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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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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