In the first article of this series, I provided the precedent–there really is no Maryland law directly bearing on the case–that may determine the outcome. By bringing this case in the first place, the prosecutor is seemingly following in the high-heeled footsteps of Angela Corey who, Ahab-like, pursued her white whale in the George Zimmerman case. Fortunately, rational principles of self-defense were vindicated in that case. It remains to be seen whether that will be the result in the Matthew Pinkerton case.
Keep in mind, gentle readers, that I do not have all of the facts in this case. I’ve searched the Internet for police and legal information, including the charging affidavit, and have had no luck finding it. Unless it is delayed, the trial is supposedly scheduled to begin in February, so presumably more information will become available in that process. What this means is that I can, for the moment, analyze the case based only on the information I have. Suffice it to say that my analysis and views may certainly change based on future revelations.
Army Paratrooper.org does have some statements from Michael Pinkerton (Matthew’s brother who was present at the time of the shooting) and Jessica Pinkerton (Matthew’s wife). Michael said:
The night in question Matt feared for his safety. After closing the door on the gentleman, he [Mr. Green] chose to barge thru and enter the house. Matt told him several times to get out but he insisted to charge forward. Thus resulting in him getting shot. The press is making it sound as though Mr. Green and Matt knew each other well but that was not the case.
The Green family and their friends have been making life difficult for the Pinkertons:
Since that night, we sit on the front porch as we always did, to enjoy our coffee and a cigar after dinner. The only difference is, now we occasionally have a drive by of friends of the guy shot yelling out ‘murderer.’ we are worried that once the trial begins, that if they are doing this now, what will it be like then?
Michael also explained that Green was wearing a hoodie, which could easily have allowed him to conceal weapons:
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.
Why was the case filed? Michael:
feels as though had it not been an election year, and the fact that the new gun laws went into effect in Maryland October 1st, that this would not be happening.
Green’s relationship with Jessica appears to be substantially different than some have suggested. While Matthew was stationed in Korea, Jessica’s brother had a serious car accident and was in a coma. “Green was a friend of her brother who, along with other friends, volunteered to help Jessica with the kids and her brother.”
According to Jessica:
His group of friends were very supportive to me and my mother and my husband was overseas (Korea) so I was a full time, employed, single mom of two boys, and my only help with the kids for after school was in a coma. I was also attending college full time online as well. These friends, including Green, began spending time at my home allowing myself to trade shifts at the hospital with my mom (my father passed in 2010). The only family here is my mom, brother, me Matt and the boys.
Most of the friends began fading off the longer my brother remained in the hospital. Green, however, began fighting with his mom and needed a place to sleep. Matt and I have opened our doors to multiple people who needed a place to stay over our 15 years of marriage, so I allowed him to stay here. I also had a single mother with her two girls living here at the time as well.
Jessica’s brother eventually came out of the coma and was transferred to a rehabilitation facility. Some have suggested that Jessica was allowing Green to “party in the basement,” but Jessica’s explanation is different than some have assumed:
I had finished my semester, and took the following semester off, so now it was all about his convenience [Mr. Green], he would have his friends over and they would party in the basement.
It sounds like Green was taking advantage of Jessica, which she echoed:
They took advantage of me long enough.
Matthew was due to return home soon, and she asked all of her houseguests to move out. Some did. Green did not:
When Matthew returned home, the mother and her two children had already left, but Green remained, so he asked Green to leave. At this point, Jessica informed me that ‘Green punched about 15 holes in the wall.’
‘Basically, Green was angry that Matt took away his ‘life’ when he returned home and told him he was no longer welcome here. 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.
Peter O’Neill, Pinkerton’s attorney, added detail:
When Jessica Pinkerton tried to end the relationship, Green continued to pursue it.’
Mr. Green arrived early on Sunday morning and staked out the Pinkerton residence. When he knocked on the door, Matthew retrieved his handgun, a Glock 17 9mm, and put it in his back pocket, as he was not expecting a visitor that evening.
Upon opening the door, Green identified himself and demanded to see Jessica. Matthew advised Mr. Green to leave and that he had no business being there. When Matthew shut the door to diffuse the situation, Mr. Green broke the door in.
