Tuesday, November 19, 2013

Self Defense or Murder?: Is the Shooting of Renisha McBride the Next Big Story?

As the country begins to move past the media frenzy that followed the killing (or murder, depending on where you stand) of Trayvon Martin, a new incident has occurred that seems prime to dominate headlines.  Around 1:00 am on November 2, 2013, Renisha McBride drove her vehicle into a parked car in suburban Detroit.  Tests would show that McBride had a blood alcohol content of 0.218%, well above the legal limit in Michigan.  A few hours later, a “bloodied and disoriented” McBride approached the porch of Dearborn Heights resident Theodore Wafer.  Sources report that McBride began to knock on Wafer’s door, prompting Wafer to come downstairs with his shotgun.  Wafer, standing in his home, discharged his weapon through a closed screen door, striking and killing the twenty-four year old McBride.  Wafer then called 911 to report the shooting.  Wafer told investigators that he brought down the shotgun because he believed McBride was attempting to break into his house (though there were no signs of forced entry).  He also claims that the weapon accidentally discharged while he was investigating the situation.  McBride died shortly after and Wafer has been charged with second degree murder.

There is no doubt that the story will garner attention because of its societal implications.  McBride was young, black, unarmed, and presumed to be committing a crime by a fifty-four year old white man.  Further, while there are not many witnesses, it is far more likely that McBride was seeking medical aid than trying to rob a house.  The case has already drawn comparisons to the Martin case, with reporters and bloggers putting extra emphasis on the issues of racial profiling and gun control.

While the lack of a post-racial society and the potential cry for stricter gun laws are more likely to pull readers in, the criminal law elements of the story are also fascinating.  Like Florida, Michigan has a “stand your ground law,” a statute that permits individuals to use lethal force rather than flee when they are threatened.  Section 780.972 of the Michigan Code states:

(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.

(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.

(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.[1]

More importantly, section 768.21C of the Michigan Code states that an individual does not have a duty to retreat before using deadly force if the individual is in his or her own dwelling or within the curtilage of that dwelling.[2]  Like most self-defense statutes, the individual must have a reasonable belief “that he is in imminent danger of either losing his life or suffering great bodily harm, and that the use of deadly force is necessary to prevent that harm.”  The reasonable belief standard is that of an objective reasonable person.

The case will likely come down to two questions: (1) would an objective reasonable person in Theodore Wafer’s position believe that he was in imminent danger of losing his life or suffering great bodily harm to the extent that the use of deadly force would be necessary to prevent that harm, and (2) did Wafer accidentally discharge his weapon or did he purposely shoot at Renisha McBride?  While the legal scholar in all of us would love to ignore the societal and policy implications of the case, they are intrinsically linked to these questions.  To the first question, race clearly plays a role.  An objective, reasonable, person would not presume an individual is breaking into their house simply because of the color of their skin.  Other factors are also at play (though it was four am and McBride was covered in blood, albeit her own, there were no signs of attempted forced entry).  If he testifies, Wafer will have to answer questions regarding why he thought McBride was trying to break in.  If that answer insists it was because she was black, then it is likely a jury would find that an objective, reasonable person would not have believed they were in danger.

The second question plays more to the role of guns in society.  Arguably the most vocal argument regarding guns is their use for protecting individuals in their homes.  A handgun or shotgun in the dwelling seems to be the backbone of the second amendment, for it insists upon one’s right to protect themselves in their most sacred place (not to mention the notion of keeping the government out of one’s home).  Yet the Renisha McBride killing brings light to the issue of responsible gun ownership, even within the home.  How do we as a society justify the shooting of an injured twenty-four year old woman?  Defending one’s castle?  The facts of this case will no doubt bring light to the age old debate of whether guns make society safer or more dangerous.  This will also broaden the debate on self-defense laws in the United States.  On both sides of the argument, supporters and detractors of “stand your ground” or “defend your castle” laws will be keeping an eye on this case, as will Congress who has reviewed stand your ground policies in the wake of the Trayvon Martin case.

Renisha McBride’s death is a tragedy.  As Huffington Post and Fox News start preparing their editorials, the criminal law scholars will certainly have a lot to consider.  The case presents interesting legal issues that are directly tied to national policy concerns.  Like the Trayvon Martin case, the Nation will certainly have questions: How do we become a post-racial society?  Are we too quick to label something as racial profiling?  How can we protect ourselves from guns?  How do we protect ourselves from tightening gun laws?  Hopefully a courtroom in Michigan will provide criminal law practitioners some answers to these complicated ideas.

Calen Weiss
Articles Editor, Criminal Law Practitioner

Image from Facebook.

[1] Mich. Comp. Laws §780.972 (2013).
[2] Mich. Comp. Laws §768.21C(a) (2013).


  1. Considering the subject matter and the Zimmerman antics that seem to keep on giving the media more stories, this was a balanced, well-thought article. I'm wondering if Wafer can even use Section 780.972 because Wafer claims it was an accident. 1(a) requires the formation of the belief of imminent death or great bodily harm. Did he tell that to the police or was his concern primarily a robbery. If it was a 'break-in' he was primarily worried about when the gun was fired and the statutory "belief" was not formed, the statute is inapplicable. If he shot through a "screen" door he may have opened an interior door, or so it would seem. Does that display sufficient belief? If he had formed the b belief he was in imminent danger why not address the person through a more secure door? Second, why not make a 911 call? Not making one might demonstrate a perception that he was not in imminent danger. Section 780.972 appears to be a justifiable defense statute but the article doesn't define the homicide statutes. If, indeed, the defining statute includes something like depraved indifference it will be a difficult case for the defense to prevail. If there is a criminally negligent homicide statute, it may be the jury would default to it as a lesser charge. In any case, if race has probative value, it will be in the case If it's not, then let the admissible evidence acquit or convict. Certainly, Ms. McBride didn't deserve her fate but trials should be based on evidence not emotion. Whatever we know so far, isn't necessarily the full story.

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