Stand your ground

Any person in Montana who uses force to defend himself can use that force only if they or another person are at risk of physical harm. | File photo

CORRECTION – March 17, 2018 – 1420 CSTThis story originally misspelled the name of the man shot by Saskatchewan farmer Gerald Stanley. The young man shot by Gerald Stanley was Colten Boushie.

In Montana it’s legal to stand your ground when threatened by another person.

The law in Montana, however, doesn’t give landowners and homeowners the right to shoot intruders and trespassers at will.

Far from it.

Any person in Montana who uses force to defend himself can use that force only if they or another person are at risk of physical harm.

In 2009, Montana revised its existing self defense law, changing it so that a “person who is threatened with physical harm has no duty to retreat or summon law enforcement assistance prior to using force,” the Associated Press reported in 2014.

Related story: What Canadian law says about self-defence

Put simply, the law means a person in Montana can stand his ground and act in self-defence.

Gary Marbut, an author of a book on Montana gun laws and the president of the Montana Shooting Sports Association, said there is some confusion around stand your ground laws, which are sometimes called the Castle Doctrine.

They don’t just apply to someone’s house or property.

“What’s generally called Castle Doctrine, in Montana it’s called defence of an occupied structure …. (but) we are not dependent upon that statute to be able to exercise that principle of self defense,” he said.

“In Montana, we changed the law basically to say that a person may use force to defend themselves, anywhere that they legitimately are.”

That means if people are in a public park, recreation centre or elsewhere, they can use lethal force to defend themselves if another person threatens to cause them serious bodily harm or kill them.

Montana is one of 25 U.S. states with stand your ground legislation. The concept has been a topic of coffee shop talk in Western Canada recently, in part because of a fatal shooting near Biggar, Sask.

Gerald Stanley, a farmer, shot Colten Boushie, a young First Nations man in August 2016, when Boushie was with a group of people trespassing on Stanley’s farm and apparently trying to steal an all-terrain vehicle.

Stanley confronted the group with a gun and fired off warning shots. A third shot fatally struck Boushie, who was in the driver’s seat of an SUV. Stanley said the gun went off accidentally, and a jury in North Battleford, Sask., found him innocent of second degree murder in February.

The Stanley case, combined with the reality that it may take police 45 minutes or longer to respond to incidents in rural areas, has Canadian farmers wondering what they legally can and can’t do when confronting a threatening person on their land.

Last March, the Saskatchewan Association of Rural Municipalities passed a resolution at its annual meeting urging SARM to lobby Canada’s federal justice department for changes that would give rural residents expanded “rights and justification” to defend themselves, their families and their properties.

In Montana, there have been a couple of high profile cases where defendants used the stand your ground law to justify their actions.

In 2012, Brice Harper, a resident of Kalispell, Mont., shot a man who entered his garage. The man was Daniel Fredenberg and Harper had an affair with Fredenberg’s wife. Fredenberg entered the garage to confront Harper and apparently charged at him. Harper shot Fredenberg three times, killing him.

Flathead County attorney Ed Corrigan didn’t file charges in the case because of the Castle Doctrine law.

Corrigan told NBC Montana that stand your ground is troubling because it shifts the burden of proof away from the person using lethal force. Under the law, a prosecutor must prove, beyond a reasonable doubt, that someone was not justified in using deadly force.

In 2014, another stand your ground case generated international attention. Markus Kaarma of Missoula, Mont., fatally shot a 17-year-old German exchange student, Diren Dede, who was attending high school in Montana.

Kaarma was reportedly angry because criminals had broken into his garage and he was determined to stop it. He put a purse inside the garage and left the door partly open to lure someone inside. In the middle of the night, Kaarma found Dede inside the garage, apparently trying to steal some beer. Kaarma shot Dede four times.

The court rejected Kaarma’s stand your ground defense and found him guilty, sentencing him to 70 years in prison.

Marbut said the case shows that Castle Doctrine laws have limitations. Someone is justified in using lethal force only when the other person is a legitimate threat.

Marbut offered an example of how Castle Doctrine might work on a farm or rural property.

It’s late at night and a woman looks out her window. She sees a stranger with a tire iron, poised to smash a car window and possibly steal the vehicle.

Under Castle Doctrine, she cannot point a gun out the house window and shoot him. But she can get a gun, put it in her purse and put the purse on her shoulder.

“Then crack the door open and say to the guy, “hey Mister, leave that car alone,’ ” Marbut said.

If the person with the tire iron turns around, utters a threat and starts coming toward the door with the weapon, the woman can take out her gun and shoot.

“Suddenly the circumstances have changed,” he said.

“Now you are at risk for serious bodily injury or loss of life.”

While that suggests people can legally shoot intruders and people posing a threat to their safety, the reality is that “stand your ground” depends on the circumstances.

If a farmer charges out of his house and points a gun at a trespasser who is not threatening the farmer’s life or his personal safety, that circumstance is much different from the scenario with the woman peeking out her door and yelling at the car thief.

“It depends on who the aggressor is,” Marbut said.

“If he (the farmer) should shoot at the person … or point the firearm directly at the person, then the identity of the aggressor changes and it becomes the farmer.”

John Youngberg, Montana Farm Bureau executive vice-president, said landowners in the state may have the right to protect themselves when there is a threat to their life and limb, but the Farm Bureau would prefer if its members didn’t confront trespassers and potential criminals.

“We don’t encourage people to go out and get in a face-off with these people,” he said.

“The first thing to do would be to call the authorities.”

Marbut, who teaches courses in self-defence, agreed with that advice.

“If you can lock your door and call the police … that would be a better solution,” he said. “You don’t want to lay awake nights wondering if you could’ve not shot somebody.”

Still, there can be extreme cases where it’s not possible to resolve a threat peacefully. In such situations, a person may respond with force because preserving your life is a basic human instinct.

“Self defense is a biological imperative. It may be the most fundamental biological imperative, somewhere near reproduction,” Marbut said.

“In terms of human rights it is perfectly rational to see self-defence, the ability of a person to defend themselves and their life and their families … as very fundamental.”

American states with Stand Your Ground laws

Full legislative adoption:

  • Alabama
  • Alaska
  • Arizona
  • Florida
  • Georgia
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Michigan
  • Mississippi
  • Missouri
  • Montana
  • Nevada
  • New Hampshire
  • North Carolina
  • Oklahoma
  • Pennsylvania
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • W. Virginia

Adopted in practice either through case law/precedent, jury instruction or other means:

  • California
  • Colorado
  • Idaho
  • Illinois
  • New Mexico
  • Oregon
  • Virginia
  • Washington

Limited to when a person is within their vehicle:

  • North Dakota
  • Ohio
  • Wisconsin

Duty to retreat in public (can use deadly force at home or car but must retreat in public):

  • Arkansas
  • Connecticut
  • Delaware
  • Maryland
  • Massachusetts
  • Minnesota
  • Nebraska
  • New York
  • New Jersey
  • Rhode Island
  • Wyoming

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