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Attorney for Road Rage Cop Argues Defense of Self, Family in Opening Statement

Attorney for Road Rage Cop Argues Defense of Self, Family in Opening Statement

Judge today also imposes gag order on the attorney in trial of Joseph Walker in the killing of Joseph Harmey Jr.

Today marked the start of the case in chief of Joseph Walker, the New Jersey police officer charged with first degree murder by the state of Maryland in the road-side shooting of Maryland native Joseph Harvey.

There is no television coverage of the trial itself, and the lawyers have been issued gag orders by the trial judge, so I’m afraid there’s not much of substance to convey.

News reports do disclose that the Walker legal defense is one of self-defense and defense of others, but of course we already knew that.

News coverage so far consists mostly of various New Jersey police organizations expressing “support” for Walker, and members of Harvey’s family observing that Walker could easily have avoided the necessity of deadly force.

Here’s a couple of minutes of TV reporting from a local news channel, WJZ:

–-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 (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.

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Comments

So Maryland isn’t so much into Florida-style Sunshine Laws, hey?

    Humphrey's Executor in reply to Amy in FL. | July 22, 2014 at 8:37 pm

    I’m not sure how well that has worked for the “Sunshine State.” Whether or not television has anything to do with it, lately, Fla comes out looking like the Kangaroo Court capital of the nation.

Is Maryland a “duty to retreat” state? If so is the duty to retreat from any confrontation that may escalate to the use of force? Does the duty apply if others are also in danger?

    If instead of grabbing his gun and getting out of the car to confront Mr Harmey, Mr Walker instead locked all his car doors, told his wife to call 911, and backed down the emergency lane until either he could merge into traffic and be off or the REAL Maryland police arrive, thus not exposing himself or his family to the “deadly danger” that was Mr Harmey, I’d think that that could count as a “retreat”. If for some reason Mr Harmey caught up with him as he was doing this and pulled out a gun, then Mr Walker could have used his weapon to neutralize the threat. Or Walker could have just slowed way down while still on the highway, gotten into the middle land as his wife dialed 911 and taken advice from them.

    There has been a lot of discussion of these points on Mr Branca’s previous Walker posts, for just one example, this one.

      MouseTheLuckyDog in reply to Amy in FL. | July 22, 2014 at 9:16 pm

      Right oh blond bimbo of Fla. because reading of those posts will impart a great deal of information. Such as the name of the deceased attacker.

        Tee hee! Because misspelling a man’s name TOTES negates anything else I had to say, and in fact casts me into non-personhood as a know-nothing blond bimbo.

        Well if that’s what you have to believe in order to make yourself feel embiggened, you just go for your little life, honey-pie. I’m a helping person, I like to help. It’s who I am; it’s what I do.

        Have a blessed day!

        You might wish to keep in mind, Mouse, that posting here is a privilege, not a right.

        You, like all of us, are guests here. I advise that you conduct yourself accordingly.

        –Andrew, @LawSelfDefense

    Ragspierre in reply to sequester. | July 22, 2014 at 7:04 pm

    Yes. Kinda. Depends. In that order.

inspectorudy | July 22, 2014 at 10:40 pm

If one of the witnesses is to be believed that Walker was over 40 feet away when he yelled at the victim so how is that a threat to him or his family? One would assume that if you are 40 feet away from a perceived threat that you could just leave with no consequences.

    tom swift in reply to inspectorudy. | July 22, 2014 at 11:17 pm

    One might speculate that that’s why Walker told the police his strange story about stopping his car to check his tires, and being so absorbed in the inspection that he didn’t even know that Harvey had also stopped and was walking toward him.

    Without that detail, there seems little justification for Walker’s stop or for his failure to avoid Harvey’s approach by just driving away, thereby removing both himself and his family from any immediate threat. His claim of ignorance of Harvey’s whereabouts is essential if he hopes to make a plausible claim of defense, either of himself or others, and justify his failure to retreat.

