The Brenna Cavanaugh Case

Part 2: Pursuing an Intruder

It was well past midnight when a noise awoke Brenna Cavanaugh and her boyfriend Mark Gray, alerting the couple to an intruder lurking in the hallway beyond their third-floor bedroom. “Get your gun,” Cavanaugh said. The intruder fled. Gray pursued, his semi-automatic pistol in hand, Cavanaugh following not far behind. When the intruder made it out of the home, he sprinted across the lawn to a truck parked on the street. Cavanaugh positioned herself in front of the truck, ostensibly to read the license plate. When the vehicle was put into gear, she allegedly yelled for Gray to “shoot” or “shoot  him.” Gray obliged and fired six rounds, three of which hit the truck as the terrified driver backed into a telephone pole and then sped away.

The “intruder” turned out to be 16-year-old Oscar LaLime, a high school friend of Cavanaugh’s daughter who thought he had been invited to a party. The party, it turns out, was at Cavanaugh’s daughter’s father’s house. The confusion had near-tragic consequences. Although no one was harmed in the incident, both Gray and Cavanaugh were criminally charged — Gray for attempted first-degree assault and Cavanaugh for being an accomplice. A jury acquitted Gray. Cavanaugh endured a longer path through the criminal justice system that involved a trial, a conviction, a successful appeal, and ultimately a guilty plea to lesser charges. Despite Gray’s acquittal and Cavanaugh’s relatively gentle sentence (she ended up serving no jail time), enduring the criminal prosecution proved an expensive and life-altering ordeal for both defendants, and both still face a civil lawsuit filed by LaLime’s family.

If Cavanaugh and Gray had simply made sure that all the doors were locked before they went to bed, the entire fiasco could have been avoided. As tragic as it may have been, had Gray fired at LaLime while he was creeping through the third-floor hallway, the defender’s actions would likely have been interpreted as justified by the prosecutors. CCW Safe National Trial Counsel Don West says that the law provides a homeowner with a strong presumption of reasonable fear when encountering an intruder that predicates the right to use deadly force. However, once Gray chased LaLime from the home, and it was clear the intruder was retreating, the powerful protections of the Castle Doctrine vanished.

“The homeowner has the presumption that the person who has broken into and entered the home intends to harm and therefore, their fear of being a victim of harm is reasonable,” Don says. “The further away you get from the house, the more that presumption dissipates until it no longer exists whatsoever.”

In fact, by the time Gray and Cavanaugh encounter LaLime at his pickup truck, the initial justification for deadly force was gone, and legally, the confrontation at the teenager’s vehicle became a separate standalone encounter — one in which the defenders lost the benefits of the Castle Doctrine. Don West says, “Not only was Lalime no longer posing an actual threat, but he was also no longer posing a presumptive threat because he was off their property. It was, in some regards, from a legal perspective, as if the two of them had encountered each other at a different place and time.”

Legally, it’s clear that when a defender chases an intruder out of a home, the protections of the Castle Doctrine quickly fade. From a tactical perspective, firearms instructor and CCW Safe Steve Moses only supports chasing an intruder out of the home if the safety of someone else in the house is a consideration. “I engage the intruder when the situation is such that I have a third party in another part of the house that I am obligated or I’ve chosen to be obligated to protect. If it’s just me, or if it’s just my wife and myself and we’re both in the same room, I’m not chasing them out.” Steve says that in most circumstances, it is best for an armed defender to dial 911 and stay ensconced in a hard corner where they maintain the tactical advantage. (A “hard corner” is on the same wall as the door to the room, allowing the defender to see an intruder before the intruder can see the defender.)

After the couple chased LaLime off their property, we know Cavanaugh positioned herself in front of the teenager’s pickup truck. What we don’t know for sure is why she put herself in that position. There was some suggestion that she was trying to read the intruder’s license plate, but considering Cavanaugh had once served as the Portsmouth, New Hampshire Police Commissioner, it’s also possible that she was attempting to prevent LaLime from retreating. After Cavanaugh was convicted for her accomplice role in the shooting, Superior Court Judge Marguerite Wageling said Cavanaugh acted like a “vigilante that night” and that she took “the law into her own hands.”

Don West says that “an honest attempt by the homeowners to gather information” that could benefit a police investigation is perfectly acceptable, but he cautions that defenders should not attempt to reengage the intruder or expose themselves to the risk of harm. Gray “did not have the right to use deadly force to keep LaLime from leaving the scene,” Don says. Steve Moses agrees. When it comes to dealing with intruders, Steve says, “Your role is not to arrest those people or cause their arrest or detain those people.” Instead, the preferred action “is allowing that person to leave. Watch them exit. Make a note of what direction they went. Then secure your house, go back to your hard corner, and call 911.”

The lesson for armed defenders is that you are legally justified in using deadly force to protect yourself from an intruder who broke into your home and who poses an immediate threat; however, the law does not permit citizens to use deadly force or the threat of deadly force to detain a suspect or prevent them from retreating. Firearms instructor Chuck Haggard says that the goal of self-defense is to “break contact” with the attacker. This is true whether you’re in a parking lot or in your home. Once you’ve managed to break contact with an intruder, if there’s no one else in any part of your home that needs to be protected, your best bet — both tactically and legally — is to take up a strong defensive position and call 911.

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