More analysis of Kenosha

What are our “rights” as law abiding citizens and/or property owners, when it comes to violent rioters or protestors? Are AR-15s treated differently? Episode 9 of FIS gets to the heart of the concept that “freedom is scary,” so questions need to be discussed. Join me LIVE and bring your own questions, if you’ve got them. Here are some good ones:

Can you unlawfully possess a firearm and then lawfully use that firearm in a self defense situation? 

Can you and should you be able to defend private property with deadly force, and if not, can the law be changed in your state?  

Were there new information releases today relevant to the probable legality of self defense for Kyle Rittenhouse? 

Does the mention of “militia” in the 2nd Amendment have any applicability?  

What federal circuit covers Wisconsin and has it been favorable to the exercise of 2nd Amendment rights and the right of self defense in the context of AR-15 style rifles?

Rittenhouse Shootings Analyzed

The Rittenhouse shootings were the next logical step of violent riots, combined with government leaders who allow them to occur. What happens when the right to riot collides with the natural rights or life, liberty and the pursuit of happiness? Or more specifically, the right to life, i.e., the right to self defense? It may be a new normal in 2020, but we build courthouses for a reason: to sort out the facts, and apply the law. The difficult part is to ensure a fair trial without the media poisoning the potential jury pool with misinformation, and misnomers, such as “armed vigilante,” “assault rifle,” “peaceful protestors,” and so on, and to let the true facts fall where they may. In the end, our Founders demanded, and ensured, that we have the right to a jury of our peers for a very good reason. That’s the only thing standing in between an individual in this position, and a lifetime of being locked away in a cage.

The facts can be sorted out. There are multiple videos of the incident. There will be many pictures and screenshots, and slow motion, or frame by frame versions of the incidents. Easier to determine is, what sort of laws will be applied here?

Possession of Firearms in Wisconsin and Illinois:

Wisconsin firearms law provides for open carry of loaded rifles and pistols for those 18 and older not otherwise prohibited from possessing firearms.  Unless Rittenhouse’s age has been incorrectly reported he would be in violation of these statutes. Similar statutes exist in Illinois.
Further, in Wisconsin and Illinois, providing an underaged individual with a firearm is a felony. It seems safe to assume that Rittenhouse’s enthusiasm for firearms was supported at least in some measure by his legal guardians. If they knowingly lent him use of the AR he carried in Kenosha they may face charges under these statutes.

Transportation of Firearms between Wisconsin and Illinois:

Federal law pre-empts the prosecution of illegal transportation via 18 U.S.C. §?926A which provides:

“Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”


Any number of state statutes in Wisconsin or Illinois may govern the illegal importation or exportation of firearms where the “peaceable journey” exemption of 18 U.S.C. § 926A does not preempt. Rittenhouse is in jeopardy here if his age is reported correctly as he is not legally able to possess the AR platform he possessed in Kenosha in either Wisconsin or Illinois.

Self Defense:

In general, and Wisconsin is no exception, a “self-defence” defence to homicide (i.e. “justifiable homicide” or “excusable homicide”) or the use of deadly or potentially force requires several elements. Those claiming self defence must:

1. Have the reasonable belief that…
2. …they or another person…
3. …are in imminent…
4. …danger of death or great bodily harm, and…
5. …that the use of deadly force is necessary to prevent said harm.

Key elements of the defence to hone in on are:


Reasonability. Would a reasonable person fear for your life under the circumstances presented?


Imminent. Is the threatened death or great bodily harm about to occur that moment, or at some other time? It has to be literally about to occur.

Wisconsin incorporates these elements in its excusable homicide statute thus:


“A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.” (Wisconsin Updated Statutes 2019 § 939.48(1))


Further, many jurisdictions do not permit defendants to use self-defense as an argument if deadly force was used in a confrontation the defendant him or herself precipitated. Wisconsin is one such jurisdiction, terming the restriction “Provocation” providing:


A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defence against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defence, but the person is not privileged to resort to the use of force intended or likely to cause death to the person’s assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.

The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.

A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defence.” (Wisconsin Updated Statutes 2019 § 939.48(2))

Use of Deadly Force By Rittenhouse

Was there a reasonable belief of imminent death or great bodily harm?

