Regular reader Daniel Dial recently asked me about the case that is the subject of this article: the shooting of Kendall Green by USAF Tech Sgt. Matthew Pinkerton in mid-September, 2013 in Maryland. Considering the attempts by many, including Sybrina Fulton—Trayvon Martin’s mother—to repeal stand your ground laws, it’s a case worth considering. This article from The Baltimore News Journal is representative of news coverage:

Anne Arundel County police are investigating tonight after a man shot another man dead at a residence in Glen Burnie overnight. Just before 2 a.m. ET on Sunday morning, police responded to the 400 block of Arbor Drive for a report of a shooting. Upon arrival, officers found a man dead on the front porch of the residence. Police quickly learned that the victim was shot by the homeowner. It was later determined that the suspect, Matthew Martin Pinkerton, 34, and the victim knew each other. The victim was shot by Pinkerton after he was granted entrance into the residence. The motive for the shooting is still unknown, but police say it appears to have been a ‘domestic-related situation.’ The victim has been identified as Kendall Arnaz Green, 25, of Glen Burnie. Pinkerton was arrested and charged with second-degree murder, manslaughter and use of a handgun in the commission of a felony/violent crime.

With only that information, most people would think that Pinkerton, who “was granted entrance into the residence,” unlawfully killed Green. After all, why would he have been arrested and prosecuted otherwise?

The Freedom Outpost provides the context lacking in most news reports:

In the wee hours of the morning on September 13th, Air Force Sgt. Matt Pinkerton and his wife were entertaining guests at their home when an acquaintance of Mrs. Pinkerton’s came knocking. It was 2 AM. After being told to leave by Matt Pinkerton, who closed the door, Kendall Green decided that he’d kick it in and force his way into the home. Matt Pinkerton, having armed himself with his Glock17 9mm prior to approaching the door, then proceeded to discharge two rounds into Green. Green was subsequently killed in an obvious act of self-defense.

Green forcibly entered Pinkerton’s home after being refused entrance. Another interesting factor in this case is that while Pinkerton was away on duty, Green was trying to develop a relationship with Pinkerton’s wife Jessica, but realizing he wanted a sexual relationship, she ended it. So now we have a situation where a spurned suitor of another man’s wife comes to their home at 2 AM, and denied entry by Pinkerton, in a jealous rage, kicks in the door and charges Pinkerton.

Bullets First.net provides a statement from Jessica Pinkerton:

Green had texted me sometime in July or August saying that he missed the kids, and Matt didn’t deserve us and that he deserved a chance. He wanted more.

Pinkerton’s brother Mike, who was present at the time, provides additional context:

He (Green) kept coming forward so Matt fired. He rocked backwards and took another step forward at which time Matt took his second shot. He stumbled backwards and fell out the door onto the porch. When the shots were fired Jessica called 911. Matt spoke to the operator; he removed the clip from his gun and the bullet in the chamber. Police arrived within five minutes.

In many places, perhaps most of the nation outside the East and West coasts, that would have been the end of it. No prosecutor in his right mind would think of filing charges under these circumstances. But this is Maryland, and prosecutors see things a bit differently:

According to the DA, Pinkerton exhibited ‘bizarre behavior’ by grabbing his weapon when an unexpected knock came to his door at 2AM that morning. And, because he failed to call 9-1-1 between the time Green kicked in his door and rushed him, he has now been charged with murder by the state.

Compounding the difficulty for Pinkerton, Maryland has no castle doctrine or stand your ground laws. In many states, anyone that forcibly enters the home of another is presumed to be there for evil purposes, and the residents do not need to retreat, call the police, or try to engage them in conversation before defending themselves. They do not need to prove that they acted reasonably in stopping a criminal that broke into their home.

Therefore we have an obviously anti-gun, anti-self-defense prosecutor that considers anyone that arms themselves in response to an unexpected, 2 AM knock at the door to be exhibiting “bizarre behavior.” Further, the prosecutor believes that when an attacker kicks in the door of a home and rushes the resident, the only reasonable thing to do is simultaneously call 911.”

