There was an apparent absence of imminent threat by Read, and grand jury outcomes are inherently politically biased.
On November 5, 2021, Kyle Carruth fatally shot Chad Read in the chest in a child custody-associated dispute taking place outside Carruth’s Texas home.
On March 31, 2022, news media announced that a special grand jury convened in this case returned a “no true bill,” meaning they declined to indict Carruth on any criminal charges for his having killed Read. Accordingly, it appears that Carruth will face no criminal liability over this event (although he continues to sued civilly over his killing of Read).
Does the grand jury declining to return an indictment mean that Carruth’s killing of Read was obviously and indisputably legally justified?
Nope. Indeed, to my legal eye this case continues to look to be manslaughter today as much as it did on November 27, 2021, when I published my first legal analysis of this event right here at Legal Insurrection:
That my view of the killing hasn’t changed shouldn’t surprise anybody, really, because my analysis is always based on the relevant facts and law, and neither the facts nor law have changed since my initial analysis.
Why Does This Look to Me Like Manslaughter, Rather Than Justified?
I don’t want to simply re-type everything I wrote in that initial analysis, especially as nothing has changed in that analysis, so if you’d like the details on why this looks to me like manslaughter and not a justified killing I’ll simply emphasize the strongest point in favor of that position:
At the moment that Kyle Carruth shot Chad Read in the chest with a rifle, Read was standing entirely still some dozen feet away, not presenting as an imminent deadly force threat to anybody nor as an imminent threat to any property. A killing cannot be justified in the apparent absence of any such imminent threat, and therefore the killing of Read by Carruth in the absence of such an apparent imminent force threat cannot be legally justified.
Now, I know many in the gun and self-defense communities are outraged by this conclusion–because they’ve rather aggressively told me so!–and that’s an entirely human reaction. A lot of nonsense proceeded the actual shooting, including nonsense committed by Read, such as Read bumping chests (“nipple rubbing,” as some put it) with Carruth, initially reaching for Carruth’s rifle, and then hurling the armed Carruth a dozen or so feet off Carruth’s own front porch. It’s common for people to look at that bad conduct through an emotional lens and conclude that Read had somehow “earned shooting.”
That, however, is not what the law allows, or requires. What the law requires for a shooting to be lawful is that the person shot was, in the moment, apparently presenting as an imminent deadly force threat to some innocent person. And the actual evidence in this case (extensively covered in the previous analysis linked above), simply does not support that view.
Does that mean Read’s prior conduct is irrelevant to a self-defense analysis? Not necessarily. Prior conduct by an aggressor can be relevant to whether a perception of an imminent threat is a reasonable perception–the prior conduct can buttress the reasonableness of the perception of an imminent threat.
But that still requires some degree of imminent threat in the moment. It can be useful to think of this part of the analysis as a multiplication expression:
[Prior conduct] x [imminent threat] = [IMMINENT THREAT]
So, someone reaching for their waistband, absent some prior threat, can only be reasonably perceived as someone reaching for their waistband, just as they would do if they were reaching for their wallet, or were engaged in some other inoffensive conduct.
If that same person had just previously threatened to shoot you dead, however, them reaching for their waistband is now informed–multiplied–by their earlier threat, and is now reasonably perceived as conduct consistent with an intent to carry out the prior threat.
Fair enough. But that still requires that there be some reasonably perceived imminent threat. If there is no reasonably perceived imminent threat–not what was happening earlier in the confrontation, but what is happening when the purportedly defensive shots are fired, then the value of [imminent threat] in that multiplication expression is zero. The prior conduct is not, by itself, sufficient to arrive at [IMMINENT THREAT] if the value of [imminent threat] is zero.
After all, anything times zero is zero.
To continue the illustration, someone who has issued a threat to shoot you dead, but never reaches for their waistband or otherwise commits an overt physical act consistent with an apparent intent to carry out that threat, is not (yet) presenting as an imminent deadly force threat against which you can use deadly defensive force.
It’s also important to remember that this self-defense element of imminence is not static. Like a window, it opens and closes. A threat may not yet be imminent, then become imminent (the window opens), and then cease being imminent (the window closes).
It is only while the threat is imminent–while the window of imminence is open–that the defender can justifiably use force against that apparent threat.
In this case, it would appear that there were prior periods in which Carruth might well have been justified in shooting Read dead–I’m thinking particularly of the moment when Read was close enough, and appeared to attempt, to violently seize Carruth’s rifle from his grip.