Did Rittenhouse provoke the aggressors? In both episodes, Rittenhouse appears to be attempting to retreat. In the first, he is shown on video being chased, and having something thrown at him. In the second episode, they are clearly chasing him, and attacking him. One attacker had a skateboard, and another had a pistol. Moreover, he appears to be using every effort at escaping, i.e., exhausting his reasonable means to escape, in the second episode.

What about the illegal possession of a firearm? That remains to be seen. Self-defense should still apply, whether or not it utilizes an illegally possessed firearm, which is not a requirement of the basic self-defense analysis. Then again, I’m not a Wisconsin lawyer, so…….

BJJ and Police Use of Force – Freedom is Scary Livecast No. 3

In “Freedom is Scary” LIVE No. 3, I discuss Brazilian Jiu-Jitsu (“BJJ”) with former law enforcement officer and BJJ academy owner/coach, Adam Martin.

Why? Because ever since the death of George Floyd, “chokehold” has been the word of the day. Trump brought them up in his June 16, 2020 Executive Order, and now many states have issued orders, or enacted legislation, banning the use of so-called “chokeholds” by police officers.

The problem is, that the term doesn’t mean what they think it means, and in doing so, they’re changing the rules of self defense for police officers. As with other civil rights, if you allow it to be done to one group of people, it always grows like a virus to include groups of people who were not intended to be affected. In this video we discuss what that means.

On June 16, 2020, President Donald Trump (R) issued an executive order, titled Executive Order on Safe Policing for Safe Communities, addressing changes to policing on June 16, 2020.The order directed the U.S. Department of Justice to create an independent credentialing body that would develop a set of criteria for state and local law enforcement agencies to meet in order to be awarded federal grants. The order stated that the criteria should address excessive use of force, include de-escalation training, and ban the use of chokeholds, except when the use of deadly force is lawful.

The chokehold provisions of Trump’s E.O.:

(i)   the State or local law enforcement agency’s use-of-force policies adhere to all applicable Federal, State, and local laws; and

(ii)  the State or local law enforcement agency’s use-of-force policies prohibit the use of chokeholds — a physical maneuver that restricts an individual’s ability to breathe for the purposes of incapacitation — except in those situations where the use of deadly force is allowed by law.

Just what in the hell does that mean anyways…..

Many states have followed suit, banning “chokeholds.” Most notably, I’ll point out that Connecticut actually got the terminology correct, successfully banning pretty much every good submission you’ll see on the UFC.

On July 31, 2020, Governor Ned Lamont (D-Conn.) signed a policing policy bill into law. Under HB 6004, the following was enacted, according to the governor’s office:

On June 15, 2020, Lamont signed an executive order to change law enforcement strategies. The order banned “the Connecticut State Police from using chokeholds, strangleholds, arm-bar control holds, lateral vascular neck restraints, carotid restraints, chest compressions, or any other tactics that restrict oxygen or blood flow to the head or neck,” according to a press release from the governor’s office.

You’ll have to watch the discussion to see what Adam has to say about this policy, but it has something to do with not being a state trooper in Connecticut…..

Update: Podcast version: https://thejohnbryanpodcast.podbean.com/e/freedom-is-scary-no-3-bjj-training-and-police-use-of-force/

Episode 1 of the JOHN BRYAN PODCAST – impeachment, constitutional law, gun laws, self defense laws, and glucose meters are screwed up….

https://www.podbean.com/eu/pb-tqqbg-cb4067

Check out Episode 1 of the John Bryan PODCAST, where I pontificate on several topics, including impeachment evidence we’ve supposedly been hearing about, some search and seizure issues pertaining to the open carry of firearms, some self defense firearms issues, and a really crazy discovery that generic brand blood glucose meters, used by diabetics, are apparently way, way off……

 

Forget what you heard: the reality of the law of self-defense with a firearm in West Virginia. What does “castle doctrine” or “stand your ground” actually mean in WV?

Case studies are important aspect of learning and evaluating the law.  Being a Second Amendment supporting state, most West Virginians have heard one thing or another about the “castle doctrine,” or about what the law is regarding self defense with a firearm in West Virginia.

