Reasonable or excessive? Firearms instructors address issues raised by Smith case

FARGO, N.D. - When Jere Hilland teaches you how to defend yourself, he always preaches using “reasonable force.”
“In other words, if someone punches you in the nose, you can punch them in the nose,” said Hilland, who has taught firearms classes in North Dakota for 10 years. “But you can’t keep punching them in the nose. That’s excessive force.”
That’s where Hilland guesses Byron Smith went wrong. Smith was found guilty Tuesday of premeditated murder after fatally shooting two teenagers who entered his home in Little Falls on Thanksgiving Day 2012.
Smith, who admitted shooting the teens “more times than I should have,” used excessive force, Hilland said, and so he was not protected by law.
The Smith case raises an important question in the self-defense and gun rights communities. In North Dakota and Minnesota, where state law allows people to defend themselves against home invaders, do you shoot to wound or shoot to kill?
Hilland says neither.
“You shoot to stop because you are in fear for your life,” he said. “And you do not empty your magazine like you see in the movies. That’s not the way it’s done. You stop shooting when you are no longer in fear for your life.”
In instances like the Smith case, it’s up to a jury to determine if the force used to protect oneself was reasonable.
Minnesota law offers a one-paragraph statute defining the justifiable taking of life, saying it’s only allowed “when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death,” or while preventing a felony in the residence.
North Dakota law first requires that a person attempt to retreat, stating that the use of deadly force “is not justified if it can be avoided, with safety to the actor and others.”
But North Dakota law further states that an individual is not required to retreat within or from his own home or place of work.
“You can defend yourself in your home as long as the individual in your home does not have a legal right to be there,” said Lisa Dirk, another professional firearms instructor in Fargo.
Deadly force is also legal in North Dakota if it is “necessary to prevent commission of arson, burglary, robbery or a felony involving violence” in a person’s home or place of work, if the use of a force other than deadly force would expose you to danger or serious bodily harm, according to state law.
For her part, Dirk said she focuses on safety and responsibility in her classes, which are certified by the National Rifle Association. She teaches how to make homes safer by, for instance, setting up a safe room. The goal, Dirk said, is to avoid using your firearm if at all possible.
“It’s not something you take lightly,” Dirk said. “It has a lifelong impact. It is a tool of last resort.”
But if a gun has to be used, Dirk agreed that there is a reasonable level of force that must be used.
“You don’t exceed whatever force is being put upon you,” she said. “So if I’ve got someone who is using a firearm, then I’m going to defend myself in-kind. If that person turns around and runs out of my house, I’m going to let them do that.”
Law enforcement, on the other hand, are allowed to pursue and use deadly force to stop someone in a chase, if that person is seen as a threat to others.
Moorhead police Lt. Tory Jacobson pointed to the recent example of Steven Anthony Henderson, a 19-year-old accused of shooting a Norman County sheriff’s deputy during a traffic stop last month. Henderson fled the scene but was caught after a brief manhunt.
“He just demonstrated that he’s got a willingness to kill and will do so to law enforcement,” Jacobson said. “So he’s not getting away because even if he’s trying to get away, deadly force can be used on that person.”
In a case that more closely resembles that of Smith, Jacobson referenced the 2009 example of Vernon Allen, a Moorhead man who shot and killed 17-year-old Joel LaFromboise, who had broken into Allen’s home.
Allen told police he aimed a shotgun at LaFromboise, there was a struggle for the gun, and Allen pulled the trigger, killing the teen. After months of investigation, charges were never filed against Allen.
“It’s legal to do what he did,” Jacobson said.
But Fargo Police Lt. Joel Vettel stressed that just because something is legal, that doesn’t mean it’s the smart thing to do in that moment.
Officers are taught to use common sense when faced with a potentially deadly situation, and citizens should use the same kind of good judgment, Vettel said.
“You have to look at what is the risk associated with putting yourself in a position where you could be harmed just to protect property,” Vettel said. “Even though maybe I have the legal right, the legal right does not make it the right thing to do.”