Why punish somebody for refusing to be a victim?

[Photon Guy]

Here the son of a grocery store owner successfully stops a bad guy who held the place up and he has to go before a grand jury and possibly face charges. Why punish somebody for refusing to be a victim?

https://www.youtube.com/watch?v=tKUFbvD5KRQ

[Doyle]

Because in some states, criminals have as much "rights" as the good guys. That is why I refuse to live in such a place.

[Photon Guy]

This took place in Houston, Texas where supposedly that's not the case.

[kilimanjaro]

There is a legal process to be followed when someone is killed, whether it's murder or self-defense. As long as the clerk didn't execute the robber, he should be cleared of any charge.

[wogpotter]

I think you're misunderstanding the purpose of a trial.
A trial determines guilt, or not, of an accused. There's no punishment until guilt (or lack of it) is determined at trial.

[jnichols2]

Because the government wants us to be "good victims".

Good victims make good voters and docile subjects.

People who stand up and defend themselves are bad for political business.

That's why our society thinks highly of the woman found raped and strangled, and tries to imprison the one prepared to shoot the poor rapist.

Texas is a fairly conservative state, but the large cities are liberal dens.

[OldMarksman]

Posted by Photon Guy:

Here the son of a grocery store owner successfully stops a bad guy who held the place up and he has to go before a grand jury and possibly face charges. Why punish somebody for refusing to be a victim?

No one is being punished.

It is rather routine for homicides in Texas to be referred to Grand Juries. It would seem likely that a "no bill" will be returned, if it hasn't been already..

Posted by Doyle:

Because in some states, criminals have as much "rights" as the good guys.

Well, if you are referring to the fact that in some states no civilian is permitted to carry a gun, you may have a point.

But that isn't the case in this incident, and if it were, that would not address the question.

Posted by kilimanjaro:

There is a legal process to be followed when someone is killed, whether it's murder or self-defense. As long as the clerk didn't execute the robber, he should be cleared of any charge.

Good answer.

The incident occurred in September of 2014. I have found nothing on the outcome of any legal proceedings.

[Doyle]

This brings up a good point which is now working its way through the Florida legislature. Fl, like TX is a "stand your ground" state. That removes the duty to retreat and removes fear of prosecution if the shooter is genuinely in fear of grave danger. However, what is unclear in the statute of both states is just who has the burden of proof. The whole stand-your-ground law movement was started precisely to prevent someone who, having defended himself lawfully, from having to go through the whole money-sucking trial process. In the case of FL, the courts have been deciding that the shooter has the burden of proof.

There is pending legislation to change that to where the prosecution would now have burden of proving that the SYG defense is improper.

[Photon Guy]

No one is being punished.

It is rather routine for homicides in Texas to be referred to Grand Juries. It would seem likely that a "no bill" will be returned, if it hasn't been already..

Having to go to trial, having to go through all the trouble of going before a Grand Jury, that in and of itself is a punishment.

[Photon Guy]

Because in some states, criminals have as much "rights" as the good guys.
Well, if you are referring to the fact that in some states no civilian is permitted to carry a gun, you may have a point.

Well as absurd and messed up as this is, I know cases of people getting in trouble for defending themselves without guns. Lets say you're involved in a self defense incident and you don't have a gun, lets say you beat up the bad guy with your bare hands, I know cases of people getting in trouble for that.

[OldMarksman]

Posted by Doyle:

...stand your ground" state. That removes the duty to retreat and removes fear of prosecution if the shooter is genuinely in fear of grave danger.

The actor's having been "genuinely in fear" may be necessary, but it is not sufficient. There must have been a basis for a reasonable belief that deadly force had been immediately necessary.

However, what is unclear in the statute of both states is just who has the burden of proof.

In Texas, the State must prove that the use of force did not constitute necessary self defense.


The purpose of the Grand Jury is to make a recommendation regarding criminal prosecution.

I see nothing in the news about criminal charges against Usman Seth.

