Montana Politics

When is Self-Defense Permissible in Montana?

A few news stories caught my eye this evening, drawing attention to the absurdity of self-defense laws in Montana. Back in 2009, the Montana Legislature passed and Governor Schweitzer signed HB 228, a law that, among other things, created a “policy that a defender has no duty to summon help or flee before using force to defend, in any place.”

From Corvallis, we have the story of a man who shot and killed an intruder he claims was breaking into his home. While he has made no determination about charges yet, Ravalli County Sherriff Chris Hoffman suggested the law would protect the homeowner:

“First of all, I have no idea yet if the castle doctrine law is germane to this incident,” Hoffman said. “But my interpretation is a person has every right to protect him or herself in their home if they fear for their life. They are in no obligation to hide out or call 9-1-1. If they are in fear for their life, they have every right to defend themselves or use deadly force.”

In Sunburst, we have a different case in which a man has been charged with a hit and run negligent homicide charge. Before the man allegedly ran over a victim, he was attacked in a parking lot by the man:

All parties agree Levi Rowell confronted Santoro in the parking lot, edging into the space between where his and Santoro’s truck were parked. Both Gallup and Tiffany Rowell followed behind, squeezing into narrow a space behind Santoro’s open, passenger-side door.

According to the state’s affidavit, Santoro and Potter told investigators that Rowell grabbed Santoro by the neck and began choking him.

When questioned by Toole County authorities, Santoro offered a defense that was not unlike those who argued for the expanded Castle Doctrine at the 2009 Legislature:

“I hope the (expletive) is dead, hope he’s (expletive) dead, hope he’s paralyzed … from the neck,” Santoro allegedly said, according to the affidavit. “I was done. I was done. … They were calling me out.”

Then later, “The man should never have started choking me out in my own (expletive) car … So what I did was throw it in reverse, and (evaded) the scene …. I don’t see what’s so (expletive) wrong with that.”

My post isn’t meant to suggest that these situations are precisely analogous or to evaluate the guilt of either man, but the simultaneous reporting of these two stories makes clear the problems of a self-defense doctrine that relies exclusively on a person’s own perception that he faces a threat. It seems fair to ask if Mr. Santoro would be free of any charges if he had simply fired a gun rather than driven his truck aggressively at the person he perceived to be a threat.

The law simply encourages violent responses, especially with a gun. Whether it was the Wal-Mart worker who shot a fellow employee in the forehead, the man in the Flathead who shot another man who had not even attacked him, or the still troubling shooting near Wolf Creek, it seems the law sold to Montanans as a means of protecting their safety and liberty has just endangered their lives.

It’s time for the Legislature to revisit this absurd law—and remember that the purpose of the law has to be to protect the idea of civil society, not encourage senseless violence. Let’s hope the 2015 session has more legislators interested in serving the vast majority of Montanans, not the NRA.

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  • I saw the Corvallis story on the Missoulian tonight, don’t know much about the others.

    What am I going to do if a guy’s coming in my house at 4 AM? I don’t have a gun, so that’s not an option. I guess I’d have to grab an object, that is if he starts coming toward me, which I thought the article kind of implied.

    Of course since I don’t have a gun the chances of me killing the guy would probably be much smaller. I also think the last thing we want here in Montana is anything like the problems they’ve got in Florida.

    So what are some of the hot NRA-style bills that’ll be up in front of the 2015 legislature?

    How about concealed weapon permit requirements, guns and public places and the possible expansion of them, and even the use of silencers when hunting?

    I got a candidate questionnaire from the MT Shooting Sports Association today, and they’ve got a lot of issues they want to take up next year.

    “policy that a defender has no duty to summon help or flee before using force to defend, in any place.” That’s what the quote you use says, and I just feel that in many situations if you were to go and ask for help or try and run, you could die.

    It’s real hard to convince people to go against something like that.

  • I’m with Greg.

    If I imagine that I am home in bed, my wife and son in the room with me, and my daughter down the hall, and I hear someone breakin in I can:

    Scenario 1: Run down the hall, get my daughter, run back to my room, lock the door and call the police. This act risks the trespasser getting to my family before I get back to my room.
    Scenario 2: Or, I can unlock my quicksafe, send my wife down to my daughter’s room with our son. Confront the trespasser with a firearm, and almost certainly ensure that they are safe and at the same time forcing the situation to come to a head. Either the trespasser flees when I point my firearm at him or we have violence.

