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NJ Cop Faces 1st Degree Murder — should have followed Law of Self Defense

NJ Cop Faces 1st Degree Murder — should have followed Law of Self Defense

You’d think a police officer would know better, but I’ve come across a MD incident in which a New Jersey detective (working for a State prosecutor’s office) managed to violate multiple principles of the law of self defense and get himself charged with 1st degree murder.  (Usual disclaimer:  the “facts” in hand are drawn from “news” reports, and may or may not be accurate or complete. You know how it is.)

The NJ police officer, James Walker, was apparently visiting Maryland with his wife and children, traveling in their Kia minivan. 

New Jersey Detective Joseph Walker, charged with 1st degree murder in shooting of Joseph Harvey Jr.

New Jersey Detective Joseph Walker, charged with 1st degree murder in shooting of Joseph Harvey Jr.

Joseph Harvey Jr., a 36-year-old MD resident, was also traveling by vehicle with a passenger, driving a Honda Accord. Harvey’s passenger told police that events began to unravel when Walker’s minivan turned onto the road they were traveling, cutting-off Harvey’s car, and forcing Harvey to swerve onto the shoulder to avoid a collision.

This triggered a mutual road-rage incident, with both vehicles continuing to travel down the road, deliberately swerving at each other. At one point, Harvey’s passenger reported, Walker displayed a gun and pointed it at them.

Soon thereafter both vehicles pulled over, about 100 to 150 feet apart from each other, and both drivers emerged from their vehicles. Walker shouted that he was a police officer, and Harvey began to approach Walker’s vehicle in what Maryland police described as an “aggressive manner.” That’s when Walker drew his Glock in 45ACP and fired at least three times, hitting Harvey in the leg as well as twice elsewhere. Harvey was taken to a nearby hospital, where he died.

Joseph Harvey Jr., killed in roadside shooting by NJ Detective Joseph Walker.

Joseph Harvey Jr., killed in roadside shooting by NJ Detective Joseph Walker.

Walker was arrested and initially charged with second degree murder, but this charge was later elevated to first degree murder. He was released on $1,000,000 bail and suspended without pay from his NJ law enforcement position. Walker is also charged with two weapons crimes, presumably for possession of the gun without a Maryland license (which raises interesting side issues, considering that under Federal law qualified law enforcement officers should be immune from such weapons charges, but leave it to MD to want a test case on this).

The Five Principles of the Law of Self Defense

Let’s refresh our recollection of the five fundamental principles of the law of self-defense, and see how they apply to the fact scenario described above. These five principles are:

1st Principle:  Innocence
2nd Principle:  Imminence
3rd Principle:  Proportionality
4th Principle:  Avoidance
5th Principle:  Reasonableness

Maryland is one of the minority of states that essentially has no statutory self-defense law. There is a statute for civil immunity for defense of dwelling or place of work, and another covering battered spouse syndrome, but that’s about it. Instead, Maryland’s embodiment of the Five Principles of the Law of Self Defense  must be found in case law (court decisions). A recent statement of MD’s law of deadly-force self-defense can be found in Wilson v. Maryland, 7 A.3d 197 (MD, Ct. Spec. App. 2010):

We have summarized the elements necessary to justify a homicide, other than felony murder, on the basis of self-defense in the following terms:

(1) The accused must have had reasonable grounds[5th Principle] to believe himself in apparent imminent or immediate [2nd Principle] danger of death or serious bodily harm from his assailant or potential assailant;

(2) The accused must have in fact believed himself in this danger; [5th Principle]

(3) The accused claiming the right of self defense must not have been the aggressor or provoked the conflict [1st Principle]; and

(4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded. [3rd Principle]

and, in addition:

It is the duty of the defendant to retreat or avoid danger if the means to do so are within his power and consistent with his safety; but if the peril is so imminent that he cannot safely retreat, he has a right to stand his ground and defend himself. [4th Principle]

In Maryland, as in every other state, the defendant bears the burden of production to have self-defense raised as a legal defense in the first place.  Let’s assume for discussion purposes that Walker is successful at meeting this burden of production (although it is noteworthy that the MD courts are unusually aggressive in rejecting tenuous claims of self-defense).  At that point the burden of proof shifts to the State prosecutors to disprove self-defense beyond a reasonable doubt.  Sounds hard, I know, but keep in mind that in order to destroy Walker’s self-defense claim the State need merely disprove any one of the Five Principles.  If one falls, the entire defense falls.

So, let’s step through the Five Principles of the Law of Self-Defense, and see how Walker did.

1st Principle:  Innocence

The Principle of Innocence requires that Walker did not initiate, sustain, or escalate the conflict.  Arguably he initiated the conflict when he initially cut-off Harvey, but let’s put that off as merely being an accident.  His continued aggressive interaction with Harvey, with the two vehicles both swerving at each other, was clearly an act that helped to sustain the conflict.  Indeed, it suggests a state of mutual, if unstated, combat.

Finally, when the two cars pulled over to the shoulder, and Harvey began walking towards Walker in an “aggressive manner,” Walker escalated the conflict from what was at the moment a non-deadly conflict to a deadly force conflict when he presented his sidearm.  Absent a deadly weapon in Harvey’s possession or some other clear indication of Harvey’s intention to use deadly force, Walker’s resort to his sidearm seems premature.  The facts as described are entirely consistent with a scenario in which Harvey merely yells at Walker.

This is particularly so if there was little or no pause between Walker presenting his sidearm and firing the shots.  In contrast, if Walker displayed his sidearm in such a manner that Harvey would have known he was advancing aggressively on an armed man, Walker’s use of deadly force at that juncture becomes more reasonable.  Under those facts, Walker could argue that Harvey was, in fact, reaching for a gun–Walker’s gun.

Even under that scenario favorable to Walker, however, Walker’s earlier behavior of mutually sustaining the “road rage” events that immediately preceded the face-to-face confrontation on the side of the road severely damages Walker’s claim to Innocence.

2nd Principle:  Imminence

It seems clear that at the moment Walker fired the shots, there was at least some potential imminent threat from Harvey, as he was aggressively closing the distance between them.  The real problem, however, arises in the context of the next Principle:  Proportionality.

3rd Principle:  Proportionality

There appears to be no evidence to support a reasonable belief that the threat presented by Harvey was one of death or grave bodily harm, which is what would be required to justify Walker’s firing of three rounds into Harvey.  Applying the AOJ triad we can see that although Harvey possessed the Opportunity to bring harm to Walker (e.g., in closing the distance between them), the evidence in support of Ability (some disparity of force justifying Walker’s lethal force response) and Jeopardy (Harvey’s apparent intent to bring that lethal force to bear against Walker) is weak if it exists at all.  Walker appears in photos to be a large man, but that alone is not generally enough to create a disparity of force justifying a lethal response.

So, it would appear that Walker’s claim to Proportionality is also very weak.

4th Principle:  Avoidance

Walker’s most serious problem in sustaining a claim to self-defense under MD law, however, arises in the context of Avoidance.  MD law clearly requires that “it is the duty of the defendant to retreat or avoid danger if the means to do so are within his power and consistent with his safety.”

It is a common and recurrent theme in avoidance/retreat cases in duty to retreat states like MD that if the defendant had immediate access to a motor vehicle he is invariable expected to have used the rapid mobility provided by that vehicle to avoid the conflict.  The failure to do so almost always destroys any claim of self defense as justification for the use of force, particularly deadly force.

There are a few rare exceptions to this generalized rule–obviously it does not apply if the defendant’s car is somehow boxed in, and may not apply if the “victim” is armed with a firearm (no car can outrun a bullet)–but absent such facts not apparently present in this case, Walker’s failure to simply re-enter his car and drive off will likely prove fatal to any claim of self-defense.

His failure to abide by the 4th Principle of Avoidance will likely be his undoing in this case.

5th Principle:  Reasonableness

Really, we’ve already touched upon several of the facts that bear on reasonableness.  Was Walker’s conduct in engaging Harvey in their swerving activities those of a reasonable man, particularly a reasonable man with his wife and children in the vehicle?  I think not.  Was Walker’s perception of a lethal threat from an unarmed Harvey a reasonable perception?  I would suggest not on the facts known to us.  Was Walker’s decision to “stand his ground” in a “duty to retreat” state rather then sit back in his car and simply drive away reasonable under MD law?  I expect the court will say it was not.

So, Walker’s claim to have abided by the 5th Principle of reasonableness also seems very weak.

