MO: Road rage, man shot, no charges

[A-R]

Saw this on The Cornered Cat's Facebook feed (she also has great tips for how to AVOID & DE-ESCALATE road rage situations) ...

http://www.stltoday.com/news/state-and- ... 46c17.html" onclick="window.open(this.href);return false;

What I find most interesting is NO CHARGES were filed against EITHER side

[seamusTX]

If the guy who was punched and shot the biker didn't want to press an assault charge, the DA doesn't have much of a case to take to the grand jury. Charges like assault (other than domestic) require a complainant.

Maybe they just figured the guy who was shot already got the lesson.

Sometimes we think of an arrest as being the end of the case. It isn't. If there is a criminal trial it can go on for years. The victim/complainant may be called many times to testify. Some people want to avoid that.

The shooter clearly had castle doctrine justification and should not be charged.

Also with these smaller town, you don't know who knows or is related to whom. A lot of conflicts get buried out of the view of the public.

- Jim

[seamusTX]

P.S.: There is always more than one side to the story. The man who was shot wanted the grand jury to consider charges against the man who shot him. This was a day or two after the incident. The DA restated that the shooter was justified.

The biker admits to "slapping" the shooter in reaction to being spat upon.

Under Missouri law the shooter could be sued.

http://fox2now.com/2012/06/12/road-rage ... rand-jury/" onclick="window.open(this.href);return false;

In any case, giving driving lessons to strangers on the road is never a good idea.

- Jim

[C-dub]

P.S.: There is always more than one side to the story. The man who was shot wanted the grand jury to consider charges against the man who shot him. This was a day or two after the incident. The DA restated that the shooter was justified.

The biker admits to "slapping" the shooter in reaction to being spat upon.

In Texas, wouldn't spitting on someone qualify as starting something? I don't think I would be justified in shooting someone if they hit me after I spat on them, would I?

[seamusTX]

Spitting on a person is at a minimum assault.

If party A spits on party B, it's done. B can't stop it by slapping A or anything else. From that point further action is escalation and revenge.

The problem with understanding this case from news reports is knowing what really happened, versus the he said-he said aspect. Anyone who has raised kids knows about "He started it." One or the other party may have been more in the wrong, but the DA can't prove it beyond a reasonable doubt.

In my opinion, stuff happens when you're driving. Sometimes it's purely accidental. Sometimes it's momentary inattention not amounting to negligence.

If no one gets hurt, mature adults shrug and continue on their way. Immature people shout, make gestures, stop, argue, fight, and shoot at each other.

- Jim

[C-dub]

Spitting on a person is at a minimum assault.

If party A spits on party B, it's done. B can't stop it by slapping A or anything else. From that point further action is escalation and revenge.

The problem with understanding this case from news reports is knowing what really happened, versus the he said-he said aspect. Anyone who has raised kids knows about "He started it." One or the other party may have been more in the wrong, but the DA can't prove it beyond a reasonable doubt.

In my opinion, stuff happens when you're driving. Sometimes it's purely accidental. Sometimes it's momentary inattention not amounting to negligence.

If no one gets hurt, mature adults shrug and continue on their way. Immature people shout, make gestures, stop, argue, fight, and shoot at each other.

- Jim

Yeah, but if I'm carrying and spit on someone, since it is at minimum assault, won't I loose my right to the Castle Law because I started it?

[seamusTX]

I don't know the answer to that.

Let's use an absurd example: A steps on B's toe, possibly intentionally, possibly by accident. B kicks A. A punches B. At some point one of them uses deadly force. This happens all the time in "clubs."

Regardless of who started it, either could have backed away with nothing more than a bruised ego or toe at worst.

After the injury or use of deadly force, the DA gets to decide, and the the defendant's fate is in the hands of a jury of unknown intelligence, education, or prejudices. You can see the disagreement about such cases in this forum. Imagine how bad it could be with 12 people chosen at random, some of whom think anyone who chooses to carry is a "gun nut."

- Jim

[Jumping Frog]

Yeah, but if I'm carrying and spit on someone, since it is at minimum assault, won't I loose my right to the Castle Law because I started it?

Please don't call it "Castle Law". That term gets so ambiguously overused that it tends to confuse issues rather than clarify them. I think it is more useful to look at the actual concepts.

Traditional Affirmative Defense: First, there has always been an affirmative defense for self defense going all the way back to English Common Law. The basic concept of an affirmative defense is "Yes, I committed the homicide, but I was forced to do so for these reasons." Legally, this meant two things. First, a defendant had to start their case by admitting the crime ("Yes, I committed the homicide".) Then, the burden of proof was on the defendant to show that it was justified, which is like "guilty until proven innocent". Also, under the common law, as an element of proving you were justified because you had no other choice but to defend yourself usually required the defendant to show that they tried to avoid having to kill the other person. This is where many states had a "duty to retreat" element for proving self defense so that you could show you had no other choice.

