Disparity of Force: Four v three+.380

[ELB]

Summary as I understand it;

On 17 Jan 2010, at 0230, in Philadelphia, a group of three (two men, one woman) ended up in a verbal altercation with a group of four (four men). Shouting and insults. The group of three moved along, followed at 10 feet or so by the group of four. More insults. Some testimony that the group of three asked and told the larger group to back off, sometimes rudely. The larger group is focused on one individual of the smaller group, a man named Ung.

Video (the incident happened in front of a Fox news studio, and apparently they had street cams) shows one (Kelly) of the group of four moving out into the street to come up parallel with the smaller group, then rushing in twice towards them. The woman testifed that she intercepted him once when he had his arm cocked as if to strike. She also testified that he yelled he was going to kill Ung. The second time Kelly rushed in, Ung tried to kick him away, backed up, and pulled out a gun.

One (DiDonato) of the other members of the larger group then lunged towards Ung. He later testified that he was trying to "defuse" the situation. Ung testified that DiDonato said,"Who you going to shoot?" Ung tried to kick DiDonato, but Didonato grabbed his foot, and his shoe or boot came off. Ung then fired and hit six times with a Kel-Tec.380, empyting it. DiDonato went down.

Apparently two of DiDonato's friends left the scene. Ung stayed, apparently put his pistol in his pocket, and called 911. Some Philly police officers were nearby, heard the shots, and one of them testified they were on the scene in "five seconds." He also testified that witnesses pointed out Ung as the shooter, he put Ung against a wall, and he struggled and it took two more officers to handcuff him.

DiDonato lived but is somewhat paralyzed.

Ung was arrested, and the Philly DA charged Ung with the following at various times;
- Criminal Attempt - Murder, later changed to Criminal Attempt - Murder of the First Degree
- First Degree Aggravated Assault
- Simple Assault
- Possession of an Instrument of Crime with Intent to Employ It Criminally (I think -- I am going from abbreviations here).
- Recklessly Endangering Another Person
- Firearms Not To Be Carried Without a License
- Carrying a Firearms in Public in Philadelphia

The last two charges were "disposed of in a lower court," apparently because Ung had a license to carry a concealed handgun. The DA chose not to prosecute the charges of Simple Assault and Recklessy Endangering.

Ung pled self-defense.

The trial started on 9 Feb 2011 and ended 15 Feb 11. The jury found Ung Not Guilty on all counts after deliberating about 3.5 hours.

Some links:
http://www.philly.com/philly/news/20110 ... lking.html" onclick="window.open(this.href);return false;
http://www.philly.com/philly/news/20110 ... ected.html" onclick="window.open(this.href);return false;
http://www.philly.com/philly/news/20110 ... trial.html" onclick="window.open(this.href);return false;
http://www.philly.com/philly/news/20110 ... dazed.html" onclick="window.open(this.href);return false;
http://www.philly.com/philly/news/20110 ... r_man.html" onclick="window.open(this.href);return false;
http://www.philly.com/philly/news/116258729.html?c=r" onclick="window.open(this.href);return false;
http://abovethelaw.com/tag/gerald-ung/" onclick="window.open(this.href);return false;
http://abovethelaw.com/2011/02/breaking ... -shooting/" onclick="window.open(this.href);return false;

[OldCurlyWolf]

Smart Jury, but what took them so long? Should have been back in 15 minutes. Teach that DA to suck eggs.

[Beiruty]

The DA was aggressive and dropped more than 1/2 of the charges. A group of 4 following and trying to assult others with no provocation? The others tried to keep walk and leave the scene and they were followed? Bad things will follow. Was Ung drunk or had a lot of it, was it a factor?

Also Ung was lucky since no deadly weapon was deployed by his attackers.

There is a civil case coming. We are lucky in Texas cases of shooters in self-defense are protected from civil liability.

[seamusTX]

I'm sure these gentlemen are proud of their displays of mature adult behavior at 2:30 a.m., and probably Mr. Ung will pay off his legal bills some time around 2025.

