Houston Gas Station Shooting: SYG or not? Break it Down with AOJ
Hungry for another claimed example of a deadly Stand-Your-Ground defensive encounter, the mainstream media has seized upon the gas-station shooting death of a black man by a rifle-armed woman, also black, this past Sunday in Houston.
Video of the encounter was captured by the gas station’s security cameras, both inside the enclosed portion of the station, where it seems the encounter began, and out by the pumps where the encounter turned deadly.
Much of the information available to date is from “news” sources, so the “facts” as described must be considered malleable. It appears, however, that the man made some unwanted sexual advances on the woman inside the gas station.
When the woman was standing beside her car near the pumps, the man–58-year-old Louis Daniel–who was killed can be seen circling around the rear of the car, in an aggressive predator-like fashion, then closing distance with her. He was holding what appears to be an umbrella in his right hand, and the news claims he was holding a knife in his left, although this is not discernible in the low qualify security footage. A knife was, however, recovered near his body.
Louis Daniel allegedly repeatedly sexually harassed the 23-year-old woman while she sought to refuel her car.
The video then shows her standing by the right-rear fender of her car, the trunk open. Daniel is advancing toward her in a manner much like a fighting stance, shuffling forward with his feet a considerable distance apart, consistent with someone who wanted a firm balance in order to strike a powerful blow.
Louis Daniel advancing on 23-year-old woman despite her apparent protestations, while maintaining a well-balanced fighting stance.
As Daniel continues to approach, the woman raises her left arm, shoulder high, pointing at him, consistent with her warning him to not come closer. He continues to close, now well within contact distance, and she removes a rifle (unidentified, but similar in size to, say, a Ruger 10-22). She points the rifle downward, and seems to be working the action, with Daniel standing directly beside her, apparently undeterred by the firearm.
Louis Daniel apparently undeterred by display of firearm, continues to advance on 23-year-old woman.
Suddenly, Daniel lifts his left foot–this may have been when the reported first shot was fired toward the ground. When his foot rests once again on the ground he brings back his left hand (the one that may have held a knife) and strikes her across the face hard enough to send her–a robustly sized woman–staggering half the length of the car.
23-year-old woman send stumbling from apparent blow to head.
When she regains her balance she raises the rifle and fires at Daniel, killing him (this last part is presumed, as the video does not show the actual shooting).
The last few moments of Louis Daniel’s life.
Stand-Your-Ground, Lone Star Version
So, was this a Stand-Your-Ground self-defense case? In Texas Stand-Your-Ground is embodied in two statutes.
9.31. Self-Defense, covers the use of non-deadly force in self-defense.
Section (e) provides:
A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
9.32. Deadly Force in Defense of Person covers the use of deadly force in self-defense.
Section (c) provides:
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.
Gas Station Shooting Does Not Appear to Be SYG Self-Defense Case
While again urging caution given the nature of the “facts” we’re dealing with, it would seem to me that this case is not a Stand-Your-Ground.
As those of you who have been following along will by now have heard ad nauseam, Stand-Your-Ground simply relieves you of any generalized duty you might otherwise have had to retreat before using deadly force in self defense.
That generalized duty, however, only exists if there is a safe avenue of retreat available to you. You are never required to take advantage of an unsafe avenue of retreat, or one that increases your danger–like retreating across a busy freeway, for example.
If there is no safe avenue of retreat available, there is no duty to retreat, and if there is no duty to retreat then there is no need to apply Stand-Your-Ground to relieve of you of that non-existent duty to retreat.
Introduction to the AOJ Triad
So, was there a safe avenue of retreat, or was the threat so imminent that her defensive use of deadly force was imminent? A good way to analyze such situations is to consider the AOJ triad (discussed at length in Chapter 3 of “The Law of Self-Defense, 2nd Edition.”)
The AOJ triad is a conceptual model for evaluating whether a threat has achieved a degree of imminence warranting the defensive use of force. I first learned the AOJ triad while taking my Lethal Force Institute course from Massad Ayoob back in the mid-1990s. The letters of the acronym stand for Ability-Opportunity-Jeopardy.
