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Chad Read Shooting: Still Looks Like Manslaughter, Despite No Indictment

Chad Read Shooting: Still Looks Like Manslaughter, Despite No Indictment

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:

Chad Read Shooting: Evidence Supports Manslaughter, Not Justification (Nov. 27, 2021)

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.

Period.

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:

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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Comments

Free State Paul | April 8, 2022 at 7:52 pm

Question: What if you make the decision to shoot while the “window” is open, but it closes right before you pull the trigger?

At my gun club we play a shotgun game called Cutthroat. If the player to your left shoots at the bird and misses, you can shoot and if you hit the bird he’s out. It’s easy in the excitement to think he missed and decide to shoot, only to see the bird break after the signal has left your brain and is traveling down your arm to your trigger finger!

    Colonel Travis in reply to Free State Paul. | April 8, 2022 at 9:21 pm

    I don’t know what kind of scenario you’re talking about. It is physically impossible for a human being to shoot the instant the thought occurs. There is always going to be a delay.

    When I had classroom time with Massad Ayoob, he pointed out studies that show that human response time to an anticipated stimulus is roughly a quarter of a second. Also, a human body can make a 90 degree turn in a quarter of a second. Let’s say a bad guy is facing you, pointing a gun at you then sees you with a gun also. The bad guy starts to turn away and run. During all this you decide to shoot twice but by the time your bullets hits the guy (assuming they are hits), they will be in his side and possibly back. A prosecutor can say – you shot him when he was running away. OK, but when you made the decision to shoot, he wasn’t. What the prosecution demands is simply not possible.

    The only way you can prepare for these split-second decisions is to train, know the laws of your state and play what-if games every time you’re out. Ultimately, there is only so much you can do. The more you think about this stuff the better position you can put yourself in. There are no guarantees, especially with so many jerk prosecutors out there.

    amatuerwrangler in reply to Free State Paul. | April 9, 2022 at 11:32 am

    The Colonel has it right, but the quarter second (0,25) seems a bit fast. I have been involved in classes/demonstrations where 0.75 second is the time-lag. This is response time plus perception time. It centered on an adversary holding a pistol with arm extended down along the seam of the trousers; the other person was standing relatively close with a pistol pointed waist high at that other. Question: Who gets the first shot?

    The guy with the arm extended down. He makes the decision to shoot before making any move. The one with the gun pointed at him will not make any decision until he sees the first guy initiate his move…. and three-quarters of a second later will fire.. the initiator will have already fired.

    So, yes, the window of imminence opens and closes quickly. Someone can easily pivot 90 or more degrees in a “split second”. If you are trained in double-tap or triple-tap, there is a good chance that your second or third bullet will not enter from the front. And that will be exploited against you.

      texansamurai in reply to amatuerwrangler. | April 9, 2022 at 1:59 pm

      agree on the .25 second or so—perhaps a touch longer—but being able to raise a weapon from below your waist to firing position BEFORE a guy with a weapon trained on your waist can / will be able to respond is quite a proposition—rather than trying to out-draw your opponent , your best bet is to combine lateral movement (out of their direct line of fire and also your quickest response) with deployment of your own weapon—in the situation you describe and depending on the distance(you said “close”) might be more prudent (and safer) to go for his weapon (to deflect it) with your off hand as you bring your own weapon to bear

      am pretty good but am not Johnny Ringo—standing there and pulling against a deployed weapon is a helluva gamble and, at least for me, would be a last resort

henrybowman | April 8, 2022 at 8:03 pm

Barefoot constitutionalists I have known occasionally advise me that under common law, grand juries were envisioned as a citizen-driven affair, with independent power of investigation; and not as a pack of sheep led by a herder who intentionally chooses the path of its migration, while deliberately hiding facts from them that in his opinion they don’t need to know. I’ve always wondered how much truth there was to this theory, and whether we might be better off to fight for a return to it.

As soon as you make the decision to trespass on somebody else’s property in Texas, especially when you present a threat in the eyes of the owner, you’re liable to get shot – and the owner is likely going to walk.

    mbecker908 in reply to txvet2. | April 8, 2022 at 10:13 pm

    You’re making a bad bet with your life. You don’t know the law in Texas.

    Yes, it is legal to use deadly force to protect personal property in Texas, unlike every other state where you can only protect “highly defensible” property. However, there is a very long list of things that you must conform to in order to be legal.

    Bottom line, using deadly force to protect personal property is stupid.

