, the fight for your life is only just beginning.

I will not waste your time re-hashing the details of the Wafer case, but instead I wanted to go over four primary things the CO can learn as cautionary lessons from this case so they do not make the same mistakes. Now I know hindsight is always 20/20 in cases like these, and experience has taught me that no matter the degree of training or coaching a person goes through, when people are under severe stress, mistakes can and will happen, All we can do as RESPONSIBLE CITIZENS is to hope for the best, prepare for the worst and try to stack the odds for success in our favor.

• The Castle Doctrine ALONE is NEVER a Defense for the use of Lethal Force

Some of you who have been following this case, like myself, may have noticed that in Michigan, where this case occurred, as we do here in Texas, they have the Castle Doctrine as law. Why then did it not work as a defense then? After all a man’s home is his castle right? Doesn’t a person have the right to defend themselves in their home and on their own property? Yes, according to the law, all this is true, but that fact alone is NEVER justification for the use of lethal force. Several other very important factors must corroborate together to form justification to use lethal force to protect oneself.

• Mr. Wafer did not call 911

Nothing can go further in a self-defense case in proving your innocence that PROMPTLY calling 911 either before, during or after the incident. First, it shows law enforcement that you are truly frightened, need help and are not trying to conceal your actions. Second, it acts as evidence. Many times, as in the Zimmerman/Martin case, if the call is placed before or during the event, the audio of the episode can corroborate the testimony of the complaintant. Third, (and this is a stretch), there is the possibility that law enforcement are close by to physically assist. In this instance, Wafer testified the reason he did not call was that he looked for his cell phone, but could not find it in the darkness. Not calling 911 immediately never bodes well for the complainant (the CO). Consider the recent  Smith Case in Minnesota where the police were not called until the NEXT DAY by a friend of Smith.

• Unless the threat is immediate and doing so would not endanger your life further, ALWAYS ATTEMPT TO ID THE THREAT BEFORE SHOOTING.

All of us were taught when we started shooting to ALWAYS IDENTIFY OUR TARGET AND THE BACKGROUND before we pull the trigger. Wafer claimed he thought more than one person was banging on the outside of his house, when in fact it turned out to be an unarmed woman. Not that this fact makes it any less of a threat, because at that moment, to Mr. Wafer he was in fear for his life. But always consider HOW SOMETHING WILL APPEAR to a DA or a jury. What they see in this instance is a scared man irresponsibly shooting through a door with a shotgun in a residential neighborhood, not knowing who or what is on the other side. Add to this that firing through any medium, be it a wall or door, especially with a shotgun loaded with buckshot, is inherently dangerous for both the shooter and any bystanders due to penetration and ricochet issues.

• Follow the “5 Things to do AFTER a Shooting” when Police Arrive

One of the crucial pieces of evidence the prosecution used against Wafer was that he gave two conflicting reasons for the shooting. When police arrived, Wafer told them it had been an “accident” and he did not intend to shoot Mcbride. But in court, Wafer testified he shot Mcbride in “Self-Defense”.  Below Massad Ayoob gives some decent pointers on what to do when Police arrive after a Self-Defense shooting. Although I don’t always agree with Ayoob in his techniques, in this instance, since he is Law Enforcement, he can give you the best advice for this kind of scenario.

In the end, Mr. Wafer was convicted of 2nd Degree Murder, Involuntary Manslaughter and committing a felony with a Firearm. At sentencing,  Wafer faces Up to Life in prison for the 2nd Degree Murder charge, A maximum penalty of 15 years for the Involuntary Manslaughter charge and a Mandatory 2 Years for the Felony with a Firearm charge. It in imperative for the CO, if he or she is going to be well versed in their state’s particular legal system, to understand WHY Wafer was convicted of 2nd Degree Murder versus say 1st or 3rd Degree Murder and WHY a Self-Defense Defense did not work.

CULPABILITY is the differing “mental states” of the accused during a crime. In a 2nd Degree Felony Offense, Mr. Wafer (the accused) is said to have acted “knowingly”; meaning he acted with awareness to his conduct is reasonably certain to cause the death of the victim (McBride). This is to say the Prosecution proved beyond a reasonable doubt that Mr. Wafer that night did not act with INTENT TO KILL (that is 1st Degree Murder), but rather KNOWINGLY proceeded with his actions knowing it would kill.