Ability: Means to Cause Harm
Ability refers to whether your attacker has the means to hurt you. This involves some disparity of force to their advantage that can only be offset by you escalating the defensive force you use in response. So, if they possess a dangerous weapon, of if they are substantially larger, or if they are more numerous–those types of factors would create the kind of disparity of force needed to satisfy the ability element.
Opportunity: To Bring the Harm to Bear
Opportunity refers to whether your attacker can actually bring that means of harm against you. They may be armed with a machete, but if they are standing a block away they cannot (yet) use that machete against you. Were they armed with a gun, however, a block’s worth of distance provides very little comfort if they know what they are doing (or even if they are just lucky).
Jeopardy: Apparent Intent to Apply Ability and Opportunity to Cause Harm
Jeopardy refers to whether you attacker has conducted himself in such a way that a reasonable person would conclude they intended to use the opportunity to bring their ability to cause you harm to fruition. An armed guard standing quietly in a bank would not meet the jeopardy requirement, but a ski-masked man screaming for “all the money!” and waving a gun around certainly would.
Application of AOJ to the Houston Gas Station Shooting
So how does AOJ apply to the Houston gas-station shooting? Let’s take a look, a bit out of sequence.
First, it seems pretty clear that there exists a robust argument for jeopardy. The man was clearly the aggressor. He allegedly made unwanted sexual advances towards her in the gas station, then repeatedly verbally confronted her again, as seen in the video. He then followed her out to her car, where she was seeking to pump gas. Finally, his conduct became physically aggressive, and he closed distance with her despite her apparent protestations to stay back. Even when she displayed the firearm, he declined to cease his aggression and withdraw from the conflict he had initiated. It seems reasonable that such conduct by an aggressor would cause an innocent to fear harm.
Second, it also seems clear that he had the ability to cause her serious harm. He was armed with the potentially dangerous weapon of the lengthy umbrella, and allegedly also a knife. He was also strong enough to send her stumbling several feet with a single blow. This disparity of force would seem to justify his victim in escalating the degree of force needed to defend herself to the deadly-force level.
Third, he clearly had the opportunity to bring his dangerous force to bear during the physical encounter, and the moments leading up to it. At the moment Daniel struck the woman he was, of course, at arm’s length distance–there was no feasible way she could safety retreat should he choose to launch a deadly attack from that range. Even after he struck her and sent her stumbling back, he was still a mere six feet or so distant from her, and he made no apparent effort to increase that distance, so he still possessed the opportunity to continue his attack.
Knowledge of Tueller Drill Shows No Reasonably Safe Retreat Possible
Indeed, even during the earlier moments of the conflict by the gas pumps, he was never more than 21 feet distant from her (at least. As the Tueller Drill (covered in Chapter 5 of “The Law of Self Defense”) has plainly demonstrated for 30 years now, an attacker armed with an impact weapon can cross, from a standing start, a distance of 21 feet and strike a mortal blow in about 1.5 seconds–far less time than most people need to bring a firearm into play and get solid center-mass hits. Indeed, in the security video here shows, it was at least 5 seconds from the time the woman retrieved the rifle from her trunk to when the first shot was apparently fired (at the ground). So even during that earlier period when the man was confronting her from an ever decreasing distance, he was still much too close for her to have been able to secure the safety of the vehicle from her position at her rear fender before this aggressor could be upon her with a deadly attack.
So, it appears that the elements of the AOJ triad are met, and there existed an otherwise unavoidable threat of death or grave bodily harm against which deadly defensive force was warranted.
Further, there appears to be no time from when the man began confronting her while she was at the pumps that she would have had a safe avenue of retreat available to her. Without a safe avenue of retreat there is no duty to retreat, and if there is no duty to retreat, then Stand-Your-Ground has no place in lifting that non-existent duty.
So, no, this does not appear to be a Stand-Your-Ground case.
UPDATE/CLARIFICATION: There seems to be some misunderstanding that because I don’t believe this was a Stand-Your-Ground case, that I therefore do not believe this woman’s use of force was lawful self-defense. That is not the case. It certainly appears to be that this woman has a very strong self-defense claim. Most cases of lawful self-defense, however, do not involve Stand-Your-Ground–that doesn’t make the act of self-defense any less lawful, it merely means SYG is not a relevant issue in the analysis. That, I believe, is the case here.