The Law:

In Maryland, second-degree murder is essential murder without premeditation or aggravating circumstances. In other words, if one didn’t plan the murder or act in outrageous and/or unusually cruel ways, it’s second-degree.

Oddly, Pinkerton as also apparently charged with manslaughter. The language of the statute provides a possible reason:

§ 2-207. Manslaughter. (a) Penalty.- A person who commits manslaughter is guilty of a felony and on conviction is subject to: (1) imprisonment not exceeding 10 years; or (2) imprisonment in a local correctional facility not exceeding 2 years or a fine not exceeding $500 or both. (b) Spousal adultery not a mitigating factor.- The discovery of one’s spouse engaged in sexual intercourse with another does not constitute legally adequate provocation for the purpose of mitigating a killing from the crime of murder to voluntary manslaughter even though the killing was provoked by that discovery.

The prosecutor, in an attempt to inflame the jury, may well be intending to argue that Pinkerton killed Greene only because he believed his wife had an affair with her. Charging Manslaughter may also be an attempt to give a jury something to hang on Pinkerton if they know he’s not guilty of murder, but just don’t like him, or guns, or the military, or something.

The other statute apparently involved is:

§4–203. (a) (1) Except as provided in subsection (b) of this section, a person may not: (i) wear, carry, or transport a handgun, whether concealed or open, on or about the person; (ii) wear, carry, or knowingly transport a handgun, whether concealed or open, in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State; (iii) violate item (i) or (ii) of this paragraph while on public school property in the State; or (iv) violate item (i) or (ii) of this paragraph with the deliberate purpose of injuring or killing another person.

Charging Pinkerton under this statute would seem to suggest that the prosecutor does not respect the Constitution as interpreted in Heller, which clearly allows one to carry or otherwise handle firearms on their own property, and surely within their own home. The prosecutor’s theory–such as it is–is clearly in violation of the Second Amendment.

There is relevant precedence. The Maryland Court of Appeals addressed the issue in Baltimore Transit Co. v. Faulkner (1984):

The law of self-defense justifies an act done in the reasonable belief of immediate danger. If an injury was done by a defendant in justifiable self-defense, he can neither be punished criminally nor held responsible for damages in a civil action. . . . One who seeks to justify an assault on the ground that he acted in self-defense must show that he used no more force than the exigency reasonably demanded. The belief of a defendant in an action for assault that the plaintiff intended to do him bodily harm cannot support a plea of self-defense unless it was such a belief as a person of average prudence would entertain under similar circumstances The jury should accordingly be instructed that to justify assault and battery in self-defense the circumstances must be such as would have induced a reasonable man of average prudence to make such an assault in order to protect himself. The question whether the belief of the defendant that he was about to be injured was a reasonable one under all the circumstances is a question for the consideration of the jury.

Keep in mind that Maryland does not have a specific “Castle Doctrine” law, nor does it have a specific “Stand Your Ground” law. In addition, Maryland law does not establish immunity from civil suits for one found to have lawfully employed self-defense. Even if Pinkerton is acquitted, if a jury decides he acted reasonably, in self-defense, he can still be sued by Green’s family.

Maryland does generally follow common law principles where self-defense is invoked. And even in common law, there is precedence favorable to Pinkerton. Crawford v. State (1963) held:

[A] man faced with the danger of an attack upon his dwelling need not retreat from his home to escape the danger, but instead may stand his ground and, if necessary to repel the attack, may kill the attacker.

And:

A man is not bound to retreat from his house. He may stand his ground there and kill an[y] person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of committing a felony, or of inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even a lodger in the house, may meet the intruder at the threshold, and prevent him from entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable.

Interestingly, in Maryland self-defense cases, Pinkerton does not have the burden of proving he acted in self-defense (State v. Evans, 1976). Proving he did not is the burden of the prosecution. He does have the burden of production, which basically means he must introduce evidence that he acted in self-defense. Proving otherwise is up to the prosecution.

