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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)
The defense has to be proportional to the threat; deadly force can only be used if the perpetrator has a reasonable threat of death or serious bodily injury (serious usually meaning permanent disability, not a black eye). Based on the information available, if he hadn't been shot and were arrested instead, the charge would have probably been something like misdemeanor battery, which wouldn't usually even merit jail time. If the facts come out that the guy were being wailed on, he may have a good defense, but if it's a mere scuffle as described in the article, it's a long shot that should get pled down. This may seem unfair, but for public policy reasons the state prefers that scuffles don't escalate to shootings.
I think the threat posed by an attacker doesn't just mean the attack that has already happened, but what a reasonable person might believe will happen imminently if the attacker is not subdued. This is especially relevant when the ability to change the situation may decrease significantly.
For example, choking someone with a noose or a garrote for a minute or so will not produce any serious lasting injury but continue on another two minutes and it's irreversible brain damage. So I think the question is, if someone has you in a garrote, is it reasonable to perceive this as a threat of serious injury even if, as yet, they haven't crossed that line? And again, especially relevant given that the victim doesn't have a ton of time to wait and see before it's gonna solely be the aggressor's choice whether to stop before or after the line.
I don't know the intricacies of self defense law, but I think it's more than merely unfair if the law demands victims put themselves at the mercy of an attacker.
The standard is only concerned with what is reasonably likely to happen, not with worst case scenarios. The likelihood of an attack with fists or tackling isn't reasonably likely to result in death or serious injury, absent some aggravating factor that isn't present here. That's pretty much black letter law in any jurisdiction.
Are you sure tackling isn’t reasonably likely to result in serious injury where concrete is concerned?
Context also matters. I am reminded of Bernie G. The miscreants were menacing and the implied next step was reasonable to infer. Same here where a dude decides to run through traffic and tackle you. There isn’t a ref blowing the whistle.
If you had statistics suggesting that tackling onto concrete presented a risk of serious bodily injury or death comparable to being shot or stabbed, then you could call someone like an epidemiologist at trial to testify to that effect. And it would be a fairly strong defense, if tempered by the fact that the prosecution would call their own expert reaching the opposite conclusion. That's not relevant here, though, because Hayes shot the guy after he was tackled. You're only privileged to defend yourself out of apprehension of an imminent threat, not out of a response to a past threat. Once Hayes was on the ground he wasn't getting tackled again, and any argument about the supposed dangers of being tackled on concrete is moot.
The point is that anyone crazy enough to run through traffic and tackle someone onto concrete is someone who while the scuffle is on going is crazy enough to do a whole sort of things. That is shooting someone seconds after that happens is reasonable self defense.
Go ahead and make that point at trial... and prepare to get destroyed on closing. Seriously, if I'm the prosecutor in this case, I can pretty much ignore whatever other arguments you've made (or just hit on them briefly) and run that point to the end of its tether. "Is someone acting crazy? Who knows what they're crazy enough to do; better shoot them before anything bad happens. The defendant wants to convince you that this is a reasonable course of action." I'd then go on to describe a series of examples of "crazy" behavior and suggest that your argument would require them to view any shooting or the perpetrator as justifiable self-defense, and the examples would get progressively more absurd. I'd characterize the entire defense as "people should be able to shoot anyone who looks suspicious", and by the end there's the possibility that the jury would forget that the defendant had even been attacked. If this is "the point", then it's not a very good one.
This is just blatantly strawmanning. The person just wasn’t looking suspicious. The person just wasn’t acting crazy. The person committed a physical attack after engaging in a pretty crazy (ie out of the ordinary) prelude to the physical attack (ie this wasn’t a situation where two guys were squaring off — a guy ran a cross a street to tackle another guy).
If you are worried about slippery slopes suffice to say we can cut the slope pretty earlier. Don’t engage in crazy attacks and self defense then would not be credible.
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