    When I review these scenarios:
    Let’s say scenario 1 has a 99% chance of positive outcome. We get back to my room, lock the door, and the police arrive. The 1% being the attacker gets to my wife and son before I get back, or attacks me in the hall en route.
    Scenario 2: Increases the probability for violence, but it is in my favor, and either way my wife and children are locked in their room. Even if the violence doesn’t end well for me, the rest of my family is safer.

    I pick scenario 1 every time. You see, even if a 99% chance exists that the situation can be diffused non-violently, a 1% chance with existential-risk costs can be rationally considered as a reason for a specific action. Regardless of how low the probability is for any of us to experience a similar event, it is clear there are those who would want me punished for choosing Scenario 1. This law is a reaction to those individuals who always cry foul when guns are involved in self-defense.

    The fact that victims need only reasonably perceive a threat to their life isn’t really a problem. We have other laws based on perception. For example, individual acts are nearly impossible to categorize as sexual harassment in a reliable way. Whether or not an act is sexual harassment is(rightly) based upon whether or not a victim feels as if they are being sexually harassed. And yet, we have no problem doling out punishment for sexual harassment.

    Additionally, whether or not someone is armed is irrelevant to a very real threat on an individual’s life. All it takes is a hit to the jaw and you are unconscious and an attacker is having his/her way with you or your family. Criticisms of violence against unarmed attackers or waiting to be attacked are the result of an unfamiliarity with violence.

    Lastly, we have no reason to believe removing this law will reduce these types of incidents. Pointing to strange incidents of violence in Montana could be done at any point in history, and certainly doesn’t show a trend. People don’t think about the law when they are in what they perceive to be life/death situations. Also, it should be easy to see an increase/decrease in these sorts of incidents in states where the law has been added/removed if these types of laws actually have an effect – the burden of proof being on those claiming the law’s correlation with such incidents.

    From HB-228:
    “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.”

    This hardly encourages senseless violence.

    • Im going off memory here but Im pretty sure the law passed by the teabaggers only requires you to be “reasonably sure” deadly force is necessary to prevent an “assault”. An “assault” is not necessarily serious body harm or threat of injury.

  • Oh please dear leaders tell us when we can defend ourselves.

    We await your decree.

    I like the Castle Doctrine. Maybe it’ll stop this sheet.

    “In August 2006, Collin County (Texas) police obtained a warrant to search John Quinn’s home based on information that Quinn’s son might be in possession of controlled substances. The warrant did not authorize police to enter the residence without knocking and announcing their entry. Nevertheless, based solely on the suspicion that there were firearms in the Quinn household, the SWAT team forcibly broke into Quinn’s home after he had gone to bed and proceeded to carry out a search of the premises. During the raid, Quinn was shot by police, who panicked and opened fire on him through a solid wood door. Quinn had been reaching for his lawfully owned firearm, thinking that his home was being invaded by criminals.”

  • in Pogrebaland, the great international commune there will be no violence as the government will be able to control the minds of criminals. Here my guns, why would I need them when Don becomes Prime minister.

    • Um, Vlady, couple’a points, cupcake. You would be speaking GERMAN and goose stepping right now if it had not been for Russian guns! Study your history, vladdy, instead of farting first and getting smacked second!

      And secondly, vLady, post your arsenal and then I’ll post mine! We’ll see whose is bigger! Not all libs hate guns!

      But hey, you prolly would ENJOY goose stepping, right??

    • This is why arguing with gundamentalists is so ridiculous. They’ve carved out such an extremist position that any sensible regulation is automatically equated with confiscation.

      It’s idiotic–and destroys public policy.

      • Public Policy? Would our Constitution be lumped in with public policy?

        At this moment the State of CT is compiling registration documents in order to go door to door to arrest and confiscate newly illegal guns and magazines.

        Who’s idiotic?

        • Hey Cinderblock: Without even looking I can tell you that someone is playing with your natural paranoia here. No one is coming for your guns.

