Meanwhile in America

Sarah McKinley, 18, shot and killed Justin Martin with a 12-gauge shotgun after calling police and asking in a near-whisper: \”I\’ve got two guns in my hand. Is it OK to shoot him if he comes through the door?\”

\”Well, you have to do whatever you can do to protect yourself,\” a dispatcher replied. \”I can\’t tell you that you can do that, but you have to do what you have to do to protect your baby.\”

The dispatcher then heard a gunshot over the telephone line.

Police found Martin\’s body, knife in hand, slumped over McKinley\’s sofa, and determined the mother of a three-month-old baby – whose cancer-stricken husband died on Christmas Day – had acted in self-defense.

\”Our initial review of the case doesn\’t indicate she violated the law in any way,\” assistant district attorney James Walters told the Oklahoman newspaper. \”He should have thought about it before he went into someone\’s home.\”

25 comments on “Meanwhile in America

  1. Meanwhile in Britain, she would have been raped. Or murdered. Or raped and murdered. Or to quote some Arnie film murdered and raped.

    It is so nice to be more civilised than our American cousins isn’t it?

  2. Okay, in the UK she’d have been much less likely to have a gun, never mind two. But a woman with a small baby facing a man with a knife? That’s likely to have counted as self defence even under English law.

    Unless the burglar had a couple of victim-hood poker cards to play, of course. As a white heterosexual female she only can only trump one specific source of attacker.

  3. In Britain she would have been arrested for murder, while the police would have been ignoring her calls. After she was sentenced, her baby would have been forcibly adopted and placed with a gay couple, since there are a shortage of hetero’s

  4. “Okay, in the UK she’d have been much less likely to have a gun, never mind two. But a woman with a small baby facing a man with a knife? That’s likely to have counted as self defence even under English law.”

    Rupert beat me to it. Yes, she’d probably have had the charges dropped, like this chap.

    By then, the damage would have been done. Her DNA would be on file, she’d have awkward questions to answer if she needed a visa (to, say, visit the States!), or if she applied for a CRB check, etc…

  5. I do commend the robust statement from the ADA, though. Can anyone imagine anyone in a similar legal position saying anything like that here?

    No. Me neither.

  6. I think that over here the law is more nuanced (as in grey, misty). Holding one or two guns on someone while phoning the Police could be interpreted as showing a cool appreciation of the situation, as in GUN vs. Knife. It could also show premeditation, as she had to have had time to collect not one but two weapons and to have been able to make the call. Further, I believe there is a distinction made here that the sitting room is a less threatening place than a bedroom. Self defence is is more easily posited as a defence if one is woken from sleep in a disadvantaged situation.
    Holding an assailant at gun point while making a call to the Police, discussing the merits of using one of the deadly weapons in hand makes self defence a difficult call. IMO.

  7. Nick, she wasn’t holding him at gun point when she asked the the question. He had not come through the door yet.

  8. “That’s likely to have counted ..”: there’s not much comfort in “likely”.

    More than there is in being dead or raped.

  9. Nick Luke, the only “premeditation” in this case was that of the scumbag who took a knife to break into a young mother’s house.

    The best of of all this is that the dead scumbag’s accomplice has been arrrested and is facing charges of murder (according to Oklahoma law, if you’re an accomplice in a homicide incident, you get charged whether you did it or not — an excellent law, and it’s the law in nearly all states). So he faces a long prison sentence at worst, and the Big Sleep at best (for society).

    Tim adds: Kim was explaining rather how UK law would look at this, not how US law would……

    UK law really does look at it the way Nick has explained. Quite apart from anything else, the use of a gun to fight someone with a knife could be looked at as disproportionate force.

  10. “More than there is in being dead or raped”: to avert deaths and rapes, householders should be able to be confident that shooting the fucker will not lead to their being prosecuted – “confident” is much more comforting than “likely”.

  11. US solution = phone the police.
    UK solution = phone a lawyer & ask the lawyer to obtain a judicial decision. Just in case, consult European Court of Human Rights for second opinion.

  12. In the UK, not being allowed to own a gun, she would have ended up dead.
    A Police spokesman said: ” It appears to have been a burglary that went wrong, we ask anyone with information to contact Police.”

  13. Kim du Toit:

    The general term for what you describe (in the U.S.) is “felony murder” and it provides a useful tool for the prosecution of malefactors (at least sometime). As I understand it, the law applies to all involved in the commission of the felony, whether armed or not, whether an assailant of the deceased or not, and even those not present at the scene of the death. Further, it may even be applied to death(s) of participants in the commission of crime and without regard to whether such death was caused by someone involved in the criminal act or even by efforts of law officers or others in preventing the crime or arresting participants. And it goes even further in that the death of anyone involved, even by accident or mischance (as when a law officer or civilian is killed by gunfire from another law officer). And the original crime from which the felony murder charge arose need not have been homicide, itself–just that it was a felonious act.