Now for a Self-Defense Defense to this charge to be valid, the following must apply:

• The defendant was not in a place they were prohibited from entering.
• The defendant cannot be at fault in the situation.
• The defendant was not the aggressor or instigator.
• The defendant had a reasonable fear of death or great bodily harm that required the use of force.
•  The defendant requires immediate action in order to prevent bodily harm or loss of life. Once the situation has ceased to threaten bodily harm or loss of life, the self-defense justification is no longer available.

In addition to the other mistakes we discussed above,the last 2 bullet points are what sunk Mr. Wafer according to a jury of his peers. They believed that Mcbride beating on Mr. Wafer’s door at 4:30 in the morning did not create  “a reasonable fear of death or great bodily harm” to Mr. Wafer. They also believed that a highly intoxicated person beating on your door DOES NOT require “immediate action” in order to prevent bodily harm or loss of life. Taking everything into consideration in this authors opinion, and despite all of Mr. Wafers mistakes, Mr. Wafer got a bad verdict. I can see the Involuntary Manslaughter charge, but nothing else.

In closing guys, a self-defense shooting is never going to be pretty and unless we make it a priority NOW to prepare ourselves for these unfortunate events, our freedom, like Mr, Wafers, could be taken from us and the rest of our lives flushed down the toilet.

Stay Real, Stay Armed and Stay Dangerous!

Trespasser 101

For those lucky readers of mine that reside in the great State of Texas, I wanted to provide you an easy to reference guide on what the law states how you can handle trespassers on your property. Firstly, lets define Criminal Trespass as it is written in the Texas Penal Code 30.05:

CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so. (b) For purposes of this section: (1) “Entry” means the intrusion of the entire body. (2) “Notice” means: (A) oral or written communication by the owner or someone with apparent authority to act for the owner; (B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock; (C) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden.

Despite widely held beliefs, you CANNOT use DEADLY FORCE in dealing with Criminal Trespassers simply because they are on your property without consent! I know some of you are  saying “Well what about the Castle Doctrine?”

I found that explanation on Texas Gun Talk, which according to the post credits, had been written by the folks at Texas Law Shield:

What About People Who are Only Trespassers?

Make sure that you do not fall victim to the common misconception that the Castle Doctrine gives you “carte-blanche” to use deadly force merely because someone is on your property. It does not. Many people think that the law allows you to use deadly force against a mere trespasser. In fact, Texas law says the exact opposite. Texas Penal Code §9.41 allows you to use Force, NOT Deadly Force, that is reasonably necessary to prevent or terminate another’s trespass on your land.
You still have a legal right to exclude or remove trespassers from your land; however you are limited to only using non-deadly force to do so. The use of force can have many different manifestations, from physical confrontation to displaying a weapon. Texas Penal Code §9.04 states that for defensive purposes the display of a weapon in order to create apprehension in another person is considered a use of force but not deadly force. That means if someone trespasses on your property, you may display your firearm to create apprehension that you will use deadly force if necessary. You will not be legally justified in discharging the firearm, but you will be legally justified in displaying it to “create apprehension” under the law.

Only if the trespasser is committing “other acts”  are you justified in using deadly force would you be allowed to discharge your firearm legally.
For example: If you are sitting in your living room and see an individual peering in your window, you will probably not be justified under Texas law in using deadly force against the suspicious person. However, if the same fellow breaks a window and climbs through, you will be legally justified in using deadly force under Texas Penal Code §9.32. If you see the same individual scoping out your detached barn, you will not fall under Texas Penal Code §9.32, because it is not considered an occupied habitation. Note under our examples you may very well be justified under another section of the law in the use of deadly force, but not under Texas Penal Code §9.32, or what the media calls the “Castle Doctrine.” 

The “other acts” in the above paragraph refer to Sec 9.42. This is very important for the CO to understand; If you memorize any law in the TX Penal Code, know this one!

TX Penal Code Sec 9.42:

DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property: (1) if he would be justified in using force against the other under Section 9.41; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

So to sum it up guys, you CANNOT use Deadly Force on a Trespasser simply because they are on your property without your consent. You can Display a Weapon to Intimidate and create apprehension in the Trespasser, but not discharge the weapon and use LETHAL FORCE unless the Trespasser makes you feel “in fear for your life” through either an attack with lethal intent or they escalate the situation and do any of the following acts: Arson, Burglary, Robbery, Aggravated Robbery, **Theft during the Nighttime, or **Criminal Mischief during the Nighttime.