    Since we’ve seen no witness statements which support Walker’s story, and several which flatly contradict it, I expect the defense to have some difficulties.

      bildung in reply to tom swift. | July 23, 2014 at 8:54 am

      Several of these ‘witnesses’, several of whom didn’t actually see anything, contradict each other as well.

      The defense, if competent, should bring these ‘witnesses’ to a nullity.

      The evidence, on the other hand, being the location of Harvey’s drunken corpse, supports Walker.

        tom swift in reply to bildung. | July 23, 2014 at 11:28 am

        The evidence, on the other hand, being the location of Harvey’s drunken corpse, supports Walker.

        Not even slightly.

        If Walker shot Harvey when he was relatively far away, there’s little justification for deadly force to avert an imminent attack, and no excuse for failure to retreat.

        If Walker shot Harvey when he was very close, it doesn’t support the story that Walker didn’t know he was there until it was too late to escape. Walker could simply have been waiting while watching Harvey, as witnesses have alleged.

          bildung in reply to tom swift. | July 23, 2014 at 9:42 pm

          The circumstances of how Harvey arrived on top of Walker will be too murky and fast breaking for the jury to sort out–reasonable doubt will accrue to Walker.

          The point is no one made Harvey approach–that was the decisive action that initiated Walker’s response.

          It is irrelevant whether he ‘deserved’ to get shot–he simply did, for the plain reason that he failed to behave in a manner that secured his own safety, in choosing to menace another person, whether that shifty you know what rope a doped the big dumb oaf or not.

          Gremlin1974 in reply to tom swift. | July 24, 2014 at 1:41 am

          “The circumstances of how Harvey arrived on top of Walker will be too murky and fast breaking for the jury to sort out–reasonable doubt will accrue to Walker.”

          Harvey’s body was 6 feet from the front of Walkers car, while Harvey’s car was 150 feet from the front bumper of Walkers car. That’s not the least bit hard to sort out. Also, Harvey is not on trial here so I think you give way to much to how his actions will be viewed. Most of what you seem to think will be brought up in trial will likely not ever be entered into the record. Like Harvey’s past, which is completely irrelevant in this case because there is no way that Walker could have known about Harvey’s past.

          Guy in reply to tom swift. | July 24, 2014 at 3:57 pm

          I do imagine you know more about the law than I do, but I understand the law puts an obligation of Mr. Walker to retreat if he could – not if there was ample time or room for him to escape. If Walker had to escape he was in danger whether or not he had the time or room to escape.

Why do the progs adore guns when in the hands of the police? We are getting more than our share of thugs with badges, just like the defendant.

Is there any record of abuse by Walker or any use of force complaints against him in his capacity as a police officer?

Is there any evidence to consider Walker a ‘thug’?

I believe it was Harvey with the background of heavy drinking, woman beating and skin head affiliations–even his buddy at the scene portrayed him as an enthusiastic brawler–but Walker is the thug?

I’m beginning to wonder if these bizarre, counterintuitive attitudes would be different if Harvey were a fat, sweaty, pseudo-criminal black and Walker were a nice warm shade of pink.

    I agree with you 100%. Detective Joseph Walker is the Trevor Dooley of law enforcement. Detective Walker to my knowledge has no history of misconduct,violence as an LEO. Compare that to the killers of Oscar Grant,Eric Garner etc. Amy from Fl says its time for some so-called conservatives to rethink their knee jerk love affair with the police as well. That has already been done. Sean Hannity,Mark Levin,Michael Savage,Steve Malsberg,Laura Ingraham and so many others ,that are pro police are not defending Detective Walker.The chilling effect will be for Black police officers that shoot White and kill civilians if Walker is convicted.

      Maybe I missed your explanation earlier, and if so I apologize.

      But WHY is it that you think black police officers ought to be permitted to unlawfully shoot and kill white people? Or white officers to unlawfully shoot black people? Or anybody to unlawfully shoot anybody?