Jesus

Colonel Travis | April 8, 2022 at 8:44 pm

Not comfortable with this decision, nothing I can do to change it. All I know is I will not use this as a textbook example of what to do.

My takeaway has always been that the mom orchestrated a situation to get her ex killed. she provoked the ex by not having the child where he was supposed to be and at the new “highly aggitated” boyfriends house. I just feel bad that the victim took the bait in the heat of the moment.

    taurus the judge in reply to MajorWood. | April 9, 2022 at 4:45 pm

    That was my immediate thought too. I will always believe this was most likely a set up and a planned murder ( at least by the ex wife knowing her ex would be furious) but it will never be proven.

Imminent threat means just that; it is determined by the factors in existence right now, in this moment not a moment ago or that you are predicting even one moment into the future.

Louis K. Bonham | April 8, 2022 at 11:47 pm

While this case presents weapons-grade stupidity by all involved, as I indicated in the comments last year I think his legal analysis simply glosses over the unusual (perhaps unique) aspects of Texas law.

As Mr. Branca notes in his book, Texas law allows for the use of deadly force to protect property in many more situations than most other states. Here, because the porch is considered part of a habitation under Texas law (contrary to Mr. Branca’s analysis, it’s not the curtilege, as might well be the case in other states), when the deceased stepped onto the porch and committed an assault, that was burglary under TPC 30.02. This is the key to this case. (Again, other states’ definition of burglary may be different, but here you *have* to address Texas law as it exists.)

Ergo, the deadly force analysis is be under TPC 9.42(2)(A) — was deadly force reasonably necessary to prevent / stop the commission of burglary (which, because the deceased was still on the porch when shot, will boil down to whether the shooter reasonably believed that the deceased was going to continue to commit assault).

Just as Texas law allows deadly force to prevent/stop “theft at nighttime,” it also allows deadly force to stop the commission of burglary *as defined in the TPC.* This doesn’t require an imminent threat to the person — which makes it different than most other states.

Again, I have the greatest respect for Mr. Branca (his book is in my library and I have recommended it to many), but on this one I think he needs to look at the legal issues based on Texas law alone — which is what the prosecutors and courts would do.

    Colonel Travis in reply to Louis K. Bonham. | April 9, 2022 at 2:49 am

    This is complete supposition in this case. We don’t know what the grand jury heard.

      Louis K. Bonham in reply to Colonel Travis. | April 9, 2022 at 9:54 am

      The grand jury hears *evidence.* I’m talking about Texas *law,* which the prosecutors have to deal with up front.

      If you ( or anyone else) believes my analysis of the Texas Penal Code is erroneous or inaccurate, please point out the flaws.

      Again, both parties behaved stupidly, and I won’t call such idiotic behavior by Carruth a “good shoot.” But when you stop and actually analyze Texas law — which contains a lot that is very different from other states — this result wasn’t that surprising to me.

        texansamurai in reply to Louis K. Bonham. | April 9, 2022 at 10:15 am

        the other thing that’s absolutely stunning is that of the four adults present(the antagonists and two women), at least one of which appears to have a phone, no one thinks to summon the authorities–lord–you don’t just go back in the house and grab a weapon–this entire event arose from a parent coming to collect their child–read is dead and carruth will not only have to deal with taking a life but also the knowledge that he took away a child’s father–a tragic outcome for everyone

        Colonel Travis in reply to Louis K. Bonham. | April 9, 2022 at 3:54 pm

        Right, I understand that. And I don’t disagree with what you’ve said here, but I also don’t know case law on this statute. Do you? That’s not meant to be insulting, it’s just me asking if you do. It’s important to know how courts have looked at this. All I’m saying is that we have no idea if your interpretation of the code here is what was presented in this case – that this burglary statute was, in fact, the very argument used to get him off the hook.

        Let’s say it was the very law used to get him off the hook. There is no way I would test that myself. Like you said, Texas has defense of property laws like no other state. I live in Texas, carry every day, I try to understand the law as best I can, I’m a member of LOSD, slept in a Holiday Inn Express, etc. But there is no way in hell I’m going to shoot someone over property unless my life is directly in danger. Look at what Carruth is facing now because of this. So he escaped criminal charges basically because of only where he lived. Do you think a gun-hating prosecutor in, say, Travis County or Dallas County, or any non-West Texas big city jurisdiction is going to say – AHA! I can make things easy for Carruth and use 9.42(2)(A) in his favor? Now he has civil charges. He could be financially ruined because he was a F-ing hot head. The guy was an idiot. We live in a world where lawyers, judges and juries simply blow off the law or interpret it differently. If you are going to own a gun, you have to bend over backwards to not let your emotions take over, and you must have your ducks in a row as much as possible to use deadly force. I’m not willing to risk my freedom or life to the whims of people who don’t care about the law or don’t look at it as you or I do.