** I want you to notice that LETHAL FORCE is mandated here by the time of day (night time) with Theft or Criminal Mischief. This is a key thing to remember: The Law states you can KILL a person if they are committing either of these acts on your property at night.

The CO, as a property owner, can do a few simple things to help prepare to combat Trespassers:

1. Don’t forget to post proper SIGNAGE that entry is forbidden on your property to be in compliance with TX PC 30.05. For those of you with rural property in TX, this includes using purple paint as a marker (see paragraph (D) for full explanation).
2. Place in-discriminate Trail Cameras around your property. These are motion triggered and most models are night vision capable. This will provide photographic evidence that will help you prosecute. A CCTV system is another option if you want constant surveillance.
3. If so inclined, the CO can place Lighting and Motion Detectors to be alerted real time of any trespassers.

 

Stay Informed, Stay Alert and Stay Dangerous!

The Fallacy of the “Panic Room”

(It has been brought to my attention by some LE Friends and Family that this article generalizes the shortcoming of Law Enforcement too much, therefore, I have made some revisions to clarify my points..I support all LEO’s and the job they do everyday..the point of this article was not to denigrate them, but raise awareness that a person’s personal and home Security is their OWN Responsibility..not any Local, State or Federal Agency. The 2nd amendment is a privilege, not just a right…let us never forget that.)

 

 

Behind every popular, hip cultural term (and Hollywood Movie starring Jodie Foster) today is an Idealogy that drives it. Let me say from the jump that in writing this article I am not shooting down the “IDEAL” of the Panic Room as a logical response for the Civilian Operator when confronted with a burglary, home invasion or other SHTF situation. What I am attacking as a fallacy is the “IDEALOGY” that drives the Panic Room craze, ie;  when something goes wrong, Lock Your self  in a room, call 911 and hope the Police will get there in time.

This, in the authors humble opinion, is a symptom of the “Nanny State” mentality that has been vigorously promoted in the past 4 years by our fine leadership at the local, state and federal levels.  No need to worry about anything, Big Brother has your best interest at heart, so when some crack head, knocks down your door and wants to rape your 12 year old daughter and sodomize your 8 year old son, we want you to run like a scared little girl to your titanium enforced vault and call the Police. Wow. Why doesn’t the powers that be just hand out cyanide tablets and tell people anytime they feel threatened, eat this. It would be much more humane, don’t you think? No, the humane thing to do would be to promote civil responsibility and 2nd amendment rights..it YOUR job to protect YOU and your family, not the County, City, State or Government. Gee, I think I read that somewhere in a document dated 1791, the Bill of Rights??

The concept of establishing a fixed, secure position to defend yourself and your family is solid defensive thinking, and can be qualified with solid military dogma dating back hundreds of years. The concept of hiding and hope the Police will save your skin, is not. Unfortunately, one can do a quick google search and find some very disconcerting stories to qualify this point also. I think I have expressed this as clearly and bluntly as I know how, so let’s start expanding on what WE SHOULD DO when trouble comes a knocking.

First of all, it is beyond the scope of this article to cover all the possible scenarios that might drive a person to “Hunker down” and defend their home and family. Currently I am working on a very in-depth 3 part article entitled “Defending the Castle” that will cover those topics.  That being said, I will assume for this scenario, things have gotten out of hand, you are armed with a firearm you are proficient with and you have decided to collect your family and retreat to a pre-selected area that offers the following (we will discuss these in detail):

• Hard Line or Cell Phone Service
• Rear Security
• Hard Cover
• Clear Fields of Fire & Background
• Escape Route

Communication: Make sure you have either a hard-line or cell phone service where you decide to make your stand; there are some that say you should not depend on a hard-line, because a “professional burglar” will cut your telephone line since most burglar alarms are connected through them..Once again, I am not going to go down that path in this particular article to refute that, because although that logic is going in the right direction, it is nieve. Suffice to say make sure you either have a hard-line available or get good reception with your cell in your safe room.

