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Off-Duty Cop Road Rage Murder Trial – next big self-defense case

Off-Duty Cop Road Rage Murder Trial – next big self-defense case

The shooter was black and the victim white, but there’s a big legal difference from Zimmerman and Dunn: In Maryland there is a legal duty to retreat.

Race has been a major element in many of the more prominent self-defense cases we’ve covered in recent months.

Both the George Zimmerman and Michael Dunn cases involved a white man shooting and killing a black teen, with both arguing the shootings were justified self-defense (Zimmerman successfully, Dunn temporarily so).

The Marissa Alexander case involved a black woman shooting at a black man and his two black children, but the severity of her 20-year prison sentence was attributed by many to her minority race (especially in the aftermath of the Zimmerman acquittal).

Within weeks, however, we’ll be live-covering a self-defense trial in which the racial paradigm has been flipped:  the trial of Joseph Walker, a black New Jersey police officer charged with first degree murder for the road-rage fueled shooting death of the white (and apparently unarmed) victim Joseph Dale Harvey Jr.

We first covered this case back in August, in the immediate aftermath of the Zimmerman trial and not long after the June 8 shooting had taken place:  “NJ Cop Faces 1st Degree Murder — should have followed Law of Self Defense.”

The facts at that time were in some important respects vague, and of course they were sourced from media reports, which alone makes them of questionable reliability.  Since then some additional details have emerged from the Walker camp which presents his actions in a more favorable light.  Given the source, of course, these can hardly be deemed unbiased.

The “Facts” of the Case As Currently Understood

Both sides agree that the June 8 shooting flowed from a perceived traffic offense that grew into road rage and from there to a death.

Both men were waiting to turn at the same intersection, essentially beside each other, Harvey in a green Honda Accord with a single passenger (Adam Pidel), and Walker in a Kia minivan with his wife and three small children.  It appears that Harvey was in the left lane, and Walker in the right.  When the light changed to green, Walker made a left turn across the front of Harvey’s vehicle.  Harvey was forced to turn his Honda onto the shoulder of the road to avoid a collision.  This, apparently, enraged him, and induced him to pursue Walker’s minivan.

The next set of details get less clear.  Now driving side-by-side, the two vehicles took turns swerving at each other, almost colliding several times.  (Or perhaps Harvey was aggressively swerving at Walker, Walker was swerving away and then necessarily turning back onto the roadway — an act that would look much as if he were swerving back at Harvey?)

At some time during this altercation, Walker purportedly showed Harvey his police officer’s badge, and perhaps even his pistol, a Glock in .45ACP.

In one report, Harvey threw an object, purportedly a bottle, that struck Walker’s minivan, after which Walker pulled over and exited the vehicle to check for damage.  Whatever Walker’s reason for pulling over, Harvey chose do so so as well, a hundred or so feet further up the roadway.

When he stopped, Harvey exited his vehicle and began walking towards Walker.  According to Walker’s narrative of events, Harvey’s demeanor was clearly combative  He was swearing at Walker, calling both he and his wife the “n-word.”  Seeing Walker’s upheld badge, Harvey is claimed by Walker’s lawyers to have said, “(Expletive) you. I don’t care if you’re a police officer, you’re gonna die tonight.”

Unarmed Disparity of Force? Demonstrable Racial Animus?

It should be noted that Harvey, at almost 300 pounds, was considerably larger than Walker.

Also, publicly released photos of Harvey have shown him wearing clothing with the label “SKINS” prominently displayed. It’s unclear what that refers to, but it might be an Ultimate Fighting Championship related shirt.

If there is any evidence of Harvey’s involvement in UFC, a key issue to keep an eye on will be whether and to what extent Harvey’s reputation in the community and specific past acts may be admissible to show either that he was more likely to have been the aggressor or to justify Walker’s reasonable fear of deadly harm, both to himself and his family.

(Joseph Harvey, Jr.)

Importantly, there’s also some dispute as to the distance at which Walker shot Harvey, with some accounts claiming Harvey was still tens of feet away when shot and others claiming that Walker did not shoot until Harvey was almost within contact distance (and well within the 21-foot “danger zone” of the Tueller drill).  It appears that Harvey was unarmed as he approached Walker, and if so, would have been unable to present an imminent threat until he had come within closing distance.

Maryland:  Very Much a Duty-to-Retreat State

A key question will center on the fact that Maryland is very much a duty-to-retreat state.  Under these facts it seems odd that as the unarmed Harvey approached, Walker did not simply step back into his minivan, place it in reverse, and back out of the situation.

It is true, of course, that Harvey might have responded by regaining his own vehicle and again pursuing Walker — but in the absence of retreat being demonstrably ineffective, Walker would be obliged to take advantage of an apparently safe avenue of retreat before resorting to the use of deadly force.

Harvey was reportedly struck by three bullets, one of which hit him high in the leg, likely severing the femoral artery.  He was pronounced dead upon arrival at the local hospital.

Walker Charged with First Degree Murder, Weapons Offenses, out on $1 Million Bail

Walker was initially charged with second degree murder, but this charge was bumped to first degree murder, for which the greater charge was approved by the grand jury. If found guilty of first degree murder under Maryland’s  § 2-201. Murder in the first degree he faces a sentence of 35 years to life.

Walker was also charged with two counts of using a handgun while committing a felony under Maryland’s § 4-204. Use of handgun or antique firearm in commission of crime, which carries a mandatory minimum sentence of 5 years.  Walker is currently awaiting trial on $1 million bail, and has been suspended from his job without pay for the duration.

The trial is scheduled to begin May 21, and between now and then we here at Legal Insurrection will post up occasional pieces setting out the current state of Maryland self-defense law and how it is likely to apply to this case.

Maryland Self-Defense Law Almost Entirely Based on Court Decisions, Not Statutes

It is notable that Maryland is one of the minority of states that effectively has no self-defense statutes.  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]

Given the paucity of statutory authority to look at in this case — as was so richly available in the George Zimmerman, Michael Dunn, and even Marissa Alexander trials — you can count on Legal Insurrection to dig through the case law to find the relative law to apply to this case.

So, keep your eyes on Legal Insurrection for continued coverage of the Joseph Walker case, pre-trial, during the trial, and post-verdict.

–Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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Comments

Anybody notice how wherever this Branca feller goes, people are fighting and shooting at one another?

    Hmmmmm…..

    Is he the Jessica Fletcher of the internet?

    Ragspierre in reply to Henry Hawkins. | February 23, 2014 at 7:20 pm

    Makes you wanna go…”Hmmm…”

    tom swift in reply to Henry Hawkins. | February 23, 2014 at 7:32 pm

    The Cause-and-Effect Gang strikes again.

    “Anybody notice how wherever this Branca feller goes, people are fighting and shooting at one another?”

    Hey, I’m just the piano player. 🙂

    –Andrew, @LawSelfDefense

    I ask you guys what would you do if you had 300lb man aggressively approaching your wife and children?
    You have said your a cop!You have shown a gun!And he is still coming looking to do damage!Sorry cop or not,I am protecting my family.

      “I ask you guys what would you do if you had 300lb man aggressively approaching your wife and children? You have said your a cop!You have shown a gun!And he is still coming looking to do damage!Sorry cop or not,I am protecting my family.”

      (1) Drive away if safely possible.

      (2) If he presented a deadly imminent threat, likely as not drive over him with my minivan, particularly given his apparent lack of a firearm. PF of my own minivan is roughly three orders of magnitude greater than any handgun ever made, and I expect Walker’s Kia would post similar results . Plus, it’s got reverse, should that prove necessary.

      (3) Step out of my operable minivan that contains my wife and three small children, observe Harvey angrily cross a distance of ~150 feet to close within contact distance, all the while he hurls racial slurs and threatens death, then shoot him down when he’s 6 feet away? That would be pretty low on my list of options.

      Everything I hear about Walker from my own contacts within NJ law enforcement say he’s a genuinely nice guy.

      If he is, I sure hope he’s got a really good explanation for how it was that (3) went down.

      –Andrew, @LawSelfDefense

this is gonna be a mess.
first issue, cop involved. if not convicted people will be pushing the cops kill people meme.
second, if convicted the cries of racism will burn your ears. a white guy can kill a black kid but a black guy can’t defend himself against a white guy meme.

I have seen the differing distance reports too so I am unsure right now. but I bet the cop (in the end) will wish for a SYG law backing that he won’t get.

    TrooperJohnSmith in reply to dmacleo. | February 23, 2014 at 6:51 pm

    I he were tried in Baltimore City, he’d walk.

      With a competent defense, and playing his cards right, it seems hard to see how he’d get convicted in a Stand Your Ground state.

      But it’s MD. Duty to retreat. That’s going to be difficult to overcome here, given the distance the attacker apparently had to traverse, and the ease with which Walker could have simple backed away in his car.

      Overcoming that is going to be a challenge, I expect.

      Also, MD is VERY rigorous about it’s burden of production requirements for self-defense. In most states, almost ANY evidence, no matter how slight or controverted, is enough to get SD before the jury MD trial courts often apply a much higher bar, and when they do they are confirmed on appeal.

      That failure to retreat when safely possible could be enough to keep self-defense out of the trial entirely.