Side Note:  Imperfect Self-Defense

As an aside, MD is one of a minority of states that recognizes the doctrine of imperfect self-defense.  In MD, if the only one of the Five Principles that is disproved by the State is Reasonableness, the defendant does not entirely lose the legal defense of self-defense, but it’s effect is to reduce murder to manslaughter rather than to deliver the defendant a complete acquittal.  But imperfect self-defense is a subject for another day.  In this case, however, Walker’s vulnerability on several of the other Principles makes this outcome unlikely in this case.

From the Prosecutor’s Perspective:  Blood in the Water

When a prosecutor looks at a shooting resulting in death and sees this many “red flags’ inconsistent with the Five Principles of the Law of Self Defense, they respond as does a shark to the smell of blood in the water.  Here the Prosecutor surely sees many elements from which he can construct a “compelling narrative of guilt” for a jury, and very few from which the defense can construct a robust and “compelling narrative of innocence.”  Indeed, so vulnerable is Walker on the Five Principles that it is quite possible the court will not allow him to argue self-defense at all.  This is all especially true in Maryland, where gun possession, and especially the carry of a personal sidearm, is often seen as something of an aberration (as evidenced by the layering on of the weapons charges against an out-of-state police officer) and where the use of guns to cause harm to others is very vigorously prosecuted.

Walker’s Failure to Craft and Execute a Legally Sound Self-Defense Strategy

The last chapter of my book, “The Law of Self Defense, 2nd Edition,” addresses the necessity for each of us to craft what I refer to as a legally sound self-defense strategy.  Included in this process are five primary methodologies:  “Keep out of Trouble,” “Minimize Your Legal Exposure,” “Decision-Making Under Stress,” “Diminishing Your Perceived Legal Vulnerability,” and “Facilitating Acceptance of Events.”

Based on the facts currently in hand it would appear that Walker violated every one of these methodologies.  I do not expect either the Maryland State prosecutors or the state’s courts to go easy on him.


Andrew F. Branca is an MA lawyer in his third decade of practice, an attorney member of the Armed Citizen Legal Defense Network, and a Guest Instructor on the Law of Self Defense at the Sig Sauer Academy. He is the author of the seminal book “The Law of Self Defense, 2nd Edition”.

Andrew  conducts Law of Self Defense Seminars all around the country, and he has also launched a series of LOSD State-Specific Supplements that dive deep into every relevant statute, jury instruction, and court case that defines the law of self-defense in a particular state.

You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.

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Comments

Terribly off topic, but…

The Powder & Smoke Crawl is scheduled for 28 Sept, 2013 in Houston.

All who care to attend are welcome. We generally begin about 9:00 am at the shooting range on Westheimer, but I will provide more details as they become available.

After that, we smoke cigars, eat good food, drink good booze, and visit various cigar venues in the Houston area. We end the day with dinner at a local restaurant.

    As it happens, I’ll be in Houston on September 28–attending the Gun Rights Policy Conference. Not sure what the conference day will allow, but I’ll keep the “Powder & Smoke Crawl” in mind, Rags, thanks.

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | August 15, 2013 at 2:36 pm

      I’d be delighted if you can come for even part of the day. Lunch would be my treat for you, Andrew. You can give me your free cigars. Heh!

        That’s an invitation I’d love to accept, just not sure I can do it that day with the conference on. I do expect to be in Texas several days, however (and I want to get in some riding in the Texas Hill Country), and I’ll be passing through Houston again on my way back East, so if not that last weekend in September perhaps we can meet up on my journey home.

        –Andrew, @LawSelfDefense

    Cybrludite in reply to Ragspierre. | August 17, 2013 at 11:19 am

    It is a fun event. I made it to one a year or two back. (I was the big hippie-looking guy from New Orleans who’d been invited by Jim S.) I recommend it to anyone who can make it.

Walker, black; Harvey, white; both, idiots. The black idiot will be found not guilty in killing the white idiot

I easily could be wrong but it sounds like someone acted like he would when on duty and in uniform.
wonder what the approached in threatening manner and distances were, I have not looked it up yet.

    Gremlin1974 in reply to dmacleo. | August 15, 2013 at 3:48 pm

    This wouldn’t have been a good shoot even if the guy had been in uniform. Also, I may be being overly optimistic, but frankly I expect better from police officers whether on or off duty. From his reported response to this situation he probably should never have been a cop in the first place.

      thats sort of my point, just from a quick read it seemed to me that he EXPECTED he was good to go only due to his job.
      IOW his word was law, etc .

      I easily could be wrong but this has a feel of the “I am the law obey me” type of situation.
      What a surprise it must have been to find out he was not right….
      and the way the police phrased the walking statement is reminiscent of stuff I dealt with before I got out of service as MP, not quite covering his butt but not being open either.
      I served with some guys that started to let the power (Army MP do normal LEO stuff too unlike other branches) go to their heads.
      And I was one of those people.
      I stopped myself, others did not.

      Edgehopper in reply to Gremlin1974. | August 15, 2013 at 4:44 pm

      No, but based on the history of investigations into police shootings, it seems likely he would have at worst gotten fired, not charged with a crime potentially carrying a life sentence. How many cops do you know of that shot someone in uniform, on duty, and got charged with 1st degree murder?

      Gus Bailey in reply to Gremlin1974. | August 15, 2013 at 4:56 pm

      With all due respect, Gremlin, LEOs are just people. They get specific training and equipment, but the screening is not much different than what a bank teller might experience. As it is, a vast majority of “rookies” wash out or move on before they make the magic seven year mark. I once had a Chief comment that officers were useless to him until they had at least that much in field experience.

        Gremlin1974 in reply to Gus Bailey. | August 16, 2013 at 2:13 pm

        I know that, I am just one of those people who is old enough to have grown up being taught that you can trust the police and that they are there to protect and serve you. Thank you for the insight on the 7 year stuff that is something I didn’t realize and was very interesting to learn.

      JackRussellTerrierist in reply to Gremlin1974. | August 15, 2013 at 5:19 pm

      Harvey’s family should file a wrongful death or civil rights case/color of authority suit now.

      The cop was wrong on so many levels it’s painful to read. A “peace” officer should not be participating in road rage incidents no matter how pissed off he is, no matter where he is. It’s grossly unprofessional. He brandished his weapon while driving as a private citizen. That’s illegal and grossly unprofessional. I surmise that he pulled over because he figured he had the advantage, being a cop and being armed. Verbally identifying himself as a police officer (with no jurisdiction in that state) was an obvious effort to intimidate Harvey. In fact, because he had no jurisdiction there whatsoever, he wasn’t a police officer at that point. He was using his authority in another state as a means of intimidation and throwing his weight around. As they approached each other, it was clear that Harvey was either unarmed or had not pulled a weapon of any kind. There’s nothing so far in the story to indicate Harvey was armed or had even picked up a tire iron or something from inside his vehicle. Then Walker shot him THREE times. This was pre-meditated because Harvey was 35-50 yards away, unarmed, and the shooter had already brandished his weapon showing intent/threat and he fired three times.

      Stone, cold first-degree murder; send Walker to hell.

      I don’t expect much from our PC criminal justice system because the shooter is black and the victim is white.

      Where is the outcry, where are the protests from whites about this? Where is obastard? Holder? Hello? They’re silent because Harvey doesn’t look like he could have been the son of either of them.

        I understand where you are trying to come from. The problem is you are making a lot of jumps without evidence. First how do you know Walker was involved in road rage? Was he driving agressively to try to seperate from crazy guy trying to kill him? Then when he couldn’t seperate from crazy guy decided to just stop on the side of the road so his family isn’t killed? Than he sees crazy guy stop in front of him and start aggressively walking towards his car he exits his car so he has room to maneuver showing crazy guy his badge and or informing he is a LEO expecting that to defuse the situation. Instead crazy guy puts his head down and starts running at him. Now he is left with 2 choices: take crazy guy on unarmed and hope that he wins or pull his firearm and get crazy guy to stop. When crazy guy doesn’t stop he decides to try for a non-lethal attack by shooting him in the legs. Have no clue if the scenario is true but it has just as much chance as yours. Personnally I will withold judgement until more evidence is available.

          What kept Walker from simply sitting back in his car, putting it in reverse, and rolling himself and his family out of the danger zone at 10 mph?

          Nothing. He instead elected to confront and bring lethal force to bear.

          THAT is what will hang him in “duty to retreat” MD.