Evidence of Consciousness of Guilt/Consciousness of Innocence
The whole scenario does, however, get very weird after the fatal shots are fired. Reports are that the woman apparently secured her rifle in the car, finished fueling her car, and took photographs of the dead or dying Daniel. She then simply got in her car and departed the scene, without making any effort to report the matter to authorities.
In the law there is a concept called “consciousness of guilt” evidence (covered in Chapter 9 of “The Law of Self Defense.”. This is typically evidence that suggests a defendant had a self-awareness of having done wrong, and had taken steps to avoid punishment for his misdeed. Often it involves tampering with evidence or inducing witnesses to falsify their testimony, as well as fleeing from the scene of a crime. Where such evidence exists, the Court will instruct the jury that they may consider these specific pieces of evidence as indicating a consciousness of guilt. Believe me, you do not ever want your jury given a consciousness of guilt instruction. Not only does it implicitly suggest that the Court thinks you’re guilty, it suggests that YOU think you’re guilty.
The woman’s conduct here, while thoroughly bizarre, does not quite seem to meet the threshold of consciousness of guilt evidence. The leaving of the scene, if done at, say, high speed, would qualify–but the fact that she finished gassing up and took a photo suggests she did not depart from fear of imminent arrival of the authorities.
Her conduct, however, certainly does not comport with the inverse legal concept called “consciousness of innocence”–that is, evidence that suggests a defendant believed his conduct had been lawful. For example, calling the authorities immediately after having shot someone in self-defense to report the incident. A guilty person tends not to do this.
Not every jurisdiction formally recognizes the concept of “consciousness of innocence,” arguing that every defendant already starts the trial with a presumption of innocence until disproven beyond a reasonable doubt.
Conduct Seemingly Inconsistent with Innocence is to Prosecutors as Blood in the Water is to Sharks
Regardless of its official status, however, I can assure you that every good prosecutor makes all the hay he can out of any conduct that is inconsistent with an apparent consciousness of innocence. Any and all acts you may have committed in the aftermath of a shooting that doesn’t appear to be as white as the driven snow–and even some that do–will be held before the jury as absolute proof of your guilt as a murderer.
In this case, the prosecutor would argue that a woman who has just had to kill an aggressive and dangerous sexual predator in the middle of a gas station simply does not act as this woman did if she were innocent. The innocent person rushes to call the police, even an ambulance for the victim. (Recall during the Zimmerman trial the State prosecutors asking witnesses if there was any evidence that Zimmerman had tried to provide medical assistance to Trayvon Martin, suggesting that an innocent defendant would have done so). The innocent person does not simply finish gassing up their car, take a picture of the dead body, and drive on home to watch Falling Skies that Sunday evening.
Such circumstantial evidence, however, is usually powerful only when layered upon direct evidence of wrong doing. In this case the underlying act appears to be consistent with lawful self-defense, and therefore the conduct after the shooting would appear inadequate to warrant a prosecution.
Take-Home Message: Keep Conduct Utterly Consistent with Consciousness of Innocence, At ALL Times
Of course, the Zimmerman prosecutors brought their case with far less evidence than here. The take home message is that if these Houston prosecutors do not bring this woman to trial based upon her post-shooting conduct, it is not because they can’t try to do so, it’s because they’ve chosen not to do so. The power and authority is in their hands, not hers.
This can have substantive implications with only small changes in the fact pattern. What if, for example, the person shot was a teenaged black “child” and the shooter was a 48-year-old lawyer from Boston? Might a Houston prosecutor with aspirations for higher office seek to leverage such an opportunity at the lawyer’s cost? They certainly might, and the choice would be entirely theirs.
For this reason it is always, always, always essential to conduct yourself in a manner entirely consistent with consciousness of innocence, before, during, and after a self-defense conflict. Doing so preserves your lawyer’s ability to conduct a compelling narrative of innocence for the police investigators, for the prosecutors, for the Court, and for the jury. And it’s that compelling narrative of innocence that is the only thing standing between you and a life time of jailhouse joy.
NOTICE: “Law of Self Defense” Seminars are now being scheduled for the fall.
Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense, 2nd Edition” now available at www.lawofselfdefense.com and also at Amazon.com as either a hardcopy or in Kindle version, and at Barnes & Noble as hardcopy or in Nook version.
You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.
Comments
Huh, Killed someone, left the scene, and did not report it to the police? Obviously this woman has a potential future political career as US Senator from Massachusetts!
she pops the trunk and gets a rifle, loads it and the creepy ass mf is still wanting some? she says, “all i wanted was gas.”
Dang!
He was 58 years old, riding the bus, just buying a pack of cigarettes; that is all that has been reported. The “sex” thing comes across as a manufactured claim by the shooter to justify what she did. I do not buy that. Her “after shooting” acts speak volumes.
We have video of him attacking her, and you’re arguing for his innocence?
C’mon, Crawford!
Who are we to believe: DriveBy or our lyin’ eyes?
the talking heads say if zimmerman were black and trayvon were white, there would have been an arrest. there would have been an arrest because no black man would have done what zimmmerman did and walk the police through the whole ordeal. you claim self defense you better back it up or you will be arrested. if zimmerman had clamed up . he would have been arrested that night.
Except that the “no arrest” is a myth.
The Traybots are extremely dumb. They have viewed the footage taken at the police station as Zimmerman was in handcuffs and yet they proclaim he was not arrested. Idiots!!
I’m thinkin most of Detroit succumbed to a “Duty to Retreat” in the face of unions and racists that told citizens … “this is our town”.
I’m not sure what SYG would have looked like there … and don’t have the energy or competence to perform the Detroit autopsy, or to examine the crime scene. But it seems those that didn’t retreat remained and Detroit was “murdered”.
There’s a good analogy there somewhere … maybe later.
upon further review … it was the productive, capitalist auto industry that was murdered. They could not retreat.
Witnesses fled the scene, and those remaining are complicit or afraid to speak up. Or they’re just oblivious to much of anything.
smoking is a bad habit. it never made sense to me to put something in your mouth and light it.
It works OK if you don’t light your mouth.
She’s in the store, and goes to the driver’s door.
She starts from about the driver’s door, and moves to open the trunk, while he starts from near the station building and moves towards the car.
Viewing it on the full screen, he never puts his hand in his pocket, so he must have already had the knife out(if it wasn’t in his clothes the entire time). They have words, she gets the rifle out, points it at his chest, drops the barrel, and gets in kissing range.
That is a real stupid thing to do if you are in fear for your life. You don’t intentionally get close enough for him to cut or stab you with a knife without even having to lunge.
They circle, and she either shoots near his foot(and he is hit by spall), or she shoots him in his foot- notice that he lifts his foot before he hits her. After she backs up, and he is moving away- while she apparently shoots him a few more times- he is LIMPING.
She puts away the rifle, and closes the trunk.
Then, without the rifle, she puts gas in her car. After that, she calmly walks over to take pictures, before getting into her car and driving off.
Nothing is said about her calling the police “from a safe distance”, they catch up with her 2 hours later, because someone got her license plate.
This is mutual combat. They argued about something (let’s assume it is because he made unwanted sexual advances as claimed), and I think she decided she wasn’t going to take any crap from him. If she was afraid of him, she would have left, or at least not gotten into kissing range.
She told police that she grabbed a rifle from her car when the man continued to threaten her with the blade.
McDonald said she fired at the ground, hoping to scare the man off.
“She never intended to shoot directly at him,” Quanell said. “She didn’t know the bullet actually ricocheted and hit him.”
McDonald then went home to tell her mother what happened. Only then was the Houston Police Department notified.
“She left for her own safety. She was afraid that some of those who were sitting with (Daniel) were going to harm her,” Quanell said.
She felt threatened after shooting him, so she put the gun away, finished filling her tank, and walked over, unarmed except for her camera, approaching the people she was afraid of, to film the body next to them, and then left the scene… For some reason I don’t buy her “fear” after the fact. I think they had words, and she decided she wasn’t going to take any crap from him.
Park,
You are presuming that either or both of the male and female involved are rational, upstanding citizens, with functional brain synapses, and an informed moral conscience, who possess a normal valuation of human life.
