Marissa Alexander’s Warning Shot Case

Part 3: The Danger of Going to the Fight

Marissa Alexander had just given birth to a premature baby. She blamed abuse from her husband Rico Gray for complicating the pregnancy, and she had successfully petitioned the court for a contact with no violence restraining order against him. In the days following the delivery, Alexander stayed with her mother, but on August 1, 2010, she returned to the marital home to retrieve some personal items, and there she encountered her estranged husband.

During the encounter, Gray became angry about some text messages he found on Alexander’s phone, and according to Alexander, he went into a “jealous rage.” He cornered her in the bathroom and tried to choke her. She managed to escape, and she retreated to the garage where her car was parked. In a recent CCW Safe podcast, she explains that she realized that she didn’t have her keys and she was unable to get the garage door to open.

“So, at that point because I knew that I had no other way out other than to stay in the garage, which locks from the inside out,” Alexander says, “what I needed to do is go back into the house, and I couldn’t go back in in the state that I was in with the assault that took place prior in the bathroom and not be able to protect myself.”

When she returned to the living area of the house, she encountered Gray in the kitchen. He saw the firearm, and rather than run away, he threatened to kill her. That’s when she fired a single warning shot that missed Gray by several inches. Ultimately, Alexander would be arrested and prosecuted for firing that shot, and she spent 1065 days in jail.

Alexander says, “. . .what I needed to do is go back into the house,” but there is not much to support that claim. There was no one in the house that she needed to protect, and there was nothing to suggest that she wasn’t, at least for the time being, safe from Gray in the garage.

Don West, veteran criminal defense attorney and National Trial Counsel for CCW Safe says, “Had he come into the garage still angry toward her, I think that completely changes the dynamic of this. For her to arm herself, go back inside expecting to confront the person that she claimed had just threatened to kill her or was capable of and intended to harm her in some serious way, I think that puts her at a great disadvantage when the jury is trying to assess whether her actions were reasonable.”

What makes this problematic for Marissa Alexander is that she left a place of relative safety and reinitiated contact with her attacker. In the past, we’ve explored other home defense cases where the defender left a place of relative safety to engage with intruders. It didn’t go well for them.

Markus Kaarma from Missoula, Montana detected a shadowy intruder in his garage around midnight on a security camera he had set up. Kaarma grabbed his shotgun, exited his home, and walked around to the driveway where he fired several shots into the opened garage, striking and killing the sixteen-year-old foreign exchange student who was most likely trying to pilfer beer from the garage refrigerator. Kaarma will spend the rest of his life in prison.

Ted Wafer awoke to the sound of violent banging at his front door at 4am. Afraid someone was trying to break into his Dearborne, Michigan home, Wafer retrieved his tactical shotgun, and during a lull in the banging, he opened the front door. There he found a dark figure on his porch. He fired a single shot, and soon discovered that he had killed a nineteen-year-old former cheerleader who was drunk, high, and injured from an automobile crash. She was probably just looking for help. Wafer was convicted of second degree murder.

What Wafer and Kaarma have in common with Marissa Alexander is that they armed themselves and left a position of relative safety to engage a potentially threatening intruder. Had any of these defenders waited for the fight to come to them, there is little doubt their legal cases would have ended in terms more favorable to them.

One notable difference between Alexander’s situation and the other’s is that Alexander essentially reentered her home to confront the threat, while Wafer and Kaarma went outside their homes. Andrew Braca, criminal defense attorney and CCW Safe contributor wrote about the case of William Sheets who spotted intruders entering his previous residence (he still had some of his stuff there), and he followed them in and shot one of the burglars in the face. Sheets was charged in the shooting, and while he made a myriad of other mistakes, Branca stresses that, “when you go to the fight rather than the fight coming to you, that’s not going to look much like self-defense to a lot of people.”

Even though Alexander had been attacked by Gray, that encounter was effectively over, she had escaped. Don West says, “The notion of her leaving a relative position of safety to going back to the fight puts her at a great legal disadvantage.”

The lesson for concealed carriers is, even in cases of home defense, you should be very wary of leaving a position of relative safety to confront an intruder. You can warn the intruder off; let them know you are armed; call the police — but if they do not pose an imminent threat to you or your family, you are in a legally more sound position if you wait for them to come to you before using deadly force.

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