The whole stand-your-ground law movement was started precisely to prevent someone who, having defended himself lawfully, from having to go through the whole money-sucking trial process.

Actually, the purpose was to eliminate the need for a defendant in a self defense case to show that he had considered all reasonable means of safe retreat.

The so-called "stand your ground" law in Florida does contain a provision for a defendant to go to court before trial and try to present evidence sufficient to stop further prosecution and/or civil litigation.

[OldMarksman]

Posted by Photon Guy:

Having to go to trial, having to go through all the trouble of going before a Grand Jury, that in and of itself is a punishment.

No. That's due process.

Well as absurd and messed up as this is, I know cases of people getting in trouble for defending themselves without guns. Lets say you're involved in a self defense incident and you don't have a gun, lets say you beat up the bad guy with your bare hands, I know cases of people getting in trouble for that.

It's not clear what you mean by "getting in trouble for defending themselves without guns".

The use, or the threat, of either non-deadly physical force or deadly force is unlawful unless it is justified. Deadly force is not limited to the use of firearms. A blade, bludgeon, or even a Cross pen can be deadly weapon.

And if someone uses more force than was necessary, such as "beat up the bad guy with your bare hands", that is not lawful self defense.

The determination of justification may be made by the charging authority, by a Grand Jury, or by a trial jury.

Until the facts have been evaluated, a claim of self defense is just that--a claim. It does not establish that the threat or use of force was necessary or proper.

[Photon Guy]

The use, or the threat, of either non-deadly physical force or deadly force is unlawful unless it is justified. Deadly force is not limited to the use of firearms. A blade, bludgeon, or even a Cross pen can be deadly weapon.

Sure, and bare hands can be deadly too.

And if someone uses more force than was necessary, such as "beat up the bad guy with your bare hands", that is not lawful self defense.

Well if you continue to beat on a bad guy after he's down and no longer a threat then you're using more force than necessary. In that case you're using excessive force. But to punch or strike the bad guy while he still is a threat, that's not excessive and I've known cases of people who've gotten in trouble for that.

[carguychris]

Originally Posted by Photon Guy

Having to go to trial, having to go through all the trouble of going before a Grand Jury, that in and of itself is a punishment.

Agreed.

Additionally, after viewing the YouTube video a couple of times—but not having seen ALL of the surveillance camera footage without the YouTube edits, or heard the audio from the incident—I can understand why this case might be sent to a grand jury. Seth (the C-store owner's son) appears to keep firing at Abugalboush (the robber) after Abugalboush is on the ground, has dropped his weapon, and is raising his hands in what could be interpreted as a gesture of surrender.

One of the central premises of lawful self-defense is that justification ceases once the perpetrator is rendered incapable of pressing the attack, or voluntarily withdraws and makes a good-faith attempt to escape or surrender. At this point, the defender's actions may cross the line from lawful self-defense to vengeance (Google "Jerome Ersland"). However, in the confusion and stress of the moment, there must obviously be some leeway, as a reasonable person cannot be expected to instantly realize that the perpetrator is unable to fight and/or is trying to surrender.

The grand jury's job is to look at the totality of the circumstances and decide if charges are warranted.

[wogpotter]

No. That's due process.

Exactly!
Read my earlier post.

[Frank Ettin]

Originally Posted by Photon Guy

Here the son of a grocery store owner successfully stops a bad guy who held the place up and he has to go before a grand jury and possibly face charges. Why punish somebody for refusing to be a victim?

You obviously don't understand real life in the real world. And you apparently have no familiarity with the laws relating to the use of force or self defense.

The important thing to remember at the outset of any discussion of the use of force in self defense is that our society has, for hundreds of years, frowned on threatening another human or intentionally hurting or killing another human. Threatening someone or intentionally hurting or killing him is prima facie (on its face) a crime everywhere. However, our laws have long recognized that under certain limited circumstances a threat or an actual act of violence may be excused or justified.