Another assumption you and others may make is that this 7/11 store is an up-and-up honest business, when some of these stores make a killing turning food stamps cash, selling skittles, tea, under the counter cough syrup, cigars, and drugs like synthetic heroin.
The brains of persons who imbibe in these substances are damaged and their behavior becomes irrational, aggressive and inhumane.
You may also believe this woman thinks like a typical suburban Mom, rearing her children like your normal suburban housewife, but in fact that is the opposite of true.
The woman and/or her daughter may have done hard time, had 4 or more abortions, have several living children and think nothing of using their food stamp and government benefits money for drugs and beer and operate a brothel of sorts turning other people’s food stamps into cash.
All of these factors destroy the human soul and mind.
I’m not talking about all African-Americans, but about the denizens of the deep dark dangerous hood that most of us have no desire to be caught in day or night.
These people are also who Obama and the social engineers want to be your neighbors…through spreading Section 8 HUD housing into apartments and condos in ‘non-hood’ areas of town.
That is what happened in Sanford, FL when 5 of the 6 ‘projects’ closed due to poor maintenance and age.
The Retreat at Twin Lakes and other residential complexes were bequeathed a number of these Section 8 housing beneficiaries, whose moral and mental processes were not congruent with those of the hard-working, law-abiding residents.
Suddenly, there were drug dealers, fights, burglaries, rapes, children being intimidated and violated on the playground, etc.
That is why so many Neighborhood Watch groups were being formed in Sanford. Enter George Zimmerman and the Sanford PD-sponsored NW program.
Tomorrow, this woman or man could be your neighbor or the neighbor of your young adult daughter and her room mates.
Obama wants to take away your right to self defense when these people move to your neighborhood.
Other reasons for ‘social engineering':
– to establish their thugs and enforce NBPP style street justice, voter intimidation, etc.
– to diminish the authority of the state and local law enforcement.
– to force law-abiding middle class blacks, whites, hispanics subject to their will, amorality, justice and enforcement.
– for spite, to punish non-conformity to PC dictums.
– to punish the middle class for the pain/anger of the denizens of the hood.
It has been reported that both the shooter and the deceased had prior arrest records involving illegal drugs and violence.
If the shooter was a low level drug dealer and known as such in the neighborhood, and if she had in her possession illegal drugs in her car at the time of the shooting, the shooter’s odd behavior could make sense.
Clearly the elderly aggressor step by step approaches what appears to be a vulnerable woman. Several possibilities come to mind:
1) The elderly aggressor knows the women is a drug dealer. She appears vulnerable to him. He knows or expects she is carrying cash and/or drugs. He is attempting to rob her.
2) Or the elderly aggressor’s daughter says he owed the shooter a debt. Let’s say it is for drugs. The two have had run ins before as the shooter has tried to collect that debt. The elderly aggressor is bitter and angry. He approaches her with bad intent.
3) The elderly aggressor approached the woman with umbrella in right hand to be used as a foil or to distract. His knife is in his left hand to be used when he closes in on her to very close range. He puts the knife in his pocket when she displays her weapon…
4) The shooter is in a public place, she is a drug dealer, she can’t be seen fleeing a drug client. That would mark her as unable to protect her turf. So she warns the elderly aggressor and then she shoots him in the foot so as to maintain her street cred.
The shooter demonstrates why it is unwise to bring a knife to a gunfight.
“Elderly”?
It’s ABSOLUTELY NECESSARY for the attack on self-defense that EVERYONE killed in self-defense be portrayed as the underdog.
Mr. Crawford, what part of “aggressor” do you not understand?
Yes he was elderly. In my view anyone over 55 is elderly. The decedent was 58 when he died. Besides the fellow is dead and it seems a good thing to show some minimum of respect for the dead even an aggressor (GHMonHS).
Just think I could have disrespectfully gone-off on the decedent and called him a crazy-@$$ crackhead and thereby further poisoned America’s public discourse. Instead I chose to view the aggressor as a person.
.