          –Andrew, @LawSelfDefense

          MarkS in reply to gmac124. | August 15, 2013 at 7:56 pm

          What kept Walker from dialing 911 and reporting the incident to the police?

          gmac124 in reply to gmac124. | August 15, 2013 at 8:17 pm

          Getting back in his car and reversing to keep away from Harvey is feasable unless Harvey closed the gap faster than Walker expected or there was no where to back up to (just in front of an on ramp for instance). Now if Walker is attempting to defuse the situation and Harvey escalates it, if Walker gives ground back to his van and can’t enter the van due to traffic is his right to retreat met?

          Purely Hypothetical but it doesn’t make any sense to me that a Father would put his wife and kids in danger because he was an out of control cop. It is kind of the same narrative that they tried to use in the Zimmerman case that was unfounded and my gut tells me this case is being ramped up the same way.

          JackRussellTerrierist in reply to gmac124. | August 16, 2013 at 3:42 am

          This transpired in the space of about one mile. At highway speeds, we’re talking about a time period of one minute. Quick-draw Walker managed to draw and brandish his weapon in a heartbeat. He was stopped south of Harvey on a northbound highway. Harvey, by both stories we have here, was unarmed – not even a toothpick. Why would Harvey get out of his vehicle completely unprotected? Did Walker brandish his badge at Harvey while driving, so Harvey pulled over like a dutiful citizen and Walker stopped 100+ ft. behind him? Did he do this so Harvvey wouldn’t notice the NJ plates on his vehicle? Otherwise, if his safety and that of his family were his concern, why not just keep driving?

          Walker already signaled his premeditation by brandishing his gun in a state in which he had no jurisdiction as a peace officer.

          Geodkyt in reply to gmac124. | August 20, 2013 at 4:22 pm

          According to what I’ve seen, the shoot took place at 35 to 50 yards. Even if Harvey put his head down and charged like an NFL tackle, that’s an awfully long way to try and claim imminent danger from a guy who ISN’T displaying a weapon. I’m not claiming the “21 foot Tueller Rule” is some kind of magical bright line threshold, but we are talking about a distance five to seven times that.

          That’s presuming he doesn’t get nailed for starting to confrontation, continuing the confrontation, or CHOOSING to place himself in greater danger by pulling over and then getting out of the car to presumably confront Harvey when Harvey came his way.

          Let’s ignore everything BEFORE the two cars stopped, and lets presume for teh sake of argument that Harvey did jump out of his car and come back with teh intent to attack Walker. STILL a bad shoot, because Walker intentionally placed himself in MORE danger, rather than retreating, by getting out of his car. When Harvey got out of HIS car (100 – 150 feet away), Walker could have thrown it in gear, and sped out of the way, LONG before Harvey could have gotten back into HIS car and pursued.

          I will also say, knowing that road (I just drove it both ways, past that SPECIFIC point, this past weekend; it’s the route I use 90% of the time I’m headed for anything north of Waldorf, MD), is that, at the speeds on those roads and the circumstances described BY WALKER, it is literally incredible (as in “unbelievable”) to presume that Walker pulled over first, and Harvey pulled over to confront him afterwards — it’s pretty apparant that Harvey pulled off teh road, and Walker did so as well. . . and having no authority to issue a summons or arrest Harvey, what purpose could Walker have had to do so, other than to continue the confrontation face to face?

          Which AGAIN underscores Walker as the aggressor.

        Your assumptions may be right, but for now that’s all they are – assumptions. I’d rather wait a bit for evidence. And no, what the papers and prosecutors said is not evidence. I have serious reservations as to the appropriateness of the purported actions of Walker, but they are so egregious as to be suspiciously illogical and potentially unreliable, in my view.

          JackRussellTerrierist in reply to 49erDweet. | August 16, 2013 at 2:34 pm

          Such behavior from cops is not uncommon. No, it’s not the norm, but uncommon? No.

          I’m retired LE, 28 years as a CI, Supervising CI and Assistant Chief CI for a large county DA’s office. I cannot tell you how many hundreds of criminal cases were dropped when similar misconduct was discovered nor how many PD (and even SO) officers were investigated for such charges wherein they were found to be true.

    JackRussellTerrierist in reply to dmacleo. | August 17, 2013 at 4:49 pm

    MD State Police Spokesperson Elena Russo stated that, according to the autopsy report, none of the shots were fired at close range: http://www.nj.com/news/index.ssf/2013/06/nj_police_detective_charged_wi.html

    This may well have been a significant element in bumping the charge from M2 to M1.

    According to other reports, the vehicles were parked 100+ ft. apart, with Walker’s vehicle parked south of Harvey’s on a northbound highway.

    In another article I read, a witness (possibly/probably Harvey’s passenger who exited the vehicle but did not walk toward Walker) stated that Harvey was first shot in the leg and went down on his knee or his knees. After that, Walker fired two more times.

Let’s change the scenario a bit. . . .suppose that Walker had been in uniform, and it happened in the state that Walker was employed. Would he have been charged?

How about if Walker had been on duty, but in plain clothes and in an unmarked car, and again in the same state in which he was employed. Would charges have been brought?

    Uniformed officers deal with angry, confrontational people all the time, doesn’t mean the cops are allowed to shoot them. “Aggressive walking” is not a shooting offense. Perhaps Harvey meant only to yell at Walker, or even to merely shove him–still not a shooting offense.

    In this case, of course, Walker was not enforcing the law against Harvey, and therefore had no more jurisdictional authority to use force on Harvey than I would. At that place, that time, Walker was just an ordinary guy. (The only variance would be that his unlicensed possession of the pistol might have been lawful under Federal law, even in MD, given his LEO status–looks like MD wants to test that one out on him.)

    Here’s something to consider: Assume for a moment that Walker was stopped because his vehicle was disabled (no evidence of that of course, just casting a hypothetical), and therefore retreat was not a reasonable option given the presence of his wife and children. I wonder how Walker’s tactical options might have broadened had he possessed pepper spray with him?

    Anyone carrying a gun who doesn’t also carry some non-lethal means of defense is leaving a huge, gaping hole in their defensive force continuum. When your only tool is a hammer, and all that . . .

    –Andrew, @LawSelfDefense

      Narniaman in reply to Andrew Branca. | August 15, 2013 at 3:51 pm

      What amazes me about this scenario is he is in a car with his children and wife — and chooses to stop on the side of a road to fight somebody who appears quite irrational?

      With that type of thought process, at the very least he should not be in law enforcement!

        rantbot in reply to Narniaman. | August 15, 2013 at 5:16 pm

        “Irrational”? Where do we see that? The report tells us that Harvey was guilty of driving, stopping his car, and walking. Nothing too obviously irrational there. Playing dodgem with cars? Maybe it happened, maybe it didn’t – just like walking in an “aggressive” manner.

          Narniaman in reply to rantbot. | August 15, 2013 at 5:23 pm

          Okay, I’ll play the game with you. . . . .

          “What amazes me about this scenario is he is in a car with his children and wife — and chooses to stop on the side of a road to fight somebody who appears quite rational and appropriate. . . . .”

          How does that make stopping your car with your family any it any more appropriate?

          Yukio Ngaby in reply to rantbot. | August 16, 2013 at 5:28 am

          No, no. It’s perfectly rational to go into road rage mode and swerve at one another other’s car, to then pull over and charge a man after he displayed a gun at you during the dodge ’em rage incident. Clearly both men were driven by logic and rationality through this entire incident.

          JackRussellTerrierist in reply to rantbot. | August 17, 2013 at 1:08 am

          And there’s another play Walker had. When he got out of the car, he could simply have apologized for cutting Harvey off. There’s nothing like an apology to take the wind out of somebody’s angry sails.

        MouseTheLuckyDog in reply to Narniaman. | August 15, 2013 at 6:10 pm

        Which is why I see it as very likely he stopped to let the other car go ahead and open some distance, and then Harvey stopped.

        Given the facts as they are told it seems like the reasonable answer.
        Of course we don’t know where the cars stopped or what an aggressive manner means.

          Gremlin1974 in reply to MouseTheLuckyDog. | August 16, 2013 at 2:20 pm

          If that is the reason he stopped then he is going against what police tell people to do in these situations. Last time I checked they said “never stop on the side of the road, go to a well lighted public area”. Which by the way is also something that he could have done, take the next turn, Heck just floor it and eat the speeding ticket, but stopping on the side of the road to have a confrontation makes no sense what so ever. He is a trained police officer, use your van to PIT the idiot and put him into the ditch.