      And THAT would be awkward.

      If, say, it turned out that in exiting his car to inspect for damage from the thrown bottle Walker had accidentally dropped his car keys, and accidentally kicked them under the car, so that he could not in fact reasonably retreat safely in his vehicle . . . I just made that up out of whole cloth, of course. Be interesting to see if evidence of that stripe suddenly emerges.

      –Andrew, @LawSelfDefense

        Ragspierre in reply to Andrew Branca. | February 23, 2014 at 7:19 pm

        Just on the basis of the 2010 case you cite, Andrew, I’d say the guy is cooked.

        Not a prediction of how this will turn out in a jury trial, but I’d be reaching for a plea-bargain if anything was offered that was remotely reasonable.

        Part of that calculus comes from the number of times the LEO had the opportunity and duty to just break off the road-rage escalation.

        What do you think the chances are that will happen?

          “What do you think the chances are that will happen?”

          Chances of a plea bargain?

          If he were a MD cop, chances would be good, and he’d already have been offered, and accepted one.

          But he’s a NJ cop. MD does NOT want ANYBODY from another state bringing guns into their jurisdiction, no matter cop or not, no matter if from another police state or not.

          And while I don’t know much of the prosecutor assigned this case, if I were a young, aggressive prosecutor you’d have to tear this first degree murder case from my cold, dead fingers–it’s got “win” written all over it.

          I just don’t see how he overcomes the duty to retreat, absent a really good story.

          IF he can overcome the duty to retreat, then it’s going to be a matter of balancing the forensics–how far was the guy when shot?–against the perceived threat–was the guy really shouting the N-word, swearing to kill him?

          But the duty to retreat is the hinge he’s got to get past.

          –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Ragspierre. | February 23, 2014 at 9:00 pm

          Even though I find it repulsive and ignorant, I just don’t see how the guy shouting the N-word raises the level of danger, it just makes the guy a racist idiot which he has every right to be, now shouting that you are gonna “kill” somebody that is pretty much text book terroristic threatening. Regardless of what he shouted it doesn’t give anyone the right to use deadly force against him.

          Also another way to look at it is, since this “huge” man was coming at him screaming racial slurs and threats, shouldn’t that have spurred him to get back into his car and retreat?

          Sounds to me like he let being a cop go to his head. However, I am reminded of a trip a took with a cop friend of mine and we got stopped by an Alabama trooper. My buddy showed the guy his badge and the very unimpressed trooper just wrote out his ticket. My buddy kind of got upset and said something along the lines of; “Hey, you know I am a cop to, right.” The trooper looked him dead in the eye and said; “Not in this state your not. Ya’ll have a nice day now.” You can imagine the whining I had to listen to for the rest of the trip.

          Olinser in reply to Ragspierre. | February 24, 2014 at 10:44 am

          @Gremlin1974 – it would change things because remember, Murder 1 has to be unanimous.

          All he needs is ONE minority juror being swayed by the defense yelling and screaming ****er ****er ****er over and over again to bump the charge down or have a mistrial declared.

          Also, if he could get Obama, Sharpton and the race baiters on his side yelling and screeching about MD trying to ‘railroad’ a black man for defending himself – there is a very good chance that MD would offer him a favorable plea bargain.

          Gremlin1974 in reply to Ragspierre. | February 24, 2014 at 10:25 pm

          @Olinser Excellent point. Thanks for the reply.

        I can think of a several scenarios where retreat might not have been possible.
        As he stopped his wife could’ve said she’d be changing kida clothes or diapers or some other situation where he had reasonable cause to believe they were (for a brief moment) unbelted.

          Musson in reply to 49erDweet. | February 24, 2014 at 8:45 am

          Can’t he claim that he did retreat? After all, he drove off. If I was the defense – that is what I would argue.

          The test is not whether he retreated some time previously to his use of deadly force.

          The test is whether at the moment he chose to use deadly force he had available to him a safe avenue of retreat as an alternative to that use of force.

          If the answer to THAT question is yes, it’s legally irrelevant if he retreated at some earlier time.

          The whole point of the legal duty-to-retreat is to compel the defender to safely retreat RATHER THAN use deadly force against another.

          –Andrew, @LawSelfDefense

        Phillep Harding in reply to Andrew Branca. | February 23, 2014 at 9:31 pm

        Let’s see:

        If JW tried to get back in the car with JDH out of his, 100ft (33 yards) away and closing?

        In JW’s place, I’d be a bit worried that JDH would charge and slam the car door on me. Broken bones, skull fractures, internal injuries, etc. A car door is darned dangerous to get caught in.

        This case clearly illustrates the ADVANTAGE of Stand Your Ground laws. If a guy is coming toward you with apparent malice, and the sight of a gun doesn’t deter him even though he is unarmed, it seems reasonable he intends to do you harm no matter the damage he suffers in the process.

        But it’s Maryland, the state which permits Brett Kimberlin to use it as a base for his “lawfare” nuisance suits.

          MouseTheLuckyDog in reply to Estragon. | February 24, 2014 at 5:19 pm

          Don’t forget he showed him his badge, so he is not only charging a man with a gun, he is charging a man with a badge who is some sort of LEO.

          If Harvey wasn’t shot and killed and instead did something to Walker, then at his sentencing Walker’s LEO status would have been used as an aggravating factor in his sentencing, even if Walker wasn’t a MD LEO.

        I always thought that police officers had a duty NOT to retreat.

          Walker is not a police officer in MD–police officers do not have universal powers of arrest and investigation–and he was not acting in an LEO capacity in his dealings with Harvey.

          Though I wouldn’t blame his defense counsel for arguing the point. He’s going to need all the help he can get.

          –Andrew, @LawSelfDefense

          JackRussellTerrierist in reply to steveo1. | February 25, 2014 at 3:02 am

          For Andrew – I’d forgotten that Walker was out of state at the time.

          But it’s hard to imagine that a trained police officer would throw away his career and family by shooting an unarmed man in an off-duty situation out of state unless he really felt threatened. It’s baffling.

          Based on the information provided thus far, it doesn’t look good for Walker.

        JackRussellTerrierist in reply to Andrew Branca. | February 25, 2014 at 2:54 am

        Hmmm…..seems to me that if Walker knew a bottle had been thrown at his car, he’d know it could do no damage in terms of the vehicle’s drivability and would simply have inspected it later at his destination. He used poor judgment by stopping there when the person he would like to paint as the aggressor was still closely in the vicinity. A cop should know better than to make himself potentially more vulnerable by stopping before he knows who and what he’s dealing with in an off-duty situation.

        He didn’t have to stop. Also, as a cop, he should be aware of MD’s position on self-defense killings.

        He had to know he’d cut across in front of Harvey. A simple wave while mouthing “sorry” would have probably saved the day. Instead, he escalated the incident by brandishing his weapon and flashing his badge. He’s not the first off-duty cop to do that, and it’s not the first time that action ended poorly for everyone.

        I’d really like to know how far away Harvey was when he was shot. He was unarmed, but OTOH Walker had his family there with him. Yet, conversely, that also seems like more reason not to stop in the first place.

        Why would he remove the keys from the ignition just to step out to inspect? If I was a juror and the defense served that one up, I’d call BS on it.

        I wonder if the talking heads and bloggers will publicly suggest that Walker just wanted to shoot a white guy, the reverse of which was suggested in the Zimmerman case – ad infinitum.

          He had to know he’d cut across in front of Harvey.

          Sometimes such things are deliberate and happen because the driver is a jerk, sometimes they’re deliberate but unavoidable (ending up in the wrong lane on a strange road because those arrows painted on the pavement are impossible to see at a distance, etc), sometimes they happen because the driver is unaware of the other vehicle (poor visibility because of poor window placement, objects in car, the driver has trouble turning his neck far enough to see, etc). In maybe a quarter of the incidents I happen to see I’d guess that the offending driver hadn’t a clue that he’d caused a problem, either before or after.

          Also, just as police types aren’t, in general, particularly good pistoleros, they aren’t particularly good drivers, either.

          Why would he remove the keys from the ignition just to step out to inspect?

          He thinks the wife might steal his car?

          Seriously, twenty years ago I’d have called BS on that one too, but I’ve gotten into the habit of taking the keys with me every time I turn off one of these new-fangled cars, as their feeble little robot brains may decide to lock me out. On the other hand, if looking for a dent I probably wouldn’t turn the car off.

          JackRussellTerrierist in reply to JackRussellTerrierist. | February 25, 2014 at 1:11 pm

          But regardless of Walker’s turning error (or inconsideration), surely he would have seen that he’d just been in a near-miss collision incident and seen that he’d forced Harvey onto the shoulder.

          As to being locked out by the computer, that seems a stretch and besides his wife was in the car to unlock the door if necessary. Also, it would seem odd that he would even shut the engine off just to step out for a moment. I’m not buying that. If the car was driven away from the scene after the incident, then the bottle being thrown, assuming that is true, didn’t affect drivability, which doesn’t seem possible anyway.