You can read the statutes, and you can read the case law.  You can read advice from anonymous sources on the internet.  But perhaps the best method is to go directly to a case-in-point.  A true nightmare scenario involving a home invader, a shooting, and a prosecution by overzealous authorities.

This case demonstrates a real life scenario.  It shows how the media and law enforcement can shift the narrative very quickly.  Most importantly, it shows the actual charge to the jurors who decided the man’s fate.  I obtained a copy of the jury charge, including the jury instructions, from the circuit clerk’s office, and have uploaded them to this site.  They are linked at the bottom of the page.  I also am providing a complete narrative showing some of the media reports, and how they shifted very quickly, turning on the homeowner.  It also shows how law enforcement used the media against the homeowner, poisoning the potential jury pool.

In March of 2015, a man intoxicated on various drugs, stripped off his clothes and attempted to forcibly enter the home of a family in Huntington, West Virginia.  The homeowner, Micah LeMaster, shot the intruder three times with his handgun.  He then followed the intruder outside towards the sidewalk, where he fired three more shots, resulting in the death of the home invader.  It was undisputed that this was a home invasion.  However, the media and the police quickly turned on the homeowner, resulting in an arrest, charge of first degree murder and a $700,000.00 bond.  The trial took place in November of 2016, resulting in a complete acquittal following his assertion of self defense and West Virginia’s “castle doctrine” law.  

One particular TV station’s website has their reporting of the incident, which in itself is educational.  From oldest to most recent:

LeMaster Media Narrative

If you really want to educate yourself on self defense law in West Virginia, read the actual law given to the LeMaster jury from the presiding trial judge.

The Actual Charge To the LeMaster Jury

The law given to the LeMaster jury contained the following specific instruction on the law pertaining to the West Virginia “Castle Doctrine,” in part:

An intruder is a person who enters, remains on, uses, or touches land or chattels in another’s possession without the possessor’s consent.

Our society recognizes that the home shelters and is a physical refuge for the basic unit of society, the family.  A man attacked in his own home by an intruder may invoke the law of self-defense without retreating.  The occupant of a dwelling is not limited in using deadly force against an unlawful intruder to the situation where the occupant is threatened with serious bodily injury or death, but he may use deadly force if the unlawful intruder threatens imminent physical violence or the commission of a felony and the occupant reasonably believes deadly force is necessary.

The violent and unlawful entry into a dwelling with intent to injury the occupants or commit a felony carries a common sense conclusion that he may be met with deadly force.

The source for this is the fact that West Virginia is a “stand your ground state,” and does not require a person to retreat before using deadly force:

(a) A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder’s or attacker’s unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence or if the occupant reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary. 
(b) A lawful occupant within a home or other place of residence does not have a duty to retreat from an intruder or attacker in the circumstances described in subsection (a) of this section. 
(c) A person not engaged in unlawful activity who is attacked in any place he or she has a legal right to be outside of his or her home or residence may use reasonable and proportionate force against an intruder or attacker: Provided, That such person may use deadly force against an intruder or attacker in a place that is not his or her residence without a duty to retreat if the person reasonably believes that he or she or another is in imminent danger of death or serious bodily harm from which he or she or another can only be saved by the use of deadly force against the intruder or attacker. 
(d) The justified use of reasonable and proportionate force under this section shall constitute a full and complete defense to any civil action brought by an intruder or attacker against a person using such force. 

W. Va. Code § 55-7-22(a)-(d). 

Of course, there are exceptions. The absolute immunity afforded by Section 55-7-22 does not apply in the following circumstances: 

– The person who would invoke Section 55-7-22 was attempting to commit, committing, or escaping from the commission of a felony; 

– The person initially provoked the use of force against himself, herself, or another with the intent to use such force as an excuse to inflict bodily harm upon the assailant; 

– Otherwise initially provokes the use of force against himself, herself, or another, unless the individual withdraws from the physical contact and clearly indicates to the assailant the desire to withdraw, but the assailant continues to use force. 

W. Va. Code § 55-7-22(e)(1)-(3). Case law considering Section 55-7-22 is sparse. See State v. Samuel (No. 13-0273, Mem. Dec.) (Nov. 8, 2013); United States v. Matheny (No. 2:12-CR-00068, S.D. W. Va., May 8, 2012). 

