When Burglars Attack:
The Stiffler Case

7

Situation: When you catch a burglar in your home and the man attacks you for your gun.

Lesson: Law schools often come up short teaching deadly force and “self-defense immunity” doesn’t necessarily mean what you think.

It’s a pleasant May afternoon in East Helena, Montana. Henry Johnson, 37, is having an easy day so far. There was no one present when he broke into the home he’s burglarizing.

He’s a lifelong burglar with a lengthy history of violence and weapon possession, though he’s not armed at the moment. He doesn’t look like the stereotype of a burglar. He’s wearing gray sport slacks, a button-front shirt complete with necktie, and running shoes. The only incongruity in his garb is his mismatched gloves, worn so he won’t leave fingerprints.

A common burglary MO is to knock on doors dressed like an ordinary Joe. If someone answers whom he thinks he can take, the burglar can overpower them, and if the homeowner seems too intimidating, being dressed like a salesman allows a song and dance; it’s up to him whether to go away when the homeowner says, “We don’t want any.” And if no one answers the door at all, why, that’s an invitation to break and enter.

Standing over six feet tall and weighing 241 lbs., Johnson easily broke through the unanswered door and discovered no one inside. So far, so good. But he has carelessly left the broken door ajar and the curtains are up. He is rifling through the china closet in the dining room when he hears a pickup truck pull into the yard.

Looking out the front window, Henry Johnson sees a much older man at the wheel of the pickup. Henry Johnson’s day is about to get less easy.

Homeowner Reacts

In his mid-60s, James Stiffler and his wife of 45 years, Sandie, are both retired. Sandie has a part-time job and Jim dabbles in real estate sales and selling guns and accessories. A longtime gun enthusiast, he’s had an FFL for years.

Pulling into the driveway, he’s noticed an unfamiliar sedan parked there. It’s a time of day when his wife should be at home, but he can’t be certain because the double garage doors are closed — so he can’t tell if her car is there.

But his eyes take in the broken front door, and through the window, the big stranger. Jim’s first thought is for his wife’s safety. He can’t know if the burglar brought a weapon with him, but he assumes he has one because Jim keeps a fully loaded SIG SAUER P220 .45 pistol in plain sight on his bedside night table. A loaded Remington 700 .223 for varmints is in the bedroom. He figures the intruder probably has at least one gun by now.

The location is remote, the nearest neighboring house barely in line of sight, and the homeowner knows it will take too long for police to get there. There isn’t time to call 9-1-1. Jim grabs the 9mm pistol he keeps in his briefcase, a compact DA Star UltraStar, and rushes toward his house.

Confrontation

Stiffler moves cautiously through the house, gun at a low ready. The trigger is in DA mode, his finger outside the trigger guard. With the curtains open and the sun streaming in, he has plenty of light. He calls out, “Is anyone here?” Suddenly, there’s a noise in the computer room. Making his way there, with his wife’s sewing room on his left, he spots the big man tugging at the knob of the back door of the computer room, trying to open it and escape. But Johnson doesn’t know the door is double-locked and isn’t going to open.
He turns angrily toward Stiffler.

The View From Behind The Gun

Henry Johnson growls menacingly, “I’m going to hurt you!” He lunges at Stiffler. To Jim, the rest of the world falls away: There is only the huge man coming toward him as if reaching for Jim’s gun.

Jim Stiffler is more than 60 lbs. lighter than Henry Johnson, inches shorter, and hobbled by a bad back and a knee so bad it requires the brace he’s wearing now. There is only one reasonable thing left to do.

Jim Stiffler snaps his 9mm up to a Weaver stance and fires.

He sees Johnson spin away from him, moving rapidly to Johnson’s right and Stiffler’s left, running toward the sewing room. Stiffler stops shooting, with only the one round discharged. He sees the intruder enter the small adjacent sewing room. Jim hears him cranking open the window and realizes that’s where he’s going to exit. Jim heads outside to see where the man is going.

There is a brief “WTF?” moment. Jim hears an engine come to life and then roar; there’s a sound of spinning tires and gravel hitting the house. Jim has made his way back outside, hobbling on the bad leg as fast as he can, and gains the porch where he can see the sedan, its tires spinning. The vehicle has crashed through Jim’s fence, hit a pile of concrete blocks, and become stuck. The intruder is behind the wheel, still moving. Jim aims at the rear tire and fires a shot and then hears the voice of his long-ago firearms instructor Frank Lloyd telling him never to shoot at a tire. He takes his finger off the trigger. The second and last shot of the encounter echoes away.

It takes some few moments for him to realize, but the incident is over.

Investigation

When the police arrived, they found Henry Johnson behind the wheel of his sedan, his head lolled back against the headrest and his eyes closed. The evidence photos look like a man taking a nap in the driver’s seat until you spot the bloodstained hole in the center chest.