          Walker’s story doesn’t hang together very well, especially coming from a trained peace officer.

fwiw heres what I think happened.
cop used to being able to drive however he wants and pushed the right of way when he shouldn’t have.
then an idiot decided to try to use a car as a weapon instead of calling in plate number.
idiot paid the price in the end.

and this is pure opinion and as the facts come out I reserve the right to be completely wrong wrong here.

    Were I a wagering man–and I am decidedly NOT–I’d guess there’s good money to be made with that position.

    But no real discovery out, so only speculative basis for projections.

    –Andrew, @LawSelfDefense

      thats a very good point about discovery too, one I sometimes forget as it all unfolds. lately I have been forcing myself to slow down on reading some of these types of items as I hate making decisions w/o info. I try to be responsible….at least in this aspect of life 🙂 the rest of life is a cornucopia of immaturity..

        Discovery is a good first step (but ONLY a first step) in weeding out a lot of the nonsense.

        Depositions are under oath, so there’s’ an incentive not to perjure.

        Physical evidence is exposed to pre-trial counter-attack.

        One can feel the truth begin to emerge.

        Of course, the hottest fire is at trial, with cross-examination.

        Everything else outside of that is, to my mind, cotton candy “evidence” at best, politically motivated lynching at worst.

        But, sometimes, at the early stages, you have to start with what you’ve got, so . . .

        –Andrew, @LawSelfDefense

    ThomasD in reply to dmacleo. | February 23, 2014 at 7:06 pm

    Here’s an alternate version that also fits the rough outline.

    Guy on the outside of two left turns lanes is a bit distracted/inattentive while turning (car full of wife and small kids) and crosses over into the inside lane.

    Cut off driver gets hot, speeds ahead of the offending car, and offers a choice gesture, possible a brake check or swerve in front.

    Dad, goes into cop mode, eventually flashes badge and gun, signals other driver to pull over.

    Other driver pulls over, dadcop pulls in behind.

    Other driver comes out hot and bothered, stomping directly towards dadcop.

    Does he intend harm? Who knows, but he’s big, looks angry, and is closing fast.

    Dadcop raises pistol, orders other driver to stop, while simultaneously squeezing off however many rounds he fired.

      “Dad, goes into cop mode, eventually flashes badge and gun, signals other driver to pull over.”

      This particular cop worked for the prosecutors office, he hadn’t written a ticket for a traffic violation in a great many years. “Cop mode” for him was most likely talking to witnesses to collect evidence for a case.

      –Andrew, @LawSelfDefense

        Thank you for the reply, that is certainly an interesting bit of information, and does raise questions about the shooter’s mindset.

        But cop mode does not exclusively mean ‘conduct routine traffic stop’ it could also mean ‘attempt to detain until local LEO arrives.’

        Something an investigator might have occasion to do.

          There’s something weird about an out-of-state LEO going into “cop mode” in a jurisdiction where he has zero authority to the point where he guns down an unarmed man.

          Walker’s going to need more than “cop mode” to get out of this one.

          –Andrew, @LawSelfDefense

          ThomasD in reply to ThomasD. | February 25, 2014 at 4:35 pm

          Weird, yes. Unheard of? Not remotely, happens all the time with city/county jurisdictions. That this one involved a State line certainly makes it even more questionable.

          But he wouldn’t be the first cop who was betting on getting a very sympathetic hearing from a responding officer.

          My initial attempt was to paint a plausible, if murky set of circumstances, where both had committed some wrongs.

          But the more I look at it, the more it seems Walker’s actions will not stand well against MD law.

          That said, 1st degree still seems a stretch.

        JackRussellTerrierist in reply to Andrew Branca. | February 25, 2014 at 3:08 am

        Working as an investigator for the prosecutor’s office should elevate his awareness of the trickiness of self-defense above street-cop level.

    tom swift in reply to dmacleo. | February 23, 2014 at 7:59 pm

    then an idiot decided to try to use a car as a weapon instead of calling in plate number.

    When this case first cropped up here at LI a few months ago, there was speculation about just which party was using his car in an inappropriately aggressive manner. What passed in the press for witness reports just said that the cars were “swerving at each other”, which doesn’t help much. All that seemed reasonably clear is that the initial transgression was an aggressive, clumsy, or ignorant maneuver by Walker during a turn. Who continued the aggressive behavior thereafter remains unclear.

      steveo1 in reply to tom swift. | February 24, 2014 at 9:23 pm

      More road rage. I think people are kind of tired of road rage. Dunn was in the road rage category. I’m a defensive driver, so that means a)Do you go when there’s a green light? Not necessarily. b)When do you get involved in road rage? Never. In 40 years of driving what’s worked for me is 1) don’t make eye contact 2)pull over or get out of the way of tailgaters 3)somebody cuts me off, so what 4) and somebody trash talks, roll up the window, don’t make eye contact.

I take issue with the characterization of Zimmerman as a white man. He is hispanic, which fled the media and other liberal partisans to invent the term “white hispanic,” and, as Instapundit was prone to point out, blacker than Homer Plessy of Plessy v. Ferguson fame.

Humphrey's Executor | February 23, 2014 at 6:26 pm

Ha! How is is the media going to grasp that Maryland is not a “stand your ground” state when that very buzz-phrase appears in the elements of the case-law defining the duty to retreat? Andrew is going to be working overtime setting folks straight on this one.

Phillep Harding | February 23, 2014 at 6:31 pm

1) Where, oh where, have we heard “Couldn’t he have just shot him in the leg, or something? Why did he have to kill (the poor decedent)?”

2) Isn’t self defense effectively illegal in England as a result of “The amount of defensive force used was no more than necessary to stop the attack.”

    “1) Where, oh where, have we heard “Couldn’t he have just shot him in the leg, or something? Why did he have to kill (the poor decedent)?””

    The reality is that the police shoot people in the leg all the time. I expect the lower-abdomen/legs are the number one sites of LEO fired GSWs.

    But that’s not because of intention, it’s because of crappy trigger management. Jerk the trigger, the shot goes low. Period.

    They’re aiming center-mass, like the academy taught them. They just don’t know how to shoot very well.

    (Caveat: I mean MOST police, of course. I know some LEOs who are absolutely phenomenal shots, far better than me, and I’m no slouch. But they’re not common, especially considering they’re drawn from a population of people who have their arms, ammo, and training bought and paid for by others. Go to any typical local IDPA match, you’ll find far better shooters than any typical local police department.)

    –Andrew, @LawSelfDefense

      Gremlin1974 in reply to Andrew Branca. | February 23, 2014 at 9:09 pm

      Yea, I just recently started going to IDPA events with the thought of actually throwing my hat in, but I was really amazed the cops that were there were not the best shots in the place, that point really struck me.

        Ragspierre in reply to Gremlin1974. | February 23, 2014 at 9:15 pm

        Personally, I find reading press reports sufficient.

        Take the 3 LEOs in Kulhifornia who used 103 rounds to kill a perfectly innocent pick-up that was delivering morning papers.

        Amazing…

          tom swift in reply to Ragspierre. | February 23, 2014 at 9:36 pm

          If this is the Dorner case, they didn’t manage to kill anybody, even with that investment in hardware. Eight shooters did manage to hit one woman in the back – that’s one – and lowered the resale value of their truck with the other 102.

          I know I am late here, but I think it was 8 not 3 cops who fired the 103 rounds at the blue, not grey, pickup. Hitting it some 80+ times. Also hitting other vehicles, houses some 20 times.

          The LAPD chief seemed to think that none of the officers involved there needed discipline, only retraining. Despite most of them stating that (in not so many words) they didn’t know what they were shooting at, just that others were, so they joined in. The more the merrier!

        In my experience with IDPA (and my member number is 13) it’s rather unusual to find law enforcement participating. Oh, they sometimes show up to a match, then see their comparative scores, then you never see them again.

        Any routine local monthly club match in IDPA is VASTLY more difficult than what the typical LEO shoots to qualify to carry a pistol.

        (Again, the caveat–LEO’s who CARE about shooting well DO shoot well. It’s just that most LEO’s care only to shoot well enough to qualify, and that’s not all that high a level.)

        –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | February 23, 2014 at 11:12 pm

          I have been really impressed with IDPA so far. I am thinking about joining and participating just to get my shooting skills to the next level. Most folks are very nice and I notice that they talk a lot about technique and are willing to help you improve yours. If you even just go to watch I promise you will see some impressive shooting.

          Of course you know I will use this as an excuse to by a new handgun, because I need one with a more “manageable recoil” than my Glock 22 .40 cal, hehe.

          The modest competitive pressures of IDPA also contributes substantially to “stress inoculation,” as well as revealing areas of tactical weakness most vulnerable to such pressures.

          –Andrew, @LawSelfDefense

          heh, read this and thought of our training overseas in the 80s.
          you NEVER could practice. NEVER.literally against the law.
          during qualifications you got 9 rounds (for us 9 M16 and 9 .45) to sight in using 3 attempts of 3 rounds then you qualified. with the 45 not really sighting in as just practice as sights not adjustable.
          and if you didn’t qualify you were in trouble.
          luckily it came easy to me and the only issue I had was with the M16 proving the holes at 300 meters were actually 3 rounds in a dime size hole.
          but it always amazed me that we, people in the military, were never allowed to practice yet had to pass.
          but I digress..