You won't have the final say about whether your act of violence was excusable or justified self defense. That decision will be made by others after the fact -- the prosecutor and/or a grand jury and/or, if you're unlucky, the jury at your trial.

So let's take a general, high level overview of use-of-force law in the United States.

But first the usual caveats: (1) I'm a lawyer, but I'm not your lawyer; (2) This is not legal advice, but rather it's general information on a legal topic; and (3) this is intended as a general overview without reference to the laws of any particular State, and as such it doesn't consider specific state laws that might allow justification of a use of force in some circumstance not mentioned here.

Now let's look at the basic legal reality of the use of force in self defense.

1. Our society takes a dim view of threatening or using force against and/or intentionally hurting or killing another human. In every State the threat or use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.
   
   
   1. However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.
      
      
   2. Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.
      
      
   3. Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.
   
   
2. The amount of force an actor may justifiably use in self defense will depend on the level of the threat.
   
   
   1. Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --
      
      
      1. Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;
         
         
      2. Opportunity, i. e., the assailant was capable of immediately deploying such force; and
         
         
      3. put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.
      
      
   2. "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."
      
      
   3. "Opportunity" could be established by showing proximity, lack of barriers or the like.
      
      
   4. "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.
      
      
   5. Unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.
      
      
   6. A threat of force or the use of force may be legally excused or justified only for the purposes of stopping the threat. Once the threat has ended, the continued threat or use of force can no longer be excused or justified and may result in criminal (and civil) liability.
   
   
3. If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.
   
   
   1. Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.
      
      
   2. If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.
      
      
   3. Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.
      
      
      1. Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?
         
         
      2. In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.
         
         
      3. It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.
         
         
      4. It could also be another matter if you left the safety of your house to confront someone on your property.
   
   
4. Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.
   
   
5. Sometimes a defensive use of lethal force will have grave consequences for the defender, even when ultimately exonerated. For example --
   
   
   • This couple, arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.
     
     
   • Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.
     
     
   • Mark Abshire in Oklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal meat-grinder before finally being acquitted.
     
     
   • Harold Fish, also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.
     
     
   • Gerald Ung: He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted.
     
     
   • Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.
     
     
   • And note also that two of those cases arose in States with a Castle Doctrine/Stand Your Ground law in effect at the time.

Now, as to not saying anything to police, if you're going to claim self defense that might not be the best idea.

But Don't Say Too Much.

Call 911. Be the first to report the incident and do so immediately. If you don't report it, or if there's a long delay, you will appear to have a guilty conscience.

Then, having taken LFI-I with Massad Ayoob, spending time with him and helping with a class of his in Sierra Vista, AZ not too long ago, I'll go along with his recommendation for when the police arrive.

1. While one has a right to remain silent, clamming up is what the bad guys do. Following a self defense incident, you'll want to act like one of the good guys. You also won't want the investigating officers to miss any evidence or possible witnesses. What if the responding officers miss your assailant's knife that you saw fall down the storm drain? What if they don't know about the guy you saw pick up your assailant's gun and walk off with it?
   
   
2. At the same time, you don't want to say too much. You will most likely be rattled. You will also most likely be suffering from various well known stress induced distortions of perception.
   
   
3. So Massad Ayoob recommends:
   
   
   1. Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
      
      
   2. Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
      
      
   3. Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.
      
      
   4. Pointing out possible witnesses before they vanish.
      
      
   5. Then saying something like, "I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."

Pleading Self Defense is Very Different From the Common Lines of Defense to a Criminal Charge.

A lot of folks point to the "Don't Talk to the Police" video that is making the rounds on gun boards. But it is about a police contact in general. It works fine when you aren't claiming self defense, and it's up to the State to prove your guilty beyond a reasonable doubt. But things work differently if you are pleading self defense.

Basically --

1. The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But if you are pleading self defense, you will have admitted that, so we go to step 2.
   
   
2. Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. Depending on the State, you may not have to prove it, i. e., you may not have to convince the jury. But you will have to at least present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.
   
