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November 11, 2013

Sad example from Michigan of an honest but UNreasonable use of deadly force?

As we wrap up our discussion of self-defense doctrines this week, we will give particular attention to how the MPC and Ohio deal with uses of deadly force when a defendant may have honestly but unreasonably believed force was needed for self defense.  Sadly, there is a new case from Michigan involving the death of a young woman that provides a set of (still unclear) facts that may allow us to probe effectively modern doctrines and policy debates.  This USA Today article from last week, headlined "Family wants answers in shooting of woman seeking help," provides these sad details:

Police say a homeowner told investigators his shotgun accidentally discharged, shooting a 19-year-old Detroit woman to death as she stood on the porch of his home early Saturday.

Members of 19-year-old Renisha McBride's family said they believe the African-American woman was racially profiled by the homeowner.  They said McBride, whose cellphone had died, had gone up to the house on Outer Drive seeking help after she was involved in an auto accident early Saturday morning.

"This man's claiming — believed the girl was breaking into the home. And he's also saying the gun discharged accidentally," Lt. James Serwatowski, chief detective, said Thursday.

Police are also countering the family's account that McBride was shot in the back of the head with a shotgun as she turned to leave.  The family said she had gone to the house seeking help after being involved in a car accident several blocks away. "This girl was not shot in the back of the head while leaving the porch," Serwatowski said "I don't know where the family is getting this.  She was shot in the front of the face, near the mouth."

"I know the family is anxious to see this man (the alleged shooter) charged, but the prosecutor's office is telling us they want a lot more information before they make a decision," Serwatowski said.

The Wayne County Prosecutor's Office reiterated Thursday that it is awaiting further investigation by Dearborn Heights police before deciding whether any criminal charges will be authorized in the case.   "I'll confirm that she was in an accident in Detroit and that she left the accident scene, and then some hours transpired" before the shooting, Serwatowski said.

Serwatowski said the shooting occurred about 3:40 a.m. and the accident happened at about 1:30 a.m.  He declined to say what police believe McBride was doing before and after the accident. The homeowner's .12-gauge was seized by police and the Michigan State Police crime lab is analyzing it, Serwatowski said....

"Black life is not valued in America, not worthy, not respected," said Detroit activist Yusef Shaker.... "Here was a woman who was seeking help from potential danger and her life was taken. ... It's a Trayvon Martin case all over again."

"Why didn't he call 911?" asked Bernita Spinks, 48, an aunt of McBride. "That's what I want to know. ... It's racial profiling." In McBride's case, Spinks said: "He could have called the police. She wasn't in the backyard. She was at the front door knocking ... that man had the time to look out his window."

McBride's family said they were told the house was about four blocks away from where the accident occurred. Spinks said McBride had been driving her 2001 white Ford Taurus when she struck another car, parked and walked to find help. "She was disoriented. She was scared. And this is what she got, knocking on a door," Spinks said. "All I want is justice for Renisha. It makes me enraged." The area where the shooting took place is a mix of residential and business.

Grieving family members gathered Wednesday night at the house in northwest Detroit where McBride lived with her grandmother, mother and her 22-year-old sister. Her parents were overcome with grief and unable to speak to a reporter, Spinks said.  But all shared outrage over what happened.

A graduate of Southfield High School, McBride was known as a friendly person who worked hard, Spinks said. McBride recently got a job at the Ford Rouge plant in Dearborn on the inspection line, she said. "She was sweet," Spinks said. "She didn't get into trouble."

In part because of the suggestion that the shooting here was accidental, this case may end up being more about whether and what degree of homicide may be in play as much as it is about use of defense force. But, for class discussion purposes, I plan to try to work through how Ohio and the MPC would handle this case if the shooter/potential-defendant were to readily admit that he purposely shot through the door because he honestly believed that his life was threatened by the noises he heard on the porch in the middle of the night.

To the extent folks are eager to discuss this case before we get to class on Wednesday, perhaps we can/should start by debating in this space some questions that I already have:

1. Why has this case not (yet?) received media attention anywhere comparable to what happened in the Trayvon Martin shooting?

2. Should local prosecutors convene a grand jury to investigate this shooting rather than just rely on the police investigation?

3. Does this kind of cases make you more or less comfortable with the traditional "castle doctrine" which provides that there is never a duty to retreat before using deadly force when one is in his own home?

November 11, 2013 in Class reflections, Course materials and schedule, Notable real cases | Permalink


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While similar to the Trayvon Martin/Zimmerman case, I think the idea of the sanctity of the home makes this case different, at least for media and the court room. While some argued that Zimmerman was out looking for trouble, here there is at least an argument that the accused was trying to protect his home, albeit from an unarmed 19 year old girl.
It seems smart on the prosecutions part to be taking their time on assessing what the charge will be. Maybe a lesson from the Trayvon Martin case? One argument out there is that prosecutors aimed too high and that's how Zimmerman was acquitted.

Posted by: Kristin V. | Nov 12, 2013 8:58:50 AM

I think another reason why this is getting less publicity is where it occurred. As someone who lived outside of Detroit (Auburn Hills), I learned pretty quickly to associate Dearborn Heights with similar dangers as one would associate with Detroit. It depends on where on Outer Drive this home owner lived, but his street goes right into the "red zone" of high crime rates that might make a home owner into a present-day style Bernie Goetz "battered citizen." Some parts of Dearborn Hts. are pretty nice, but some not so much. People shoot people in and near Detroit a lot, and there's sort of an expectation that more violence will occur in this decaying city. This map is pretty interesting - http://www.city-data.com/crime/crime-Dearborn-Heights-Michigan.html - where someone lives might make them more or less "reasonable" in whether they pull a .12-gauge on someone knocking on their door at 1:30am.

