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Notes -
In Newton, Massachusetts, a pro-Palestinian man got into a shouting match with a group of pro-Israeli demonstrators across a busy street. For some reason, though he was mostly exchanging words with a woman, he ran across the street and tackled a man named Scott Hayes, who was also part of the demonstration. While he had Hayes on the ground, Hayes -- who had a legal gun -- shot him in the stomach. Two other pro-Israeli demonstrators pulled the man off Hayes, and he was later brought to a hospital.
Hayes was arrested and charged with Assault and Battery with a Dangerous Weapon and Violation of a Constitutional Right Causing Injury. The only justification I can come up with for the latter is that it is the constitutional right of pro-Palestinian people to attack people supporting Israel.
Hayes will certainly plead self defense, but self-defense expert Andrew Branca at Legal Insurrection says it won't work. Basically the government's view is if someone has tackled you and is beating on you, it's not sporting to fight back with a weapon (i.e. deadly force). Think of government as the two guys who hold you while their buddy punches you.
This was all captured on video (linked in the Legal Insurrection article); there's really no doubt as to the course of events.
To add insult to injury, the pro-Palestinian man has not been charged.
(Hayes, BTW, is reportedly not Jewish)
According to KassyAkiva, the Violation of Constitutional Right Causing Injury charge was not read during the arraignment. Still can be added in, but not including it now is more typically a sign it's been dropped. May have been thrown in at arrest, charitably out of mistaken understanding of events, or less charitably just to spice the news coverage -- no small amount of mainstream coverage heavily contradicts the clear video.
Hayes was allowed (5k USD) bail, albeit with a GPS monitor and curfew. But it's a long way from Kessler, where it took over a week to arrest someone who had far less clear evidence of legitimate action.
As for Branca's analysis, in normal states, I think the situation is more complicated than Branca suggests. To quote from Massad Ayoob:
That doesn't make it a slam-dunk, given the presence of allied protestors, but it can definitely aid -- once downed by a surprise attack, both juries and caselaw are . But Massachusetts caselaw is especially messy here, his prosecutor is famously bad on self-defense of any kind (in fact, was the prosecutor in Caetano!), and the jury pool is gonna be a clusterfuck.
On the flip side, Massachusetts is one of very few states where prior bad acts by an attacker unknown to the person claiming self defense not only may be used at trial, but must in some cases. The falls outside of the realm where it would be clear reversible error to exclude unless the state disputes who was the "first attacker", but there's still a strong precedent to work with. And the attacker is, unsurprisingly, a piece of work.
But, again, Massachusetts juries, so not a great situation.
I don't think prior bad acts are going to matter. Massachusetts has a very strong form of proportionality; you have to use the amount of force necessary and no more. The jury instruction disclaims it being Shylock-style exactitude, but I suspect the prosecutor tries to make that case anyway. Mostly it's going to come down to shocking the conscience of the jury about SHOOTING AN UNARMED PERSON.
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