          Also, he could have been on the phone with 911 from the first time the guy swerved at him, but was he….nope.

      MouseTheLuckyDog in reply to Andrew Branca. | August 15, 2013 at 5:12 pm

      There seem to be a lot of holes in this case ( which I will comment on after I read all the comments), but here I will only comment on escape and the fact that the guy was a cop.

      Once a person has identified himself as a police officer a person approaching the officer intent on say shoving or punching him is risking serious jail time. So it is almost a given that the person approaching intends great bodily harm, and has some reason to believe that he can inflict it.

      There is some argument that he didn’t really have the opportunity to retreat. I remember on of the Harry Potter series when the Prime Minister of GB asks the Minister of Magic why he can’t do something about the bad guys. “You can do magic.” The reply. “The thing is they can do magic too.” The other guy had a car too.

      Police generally do have a slight advantage/disadvantage in this sort of situation because of their training and experience. In this case a cop doesn’t carry pepper spray, because he knows that in general it doesn’t work because of this thing called adrenaline.

        JackRussellTerrierist in reply to MouseTheLuckyDog. | August 15, 2013 at 5:26 pm

        Your first paragraphs…..what a load.

        “Once a person has identified himself as a police officer a person approaching the officer intent on say shoving or punching him is risking serious jail time. So it is almost a given that the person approaching intends great bodily harm, and has some reason to believe that he can inflict it.”

        This a wild assumption, not a “given”. More likely, it means that the person approaching has no intention of physically assaulting anybody. One can certainly ask another driver why he forced one into the breakdown lane without showing any clear intention to launch a dangerous physical attack. Even if color language is likely to be used, there is little call for use of deadly force.

          rantbot in reply to rantbot. | August 15, 2013 at 5:32 pm

          “Color” language?

          $%(^&)@ edit button; that’s “colorful”.

          Your second paragraph is wishful thinking, if any of the press reports can be believed. If cars involved in a road rage incident are swerving back and forth to strike each other, as was reported, the intent of someone parking and walking back to a car with an armed individual proclaiming to be an officer is not a benign or mild act. Most reasonable persons would consider it aggressive. And illogical. We don’t have all the information, yet.

        Don’t be so quick to hate on the pepper spray. Filling an aggressor’s face with pspray while retreating, if not effective at stopping removes a lot of doubt.

        If effective- its a lot less paper work.

          I agree. I was pepper sprayed as part of the instructor certification process oh, so many years ago. It sucked. Was it utterly debilitating? No. If, say, some bad guy sprayed me and tried to grab one of my kids, would I have been unable to react vigorously in defense of my child? Absolutely. Pepper spray CAN be fought through.

          But it really, really does suck. Unless the person sprayed is very, very motivated, you’ve taken a lot of the fight out of them by setting their eyes and lungs on chemical fire.

          Up against a raging psychopath on PCP? Forget the pepper spray, likely won’t have much more effect than water. Up against a motorist angry that you cut him off in traffic? Will probably work pretty well. Remember, all you are looking for is enough of a window to escape the situation.

          And the mere fact that you had prepared and (if time allowed) tried a non-lethal defense before going to the gun contributes tremendously to the reasonableness of your response. It makes you look a lot less like a guy with a gun looking for a chance to “prove himself” a gun slinger, and a lot more like a lawful armed citizen who prepares himself for a continuum of use of force encounters just as do the local police.

          –Andrew, @LawSelfDefense

          Ugh, immediate self edit. In the scenario where I’m sprayed by a kidnapper, I meant to write that I WOULD be able to act in defense of my child despite having been sprayed.

          –Andrew, @LawSelfDefense

          gmac124 in reply to Andy. | August 15, 2013 at 7:07 pm

          Pepper spray can be effective if you have time and space to employ it. If Walker has a reasonable fear of Harvey attacking his wife and kids in the car he cannot retreat beyond them. Depending on distances and time he may not of had time to employ both defensive methods. Did Walker instead attempt a less than lethal solution by aiming for the legs to wound instead of kill? If you pull a gun and they continue closing with you, your only defense left is to pull the trigger.

          Walker did not need to retreat “beyond” his wife and kids. He could simply have gotten in his car, put it in reverse, and taken himself, and his wife and children with him, out of danger at 10 mph.

          THAT is what kills his claim of necessary self-defense under MD’s duty-to-retreat self-defense framework.

          –Andrew, @LawSelfDefense

          MouseTheLuckyDog in reply to Andy. | August 16, 2013 at 3:21 am

          And how do you propose retreating and firing pepper spray at the same time. In the best of circumstances a person will often miss.

          On top of which it has to be a head shot. Aside from clothes protecting the rest of the body, the physiological reaction will be minimal any place else. Guess what is not recommended to people defending themselves with a gun: limb shots and head shots. Why? Because a torso shot has the most probability of actual getting a decent hit. So just by choosing pepper spray you eliminated the most effective technique ( body attack ).

          That is that on top of the geneeral ineffectiveness of pepper spray in many circumstances.

          MouseTheLuckyDog in reply to Andy. | August 16, 2013 at 5:47 am

          Andrew, the thing is that demo is like the mentally bending spoon trick. It is rigged to make pepper spray look highly effective.

          To properly get a feel of the effects of pepper spray on a fighting person, you need to be doing something like a fight. Take a racquet sport, vollyball, hockey, bicycle racing … any physical sport with continuous action. Let us for an example say basketball. Play basketball for fifteen minutes, then get pepper sprayed and play some more. I dare say that you will discover that the pepper spray has significantly less effect.

          I’ve had several women tell me they were attacked, managed to pepper spray their attacker in the face at point blank range and saw it have no effect.

          I’ve also heard several stories of fights where a guy bit off the other guys nose only top be killed by the other guy.

          The better martial arts teachers in grappling arts ( jujitsu aikijitsu, shina ) will tell their better students of the story of the samurai who was jumped by a tiger. While the tiger chewed on his left arm he drew his katana with his right hand and cut the tigers head off. The point being not to rely on pain or discomfort to win a fight. ( AKA survive a fight. )

          That’s all assuming you hit at point blank range. I seem to remember the chances of you missing with pepper spray were quite high. Especially if you do not constantly practice. If a wind is blowing you can have it blown back at you too!

          The final thing is that in an altercation most of the time you will not be able to use both. The critical part of most fights ends with 15-20 seconds. So unless you are absolutely sure you the pepper spray works, you are risking losing the ability to use the gun at all. What will a jury say if you had both pepper spray and a gun, and you chose to use the gun because you were scared the pepper spray wouldn’t work and you were scared by using it you lost the chance to use your gun?

          Shane in reply to Andy. | August 16, 2013 at 12:36 pm

          I really don’t like this line of reasoning, whether it involves pepper spray or tasers or some form of Martial Arts. Employ one form of defensive system train with it, learn it’s strengths, learn it’s weaknesses. Build strategies around common and not so common problems that might be encountered in the real world, and then test them on the new situations that you see. Understand the weapon system that you have chosen so intimately that you will be able to employ it without hesitation.

          Multiple weapons systems are problematic at best, because you never really get the specialization needed to effectively employ both, and in a stressful situation you may get analysis paralysis trying to decide which system to employ. Better to employ a system quickly, than consuming precious brain cycles trying to figure out which system is better in the current situation.

    MarkS in reply to Narniaman. | August 15, 2013 at 7:57 pm

    Probably not, be they should’ve been

Did Harvey have any Skittles?

    Not only was it not reported that Harvey possessed a bag skittles, but it was also not reported that he was in the process of bashing Walker’s head against the ground. This seems to be a case of stand your ground, but without probable cause to justify the use of deadly force.

Forget rules of self defense. None of them apply here.

In Harvey’s case, he should have simply let it go when Walker cut him off in traffic. And, when someone waves a firearm at youi, do not approach them and certainly don’t attempt to attack them bare-handed. With this kind of intellect, we can only hope that he was unable to reproduce before he died.

In Walker’s case, he should never have gotten involved in playing road games. Turn off and avoid the conflict or escape if it continues. Don’t stop. It was impossible for Walker to know if Harvey was armed and, if so, what with. Harvey could easily have stepped out of his car and sprayed the van with an AK-47, AR-15 or similar weapon. It is not clear if Walker’s wife and children were in the van with him, at the time. But, if they were then he should never have stopped and placed them at risk as well.

Two dummies doing dumb things. Both will pay the price.