          In 1790, when arms were creatively unsophisticated and the government had no advantage, the Right to Keep and Bear made a difference. Not anymore. The government as such a mighty arsenal that no one cares about you or your pea shooters.

            • Really.

              The story may be accurate in every detail and also be insignificant and anecdotal. No one is coming for your pea shooters! They ain’t afraid of you. They have helicopter gunships.

              Does it ever occur to you that you’re being manipulated?

              • Since you have taken to renaming commenters like Swede, how about we just call you the Scolding Schoolmarm given your condescending angry arrogance towards those that don’t embrace your views?

                Now Scolding Schoolmarm why did the feds collect the customer records with names and addresses? Are they going to show up for “knock knock” jokes like the NSA?

              • It’s anecdotal! You do know that if they are worried about you you’ll find you cannot get on an airplane, use a credit card or access a bank account. While you’ve been all paranoid about your gun, the used 9/11 to completely wrap the national security state around you. You’re cooked, gun or no gun.

                And viewpoints are not like assholes, everyone having one. There are valid ones and invalid ones. Whether you agree with mine or not has no bearing on their validity.

                • If I write “anecdotal” three more times, will it do any good?

                  I regard activity surrounding gun ownership as a mere feint that keesp you distracted. Meanwhile, because Americans are so afraid of supposed terrorists, your important freedoms have been dismantled. You can have your pea shooter. Everything else is gone.

                • Mark logic takes another beating. Millions of heavily armed Americans are not the concern of the US government because drones, but a few thousands armed Black Nationalists were what really scared the government into passing civil rights legislation.

                • I am exceedingly curious, Mark – curious about how you reconcile those two points of view. On the one hand, you’ve insisted that it was only the justified fear of a violent revolution that got LBJ to pass the civil rights act, and yet now you claim that the government has nothing to fear from guns. Which is it?

              • “No one is coming for your pea shooters! They ain’t afraid of you. They have helicopter gunships. ”

                I’m pretty sure immediately after invading Iraq, with helicopter gunships and all, the US Army still felt the need to crack down on the sale of ‘pea shooters’. I don’t buy into this grand conspiracy to disarm the American public, but then, it makes more sense than the contradictory nonsense you respond with.

                • Hey PW! Consider this:

                  “It is curious that physical courage should be so common in the world, and moral courage so rare.” (Clemens).

                  You appear to me, along with Pogie, to lack moral courage.

                  “The lowest depth of misery is to see people who know better going along with a lie.” (Mort Sahl)

                  As a Democrat who appears to conveniently forget to be curious, you strike me as one who willingly goes along with lies in order to be in the acceptable mainstream. This again speaks to moral courage, which you appear to lack.

                  Have a great day! Thanks for sharing your opinions, which Craig reminds us are all worthy, and which I know you get from worthy sources.

                • Keeping the streak alive! It’s been how many weeks since you’ve addressed anything I’ve said? Not a bad strategy considering the constancy with which your arguments end up looking ridiculous when examined, but part of you knows that avoiding the issues is as good as admitting you’ve lost them, right?

  • Compensating for something eh Lar-bear? Missing my sarcasm relating to Don’s no guns = “good of civil society” delusion article?

  • How about…… “It seems fair to ask if Mr. Santoro would be free of any charges if he had simply fired a GUN rather than driven his truck aggressively at the person he perceived to be a threat.The law simply encourages violent responses, especially with a GUN. Whether it was the Wal-Mart worker who SHOT a fellow employee in the forehead, the man in the Flathead who SHOT another man who had not even attacked him, or the still troubling shooting near Wolf Creek”

    What are you implying with this rhetoric?? Hmm, puzzling. I didn’t realize my cognitive abilities are less than yours… the almighty always rational actor, in no way emotionally influenced, consciously or subconsciously, King Pogreba of the socialist Utopians. Perhaps my hardon for guns, (not as big as larrys apparently) has clouded my judgement as to where you stand on the 2nd amendment and whether protecting your family and the role of the state in society matters. Always with the passive aggressive snide comments eh comrade?

    • You’re certainly proving the intellectual weight behind your argument here, and I really enjoy the new pseudonym. It’s almost, but not quite, as clever as your argument.

