Defense of Last Resort

Part 3: A Series of Unfortunate Coincidences

Gerado “Gary” Espinoza had spent the day partying and drinking by the pool. He and his wife were out-of-town overnight houseguests or their friends, the Sweeney’s, who had just moved into the quiet Maryland neighborhood. After 1 a.m., his wife already asleep, Espinoza wandered off the pool deck, perhaps to get something from the car. When he returned to his friend’s house, he found the front door locked. A Ring doorbell camera captured his reaction.

Espinoza knocks on the door, jiggles the doorknob, rings the doorbell multiple times, and gestures to the camera. A voice from inside asks, “Who is it?” “Gary,” he responds. Suspecting his old friend is pranking him, he patiently endures several minutes of silence while he continues to ring the doorbell and gently knock. Eventually he wanders away but returns several minutes later to try to get his friend’s attention. He’s less patient this time. He knocks more emphatically now. “Open up, b—-,” he says. The voice from inside says, “Get away from the door.” He steps back. “Go all the way to the driveway,” the voice commands. Espinoza throws up his hands and complies, but a moment later he’s back, and he’s had enough of the prank. He shouts obscenities and makes violent threats. Finally, he aggressively shakes the door handle and shouts, “You want a piece of this s—-?” The lock fails, the door opens, and Espinoza is shot and killed.

Charles and Barbara Dorsey lived next door to the Sweeneys. Like the Sweeneys, the Dorsey’s had a pool surrounded by a black fence. Their home looked similar and partially shared a driveway. It could have been easily mistaken for the house next door, especially by a drunk visitor wandering in the dark.

To Mr. Dorsey, Espinoza was an intruder trying to enter his house, and when he finally succeeded, Mr. Dorsey fired a single round to eliminate the perceived threat. After a five week investigation, Howard County State’s Attorney Rich Gibson announced he wouldn’t be filing charges against Mr. Dorsey. He said that the “horrible loss of life in this case is a product of a series of unfortunate coincidences that all came together to end in a horrific result.”

“Espinoza’s behavior seemed to indicate a desire to harm the people in the  house,” Gibson continued. “Espinoza did not literally mean the words he was saying at the door. But it’s equally clear there was no way for the Dorsey family to know that he did not intend exactly what he stated.”

Don West, National Trial Counsel for CCW Safe and veteran criminal defense attorney, calls a case like this “awful but lawful.” Given the circumstances, Mr. Dorsey had every reason to believe the intruder presented an imminent threat to himself and his wife, but that doesn’t change the fact that the entire encounter was a tragic and deadly misunderstanding.

This is not the first case we’ve explored that resulted from “a series of unfortunate coincidences,” and few of the others ended as well for the mistaken defender.

Last week, we reminded readers about the Ted Wafer case. A 19-year-old young woman named Renisha McBride had spent the evening drinking vodka and smoking pot with a friend. After an argument, McBride drove away and crashed her car. Now injured and intoxicated, McBride wandered the streets of the Dearborn Heights, Michigan neighborhood for a couple hours. Her family believes she mistook Wafer’s home for a friend’s house. She began banging violently on the front door, very likely looking for help. Wafer, who had been concerned with the rising crime in his neighborhood, terrified after being awoken from a deep sleep by the desperate pounding, went to the door with a shotgun. When McBride seemed to attempt to enter the house, Wafer fired a single fatal shot. In contrast to the Dorseys, Wafer made the mistake of opening his door rather than waiting for the intruder to break in. The mistake contributed to his conviction. Wafer is serving 17 years for second degree murder.

We’ve also explored the Amber Guyger case out of Dallas, Texas. Unlike Wafer and Dorsey, Guyger wasn’t at home when a confused stranger came to the door; Guyger herself was the confused stranger. A police officer, Guyger had just pulled a 14-hour shift. Exhausted, she returned home to apartment number 1378 at South Side Flats. When she got there, she found the door hadn’t properly latched and it opened without the key card. She heard shuffling inside — an intruder, she thought. Instead of calling for backup, she decided to investigate on her own. She drew her service pistol, entered the apartment, and encountered a “large silhouette” in the darkened living room. When the figure moved toward her and failed to respond to her commands, she fired. When her eyes adjusted to the dim light, horrified, she realized her mistake. She was in apartment 1478 not 1378. “I thought I was in my apartment,” she told the 911 dispatcher. “I could have sworn I parked on the third floor.”  According to at least one juror who spoke to reporters, the jury believed Guyger had made an honest mistake, and legally that would have given her the protection of the Castle Doctrine, but like the Ted Wafer jury, they clearly faulted Guyger leaving a place of relative safety to engage a perceived threat. They didn’t find her actions reasonable, and they convicted her of murder.

Don Wes, says that in most jurisdictions “if someone enters your home by force, it’s assumed or presumed that they present an imminent threat of great bodily harm or death.” That definition meets the criteria for the justifiable use of deadly force, but just because the law allows for the use of deadly force doesn’t mean you should always use it. The cases of Guyger, Wafer, and Dorsey illustrate why: you could be the victim of a tragic misperception, and your decision to use deadly force might be wrong.

Being wrong doesn’t necessarily make you unjustified, West says. If a jury believes you were truly in fear for your life, the law instructs them to judge you accordingly. But they must also find your actions reasonable, and in these extraordinary cases involving tragic misperceptions, the circumstances, for some jurors, obviously strain the credulity of the self-defense claim.

In most home defense cases, the defender gets an intangible benefit that West calls “forgivable subjectivity.” It means we’re inclined to forgive a home defender a few mistakes in a self-defense scenario, as everyone understands the sanctity of one’s home. But when there is an egregious mistake that results in the tragic death of an unarmed person, the benefits of “forgivable subjectivity” begin to evaporate, and the defender may be judged more harshly.

As a concealed carrier or gun owner concerned with home defense, the only way to protect yourself from the legal liability associated with a tragic misperception is to adopt a mindset that you will avoid the use of deadly force until it is absolutely necessary. In most of the cases we’ve studied, we have found that the defender makes a choice before the decision to pull the trigger — a choice that makes the deadly encounter all but inevitable. If Amber Guyger, a trained police officer, had called for back up before rushing into what she thought was her apartment to engage an intruder, she would have realized her error before it was too late. In Ted Wafer’s case, it’s unlikely Renisha McBride would ever have succeeded in entering his home, and if Wafer had called police and waited inside, shotgun aimed at the door, he likely would have never had to fire it.

Charles Dorsey’s presence of mind bought him his freedom. He had his wife call 911. He issued voice commands warning the intruder away. He waited several terrifying moments and fired only after Espinoza broke through his front door. No one could reasonably ask more of Mr. Dorsey. Dorsey earned the forgivable subjectivity that was ultimately granted by the prosecutor when he declined to file criminal charges. 

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