- Jim

[b322da]

There is a civil case coming. We are lucky in Texas cases of shooters in self-defense are protected from civil liability.

I may be beating the old dead horse here, but whack away I will.

While what Beiruty says here may well be correct, in my opinion it is incomplete and possibly misleading to particularly new CHLers. The law provides that the shooter is immune from civil liability that results only if the shooting is justified under Chapter 9, Penal Code. The fact that a jury in the criminal case decides that in the case at hand the shooting satisfies the demands of Chapter 9 does not mean that the very same jury in the civil action would decide the same, given things like the differing burdens of proof in the two cases.

I am not suggesting that the same jury would hear both cases, but I use this as an example that a case can be so close in the minds of a jury that the difference between beyond a reasonable doubt and a preponderance of evidence can actually be meaningful. After all, it took the jury 3.5 hours to reach a verdict in the case being discussed. There must have been differences of opinion in the jury room.

This thread rightly points out that a civil case won by the defendant comes at a high price to him, if only in legal fees. My ultimate point here is that the cost may be even higher than his legal fees even though he has been acquitted or no-billed, and this must be kept in mind by all of us.

Elmo

[seamusTX]

It has been years now (4?) since the civil immunity provision went into effect in Texas. As far as I know, in that time, it never has been exercised or tested in court.

Texas also protects certain assets of individuals from seizure, including the person's homestead, means of livelihood such as tools, two horses, mules, or donkeys, and household pets. It isn't worth suing a person who does not have significant other assets.

That said, I think the notion that "you can't be sued" is dangerous. You can be sued, and the situation is full of legal gray areas and the possibility of getting a jury with the collective IQ of a rack of pool balls.

- Jim

[Purplehood]

It has been years now (4?) since the civil immunity provision went into effect in Texas. As far as I know, in that time, it never has been exercised or tested in court.

Texas also protects certain assets of individuals from seizure, including the person's homestead, means of livelihood such as tools, two horses, mules, or donkeys, and household pets. It isn't worth suing a person who does not have significant other assets.

That said, I think the notion that "you can't be sued" is dangerous. You can be sued, and the situation is full of legal gray areas and the possibility of getting a jury with the collective IQ of a rack of pool balls.

- Jim

Hey, I resent that. I like pool balls.

[Oldgringo]

It has been years now (4?) since the civil immunity provision went into effect in Texas. As far as I know, in that time, it never has been exercised or tested in court.

Texas also protects certain assets of individuals from seizure, including the person's homestead, means of livelihood such as tools, two horses, mules, or donkeys, and household pets. It isn't worth suing a person who does not have significant other assets.

That said, I think the notion that "you can't be sued" is dangerous. You can be sued, and the situation is full of legal gray areas and the possibility of getting a jury with the collective IQ of a rack of pool balls.

- Jim

Thanks for clearing up that possibly calamitous misconception.

[Beiruty]

I guess, the defense attorney would have to show that the shooter was acquitted in court of law, not my word or your word, but is real court of law. The Jury found the defended not guilty and justifed. I guess this a good start to show under TX law that the defended is protected from civil liability.

But as noted above, your mileage my vary.

[chasfm11]

You can be sued, and the situation is full of legal gray areas and the possibility of getting a jury with the collective IQ of a rack of pool balls.

- Jim

There is another explanation. I was on a civil jury in the case of a woman who had fallen in a supermarket parking lot. She was suing the supermarket for back pain. She had a history of back pain before the accident and the supermarket did not even sell the product that she slipped on - and the parties agreed that it was about the size of quarter. After 3 days of trial, we went to the jury room where 4 members of the jury were immediately ready to give her money "because she was suffering." We broached the subject of negligence by the store and there was agreement that there was no evidence presented in the trial that suggested negligence in any way. The women were still adamant that the woman needed compensation for her suffering. It appeared that we were going to be there for a while.