After being warned to leave, Mr. Green was shot once as ‘he was motioning to his waist band flipping his shirt.
It appears that the defense will argue that this was not a jealous husband shooting a man who had an affair with his wife. Rather, this was the case of a man taking advantage of Jessica’s kindness and hospitality, imagining a relationship that didn’t exist and attempting to impose his fantasies on her. It appears that Green had no property interest or right in Pinkerton’s home, and had, before the night of the shooting, been forced to leave once and for all.
It also appears that until the moment Green broke into the home after being told to leave, Matthew Pinkerton, despite being armed, demonstrated no intent to use his handgun, and handled the situation entirely appropriately. We still don’t know the exact time frame of the incident, but it appears that Matthew simply had no time to call the police, and even if he had, there would have been insufficient time for them to arrive to deal with Green.
O’Neill also provides an important factor in asserting that Green appeared to be trying to manipulate something at his waist, which–along with Green’s anger, his breaking into the home and charging Pinkerton, presumably caused Pinkerton to fear for his safety and fire.
We can expect the prosecution to try to portray Pinkerton as a jealous, cuckolded husband, in a rage and determined to murder Green. It appears, however, that the testimony of everyone involved–and Matthew’s actions–will not support these contentions. How could he have known that it was Green at the door? Despite twice having words with Green, Pinkerton did not touch him, did not shoot him, reasonably told him to leave, and closed and locked the door. It was Green, by choosing to break in the door and advance on Pinkerton, that sealed his fate.
The prosecution will have to demonstrate convincingly that Pinkerton intended to kill Green because of a supposed sexual relationship between Green and Jessica, but even if Green did have an affair with Jessica, Matthew demonstrated his integrity, responsibility and restraint by not shooting him when he had the chance. He did not do so much as lay a hand on Green. Apparently Matthew confronted Green twice: when he told him to leave and Green responded by punching multiple holes in the walls, and during Green’s 2 AM attack, when instead of shooting him, he told him to leave and closed the door.
None of this demonstrates criminal intent. None of it fulfills the elements of the offenses, and it surely does not support the theory the prosecution is likely to present to the jury.
Let’s deal with these primary questions I raised in the first article from the points of view of the prosecution and the defense. Keep in mind yet again gentle readers that Maryland State Law provides no clear guidance on these issues. There are precedents that bear on them, but precedents are guidelines, not law, and even though Pinkerton–if convicted–may eventually be exonerated by that precedence on appeal, he would almost certainly have been dishonorably discharged from the military, spent years in jail, and incurred legal expenses he would likely never be able to repay in the process.
Is it inherently reasonable to arm oneself before answering an unexpected 2 AM knock on the door?
Obviously, the prosecutor–Glen Neubauer–is either an anti-gun zealot, is riding what he sees as a helpful political wave, or in the single-minded pursuit of what he sees as an easy win, is indistinguishable from an anti-gun zealot. He will surely argue that the mere fact that Pinkerton armed himself prior to answering the door is evidence of a depraved mind, perhaps even of premeditation. After all, what reasonable person grabs a gun to answer the door? He obviously intended to kill whoever was at the door. Why else would he grab a gun, a Glock 17 with a “high-capacity” magazine? The prosecution will almost certainly try to paint Pinkerton as a jealous, shamed husband, anxious to kill the man who had an affair with his wife. He may even suggest that Pinkerton knew that Green was at the door, or suspected that he would be.
The defense will argue that it is not only inherently reasonable for any law-abiding citizen to arm himself to answer an unexpected 2 AM knock on the door, it is entirely constitutional and lawful to do so. Heller settled that question (at least until a leftist president is able to pack the Supreme Court with anti-Constitution zealots). In such cases the type of weapon or its ammunition capacity are meaningless. The Glock 17 is precisely the kind of common, usual handgun Heller referenced as being Constitutionally protected. What matters is what Pinkerton did with the weapon, which, during the verbal confrontation with Green, was obviously nothing. He demonstrated his good will and lack of criminal intent by not in any way making the handgun part of the confrontation, a confrontation started by Green, who after all, came to Pinkerton’s home and demanded entry where he was not welcome or lawfully allowed to be.