    JackRussellTerrierist in reply to Mac45. | August 15, 2013 at 5:32 pm

    Somebody was in the car with Harvey because somebody reported that Walker brandished his weapon while they were all still driving. Surely Walker wasn’t stupid enough to snitch himself off for brandishing. Or maybe he is. His behavior is that of a village idiot.

    rantbot in reply to Mac45. | August 15, 2013 at 5:48 pm

    “Forget rules of self defense. None of them apply here.”

    A strange statement. Are you claiming that because you can, after the fact, postulate scenarios which would have avoided the deadly confrontation, that self-defense can no longer be a factor?

    It really doesn’t matter if you or anybody else think the parties were dumb. Dumb people have a right to self defense, too.

      Sanddog in reply to rantbot. | August 15, 2013 at 9:39 pm

      When you initiate and then escalate a conflict, you’re going to have a very difficult time convincing anyone that the dead guy was the threat.

        JackRussellTerrierist in reply to Sanddog. | August 16, 2013 at 5:43 pm

        Especially when you’re allegedly a “peace” officer trained to manage such incidents. And most especially when the victim is unarmed.

There is some chance that Harvey NEVER HEARD Walker announce that he was a police officer. I have seen a situation where a police officer was yelling at persons with guns (on private rural property shooting into a berm constructed for that purpose)– yelling INTO A STIFF WIND. The persons with guns turned around but could not hear her. I was with her, the shooters were my teenage sons. If her supervisor had not stopped her, she was about to draw a weapon. In this situation there was not even a conflict, just a noise complaint. Walker was — I hate to say— typical. Arrogant. Not conditioned to conflict resolution (which is taught in concealed carry classes). He could just as easily have been the dead guy. Stupid and he may pay with his life — in prison.

Here’s a easy defense strategy. “I didn’t know I had cut off the deranged man. Next thing I knew this guy was weaving his vehicle towards mine causing me to take defensive maneuvers to avoid a high speed impact that would have seriously injured myself and my family. I had to pull over to remove my family from the imminent threat of a Motor Vehicle Impact. When I stopped, I saw a great big bubba heading toward my vehicle. Based on his previous behavior, I figured he would continue his attack. I identified myself as a Police Officer and produced my firearm while telling him to stop. He did not comply, so I fired my pistol to stop the attack. I felt justified because he had already tried to intentionally kill me and my family with his vehicle”….

Gets the wife and kids to corroborate the encounter. Discredit the sole opposition witness….

First time poster. Former NRA LE Certified Firearm Instructor Pistol / Shotgun.

    You’re assuming Walker didn’t already make statements to the police inconsistent with your suggested defense, as might have Walker’s wife, not to mention the witness in the other car.

    There’s a reason the prosecutors recently chose to bump this up from their initial charge of murder 2 and manslaughter to murder 1. And I expect it’s not because Walker has an awesomely compelling narrative of innocence.

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | August 15, 2013 at 6:46 pm

      I’ve never been pepper-sprayed, though I was tear-gassed in the Army.

      In junior high, I was kicked in the jewels. Not long after, I was hit in the throat. Both were…debilitating… In fact, it took some hours to get my bilitors back on-line.

      There are any number of non-lethal ways to take the “charge” out of any bull. Even real bulls.

        Henry Hawkins in reply to Ragspierre. | August 15, 2013 at 8:16 pm

        Rags, I’ve been pepper sprayed dozens of times, all while working night shift in a diversion ER in Raleigh, a special mental health unit set up to handle only mental health and substance abuse emergencies sent by medical ERs, police, etc. I had a uniformed, armed Raleigh PD officer shadow me at all times because of the inherent dangerousness of the MH/SA clientele. My nickname was Dr. Goat among staff, because it was left to me to explain the bad news “uh no, you ain’t goin’ home tonight…”

        They go off when they learn they’re about to be cuffed and involuntarily committed, they go off because voices tell them to, or the drugs tell them to, and sometimes they go off for no reason at all.

        At any rate, when a big nasty went off, the officer would spray him if necessary and we’d all jump in a pile till big nasty was in cuffs. This was typically in an 8′ x 8′ observation room, so everybody got sprayed.

        To my point, the first 2-3 times it is pretty much debilitating, especially if it’s a surprise. After that, it gets easier and easier, because the surprise factor is gone and you already know the limits of irritation the spray puts on you eyes and respiratory system. You learn to function well under spray fairly quickly, though no less physically affected, sort of like how a boxer learns to absorb punishment. Mine and the officer’s advantage was that we were used to it when the client rarely was – but there were frequent big nasties who had gotten used to it their own way, via prior commitments and hospital fights, and prior contact with police. These rare cases weren’t much affected by pepper spray either.

        I would use pepper spray in self defense, but I damn sure wouldn’t rely much on it.

        Towards the end I almost got to like it. That ten year gig ended over fifteen years ago, but to this day I still like a little pepper spray on my pizza or spaghetti, you know, to give it that zesty zing.

          Henry Hawkins in reply to Henry Hawkins. | August 15, 2013 at 8:17 pm

          Dr. Goat as in ‘Judas Goat’.

          That all rings 100% true to me, thanks Henry, great comment.

          –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Henry Hawkins. | August 16, 2013 at 2:52 pm

          Yes, but the point is that most people haven’t been pepper sprayed. So to most folks it is…..well lets just say it changes their outlook on the day in a radical way. I have been sprayed on several occasions, I had a much different reaction between the one time I wasn’t expecting it, (I was trying to help subdue someone and caught the same spray that they did), and the couple of times I have been hit in controlled environments. The surprise spray was much more effective for some reason.

          Geodkyt in reply to Henry Hawkins. | August 20, 2013 at 4:31 pm

          I know that’s how NBC NCOs get about CS gas. To the point I’ve seen one in the gas chamber with no mask at all.

          I know that after the third or fourth time I ran through the chamber, I got to the point where I actually LIKED it 5-10 minutes after getting to clean air. (Nice warm glow like good whiskey, and any allergies or cold you’re suffering is all gone afterwards. Yes, there IS a cure for the common cold — tear gas! )

          Been hit with Mace (fiddling around with a cannister and gave myself a brief shot in the face by negligence), but never modern pepper spray. I’ve also seen angry people fight their way through pepper spray, some of whom were unlikely to be that stoned or that experienced — they were just REALLY angry teenagers.

      MouseTheLuckyDog in reply to Andrew Branca. | August 15, 2013 at 8:01 pm

      Unless what the friend has to say is very compelling, I would tend to discount it. He is, after all, a friend, and that is what you expect friends to say. Same with the wife.

      Even if the friend isn’t lying, did he really see a gun? Or maybe just an extended black middle finger he confused with a gun.

      As for the prosecutors bumping up the charges. There are three possible reasons for that — all equally likely. The first is that they legitimately think they have a murder one case.

      The second is that they are exceedingly arrogant and win a lot of cases just by bullying defendants into taking pleas. Who knows maybe Sngela Corey decided job prospects in MD were better.

      The third is that Harvey fell after being shot in the leg and the second and third shots hit him in the back as he fell, and the prosecutors are dumb enough to think that justifies murder one charges.

    JackRussellTerrierist in reply to TerribleTroy. | August 16, 2013 at 5:46 pm

    Why are you, as a trained NRA instructor, trying to conjure self-defense excuses for an armed, non-jurisdictional cop shooting an unarmed man who hadn’t laid a finger on him in cold blood?

Andrew,

You are no doubt referring to 18 USC § 926B

Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce, subject to subsection

The law serves as an affirmative defense according to the ATF.
So the prosecution had every right to charge.

But I think the weapons charge is a huge strategic mistake by the prosecution. The charge only emphasizes Walker’s law enforcement status before the jury. The legislative history of 18 USC § 926B shows that Congress intended to make police resources more broadly available. The charge may make the legislative history of 18 USC § 926B admissible. This weapons charge works to Walker’s advantage. Jury instructions notwithstanding, a lay jury may view Walker as a police officer who was attacked.

Police Officers are often very skilled at testifying. Don’t be surprised if Walker develops a compelling narrative of innocence backed up by his family.

    I agree the prosecution has every right to charge.

    I also know that in the majority of states an out-of-state law enforcement officer would not be charged with a weapons charge, under a reasonable expectation of what result would come from such a prosecution.

    Unless it turns out that Walker was NOT in fact a qualified law enforcement officer, or was intoxicated, or for some other reason does not fall under the Federal rule, then MD law is meaningless in terms of this weapons charge, under the Supremacy Clause of the US Constitution.

