Close call for home defense

A case history told by Massad Ayoob tells of a close call for the shooter in a home defense case.

Mitch Vilos, an experienced attorney in Utah who has handled about 100 self defense shooting cases, says: “There are three types of defense generally not prosecuted. Home defense against an uninvited stranger. Also, shooting an attempted mass murderer. The third least-likely type of shooting to be prosecuted is defending yourself against armed robbery.”

Massad Ayoob:

He [Mitch Vilos] had a case where his client was asked to go to the home of a felon who was married to his client’s sister. The sister wanted her brother to take a firearm out of the house, because it was illegal. When the client came to take the gun, an argument ensued and escalated, and he wound up having to kill his brother-in-law in self-defense. Mitch explained, “The felon said, ‘Get out of my home.’ The client said ‘Make me.’ The felon ran into the bedroom. The racking of a gun was heard. My client drew and shot the guy five times. The felon was found dead with a handgun in his lap. My client said only, ‘I had to defend myself.’”

The shooter retained Mitch. Mitch wrote a letter to the prosecutor telling him everything, subsequent to an agreement with the prosecutor, nothing Mitch said could be used against the client. The outcome? Said Mitch, “The prosecutor brought the family of the deceased into his office and told them it was justified. Under Utah law the felon having a firearm was a forcible felony. He decided not to prosecute.”

In the above case, it should be noted the potential defendant was on thin ice, having gone into another man’s home, even though he was invited by another member of the household. The ice got even thinner when the homeowner ordered him to leave and he answered, “Make me.” Mitch Vilos reminded the class it happened in gun-friendly Utah, where he estimates there are more guns than people.

Note that Mitch Vilos is careful to specify that prosecution is not likely in a case of home defense against an “uninvited stranger.” Both uninvited and stranger are important words here. While a person’s home is their castle and the place where they are given the most leeway to defend themselves with a firearm, the home is not an execution chamber.

In this case the person who came to the home was invited in and was the wife’s brother. In the home owner ’s favor was he had told the brother in law to “Get out of my house,” and the wife’s brother had refused with the words “Make me.” This could have been reasonably interpreted as “fighting words” justifying self defense in the home. As Massad says above, this put the brother on thin ice. I think I would have reconsidered my venture and left at that moment.

The fact that the wife’s husband was a felon and thus prohibited from having a firearm is irrelevant. Lots of cases, even in the U.S. 4th Circuit, have held that a felon does not lose his natural right of self defense, endowed upon him by his creator.

I hope the wife’s brother realizes that he dodged a bullet in this case even though the man he killed never got off a shot . I imagine his sister is not on good terms with him these days.


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