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A good law

by Whaleoil on January 5, 2012

A young Oklahoma mother shot and killed an intruder to protect her 3-month-old baby on New Year’s Eve, less than a week after the baby’s father died of cancer.

The 911 dispatcher confirmed with McKinley that the doors to her home were locked as she asked again if it was okay to shoot the intruder if he were to come through her door.

“I can’t tell you that you can do that but you do what you have to do to protect your baby,” the dispatcher told her. McKinley was on the phone with 911 for a total of 21 minutes.

When Martin kicked in the door and came after her with the knife, the teen mom shot and killed the 24-year-old. Police are calling the shooting justified.

“You’re allowed to shoot an unauthorized person that is in your home. The law provides you the remedy, and sanctions the use of deadly force,” Det. Dan Huff of the Blanchard police said.

One can only imagine what would have happened if she had not been armed. Of course our civil liberties crim huggers int his country would say the young man was only trying to have a wee chat with the lass.

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  • Zelda

    Good on her for protecting herself!. shudder to think of civil liberties & crim huggers reaction in NZ

  • Toss

    here she would be prosecuted and the baby taken in CYF care. 

  • Brian Smaller

    The arms code here in NZ specifically says that having a firearm for self defence is a reason to make the police consider a person as unfit to hold a firearms licence.

    • http://www.whaleoil.co.nz Whaleoil

      Which is patently ridiculous

      • Anonymous

        Arms officers always ask “what would you do….?” questions to ascertain whether you would use your firearm for self defence.
        The last one that asked me that was told of course not, but that wont stop me from turning any scum threatening my family into a pinata with strategically stored “sporting equipment”.
        No problem then, he laughed.

    • http://www.whaleoil.co.nz Whaleoil

      Which is patently ridiculous

  • Scanner

    Great a proper justice system, and no repeat offenders to deal with, way much better than “Hug-a-crim” as practiced here.

  • Anonymous

    Toss – No. Her acts would be a valid defence under S48 of the Crimes Act in NZ. She did not intend to kill the intruder, but merely to incapacitate him and rapidly. Death was an unfortunate byproduct. It comes down to what is ‘reasonable’ in the circumstances. It may be in parts of USA police reach a rapid conclusion in such cases, whereas in NZ there is a full homicide investigation. Again, in this case Crown Law would be unlikely to recommend laying a murder/manslaughter charge but a decision would take weeks. A remand in custody in such cases would be very unusual (eg a serious criminal record). The investigation sometimes indicates a firearms offence and a prosecution would follow. I personally would like to see such investigations ‘fast tracked’, there would normally be sufficient info on the file after a few days for a Crown lawyer to reach a conclusion.

    Now if she shot the intruder when he was fleeing, S48 would not apply.

    Brian – Has anyone who has a gun licence for (say) duck shooting or rabbiting had the licence revoked when the person used the gun in self defence? Also if you got the licence to have a .22 for rabbiting, are you free to buy a .303 or shotgun without further protocol?

    • http://www.whaleoil.co.nz Whaleoil

      Peter, yes if you have a gun licence you can buy any gun you like so long as you are licenced to use it. So a general firearm licence is a Cat A…that means any shotgun, rifle that isn’t classified as a Cat E (Military Style Semi Automatic) or Cat C (collectors, generally fully automatic etc).

      There is no such thing as a licence for an activity other than general shooting.

      • GPT

        The definition of an MSSA is ridiculous.  Put a 25 round magazine in your Ruger 10/22 and suddendly it’s defined as an MSSA.  Police use the term “military style” deliberately to evoke fear and justify stupid rules. 

      • Anonymous

        So ‘general shooting’ seems to include everything except unlawful shooting or self defence (including property protection).

      • Anonymous

        Yes Peter using a firearm for self defense is actively discouraged in any circumstances.

    • GPT

      The circumstances as described above would seem to fall within self defence as defined in the Crimes Act.  Put it this way, given I like winning, if someone was unlucky enough to be charged in such circumstances it is a case I would like to present to a jury.

      • Anonymous

        The point is the Police should be able to make a decision, on the right or wrong of it, in a timely fashion and that is the end of it.

      • GPT

        Yes although in fairness to them they do have to investigate properly and that is not always the quickest process.  If the investigation and the story match up the advice from the Crown would most likely be not to proceed.  It’s a balance.  Police have to make a realistic assessment of whether there is a case to answer so they don’t go around charging patently innocent people but equally they can’t appoint themselves as the Jury. 