      –Andrew, @LawSelfDefense

        If you are referring to me,here’s my view. No Black police officers shouldn’t be allowed to unlawfully shoot and kill white people. Nor do I believe White police officers should be allowed to unlawfully shoot and kill Black people. Nor should anybody unlawfully be allowed to shoot anybody. My issue as I stated is when you look at this from an Historical context,there is an unequal application of laws when it comes to these matters. If the shooters of Oscar Grant,Aisha Jones,Amadou Diallo were treated the way Joseph Harvey’s shooter I’d have no issue. In my opinion this would be just. The same with private citizens in self defense cases. As a lawyer you fight for equity in the court. That’s what I want.

          “As a lawyer you fight for equity in the court.”

          As a lawyer I fight for the client beside me.

          History and “social equity” (whatever that means) I leave to others, as they’re rarely legally relevant to the case at hand.

          I would suggest that your insistence that the other police shooting cases you cite, all with their own unique fact patterns, are somehow precisely analogous to the Walker case, and therefore all should result in precisely the same outcomes, is somewhat childish, especially coming from a legal professional.

          –Andrew, @LawSelfDefense

    Gremlin1974 in reply to bildung. | July 23, 2014 at 7:58 pm

    “Is there any record of abuse by Walker or any use of force complaints against him in his capacity as a police officer?”

    If there are no previous complaints does that mean that he couldn’t have made a boneheaded decision on this one day?

    “Is there any evidence to consider Walker a ‘thug’?”

    Nope, none what so ever thus far, but it really doesn’t matter since the comment you are referring to didn’t call Walker a thug.

    “I believe it was Harvey with the background of heavy drinking, woman beating and skin head affiliations–even his buddy at the scene portrayed him as an enthusiastic brawler”

    Which of course means he deserved to be shot on the side of a dark road while unarmed?

    “–but Walker is the thug?”

    Once again no one said that.

    “I’m beginning to wonder if these bizarre, counter-intuitive attitudes would be different if Harvey were a fat, sweaty, pseudo-criminal black and Walker were a nice warm shade of pink.”

    Yes, I do think it would be a different story. I believe that Walker would be being depicted as a racist who just wanted to shoot a black guy and may be facing hate crime charges as well. Not to mention most likely being drug though the mud by the media and such luminaries as (not so)Sharpton as was Zimmerman.

      bildung in reply to Gremlin1974. | July 23, 2014 at 9:29 pm

      The comment I’m obviously referring to mentions “…thugs with badges just like the defendant”.

      Please re-read.

      And I’m not wondering about the predictable attitudes of known race hustlers, I’m wondering why com mentors here would impute legitimacy to absurd, left fascist “self-defense” laws in blue state dystopias and why there is such a rush to impugn and ‘thug up’ Walker, when such a characterization
      clearly better applies to Harvey, the undisputed aggressor in this case.

        “clearly better applies to Harvey, the undisputed aggressor in this case.”

        Where’s the evidence of Harvey’s deadly force aggression THAT WALKER WAS UNABLE TO RETREAT FROM WITH TOTAL SAFETY?

        That’s the standard in MD.

        I’m a very strong proponent of Stand-Your-Ground for public policy reasons (although it’s tactically and pragmatically idiotic).

        But SYG happens NOT to be the law in MD. Or, for that matter, in NJ.

        Walker had a duty to safely retreat if possible before resorting to deadly force in self-defense. It was possible. He didn’t.

        What MD law does NOT allow is to stand, gun in hand, while you watch a non-deadly force aggressor approach you from 100+ feet away just so you can shoot him three times when he gets close enough to fit within the narrow capabilities envelope of however they train NJ cops working for the prosecutor’s office.

        That’s not self-defense.

        –Andrew, @LawSelfDefense

JackRussellTerrierist | July 23, 2014 at 12:13 pm

First call to 9-1-1 was after the fact, and the first words were “A police officer has been attacked!”

What a load.

The entire defense is a load.