    It’s kind of how NJ State Troopers routinely treat people lawfully transporting firearms through the Garden State in full compliance with applicable Federal law–they arrest them, charge them, and make them go through the tremendous difficulty and expense of a trial.

    Invariably these law-abiding transporters are found not guilty. Great.

    It’s just , an abuse of power and discretion. And typical of a Blue state. See also NY, MA, IL, etc.

    –Andrew, @LawSelfDefense

      sequester in reply to Andrew Branca. | August 15, 2013 at 7:01 pm

      The prosecution showed poor judgment on the weapons charge. It may be just blue state mentality. Such flawed judgment, calls into question the reliability of the prosecution’s narrative of guilt.

      The defense has an almost certain not guilty jury verdict on the weapons charge. The defendant has an avenue independent of self-defense to enter evidence from other police officers about his good standing as a police officer. When the jury starts checking the not guilty box it is great for the defense. It could be contagious. A jury may feel if the prosecution exaggerates on one point, it exaggerated on others.

        I doubt that the jury will ever hear the weapons possession charge. MD is just sending out notice to all out of state cops to not carry in MD under the umbrella of Federal law–they’ll put you through the wringer if you do.

        –Andrew, @LawSelfDefense

          sequester in reply to Andrew Branca. | August 15, 2013 at 8:02 pm

          You have a point. New York County indicted a Pennsylvania Constable on a weapons charge (Indictment: 2917/06). The arresting officers failed to appear at the dismissal hearing. The judge dismissed the indictment based on 18 USC §926B and NY State Code. NY Code authorizes an out of state officer conducting official business to carry a firearm. A complete waste of time and expense.

        JackRussellTerrierist in reply to sequester. | August 16, 2013 at 5:58 pm

        The weapons charge is unimportant.

        What’s important is that this was a GJ, not a politically motivated, ambitious prosecutor, that brought the indictment and, further, bumped the charges UP from M2 to M1 after reviewing the evidence……evidence that the defense can challenge pertaining to the indictment itself, before the GJ makes its final decision, which is not an option with a prosecutor’s filing. In the Zimmerman case, this ability was snatched from GZ when the Corey brain trust rode into town. For a GJ to bounce up to M1 AFTER the defense has had its opportunity to challenge the evidence speaks volumes about the defendant’s culpability.

      JackRussellTerrierist in reply to Andrew Branca. | August 16, 2013 at 3:52 am

      “It’s kind of how NJ State Troopers routinely treat people lawfully transporting firearms through the Garden State in full compliance with applicable Federal law–they arrest them, charge them, and make them go through the tremendous difficulty and expense of a trial.

      Invariably these law-abiding transporters are found not guilty. Great.”

      Especially aggravating is when such a situation occurs because a Nervous Neliie drama-queen mom calls the cops on her son in a deep-blue, gun-grabbing state either because she’s an indoctrinated lefty or has no common sense, God love her. If he’d really wanted to kill himself over the divorce and visitation, he wouldn’t have needed ALL his guns, or even any of his guns, to do it.

      What a piece of work she was.

      Might even be a little interstate payback for NJ arrogance. one that can be quickly dismissed at a strategic time. But your point it is bad strategy is spot on.

      Gremlin1974 in reply to Andrew Branca. | August 16, 2013 at 2:56 pm

      I may be wrong but I don’t actually remember reading that the Trooper actually had his badge and ID with him?

      Is it possible that the weapons charge is because he wasn’t carrying the identification that he should have been. It has been said he “identified himself as a police officer”, but I didn’t actually read that he used his badge.

        JackRussellTerrierist in reply to Gremlin1974. | August 16, 2013 at 6:16 pm

        The weapons charges wouldn’t be because he didn’t have his badge and ID with him. Being a cop doesn’t give him a right to carry in that particular state – nothing to do with his ID. The fact that he was carrying strongly suggests he had his cop ID and badge on him, and I’ve never seen nor heard of one who didn’t have those on them at all times (heh…except while showering and during intimate moments 🙂 ). Some jurisdictions require their sworn officers to carry them off-duty. Cops pretty much carry them anyway all the time no matter where they are. They use it to get out of speeding tickets and what not – “professional courtesies”.

        The reports thus far state that Walker claims he stated he was a police officer after he exited his vehicle. Whether that’s true or whether he was holding a badge at that time or had flashed it while both parties were still driving is unknown. But if he brandished his weapon to threaten Harvey, he may have flashed his badge as well to get Harvey to pull over. Walker was parked 100+ ft. south of Harvey on a northbound highway.

    JackRussellTerrierist in reply to sequester. | August 15, 2013 at 5:39 pm

    I’m not sure that the attention that will be drawn to Walker’s status as a peace officer is a negative for the prosecution. When one considers Walker’s behavior and lack of jurisdiction, his status as a cop may well be seen as means of abusing his authority (rather, non-authority in this case). He acted as a private citizen. He brandished his weapon, showing intent, and then shot an unarmed man three times for “aggressive walking”. This may not sit well with a jury. It certainly doesn’t sit well with me.

      You may be correct Jack. The facts are just not in yet. Walker may be able to make a case that he did not retreat because he observed the other driver commit a felony and he was responding in accordance with his training as a police officer. He may also be stone cold guilty.

      This case reminds me of another police officer shooting. On September 3rd 2006, off-duty police officer Adam Mansker driving in his personal car observed San Diego charges linebacker Steve Foley driving “erratically”. He identified himself as a police officer but did not show identification Foley refused to pull over and Mansker pursued Foley for over 20 miles. California statutes permit a civilian to refuse to pull over if requested to do so by an officer in an unmarked car. Mansker followed Foley to Foley’s house. Foley got out of his car and walked to Mansker’s car. Mansker shot Foley, ending his football career. Mansker claimed he thought Foley was reaching for a weapon. There was no weapon.

      Foley ultimately pled guilty to DUI. Mansker was never charged. The case did not get the attention of the race baiters.

      Foley sued Mansker and his employer the City of Coronado. He recovered 5.5 million dollars.

Justice for Joseph!

Thank you Mr. Branca, a good read and very informative.

There are some peculiarities to the story as reported which make it likely that there’s quite a bit we don’t know here.

First, both cars pulling to the side 100-150 feet apart. Why did both pull over, and why at such a distance? It’s relatively rare in such incidents for both drivers to want to stop, and rarer for them to stop so far apart if a meeting or confrontation is intended.

Second, that line about approaching in an “aggressive manner”. Such a bland description can hide rather a lot. I think a few more specifics are in order.

    JackRussellTerrierist in reply to rantbot. | August 15, 2013 at 5:44 pm

    This is just a guess, but it seems like Walker pulled over first. Why? Because he brandished his weapon. That might explain why the other driver gave him a lot of space when he pulled over.

    Or possibly Walker “brandished” more than his weapon. Maybe he “brandished” his badge. The other driver would not be able to see that the badge was issued in another state at that distance. So maybe Harvey thought he was being pulled over a by a “real” MD cop. If that’s the case, then Walker is in very, very deep shit.

      Yeah, too many guesses are needed to have a really good handle on what happened. The only other report I’ve seen of this incident had no more info than given here.

      We don’t even have any claim that Harvey knew that Walker was brandishing a (real or fake) gun. The report says that Harvey’s PASSENGER saw it; what Harvey knew is at this point pure conjecture.

        JackRussellTerrierist in reply to rantbot. | August 16, 2013 at 3:09 am

        Unless the passenger or the driver are deaf and dumb, it seems beyond unlikely to me that whichever occupant noticed the brandishing might just verbally note that to the other occupant, assuming momentarily that only one or the other saw the weapon, which also seems not credible.

          After the shooting, when the witness realizes that a gun was involved, it would be easier for him to say that he saw it earlier, even if all he saw was a glimpse of something unidentifiable. Of course all testimony is delivered after the fact, which allows later developments to color memories. With the meager information provided so far, we can only make tenuous guesses.

Good cop. Good call.

Maryland at least in size, is much smaller than looney toons floriduh.

The cop will go through hell. On the other hand, this is a story MADE by access to TV. Most people charged with murder never get a chance to state their case in public.

In floriduh, the screw ups go all the way to the top. Given that Rick Scott is a republican governor. Angela Corey is a known nitwit. And, the biggest bozo of all sat on the bench doing a Chris Farley “interpretation.” She also sure hated Don West.

And, Don West is afraid to speak. He’s muzzled. And, I don’t know why.