          That was my experience back int he late 90’s. There was a Monday evening shoot at an indoor range in north Sarasota. Some Manatee Sheriff’s deputies came otu for a while, but did so poorly they stopped coming back.

          And people tried to be nice to them about it, I think that actually made it worse.

      Phillep Harding in reply to Andrew Branca. | February 23, 2014 at 9:38 pm

      Tort lawyer triggers don’t help. Nor do idiot gun users (not always cops) who try to shoot their own kneecaps off.

      Although I do enjoy the occasional report of some idiot having an ND while stuffing a handgun down the front of his pants.

      Semper Why in reply to Andrew Branca. | February 24, 2014 at 4:00 pm

      It has been my experience that cops basically fall into two categories when it comes to firearms. The majority of them treat the gun as just another heavy item on their belt. No different than the flashlight or the pepper spray. They most likely won’t every draw it in the line of duty and they like it that way. (come to think of it, so do I)

      The ones who treat a firearm like using one is a skill to be honed are very very good.

    TrooperJohnSmith in reply to Phillep Harding. | February 23, 2014 at 6:57 pm

    True, a .45ACP round, or a Hydra-Shok in any caliber, can kill you if it hits you in the leg.

    Too many people remember that Roy Rogers, The Duke et al could shoot the gun right outta the bad guy’s hand. Too many TV shows have someone “slightly wounded” with a shot to the leg. These are the people who used to write letters seeking advice from actor Robert Montgomery, when he played Dr. Marcus Welby on the idiot-box.

    Too much TV for you, America!

      Ouch, what a clanger – that was Robert Young … when he wasn’t so young.

      The way the story goes, Robert Young once did say something about only getting roles that Robert Montgomery had rejected.

Agree that this will probably be ugly. One might expect a police officer to have better judgment than to flash a badge that wasn’t relevant in MD and a gun at someone who already was po’d.

A NJ policeman wasn’t really authorized to arrest a guy in MD was he? Should have dialed 911 – isn’t that what we’re told to do?

“A NJ policeman wasn’t really authorized to arrest a guy in MD was he?”

The irony is that MD is going to do to him what NJ has for decades done to NY LEOs.

When I was a young man it was very common for LEOs in their own jurisdictions to allow “professional courtesy” when they came across an LEO carrying a gun unlawfully. Cop to cop, you know.

Except NJ. If you were a NY cop–ESPECIALLY an NYPD cop–and got caught with a gun in NJ, they processed you exactly the same as if you were a drug dealer caught with a gun. No “professional courtesy”. A police state that enforced tyranny even over other police of the wrong stripe.

These days, of course, there’s statutes at the Federal level preventing that sort of nonsense–meaning, that sort of nonsense can now only be done to those of us not fortunate enough to carry LEO credentials.

That’s why they’ve not hit Walker with a simple gun possession charge, but rather with the use of a gun in the course of a felony charge. By definition, it only sticks if he’s first found guilty of an underlying felony.

–Andrew, @LawSelfDefense

Well, since there’s really no statutory pathway (and I wouldn’t care if there was) here’s an excellent opportunity for the jury to make a major contribution to the “case law”.

Acquit Walker quick and clean, regardless of Maryland’s stance on ‘duty to retreat’.

Its time for citizens to let judges and lawyers know how its gonna be.

Walker’s only duty was to protect his family and himself.

He already did retreat: he broke off the road incident, ending the confrontation. Harvey initiated a whole new incident with malice aforethought; having failed in one retreat, Walker had no reason to believe another would be more successful.

So Harvey got dead, and I have no problem with it–I predict the jury wont either.

Walker’s possible driving error means nothing–I ride a motorcycle on the Tamiami Trail in Florida every day. I get crowed and cut off by Town Cars regularly. Who cares.

    Ragspierre in reply to bildung. | February 23, 2014 at 7:25 pm

    “Walker’s only duty was to protect his family and himself.”

    Two things…

    1. from what?

    2. bullspit

      bildung in reply to Ragspierre. | February 23, 2014 at 10:21 pm

      From what?

      From a hulking, threatening 300 lb sorehead with a demonstrated malignant intent–that ‘what’?

      Walker had already extracted himself from the previous confrontation, but Harvey wont let it go and decides on a hostile approach.

      Do you suppose Harvey intended to inquire after Walker’s well-being?

      Trayvon, Davis, this guy–these are not innocent lambs for whom the community must extract righteous vengeance. They got dead because they intended to menace law abiding citizens.

      Juries refused murder convictions in the first two cases and this jury will refuse as well.

        Ragspierre in reply to bildung. | February 24, 2014 at 12:46 am

        But our LEO was NOT a law-abiding citizen. He was a law-breaking fool who violated not only the law, but his training and common sense, as well as the safety of his family.

          Well, to be fair, Rags, that hasn’t actually been determined except for media pundits. He’s also might be a victim of an attempted malicious mischief when a bottle may have been thrown at his car. But we don’t really know that, either. I’m gonna wait till I hear more evidence.

    “Well, since there’s really no statutory pathway (and I wouldn’t care if there was) here’s an excellent opportunity for the jury to make a major contribution to the “case law”.”

    The case law is in no way inferior to statute–in some ways, it’s superior.

    The jury will still be read self-defense jury instructions, just as they were in the Florida cases, with the addition of duty-to-retreat language.

    I personally could make a straight-faced argument for Walker’s meeting the other four elements of the law of self-defense, but he’s going to need to do some explainin’ about that retreat element.

    –Andrew, @LawSelfDefense

      As a typical civilian of the sort who would sit on such a jury, I would find Walker’s stopping, ie, ending the initial confrontation, to be equivalent to a retreat.

      In simple terms, he retreated already, that retreat was met with renewed aggression, thereby obviating any further duty to retreat.

      That may not make sense to the lawyers on this board, but lawyers are not jurors and the jurors will have a very imperfect understanding of all these legalistic conditions which are supposed to cook this fellow’s goose.

      The muddled, contradictory statements from the jurors of the Zimmermann and Dunn trials are obvious proof of that.

      What they will understand is that, however it got started, the defendant broke it off and was then menaced anew by a hulking goon with damage on his mind.

      Even the greenest lawyer could put this in terms the jurors will understand easily.

      They will not convict of murder. There is no murder.

        tom swift in reply to bildung. | February 23, 2014 at 11:20 pm

        In simple terms, he retreated already, that retreat was met with renewed aggression, thereby obviating any further duty to retreat.

        That’s not simple, that’s just plain stupid.

        Ragspierre in reply to bildung. | February 24, 2014 at 12:54 am

        You would never sit on a jury in a case like this.

        And, supposing that your idea of a “retreat” was rational, as you noted a new confrontation occurred, with a new duty to retreat.

        Plus, there was nothing in any fact we have showing a deadly threat, or even a danger of serious bodily harm.

        “In simple terms, he retreated already, that retreat was met with renewed aggression, thereby obviating any further duty to retreat.”

        Hahaha!

        No.

        –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | February 24, 2014 at 8:40 pm

          Obviously not a “retreat”, but when the cop pulled over couldn’t that end the previous confrontation? Also, if it did, it would mean that it reset the “presumption of innocence” for both individuals and the confrontation after he stopped would be a whole new event, correct?

          Ok, let’s say his prior retreat ended the previous confrontation.

          Now there’s a NEW confrontation.

          In that new confrontation, before Walker could use deadly force he had to take advantage of any safe avenue of retreat. (Some earlier retreat means nothing.)

          So, we’re back where we started.

          It’s all about the retreat (or lack thereof).

          –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | February 24, 2014 at 10:30 pm

          @ Andrew

          Yea I was asking mostly in theoretical terms. While I am sure the events with the cars swerving at one another will play some role, to me the actual deadly confrontation doesn’t really start until the vehicles stopped.

          Yep, you’re looking at it right. The legal analysis follows naturally.

          –Andrew, @LawSelfDefense

    tom swift in reply to bildung. | February 23, 2014 at 8:07 pm

    having failed in one retreat

    Stopping his car by the side of the road is a retreat?

    No wonder it failed.

      bildung in reply to tom swift. | February 23, 2014 at 10:37 pm

      So he’s supposed to turn around and drive the other way, thereby allowing the hulking goon to get directly behind him on his six o’clock?

      I’m blushing with embarrassment on your behalf right now.

        tom swift in reply to bildung. | February 23, 2014 at 11:17 pm

        Don’t be childish.

        Any way he drives he’s going to be faster than a fat guy afoot.

        Shane in reply to bildung. | February 23, 2014 at 11:54 pm

        No, he is supposed to ignore the crazy man and drive normally, and now hopefully carefully, to de-escalate a situation that could possibly turn deadly. An apology in the from of a shrug and maybe a mouthing of I’m sorry, might go a long way toward de-escalating. And if crazy man continues and actually hits his car then it is on. But attempts at de-escalation first.

    JackRussellTerrierist in reply to bildung. | February 25, 2014 at 3:23 am

    Think about Walker’s claim for stopping in the first place. It sounds fishy to me. If he was worried about his family, what with Harvey just 50 yards or so ahead, why stop? Oh, yeah, to inspect the damage from a BOTTLE that Harvey supposedly threw at his vehicle. THAT was more important than protecting his family by staying on the move. Keep in mind that there’s no claim that Harvey brandished anything at Walker.