    Gremlin1974 in reply to JackRussellTerrierist. | July 23, 2014 at 8:03 pm

    While I am not sure this was a good self defense shoot, I think I can understand why Walker would make clear he was a police officer first. Not that being a LEO should excuse him for anything, but I can understand him saying a LEO had been attacked. Under stress having just fired him weapon “in anger” for the first time (as far as we know he had had no prior shooting incidents) most folks are going to resort to type. So I don’t think it really calls his defense into question.

    Now I just can’t believe that a trained LEO, heck or even a decently trained civilian, would not have keep their eyes on Harvey’s car until it was well out of sight and that he just let Harvey “sneak up on him”. Just don’t see it.

      “While I am not sure this was a good self defense shoot, I think I can understand why Walker would make clear he was a police officer first.”

      The whole scenario is precisely BECAUSE he was thinking with his cop brain.

      I know TONS of cops would have done the same–expectation that they show the badge/gun, they own the situation.

      Didn’t work out this time, he ended up shooting and killing a man.

      By the way, I have a very strong belief that he shot accidentally–startled reflex in response to cognitive dissonance, then the other two rounds when he realized he was committed.

      Doesn’t matter–none of that matters. HE COULD HAVE STAYED IN VAN, PUT IT IN REVERSE, AND BACKED UP IN TOTAL SAFETY.

      Were he in NJ it’s quite likely he would have benefited from the “he’s a fellow cop” application of the law of self defense. Indeed, MD might easily have chosen to extend him that courtesy.

      But they declined to do so–they chose to apply the law to him as they would to any of us.

      And the cost to Walker and his family will be severe.

      I wish Walker didn’t have to go to jail. From what I hear, from people I trust, who know him personally, he’s NOT an out of control cop. I hear he’s a genuinely nice guy, just goes about his job, doesn’t give people shit.

      But on this day he made very poor decisions. And those decisions unnecessarily cost a man his life. And MD seems determined to hold him to account under their laws.

      –Andrew, @LawSelfDefense

        JackRussellTerrierist in reply to Andrew Branca. | July 24, 2014 at 4:56 am

        Let us not forget that Walker is a trained peace officer with insight into justifiable shootings. I believe he knew from the git-go what he SHOULD have done but made a conscience decision to shoot Harvey who had enraged him and believed he’d get enough professional LE courtesy from MD LE that they’d rule it justifiable and not even file.

        But he changed his story. First he said Harvey “A police officer has been attacked” Not “man down from gunshots. Then he said Harvey “pulled him over”. How? Harvey was ahead of him. Then he laid the goose-egg story No.3 about the rumble strips. He’s a cop. He knows rumble strips. And if Harvey “pulled him over”, why wasn’t he watching him instead of checking his tires (roll eyes) and let the unarmed Harvey get within close enough range that he could claim self-defense? Has it occurred to anyone that another reason Walker let Harvey get that close with his (walker’s) weapon brandished was to see if Harvey was armed, thus giving Walker 100% control?

        And as you point out above “I’m a very strong proponent of Stand-Your-Ground for public policy reasons (although it’s tactically and pragmatically idiotic).” :

        There are multiple questions to be considered very quickly in these situations. You often have seconds to decide.

        A) Do you have the legal right to shoot ? (varies by state and by situation)

        B) Do you HAVE to shoot ? Because if you do, you are in for a world of shit no matter what, it will probably break you financially, as long as there’s an Internet you will be famous for shooting someone (and that fame will NOT be a good thing in your life, it will be BAD kind of fame, if not quite infamy)

        To me, question B is the one to deal with first. If my answer to B is ‘yes’, I’m gonna make a loud noise BANG ! And what follows follows, like ‘A’ and other questions.

        But ‘B’ has a corollary, IMO – ‘Is there an acceptable (to me) way I can choose to NOT shoot ?’ Or ‘Has it absolutely reached the point where I have no choice ?’

        Screw whether ‘I have the legal right’ or ‘Can I get away with it’, those don’t matter to me. They won’t cause me to shoot or not shoot.

        That other recent FL case, I forget his name, that shot a kid in a car – he thought the answer to ‘A’ was ‘yes’, and that guided him. Right into a world of shit he will never escape. Marissa Alexander – same thing. Now Walker – same thing.

