https://www.foxnews.com/us/tennesse...erment-returning-fire-armed-auto-thievesThere are several important lessons in this news story. Discharging a firearm in an urban or suburban setting is an unbelievably huge, almost crippling responsibility. The shooter is absolutely liable for any and all consequences resulting from each and every bullet sent out, even the strays. Nearly everywhere, the employment of deadly force is governed by statutes strictly limiting its application. In particular, the legal concept of self-defense is often misunderstood. So, here’s the deal as it applies to this dude’s unfortunate situation:
First, while a criminal defendant is absolutely presumed innocent until proven otherwise and the prosecution has the burden of proof beyond a reasonable doubt, self-defense is only an affirmative defense which must be proved by the defendant. The prosecution is usually not required to negate self-defense as part of its initial case. But, once the defendant has introduced evidence of self-defense, the prosecution then becomes obliged to negate it. This all comes as a shock to most people. True, if the pre-charging investigation discloses that the evidence of proper self-defense is compelling, a competent and reasonable prosecutor will decline to charge, in the interests of justice and judicial economy. However, a politically motivated prosecutor may lawfully charge regardless, and force the defendant to prove the self-defense at trial (costly, even if successful).
Second, as to the need, the use of deadly force in self-defense must be reasonable under the specific circumstances immediately presented at the precise moment it is employed. It must be reasonably necessary in that there must be an imminent threat of death or great bodily injury which is sought to be prevented, and the deadly force employed is the minimum level reasonably available, reasonably applied and reasonably calculated to prevent it. In this case, because of the increasing distance to the targets in that they have already disengaged and are are fleeing, the threat has diminished and the application of deadly force takes on the character of retaliation rather than actual self-defense. The video demonstrates this, as it shows the shooter leaving cover, unnecessarily exposing himself to harm as he moved forward in an apparent attempt to more advantageously engage the targets.
Third, as to the manner, deadly force in self-defense must be reasonably applied. “Spray and pray” gunfire at distant, fleeing targets, with the potential for innocent victims to be present in and around residences behind the targets, all while the shooter’s eyes are closed, cannot possibly be reasonable.
Fourth, each and every shot fired must be separately subjected to same analysis. Though one or more shots may well be determined to be both reasonable and fired in lawful self-defense, other shots may not be. Once the shooting starts, it does NOT then become “open season.”
NOTICE that the charge brought against the shooter here is reckless endangerment rather than assault with a deadly weapon upon the fleeing crooks (which could have been supportable under the facts and law). So, the imperfect self-defense aspects appear to have had some influence on charging.
As a retired prosecutor, and based solely on the information in the story, I would not have hesitated to charge and prosecute this doofus shooter for reckless endangerment and I would expect a conviction if the case were to go to trial and I did my job competently. However, this case also appears to be an excellent candidate for an appropriate pre-trial plea bargain, or perhaps even pre-trial diversion, with restitution ordered as to any and all innocents damaged by the wild shots fired, with proper self-defense firearms training being required, and with a bit of community service imposed to drive the lesson home.
The final lesson here is to keep your damn mouth shut until after you have consulted an attorney, should you ever be compelled to use deadly force. When the cops come asking what happened, you will need to identify yourself, surrender any physical evidence, including the weapon used, and maybe provide a brief, general statement such as, “I was violently assaulted, I feared for my life and the perpetrator was shot” [end of statement] before invoking your rights to counsel and to remain silent. Then, talk with the attorney before saying more.
