The .25-caliber bullet that ripped into the left side of Danny Lira’s forehead blew apart when it hit his skull, exiting in fragments. Had it been a more substantial caliber — almost any other pistol caliber — Lira would most likely have been killed from the shot fired at close range. Instead, Lira went to the hospital in Billings, Montana, where he was still held for observation several days after the shooting.
The man who shot him went free on the orders of the local district attorney.
If that sounds strange, welcome to what may become the test case in the debate over Montana’s newly instituted version of the “castle doctrine.”
In broad terms, a castle doctrine is an American legal concept that states a person can use reasonable force — including deadly force — to defend himself or others from violent attack, without any duty to retreat from his attacker. In many areas the law only applies to a person’s home (the doctrine gets its name from the saying “a man’s home is his castle”), but in other states it may apply anywhere that a person is legally allowed to be.
As a result of the law clearly stating that retreat is not required, these and similar laws are also known as “stand your ground” laws. They are growing in popularity.
Montana’s recently enacted version of castle doctrine carried the much less glamorous title House Bill 228. The specific parts of HB0228 that led to Danny Lira’s shooter being released from jail shortly after the shooting were Sections 1 and 9:
Section 1. No duty to summon help or flee. Except as provided in 45-3-105, a person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat or summon law enforcement assistance prior to using force. The provisions of this section apply to a person offering evidence of justifiable use of force under 45-3-102, 45-3-103, or 45-3-104.
Note that the use of deadly force is authorized under the law if citizens are “threatened with bodily injury.” That’s a much lower standard of escalation to deadly force than the requirement in most other states that a life must be in danger to justify the use of a gun.
And once that gun is used, the shooter doesn’t have to justify his actions as much as the prosecutor must prove that his actions were not justified:
Section 9. Justifiable use of force — burden of proof. In a criminal trial, when the defendant has offered evidence of justifiable use of force, the state has the burden of proving beyond a reasonable doubt that the defendant’s actions were not justified.
In most instances and jurisdictions, the burden of proof has been on the citizen who discharged the weapon to prove that he was justified in using deadly force. The explicit wording of Section 9 turns that formula on its head, forcing the prosecutor to prove that the shooting wasn’t justified.
The most widely-reported version of events is that Lira, 32, who weighs in excess of 260 pounds, got into an argument over the length of a work break with Wal-Mart co-worker Craig Schmidt, 49, who weighs 100 pounds less. The argument escalated, and Lira punched Schmidt in the face at least once. Schmidt was knocked to the ground. While down, Schmidt drew a .25-caliber Beretta and fired one shot at Lira from a range of 10-15 feet, striking him in the head and ending the fight.
Lira’s version of events is a bit different. Lira maintains that he was trying to defend himself from Schmidt. Lira claims that Schmidt started the altercation by slamming his shoulder into him, at which point he then punched Schmidt. Lira then claims he heard a clicking noise. He thought that Schimdt was trying to pull a knife on him and so he tried to restrain him. Lira then says Schmidt spun out of his grasp and shot him at contact range — less than one foot.
Before HB0228 became law, County Attorney Dennis Paxinos would have had probable cause to arrest Schmidt for assault with a weapon. Schmidt would have remained in custody while the authorities investigated whether or not he was acting in self-defense. But Paxinos says that because of the new law, he had to release Schmidt while authorities conduct their investigation. The obvious implication is that shooters in similar cases must be set free and put back on the street until the authorities collect enough evidence to prove that the shooting wasn’t self-defense.
If you read this and get the feeling that this literally leads to a dangerous “shoot first, ask questions later” mentality in Montana, then you might be getting the exact impression that prosecutor Paxinos intends.
Paxinos was one of several county attorneys who were strongly opposed to HB0228 while the law was debated in the legislature. This case carries with it political elements that go beyond the merits of this shooting to the merits of the law itself. SB0228 was written by state legislators to protect the rights of citizens to defend themselves using deadly force if necessary, but fears are that it may have gone too far.
Craig Schmidt walks the streets of Billings a free man — at least for now — after shooting a man in the face over a work-related argument that escalated to gunplay. Somehow, I don’t think that is the kind of outcome that the Montana legislature had in mind.