Carruth did not, however, shoot Read within that open window of imminence. And by the time Carruth did shoot Read, that window of evidence had closed–and no other window of imminence had opened. At the time of the shooting, Read was an entirely unarmed man, standing still, and not presenting as an imminent threat to either Carruth or anybody else. And one cannot shoot someone in merely speculative fear of what they might do in the future–there has to be articulable evidence from which a reasonable inference of an imminent threat in the moment can be made.
Now, if Read had begun to advance on Carruth’s muzzle, a reasonable argument of imminent threat could be made there–but that’s not what actually occurred.
(If you’re wondering why I’m suggesting this looks like manslaughter, and don’t go all the way to full-blown murder, it’s because the immediately preceding heated physical confrontation between the men strikes me as the kind of “adequate provocation” and “hot blood” that would typically mitigate what would otherwise have been murder to voluntary manslaughter.)
But What About the Grand Jury Refusing to Indict Carruth?
You may be wondering, but what about the grand jury declining to return an indictment? Doesn’t that mean that Carruth’s shooting of Read was legally correct?
I’m afraid not.
The outcome of a grand jury proceeding is largely driven by the prosecutor presenting to that grand jury–and the prosecutor is a political actor.
The grand jury does not see all the evidence in a case, it does not hear both sides of the legal narrative. The grand jury is not genuinely an adversarial process. The grand jury hears only the narrative that the prosecution wants to present–the defense has no privilege to present its side of the story to the grand jury.
As you might imagine, if a group of people is told only one side of the story, that one side is likely to sound pretty compelling.
That means that it is generally the case that a grand jury returns an indictment if the prosecution wants an indictment returned, and the grand jury returns a no true bill (no indictment) if the prosecution prefers that there be no indictment.
So, all the grand jury decision to not indict tells us, really, is that the prosecutor, in this case, preferred that there not be an indictment.
That’s not a decision made on the legal merits. That’s a decision that is the result of political calculus.
In the best of worlds, we generally hope that the outcome of the political calculus is consistent with the legal merits–but there’s no necessity that be the case, and as we see here the connection between legal merit and political calculus can be tenuous in the extreme.
For those who may doubt that this may have played a role in the case of this shooting, I would ask you to consider whether you’d agree it played a role, in the opposite direction, in such cases as the prosecution of George Zimmerman or Kyle Rittenhouse. Because if you believe politics possibly drove those prosecutions, anyone considering the matter in good faith must concede that similar political decision-making could well have played a role with respect to the Carruth grand jury (albeit in favor of not prosecuting, rather than prosecuting).
I also feel obliged to mention that such political calculations by a prosecutor, as appear to have taken place in this case, are not necessarily bad, unreasonable, or motivated by malice or personal favoritism. This prosecutor will know, for example, whether a conviction was likely on the facts of this case if the matter was put to an actual trial jury. If the prosecutor believes a conviction to be unlikely in the extreme–and that could well be the case–trial juries also often act out of emotion rather than on legal merit–then it would make little sense to drive forward an indictment only to waste everybody’s time and money on a full-blown trial that could only be expected to result in an acquittal.
I’m no fan of using the criminal justice process itself as a punishment for its own sake.
None of that changes the fact that the outcome was political, however, rather than one driven by genuine legal merit.
Beware of Outcome Bias
I would also caution against the logical fallacy known as “outcome bias.” Outcome bias occurs when someone concludes that the fact that their preferred outcome actually occurred means that this means that outcome was inevitable.
An example would be someone who loudly predicts that their favored team is sure to win the Super Bowl–and then when his team does, in fact, win, he takes that preferred outcome as one that was obvious and inevitable.
In reality, of course, the prospect of any particular team competing in the Super Bowl coming out the winner is neither 100% nor 0%–each team has some greater or lesser prospect of winning. That the preferred team won this time doesn’t mean that the same outcome would occur if the game could magically be played over a second time.
Applying that logical fallacy to Carruth’s shooting of Read, and the grand jury declining to return an indictment, it would be an example of outcome bias to conclude that because the outcome was no true bill that no true bill was the obvious and inevitable outcome in this case–the only possible “correct” outcome.
That would be a logical error. A different (or even the same) prosecutor presenting a different one-sided narrative to a different (or even the same) grand jury could very well have secured an indictment on the legal merits in this case–if that’s the outcome that the prosecutor desired.
OK, folks, that’s all I have for you on this topic.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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