Nothing in Section 55-7-22, however, permits the creation of a hazardous condition on or in real or personal property designed to prevent criminal conduct or cause injury to a person engaging in criminal conduct (e.g., spring-loaded shotguns). Nor does Section 55-7-22 authorize or justify a person to resist or obstruct a law-enforcement officer acting in the course of his or her duty. W. Va. Code § 55-7-22(g). 

[As quoted from the West Virginia Gun Law CLE 2017]

I hope this clears up some of the confusion out there regarding West Virginia’s self defense laws, the practical application of what they mean, and how the “castle doctrine” and “stand your ground” actually work.

 

New Online Resource for Use of Force law

I started a new website called “Use of Force Source” at UseofForceSource.com.  The purpose is to establish an online resource to discuss and compile Fourth Circuit federal case law, and U.S. Supreme Court case law on the use of physical force – both police situations and self defense situations.  I have already listed a bunch of black letter law on excessive force in the Fourth Circuit (so Virginia, West Virginia, Maryland, North Carolina and South Carolina).  It will be a blog format, and will be specific to use of force cases.  My intention is to post about specific cases, going over the facts, as well as the law.  I also like to listen to the oral argument audio since it gives you much more insight into the case and the reasoning behind the Court’s decisions.

I already posted my first post today, discussing the November of 2013 Fourth Circuit opinion from Ayala v. Wolfe, which was a police shooting case.

West Virginia Lawyer Charged in Relation to Shooting

Apparently a West Virginia lawyer was charged with being an accessory after-the-fact in relation to a New Year’s Eve shooting in Charleston, which is a felony.  This was reported by WCHS, as well as the Charleston Gazette.  Allegedly, after his friend shot a guy after an argument over ordering a pizza, the lawyer took the guy’s cell phone and instructed him to run.  And then he was allegedly uncooperative with police when they asked him the identity of the shooter.

It was reported that all of this can be viewed on surveillance footage:

“Conrad is in trouble, because police said he can clearly be seen on surveillance video taking Underwood’s cell phone, which is considered evidence, from the scene and telling the suspect to run.”

So my initial thought is, how can you view what someone is saying on surveillance footage?  You can’t.  We pretty much know the footage does not contain audio – since that in itself would constitute felony illegal wiretapping in West Virginia, since it would be capturing conversations for which no party has consented.

The police are the first to complain about surveillance footage when they are accused of misconduct, noting that you can’t tell everything from the video.  Well you certainly cannot tell what someone is saying to another.  How does a video prove that the lawyer was instructing the shooter to flee? And if you can view the cell phone being handed to the lawyer, how can you tell that the lawyer asked for it.  And if a cell phone is handed to you in such a situation, does that make you a felon?  What if you are a lawyer potentially representing the individual.  Can you preserve evidence yourself?  Are you compelled to turn over your own evidence to police at their demand?  The West Virginia Rules of Criminal Procedure don’t provide for that.  In fact, a criminal defendant is not compelled to provide discovery to the prosecution until and unless he or she requests discovery from the State.

As with any of the decaying “cities” in this country where you have arrogant and hypocritical leadership, the City of Charleston was quick to jump into attention-whore mode and to engage in their first attempts at poisoning the jury pool:

“It’s really surprising that someone in a position of authority, and all that he is responsible for, to participate in this criminal conduct,” Lt. Steve Cooper, with Charleston police said. 

. . .

Charleston Mayor Danny Jones said he plans to file an ethics complaint with the state bar, against Conrad.

What ever happened to “innocent until proven guilty”?  Is it ethical for a police officer, or mayor, to go onto TV and tell the public that an individual who has been charged, and who is presumed innocent, has committed criminal conduct?  Or that the individual has abused a position of authority?  Or that the person is unethical?

I’m not passing judgment on the lawyer’s actions one way or the other since I don’t know all of the facts.  After all, isn’t that what police say when one of their own are accused of misconduct?  Well, it’s under investigation and we don’t know all of the facts.  So what if he did take the guy’s cell phone and told him to run?  What negative consequences did that have?  Who is a victim to the lawyer’s alleged crime?  None and nobody.

WV gun owner stops home invasion. When can you legally shoot someone?