        I think there have been some pretty rough examples of poor police discretion out of England where even the police case has screamed self defence but some poor sod has had to go through the system which is something to be avoided.

  • Blair Mulholland

    It doesn’t matter if you could defend it under the Crimes Act.  Nobody in these circumstances should ever be charged with a crime.  New Zealand law should properly codify the right to self defense of person and property.

    • Anonymous

      Self defence of person is codified by S48 of the Crimes Act. There are two requirements:
      1. What the person defending him/herself or another person believes to be the situation (a ‘subjective’ test). There is a ‘sting’ in that if there are no circumstances to give rise to the belief the defence fails. For example if offender is fleeing.
      2. Force used has to be reasonable in the circumstances (an ‘objective’ test). Gun against baseball bat, knife, etc OK.

      Not sure how you would codify every possible circumstances. for example should a prisoner be able to use self defence against another prisoner or prison officer. IMO the defence should be available, but is not the sort of thing one would codify. For example one prisoner stabbed another in self defence – above criteria were met and he was found not guilty.

      • Peter Wilson

        Scenarios are fun.

        What say the prisoner x genuinely believed prisoner y was going to “take him out.” The problem is he doesn’t know when, but believes his life is in jeopardy unless he strikes first. Self defense?

      • Anonymous

        One less mouth to feed, one less economic drain on society, a lot less future victims, increase in the average IQ of society, improvement in the gene pool. Help me out here guys what’s the downside?

      • Anonymous

        Peter Wilson – Pre-emptive self-defence was raised in the Wang (?) case. A woman claimed self defence after killing a man as she feared he was going to attack him at some future time (ie when he awakes). However the woman had ample opportunity to escape and / or get help so the defence failed. On the other hand Constable A in the Waitara case was backed into a corner so could claim the defence. Hence it would be reasonable to say that ‘self defence’ is not available if you believed you were going to be attacked at some indeterminate time in the future. This would apply even if you could not reasonably stay clear of the prospective attacker eg a prison or workplace situation. However if some idiot was swinging around a baseball bat and threatening to knock your head in, pre-emptive self defence action would seem to be justified if there was no reasonable means of escape.

      • http://www.whaleoil.co.nz Whaleoil

        Wtf is this “reasonable” bs. I believe in unreasonable and also massively disproportionate responses to criminals.

    • GPT

      As peterwn notes self defence is already codified.

      It’s all very well simply saying noone should be charged with a crime “in these circumstances” but what if the circumstances are in dispute?  And at the very least the five oh need to investigate – after all someone has been killed (even if they may have asked for it).

      • Blair Mulholland

        It’s very simple.  If you have an uninvited stranger on your property, you should be allowed to shoot and kill him.  Completely fair.

      • GPT

        Blair – So the neighbour’s kid climbs the fence to get their ball and you would shoot them? What about a pissed dude who goes  up the driveway and passes out on your doorstep?  Or to go a bit closer to the line an unarmed youth who may or may not be casing the joint?  You really think that morally justifies killing someone? 

    • Pharmachick

      It is colloquially referred to as a “castle law”… I believe whale has blogged on this before. NZ needs one.

  • Mark

    But they can and do specifically ask when you are renewing your gun license whether or not you would use it if an intruder broke into your home, to which you must reply of course not.

    • Anonymous

      Similarly if you have to play the self defence card then blurt out ‘I feared for my life’ or similar, if possible when the video is on. Then clam up until your lawyer arrives.

    • Anonymous

      So you would lie. Does that not make you a person of low character and not worthy of a firearms license.

      • Thorn

        You do what you have to do to protect life and property. 

    • GPT

      I think the concern is whether you are buying it for sporting purposes or to tool up around the home.  The reality is that the chances of a. needing your firearm for self defence are low and b. being at home, near the gun cabinet with time to get your firearm and then ammuntion from a separate locked store is about zero. 

      Using a firearm for self defence is not illegal but wondering around with one for self-defence (absent immediate threat) is.  I don’t make the rules!

  • Anonymous

    and remember if you are confronted and have taken said intruder out, put the scond round into the ceiling. I doupt if NZ CSI could tell which round was first?

    • Thorn

      Not a good idea. A so-called warning shot gets you into more trouble with the law. 

  • Phronesis

    As Mrbadger implies it seems likely the the debate will come down to if shooting the crim was reasonable when you could have warned the nice man, who was only really reacting to his unfortunate upbringing as a result of benefits not being sufficient, perhaps by firing a shot or offering him a nice cup of tea. Maybe give him all your money as property theft ranks very low as far as the police are concerned and the judge will probably be in favour of the redistribution of wealth to the poor.