        ‘A’ is a legal question, for lawyers to argue about for years. ‘B’ is a personal action decision you get maybe a few seconds to answer. If you can find a way to answer ‘B’ in the negative, ‘A’ will not need to be answered.

        I have been in one situation in my life where the answer to ‘A’ was ‘yes’. My answer to ‘B’ was no. I am glad I made the choice I made.

        tom swift in reply to Andrew Branca. | July 24, 2014 at 9:54 am

        By the way, I have a very strong belief that he shot accidentally–startled reflex in response to cognitive dissonance, then the other two rounds when he realized he was committed.

        That implies that Walker deliberately put two shots into Harvey not for his own defense from a dire threat, but as a coverup for his clumsy accidental discharge. He could avoid an almost certain negligence charge by turning the case into one of self defense.

        If so, then Walker’s subsequent police statements about checking his tires, being unaware of Harvey’s proximity, etc, were most likely fabrications to support the defense scenario, and so part of the coverup.

        If these conjectures are accurate, then Walker fully deserves whatever he gets.

Richard Aubrey | July 24, 2014 at 7:45 am

Duty to retreat from what? There can’t be a duty to retreat from something which is not a threat.
So the prosecution will want to show that Harvey was a threat, perceptible to any reasonable person, from the time he pulled over AHEAD of Walker.
Walker, it will have to be shown, should have seen the threat the instant Fat Boy got out of his vehicle and gotten into his van and left. Which, of course, would involve backing–a van–down the shoulder or otherwise clearing a path to enter the traffic. At which point, of course, Fat Boy would not be standing in his way blocking his access to the travel lane.
No problem.
Problem is, if Fat Boy is such a threat as to be perceptible at 100′, he’s even more of a threat when he’s closer. IOW, worth pointing a gun at and telling him to stop.
Simultaneously, the prosecution is going to have to argue that Fat Boy was so little threat that he didn’t deserve shooting. And if he’s such a teddy bear….
So Walker’s crime is failure to retreat from a non-threat which was so threatening he should have known it even though there was no threat.
It’s one thing not to retreat from somebody who is, say, in a wheelchair and you have any number of escape routes. It’s another to not retreat when you’re in a blind alley with no fire escapes hanging down. (In which case, MD would probably prosecute on the grounds you sucked in a too-eager assailant and it’s all your fault.)
But those two exaggerated cases presume there is a threat.
Harvey, the prosecution will have to argue on odd-numbered days, was no threat. Even-numbered days, of course, he looked like a Viking raid from the get-go.

    “So the prosecution will want to show that Harvey was a threat…” etc.

    Bull. The prosecutor has to prove one thing – that Walker could have retreated. Period.

    In MD, it doesn’t MATTER if Harvey was a threat, a big threat, a little threat, a far away or nearby threat, etc.

    ‘Did Walker have a way to retreat ?’. One question. Yes or no answer. Then sentencing.

As our esteemed blogger pointed out previously:

Legally-Sound Self-Defense Strategy Rule #1: KEEP OUT OF TROUBLE IN THE FIRST PLACE

[T]oo many people when first arming themselves feel as if, “Hey, now that I carry a gun, I don’t have to take BS from anybody.”

The truth could not be more the opposite. For those of us who carry a gun, we have to take BS from everybody. Except the felony aggressor. He we can defend ourselves against. But the merely obnoxious, bullying types that roam this earth–well, my advice is to simply avoid them.

I agree with PJM’s philosophy above, and to Mr. Aubrey, I’d ask, “Is there any possible way you can think of where Mr. Walker could have simply avoided all this trouble in the first place?” Like, by deciding to be the grown-up here and just driving his wife and children right on past the already-pulled-over and stopped Mr. Harvey?