   
3. Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.

Let's go through that again.

In an ordinary criminal prosecution, the defendant doesn't have to say anything. He doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

If the crime you're charged with is, for example, manslaughter, the prosecution must prove that you were there, you fired the gun, you intended to fire the gun (or were reckless), and the guy you shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that you weren't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

So in such cases, it probably doesn't pay for you to say anything to the police, at least early on. Let them do the work of trying to amass evidence to prove the case against you. There's no reason for you to help.

But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. You will necessarily admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified.

So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. In some jurisdictions, you may not have to prove it, i. e., you don't have to convince the jury. But you will at least have to present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

Then it will be the prosecutor's burden to attack your claim and convince the jury (in some jurisdictions, he will have to convince the jury beyond a reasonable doubt) that you did not act in justified self defense. And even if you didn't have to prove self defense (only present a prima facie case), the more convincing your story, and your evidence, is, the harder it will be for the prosecutor to meet his rebuttal burden.

[OldMarksman]

Posted by Photon Guy:

But to punch or strike the bad guy while he still is a threat, that's not excessive and I've known cases of people who've gotten in trouble for that.

"While he's still a threat"? What does that mean?

One may lawfully use force if it is necessary. Your words were "beat up the bad guy". Sound like punishment, which is not lawful.

"Gotten into trouble"? Do you mean convicted of a crime?

[TXAZ]

This took place in Houston, Texas where supposedly that's not the case.

I wouldn't confuse the 4 left / far left leaning cities (Houston, Austin, San Antonio and Dallas) in Texas as gun friendly compared to the rest of the state. They are Democratic strongholds, but as a former governor opined, they're 'a few blueberries in a sea of strawberries'.
Harris County which Houston is part of, is overall centric and Republican.

[OldMarksman]

I cannot understand the thought process behind statements to the effect that in a "gun friendly" jurisdiction, a criminal investigation would not necessarily be conducted as thoroughly as somewhere else.

When someone is killed or injured, whether with a weapon or not, there generally has either been an accident, an act of negligence that does not rise to the level of gross negligence, or a crime, though not necessarily a crime committed by the user of said force.. Of course, that injury may take place as the result of justified force, such as necessary force employed in the course of preventing a crime, but with some exceptions, a crime has been committed or attempted by someone, or said use of force would not have been lawful.

Whether or not the actor was justified in threatening or using force is something that someone must determine. His self-identification as a "good guy", even it it is accompanied by his most fervent belief, will not suffice, anywhere in the country.

In many jurisdictions, the prosecuting attorney may decide whether there is reason to prosecute the actor. We understand from many discussions here that in Texas, it is evidently more likely than not that a homicide will be referred to a Grand Jury, even if the police believe that the incident involved lawful self defense.

In the case at hand, the news reports from September, 2014 indicated that the homicide would likely be referred to a Grand Jury.

If anyone is aware of whether or not that has happened, or of the outcome, it would be most helpful for that someone to let us know,

[TomNJVA]

Once again a beautifully written explanation Frank! You have helped me and I'm sure many others here with your well presented knowledge and experience on the principles of law and self defense.

TomNJVA

[Doyle]

When someone is killed or injured, whether with a weapon or not, there has either been an accident or a crime.

There is a 3rd option - legitimate use of force which is neither accident nor crime.

[OldMarksman]

Posted by Doyle:

There is a 3rd option - legitimate use of force which is neither accident nor crime.

But it cannot be "legitimate" unless there has been a crime, such as assault or burglary, or an act of or attempt to commit battery, burglary, robbery, murder, arson, etc., and that use of force was immediately necessary to defend against said crime.

[Frank Ettin]

Originally Posted by Doyle

There is a 3rd option - legitimate use of force which is neither accident nor crime.

And let me offer a different perspective.

1. An intentional threat or use of force by one person against another is always, on its face, a crime of one sort or another.
   