    At least if you make sure they are dead there is only one story about what actually happened.

    On an entirely different note I confirmed yesterday that I can reliably (if it’s not to windy) knock a coke bottle off my gatepost which is 500m from my house.

    • Mike

      Good gun control!

    • http://www.whaleoil.co.nz Whaleoil

      Top gun control

  • Scanner

    I doubt if NZCSI could tell there had been two rounds fired.

  • Anonymous

    No Clam up and say nothing from the get go. Police involved in such incidents will wait a few days to asses the situation before commenting or making a statement.

  • Anonymous

    In all circumstances, regardless of what the act says, people will be charged with something/anything. It is some sort of Police or Government policy to discourage self defense with a weapon. The only defense is to be killed; only then people could say that you should have used lethal force. Of course they would then say that you should have not been in that situation and it is your entire fault anyway.
    These cases do not always go to trial because a jury of 12 good citizens would probably not convict. That situation would make the Police look even more stupid than they already are over such situations. The cost of defending the action would be financially devastating for the average New Zealander unlike the criminals who have everything state funded for them.
    There is plenty of evidence to support what I have just said. Blair is right the law should be clarified to allow for self defense properly, without having to resort to hindsight through the courts. It is not rocket science was the person on the property lawfully etc etc etc
    The question “If you would use a gun to defend yourself” if an intruder broke into your house and you were in fear for the personal safety of yourself or others and you must answer No, it is a blatant lie. Of course you would.
     
     

    • GPT

      How would you clarify the law to “allow for self defence” properly? 

      Note the law is currently:
      1. Did you believe that your or another was at immediate risk
      2. Was the force used proportional to the threat of harm (you can’t shoot someone for slapping you for eg)
      3. Was it self defence

      That is fairly robust.

      Are you suggesting presumptions? Eg – “it shall be presumed to be a defence to assault if the person committing the alleged assault was the lawful occupier of the property and the person assaulted was not” etc

      Serious question.  How far would you go in terms of law changes?

      • Pharmachick

        I would codify, in law, that a citizen in their own home confronted with an aggressive intruder that has gained access illegally (e.g. break windows, break doors, jimmy locks) can use any force they deem necessary in defence of self and property, with no thought to the safety or health of the intruder. (aside: P-freaks can do A LOT of harm with only their fists and steel-capped boots) 

  • Bunswalla

    While I’m 100% behind that brave young woman who let’s face it has had a pretty shit couple of weeks, I have a serious question: do we really want to get into a Wild West situation in New Zealand, where everybody has two loaded guns at the ready to blow someone away?

    For example, in Paihia today an Aucklander and a local got into a fist fight over a parking space (the visitor got his sister to stand in the space and the local backed in anyway). They both ended up with bruises and a telling off from local police – good result to a stupid incident they doubtless both feel some remorse and shame about.

    What would have happened if one or both of these numbnuts had a gun, and wasn’t afraid to use it?

    • Thorn

      The ability to defend oneself and one’s property using deadly force is central to liberty. We make too much about the so-called sanctity of criminal life forms. 

      • Bunswalla

        I’m not talking about thugs with knives breaking into your house when you’re alone with a baby, I’m asking a wider question about NZ society – do we really want to be an ‘armed citizenry’?

    • Blair Mulholland

      The fight would have been less likely to have happened.  An armed society is a polite society.  Here in Texas, everyone is excessively polite to one another.  I much prefer it to the aggro that your average Kiwi will give you when they feel wronged.

      • Michael

        I concur. I am in Washington State where the gun laws are not dissimilar to Texas. The only shootings in homes you hear about here are drug gang related. Why risk getting shot for a simple burglary? Or a parking space? There is a sense here that the home occupier is in the right.

    • GPT

      It’s a fair question.  Whale would know better than me but it does not seem to happen that often in the US.  In fact most mass shootings happen in gun free zones because, shock horror, criminals don’t follow rules. 

      • Pharmachick

        Not entirely true. The southern states, that have more liberal gun laws have more illegal/aggressive shootings. And California. In the Midwest, West and North East; there are more accidental shootings (hunting-type) and a significant (but slight) increase in illegal/aggressive shootings too, based on high density of firearms in these farming commuities. [apologies, I have the report detailing this somewhere on my hard drive @ work but no link. If you want one, ping me back and I will supply link (although it may be paywall). This latter, is analagous to NZ where rural communities experience more gun tragedy.   