          Louis K. Bonham in reply to Colonel Travis. | April 9, 2022 at 4:45 pm

          I agree that the decision to use deadly force must be made with the utmost seriousness, for obvious reasons. Just because the law might allow an action doesn’t mean it’s a good idea to do it; e.g., while Texas law gives you the right to shoot the teenager who is stealing the battery out of your car in the middle of the night (yes, there is actually an case on this), that in no way morally justifies doing so.

          And you are 100% right — especially where we have Soros-connected DA’s (Austin springs to mind), the fact that Texas law is clear isn’t going to stop the DA from using you as a political piñata . . . especially if you are of the “wrong” demographic and the criminal decedent is of the “right demographic,

          As far as TPC caselaw, I’d have to go and dig it up, but I’m quite certain that there is plenty of authority that: (1) porch = habitation, (2) assault of occupant in habitation by intruder/trespasser = burglary, and (3) deadly force to stop/prevent burglary is covered by TPC 9.42(2)(a). Just because there is not a case that contains all three doesn’t mean the analysis is incorrect, particularly where the TPC is clear and unambiguous.

          My point, again, is not to justify or excuse the idiotic decisions made by Carruth and the decedent. It’s that in this particular situation, I think Mr. Branca’s legal analysis simply doesn’t square with what Texas law actually is.

          Louis K. Bonham in reply to Colonel Travis. | April 10, 2022 at 6:40 pm

          As far as Texas caselaw goes, see McFadden v. State (https://lawofselfdefense.com/law_case/mcfadden-v-state-2018-tex-app-lexis-920/).

          Case reversed a murder conviction where the defendant claimed she employed deadly force to prevent arson (defendant’s ex had poured gasoline on her chattels and was threatening to set them on fire.

          Judge refused to give the requested defense of property instruction; jury rejected Defendant’s self defense of person defense. Court of appeals reversed, finding that case presented the situation of using deadly force to prevent an enumerated crime against property (arson), and so defendant was entitled to the defense of property instruction. More importantly, court rejected the argument that because the jury rejected the defendant’s self-defense of person defense, that meant the defense of property defense also failed as a matter of law.

          This case pretty well disposes of Mr. Branca’s claim that Texas law requires imminent threat to the person in order to justify the use of deadly force — under 9.42(2)(A), it is justified to prevent a number of offenses that do not involve an imminent threat to one’s person.

    taurus the judge in reply to Louis K. Bonham. | April 9, 2022 at 4:42 pm

    I agree with your analysis ( I’ve dealt with Texas law) and i pointed this out in the threads back when it happened.

    (And i personally stated I think this was a set up/murder and i would have arrested him and charged him with man two or similar and let the lawyers fight it out)

    The bottom line is that under Texas law 9 the only one that matters) this was legal self defense.

    Branca is just in denial.

    He also wont be sued for wrongful death etc ( Castle law prohibits it)

    This case is forever over

thad_the_man | April 9, 2022 at 12:02 am

I can live with it. You can see that as he is thrown of the porch, he is swirling and aiming. He fires once his feet touched the ground and he got his balance. Actually very graceful. To me it seems that he determined to fire at a time when he was justified.

texansamurai | April 9, 2022 at 6:15 am

cannot see this as justified–these men knew one another, this was not some blitz attack in the night from an unknown assailant (with unknowable intentions)–read was there by appointment (as aknowledged by all parties) to collect his son–carruth(et al) refused to produce read’s son–what sort of reaction could a reasonable person expect from any parent in that situation other than frustration / anger ?–then carruth, out of anger/fear/humiliation, escalates the situation by going in the house and returning with a deadly weapon to pursue the confrontation–read’s motivation, however, remains the same: ” where is my son? “–carruth continues/escalates the provocation/goading until he’s evoked an “imminent threat” response out of read and then shoots read dead

carruth introduced a deadly weapon into the event, then escalated the situation by provoking/goading read to an “imminent threat” response in order to shoot read dead

So many words to describe a simple fact. When someone orders you off their property; leave immediately.

TheOldZombie | April 9, 2022 at 7:40 pm

I think it should have gone to trial but I’m not losing any sleep over this.

Kyle Carruth if he has any intelligence at all not only should be thanking God he skated on being charged but he should dump the crazy woman who put him in this position in the first place.

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