    I’m not sure Walker’s story is going to hold together when common sense is applied to it, especially given that Walker is a peace officer.

Half-joking question: How long until the first news report that implies racism is the reason SYG doesn’t apply in this case, rather than differences in state law? (Bonus question: Or blaming the differences in state law on racism?)

Serious question: Do you know if there’s any room for arguing SYG? If self-defense is not statutory, then is there much of a basis to argue in court that SYG SHOULD be the law in MD? Or has such an argument already been tried and rejected?

    BrokeGopher in reply to m87. | February 24, 2014 at 12:57 pm

    I predict if Walker is convicted it will be proof that SYG is racist – only allowing whites to shoot scary blacks but not the reverse (conveniently ignoring that it’s not a SYG state).

    If Walker is acquitted then Walker will become white in most news stories.

“Serious question: Do you know if there’s any room for arguing SYG? If self-defense is not statutory, then is there much of a basis to argue in court that SYG SHOULD be the law in MD? Or has such an argument already been tried and rejected?”

Case law is no less real than statute, it doesn’t give the jury any greater “flexibility.”

MD is about as duty-to-retreat as a state can be, with the possible exception of MA (and, arguably, VA which allows SYG but only if you are literally as white as the driven snow, ANY contribution to the conflict, however slight, can strip you of SYG).

–Andrew, @LawSelfDefense

    Ragspierre in reply to Andrew Branca. | February 23, 2014 at 7:33 pm

    Even if not a matter in a motion in limine, I gotta believe a judge would jump down the defense’s throat with spurs on if such an extra-legal argument was attempted.

    “Mistrial” bait.

      “I gotta believe a judge would jump down the defense’s throat with spurs on if such an extra-legal argument was attempted.”

      I presume by “extra-legal argument” you mean SYG in the MD context.

      If so, I concur, 1,000 times over.

      SYG is simply NOT the law in MD. Of course he won’t be allowed to argue it.

      If trial courts allowed arguments on imagined or preferred laws, instead of on what the laws actually are, they’d never get a damned thing done.

      –Andrew, @LawSelfDefense

    Sorry, I realize now that my question was ambiguous. I don’t mean to ask whether the defendant could argue SYG to the jury. I’m curious whether you think there’s any room–and any chance for success, particularly on appeal–to argue that MD’s law should be changed to remove the duty to retreat that generally applies? In a state where self-defense is a statutory concept, there’s little room to make such an argument to courts, since the courts can’t amend the statutes. But in MD, you say the concept is based in case law, which means it can properly be changed by the courts.

      Ragspierre in reply to m87. | February 23, 2014 at 9:53 pm

      Generally speaking, you can argue anything to an appellate court. You can argue for a change in the existing case law, but it has to be a VERY well supported argument.

      “I’m curious whether you think there’s any room–and any chance for success, particularly on appeal–to argue that MD’s law should be changed to remove the duty to retreat that generally applies?”

      Fair question. My answer is “no.”

      I see no prospect for the MD appellate or supreme courts (in their case, the somewhat oddly named “Court of Special Appeals” and “Court of Appeals,” respectively) changing state law to a SYG model.

      Not all of MD is hard-blue–indeed, much of the state is very much NOT blue–but the state is controlled by Baltimore, and it’s hard to get bluer than Baltimore. I’m not sure even DC is bluer.

      –Andrew, @LawSelfDefense

Something about the initial narrative bothers me. If I had my wife and kids in the van and found myself in a road rage event, the last thing I’d do is stop my family-filled car and get out to check for dent damage from the thrown bottle. How much damage could it possibly do? That detail does not ring true to me.

    “That detail does not ring true to me.”

    I agree. And that detail could well turn out to be misinformation. Again, all we really know so far is pretty poor quality info. So I wouldn’t focus too much on the details yet, other than to recognized where they smell bad, as you’ve quite appropriately done.

    –Andrew, @LawSelfDefense

    tom swift in reply to Henry Hawkins. | February 23, 2014 at 7:47 pm

    Right, it’s not like he’s going to fix a dent right there on the road. And the dent isn’t going to damage anything if he continues to drive.

    A broken windshield or a flat tire, maybe.

    The advantage to the story is that it explains (albeit poorly) why Walker stopped his car, totally independent of whatever Harvey may have doing. In other words, Walker didn’t stop so that he could continue his altercation with Harvey. So if Harvey then stopped and approached Walker, the claim that Harvey was being aggressive is at least tenable.

      “So if Harvey then stopped and approached Walker, the claim that Harvey was being aggressive is at least tenable.”

      I expect we’re going to see a lot of “tenable narrative” emerging between now and the trial.

      At least, if Walker was smart enough not to pull a Dunn and go head-to-head with police interrogators within hours of the shooting and on two hours’ sleep.

      As a cop, I expect he’d have known better. They’re usually well trained to STFU after being involved in a shooting.

      Guess we’ll see.

      –Andrew, @LawSelfDefense

        Ragspierre in reply to Andrew Branca. | February 23, 2014 at 8:12 pm

        “Aggressive” doesn’t remotely meet any of the criteria for a use of deadly force.

        Being of a definite Scots/Irish temperament, and having worked in the oil field and construction most of my working life, I’ve met many an “aggressor”. I never felt the need to shoot any of them, or even knife them.

        Quite a few of them have been “de-agressed” by a few carefully chosen words…or a thumb in their eye-socket. Remarkable how reasonable people can become in no time at all…

        I’m also not above running around a vehicle a few times to tire an aggressive fat boy out.

        Point being, while I would without compunction kill someone who grabbed on of my grandkids, I don’t feel shooting your normal jackass who’s looking for a dust-up is the right thing to do.

          tom swift in reply to Ragspierre. | February 23, 2014 at 8:24 pm

          Sure. But (at least according to the news reports at the time), about all they could claim for Harvey’s behavior was that he approached Walker aggressively. Pretty weak stuff if there’s no further description or elaboration. Defense is going to have to make that claim at least plausible or Walker’s case won’t get off the ground.

          In other words, “aggression” by Harvey is necessary but not sufficient to justify any self-defense claim by Walker.

          I’m also not above running around a vehicle a few times to tire an aggressive fat boy out.

          That would satisfy any “duty to retreat”, I suppose.

          “I’m also not above running around a vehicle a few times to tire an aggressive fat boy out.”

          First rule: Cardio.

          I’ve done this one a few times, usually laughing my ass off. I mean, _I_ know what’ll happen if that crazy dude manages to catch me despite my best efforts to evade him, but HE doesn’t. Fortunately, most common thugs don’t have much wind. At least, none of the ones I’ve encountered.

          “Point being, while I would without compunction kill someone who grabbed on of my grandkids, I don’t feel shooting your normal jackass who’s looking for a dust-up is the right thing to do.”

          Right on, brother. 🙂

          –Andrew, @LawSelfDefense

          “That would satisfy any “duty to retreat”, I suppose.”

          Don’t forget Walker’s family. He’s not required to abandon them in order to meet a duty to retreat.

          But all of that supposes that he couldn’t simply depart, with his family, in the minivan as Harvey crossed dozens of feet to close with him. I mean, he didn’t even need to back up–he could have driven forward, and if Harvey threw himself in front of the Kia in an aggressive act that would have been on Harvey.

          Looking forward to the explanation for the failure to retreat.

          Incidentally, NJ is also of course a duty-to-retreat state–but not, of course, for cops in the course of their duties.

          –Andrew, @LawSelfDefense

          Ragspierre in reply to Ragspierre. | February 23, 2014 at 8:37 pm

          “Don’t forget Walker’s family. He’s not required to abandon them in order to meet a duty to retreat.”

          Supposing that fatboy is chasing me, and never makes the fatal error of attacking the family in the car…

          my kids would have been laughing their asses off at the entertainment outside.

          That would have been pre-camera phones. Now, of course, they would have made a video of the whole thing and posted it on You-Tube.

          Viral. In every sense of the term.

          Haha, I’m old enough to recall this one . . . “Fat and Skinny had a race, all around the pillow case, Fat fell down with a 45ACP round in his upper thigh, and then he died.”

          Modified to fit current fact pattern. 🙂

          –Andrew, @LawSelfDefense

          tom swift in reply to Ragspierre. | February 23, 2014 at 8:46 pm

          But all of that supposes that he couldn’t simply depart, with his family, in the minivan as Harvey crossed dozens of feet to close with him.

          Yes, even if we swallow the “examining a dent” theory, that wouldn’t preventing Walker et al from just decamping and avoiding any imminent threat.

          MouseTheLuckyDog in reply to Ragspierre. | February 23, 2014 at 11:14 pm

          “I’m also not above running around a vehicle a few times to tire an aggressive fat boy out.” and with some fat boys I know all that would get you is tired out as you get pummeled.

          Stamina training and energy management techniques are a part of many fight training regiments. I think especially for street fighters.

        MouseTheLuckyDog in reply to Andrew Branca. | February 23, 2014 at 10:32 pm

        And ask for their rep.