      Once again, where do I suggest the confiscation of guns? Or do you, as I suspect, not admit the possibility that a society could both have the right to gun ownership and sensible regulations about both the use and possession of those weapons?

      I’d love to be persuaded, but this hostile-macho act isn’t an argument; it’s just the posturing of someone who can’t defend his ideas in the marketplace.

      Any chance you can try to actually debate the issue?

  • I agree, gun ownership and sensible regulation could be a positive reality for people. However, the scope of this regulation is really a slippery slope as beyond protection of life and property it becomes a question of how much you trust your masters (my heir, comrade Stalin in the 20th century).
    While Americans may have a less realistic fear of a tyrannical government than those in mother Russia, history suggests these concerns may be rational. Furthermore in the age of drones, the NSA, and further concerns for privacy originating from the federal government. I see no reason why your people should be further restricted regarding their own protection. It is not realistic in rural Montana to assume the police are close enough to assist at all times in all circumstances. Nor is it realistic to believe the media, lobbyists, and politicians on both sides of the issues amidst the smoke and mirrors of your nations capital authentically represent your best interests. Perhaps faith in your fellow citizen to responsibly bear arms for self defense while realizing that certain outliers like you have described are nearly inevitable is our middle-ground here. The continuum of presumed safety/security versus collective freedom and individual responsibility has been tilting hard left in your nation of late.

    • In what way? What is one significant piece of gun legislation that has passed the Montana legislature or US Congress?

      If anything, our laws about gun ownership have become far more lax.

      No one is arguing that people can’t own guns in their homes, though I wish a lot more of those people were a hell of a lot more responsible with them. A law that so radically protects the right of perceived self-defense, though, just leads to more violence, something we’re already seeing in Montana.

    • “Furthermore in the age of drones, the NSA, and further concerns for privacy originating from the federal government. I see no reason why your people should be further restricted regarding their own protection”

      I HEAR YA, VLADY! But I have a question for you. Ever try to shoot down a drone? Or someone or something from the NSA spying on you? Problem IS, vlady, when you try to shoot to protect your privacy, you JUST might shoot your privates off! A gun ain’t much good against a tiny drone flying at ten thousand feet. And who KNOWS what the NSA is doing. And the feds? Good luck with that. Nope, vlady, stick with the other parts of your argument. They make more sense. This one is in left field, and left is definitely not a place that you feel comfortable! Ya ain’t a’gonna shoot your way outta this one, vlady. So forget that.

  • I own guns but think your duty is do whatever you can to avoid using a gun in the outlandish scenarios colorfully described in these comments. In the moment, the guy holding the gun always wins. That doesn’t mean a jury can’t logically assess an unfortunate situation when cooler heads prevail. There wasn’t anything wrong with the “old” law.

  • Geez Don, haven’t been getting enough abuse lately? Just write a post about the Castle Doctrine or background checks, and watch the fur fly. One of the biggest growth industries in Western Montana is making ammo and specialty items for gun people. Discussing reasonable gun ownership is an uphill battle here but I appreciate your candor.

      • There is no qualification to having an opinion about gun ownership, unless it’s coming from someone who’s not familiar with them, and has irrational fears about them, like they are some kind of evil, living, breathing animal, just waiting to jump off my wall and attack someone.

        I suspected that you were of that type when you asked about significant gun legislation.

        Google up the 1994 Crime Bill, where President Clinton started banning guns by evil looks, and features, and magazines by how many rounds they held.

        The law was a failure, all that happened was stockpiling, and artificially raising the prices of those weapons, and magazines for the whole 10-year-period it was in effect.

        It also had a provision to put 100,000 cops on the street, with the Government picking up the tab the first year, then making the states and localities pick up the tab. Guess what – failure, because as the funding declined, retirees were not replaced, zero long term affect.

        You need the new Dem playbook – they are not campaigning on gun control anymore – it’s been a big loser for them since Clinton’s first mid-term.

        • You have a funny definition of failure, Billings. In 1993 there were over 24,000 homicides in the US. In 1994 there were 23,000, in 1995 there were 21,000, and since 1996 the number has never gone above 20,000, even as the population increases. I can’t prove the law was a success based on those stats, but it’s awfully hard to say definitively that it was a failure!