Richard Aubrey | July 24, 2014 at 9:15 am

Amy
IIRC, Walker stopped first. Then Harvey. Staying out of trouble is different from retreat. Retreat requires a perceptible threat. There has been discussion about the difficulty, or not, of getting back into traffic, but without active brawler Harley getting himself in front of the car, another consideration.
My point is how the pros is going to have to describe Harvey.

From the comments,I notice the emphasis should have been on Walker to avoid conflict,not Wafer. Very telling.

    The duty to retreat is imposed upon the person who used deadly force.

    That would be Walker.

    And the person he shot and killed is Harvey. Wafer is a different trial altogether.

    –Andrew, @LawSelfDefense

Richard Aubrey | July 24, 2014 at 11:26 am

I believe mj is comparing the two trials.

The duty to retreat in the face of no threat???? Retreating after use of deadly force is kind of a waste of time. So we need a threat. Otherwise, we’d be retreating from good samaritans who want to help us change a tire, people whose business takes them past us on the sidewalk, etc.
My point is that the prosecution has to show Harvey was a perceptible threat. In fact, a huge threat. OTW there’s no duty to retreat. And after demonstrating to the jury that Harvey is the kind of guy whose threatening demeanor and actual assaults as recreation, we depend on the jury to not come to the conclusion he needed killing. This is the kind of guy some of the jurors may have met to their discomfort.

I’m in a SYG state. Talking to a NRA CCW instructor and an attorney-excop who specializes in the field. You may have a righteous shoot, but your life will never be the same. Case in point: A Harvey type started something at a gas station, and approached a CCW guy with an upraised lid of a trash can. Got himself shot. No charge.
My point is that, wrt my background, I’d be inclined to kick the guy in the balls. He’d be thinking from the neck up, protecting hothing. Wouldn’t have seen it coming.
So, in MD, would we have a duty to kick a guy in the nuts before shooting him?
Anyway, lawyering aside, this goes to a jury of honest citizens of MD who will be wondering just how much sense the portrayal of Harvey as threat/teddy bear makes.

    “My point is that the prosecution has to show Harvey was a perceptible threat.”

    This is nonsense.

    The State is trying to DISPROVE self-defense, not prove it.

    If Harvey is NOT shown to have been a threat, that is GOOD for the State–clearly Walker had NO lawful justification to use deadly force against someone who was NOT presenting an imminent, otherwise unavoidable threat of death or great bodily harm.

    Oofah.

    –Andrew, @LawSelfDefense

    “Talking to a NRA CCW instructor and an attorney-excop who specializes in the field.”

    Please tell me you’re not describing yourself.

    –Andrew, @LawSelfDefense

“My point is that the prosecution has to show Harvey was a perceptible threat.”

Wrong. The fact that Walker fired his weapon is proof positive that he believed there was a threat at that moment. Unless he claims ‘accidental discharge’ or ‘I just wanted some target practice on a live target’, the question is closed before trial.

Walker thought there was a threat. Period. Rightly or wrongly, that is what he thought. Given that, he has a duty to retreat under MD law.

“Retreating after use of deadly force is kind of a waste of time.”

Wrong. Let’s say you believe a threat justifies shooting, and you think you can not retreat (in MD). Legally, your thought pattern is supposed to be ‘I need to stop this threat’, not ‘I want to kill this guy’.

So you shoot. He falls down. Now your obligation is the re-evaluate the threat, and consider options to retreat, like to attain a place of greater safety in case he gets up, etc. If you say ‘ Hell, I wanted to kill that SOB’, you might as well just plead guilty and save some time.

“My point is that the prosecution has to show Harvey was a perceptible threat. In fact, a huge threat. OTW there’s no duty to retreat.”

Bull. Walker proved beyond all question that HE BELIEVED THERE WAS A THREAT when he pulled the trigger the first time. That issue is a done deal. And BTW, as you seem to suggest, you do not get to shoot people and obviate any ‘duty to retreat’ on the basis that you think they are not a threat. That is called ‘Murder’. Plead guilty if you don’t have a better theory of the case.

“depend on the jury to not come to the conclusion he needed killing. ”

Apparently you have never read or studied one single word of law. Juries do not get to decide ‘he needed killing because he’s a mean guy anyway’.