The so-called "Castle Doctrine" simply shifted two related concepts. First, "burden of proof", and second, "duty to retreat".

Burden of Proof: When various states changed the law, they first said, "Look, if certain circumstances exist then the defendant is presumed to have acted in self defense and the burden of proof is on the prosecutor to show why it is now lawful self defense. Now the defendant is back to "innocent until proven guilty".

Duty to Retreat: When various states changed the law, they also said, "If you are someplace like your home, you should not have to demonstrate you tried to retreat before defending yourself". (This is where the label "Castle Doctrine" got started.)

So there are all three concepts in PC §9.32. DEADLY FORCE IN DEFENSE OF PERSON.

Traditional Affirmative Defense: Part (a) provides the elements for a traditional affirmative defense, where the defendant must prove that he met these elements of the defense listed below:

(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

In the affirmative defense, you have to prove certain things existed as part of your case (you were justified under 9.31 and you believed it was "immediately necessary" because the other person was using deadly force or committing one of the six named crimes).

If the MO Road Rage case was assessed under these conditions, the defendant would have to prove that getting punched or slapped was the use of unlawful deadly force. Burden of proof would be on the defendant.

Burden of Proof: Part (b) shifts the burden of proof. Note the language "is presumed to be reasonable" if certain conditions are met. Now the prosecutor must prove that either the elements are Part (b) are not met, or that the use of force was not reasonable.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

If the MO Road Rage case was assessed under these conditions, the slap/punch would count as (1)(A) entering "unlawfully and with force, the actor's occupied . . . vehicle" . However, if the defendant spit first he loses (C)(2) by provoking him and by spitting at all he commits an assault and loses (C)(3).

Thus the defendant's use of deadly force not presumed to be reasonable under Part (b), so he is back to a traditional affirmative defense under Part (a).

Duty to Retreat: Part (c) discusses the duty to retreat:

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

If the defendant committed an assault by spitting on the other person, then they lose the justification provided in Part (c). He should have driven his car away. Thus, when the traditional justification defense is presented under Part (a), he will also have to prove how he attempted to retreat and could not do so.

One common defense on duty to retreat by the way is that you could not do so safely. For example, if the other guy is shooting at you, it is hard to out run a bullet.

Anyway, if the facts as presented in the news article are accurate (which is a low probability anyway), this guy would have a hard time proving self defense under Texas law.

[seamusTX]

This is an excellent analysis (IMHO).

I only want to reiterate that the problem is knowing what really happened at the beginning of the incident. Only God knows. Each party has a witness, but their testimony would be unreliable even with the best of intentions.

A finding of guilt in a criminal case requires proof beyond a reasonable doubt. Each piece of evidence or witness testimony can be impeached. Sometimes it's just not worth using the county's resources to bother.

- Jim

[C-dub]

Yeah, but if I'm carrying and spit on someone, since it is at minimum assault, won't I loose my right to the Castle Law because I started it?

Please don't call it "Castle Law". That term gets so ambiguously overused that it tends to confuse issues rather than clarify them. I think it is more useful to look at the actual concepts.

If the MO Road Rage case was assessed under these conditions, the slap/punch would count as (1)(A) entering "unlawfully and with force, the actor's occupied . . . vehicle" . However, if the defendant spit first he loses (C)(2) by provoking him and by spitting at all he commits an assault and loses (C)(3).

Thus the defendant's use of deadly force not presumed to be reasonable under Part (b), so he is back to a traditional affirmative defense under Part (a).

Duty to Retreat: Part (c) discusses the duty to retreat:

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

If the defendant committed an assault by spitting on the other person, then they lose the justification provided in Part (c). He should have driven his car away. Thus, when the traditional justification defense is presented under Part (a), he will also have to prove how he attempted to retreat and could not do so.

One common defense on duty to retreat by the way is that you could not do so safely. For example, if the other guy is shooting at you, it is hard to out run a bullet.

Anyway, if the facts as presented in the news article are accurate (which is a low probability anyway), this guy would have a hard time proving self defense under Texas law.

I was having trouble with what to call it last night. I didn't like "stand your ground" and only thought using "Castle Law" was better here in Texas.

I think I got all of what you said and that's what I was thinking. If the guy claiming that he shot in self defense, but he's the one that escalated by committing assault first then he would loose the ability to use that. Isn't that what you meant? That's what I meant. Do we agree?