Posted by: Christopher Sponseller | Nov 12, 2013 11:30:20 AM

Ooops -- the post above was actually Elliot, not Chris -- I had his info saved into my computer because he had asked to use it to post when his computer was not working.

Posted by: Elliot Gaiser | Nov 12, 2013 11:32:10 AM

I remember when my father was looking at buying a house on the East side of Detroit. We went around on a Saturday afternoon to ask what the neighbors thought of the area. Most of them talked to us from behind their security doors. At one house they just shouted that they didn’t want to talk to anyone through both their doors. This was in broad daylight in the afternoon. We didn’t buy a house there. Like Elliot mentioned, I think the time of night as well as this being in Detroit changes the reasonableness standard.

I would disagree that the media attention, at this point, is not comparable to the Zimmerman case. This incident is less than a week old. It took a lot of work on the part of Trayvon Martin’s family and friends to bring attention to his death after no charges were filed. Most of the big news stories came after the 911 tapes were released. That was almost 3 weeks after the shooting.

Posted by: Vincent | Nov 12, 2013 1:11:14 PM

I tend to agree with Kristin's thoughts. The very fact that this man was inside his own home makes this case quite different from the Trayvon Martin case. Last week we got into the no duty to retreat from one's home rule for self-defense. This man had no where else to go if he truly felt threatened. It will be interesting to see what the police investigation uncovers. The fact that the incident occurred over two hours after the car accident and several blocks away are definitely relevant in my mind. The time of night also plays into the equation, as do Elliot and Vincent's points about the particular neighborhood.

I personally believe that people are too quick to play the "race card" when an incident like this happens. Various people are speaking out before all of the facts and details of the incident have even come to light. Too quickly various people are trying to compare this case to the Trayvon Martin case when it may turn out that they are not alike in any manner.

Posted by: Jason Groh | Nov 12, 2013 1:19:16 PM

Reporting that the shotgun 'accidentally discharged' is a coward's move. While almost none of the facts are confirmed, to say the 'shotgun accidentally discharged' doesn't even implicate the homeowner as the shooter.
But the police in Detroit have failed their citizens.
Look here
The highlights: 58 minute response time to serious crime reports. Convicted Killers employed by the police departments, among many others.
I have too many questions to pass judgment here. 4 blocks from the accident seems far to walk looking for help. Maybe the accident discharge is this guy's way of not having to rely on an affirmative defense in a post Zimmerman era? I don't really know.
It seems unreasonable that imminent danger was present considering the victim was an unarmed, disoriented, female located outside the home. But it seems unreasonable that a shotgun would 'accidentally discharge' into someone's face. Pretty sure there are many details we still need to confirm.
Sidebar: "journalists" in the digital era are often compromise clicks and pageviews for substance and accuracy.

Posted by: Christopher Sponseller | Nov 13, 2013 10:05:08 AM

I understand that this does not directly relate to the post, however, I read the below opinion piece by Nicholas Kristof and felt compelled to share with the class. Further, I recommend everyone follow the link to the new ACLU report. While Kristof's piece only provides a cursory overview (mostly retributivist with a flavor of utilitarian) of minimum sentencing and LWOP for non-violent criminals, it is great to see such a renowned human rights activist draw attention to some of the issues we have discussed. http://www.nytimes.com/2013/11/14/opinion/kristof-serving-life-for-this.html?hp&rref=opinion&_r=0

Posted by: Kristen Maiorino | Nov 14, 2013 9:34:54 AM

Following Kristen's link, the arguments made against LWOP in the article, to me, echo's AG Holders speech from the beginning of the semester. Sentencing drug addicts, abuse victims and "down-on-your-luck" people to LWOP serves no purpose, utilitarian or otherwise, and it's nice to see such attention to the plight. The categorization of these LWOP sentenced offenders as "victims of America’s disastrous experiment in mass incarceration" is especially powerful. As well, the ACLU map of those spending LWOP for nonviolent crimes is even more disturbing as it indicates that such sentences are not "fairly" applied, in that one committing a non-violent LWOP eligible crime is florida is not likely to receive the same sentence in Ohio. If correct, the 63% of those sentenced LWOP for non-violent crimes were tried in fed courts. I would guess this sentencing strategy is due to the government's desire to be "tough on drug crime" is leading to these situations for utilitarian purposes, which is clearly not effective.

Posted by: Elizabeth Young | Nov 14, 2013 10:04:13 AM



He's being charged with second degree murder.

First Degree Murder in Michigan;

Sec. 316.

(1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life:

(a) Murder perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing.

(b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, kidnapping, vulnerable adult abuse in the first or second degree under section 145n, torture under section 85, or aggravated stalking under section 411i.

(c) A murder of a peace officer or a corrections officer committed while the peace officer or corrections officer is lawfully engaged in the performance of any of his or her duties as a peace officer or corrections officer, knowing that the peace officer or corrections officer is a peace officer or corrections officer engaged in the performance of his or her duty as a peace officer or corrections officer.

750.317 Second degree murder in Michigan;

Sec. 317. Second degree murder—All other kinds of murder shall be murder of the second degree, and
shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the
court trying the same.

From a Michigan Criminal Defense Attorney website: "In a Second Degree Murder case, the prosecution does not have the obligation to prove that the person thought out the killing beforehand."

Posted by: Matt Raby | Nov 15, 2013 11:35:31 AM

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