      MouseTheLuckyDog in reply to tom swift. | February 23, 2014 at 11:22 pm

      We will have to wait for the testimony. It could be that Walker knew that Harvey threw something, Walker heard a loud pop, and was afraid that some major damage was done to the car.

    Agree, Henry. Also, has a graphic of the intersection where this began surfaced? Double left turn laned intersections are not all that uncommon but usually have provisions for both lanes to proceed without impeding the other, I’d like to see the street layout on this one before deciding further about Walker, He may have been a stranger and gotten lost or confused, which a juror might lock in on and see him in another light.

    Agree with the interstate LEO rivalry thingy, though. Once had a Chicago PD sergeant stopped for speeding in CA try to slip me currency and a badge along with his license. Wanted to slap him up alongside the head, thinking I’d take a bribe! Different cultures.

      MouseTheLuckyDog in reply to 49erDweet. | February 23, 2014 at 11:25 pm

      I would have let him pass on the ticket for being a cop.

      I would have arrested him for bribery for being a Chicago cop.

      jakee308 in reply to 49erDweet. | February 23, 2014 at 11:28 pm

      Were you wearing your cover?

      In Chicago it’s not uncommon for a traffic stop cop to approach without their hat on. It’s a signal to slip them a 20 for “a new hat” (cause they must have lost theirs) and there’s some stupid traffic laws in Chicago. They won’t for major stuff but petty ante crap they might let slide.

      I’m sure that happens elsewhere also. Depending on the jurisdiction and the cop and the demeanor of the cop stopped.

Maryland Law provides

3) A police officer may exercise the powers granted by this section when … an emergency exists; and

(ii) the police officer is acting in accordance with regulations adopted by the police officer’s employing unit to carry out this section.

The Maryland Legislature defined “police officer” as

(4) a member of the police department, bureau, or force of a county

but failed to say County of this State. I wonder if there is Maryland case law that would allow Walker to argue that he had no duty to retreat because he was responding as a police office would respond to an emergency.

Is there a fund set up for this officer’s family?

I don’t quite understand the hoopla about the shirt. It appears to be a skin industries shirt which has about as much to do with mma as they do with motocross or snowboarding.. they make clothes for folks that are fans of a variety of sports.

would it make a difference if it were a tapout or a title boxing shirt? Being a fan of fighting sports a fighter does not make.

Phillep Harding | February 23, 2014 at 9:50 pm

JDH stopped his car about 100ft in front of JW’s car?

Sort of hard to react fast enough to stop that close to another car, isn’t it? Unless JDH was trying to cut JW off.

JW was an idiot for getting out of his car with JDH that close.

TrooperJohnSmith | February 23, 2014 at 10:00 pm

I’ll put down 25-green that he’s doing 35-Life in ad-seg, unless he can channel his inner “Clay Davis”.

MouseTheLuckyDog | February 23, 2014 at 10:16 pm

You mean the one where the light tells them “mext time you go off half-cocked”?

Andrew couple of quick questions.

1. Do you foresee a pre-trial hearing for Self Defense Immunity, or is it even possible since there is not real “Self Defense Statute”? If so when would you expect that to happen?

2. Also do you think that being a cop may hurt this guy. I can easily see the prosecution arguing that this guy should be “held to a higher standard” since he is a LEO. (Not saying it is fair, just saying.)Could it be argued that with his background he should have had more tools in his arsenal than just a gun? Just curious.

    tom swift in reply to Gremlin1974. | February 23, 2014 at 11:26 pm

    1. How could there be a hearing for something which doesn’t exist in Maryland?

    2. I’ve never heard of that standard being applied to LEOs. I have heard the opposite – that by being charged for his behavior he’s been “disgraced” and that he’s “suffered enough”, implying that proper legal punishment would be inappropriate. I haven’t heard that one lately, though, so maybe things are looking up.

    MD does have a SD immunity statute, but it applies only to civil suit, not criminal trial, and only when the defensive use of force takes place in one’s home or place of business. Neither is the case here, and in any case we’re at criminal trial.

    (2) I always advocate strongly for the armed citizen to possess both less-than-lethal and deadly force defensive options, consistent with the law in their jurisdiction. Doing so increases both tactical and legal arguments, and makes it much more difficult for the prosecution to argue, as they did in Zimmerman, that the defendant was just “a nut with a gun looking to shoot somebody.” (How differently might things have turned out for Zimmerman if he’d had pepper spray already in hand when confronted by Martin?)

    In this case the failure (I’m presuming) of Walker to possess pepper spray or equivalent would seem a particular point of vulnerability if, as seems likely, his training as an LEO included the carry of such for defensive purposes.

    In that sense he could arguably be held to the higher standard of someone who possessed that level and type of training (and the same would apply to a lesser degree to a non-LEO who has had similar training, as I have, for example).

    Under the particular facts of this case, I’m not sure you ever get there, because his failure to retreat seems so much more a decisive factor.

    –Andrew, @LawSelfDefense

      sequester in reply to Andrew Branca. | February 24, 2014 at 8:34 am

      If the prosecution tries to hold Walker to the higher LEO standard for his use of force, the prosecution may open the door to potentially devastating testimony.

      For example members of Walker’s own agency who review shootings, (or an independent expert) could testify that Walker acted within the guidelines of his department for off-duty officers.

      In any case, Walker’s family will testify that Harvey shouted racial epithets and threatened violence. Walker has said that he feared for the safety of his wife and children. They also plan to introduce evidence that Harvey had been drinking.

        “For example members of Walker’s own agency who review shootings, (or an independent expert) could testify that Walker acted within the guidelines of his department for off-duty officers.”

        If his actions fall within the guidelines, then they do. These guidelines will, of course, be published, so it shouldn’t be hard to prove one way or the other. But as I’ve said, this is a totally ancillary issue. The core of the case will be retreat.

        “In any case, Walker’s family will testify that Harvey shouted racial epithets and threatened violence. Walker has said that he feared for the safety of his wife and children. They also plan to introduce evidence that Harvey had been drinking.”

        None of which has anything to do with his legal duty to retreat if safely possible.

        –Andrew, @LawSelfDefense

          tom swift in reply to Andrew Branca. | February 25, 2014 at 4:51 am

          … Walker has said that he feared for the safety of his wife and children …

          That won’t help Walker so far as failure to retreat is concerned, since if he retreated via car, the wife and children would retreat along with him automatically.

          sequester in reply to Andrew Branca. | February 26, 2014 at 5:39 am

          Of course it was a joke. No Court would buy such an argument.

          I just marvel at the poor legal writing in the laws of Maryland.

      Gremlin1974 in reply to Andrew Branca. | February 24, 2014 at 8:59 pm

      “(2) I always advocate strongly for the armed citizen to possess both less-than-lethal and deadly force defensive options, consistent with the law in their jurisdiction.”

      Yea, thanks to you I am starting to feel like my belt should have a Bat Symbol on the buckle, lol.

Are there witnesses to every part of this saga?

To the incident? to Harvey swearing and the “N” word?

Just because Walker says that’s what happened, doesn’t mean it did. (not saying it’s unlikely, just that at this point it’s hearsay unless there’s corroboration)

Too many times we see comments making points and passing judgments SOLELY ON WHAT THE NEWS MEDIA REPORTED about an incident.

We know they lie (the MSM) we know they get their facts wrong. We know that some reporters have a bias.

why do we then believe they’re reporting the facts at any point?

I’m assuming that few actual statements of fact have been made (and no his attorney’s comments don’t mean squat) and no evidence presented to the public?

So let’s do like we’re supposed to and lighten up about what did or did not happen since we haven’t a clue what that is.

MouseTheLuckyDog | February 23, 2014 at 11:54 pm

Two questions which could play a big role. At what point does “duty to retreat” get exhausted? How urgent is the duty to retreat in the face of the risks of retreat?

Amid all the ambiguities of the case: how aggressive Harvey was; how aggressive Walker was etc; I think that there are two facts that are clear at the time of the shooting.

1) There was no way Harvey was going to willingly disengage himself from the confrontation.
2) There was no way that Harvey was going to let Walker disengage from the confrontation.

So if retreat is not going to be successful do you still have to try?

If Walker thought there might be some structural damage to his car which would expose his family to a possible accident, for example, a bent axle, was he still required to get in his car and drive off?

    What risk in involved in retreat?

    Retreat here might not mean a permanent end to the incident, but it would be an end to any imminent threat.

    The speculation about whether Walker may have thought damage to his car could prevent him from retreating may have merit. We’ll have to see how things shake out leading up to the trial.

    Barring that, the obstacle to Walker’s claim of self defense question is the question: did Walker have an avenue of retreat open to him at the time he chose to use deadly force?

    What could have happened after retreating is speculation, and the circumstances leading up to the shooting don’t seem to be particularly relevant given the retreat question.

Not sure about Maryland case law, but isn’t the “duty to retreat” subject to some test as to whether you believe you could safely withdraw as opposed to an objective standard?

IOW if Walker believed, or argues he believed, that the approaching nut case (who knew he was arm3e) keeping moving towards him made safe withdrawal impossible (or even problematic?), does he still have a duty to retreat?

    The duty to retreat exists only so long as the defender knows, or reasonably should have known, that a safe avenue of retreat exits.

