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Posted on May 30, 2023 by in Uncategorized

George Alan Kelly: Denying the Prairie Justice Impulse

George Alan Kelly has been charged with murder and is accused of taking the law into his own hands during a deadly encounter on his Arizona property. For more than twenty years, Kelly had enjoyed living with his wife on a sprawling 170-acre ranch near the Mexican border. In recent years, however, their peaceful life had been disturbed by illegal border crossings and property incursions. Former Border Patrol Chief Rodney Scott told News Nation that the area has “a propensity for violence.” Kelly had witnessed men on his property before, and he frequently contacted the United States Border Patrol Ranch Liason. 

The 75-year-old was understandably concerned when he heard a gunshot and saw a band of armed men on his property on January 30, 2023. The men wore boots and camouflage clothing. They carried large backpacks. After hearing the gunshot, Kelly went to his porch, armed with an AK-47. He says the leader of the men raised a rifle in his direction. Kelly shot first. He claims he intended to fire warning shots and says he took care to fire well over the men’s heads, but hours later, just before sunset, Kelly discovered the body of a man on his property. The man, wearing boots and camouflaged clothing, had been shot in the back. No weapon was found. 

In a Memorandum of Law submitted to the court, Kelly’s attorney Brenna Larkin argues that the man found dead was likely murdered by the cartel, and even if the bullet that killed the man did come from Kelly’s rifle, Larkin contends the shot was justified because it was fired in self-defense. Prosecutors disagree. The sheriff’s investigator who arrested Kelly recommended a charge of first-degree murder, indicating a pre-meditated homicide. The prosecutor slightly downgraded the charge to second-degree murder. In court, she told the judge “the state will submit that even based on the defendant’s statement that he went outside and shot in the direction of people, that he manifested extreme indifference to human life.”

The case is scheduled for trial, and it will be up to a jury to decide whether Kelly acted justifiably in fear for his life or if he acted with malice and indifference. For a jury to convict Kelly of second-degree murder, they don’t have to find that he intended to kill the men, only that he fired in their direction and didn’t really care whether he struck one of them or not. Some who support Kelly have expressed the attitude that the illegal immigrants who trespassed on his ranch had it coming. If the jury believes that was Kelly’s mindset when he pulled the trigger, he may receive a murder conviction.

It is difficult for a jury to peer into the mind of a defender and divine what their true motives were for using deadly force. Since it is impossible to know what anyone is truly thinking, prosecutors will try to find evidence that speaks to the shooter’s mindset. Statements made before a shooting can provide evidence of a defender’s mindset during a deadly encounter. The prosecutors in the Gerald Strebendt case used Facebook posts the defender had made complaining about slow drivers and talking about break-checking. When Strebendt was rear-ended and approached by an aggressive drunk driver on a rainy night, Stebendt’s statements made it seem like he initiated the events that led to his self-defense shooting. 

George Kelly gave prosecutors far more than a troubling Facebook post. He published a novella on Amazon. In the digital book Far Beyond the Border Fence, Kelly describes the adventures of a fictitious rancher who happens to be named George. In the story, men from across the border trespass on George’s property and attempt to steal horses. “The riders were less than 100 yards north of the border and riding full out,” Kelly writes. “He emptied a clip as close to the horses as he could without hitting them, the horses that is.” The implication is that “George” valued the life of the horses more than the lives of the human riders. In the novella, the Sheriff asks George if he had hit one of the riders. “George told him that if he had hit one, he hadn’t hit him hard enough.”

The fact that Kelly has written a fictitious account of firing at illegal migrants trespassing on his property doesn’t make him guilty of murder in real life, but it clearly damages his self-defense. The character “George” in the novella believed that if one of the trespassers had been killed, then they deserved it. Kelly’s lawyer will no doubt do everything she can to prevent Far Beyond the Border Fence from being entered into evidence, but if a jury is allowed to consider these passages, it won’t take much for them to infer that Kelly’s real-life attitudes are reflected in his work of creative fiction.

The core justification for the use of deadly force is to eliminate the imminent threat of great bodily harm or death. The law does not permit the use of deadly force for the protection of property, and it does not allow for the use of deadly force against trespassers. You can’t shoot someone for being on your property, and you can’t shoot somebody simply because you’ve caught them stealing. You especially cannot shoot someone in the back when they are running away from you.

There is a good chance that some of the jurors at Kelly’s trial will feel some sympathy for the elderly rancher. They may find it admirable that George had the courage to defend his land, his home, and his wife with a rifle. But that’s prairie justice; that’s not the law. In many of the high-profile self-defense cases we have explored, the impulse to exact prairie justice on a criminal intruder has caused otherwise law-abiding defenders to make fatal mistakes that led to homicide convictions.

Markus Kaarma shot an intruder who entered his garage shortly after midnight. Kaarma had recently been a victim of a garage burglary, and he made it clear to neighbors that he hoped the perpetrators would come back. Similarly, Byron David Smith had lost irreplaceable family heirlooms to a burglary, and one day when he spotted teens casing his home, instead of calling the police, he waited for the intruders in his basement and even after incapacitating them, he continued shooting, executing them for breaking into his house. James Meyer detected a man breaking into his backyard tool shed. When confronted, the intruder fled into the woods behind the house, and Meyer fired into the darkness to warn the intruder not to return. The next morning, he found the man’s body on the golf course adjacent to his property – a bullet wound in the back of his head. 

The shots fired by Meyer, Smith, and Kaarma were not fired in fear; they were fired in anger. While the anger may have been justified, the shots were not. When George Alan Kelly faces trial, prosecutors will no doubt ask the jury whether they believe Kelly fired with a reasonable belief that he faced an imminent deadly threat or whether he fired in anger out of a desire to exact some prairie justice. His freedom hangs in the balance.

As an armed defender, if you ever face an intruder, it is almost certain that you will face a range of strong emotions, including both fear and anger. If your fear of imminent great bodily harm or death is reasonable, then you’ll likely have a favorable legal outcome if you decide to use deadly force. But if the threat is not imminent, or if it passes and your fear morphs into anger, then you’re at risk of making a fatal mistake. We cannot reliably control how we feel during a threatening high-stress encounter, but firearms instructor Steve Moses says there is value in understanding what emotions you may feel when you make your home defense plan. Steve once encountered a home intruder himself, so he understands the impulse to want to make the bad guy pay, but it is not the right thing to do, and it is not the legal thing to do. Steve says, “Make a decision in advance that, if the impulse takes place, you will not act upon it.”