There was an article yesterday in the Charleston Gazette about a gun owner in Logan, WV who stopped a home invasion in progress at his neighbor’s home.

He shot one of the burglars, and held the other at gunpoint until police arrived.  This brings up a common topic of interest to people – especially in West Virginia, which has one of the largest percentages of gun owners per capita (we are no. 5 I believe).

When can you legally shoot someone in a home invasion scenario?  

In the end, it comes down to whether or not you reasonably believe that you, or someone else (anyone else – it doesn’t have to be a family member) is in imminent danger of death or serious bodily harm.  People tend to get obsessed with the “castle doctrine.”  Just understand that to mean, that if you are in your home, you have no legal obligation to run out the back door, if given the opportunity.  It all comes down to whether you believe you, or someone else, is going to be killed or seriously hurt if you don’t take action.

There is no guarantee that, even if you do believe you’re about to be killed, and you fire your weapon, that the shooting will be deemed justified.  Your fear must have been reasonable – based on something that your peers would likely also consider as significant enough to cause them fear as well.

Everyone should think about these types of things ahead of time.  You should draw a mental line in the sand regarding when you shoot, and when you do not shoot.  What is enough?  What if someone in a ski mask is lurking outside your house?  What if someone in a ski mask is outside your house with a gun in their hand?  What if someone is burglarizing your vehicle in your driveway?  What if someone is burglarizing your neighbor’s home?  Or car?

There is not necessarily a right answer for these types of scenarios.  But you should never pull the trigger unless you really do fear for a life.  It’s not that they don’t deserve a dirt nap.  If it were up to me, all thieves entering your property at night should be executed.  But unfortunately it’s not.

Many people in West Virginia do believe that if someone is breaking into their car at night, that they can run outside and shoot them.  Unfortunately, here we are not allowed to use deadly force in order to protect property.  For this reason, electric companies are not supposed to keep lines active for the sole purpose of deterring trespassers.  Now if the car burglar approaches you, or if he has a weapon and has the imminent ability to use it against you – that is different.

1.  It’s always going to be more difficult to justify a shooting where the person shot was “unarmed”.  I knife, gun, or even a stick could count as a weapon.  It is never a good idea to provide your own weapon after the shooting.  The facts are what they are.  Never try to change them.

2.  It’s always going to be more difficult to justify a shooting where the person shot was shot in the back.  This would indicate that the person was walking, or running, away from you.  That causes a problem because at that point it’s hard to argue that your fear was reasonable when the threat was leaving.  It’s also hard to argue that the threat was imminent.  But, if the person shot was in your house, it’s probably going to be a good shoot, because the threat was still in your home.  Generally when we shoot someone, our natural tendency is to keep shooting.  So there have been cases where the first shot was in the front of the person’s body, and several more shots went into the guy’s back as he turned to run away.  Good shoot, but bullets in the back are always going to make things more difficult.

3.  In your home, it’s game on.  Like I said, draw a line in the sand.  If someone maliciously invades your home, you generally can eliminate the threat with extreme prejudice.  But it still has to be reasonable.  You wouldn’t want to shoot a drunk neighbor who wandered in the wrong house – or a family member sneaking back in from a night of partying.  For this reason, always have a good home defense light.  You have to know your target – and what’s behind it.

It’s outside the home, where most of the grey areas live.  So be very careful venturing outside your castle with a gun in the dark of night.  Know where your line in the sand is.

As for the shooting in the article, the 800 pound gorilla is the fact that was left out of the story.  Did the shooter believe that the neighbors were in the home at the time he saw the attempted home invasion?  If so, good shoot.  If not, he may have a more difficult time due to the fact that we are not allowed to use deadly force in order to protect (only) property.

4.  Lastly, all gun owners who anticipate ever having to use their firearms in self defense should get some formal training, such as in a defensive handgun class.  A basic concealed weapons class does not qualify as training.  This is me at a handgun class a couple of weeks ago.  It’s a lot of fun, and it’s part of our obligation as citizens under the 2nd Amendment.

2013-12-15 14.45.47 copy

Fourth Circuit Open Carry Decision

The Fourth Circuit issued a decision bolstering our 2nd Amendment rights.  The case is styled  USA v. Nathaniel Black, out of the Western District of North Carolina.  Essentially, a guy who was a convicted felon was open carrying a firearm.  He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm.  But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?