In fact, Pinkerton’s reasonable fear in arming himself was vindicated by Green’s actions in breaking down the door and attacking Pinkerton. It was his foresight in arming himself and his effective and proper use of the handgun–he fired only two rounds–that protected himself, his family and his guests from criminal attack.
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?
The prosecution will try to paint Green as completely reasonable and non-threatening in coming to Pinkerton’s home at 2 AM and demanding to see his wife. He will try to paint Pinkerton as insane with jealousy and just waiting for an opportunity to kill Green, an opportunity he provoked by denying Green the simple opportunity to speak with Mrs. Pinkerton. After all, shouldn’t reasonable adults simply talk out their problems?
If this sounds like the kind of backwards logic often employed by defense attorneys–“your honor, my client was just standing there, minding his own business while admiring his knife, when John Smith ran around the corner and right into the blade–27 times”–it is. As in the Trayvon Martin case, the prosecutor has put him self in the position of arguing that the actions of a criminal intent on breaking into a home and destroying a family are reasonable and proper. Imagine arguing that it’s entirely reasonable and lawful to come to the home of another man and demand to see his wife at 2 AM, and being denied entry, to break down his door and attack him. He will actually have to argue that one must allow a criminal home breaker/home wrecker free reign to work his will.
Again, remember that I don’t have direct knowledge of exactly what was said, however, it appears that Pinkerton, armed as he was, was sufficiently in command of himself as to not brandish or otherwise use the handgun. He employed only speech and did not assault Green. He obviously denied Green entry–which is an entirely reasonable thing for anyone to do with an unwelcome intruder at 2 AM–the time is important–and closed and locked his door, expecting that Green would leave. This too is entirely reasonable and not in any way criminal or excessive. Pinkerton did not escalate the situation, nor did he in any way make it worse. If Green chose to simply turn around and leave, he would certainly have lived that day, and would probably be alive today.
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?
This is one of the largest land mines for the prosecution. He is going to have to argue that Pinkerton must have somehow known that Green was going to break down his door and attack him, and that he did not call 911 so that he could use his handgun, the handgun no reasonable person would ever think of carrying while answering a 2 AM knock on the door, to kill him. He will also have to argue that once one calls 911, one somehow loses the right to act to defend their life because their life is, from that moment, in the hands of the police. He might even go so far as to suggest that if a police dispatcher tells someone not to resist, or to wait for the police before doing anything, this has the force of law and would render any affirmative action they took in defending them self or others, illegal.
This, on its face, is insane. The only reason a prosecutor could make such an argument is that Maryland is predominantly an anti-gun–and in this case, anti-self-defense–state, and provides no specific legal protection for the law-abiding citizen trying to protect his own life within the boundaries of his own home.
Obviously, calling 911 is not a legal prohibition on self-defense. In many parts of the nation, 911 calls often go unanswered, and if they are answered, it can take the police a very long time to arrive. Consider Sandy Hook Elementary School, where the 911 call was promptly answered and dispatched, and every officer in the area did their best to respond to the school as quickly as possible. It took 27 seconds from receiving the 911 call until the call was sent via radio to officers. It took the police 14 minutes and 47 seconds from receiving the radio call before the first officer was able to enter the school. In Detroit, when 911 calls are answered at all, it takes 58 minutes for the police to arrive, and this is for life-threatening emergencies. Even if one were able to reach the 911 dispatcher, and even if the police were able to arrive within five minutes–an extraordinarily short response time–one could easily be severely injured or killed in far less time.
In addition, the police have no legal obligation to protect any individual citizen. Police forces exist to deter crime by their presence and to investigate crime after it has been committed. They will be happy to arrive at the scene of your murder and collect evidence in the hopes of eventually convicting someone of that crime, but they cannot be sued for failing to prevent your murder, or for deciding they don’t care enough to pursue the investigation. In many places, the police don’t recognize even a moral obligation to help. Even if police officers ignore a 911 call for help, or even stand by and watch as a madman with a knife slashes you and others, they cannot be held liable. The Supreme Court case–it’s the law of the land–is Castlerock v. Gonzalez. I wrote about it for PJ Media in December of 2011. And in the obamaconomy, police forces are losing manpower. Most people would be shocked to learn how few police officers are available in their community at any time of the day or night.