Barton v. State (1980) is also significant in this case:

The Court of Appeals implied essentially the same rule in Crawford v. State, 231 Md. 354 (1963). Noting that the rules regarding the defense of one’s dwelling ‘are generally similar’ to those governing the defense of one’s person, the Court, in enunciating the ‘castle’ doctrine in regard to the defense of dwelling, quoted with approval this passage from Clark and Marshall, Law of Crimes, § 7.03 (6th Ed., Wingersky Rev.), pp. 436-37: “* * * A man is not bound to retreat from his house. He may stand his ground there and kill any person who attempts to commit a felony therein, or who attempts to enter by force for the purpose of committing a felony, or of inflicting great bodily harm upon an inmate. In such a case the owner or any member of the family, or even a lodger in the house, may meet the intruder at the threshold, and prevent him from entering by any means rendered necessary by the exigency, even to the taking of his life, and the homicide will be justifiable.’ 231 Md. at 361 (Emphasis supplied.)

INITIAL ANALYSIS:

Keep in mind that I do not have all of the details of this case. I don’t have the police reports or witness statements that would provide the kinds of minute detail and time lines that make the difference between conviction and acquittal in such cases. Therefore, my discussion here is, of necessity, limited to the general principles surrounding self-defense cases, and more particularly, this case.

The affidavit in this case reportedly reflects the prosecutor’s bizarre idea that failing to call 911 when actually under attack before taking action is an element of probable cause in a charge of murder. As a matter of law, this is nonsense of the highest order. As this is written, none of the legal documents are available, so I don’t know if the prosecutor also included Pinkerton’s arming of himself as an element of murder, but it would not be a stretch to believe that to be so.

The ultimate problem for Pinkerton is that Maryland law does not protect the law-abiding citizen before a criminal assault, it does not protect them when a criminal forces them to defend their life, and it does not protect them after they have been acquitted. Maryland law does not prevent a prosecutor from bringing unwarranted charges, and essentially gives the state every advantage. There is precedence that may–and I emphasize may–be useful to Pinkerton in his defense, but there is no guarantee that even with that precedence, Pinkerton will not be convicted.

This is part of the advantage of the prosecution. When a prosecutor exceeds his authority and common sense, there is no downside for him. He has all of the resources of the state at his disposal. The costs of pursuing an innocent man do not come out of his pocket, and the longer the process takes, the more likely it is that the defendant will be destroyed, financially, mentally, emotionally, and in every other way imaginable. If he loses, he can claim he really believed Pinkerton was guilty under the law, and he will not be held accountable. Because Pinkerton is an active duty non-commissioned officer, his military career is on hold until this case is resolved. He will not be promoted, and regardless of the outcome of the case, his military career is likely irreparably damaged.

Here are the primary issues:

(1) Is it inherently reasonable to arm oneself before answering an unexpected 2 AM knock on the door?

(2) Finding a hostile and raging (I’m making a reasonable presumption here) suitor of one’s wife at the door, refusing him entry, telling him to leave and closing the door, is it reasonable to believe, when he kicks in the door and charges you–in your own home–that he intends to do you or your wife serious bodily harm or worse?

(3) During the seconds that elapse between your closing and locking the door, and the attacker breaking into your home, is it reasonable to believe that you can actually reach a phone, dial 911, receive an answer, clearly explain what is happening–and receive police assistance–that will enable you to avoid defending yourself?

(4) When someone you have denied entry to your home and locked out, breaks down the door and charges you, are you authorized to use deadly force to stop them?

In the second article in this two-part series, to be posted on or about December 30, I’ll analyze these and other issues. The Pinkerton case is indeed important, and is a cautionary tale for those that live in reflexively anti-gun, anti-liberty states. It is also a warning for those that live in states that respect the rights of the law-abiding: it is all too easy to lose those rights. Thomas Jefferson was right. The price of liberty is eternal vigilance.