From the Billings Gazette of August 11, 2009
‘Castle doctrine’ law forces shooter’s release, prosecutor says
A man who police said shot his Wal-Mart co-worker in a dispute over the length of a work break has been released from custody because his actions may be protected by Montana's recently enacted "castle doctrine" law.
The shooting, which took place Monday evening, is under investigation by the Billings Police Department and could still result in charges. But Yellowstone County Attorney Dennis Paxinos said language in the "castle doctrine" bill passed during the last session of the Montana Legislature required him to release the shooter until more information becomes available.
The law asserts, among other things, that a person has a "natural right" to use firearms for self-defense and is not required to summon law enforcement assistance before using "justifiable" force to ward off an attack.
"The play of (House Bill) 228 with the current law causes us some pause to do a much more thorough investigation to determine if we can charge anyone," Paxinos said.
When police arrived at the Wal-Mart on King Avenue West at about 9:15 p.m. Monday, they found Daniel Lira, 32, inside the store's loading dock area with a gunshot wound.
Billings Police Sgt. Jay Berry said that Lira hit co-worker Craig Schmidt, 49, in the face. Schmidt fell backward, then pulled out a .25-caliber semiautomatic Beretta handgun and shot Lira, police said. The single shot was fired at a range of 10 to 15 feet.
Lira, 32, was taken to St. Vincent Healthcare and later released. Police Sgt. Kevin Iffland said the bullet grazed the side of his head from front to back.
Paxinos said that prior to passage of House Bill 228 authorities would have had probable cause to arrest Schmidt for assault with a weapon.
Now, he said, they need more details about whether there was a history of aggression between the two men, what they may have said to each other when the incident occurred and other information that will shape whether it was reasonable for Schmidt to believe his life was threatened. Other details such as the size of the two men - Schmidt weighs 150 pounds and Lira weighs 300 pounds - could also affect whether a self-defense claim is reasonable, Paxinos said.
"I'll have to do the investigation while the guy is free to move around," said Paxinos, who along with other county attorneys opposed House Bill 228 during the legislative session.
The "castle doctrine" bill, which was sponsored by Republican Rep. Krayton Kerns of Laurel and supported by the National Rifle Association, sparked passionate debate about self-defense rights before passing the Legislature.
"Once somebody punches you, and you're down and incapacitated, that person has already demonstrated an intent for violence and you can't tactically assume that they're only going to hit you once," said Gary Marbut of the Montana Shooting Sports Association, who crafted the bill.
But those opposing the "castle doctrine" legislation argued that existing law already protects those acting in self-defense, and that the new code would only create unnecessary burdens for prosecutors and police officers.
"There's just such a disconnect between words on paper and what happens on the streets of Montana, and I think legislators had to be more sensitive to what's happening on the street," said Jim Smith, spokesman for the Montana County Attorneys Association.
Aside from potential legal charges, it was unclear if Schmidt or Lira will face disciplinary action from Wal-Mart. Schmidt has a permit to carry the concealed weapon, but a spokesman for the company said it would be inappropriate to discuss whether Wal-Mart has a policy about employees carrying guns.
"We are still gathering details at this time, and we're now most concerned about the well-being of the people involved," Kelly Cheeseman said.