After telling Green to leave and locking him out, Pinkerton reasonably hoped he would leave. It was only when Green broke down his door and charged him that Pinkerton was forced to confront the fact that Green had broken into his home and was attacking him. He had no time to call 911, and even if he was in the middle of speaking with a police dispatcher, no reasonable person could be expected to simply do nothing when a raging criminal was breaking into their home and attacking them.
Even if Pinkerton had been able to reach the police and a dispatcher assured him officers were on the way, that does not, by law or common sense, relieve him of the necessity to protect his own life, nor does it legally obligate him to do nothing to defend himself, his home or his family. An answered 911 call, and a dispatcher’s assurance that the police are aware of the call and are responding is nothing more than an implied promise that something, at some point in the future, might be done.
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?
This will be the potentially strongest part of the prosecution’s case. From everything I’ve been able to find, Green was unarmed when he attacked Pinkerton. The prosecution will argue that because he was unarmed, Pinkerton was obligated to do nothing more than to defend himself with his bare hands. On the surface, and as long as one does not think too hard, this makes a kind of sense. Particularly if one were engaged in mutual combat, the requirement to meet force only with similar force applies. Remember that Maryland law does not give the law-abiding the presumption that anyone that breaks into their home and attacks them is there for evil purposes. The law doesn’t presume that criminals breaking into the homes of the innocent are up to no good and that if they end up gravely wounded or dead, it’s their fault.
The prosecution will do its best to forget the facts of the case and argue proportionality. In the use of deadly force, there are three primary–and one related–factors to consider: means, opportunity, jeopardy and proportionality. The prosecution will have to fudge several of these.
“Means” basically means that the attacker has the means to cause serious bodily harm or death. This can be nothing more than bare hands. The prosecution will deny that Green had the means. In other words, he’ll lie.
“Opportunity” means that the attacker was actually present, close enough to the intended victim or victims, to cause serious bodily harm or death. They had the opportunity to do it if they chose.
“Jeopardy” means that the attacker chose to take advantage of their opportunity and was actually about to cause the victim serious bodily injury or death, or was actively trying to do it. One need not wait until the knife is at arms length and beginning its downward arc into one’s head before trying to stop the attack. That a reasonable person would believe that the attack was imminent, or actually in progress is the legal standard.
“Proportionality” is the related issue. Generally, one must meet force with like force. If someone throws a snowball at you, you are not justified in shooting them. If someone pushes you and doesn’t appear about to continue to attack you, you are not justified in grabbing a baseball bat and breaking their leg. In the Pinkerton case, the prosecutor will argue that Green was unarmed, therefore there is no set of circumstances, no combination of means, opportunity and jeopardy, that would have allowed deadly force.
The defense will argue that even unarmed, Green represented not an imminent, but an actual, in-progress threat of serious bodily injury or death. He came to the Pinkerton home crazed with jealousy, determined to take Jessica Pinkerton for himself one way or another. He came at 2 AM, and had almost certainly been watching the home before he approached, in effect, stalking Jessica. He initiated the verbal confrontation with Matthew Pinkerton, and when denied entry into the home, blew his top. In a blind rage, he broke into the home and charged Matthew, who did not have time to carefully examine Green head to toe to determine what kind of weapons he might have. Seeing Green reaching for his waistband—where people secret weapons–he had to act. Waiting for Green to present a weapon would have been too late. Green would already be on top of him, and Pinkerton would have been unable to see what he had in his hands.
Even the U.S. Supreme Court, in Brown v. United States (1921) Justice Holmes observed that “detached reflection cannot be demanded in the presence of an uplifted knife.” Holmes used the facts of the case at hand, but the legal principle is simple: the reasonable man is not expected–nor required by law–to be able to meticulously analyze what is happening when under criminal attack with the time and hindsight available to judges months or years later . If he reasonably believes he is facing seriously bodily injury or death, he may use deadly force without retreating or trying to apply some degree of lesser force. Holmes added:
The law has grown, and even if historical mistakes have contributed to its growth, it has tended in the direction of rules consistent with human nature. Many respectable writers agree that, if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that, if he kills him, he has not succeeded the bounds of lawful self-defense. That has been the decision of this Court… Therefore, in this Court at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant, rather than to kill him.