The police were sympathetic. Once he was ID’d, a record check showed Henry Johnson had been convicted over the years for multiple burglaries and crimes of violence, some committed while armed. It turned out Jim’s wife hadn’t come home yet, but the police realized Jim couldn’t have known that.

Then the autopsy report came in. It revealed the deceased had tattoos depicting a Grim Reaper and lightning bolts. If body ink says something about who the wearer is, Henry Johnson had left the message on his corpse. But the autopsy showed something else.
The single, fatal perforating gunshot wound of the chest had entered from the rear at the edge of the shoulder blade and exited the chest.

Some 23 months later the District Attorney charged Jim Stiffler with Intentional Homicide, the term the black letter law of Montana uses for murder.

The Trial

Long after the shooting, in first quarter 2016, Jim Stiffler went on trial in Helena. He was most ably defended by lead counsel Quentin Rhoades, with Nicole Siefert as co-counsel. Prosecutor Leo Gallagher painted a picture for the jury of an unarmed man, as “helpless as a baby” against the nefarious defendant who had been shot in the back as he harmlessly exited a window after committing a mere property crime.

Quentin Rhoades had been to the self-defense trial rodeo before and knew exactly how to craft an “affirmative defense,” which says in essence, “Yes, my client shot him, but he was absolutely correct in doing so.” Among other witnesses, Rhoades called me and two other experts to the stand — and the defendant himself.

Dr. Dan Reisberg, author of Cognition: Explaining the Science of the Mind, educated the jury on altered perceptions during traumatic, life-threatening incidents which occur at high speed. He explained why, though Jim remembered firing as he faced the attacker with the back-door area behind Johnson as he fired, no bullet was recovered there. He also explained why tunnel vision would have kept Jim from correctly orienting his surroundings during the sudden attack.

Gary Marbut did an excellent job of explaining the ballistics in the case, and the angle of the shot, and why the location of an ejected spent casing couldn’t be relied upon to show where everyone involved was at the instant of the shot.

My role was explaining disparity of force, the situation in which an unarmed man attacking an armed one can be devastatingly lethal.
Johnson was much bigger, younger and stronger than Stiffler. Johnson was able-bodied and Stiffler physically handicapped due to back and leg troubles — another disparity of force factor. And at the moment the shot was fired, no more than 15 feet separated the men, putting the intruder a second or less away from deflecting, and then gaining control of, Stiffler’s weapon. I reiterated why Stiffler had reason to believe Johnson was quite likely already armed with Stiffler’s own SIG .45.

Finally, I demonstrated to the jury the interlinked action/reaction dynamics, which explained why Stiffler had honestly thought he’d shot Johnson in the front.

The raising and firing of the gun happens in a fraction of a second.

When reacting to the raised muzzle, the attacker’s reflexive turn away from danger can cause his lateral midline to cross the muzzle of the defender’s gun in as little as a quarter of a second.

Studies show while reaction to anticipated stimulus runs an average of about 0.25 of one second, it takes about three quarters of a second — or more — for a shooter to cognitively process the unanticipated stimulus of the attacker unexpectedly breaking off the assault. The shooter goes through the whole OODA loop of Col. John Boyd. Observe (the eyes see) what is happening, Orient (the brain figures out what the visual input means), Decide what to do now (stop pulling the trigger), and Act (physically stop shooting). I stated honestly what the State was asking of Stiffler was not humanly possible.

In his own testimony before I got there, the defendant had conceded on cross while he thought the man had turned clockwise at the shot, he couldn’t be 100 percent certain it hadn’t been counter-clockwise. The prosecutor brought this up when he cross-examined me, so we did the demonstration again, turning in the opposite direction. The outcome was the same.

In his final argument, the prosecutor argued by entering his own home to save his wife from a large intruder who had smashed through the front door of their home, Jim Stiffler had become the “initial aggressor” and was therefore not entitled to a self-defense finding.
The outcome was a hung jury, 10 voting to acquit and two to convict. Not long after, the prosecutor dismissed the case rather than try it again. Jim had already won his first battle — to survive. He had now won his second and stayed out of prison with a clean criminal record. Now came his third battle, the civil lawsuit.

The Civil Case

Plaintiffs sued on behalf of the dead man’s minor child for wrongful death. The suit was settled out of court for $20,000 paid by Jim’s homeowner’s insurance company. That’s highly unusual and we’ll explain why momentarily.

Personal Aftermath

Four years after the trial and seven years after the shooting, Jim Stiffler told me, “For about the first two weeks I had nightmares and a hard time sleeping. During the case, neither my wife nor I could sleep, and I lost about 20 lbs. We got a lot of help and support from the community. We’d be at dinner and people would come up, tell me I did the right thing, and slip me $100. Even during the trial at the courthouse people would come up and slip C-notes into my pocket. My friends in the realtor community put on a big fundraiser gathering about $40,000 for the defense.”

