Chris Dumm on Matt McCauley

TTAG reported the disturbing tale of Matt McCauley, a Seattle resident who confronted a cat-burglar at gunpoint and fired a warning shot near him, then took him captive and pistol-whipped him while waiting for police. Matt McCauley isn’t a prudent man, but he’s a lucky one . . .

Lucky that he didn’t get himself killed by unnecessarily abandoning the security of his home to confront an armed burglar at close range. Lucky that he didn’t get himself killed, again, when he closed with the burglar to grab him and drag him inside. Lucky that he didn’t unintentionally shoot himself, the burglar, or an innocent neighbor while he administered his pistol-whipping. (Did he maintain trigger and muzzle discipline while beating the burglar about the head with the muzzle and butt of his pistol? You make the call.)

Lucky the police didn’t mistake him for the bad guy and shoot him when they arrived.  And extremely lucky that he isn’t sitting in the hellhole of the King County Jail, praying for a well-mannered ‘cellie’, an understanding bail bondsman, generous relatives, and a good public defender in that order of priority . . .

Washington is not Texas, and its state laws frown vigorously on the use of unnecessary or excessive force in defense of self or property. Especially where guns are involved.

This is a legal, as opposed to a practical (or tactical) analysis of the many places where Mr. McCauley almost went very wrong, and a few where he actually did.  We all understand that McCauley crossed the line, but what may not be so clear is just how far he crossed it.

How far?  This Paul Kersey wanna-be arguably committed several very serious felonies that could have landed him in prison for a big chunk of his productive life. 1st Degree Assault, 1st Degree Kidnapping (with a firearm) and 2nd Degree Assault (with a firearm) are among the most serious violent felonies on Washington’s books, after rape and murder. Each of them carries years in prison, and each counts as a strike towards the ‘three strikes’ law.

Self-defense is cool in the Evergreen State, with two caveats: you cannot use an unreasonable amount of force to defend yourself or your property, and you cannot claim self-defense if you instigated the confrontation.

The use, attempt, or offer to use force upon or toward the person of another is not unlawful…[w]henever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;

By this rule, McCauley was within his legal rights to leave his home and confront the burglar because the burglar was committing a felony (Residential Burglary or Burglary 1) against McCauley’s property. We all agree it was foolish for him to leave the safety of his house to do it, but it wasn’t illegal.

So now McCauley has confronted the burglar, and decides to fire a shot into the ground. A wise move? Probably not. Illegal?  Once again, probably not. Anyone who thinks a knife isn’t a deadly weapon hasn’t been paying attention, and the law allows you to use deadly force against deadly force. Even when it’s not tactically a good idea. A prosecutor might be cocky enough to file charges on these facts so far (mostly to make an example of the shooter by putting him through hell for a year or so of pretrial anxiety) but probably wouldn’t get a conviction from them.

(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm…(a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death;…

The minimum prison sentence for Assault 1st is 93 months.

The use of a firearm or deadly weapon permits the jury to infer the intent to commit great bodily harm. Assault in the second degree is a lesser-included charge, with a minimum sentence of 3 months. If a firearm is used, the minimum is 27 months.

(1) A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent…(b) To facilitate commission of any felony or flight thereafter; or (c) To inflict bodily injury on him; or (d) To inflict extreme mental distress on him or a third person;…

The minimum prison sentence for Kidnap 1st is 51 months, but increases to 75 months if a firearm is used.

McCauley didn’t just confront the burglar and fire a warning shot. If that’s all he’d done we wouldn’t be having this discussion. Instead he dragged him inside for some ‘Frontier Justice’ (never mind that Washington hasn’t been a ‘Territory’ since 1889) and pistol-whipped him.

This goes so far beyond the rationale of ‘holding the perpetrator for police’ that it crosses the line into criminal kidnapping, because he seized the burglar and held him to inflict further unnecessary injury on him.

Self-defense stops when the threat stops, and any further use of force to inflict pain or injury is a crime. Just look at all the bar-fights that end in assault convictions because the would-be ‘victim’ gets the better of his aggressor but just can’t resist giving him just one more kick after he’s down…

When the use of force is no longer lawful, the full weight of the law falls on anyone who continues to use that force unlawfully. When that force is a handgun, the penalties multiply quickly. In Washington, the use of a firearm in the commission of any felony requires an additional 2 years in prison, consecutive to all other terms of incarceration, and there is no parole, early release, or ‘good time’ for these extra 2 years.

If the D.A. really wanted to make an example of Mr. McCauley and filed Kidnapping 1st AND Assault 1st charges, he could go bye-bye for somewhere between 126 and 160 months of maximum security hard time. And by law he would have to serve 90% of his sentence (and 100% of the firearm enhancement time), so he couldn’t count on getting much help from the parole board.

By comparison, the burglar would only be facing three to four and a half years, assuming that he’s already got a few felony convictions on his record.

Would a jury convict him? I believe they would, because he would lose their sympathy the moment they heard testimony about the pistol-whipping. The gratuitous beating of a subdued captive evokes images of police brutality and war crimes, and not the natural sympathy we would feel for a decent person trapped in dangerous circumstances not of their own making.

The King County Prosecuting Attorney may decide not to charge McCauley, and this would be an incredibly lucky break for him. Most DAs would charge him with something, just to send the message that punishment is for the courts to administer. And that’s the way it ought to be.