“Anyway, lawyering aside, this goes to a jury of honest citizens of MD who will be wondering just how much sense the portrayal of Harvey as threat/teddy bear makes.”

Irrelevant in MD. The question they will consider (after ‘Did Walker think was there a threat ?’, which Walker already answered when he pulled the trigger) is ‘could Walker have retreated ?’.

Richard Aubrey | July 24, 2014 at 1:21 pm

The comments missed the point. Walker has no duty to retreat from a non-threat. Therefore, the prosecution has to show Harvey was a threat from the get-go. If, otoh, Harvey was not a threat until he got close, then the duty to retreat is required in a very short window and the defense may be able to make the case it was impracticable.
The prosecution needs a long window, at least from the time Harvey got out of his vehicle, in order that Walker have time to perceive the threat and leave.
So the prosecution, in order to lengthen the window to the jury, has to make Harvey a threat immediately discernible from 100′ (likely to be pretty scary looking, which the prosecution is going to have to say Walker should have picked up on), which is likely to make some of the jurors wonder about the whole thing. That’s my point.
No. I’m not an NRA instructor. Haven’t pulled a trigger in forty-plus years. Before that, I was qualified in every weapon in the rifle battalion but the heavy mortar and, due to extra effort, hands, feet, knives, chairs and suchlike. That’s why I figured the shoot described was legally okay but morally should have been preceded by a kick in the nuts.
The attorney told me I’m not required to risk injury. I see his point, but there’s sleeping afterwards….

I’m not an attorney. When I was getting ready to enlist, my mother, having had enough Infantry in the family, asked me to go to med school or divinity school to get a deferment. Didn’t mention law school. She had her scruples.

“Therefore, the prosecution has to show Harvey was a threat from the get-go.”

Uh, you don’t think the swerving at each other road-rage encounter immediately preceding the shooting establishes that foundation?

Harvey was not some random, unknown entity advancing on Walker and his family, one who evidenced a threat only suddenly when merely feet away. harvey had only just engaged in road rage actions that could easily have led to the death or grave bodily injury of Walker and his family.

Then, there was a pause in the encounter when the two cars were on the side of the road, 100-150 apart.

At which point Walker could have, in the face of this identified threat, safely retreated. Instead, he chose to use deadly force in self-defense.

Thus breaching his duty to retreat under MD law.

–Andrew, @LawSelfDefense

Richard Aubrey | July 24, 2014 at 1:56 pm

Andrew. In the earlier thread, there was talk of who was meaner to whom on the road. This time, it’s all Harvey. So he’s even scarier. So, breaching his duty to retreat, or not, the point is whether the jury contains any Judge Roy Bean guys.

Richard Aubrey | July 24, 2014 at 5:35 pm

Is there such a thing as a concept of the law which is too twisted?
I was called for a jury. Didn’t get questioned, but the folks who were…. Let me just say that, for example, OJ was acquitted.
And the “needed killing” is a story, a metaphor, possibly true, or not, and refers to a view of a…. Hell, you know it as well as I do. And whether Bean got himself in trouble later has exactly zero to do with the point.
My point is, to make Walker’s duty to retreat as obvious, unequivocal, etg. Harvey is going to have to be painted as an obviously ravening monster with, I submit, unproductive effects on the jury.

“Is there such a thing as a concept of the law which is too twisted?”

Yes, and you own one. Or several.

You are utterly clueless. Look at these two options, under MD law :

Option # 1 – there was no threat, or Walker did not perceive one, or any variation of that ‘no threat’ theme. Walker shot him down and killed him for some reason other than ‘threat response’. That is called ‘murder’.

Option # 2 – there WAS a threat, or at least Walker DID perceive one, etc. Then, did he attempt retreat as required in MD ? Obviously he did not, he makes no claim to have done so. So, did he have that ABILITY to retreat ? THAT is the question at hand for the jury. If there was a means of retreat, in MD it’s Murder.