   
2. But various circumstances can relieve the actor (the person threatening or using that force) from criminal liability. For example --
   
   
   1. Consent (actual or implied): The surgeon who operates on you generally has your actual consent to cut into your flesh. The EMT who performs an emergency tracheotomy on an unconscious person will generally be considered to have that person's implied consent because of the exigent circumstances.
      
      
   2. Necessity: The person who has pushed someone out of the way of a speeding car will not be criminally liable for the unconsented to touching (a "battery"). It was a act necessary to save someone in imminent danger from injury or death.
      
      
   3. Privilege: The parent who physically restrains and carries off his young child in mid-tantrum in order to protect the well being of the child and the peace and well being of others is generally recognized under that laws as having certain rights to physically control his child.
      
      
   4. Self defense: Discussed at length in post 17.
   
   
3. What if it turns out that the use of force was not intentional? The fact that a use of force was not intentional might reduce or relieve the actor from some measure of criminal or civil liability, again depending on circumstances.
   
   
   1. A reckless act (sometimes referred to as "willful, wanton and reckless" or gross negligence) which results in the injury or death of another will often subject the actor to criminal liability. However, the penalties are usually less than for an intentional act of violence, and the actor can be held civilly liable to compensate the victim for the injuries. Recklessness is generally defined as acting in conscious disregard of the rights and safety of others.
      
      
   2. A negligent act which results in the injury or death of another will not subject the actor to criminal liability, but the actor can be held civilly liable to compensate the victim for the injuries. A decent, working, short-hand definition of negligence would be: "failure to use the level of care a reasonable and prudent person would under like circumstances, which failure results in damage or injury to another."
      
      
   3. An accident which results in the injury or death of another will not subject the actor to criminal or civil liability. An accident can be defined for these purposes generally as:

      1. An unintended, unforeseen, and undesirable event, especially one that causes harm, injury, damage, or loss.
      2. An unintended and unexpected event, especially one that is undesirable or harmful, that does not occur in the usual course of events under the circumstances in which it occurred, or that would not be reasonably anticipated.

   
   
4. Sometimes the circumstances relieving the actor of criminal liability will be readily apparent. Sometimes they will not be and will become apparent only upon extensive or involved investigation. Sometimes whether those circumstances existed will need to be decided by judicial proceedings.

[OldMarksman]

I have edited Post #20 to reflect Post #25 and address the matter of non-criminal negligence.

[Kosh75287]

Posted by Kosh75287:
Quote:
I guess it'll also depend on the ethnicity of the poor misunderstood alleged felon, the litigious propensities of his family, and the proximity of Jesse Jackson, Al Sharpton, or some other similar race-hustler.
That's pure speculation.

The ethnicity is known.

The "litigious propensities of his family" will not influence criminal proceedings.

Yes, it IS speculation, hence the verb "guess", in my assertion. PURE speculation? I wonder. I think recent news events have made clear that the prevailing attitude of proximal masses and the agitation level of the bereaved CAN factor into a decision to prosecute or even bring a case to the grand jury. Can anyone spell Baltimore?

The ethnicity was UNCLEAR to ME, hence the qualification.

The "litigious propensities of his family" will not influence criminal proceedings.

Let's hope not. Because none of the city's law enforcement agencies were involved, I might even say "PROBABLY not". But if you think every indictment occurs solely on the basis of evidence, and is utterly independent of the victim's family pressuring for said indictment in the form of threatened tort litigation absent an indictment (specifically, where city or state agencies appear culpable), I think you're living in a fantasy land. Now, in THIS case, it's difficult to see how the bereaved could exert a lot of pressure. But then, the race hustlers haven't chimed in yet (let's hope not EVER).

The defender MAY get no-billed, and I HOPE that he does. But that doesn't end the litigation. Wrongful death litigation could remain in the offing. If the whole thing goes completely south for the defender and he is found culpable "as a matter of law", he could lose everything. Might not constitute "criminal proceedings", but don't try and sell me on the point that he wouldn't be punished from further litigation.