I asked how much they thought her suffering was worth (the plaintiff lawyer suggested $150,000 in his summary.) The 4 jurors thought $50,000 was a fair number. I said "great. let's do that - and I recommend giving the same $50,000 amount to 100 of the patients at John Peter Smith Hospital (Ft. Worth's facility that serves the most indigent patients.) " They were agast. They wanted to know my reasoning. I said "those patients are every bit as entitled to this store's money because they've suffered, too." Dead silence lasted several minutes. Quickly the conversation came back to liability based on negligence. In less than an hour and a half, we had a unanimous verdict of no compensation.

The 4 jurors were simply people who were affected by the story of suffering that had been dragged out for days in court. They were not stupid people, from a pure intelligence standpoint. My point in telling this is that I believe that juries can and do render verdicts based on emotion, not the facts and that the overall intelligence of the body isn't really the question. I suspect that had I not been there, a judgment for the plaintiff would have been rendered or there would have been days of jury deliberations. The 4 were adamant.

The funny part of the story was that the judge had left for the day. He charged the jury at 3pm and expected us to have to return to deliberate the following day. They had to call in another judge after we contacted the baliff saying that we were prepared to deliver our verdict. I'm not sure which of the parties was the most surprised by the speed of the verdict. I will say that I've never been picked for a civil trial jury since. I doubt that I'll pass voi dire again.

[seamusTX]

I guess, the defense attorney would have to show that the shooter was acquitted in court of law, not my word or your word, but is real court of law. The Jury found the defended not guilty and justifed.

Well, as the dead horse would say if dead horses could talk any better than live horses, there is no legal proof of innocence.

When a grand jury no-bills an accused suspect, it means that grand jury that week did not find probable cause that the suspect committed an offense. Prosecutors have returned to grand juries many times with additional evidence until they obtained an indictment.

Similarly, when a petit trial jury finds a defendant not guilty in a criminal case, it means that the jury did not find proof beyond a reasonable doubt that the defendant committed the offense.

The concept of double jeopardy means that a defendant cannot be tried twice for the same offense, but it still is possible for a defendant who is found not guilty in a criminal trial to be sued for civil damages or federal civil-rights violations.

The bottom line for me is that any use of deadly force had better be obviously justified according to natural law that even the yellow 1-ball can understand.

- Jim

[seamusTX]

The 4 jurors were simply people who were affected by the story of suffering that had been dragged out for days in court. They were not stupid people, from a pure intelligence standpoint. My point in telling this is that I believe that juries can and do render verdicts based on emotion, ...

I am too quick to disparage people as stupid when they are merely thoughtless or biased. I ought to get out of that habit.

However, as you point out, jurors can be swayed by emotional presentations that should not be relevant to the law. We see this all the time when the police shoot someone, and the relatives of the deceased are weeping that "they didn't need to be shooting my baby" (the baby being 19 or 25 years old, 6 feet tall, 300 pounds, and a previously convicted felon).

- Jim

[ELB]

...The bottom line for me is that any use of deadly force had better be obviously justified according to natural law that even the yellow 1-ball can understand.

- Jim

I understand the sentiment, but if you are ever faced with a violent situation, I hope you base your actions on what will save your physical hide, not what looks good to the 1-ball. Better judged by 12 1-balls than killed by one 8-ball and all that.

Break-Break

A dozen posts, and no one has commented on the fact that Ung stopped his assailant with a .380. It was a six-shot stop, but it did the job. Of course, had any of his assailant's pals had any fight left in them, Mr. Ung could have still had a considerably worse day.

[seamusTX]

I understand the sentiment, but if you are ever faced with a violent situation, I hope you base your actions on what will save your physical hide, not what looks good to the 1-ball. Better judged by 12 1-balls than killed by one 8-ball and all that.

Thank you for your concern.

This situation, people leaving a bar at 2 a.m. and playing the "Who you lookin' at?" "Yo mama," game can and ought to be avoided. If people want to play that game, they should be prepared to deal with the consequences. These simply are not the actions of mature civilized people.

As I said, in 20 or 30 years Mr. Ung will be able to shug it off. Probably not so much for Mr. DiDonato.

- Jim

[Big Tuna]

Probably not so much for Mr. DiDonato.

I wonder if he learned his lesson or if he still think it's OK to follow people and attack them.