When will fresh air ever blow through our system, now?

    JackRussellTerrierist in reply to Carol Herman. | August 15, 2013 at 5:50 pm

    Good cop? Good call? Are you joking or are you out of your mind?

    Both the Zimmerman case and this case are ultimately about the abuse of government authority. In the Zimmerman case the abuse formed as prosecution of a crime that didn’t occur because of pressure from POTUS stirring the pot, black political organizations and the “whitey gonna pay me” parents and their mouthpieces. In this case, the abuse occurred at the street level by a non-jurisdictional cop committing first-degree murder under color of authority because he couldn’t conduct himself as a professional due to lack of self-control.

MouseTheLuckyDog | August 15, 2013 at 5:48 pm

The whole case is so ambiguous.

Was the cop driving aggressively in a way to show intent of doing harm to the other guy or was he driving aggressively to avoid putting himself in a disadvantageous situation to a person who was showing himself to be intent on harming the cop?

Did the cop stop first, perhaps trying to let the other driver go on and open some distance between the two?

What does “aggressive manner” manner mean? Perhaps the Harvey was approaching in a determined fast walk and then started to charge walker, but before he got a full head of steam Walker fired.

How exactly did Harvey die? The one described wound was a shot to the leg. One generally does not die of a shot to the leg unless the femoral artery is hit. Where were the other two wounds? Perhaps Walker aimed low. hit Harvey in the leg, then as Harvey fell, his upper body entered the zone of fire? How does that affecgt proportionality.

There are two things in the story that cause me concern.

The first is the friend saying Walker was waving the gun around while driving. Aside from driving and brandishing a gun at the same time– something I find hard to believe, the story suggests that Wlker drew his weapon while driving, hen holtered it, got out of the car, then drew it again — that’s sounds unusua; to me.

The other thing is that I know there are bad cops, but this is not how I expect a bad cop to behave.

The only thing we can do now is wait for the facts to come out.

    JackRussellTerrierist in reply to MouseTheLuckyDog. | August 15, 2013 at 5:53 pm

    That’s exactly how “bad” abusive cops behave. Arrogant, intimidating, threatening….because they are empowered by the badge and gun. A gun and a badge are viewed by such people as carte blanche to abuse and intimidate others at will.

    I agree that too much information is missing. Many of the points you brought up are ones that I was trying to find answers for and haven’t yet. What bothers me is we don’t know what evidence they used to charge him. Is it like the Merritt Landry case where they used the deceased friend as the grounds? I just can’t make the pieces that have been reported make any sense in any way. It appears that the info released is painting Walker as a loose cannon that was angry and out of control. But if was attempting to seperate and could not on the highway and then stopped to defuse the situation and Harvey continued to escalate the situation it would be justified. We just don’t have enough information to pass judgement one way or the other.

Well, unlike the Zimmerman case, in this case there are living witnesses who saw the whole thing. Makes it harder to invent fantasies about who started it.

Where I live, the D.A. would “investigate” the incident for four years. Maybe charges would be brought.

“The killing of Lawrence Allen in 2008 was one of those incidents of unthinking recklessness that was made even more tragic that it allegedly was perpetrated by two Philadelphia police officers who should have known better.

Now those former officers are facing criminal charges over a stolen pizza.

On Friday, District Attorney Seth Williams announced that Chauncey Ellison Sr., 39, has been charged with voluntary manslaughter, recklessly endangering another person, possession of an instrument of crime and conspiracy. Ellison’s girlfriend and fellow former officer, Robin Fortune, 44, has been charged with conspiracy and recklessly endangering another person in the death of 19-year-old Lawrence Allen.

Police Commissioner Charles Ramsey fired the couple in 2010 and District Attorney Seth Williams publicly promised he would investigate the case and that if criminal charges were warranted, he would file them.”

Henry Hawkins | August 15, 2013 at 8:23 pm

In Texas (or other deep red locale), Officer Walker pleads to manslaughter, loses his career, goes on active probation for five years, and hopes to win the civil suit sure to follow. But in Maryland? I suspect he is screwed.

Know your weapon, check. Know your target, got it. But you also better damn sure know your jurisdiction, the local laws – and local political winds.

    JackRussellTerrierist in reply to Henry Hawkins. | August 16, 2013 at 3:04 am

    Power-happy bullies and thugs don’t know those things because they believe the toys of their trade make them omnipotent.

      And you just KNOW that Walker was a power-happy bully.

      I mean you met and interviewed him, right? And you have an extensive background in psychology and/or psychiatry, right? And you know that Walker has a history of abusing his authority, right? And you know more about this case than what you read in just this post, right?

      Good for you.

        rantbot in reply to Yukio Ngaby. | August 16, 2013 at 9:18 am

        Probably in the same way that you pretend to know that anyone involved was in “road rage mode”, “swerve[d] at one another’s car[s]”, and “then pull[ed] over and charge[d] a man after he displayed a gun at [him] during the dodge ‘em rage incident”.

        In other words, something between speculation and B.S.

          Yukio Ngaby in reply to rantbot. | August 16, 2013 at 11:19 am

          Sorry. You’re wrong. I am using the information provided by Branca in his post, which he says is gathered from various news reports.

          If you don’t want to trust waht’s presented in this post as being accurate enough to comment on (that it’s all “something between speculation and bs”), then I guess you better leave. Or never ever read things that you don’t have personal knowledge about or expertise in.

          Terrierist is speculating on the psychology of Walker –which is not present in the post nor any reports that I’ve seen about this incident– and then statets that Walker is some weirdo has a God complex.

          Afraid that’s not the same thing. So your efforts at equivalency are silly.

          rantbot in reply to rantbot. | August 16, 2013 at 11:54 pm

          “I am using the information provided by Branca in his post,”

          Obviously not. Your fantasy that Harvey was irrational because he, among other things, “charge[d] a man after he displayed a gun at [him]” is not from Andrew B.’s account. In fact, what A.B. DOES say is, “The facts as described are entirely consistent with a scenario in which Harvey merely yells at Walker.” Not much about irrational charging there.

          Yukio Ngaby in reply to rantbot. | August 17, 2013 at 10:45 am

          So these action are rational to you: “This triggered a mutual road-rage incident, with both vehicles continuing to travel down the road, deliberately swerving at each other. At one point, Harvey’s passenger reported, Walker displayed a gun and pointed it at them.

          “Soon thereafter both vehicles pulled over, about 100 to 150 feet apart from each other, and both drivers emerged from their vehicles. Walker shouted that he was a police officer, and Harvey began to approach Walker’s vehicle in what Maryland police described as an “aggressive manner.””

          With this info, it is foolish to suggest that the actions of either of these people is rational.

          Oh, wait no. That’s just my FANTASY. Everyone KNOWS that getting pissed at a guy and then trying to run into his car on the highway is totally rational. As is getting out of the car and then aggressively advancing on a yelling man when you SAW him display a gun earlier during this perfectly reasonable road rage confrontation. Clearly it is only my deluded FANTASY that people in a rational state of mind would behave less aggressively. Got it.

          But let’s look at my quote from Branca. Let’s see… Road rage dodge ’em cars. Check. Displayed gun. Check. Approaching car in “aggressive manner” i.e. charging. Check.

          Oh, wait. No. Just more of my deluded fantasies.

          Now the Branca quote you use in full its context: “Finally, when the two cars pulled over to the shoulder, and Harvey began walking towards Walker in an “aggressive manner,” Walker escalated the conflict from what was at the moment a non-deadly conflict to a deadly force conflict when he presented his sidearm. Absent a deadly weapon in Harvey’s possession or some other clear indication of Harvey’s intention to use deadly force, Walker’s resort to his sidearm seems premature. The facts as described are entirely consistent with a scenario in which Harvey merely yells at Walker.”

          It says that “Finally, when the two cars pulled over to the shoulder, and Harvey began walking towards Walker in an “aggressive manner,” Walker escalated the conflict…”

          Again an advance in an “aggressive manner.” In this quote Branca surmises that the situation could’ve simply been two men yelling at each other until Walker pulled his gun and escalated the situation. I have no problem with that analysis . Branca never says, even in his analysis, that Harvey simply got out of his car and yelled– like you suggest w/ your cherry-picking from that quote. According to this info, Harvey advanced in an “aggressive manner” at Walker. Period.

          You take Branca out of context. He was writing about the level of engagement that existed between Walker and Harvey at that point in time (the situation being consistent with two angry jerks yelling at each other and not a life-threatening situation), and not at Harvey’s actions.

