Establishing Home Defense Thresholds

Giving yourself time to assess the threat

We all know that your home is your castle, and the law provides substantial legal protections to people defending their homes against intruders: the Castle Doctrine.  Many jurisdictions make the assumption that someone who forcibly enters a home intends to harm the occupants, broadening the spectrum of legal justification for the use of deadly force. Don West, veteran criminal defense attorney and National Trial Counsel for CCW Safe says that, beyond the protections of the law, home defenders have what he calls “forgivable subjectivity.” It means that police investigators, prosecutors, and even jurors are likely to forgive a home defender a mistake or two in a deadly use of force incident.

Of course, forgivable subjectivity has its limits. We explored the case of Markus Kaarma who went outside his home at midnight to engage an intruder, blindly firing a shotgun into his darkened garage, striking and killing a foregin exchange student who was most likely pilfering beer. We wrote about the tragic case of Ted Wafer who shot an unarmed 19-year-old girl on his front porch because he mistakenly thought she was trying to break in. Both of these men exceeded the limits of the Castle Doctrine, and both are serving lengthy prison sentences.

While the Castle Doctrine gives home defenders broad discretion to use deadly force to meet threats, it does not afford limitless discretion. A case of mistaken identity, or an extra shot fired in the heat of the moment could, tragically, transform a lawful home defense into a murder.  A good way to make sure you never exceed your legal rights, should you ever confront a home invader, is to establish some home defense thresholds in your mind — barriers that an intruder would have to cross before you resort to deadly force.

Some recent cases we’ve explored can help with this exercise.

We wrote about a mother of five from Cincinnati who was home with her children when her estranged ex came by. He had a history of domestic violence, and she had obtained a restraining order against him. A licensed concealed carrier, the mother waited while the man raged outside her home, but she didn’t fire her weapon — at least not until her ex ripped an air conditioning unit out of the window. Once he had gained a way to enter the home, she fired, incapacitating him. Clearly she had decided that while he was outside, she wasn’t going to shoot, but once he gained a way to access to the home, he  had crossed a threshold, and she did what she thought was necessary to save herself and children from violence. No charges were filed against the mother.

We explored the Zach Peters case out of Oklahoma. Zach was home alone napping when he awoke to the sound of shattering glass. He grabbed his father’s AR-15 and encountered three intruders dressed in black.  He fired the rifle, striking the intruders, and then retreated to his bedroom where he barricaded the door and called 911. Assumably, Zach kept his weapon pointed at the door, ready to blast any intruders who dared try to enter. After eliminating the immediate threat, Zach stopped using force and retreated to a safer place within the home — establishing  a new threshold that would have to be crossed before he re-engaged with the intruders. No charges were filed against Zach.

And we have the case of the California rancher who encountered a crazed trespasser on  his front porch. Shirtless, shoeless, and with a bloodied face, the intruder demanded entry to the home and at one point tried to batter down the front door. The rancher sent  his wife and children to a safer room where they locked themselves inside and called police. Meanwhile, he armed himself with a pistol and warned the stranger that if he came in the house, he’d be shot. The rancher established a threshold for the use of deadly force, and luckily the intruder never crossed it, and police arrived in time. Of course, the rancher faced no charges.

Had Ted Wafer waited for the stranger on his porch to enter before firing, it’s likely the shooting would never have happened. If Markus Kaarma had shouted to the intruder in the garage that he was armed — instead of charging out to confront him — it’s likely the teen would have run away. Conversely, if the Cincinnati mother had fired through a widow or went outside to engage her attacker, her case would not be so clearly justified. The same is true for the rancher. Had Zach Peters not retreated to another part of his  house, he could have been drawn into a protracted engagement with the intruders that could have complicated his claim, especially if he had been tempted into firing more shots.

Don West says that establishing thresholds gives a defender time to figure out what’s going on — time to answer the questions “What does this person intend?” and “How much comfort zone do I have before I must take decisive action?”

“The more you do to give yourself the opportunity to assess the threat,” Don says, “the better decision you’re going to make.”  For gun owners concerned with home defense, the lesson is that if you should detect someone trying to gain entry to your home, don’t assume you’re automatically justified in using deadly force.  If you have the time to safely do so, mentally establish the threshold that must be crossed before you feel you must use deadly force. You could use that time to call 911, or verbally warn the intruder, or try to understand the person’s true intentions. The extra consideration could prevent you from making a terrible mistake that could turn a justified self-defense into a criminal homicide.

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