Just because SOME police departments are notoriously late and/or a no-show when called in an emergency does not mean we should not call them. There are several reasons for this, the most important is to cover yourself legally in case things go south while defending your property and life. Again, for the sake of time, it will be suffice to say “Just Call Them” and report the situation, but be cautious in what you say. Take into account, the 911 tape will be the prosecutions Number one piece of evidence against you if this incident goes to trial.

Rear Security in this situation simply means “Watching your Ass”, or,  putting your back to a solid wall or area that cannot be breached easily. If you are using a bedroom for instance as a safe room or “Fall Back Position”, and there is only one entrance into the room, placing your back a Foot (12 inches) or more away from the opposite wall across from the door is sufficient. Without going into more detail than this article will allow, bullets follow walls; more on that later.  Avoid Windows, doors and sliding glass doors obviously; If there is more than one person that is armed in your group and for whatever reason, you have to fall back to a room with more than one entrance, (which is highly un-advisable) that person can act as “rear security” and guard that door…We will expand on this quite a bit in the Castle article on integrating small unit tactics and using  security elements; we will also explain choosing a safe room with a single, natural “choke point” to avoid having to guard two zones.

I get asked this quite a bit and the easy answer is Hard Cover is something that would stop or slow down a bullet..STOP being the primary word. Be creative here, but be smart. The most logical choice in most domestic scenarios is a hardwood dresser or night stand; these are typically constructed out of solid hard wood and will act as a good barrier. I have heard people promote using mattresses or box springs for this, and although that might work well in a tornado or hurricane, these would make poor bullet stops. The other principal you are trying to accomplish here besides something to take cover behind is something that would slow down the bad guy in the event the bad guy makes the mistake of trying to breach your safe room. Of course, for this scenario, the heavier and bigger, the better but adding the very important caveat that if the object is so big and heavy the woman of the house could not move it herself, it is a moot point. Plan accordingly.

Clear fields of fire and background is a Two part challenge: Having clear “Fields of Fire” is simply making sure your safe room gives you ample space and a clear lane to make a shot if need be. Choosing an architecturally advantageous position that creates a natural “Choke Point” or “Funnel” is recommended. Hallways are my favorite, but we will discuss this at length later on.  The second and most important factor in choosing a “Shooting Lane” is considering your background. We always think that in a life or death struggle, we will always shoot like Rob Latham, hit our target and take down the bad guy. This, unfortunately is not always reality. When under stress, people miss and bullets have to go somewhere. Considering the caliber of your weapon and the bullet type you have in the gun at the time, even if you do HIT the BG, bullets have a tendency to keep going through all types of medium. We need to give sufficient thought to this. Here is the short list to consider:

• Head Count. Having your entire family accounted for in the safe room. Of course, Murphy’s Law is always active, so in the event you do not have a head count and still have to engage the BG, the second point is very IMPORTANT. In these types of situations, there is no such thing as “FRIENDLY FIRE”.
• Firearm and Bullet selection. This is an expansive subject and we will cover it in-depth in Protecting your Castle. For purposes of this article and scenario, Hollow Points or Frangible ammunition are the best choice. As for Firearm choice, I will make it simple and tell you as long as you are not using a RPG , that will not only kill the intruder, but your next door neighbor and his cat, we can work with it.

The escape route is simply a way to evacuate the structure from your safe room. Ideally, You DO NOT want to have to leave your safe room to escape; but of course Mr. Murphy will never allow that to be written in stone.  This will typically be a window, but could also be something such as an attic or cellar also. Any alternate route that allows you to escape quickly. This goes hand in parcel with your pre-planned “Action” plan you should have gone over with your entire family and practiced exhaustively to not only include an Intruder, but any SHTF situation such as fire or tornado for example. Of course inevitably this brings up the obvious question: “If someone is really trying to harm you or your family, why not just escape at the first sign of trouble??” This requires a lengthy (and legal response) so stay with me for the answer.

As I said before, this article was written really as a prologue to the article currently in it’s infancy entitled “Protecting your Castle”. I wanted to get your minds in the right gear and wet your appetites a little. Between now and then, make good use of your time and study your States Self-Defense statutes. This includes the Penal Code and Code of Criminal  Procedure. Although I would read all of it, pay close attention to PC 9.31-9.44.  For my fellow Texans, that can be found HERE.