Home Defense During the Covid Crisis

Gun sales are up. The pandemic has people nervous, and with so many workers suddenly unemployed, the economic outlook is bleak. A steep downturn could cause a dramatic uptick in crime. ABC News quoted a gun store owner describing the crowd visiting his shop as “people who wanna buy because they’re afraid of what’s going on with the criminal element.”

Their fear is understandable. CCW Safe co-founder Stan Campbell recently published some considerations for gun owners navigating the panic surrounding the pandemic. Defensive weapons instructor and CCW Safe contributor Steve Moses offered a Concealed Carry Strategy to his students, recommending that “until the situation calms down,” they should “treat this situation like they lived in a high-crime area at all times.”

As a litigation consultant, I leave discussion of tactics and strategy to respected experts like Steve; my job is to study self-defense cases to identify the legal ramifications and extract lessons for concealed carriers and gun owners concerned with home defense. In this uncertain age of heightened awareness, here are some things to consider to lower your legal liability in a home defense scenario:

Don’t Be A Target of Opportunity

Markus Kaarma was convicted of deliberate homicide and sentenced to 70 years in prison for running out his front door at midnight, blindly blasting his shotgun into his open, darkened garage, and killing a 17-year-old foreign exchange student who was likely attempting to steal beer. Not long before the shooting, Kaarma fell victim to a burglary when an intruder stole some money and valuables from his garage. A law enforcement officer who lived nearby told Kaarma’s common law wife that the home was a “target of opportunity,” suggesting a darkened exterior with an open garage door attracts criminals. At trial, jurors heard evidence that Kaarma staged the scene, even leaving an empty purse within view in an attempt to lure back the perpetrator who had struck previously. The lesson for gun owners concerned with home defense is that, if you can make your home more attractive to criminals (like Kaarma did), then you can take steps to make your home less of a target by securing doors, installing exterior lighting, and maintaining the property in a way that sends a message that the occupant is proactive and vigilant. If you can prevent a break-in before it happens, you eliminate the need to resort to your weapon.

Establish Thresholds

Kaarma left a position of relative safety to meet a threat in his garage, and a jury obviously held that against him at trial. Ted Wafer of Dearborne Heights, Michigan was convicted for a less brazen act. Wafer awoke around 4 a.m. to violent banging on his front door. Unable to find his phone to call 911, Wafer grabbed his shotgun and, after a pause in the pounding, he opened the door to investigate. Surprised to see a shadowy figure inches away, he fired, killing 19-year-old Renisha McBride, a recent high-school graduate who was drunk, high, injured, and likely looking for help. Like Kaarma, Wafer left a position of relative safety to meet the threat. Don West, National Trial Counsel for CCW Safe and veteran criminal defense attorney, says Wafer would have been much better off legally had he waited for McBride to breach the door before firing. It likely would have saved him from a 17-year prison sentence for second degree murder. The lesson for gun owners concerned with home defense is that your legal liability elevates when you leave a position of relative safety to meet a threat — especially if that threat is behind a locked door and outside your home. Establish thresholds in your mind, tangible lines that must be crossed before you are willing to resort to deadly force. The exterior doors and windows of your home provide a good place to start.

Don’t Go To the Fight

If you have an encounter with an intruder and manage to retreat to a safer part of your home — perhaps to arm yourself — think twice about going back to engage the threat. Criminal defense attorney and CCW Safe contributor Andrew Branca warns that “going to the fight never looks like self-defense.” Consider Marissa Alexander: just days after giving birth, she was physically attacked by her estranged husband, Ricco Gray. After a struggle, Alexander escaped to the garage. Gray did not follow. She retrieved a pistol from the glove box of her vehicle, reentered the home, and fired a controversial warning shot that missed Gray by inches.  Don West says that, by going back inside, Alexander put herself “at a great disadvantage when the jury assessed whether her actions were reasonable.” As a result, Alexander spent 1000 days in jail. Conversely, Zach Smith, a young man from Oklahoma, was awoken from a midday nap by the sound of breaking glass. He retrieved his father’s AR-15 and investigated. When he encountered three intruders dressed in black, Zach fired and retreated, barricading himself in his room where he called 911. He could still hear the intruders from behind the locked door. While the temptation must have been high to end the terror by going out and meeting the threat with a powerful weapon, Zach decided to wait for authorities to arrive. He was never arrested or charged in the fatal shooting.  The lesson for gun owners concerned with home defense is that, if your family is secure in a safer part of the house, think twice about rushing back to engage an intruder with deadly force; you’ll be in a stronger legal position if you let the fight come to you.

Don’t Let Fear Become Rage

Justifiable use of force requires that the defender experiences a reasonable fear of imminent death or great bodily harm. Don West says the laws in most jurisdictions state that “if someone enters your home by force, it’s assumed or presumed that they present an imminent threat of great bodily harm or death.” However, just because an intruder starts out as a presumed threat, doesn’t mean they stay that way. When police arrived, Zach Peters would learn that he shot all three intruders, and one of them struggled on the kitchen floor, calling out before succumbing to his wounds. Had Peters went out to the kitchen and fired an additional round into the dying intruder’s body, that shot could have turned a perfectly justified self-defense shooting into murder. While such behavior may seem outlandish, we’ve seen it before. David Byron Smith caught two teenagers breaking into his home on Thanksgiving Day. He incapacitated both of them with shots to the legs as they decended his basement steps. Justifiable. But then, when they had tumbled down the stairs and were prone on the basement floor, he shot them in the head. Murder. Pharmacist Jerome Ersland shot Antwun Parker in order to stop an armed robbery. While the shot to the head was amazingly not fatal, it did completely incapacitate the assailant. After chasing Parker’s accomplice away, Ersland returned to his pharmacy, stepped over Parker’s motionless body, retrieved a second firearm, and fired five fatal shots to center mass. The first shot was justifiable; the final shots were pure revenge. The lesson for gun owners concerned with home defense is that, in a life and death situation, reasonable fear can easily morph into rage. Once a threat is neutralized, you must stop shooting. In self-defense, every shot counts, and while the first bullet may be justified, the next could be considered murder.

It is a scary time. As a concealed carrier or gun owner concerned with home defense, don’t let the fear fueled by this pandemic cloud your judgement in a self-defense scenario. Being a responsible gun owner means adopting the mindset that you will take steps to avoid violent confrontation whenever it is safe to do so, and when you cannot, it means using only as much force as is required to eliminate the imminent threat. Make an effort to ensure your home is not a target of opportunity. Establish in your mind where your defensive thresholds are. Think twice about engaging an intruder if you can safely avoid it. And if the worst case scenario happens, don’t let anger transform a justifiable home defense into murder.

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