    If Walker reasonably believed that safe retreat was not possible, he would have no duty to retreat. The jury will determine that reasonableness.

    In my reading of many, many hundreds of self-defense cases, however, where the defender has immediately access to an operable motor vehicle and the opportunity to use it to escape, and the attacker is afoot and not armed with a projectile weapon, it is all but impossible to sell the narrative that safe escape was not possible.

    Even were I a prosecutor in a SYG state I could make a robust argument that Walker’s failure to take advantage of his safe avenue of retreat, even if not a legal duty, was sufficiently unreasonable to have made his use of deadly force unnecessary and not qualified as self-defense. Such an argument is perfectly permissible in the vast majority of SYG states (a couple of SYG states prohibit such a line of argument by statute, but these are rare).

    –Andrew, @LawSelfDefense

Whether some of you seem to think by stopping the policeman had “retreated” enough it seems like he forgot he had his wife and 3 small children in the car.

When the other idiot stopped and got out, the reasonable action by the trooper would be what his wife was probably screaming for him to do – “GET BACK IN THE VAN and get us out of here.”

http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp

Maryland case search on Harvey as one assault case that was settled out of court back in 2002. Nothing to indicated a real problem with Harvey.

One must ask if Walker called 911.

Hey Andrew.

What do you think about the possibility of asking for a stand-your-ground instruction based on the Second Amendment?

Couldn’t he argue that recent Second Amendment jurisprudence indicates that the scope and depth of the amendment is vastly greater than accorded by existing caselaw authority?

As for me, I’d at least want to ask.

One other point — what if he told the victim that he was under arrest and then yelled stop but was ignored. Then it wouldn’t be a straight self-defense instruction; rather it would have been a resisting arrest via threatening behavior.

Are you suggesting a straight-up ‘citizens arrest’ or that Walker attempt a formal arrest under the authority of his status as an out-of-jurisdiction LEO?

How do you envision either scenario being different than the other?

The Dunn case had a lot to do with Dunn’s behavior after the shooting. Anyone know what Walker did immediately after? Did he call 911? Drive away?

You are forgetting one important fact, walker was from New Jersey, and everyone knows you can’t make a left-hand turn in New Jersey, so having this option available to him caused temporary insanity.. case dismissed.
Seriously, All we know at this point in time is that Walker stopped his car, the victim stopped his car. both men exited their cars, and the victim was shot.

Richard Aubrey | February 24, 2014 at 7:27 pm

Andrew.
Ref duty to retreat: I think you may have some of that correct but you might think about a couple of other things:
I have eighty thousand miles on my car and I still find the key insertion not intuitive, and muscle memory doesn’t help. I still have to crane and look. I’ve had cars where the ignition assembly is like a funnel. Hit it close and the key slides in. Others are like a cone, hit it close and you have to start over.
That’s an extra second or two. As an earlier commenter noted, being half way into the vehicle when Fat Guy arrived is worse than not being in the vehicle at all. My locks don’t autolock until a quarter mile or thereabouts down the road and the armrest has a selection of switches, one of which locks the doors. You have to look.
Where does the car have to go to be “retreating”? Foward and you run into Fat Guy–which is a different problem–left and you’re into traffic which may or may not require waiting for it to clear. Backwards to whatever is behind you, and it’s easy to swerve when backing up hurriedly and end up in the near travel lane. Or into a ditch.
How fast is Fat Guy moving compared to how long you think it might take to get into the car and start retreating?
The guy was fat. But so are some defensive linemen. He doesn’t need extensive cardio to be quick in the forty, and if he’s been a jock, he’ll be pretty good on a turn. Running around the car while your wife is trying to lock the door might seem not so reasonable an answer either.
Point is, it might be possible to make the case, depending on how close Fat Guy was when he became demonstrably a threat, that no retreat was possible in the likely time remaining.
The FBI has a twenty-one foot rule because of the time a fast-moving assailant can cover that distance versus the time it takes to decide to shoot and then shoot effectively. IOW, time and distance are inputs into justifying a shoot. Or not. And why not here?

Thing about self-defense cases, however they turn out in court, the vic is usually not particularly sympathetic.

    “Point is, it might be possible to make the case, depending on how close Fat Guy was when he became demonstrably a threat, that no retreat was possible in the likely time remaining.”

    And it seems increasingly clear that is precisely the case that Walker will have to make to the jury.

    –Andrew, @LawSelfDefense

    tom swift in reply to Richard Aubrey. | February 24, 2014 at 8:49 pm

    depending on how close Fat Guy was when he became demonstrably a threat

    Defense has a long way to go to demonstrate that he was a threat at all. All that We The People have been told on that score by police spokepersons is what they said last year – that Harvey was approaching Walker “aggressively”. Which is not terribly informative. Was that aggressively like Jehovah’s Witnesses, or aggressively like Pickett’s Charge?

      Gremlin1974 in reply to tom swift. | February 24, 2014 at 9:11 pm

      One fact that will probably shed a great deal of light on this case is how far in front of the mini van was Harvey’s body.

        Bingo.

        If that distance is substantial (tens of feet) I would not be at all surprised if the shot that hit Harvey in the leg was a “warning shot” that Walker fired into the asphalt. Such rounds routinely skip up low to the ground.

        I very much doubt most cops can hit a man-sized target at 60 feet under stress, at least other than through sheer luck–having done it under competitive pressure many times I know it takes a very deliberative focus on technique.

        Point-and-pull doesn’t get it done with a handgun at 50 or 60 feet. (Except, again, by luck–or misdirected warning shot.)

        –Andrew, @LawSelfDefense

        tom swift in reply to Gremlin1974. | February 24, 2014 at 10:23 pm

        how far in front of the mini van was Harvey’s body.

        That would help to clarify things (shoot, at this point just about any info would help to clarify things), but it’s hard to see how it might help determine just what it was about Harvey that Walker might have interpreted as a dire immediate threat to life & limb.

        Even if the defense can overcome the serious problem of Walker’s failure to retreat, it’s going to have to give a jury some reason to believe that the shooting should be considered a self-defense case at all. Fine, so the incident involved a big guy who was obviously – and maybe understandably – annoyed by Walker’s crummy driving. But that’s a long way from gunfire.

          Gremlin1974 in reply to tom swift. | February 24, 2014 at 10:43 pm

          Also, to me the further in front of the mini-van the less likely Self Defense becomes.

          Shooting someone, who is not shooting at you and had no way to shoot at you, outside of that 21 foot mark is gonna be problematic at best.

          Also the further away from the mini-van the harder it becomes to describe him as an immanent threat. Someone who is 70 feet away isn’t really any threat, especially if they are unarmed, 15 feet away is a completely different story.

          Also, the further in front of the van that Harvey was, the more time Walker had to retreat instead of shoot, which as Andrew has said repeatedly, will most likely be the deciding factor in this case.

          Also I would be interested to know how many rounds Walker fired.

    Phillep Harding in reply to Richard Aubrey. | February 25, 2014 at 3:16 pm

    Takes a heck of a lot longer to get back in the car than it does to pull a handgun.

Legalities aside, I have a hard time feeling for someone who unnecessarily gets out of the very best weapon they have.

    Ragspierre in reply to cinkidca. | February 24, 2014 at 8:09 pm

    Best defense, too.

    Both tactically and legally. If our LEO was in his van, this is never charged if he has to use deadly force. (And I am by no means convinced he ever needed to use deadly force.) But it would have completely altered the situation.

      I’m with cinkidca and Rags.

      If Walker had gotten in his minivan and been chased down . . . . even then, an unarmed man? And a man of that girth? Really, how many hundreds of yards was Harvey prepared to run in pursuit at even 10 mph? What damage could he have done had he been the dog who somehow managed to “catch the car”?

      It’s hard to escape the notion that Walker could simply have backed up and avoided the necessity to shoot entirely. That kind of thing would hurt you even in most SYG states. For reference, see my most recent LOSD Question of the Week over at Ammoland:

      LOSD Question of the Week: With No Safe Retreat, What Actions Are My Best Legal Defense? Answered: http://is.gd/yC37Wm

      –Andrew, @LawSelfDefense

        JackRussellTerrierist in reply to Andrew Branca. | February 25, 2014 at 3:45 am

        It’s also hard to escape the notion that Walker didn’t need to stop in the first place. He said he stopped to inspect damage – he didn’t say a thrown bottle had disabled his vehicle.

        Walker had already demonstrated a willingness to engage and intimidate by flashing a badge that had no authority in that state AND brandishing his weapon.

        One has to wonder what his real reason for stopping was.

One thing I’ve wondered about and this case is a great example of it. A hostile unarmed subject is approaching you and fearing for your safety you draw your weapon and tell him to get back. For whatever reason he ignores you and continues to approach, Legally Now What? Police usually have the option to switch (or at least try to)to baton, taser, OC. Civilians usually don’t.Was it a mistake to draw in the first place? Was Walker wrong to draw?

    Gremlin1974 in reply to txdino. | February 24, 2014 at 9:21 pm

    I have always been taught that as a permit holder you never, ever, ever, ever x’s 20 draw your weapon to use as a threat, brandish, or say something like “stop or I will shoot”. Never ever fire warning shots. Basically you don’t draw your weapon unless you intend to fire it, if you fire it be sure to hit and do not “shoot to wound”.

