Shoot or Don't Shoot?

I'm sure most of you have seen by now the photos of the two Boston marathon bombers taken by Andrew Kitzenberg from his Watertown apartment during the shootout with the police last week. If not, here's one:

Here are the two brothers taking cover behind the black Mercedes SUV and shooting towards Watertown Police officers. (Taken at 12:46:11AM) ~ Andrew Kitzenberg

As a matter of marksmanship, that looks like a pretty easy shot to make on the terrorists. Maybe, maybe 50 yards ... and they're illuminated by the SUV's headlights and focused on the policemen in front of them. Fish, meet barrel.

As a matter of law, though, it's not an easy call at all. Your lawful actions if you find yourself in this type of situation is highly dependent on which state you happen to be located in.

And in Massachusetts, which is a "Castle Doctrine" state, your use of deadly force against a person who isn't in your home will always be at great risk of criminal prosecution and civil liability.

The relevant Massachusetts statute providing a defense for the use of deadly force is M.G.L. c. 278, § 8A (emphasis added):

In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.

Outside of that one safe harbor (which is also subject to interpretation on "reasonable means", etc.) in Massachusetts you have a legal duty to retreat when confronted by an assailant, and only when you can retreat no further can deadly force be used for self-defense. And you're going to find yourself in court no matter what.

The right thing to do is to drop those two maggots where they stand. Under the law, though, unless they barge into your home, your only recognized option is to "cower in place" like Watertown did all day.

If you're in that apartment, there's a novel self-defense case to be made because of all the stray bullets whizzing around:

After shooting had stopped my roommate found a bullet hole that penetrated his west-facing wall and continued to pierce through his desk chair. His room is on the 2nd floor corner of the house, closest to the street, with west and south facing walls

But in an anti-gun state like Massachusetts, I'm not sure I'd want to depend on prosecutorial restraint, even in this case, to keep it from going to trial. And I certainly wouldn't want to risk the lightning strike-like odds of finding 12 people who aren't hardcore lefties to give a nod for an acquittal on self-defense. And then there's the potential for civil liability ...

So, sadly, in Massachusetts when a law-abiding gun owner is confronted with a situation like that, the desire to stay out of jail/court/bankruptcy can overrule what otherwise is a no-brainer of a decision.

A bill that might have changed this situation was proposed last year, but the canonization of St. Trayvon put the brakes on it.

Under Brewer's bill, called Senate 661, or an Act Relative to the Common Defense, people could use deadly force, or less than deadly force, in self-defense and in public to defend others any place they have a right to be. There would be no duty to retreat from any place that they have a right to be.

Hopefully that will be reconsidered.

So, knowing the possible legal ramifications of shooting those two terrorists, who at the time that picture was taken had murdered two women, an 8-year old boy and a law enforcement officer, and attempted to murder hundreds of others ...

posted by Andy at 11:58 AM

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