It seemed to me that the decedent knew what he was doing. He seemed likely to have had experience and success with this tactic and women before. The decedent deliberately closed the space to his target like a pawn moving across a chessboard. I have little doubt he intended to brutally ‘mess-her-up’ once he got into her personal space. I wouldn’t be surprised if he would rob her after he drew enough blood. … just my guess about what the decedent was up to.
regardless of how you see the law SYG or self defense, if there is a death and you clam up and decide not to to give a statement, you will be arrested. police cannot read minds and take witness accounts with a grain of salt. say your getting robbed and give everything up, the man has a gun and turns away as if to leave, but you heard words to the effect ”
give me the money or i’ll kill you.” And as he is leaving you pull your gun and shoot him in the back because you just never know how bad things can get. what if the robber decides not to leave any witness? what’s good sense?
“For this reason it is always, always, always essential to conduct yourself in a manner entirely consistent with consciousness of innocence, before, during, and after a self-defense conflict. Doing so preserves your lawyer’s ability to conduct a compelling narrative of innocence for the police investigators, for the prosecutors, for the Court, and for the jury. And it’s that compelling narrative of innocence that is the only thing standing between you and a life time of jailhouse joy.”
Did not Zimmerman behave as an innocent for a long time by refusing to lawyer up, by cooperating with several police interviews, by not invoking FL’s arrest immunity statute when he was arrested the night of the shooting in the absence of probable cause of a crime being committed by him, and by voluntarily surrendering to police upon his second arrest? Look at how well that worked out for him!
Would he have been better off by lawyering up from the get-go, thus looking not so innocent, so as to deprive prosecutors of minor descrepancies in his version of events?
I suspect that this woman’s behavior deprived a potential prosecutor of evidence: illegal drugs in the woman’s possession.
Demonstrating felony possession with intent to sell will now be difficult if not impossible.
I suspect that the woman has in effect plead down to a weapons charge by depriving the prosecution of key evidence. She knew she could lawyer up after she got rid of the drugs.
That would be one of my GUESSES.
You do realize that unsupported accusations of criminal acts are libel per se, right?
You do realize GUESSES are speculation, and speculation (so labeled) by the writer is by definition not libelous?
it boils down to this…..if your in a tight spot, you have to get urself out of it. remember that it’s better to be alive and in court than dead. split second decisions are made very seldom and are life changers. i believe that story of gz’s. that man didn’t want to shoot anybody. i think trayvon did not see the gun, he just heard the shot and said, “You got me”.
You are making broad and unsupportable assumptions.
You are creating a fantasy scenario/script of your own liking with your constant ‘I think.’
Yours is a scenario/script that you have no way of proving.
Maybe he should apply to the Sanford DA’s office?
I think she is a racist who profiled a young black man.
This woman seems so nonchalant walking to pay her bill that either this is business as usual for her, she’s high or mentally troubled. Strange.
If the shooter were a drug dealer it would all be business as usual for her.
Or if she we an ALIEN!
she was sick and tired of it all.
She had to pick up her kids?
She had to get rid of the drugs in her car?
Maybe she had to pick your mom up at the airport.
[…] UPDATE: Andrew Branca analyzes. […]
[…] A Houston woman shot a man who attacked her at a gas station last Sunday. There’s already a lot of talk about “Stand Your Ground”. I, along with Andrew Branca at Legal Insurrection, think it’s Self Defense. […]
I agree with Andrew’s analysis. With all due respect to Mr. Ayoob, I think of it as a two-step analysis involving Intention and Capacity. In this case it appears the decedent had both the intention and the capacity to inflict serious bodily harm.
While some of this woman’s actions raise questions, from what we see on the video, the shooting itself was justifiable use of force. The decedent’s actions do appear to be threatening, and it is very disturbing that he does not back off when she arms herself, as if he does not believe she will use the rifle, and continues to threaten. Any reasonable actor must consider his failure to retreat as very threatening behavior. Nevertheless her first shot appears to be aimed at the ground and likely intended to convince him she means business. But, apparently struck by bullet fragments or spall, the decedent reacts with anger, not fear, and strikes her with a powerful blow. At this point, at this range, the risk of serious bodily harm is tangible and retreat would place her at even greater risk. Her response with potentially lethal force is justified.