        • And by the way, while I actually kind of disagree with him, Pogie is not at all falling into the mindset you are describing. You see, someone who fears GUNS doesn’t believe that the efforts of the criminal justice system can effectively fight crime – hence the emphasis on controlling the product, not the user. But what Pogreba is describing here is an effort to control what people do with guns.

          • Larry I’m sure you qualified Expert with the M45 & M16 in AF Boot camp – and I’ll be willing to bet that you do not fear weapons.

  • Here’s a good article regarding this debate;

    Missoula, MT –-( Conventional and alternate media in Montana have been abuzz in the past week with discussion about Montana self-defense laws.

    Some think existing laws are too lax and need tightening. Some think existing laws are too restrictive and should be relaxed. Far too many misunderstand existing laws and make irrelevant or nonsensical claims.

    Allow me to clarify some misconceptions and gray areas.

    Did House Bill 228 in 2009 create the “castle doctrine” in Montana? No. What is generically called a “castle doctrine” law in other places is called “defense of an occupied structure” in Montana, and is codified at 45-3-103. The castle doctrine is a very old concept. It came from English common law — the basis for the American legal system.

    William Pitt declared in debate in Parliament in 1763, “The poorest man may in his cottage bid defiance to all the forces of the Crown.” Every man’s house was his castle, he said.

    Montana’s 45-3-103 was swept into the Montana Codes Annotated from the older Revised Codes of Montana in 1947. This law was likely in the older Montana “Bannack Statutes” of territorial days, even before the R.C.M. So our “castle doctrine” is an old concept that has stood the test of time.

    Does Montana’s castle doctrine allow a person to kill anyone in their home who the homeowner has a disagreement with or dislikes? No! This law allows a person to use force only when the person believes “use of force is necessary to prevent or terminate the other person’s unlawful entry into or attack upon an occupied structure.” Note: This does not include “lethal force,” such as a firearm.

    Lethal force is defined as an amount of force likely to cause serious bodily injury or death, which would include using a firearm.

    Lethal force may only be used legally in defense of an occupied structure when the person believes “force is necessary to prevent an assault upon the person or another then in the occupied structure” or to prevent the commission of a forcible felony. A felony is any crime punishable by one year or more in the state prison. A “forcible felony” is any felony where force or threat of force is used.

    Thus, the circumstances in which a person may legally use lethal force, such as a firearm, under Montana’s castle doctrine is a fairly narrow and legally defined set of conditions.

    I have trained more than 4,000 students, in classrooms and on the range in handgun self-defense classes. I advise my students that it is always better, if it can be done safely and with sound tactics, to not use lethal force. Whenever lethal force is used, everyone involved suffers to one extent or another — physically, legally, financially, emotionally and/or psychologically.

    However, I tell my students, there certainly are times when the price will be higher not to use lethal force than to use lethal force. It may cost a person his or her life to not adequately defend that life.

    If a person has no other choice but to use lethal force, then it is critical to know the rules, much more than I can convey here. That’s why I strongly recommend to those who have not taken my class that they should never settle for the training that came in the box with their gun.

    If you own a firearm that you may depend on for self defense, take a class. Study. Learn. Be informed!

    Gary Marbut is the author of the book, “Gun Laws of Montana.” He is accepted in state and federal courts as an expert concerning self defense and use of force, and is president of the Montana Shooting Sports Association, which advocates for gun owners in Montana.

    Gary Marbut, presidentMontana Shooting Sports Associationwww.mtssa.orgauthor, Gun Laws of Montana

    About Montana Shooting Sports Association:MSSA is the primary political advocate for Montana gun owners. Visit:

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Don Pogreba

Don Pogreba is an eighteen-year teacher of English, former debate coach, and loyal, if often sad, fan of the San Diego Padres and Portland Timbers. He spends far too many hours of his life working at school and on his small business, Big Sky Debate.
His work has appeared in Politico and Rewire.
In the past few years, travel has become a priority, whether it's a road trip to some little town in Montana or a museum of culture in Ísafjörður, Iceland.

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