I think no one will believe the ‘rumble strip sound, I had to check my tires’ idea. Anyone who has driven much at all has gone over ‘rumble strips’. And can see them while still moving.

While Harvey was still 100′ away, Walker could have glanced at his tires, seen no flat, and got back in and left. I can do that in 5 or 10 seconds, a whole lot faster than you can walk 100 ‘.

Alternative – Walker didn’t have to stop at all right then and there. Even if he worried about a flat, he could have driven away easily, at leat a few miles.

    “While Harvey was still 100′ away, Walker could have glanced at his tires, seen no flat, and got back in and left. I can do that in 5 or 10 seconds, a whole lot faster than you can walk 100 ‘.”

    ^^^ This. ^^^

    –Andrew, @LawSelfDefense

IOW – the cops could care less if Harvey was a threat or not.

If he was not, as you worry about – then there was no excuse for shooting him. The cops would LOVE for there to have been ‘no threat’, because then Walker is an even more obvious conviction on the top count for them.

If he was, then MD law mandates that you try to retreat if possible. Walker did not try. The jury needs to decide ‘could he have ?’. IF they agree there was a threat at all.

Richard Aubrey | July 25, 2014 at 9:11 am

Still missing the point.
If Harvey is no threat…obviously Walker shouldn’t have shot him.
However, the point is, if Walker were to have a practical window in which to retreat, the longer it is, the better for the prosecution. Hence, the need to portray H. as a menace from the earliest possible moment.
You mistake the object of the jury trial. It is not to convince Aubrey. It is to convince a jury. Which, in this case, will have been treated to the picture of H as a ravening monster anybody could have seen immediately, most particularly a cop.
Were any of the jurors asked, “Have you ever been pushed around or assaulted by guys like Harvey?” They weren’t? Then maybe some have.
OTOH, if the defense can make the case that W either didn’t see H approaching, or thought it was a non-threatening approach until the last moment, then the window in which retreat is possible is quite short, meaning it may be possible to make the case that it was impossible. Depending on details like whether the keys were in the ignition, the car was running, the kids were belted in, which side of the car W was on, which side of the car H was on, any of those items which a skilled attorney can inflate to an importance approaching that of Revelations.
Suppose the defense can make the case that, although a cop, W hadn’t been on the street in some years and his radar was offline. Instead, he was in his usual mode of excessive Christian charity, wanting to believe the best of everybody–I exaggerate, perhaps just couldn’t believe somebody like H would actually be somebody like H coming along to ME, of all people and all days, ffs–and didn’t and couldn’t be expected to have perceived a threat until too late.
So, imo, the prosecution is going to want to prove W should have perceived the threat immediately, which is to say, demonstrate that H was the kind of guy who, in the interests of the rest of us, is better off dead.
I’m willing to believe W figured that pulling over would tempt H beyond bearing, and was sucking him in. In this case, though, the prosecution would have to show H taking eager advantage of the opportunity to beat the hell out of a family man. I’m also willing to believe that W’s situational awareness was in his other pants.
I’t talking about what the prosecution is going to want to show the jury and its probable effect on the jury.

I want to believe that Harvey was not a threat during 94 of the 100 feet of his walk towards walker, and went “mad dog crazy” right at the end, leaving Walker no choice but to shoot.

However, as Andrew points out, there are other facts (the road rage chasing) that make this story a bit hard to swallow.

I suspect that Walker went into a mode in his own mind that could be summarized as “I am LEO, I retreat from no-one!” This will cost him and his family dear.

Richard Aubrey | July 25, 2014 at 6:25 pm

Twanger. I mostly agree, but the prosecution will need to extend the threat substantially beyond/before the last six feet, including the road rage issue. If it’s only six feet, W has no retreat.
IOW, there may be some people on the jury who are glad H got what was coming to him, finally.
It would be interesting to hear arguments from the prosecution that the late lamented deceased was a bloody-minded thug–who, implicitly, improved the world by his leaving of it.
The defense might want to promote your view.

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