    One other interesting thing about the law–at least in some of the states of the U.S.–is that conviction for attempted homicide need not involve an actual life-threatening assault. All that’s required is (proved beyond reasonable doubt) that the perpetrator committed the act with intent to kill. Some years ago, in Missouri, a number of people were convicted of attempted homicide for casting voodoo spells on their victim, quite remotely from the object of their attentions. It was proven they believed their incantations, etc., would sicken and kill the
    intended (and they’d gathered some hair from him for use in the procedure). I understsand such a charge can “stick” even if the voodoo practitioner has no such belief himself but is actually performing the rites at the behest of another, e.g., for pay by the would-be “killer”
    (though I seem to recall the voodoo guy being covicted as an accessory to attempted murder.

  14. While I’m dredging up old oddball murder cases, there was one where a Chinese Muslim immigrant strangled his wife because he suspected her of infidelity. His defense was that, in the society from which he came, such action was expected, though, as I recall, neither the term “sharia” nor “honor killing” figured in news coverage. This happened in northern New York –Buffalo or Rochester or thereabouts–and, to my great surprise, a jury found him “not guilty.”
    Are you ready for the shocking part? This took place about 30 years ago!

  15. “In the UK, not being allowed to own a gun, she would have ended up dead.”

    The woman used a shotgun according to the report. It still is legal to own shotguns in the UK – in fact the police need to show a good reason to deny an applicant a licence.

    However, the delay that would be caused by fetching the key and retrieving the shotgun from the secure gun cabinet would more than likely result in the same dead outcome.

    (It’s also still legal to own rifles in the UK, including semi-automatics in .22 rimfire, but an applicant must demonstrate a good reason for each individual weapon.)

  16. Wow. Commentary here is unusually stupid. In the UK, where all guns aside from automatics and pistols are legal, as is self-defence, the woman would have been fine.

    Killing someone who threatens your life, which is unequivocally the case for a girl being threatened by a meth-addled loon, is legal. Entirely legal, and it’s only mad lies from the likes of the Daily Mail that make people think otherwise.

    On the other hand, charging the surviving accomplice with murder is obviously insane.

  17. john b – “In the UK, where all guns aside from automatics and pistols are legal, as is self-defence, the woman would have been fine.”

    If she had managed to surmount to massive bureaucratic hurdles to buying a gun. If she had been able to prove she had good cause to own a shotgun. Home defence not being a good cause in British law. If she had a proper locked gun cabinet. And if, as someone else pointed out, she had time to go to said gun cabinet and get the gun. Then she might have been fine.

    Except she would have to show that the force used was reasonable. Did she retreat as far as she could? Was there reasonable grounds for thinking the intruder was going to commit a violent act? She could reasonably expect some time in a police cell while they decided if her actions were reasonable or not. After all, people have been jailed for defending themselves in their own homes a little over-enthusiastically. R v Lindsay (2005) AER (D) 349 for instance.

    “Killing someone who threatens your life, which is unequivocally the case for a girl being threatened by a meth-addled loon, is legal.”

    Unfortunately is not unequivocally the case. It depends on what the police and the DPP want to do. And they do not look kindly on people defending themselves. She would have to prove that she was threatened for one thing.

    “On the other hand, charging the surviving accomplice with murder is obviously insane.”

    I don’t think so. Someone who breaks into someone else’s home with a weapon, with the result that someone else ends up dead, has clearly considered the possibility that someone would die and they have gone through with it anyway. Premeditation. Clearly.

  18. Except she would have to show that the force used was reasonable.

    was the force used reasonable in the circumstances?

    the question must be answered, “on the basis of the facts as the accused honestly believed them to be”

    “If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

    Did she retreat as far as she could?

    Not sure why you mention retreat; there is no duty to retreat in English law.

    After all, people have been jailed for defending themselves in their own homes a little over-enthusiastically. R v Lindsay (2005) AER (D) 349 for instance.

    A case cited by Wikipedia (and other sites) absent a link to the judgement or even a report such as you might find in the Times. I’m not sure what can be reasonably concluded about the case and English law on self-defence from an unsupported paragraph in Wikipedia.

    In the UK, the people who have been jailed in cases of ‘self-defence’ have been “over-enthusiastic” in the sense of,

    they shot someone as he ran away or
    they chased someone until they fell into a pit and then tortured him or
    they chased someone, caught him and then beat him about the head with a cricket bat.

    A legitimately controversial case was

    http://news.bbc.co.uk/1/hi/england/london/3646511.stm

    The defendant pleaded guilty to manslaughter because the alternative was a murder trial and a mandatory long prison sentence if a jury found him guilty. Granted, on the facts as presented in the press, it seems arguable to say the least that he should not be in prison. But such cases are rare – other people have killed ‘intruders’ and not been imprisoned or charged.

  19. The fact that we’re even discussing what a British jury might think shows the difference in the systems. In the UK, the woman may well have gone on trial. In the US she wasn’t even arrested with a police detective publicly defending her actions two days later.

  20. But, Mr Potarto, there are UK cases where the person was not arrested and US cases where the person did go to trial.

    It’s really odd that people seem to think there are / were no controversies in US law on self defence.

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