      • http://www.whaleoil.co.nz Whaleoil

        And more importantly they don’t like being shot back at which is why they always go to gun free zones with their guns

    • opencarryadvocate

      my oath we do!
      in the words of george washington “the very atmosphere of firearms anywhere restrains evil interference”

    • http://www.whaleoil.co.nz Whaleoil

      You clearly have no understanding of the great peacemaking abilities of firearms. Let me tell you when every one is tooled up there is nothing but politeness.

      It is because of a lack of such firepower tat the fist fight broke out. Someone thought they were stronger, more entitled to the parking space than another weaker person.

  • Steve and Monique.

    In my mind, it is quite simple, if i’m here alone at night with my young son, and I am most nights as my husband works nights, if I have locked my doors and windows, you are not invited in and therefore an intruder and have absolutely no right to enter my property, you have violated my son and myself and if I had a gun, you would be shot – simple. The fact the guy kicked the door down, shows an intention of violation. I have no hesitation in protecting my child in any way I can. This girl must have been terrified. I commend her bravery.

    • Pharmachick

      Yup. Agree wholeheartedly Monique!!
      I commented something similar above, in response to GPT’s sincere question re: what would you codify in law. And further above that what you’re talking about is … “colloquially referred to as a ‘castle law’… I believe whale has blogged on this before. NZ needs one.”
      Cheers

  • http://twitter.com/Orcs2Elves Monique Watson

    She is fucking hero. if there was more of that Mama Bear attitude in New Zealand, there would be less abused and dead infants. 

  • Tom

    Just ask Greg Carvell. Backed into his office by some nutbar with a knife or an axe i think. Sat the maniac down with a single .45ACP to the guts. The police still tried to fit him up.

    • Pharmachick

      That was an awful abuse of police “investigation” and [lack of] process and shows the complete LACK of common sense in the NZ Police in those years. Perhaps this was due to overly PC attitudes to criminals. I don’t know about that either, your average cop is NOT the criminal’s friend… problem is usually their Manag… ahem, sorry … Senior Colleagues. 

      In the end, Mr. Carvell prevailed. but not before being put through a terrible wringer. If nothing else, this case shone some nicely cleansing sunlight on the police beaureaucracy, and they were found severely wanting by the judiciary (shocking, I know from NZs judiciary… perhaps there’s hope for us yet). It also set precedent for future trials.   

  • Willsomers101

    Reason the  US gun murder rate is so high is …..

    The proportion of self defence V shot by intruders/husbands etc is probably 100:1

    • http://www.whaleoil.co.nz Whaleoil

      Talking thru a hole in your arse again.

  • Robt Davies

    There’s a lot of banal law talk here. 

    Anyone thought to ask why it took local law enforcement 21 minutes to respond to the calls of a young mother? 

    • http://www.whaleoil.co.nz Whaleoil

      Two minutes with a mad man kicking in your door is too long. Ask navtej Singh about 15 minutes…oh wait you can’t he’s dead.

      She may have been rural. In Nz if you are rural you are very alone, the police will most certainly be the last to arrive.

  • Phronesis

    As mentioned earlier my gatepost is 500m from the house and in full view of the house. It has railway iron driven in to the ground for 10m each side and 1/2 inch high tensile chains on both ends of the gate. A sign states that it is private property keep out for those who dont get the hint. Being a rural area backing onto substantial bush it is reasonable to assume that anyone cutting their way through the gate is armed. It is also quite likely that they outnumber me. The gate etc. is there because the house was regularly broken into until it burnt down some years ago and security was improved. I can see them coming so it is not difficult for me to arm myself with my properly secured weapons. I could call the cops but they are at least half an hour away. Now it is quite likely that these morons are just wanting to ilegally cross my property or perhaps just burgle me if I am not at home but what if their intentions are more sinister? Not going to confront them without a weapon knowing that they are most likely armed, not keen on having some sort of mexican standoff either. Could run and hide but not entirely practical with a young family at night.

    • EX Navy Greg

      This would be ideal for you.

  • EX Navy Greg

    Been watching this thread all day, my comment is this:
    Wherever you are in the world, and whatever legal juristiction you are under, this young lady did the right thing. I would rather spend 10 years in jail for murder, rather than watch my kids and / or me getting injured by an intruder…and do nothing to stop it   It’s a no brainer, good on her.

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