Her later actions do raise questions. She displays remarkable calm, finishes gassing her car, takes pictures, and leaves. Both actions are rational if she had to have gas to clear the area, and she wanted to have proof the decedent was armed to protect herself from being Zimmermanned by prosecutors. While the others at the station were likely deterred for the moment by what they had seen, there is no reason to believe they would have remained so for very long. Her remarkable presence of mind suggests the woman has seen some things go down before. This wasn’t her first rodeo.
In the immediate aftermath of a shooting, the first thing to do is to secure your own safety, which may well mean clearing the area as soon as possible. But the next step should be to notify the authorities, advise them briefly of the events and ask for law enforcement and ambulance response. They will want you to surrender directly, and you should do so. These actions are consistent with a consciousness of innocence, and difficult to portray in any other way.
She will have some questions to answer, and emerging faccts may alter the analysis, but it seems unlikely those facts will invalidate the basic analysis.
I am going to have to go against the tide here and say that I think this woman is going to have some difficulty claiming self defense here.
Admittedly, there is not enough evidence yet to support a conclusion either way, but it appears to me she has some issues to overcome…
1. She just doesn’t act like someone in fear of great bodily injury or death. She very casually gets out gun, she then approaches the man and stands toe to toe with him while she points the gun at his feet. She then shoots him in the foot, or it ricochets into him. At least it appears that way.
2. It could be argued that the man’s strike against the woman was actually in self defense, if the woman’s first shot is not deemed to be justified.
3. The woman’s post shooting actions are not going to bode well for her if this goes to a jury.
Again, not saying it isn’t self defense, simply that I see some problems with that claim that are going to have to be cleared up.
While it seems true that the woman could have done some things better, the alternative is to conclude that her attacker was justified in attacking her.
Are you willing to make that leap?
Well, I think it will hinge on the first shot she made into his foot or the ground.
I think that is the key element one has to look at (assuming that shot did indeed take place).
For the woman to be justified in that first shot, she had to be in reasonable fear of imminent great bodily harm or death. Now, if the man did have a knife in his hand, you could certainly argue that she had that reasonable fear, however, her actions seem to give evidence to the contrary.
I just think her actions leading up to the first shot toward his foot, give one doubt as to her fear.
Now, if you conclude the first shot was justified, then I think it is a clear case of self defense. If, however, you do not conclude that she had a reasonable fear of great bodily injury at the time she took the first shot, then the man’s blow toward her would actually be viewed as a defensive blow, not aggressive, and then the fatal shots would be unjustified.
Not picking a side yet. If I did, I would have to acquit the lady as I certainly believe there is a reasonable chance that she did act in self defense.
I am just saying there are issues she is going to have to address.
This is certainly not as clear cut as the Zimmerman case was.
Before y’all get turned inside-out analyzing this, Harris County grand juries are pretty sympathetic to the folks standing their ground or protecting their property.
To wit, Joe Horn: http://www.chron.com/neighborhood/pasadena-news/article/Joe-Horn-cleared-by-grand-jury-in-Pasadena-1587004.php
She’ll get cited for leaving the scene.
“I’m hunting burglwers that are wunning away fwom me.” “Fweeze you pesky burlwers!”
Joe Horn must be a huge fan of Elmer Fudd and Bugs Bunny!
I found the concept “consciousness of innocence” to be interesting. Certainly Mr. Zimmerman, by making the non-emergency 911 call to summon the police, exhibited that. His instructions to his neighbor to not call 911 (because he had already summoned the police) but to instead help him make sure Mr. Martin was secure was also consistent with that. His obvious relief when he was told a video existed was consistent with that and his repeated cooperation with the police was consistent with that.
If you like that legal concept, you should consider getting the whole book, it’s got >200 pages more stuff like that.
http://www.lawofselfdefense.com
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[…] Houston Gas Station Shooting: Stand Your Ground or not? Hungry for another claimed example of a deadly Stand-Your-Ground defensive encounter, the mainstream media has seized upon the gas-station shooting death of a black man by a rifle-armed woman, also black, this past Sunday in Houston. […]
[…] Read the rest of the story by clicking – http://legalinsurrection.com/2013/07/houston-gas-station-shooting-syg-or-not-break-it-down-with-aoj/ […]