          So let’s see here… Everything else you’ve accused me of in prior comments are out the window (unless you actually believe that threatening to hit a car that just cut you off, moving aggressively toward an armed man and his family, and taking this whole situation to the level that it went to is rational), but now you’re down to the last “ah-ha gotcha” moment. If you want to quibble whether charging means running at or merely advancing aggressively at an opponent then go argue at Webster’s. In my gym aggressively forcing your way toward an opponent is a charge. You don’t need to run, most of the time you don’t have the room to run.

          But quibble w/ someone else about your definitions. I’m done arguing with you at this post.

According to local news reports Walker was initially charged with M2 and after looking at the evidence a grand jury upped it to first degree. As for the gun charges, just look at MD’s new gun law which goes into effect Oct 1 and you will understand our goofy governor’s thinking on the second amendment

That’s right, not a filing of an information, as happened to Zimmerman, but an actual grand jury indictment.

In neither case, information or indictment, does the defendant get to present evidence. But in an indictment they DO get the opportunity to contest the State’s evidence.

Even after that opportunity for the defense, not only did the Grand Jury not decline to return and indictment, they actually upped the charge from murder 2 to murder 1.

Looks grim for Walker.

–Andrew, @LawSelfDefense

I remembering reading some accounts of the incident early in June that presented a significantly different, or more detailed, sequence of events which making the shooting a “no alternative” situation. I am sorry that I am unable to point you to them, but I do suggest that a more careful investigation of the details will place the officer’s actions back in the framework of the laws of self-defense.

    JackRussellTerrierist in reply to bvw. | August 16, 2013 at 3:16 am

    It’s unlikely that Walker would be placed on unpaid administrative leave by his own department if they thought it was a fair shoot. They’ve obviously thrown him under the bus. An article linked downthread presents a story by a private commenter about their own experience with Walker under a similar set of facts. Considering the unpaid leave and the other story, there’s a suggestion that this wasn’t Walker’s first rodeo with abuse of authority and grossly unprofessional conduct for a peace officer.

    rantbot in reply to bvw. | August 17, 2013 at 5:32 am

    Concerning the seconds before the actual shooting, the only difference I’ve noted in the earlier news items is the claim that both Harvey and his passenger “approached” Walker’s van. Later reports seem definite that the passenger did not, though whether or not he got out of the Honda isn’t clear. But NO reports I can find elaborate on the “approached in an ‘aggressive manner'” claim. None state that Harvey ran toward Walker, or waved a sword while approaching, or showed any of the traditional signs of aggression. Now, two months have elapsed, but nothing more substantial has yet been offered. That might make one suspect that the phrase is mere police boilerplate, rather than a useful description specific to this case.

Hmmm. Here’s an item from June 20,

http://hoboken.patch.com/groups/police-and-fire/p/hudson-county-detective-charged-in-road-rage-shooting22ce326545

The article helpfully notes that the gun was a “.45 glock service revolver” … ok, not very promising … and mentions it again later, just in case we missed the clanger the first time.

The comments are interesting, though, the last in particular. Could be rubbish, of course.

    JackRussellTerrierist in reply to rantbot. | August 16, 2013 at 3:00 am

    Two things:

    The first point of interest from the story you linked to is this: “The incident is believed to have started shortly before 8:30 p.m. last Saturday when Walker, driving back to New Jersey with his wife and three kids in a gold Kia minivan, cut off Harvey’s green Honda Accord about one mile south of where the shooting occurred, Maryland State Police said.”

    So all of Harvey’s alleged display of road rage occurred in the space of ONE mile at highway speeds. That’s about ONE minute, yet during that brief time Walker felt the urge to brandish his weapon?

    The second point of interest is that, according to the story, looking at Google Maps of Route 3 connecting to I97 N, for Walker to be going back to NJ as the article says, they were northbound on Route 3 near the ramp to I97 N. The article says Walker stopped about 100 ft. SOUTH of Harvey, so it’s reasonable to conclude that Harvey stopped first. Did he stop because he wanted Walker to just go on by, having seen the gun brandished? Or did Walker flash a badge at Harvey to get him to pull over?

    The last commenter’s story is quite interesting inasmuch it recounts a similar incident in which Walker behaved as a gross bully under color of authority. Is it true? It’s his perception, of course, and he claims his statement was destroyed by the cops. But maybe he kept a copy of it? I hope so.

      “…Harvey’s alleged display of road rage occurred in the space of ONE mile at highway speeds. That’s about ONE minute, yet during that brief time Walker felt the urge to brandish his weapon?”

      How many times does a guy have to try to intentionally run into you until you feel threatened, esp. w/ your wife and kids in the car? Based on the “facts” reported in this case, Walker probably shouldn’t have pulled over and he certainly shouldn’t have shot Harvey, but you certainly don’t assign any humanity to Walker. Gee, I wonder why?

      And I like your use of “alleged” when describing Harvey’s actions. I mean you’ve gleefully crucified Walker, called him power-happy bully etc., stated that Walker’s actions are certainly pre-meditated (“Stone, cold first-degree murder; send Walker to hell.”), and have predicted that he’ll get off because he’s Black.

      But Harvey had an “alleged” display of road rage. LOL. Yeah, you yourself don’t wanna jump to any conclusions or anything. LOL

      What I remember from a June news site discussion was that Officer Walker had pulled over in order to clear the road battle. It was an effort by Walker to defuse the situation. He did not expect that Harvey would stop. Harvey did pull over, and came at the officer and his family mincing no words of violence and threat.

    From the article,

    Walker’s attorney, Anthony Pope, said Harvey pulled up alongside Walker’s minivan and began hurling racial slurs at him and threatening to kill his family.

    Have you ever tried to shout from one car to another at highway speeds?  Some friends of mine tried shouting from one car to another going at about 40. They were trying to arrange where to have dinner. With a lot of shouting and hand waving, they managed, more or less, but it took much longer than a minute to convey any information. And that was at only about 40. 

    If I were on a jury, and someone told me that they could make out “racial slurs” and threats “to kill his family” shouted between two cars at highway speeds — 60?  65? at night so one couldn’t even claim to be reading his lips? — I would have serious doubts about their credibility. 

      rantbot in reply to LW. | August 17, 2013 at 12:01 am

      Yes, that quote was rather odd. It sounds like a lawyer in full spin mode. I can imagine that the racial epithets bit is conceivable, if a bit old-fashioned, but verbal death threats toward anyone else not obviously involved in the driver’s actions would be bizarre.

Stupid people acting stupidly. Now one is dead, and the other is up on murder charges. What a waste.

I live in Maryland. Maryland is 2/3 liberal Democrats and they hate guns all the way up to MOM (Governor Martin O’Malley).

This incident will provide a wonderful opportunity for Maryland to throw the book at somebody who used deadly force.

Walker is screwed.

An innocent White boy (Can we get Harvey’s church group photos?) gunned down by a violent Black man. Where is our manufactured outrage, our “Justice for Joseph” T shirts and “Wanted Dead or Alive” posters?

Oh, yeah; that’s what Democrats do.

This part of the story is starting to bother me –

“with the two vehicles both swerving at each other, was clearly an act that helped to sustain the conflict. Indeed, it suggests a state of mutual, if unstated, combat.”

Maybe, maybe not.

Postulate two cars, a and b. It doesn’t matter for this scenario which is Walker’s and which is Harvey’s. The driver of car a swerves toward car b, either accidently, or with the intent to annoy or even collide. The driver of car b swerves his car, successfully avoiding a collision with car a. In this case, the driver of car a is the aggressor; but the driver of car b isn’t aggressive, he’s entirely defensive. What would a witness see and report? Two cars swerving; which is swerving toward the other and which is swerving away might not be entirely obvious. The witness could well report two cars swerving at each other, but in this scenario that would not imply that both drivers were aggressive.

So how could we know that the vehicles were swerving at each other? The drivers could tell us, but of course in this case one is dead and can tell us nothing. If it was one of those “road rage” incidents which went on for miles, that would be a pretty good indication that the aggressive swerving might indeed be mutual; but that doesn’t seem to be the case here.

Tell me that no one in either car had a cell phone to call 9-1-1 while all this was occurring.

The shooter didn’t have a cell phone? His wife didn’t have one? Come ON.

I’ll bet the suspect will say that the victim used “The N word” or something and that’s going to be the suspect’s attempted justification/provocation for the life-taking.

People are so so stupid–both of these guys, really.

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