I went through the trial with his lawyers, good ones who don’t come cheap. They sympathized with Jim and gave him a $300,000 defense for $100,000, with an estimated $60,000 additional in related expenses. Jim wound up getting a reverse mortgage on the house he and his wife had almost paid off and cashing in stocks he thought would fund his retirement. “I spent two years in a PTSD group, peer support, and saw a therapist for about a year,” Jim adds.

Lessons

Don’t count on a jury of your peers. Quentin Rhoades had meticulously selected jurors who all said they could render a not guilty verdict in a self-defense case. It turned out the two jurors who insisted on conviction told the rest of the panel shooting someone in self-defense was wrong; Rhoades learned this after debriefing most of the other jurors subsequent to trial. The two holdouts for conviction wouldn’t talk to him.

Don’t expect your jury to learn how bad a “bad guy” your aggressor was. Prior acts by your opponent, if not known to you at the time you harmed him, will generally not be allowed in front of the jury. Some version of Federal Rule of Evidence 404(b) exists in almost every state. You’re being judged by the reasonable man standard: What would a reasonable and prudent person have done, in the exact same situation, knowing what you the defendant knew at the time? There are work-arounds and some state supreme court case-law precedents have worked to reverse this in the past, but that’s not yet universal and didn’t apply in Montana. The jury in Stiffler’s case was never allowed to know Henry Johnson’s savage criminal background.

Be prepared to take the witness stand. In a self-defense case, who shot who is stipulated from the beginning: It comes down to why did the defendant shoot the person, and only the defendant can truly answer this. Stiffler handled himself very well on the stand.
Expect dirty tricks. Let’s say you were a store owner lawfully detaining a shoplifter when the thief suddenly pulled a knife and you had to shoot him. Expect opposing counsel to ask you something like, “Do you think someone deserves capital punishment for petty theft?” Sure enough, on cross-examination the prosecutor asked Stiffler if he thought Henry Johnson deserved to die for stealing mere property.
Stiffler’s answer was a right cross knockdown punch which brought this line of questioning to an abrupt end. “I didn’t deserve to die, either,” he said.

Don’t try to pinpoint your exact position in a fluid life-or-death situation. Trajectory evidence showed the men were placed slightly differently than Jim remembered, because the acute tunnel vision he predictably experienced made him unable to perceive background.
Don’t leave guns lying around the house where a burglar might take them — he might just have them in hand when you confront him. Johnson apparently never got to Jim’s SIG or Remington, but Jim’s reasonable fear of such was an element in the case. He now carries on his person a Kimber Micro 9 most of the time and a 10mm GLOCK 20 when he’s in the mountains.

Don’t presume a self-defense immunity statute will keep you from being sued after you’ve been cleared by the criminal justice system. Quentin Rhoades tells me they have such a statute in Montana, but the plaintiff’s lawyers tried to get past this by arguing the shooting was negligent. Such statutes protect from lawsuits only those who intentionally fired in self-defense, and a negligence argument can circumvent the protection.

Don’t count on your homeowner liability insurance to protect you in a civil suit after a self-defense shooting. There is no such thing as a “justifiable accident.” An intentional shooting of another person is argued by plaintiffs as a “willful tort,” an intentional act that harms another. Read your homeowner’s or automobile liability policy — they usually expressly exempt the insurer for having to pay for a willful tort. Stiffler’s insurance company, because the plaintiffs alleged negligence instead of willful tort, paid off the $20,000 because it was much cheaper than going to trial on the negligence allegation. I also suspect the plaintiff’s counsel gratefully accepted the $20K, a pathetic “chump change” settlement in a world where verdicts for the plaintiff in wrongful death cases normally run into seven figures, because they knew they were unlikely to prove negligence at trial.

When you’re in such a situation, get the best lawyers for the job. The job in this case was not criminal defense, but affirmative defense. The best criminal defense lawyers got their reputation by getting off guilty people. The strategy for defending the rights of the guilty is almost 180 degrees opposite from the strategy needed in an affirmative defense case like this, where you need to show the jury while you did the act, you were absolutely correct in doing so. Rhoades and Siefert accomplished exactly that and gave Jim Stiffler and his wife their lives back.

Finally, consider joining a post-self-defense support group. I was already on board as a staff member with the Armed Citizens Self-Defense Network (www.armedcitizensnetwork.org) when I took this case. Stiffler didn’t have this kind of protection. You just saw how brutal a financial hit Jim Stiffler took to get his and his wife’s lives back. I had seen it before. And, sadly, we will all see it again.

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