Less than 24 hours after a German exchange student was shot and killed inside a Missoula garage, a local legislator proposed a bill changing the language of Montana's "castle doctrine," the law justifying the use of lethal force in defense of an occupied structure.
The law has been on the books for as long as Montana has been a state, dating back to territorial days and the founding of Bannack. But some believe that a 2009 rewrite of the law made it too easy to apply deadly force.
“What we have now lacks common sense,” said state Sen. Ellie Hill, a Missoula Democrat who’s introducing legislation to rework the law. “As it is now, it doesn’t reflect 100 years of self-defense in Montana, and it doesn’t make Montana families safer.”
When the state’s castle doctrine was reworded in 2009, the language was opposed by the Montana Association of Chiefs of Police, the Montana County Attorney Association and the Montana Sheriffs and Peace Officers Association, among other groups.
Before that revision, Hill said, Montanans still had a constitutional right to defend their home, so long as they believed lethal force was necessary to stop an intruder who was entering the residence in a “violent, riotous, or tumultuous manner.”
That language was removed in 2009 at the request of lobbyist Gary Marbut, president of the Montana Shooting Sports Association. The bill was carried by Rep. Krayton Kerns, R-Laurel.
“Marbut basically changed it to shoot first and ask questions later,” said Hill. “Before 2009, a person had to exhibit some sort of violent, riotous or tumultuous behavior. Now that he’s removed those terms, you could shoot a wayward trick-or-treater. It lacks common sense.”
Hill is looking to reinstate the terms during the 2015 legislative session. While she’ll be a Democrat serving in a Republican majority, she thinks her bill can pass. It’s not a partisan issue, she said, nor does it pit liberals against conservatives.
“Yes, Ellie Hill, a Missoula Democrat with three children, has a gun in the closet of her home,” said Hill. “This isn’t anti gun – it’s common sense. The organizations that we entrust, our police, our county attorneys and our sheriffs, they’ve all said our current law is a bad idea.”
Marbut, who’s locked in a post-election battle as an Independent candidate vying for a seat on the 2015 Legislature, disagrees with Hill’s perspective and says she doesn’t understand the law and its history.
Marbut says the concept behind the castle doctrine reaches back to Europe and the 1300s, and has been a part of Montana’s culture since the Bannack statutes were created during territorial days.
Because of the law’s history and its age, Marbut felt it was too hard to understand. Terms like “riotous” and “tumultuous” are not commonly used, he said, nor are they commonly understood by the larger community.
He wanted to simplify the language and he succeeded in 2009 when Kerns sponsored and passed his bill.
“We believe that people should be able to understand what the law says, what criteria it requires and what it prohibits,” Marbut said. “We took those terms – riotous and tumultuous – out of the law so people could understand the law and know what it required them to comply with.”
Marbut added that the castle doctrine doesn’t permit a person to do anything inside the home that’s not permitted outside the home. That was tested this year after Michael Gordon drew a gun from his pickup truck before shooting and killing Christopher Hymel in the parking lot of a Missoula strip club.
In his tearful testimony during a coroner’s inquest, Gordon argued that he was in fear for his personal safety the night that Hymel punched him through the window of his truck. After several hours of deliberation, the inquest jury ruled that Gordon’s use of deadly force was legally justified.
Marbut won’t talk about the case, saying he doesn't have access to the investigative information. Asking him to speculate on the outcome, he said, was “as stupid as Hill making conclusions about the castle doctrine based upon what she doesn’t know.”
“Basic self defense allows the same thing inside and outside a structure,” Marbut said. “It really doesn’t allow a person to do any more than what they can do based on other laws, even outside the home.”
While the Gordon case raised questions on the use of lethal force in Montana, it’s been the Markus Kaarma trial that has garnered much of the media attention this year.
Kaarma shot and killed Diren Dede, a German exchange student attending Big Sky High School, after the unarmed boy entered Kaarma’s open garage in search of alcohol on an April night.
Hill and Marbut have each emerged as advocates arguing their side of the debate. Hill believes Dede was murdered and Marbut believes Kaarma erred in using deadly force. Beyond that, they don’t agree on much.
Hill has been interviewed in her home by CNN, and she recently had a German television crew reporting from her lawn. She’s sat for interviews with Al Jazeera and the Rev. Al Sharpton, a Baptist minister and civil rights leader.
While she’s not free to discuss the Kaarma trial since she’s a member of the Montana Bar Association, Hill does speak toward Montana’s gun culture and its castle doctrine – something that’s hard for foreign cultures to understand, she said.
“Missoula has given the international media a perception regarding our sense of gun rights and self-defense laws,” Hill said. “They feel like, perhaps, there’s a bit of a cowboy mentality here that has gone too far.”
Representing the other side, Marbut also has been interviewed by German newspapers and television crews, along with publications on the East Coast.
“They’re asking me about American gun culture and American gun laws,” Marbut said. “They’re asking me to explain to other cultures and other places what this is all about.”
Up until recently, Marbut couldn’t discuss the Kaarma case because he’s often called as an expert witness in state and federal court on Montana’s use of force laws.
Now free to talk, Marbut says he wouldn’t have worked for Kaarma’s defense. Based upon what he knows about the case, he doesn’t believe Kaarma was justified in using lethal force against Dede, at least under the conditions in which he carried it out.
“I think he made a classical error, a serious error, because he couldn’t visualize the target,” Marbut said. “The lights were off (in the garage), and so he couldn’t see or know if he was under serious threat. A gun owner is responsible when he pulls the trigger for where his bullets land.”
In his self-defense classes, Marbut reminds students that if they use lethal force, they’ll have to justify their actions in court and prove they met three main criteria – opportunity, ability and intent.
If the criteria are met, he said, one has to determine if the threat is imminent. If it is, he added, they must then decide if their response is proportional to the threat.
He doesn’t believe Kaarma could have met those criteria when he never saw Dede before firing into the dark garage.
“I won’t work for somebody who I don’t think is on the right side of the law,” Marbut said. “My opinion of that incident would be my opinion and the defense wouldn’t want to pay me for that opinion because he (Kaarma) couldn’t visualize his target.”
The case is being widely watched and reported. Many observers, including Hill, believe it could implications for the state’s castle doctrine.
“The outcome of this case is going to be pretty symbolic,” Hill said.