    As someone who carries for defense you are not a cop and you do not carry a weapon for the same reasons police carry a weapon. Police carry a weapon for defense, but also as a visible deterrent. You carry so that you can meet deadly force with deadly force in self defense, period. So the only reason you should draw your weapon is if you are ready to unleash deadly force upon an attacker.

    In my younger years less diplomatic years I put it to one person who was pestering me to show them my “gat”,; “No because if it clears leather someone is getting shot.”

Just for grins I called the police chief in my little town (about 60 miles from the Virginia border) and asked him if Virginia is a duty-to-retreat state. He didn’t know.

Is it possible Walker didn’t know Maryland is a duty-to-retreat state? No LEO knows every law.

Florida cops are clueless about the law. “This officer doesn’t realize that recording a police officer is absolutely legal. Everywhere. In an effort to intimidate this young lady, he tells her that recording an officer is a felony and notes that he knows more about the law than she does. In fact both of those points are lies.”
http://wizbangblog.com/2014/02/22/florida-cops-are-clueless-about-the-law/

LEOs are people, and have all the foibles…and sometimes WAY more…as the rest of us. Which has a lot of implications for CC, as some of us have learned. Defending CCL holders seems to be a growing niche market in Texas even.

I’m not sure if this has any bearing to the case, but… I live very close to the incident location, and drive that road (and occasionally stop at the Wawa) almost daily. Walker had three opportunities to leave the road before he pulled over. The third would have taken him to the Anne Arundel County Police Headquarters, two miles down the road. I grant that as an out of stater, he wouldn’t know this. But, multiple chances to escape from the other driver.

Richard Aubrey | February 25, 2014 at 5:11 pm

Due to circumstance and distance–the latter including presumed time–it seems to me Fat Guy was in three different situations:
An asshole making threats by driving.
An asshole getting out of his car.
A presumably lethal threat.

In the first case, is the other party required to retreat by driving in a different direction? If he does so, can he count on not being followed by a guy who’s such an asshole? IOW, is retreat actually possible?

In the second case, is there any duty to retreat while the guy is so far away he’s not a threat? It would seem the judgment should have been that the guy’s such an asshole as demonstrated in the first situation that avoiding him was a duty.

Third situation: Fat guy is within a dangerous distance of the cop. “dangerous” would seem to be defined as not having an avenue of retreat. If Fat Guy was close enough that the cop didn’t think he could get into his vehicle in time, then there may not have been an avenue of retreat.

But can you make a case as a prosecutor that a guy has a duty to retreat from a noisy asshole who isn’t close enough to do any damage? Yes, it would be prudent. But is it a duty?

    “But can you make a case as a prosecutor that a guy has a duty to retreat from a noisy asshole who isn’t close enough to do any damage? Yes, it would be prudent. But is it a duty?”

    Normally I would argue that there’s no duty to retreat until the threat is manifest.

    So, if some is approaching you with no appearance of threat, only to suddenly whip out a knife and charge, the duty to retreat would arise only at the point a reasonable person could expect they were facing, or imminently about to face, the possible need to use deadly force in self-defense.

    But that’s not what happened here. Harvey was clearly enraged throughout the encounter, emerged from his car enraged, walked the 100 or so feet enraged, allegedly shouting racial slurs and threats the entire time, until he was finally shot by Walker. Harvey didn’t grow any more dangerous over that time, but for the closing distance, which of course Walker was observing the entire time. Harvey didn’t grow more muscular, or suddenly display a weapon–so a reasonable person would know that if they did not retreat the necessity to use deadly force would be a certainty.

    Walker knew what the inevitable outcome was going to be if he did not retreat. There was no reasonable basis to believe that Harvey was suddenly going to regain his temper and not follow through with his purported threats of violence.

    To my way of thinking, then, the threat and likely necessity to respond to it with deadly force if it came to fruition, was manifest the entire time that Harvey was closing on Walker’s vehicle.

    The alternative would be for the law to accept that Walker was entitled to stand in place as the enraged Harvey came ever closer, with no duty of retreat in this duty-to-retreat state right up until the simultaneous instant that Walker was justified in shooting Harvey in necessary self-defense.

    Under such a strained interpretation of duty-to-retreat the phrase would have no meaning whatever–the moment the duty to retreat arises is also the moment you’re lawfully allowed to use deadly force in self-defense?

    Somehow I don’t think Maryland is going to adopt that interpretation of the duty to retreat.

    –Andrew, @LawSelfDefense

Apparently Walker was legally prohibited from leaving the scene by the Maryland Vehicle Code

TITLE 20. VEHICLE LAWS — ACCIDENTS AND ACCIDENT REPORTS

Md. TRANSPORTATION Code Ann. § 20-103 (2013)

§ 20-103. Driver to remain at scene — Accidents resulting only in damage to attended vehicle or property

(a) Stopping vehicle at scene of accident. — The driver of each vehicle involved in an accident that results only in damage to an attended vehicle or other attended property immediately shall stop the vehicle as close as possible to the scene of the accident, without obstructing traffic more than necessary.

(b) Returning to scene of accident. — The driver of each vehicle involved in an accident that results only in damage to an attended vehicle or other attended property shall return to and remain at the scene of the accident until he has complied with § 20-104 of this title.

    Gremlin1974 in reply to sequester. | February 25, 2014 at 7:20 pm

    I think it is kind of a stretch to think that Walker would have any clue about this “vehicle code”. Also, no vehicle code can make you stay in a place that you are in danger. That may be the law, but even if he did know the law, I don’t think anyone would push that he should have been following it.

    “Apparently Walker was legally prohibited from leaving the scene by the Maryland Vehicle Code”

    That’s a joke, right?

    Surely you’re not saying that Walker gets a pass on Maryland’s duty-to-retreat before he shoots someone dead on the basis of a law intended to deter people from fleeing the scene of a motor vehicle accident?

    Well, good luck with that.

    –Andrew, @LawSelfDefense

Back–several decades–in the day, I saw maybe half a dozen cases where the approaching threatening guy stopped several feet from the target person and threatened more loudly. IOW, since the threatening approach didn’t work, whatever that was supposed to be, that was all except for some additional nasty talk up close.
Not sure how I’d look at a situation like that, given what I’d seen, versus the likely actual threat. I might presume he’s going to stop and just keep running his mouth. Actual fights, compared to loudly threatening bluster, are quite rare. Maybe the cop guessed wrong.

    Ragspierre in reply to Richard Aubrey. | February 25, 2014 at 10:29 pm

    Right.

    I once had a guy literally charge me, head down, full-tilt, only to stop a few feet away as I stood grinning at him (a very peculiar response unique to me, and one which unintentionally makes people even madder).

    He expected me to throw the first punch. Instead I noted he was drunk, and it wouldn’t really be fair. His female escort gently took him by the arm back to their vehicle.

    You never know…

    MichaelJT in reply to Richard Aubrey. | March 1, 2014 at 12:28 pm

    Interesting.

    Bull elephants will also frequently display what is called a, “false charge,” stopping within a few yards of a threat such as a hunter. Some times the hunter is lucky and only gets a tremendous scare.

    Other times the hunter becomes toe jam.

Any event is never the result of just a single action. When you look back on it, there are always several steps along the way that, if another course of action were taken, would have altered the final scenario. It doesn’t matter if it is an industrial accident or a shooting. Move one aspect of the situation in another direction and everything changes.

At first Walker could have just ignored the poor driving skills of the other person and let it go. At several other points along the way to pulling the trigger he could also have just let it go and drove away. He chose not to.

How much of this decision making process is the result of being a cop and being used to intimidating people and having them obey your commands, and being enraged when they do not? The apologists for LEOs can save it, everyone knows there are a LOT of cops with authority and ego issues.

A few years ago in an interstate highway rest area not far from my home a State Trooper shot a man in the back for turning his back and walking away. They had had an argument over some item on a MVR report the trooper had accessed and the man had decided to place a phone call (this was before small, hand held cell phones were so common)to attempt to clear the matter up. This show of disrespect so enraged the trooper that he drew his .40 caliber Glock (first mistake), put his finger inside the trigger guard (second mistake) and pointed it at the back of the retreating man (third mistake). The Glock pistol, having no external safety, discharged under pressure from the troopers finger and the man fell with a bullet in his back. He lost a kidney and part of his bowel as a result of being shot.

The only thing that happened to the trooper was he lost his job. The reason the State Patrol gave for dismissing the trooper was, “Violation of Patrol policy.” In short, he was fired for drawing his weapon without good cause. NOT for nearly killing a man, just pulling his pistol. The man who was shot recovered substantial damages from the state’s insurance carrier.

As it happened, I later had some business contact with this former trooper who had moved out of law enforcement and into the private sector. His poor anger management and decision making skills were still evident, he had never lost his arrogant, bullying cop attitude.

Some people should just not be cops. I suspect Walker may be one of them, or perhaps serve as a example of how not to react to a provocation.

Also, perhaps this was discussed earlier, but was he legally able to carry a firearm in MD?

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