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Originally Posted by RsqVet
HOWEVER a self defense argument is based on the total situation, you have recounted only the moment of the shot. By similar logic I could go and provoke a fight, and then draw, fire and claim self defense....
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It's hard, IMO, to say that Fish provoked a fight. Again from his appeal brief:
"...As Fish was coming out of the canyon, he was suddenly met by Kuenzli’s
two unleashed and aggressive dogs. The dogs charged at Fish. Fish felt threatened and cried out, drew his weapon and fired once to scare the dogs off. Neither of the dogs were injured and they scattered momentarily, but Fish was then confronted by a man (Kuenzli) running down the trail, flailing his arms, and yelling: “why did you shoot my dogs?!” The man was rapidly descending on Fish, from the high ground. [R.T. 4/26/06 , 60] The man screamed that he would “kill” Fish. [ Id. , 75]. Fish described that man’s eyes as “crazy” and himself as “terrified.” Fish warned the man to stop, but he did not...."(emphasis added)
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Originally Posted by RsqVet
...he had a stick in his hand, yet chose to drop that, and fire a "warning shot"....
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Yes he had a stick. But he was menaced by two aggressive and apparently uncontrolled dogs. One could easily conclude that a stick was of no use under such circumstances. I think I'd judge a stick to be inadequate against two aggressive dogs.
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Originally Posted by RsqVet
...I was hardly impressed with his statements, and think he really could have made some better choices...
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You're entitled to your opinion, but I think you're wrong.
Fish had but moments to assess the situation. He was confronted first by two aggressive and apparently uncontrolled dogs. He was then confronted by a larger, younger man running downhill toward screaming death threats, apparently ignoring Fish's gun and warnings to stop; and Fish still had the dogs to perhaps contend with. He had to act and act quickly.
As Mr. Justice Oliver Wendell Holmes wrote, "Detached reflection cannot be demanded in the presence of an uplifted knife."
In any case, the court of appeals found sufficient defects in the trial to toss out the conviction.