Pinkerton–like any man defending his family and his home–had time only to use the most effective means at hand to stop a raging criminal’s attack. Even unarmed, Green was very dangerous. Single blows cripple and kill people every day, and Green had demonstrated his rage and potential for violence by punching holes in Pinkerton’s walls in the recent past. There were also items in the Pinkerton home–in any home–that Green could have picked up and used as weapons. If Green got by Matthew Pinkerton, he was sufficiently strong to have seriously injured or killed Jessica—virtually any man is strong enough to badly hurt or kill any woman with their bare hands.
Matthew Pinkerton did not have the time to carefully consider five or six different courses of action, to weigh their benefits and drawbacks. He did not have the distance that would have allowed him to safely see precisely what Green had in his hands. He had seconds to stop the charge of a raging madman, a man who broke into his home at 2 AM, intent on harming him and/or his wife. He did not wildly shoot up the neighborhood, but fired two rounds that did precisely what Pinkerton intended them to do: stop the attack. Pinkerton did not intend to kill Green, but he knew he had to stop him. What man in the same circumstances would do less?
In order to win this case, the prosecutor must trick the jury into ignoring most of the facts. He must paint Kendall Green as an innocent victim. The jury must be willing to disregard the fact that it was Green that caused everything in this case to happen. He chose to come to the Pinkerton’s home at 2 AM. He chose to verbally confront Matthew Pinkerton. Denied entry and locked out, he chose to break down the door, to criminally enter Pinkerton’s home in a rage. He chose to attack Pinkerton, probably to get at Jessica.
The jury will have to believe that Green had only the purest intentions, that he wanted only, on bended knee, to implore Jessica to chose him over her husband (in their own home at 2 AM). They will have to believe that he intended no harm to anyone and that his breaking into the Pinkerton home and charging Matthew Pinkerton were the entirely reasonable actions any man in a similar situation would and should take.
The prosecutor will have to argue that it is inherently unreasonable to arm oneself in response to an unexpected knock on the door at 2AM. If the prosecutor is able to empanel an anti-gun jury–always a possibility in Maryland–they might win on anti-gun sentiment alone. The jury will have to be convinced that a man that had already been rebuffed by Jessica, and who obviously wasn’t willing to take no for an answer, had every right to continue to pursue her and to attack her husband–in his home–in that pursuit. After all, Green was strung along by Jessica. He was merely upset and in love, and who hasn’t been upset and in love? He wasn’t really responsible for his actions.
The prosecutor will have to argue that anyone that fails to call 911 while under direct criminal assault is in some way deserving of being charged with murder, for they obviously have no right whatever to self-defense, not even at 2 AM in their own home.
The jury will have to be willing to believe that when a criminal–for that is what Green indisputably became the moment he forcibly broke into Pinkerton’s home–breaks into their home at 2 AM, is confronted with a handgun pointed at them, and choses to charge them, when that attacker’s hands are inches from their throat, they must somehow focus entirely on calling the police, mildly submitting to criminal assault. They must be willing to allow that criminal to have their way with them and their family.
This case will have serious repercussions for self-defense, particularly in Maryland. If Pinkerton is convicted of anything, what Maryland citizen can believe that they too will not find themselves facing decades in prison for defending their own homes and their own lives?
A trial-level case in one state generally has little or no effect on the law in other states, particularly states with castle doctrine and stand your ground laws. However, if the Trayvon Martin case taught us anything, it is that politics often override law, a fact about which George Zimmerman is more than aware.
Expect anti-gun forces to adopt this case and to ride it as far as it will carry them. A conviction will be used by them as a means of keeping anti-liberty laws alive in Maryland, and as a club to beat down freedom elsewhere.
I’ll continue to report on the case as things develop.