The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity.  The importance of this decision is that it protects our 2nd Amendment rights.  If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc.  The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).

WV Supreme Court Acquits Woman Convicted of Murder

In a 4-1 decision, authored by Justice Menis Ketchum – a Justice with criminal defense experience – which was filed yesterday, the West Virginia Supreme Court of Appeals actually acquitted a woman who had been convicted of murder in Cabell County, West Virginia.

A jury convicted Tanya D. Harden of first-degree murder in 2007, ignoring her argument that she acted in self-defense. She said Danuel Harden Jr., her husband of 11 years, told her that “nobody was going to walk out of the house that night,” including their two children.  She apparently shot her husband with a shotgun while he was sleeping on the couch.  

This was basically a “battered woman syndrome” self-defense case. 

The justices’ decision acquitted Harden of murder charges, and ordered her released from prison immediately. She had been serving a life sentence with a recommendation of mercy.

Syllabus Point 3 of the Opinion held that: 

Where a defendant has asserted a plea of self-defense, evidence showing 

that the decedent had previously abused or threatened the life of the defendant is relevant 

evidence of the defendant’s state of mind at the time deadly force was used.  In determining 

whether the circumstances formed a reasonable basis for the defendant to believe that he or 

she was at imminent risk of serious bodily injury or death at the hands of the decedent, the 

inquiry is two-fold. First, the defendant’s belief must be subjectively reasonable, which is 

to say that the defendant actually believed, based upon all the circumstances perceived by 

him or her at the time deadly force was used, that such force was necessary to prevent death 

or serious bodily injury. Second, the defendant’s belief must be objectively reasonable when 

considering all of the circumstances surrounding the defendant’s use of deadly force, which 

is to say that another person, similarly situated, could have reasonably formed the same 

belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 

(1927), is expressly overruled. 

In Syllabus Point 4 of the Opinion, the Court held that:

Where it is determined that the defendant’s actions were not reasonably 

made in self-defense, evidence that the decedent had abused or threatened the life of the 

defendant is nonetheless relevant and may negate or tend to negate a necessary element of 

the offense(s) charged, such as malice or intent. 

In Syllabus Point 5 of the Opinion, the Court held that:    

An occupant who is, without provocation, attacked in his or her home, 

dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be 

upon the premises, may invoke the law of self-defense and in such circumstances use deadly 

force, without retreating, where the occupant reasonably believes, and does believe, that he 

or she is at imminent risk of death or serious bodily injury.  In determining whether the 

circumstances formed a reasonable basis for the occupant to believe that he or she was at 

imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry 

is two-fold. First, the occupant’s belief must be subjectively reasonable, which is to say that 

the occupant actually believed, based upon all the circumstances perceived by him or her at 

the time deadly force was used, that such force was necessary to prevent death or serious 

bodily injury. Second, the occupant’s belief must be objectively reasonable when 

considering all of the circumstances surrounding the occupant’s use of deadly force, which 

is to say that another person, similarly situated, could have reasonably formed the same  

belief.  Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 

(1909), is expressly overruled. 

You know, sometimes prosecutors should come to the conclusion that the guy deserved it.  They should have given this woman a break.  She was protecting her children.  The police wouldn’t have stopped him from killing her, or the children.  That’s why we have guns for self defense.  It’s each of ours individuals responsibility to protect ourselves and our children.  The prosecutors were trying to victimize these children by turning them into orphans.  

As the Appellant/Defendant’s brief noted (caution: there are some gruesome photographs):
From Tanya Harden’s arrest to her sentencing, the State has never disputed an essential fact – that the decedent threatened to kill his wife and children and used his fists and shotgun to brutally beat his wife just before he died.  The injuries suffered by Tanya Harden, including facial fractures, were preserved on photographs taken the day of her arrest and made part of the record in this case, and were attested to by the State’s own witnesses.
This is our job as defense attorneys: to protect those of the Lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it.  And by those, I am talking about prosecutors.  And Ms. Harding may have fallen short of perfection, but I can’t say that I wouldn’t have done the same thing given the circumstances.
 
– John H. Bryan, West Virginia Attorney