Montana law has some rules regarding self-defense that could be tested by Sunday’s fatal shooting of a teenager in a Grant Creek home, according to the man who wrote the state’s version of the “castle doctrine.”
Missoula County prosecutors have charged 29-year-old Markus Kaarma with felony deliberate homicide in the death of Diren Dede, a German foreign exchange student at Big Sky High School. Kaarma allegedly shot 17-year-old Dede with a shotgun after finding him in the Deer Canyon Court garage where Kaarma was living at about 12:30 a.m. Sunday.
Montana Shooting Sports Association President Gary Marbut said he had no personal knowledge of the incident and was not commenting on anything specific regarding the participants. But as author and chief lobbyist of Montana’s most current self-defense law, Marbut clarified how the state’s legal system now stands.
Montanans may be presumed innocent if they use lethal force in self-defense in a criminal situation, according to current state law. But the person using that force must have the belief they are at risk of serious bodily injury or loss of life. And they may have to back up that belief in court, Marbut said.
“The three legs of the stool are intent, opportunity and ability,” Marbut said of the state’s stand-your-ground defense. “They’re not codified in statutory law, but they’re the professional standard that’s been developed over years on self-defense situations.”
Intent means the defender has reason to believe his opponent intends to attack, such as by displaying a weapon, making verbal threats or using threatening gestures. Opportunity means the opponent is within range to use the weapon, which might be a few feet away with a knife or 100 yards with a rifle. Ability means the opponent has or appears to have the power to carry out his threat.
“And it’s never that simple,” Marbut said. “The person is authorized to use force or lethal force if the person believes they are at risk of loss of life or bodily injury. And a reasonable and prudent person is supposed to sort that out in seconds.”
Marbut added that when he teaches self-defense classes, he warns participants that using lethal force has consequences far beyond the courtroom.
“We teach if there’s a way a person can safely avoid using lethal force for self-defense, it’s always better,” Marbut said. “In addition to the legal aftermath, there’s also going to be emotional and psychological aftermath that people need help getting through.”
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Montana has had a law allowing people to defend occupied structures since at least 1947, Marbut said. And that law probably dates back to the original territorial law books that were swept into what’s now known as the Montana Code Annotated.
In 2000, the state Supreme Court upheld the conviction of a Bozeman woman who killed an abusive partner with a kitchen knife, although she claimed self-defense. Marbut and his supporters used that case to clarify the presumption of innocence in self-defense cases with a bill that became law in 2009.
“The Montana Supreme Court held that once she invoked the claim of self-defense, she was required to prove beyond reasonable doubt that she was justified,” Marbut said. “She was found guilty and imprisoned. We switched that.”
The case involved a situation where only two people were present and one died, Marbut said. That left the only witness forced to prove she was not guilty rather than the prosecution having to overcome her presumption of innocence.
“Before House Bill 228, the burden of proof assumed that a person was not justified in using force to defend themselves,” Marbut said. “We decided it was time to get that issue into statute. The underlying common law and statutory law says if a person is in genuine fear for loss of life or serious bodily injury, they may use lethal force anyplace. That’s spoken of nationally as ‘stand your ground.’ Any place you lawfully are, a right of self-defense exists.”
Montana also has a “defense of occupied structure” law, commonly known as the castle doctrine.
“The castle doctrine is a generic term, that your home is your castle and you can defend it,” Marbut said. “You could defend your home from somebody there illegally, and defend people from someone who had entered unlawfully. In House Bill 228, we also said you have no duty to retreat or flee under those circumstances. Some states have a requirement if you have any way you can escape, and you haven’t tried before using lethal force, you can be charged with a crime. We thought that was not appropriate to Montana culture. So we clarified you don’t have to dial 9-1-1 and wait 15 minutes for the police to arrive before you can use force to defend yourself.”