Legal Analysis – Potential Problem With Self-Defense Claim Of Pro-Israel Protestor Who Shot Anti-Israel Attacker
The “proportionality” element of lawful self-defense will be challenged by the prosecution, leaving Scott Hayes at risk of conviction.
A man with strong feelings that the military actions of Israel in Gaza amount to genocide decides to charge across a busy street and tackle a man participating with others in a pro-Israel protest—and ends up shot in the abdomen by the man he attacked.
🚨BREAKING🚨
A man wearing a Palestinian pin was shot in the stomach this evening after he charged through traffic and tackled a pro-Israel Iraq war veteran in Newton, Massachusetts.pic.twitter.com/Ix5JEJaJNp
— Kassy Akiva (@KassyAkiva) September 13, 2024
(Various pieces of the video are referred to below)
Now the shooter, Scott Hayes, has been charged with assault and battery with a dangerous weapon and is looking at 10 years in prison. The initial attacker remains, to my knowledge, unidentified and uncharged with any crime (although I’ve just heard that an application for a criminal complaint on the initial attacker has requested). For what it’s worth, I’ve checked for a docket on Hayes’ case, but haven’t found anything filed into the court system yet.
I can now release his name since the DA put it out there.
The veteran is Scott Hayes of Framingham pic.twitter.com/Ltqf9AeLDZ
— Kassy Akiva (@KassyAkiva) September 13, 2024
It’s being reported that Hayes has been granted bail in the amount of $5,000, with a variety of conditions including GPS monitoring, but this will at least allow him to go to work and such.
Presumably Hayes will attempt to justify his shooting as lawful self-defense. How viable is that defense, and how vulnerable is it to attack by the prosecution? That’s what we’ll be discussing today.
Scott Hayes has visible cuts and bruises on his forehead, his nose and his right elbow but he’s the guy who’s being arraigned… pic.twitter.com/F48MQJE1ND
— Jonathan Bowen (@BostonByBirth) September 13, 2024
The Fight, the Criminal Charges, the Likely Legal Defense
Scott Hayes was participating with a few others in a pro-Israel protest in Newton Massachusetts, just outside of Boston, when the group drew the ire of a man across the street wearing a pro-Palestine pin and objecting to what he characterized as Israel’s genocide in Gaza.
After a brief shouting match across the street, the apparently unarmed pro-Palestine man charges the pro-Israel group and tackles Hayes, taking him to the ground. After a short bit of wrestling, a gunshot rings out, and the pro-Palestinian man takes a round to his abdomen, fired from the lawfully carried pistol in Hayes’ hand.
Hayes has now been charged and arraigned on the felony of assault and battery with a dangerous weapon—an offense good for 10 years in prison.
Presumably, Hayes will raise the legal defense of self-defense as a justification for this shooting, and the Commonwealth prosecutors will be obliged to disprove that claim of self-defense beyond a reasonable doubt in order to secure a conviction on this felony charge.
If they can do disprove Hayes’ claim of self-defense, his conviction on the assault & battery charge would seem a certainty.
Based on the evidence we have in hand, including video of the attacks that we’ll share with you here, how viable does a self-defense claim by Hayes appear to be under Massachusetts unusually strict law of self-defense? Conversely, how vulnerable does Hayes claim of self-defense appear to be to disproof by prosecutors?
Approaching an answer to those questions is what we’ll be striving towards today, so let’s jump in.
With that said, let’s jump into the substance of this use-of-force event, and consider the relevant use-of-force laws at play.
Video of the Attack
I’ve stated out the basic facts of this use-of-force event already, so let’s jump into the first video clip on hand, and that’s the bit of shouting between the pro-Israel protestors and the pro-Palestine man across the street.
That, of course, should have been how things ended right there, with mere angry words rather than physical violence, but as it happens the pro-Palestine man chose violence by charging across the street at the pro-Israel group, tackling Scott Hayes, and getting shot shortly after taking Hayes to the ground.
The sound of the gunshot can be heard in the video clip, and if you look super close you can make out the gunshot wound. There’s no blood or other gore, but if what I’ve described is going to disturb you, feel free to skip this video clip.
Finally, we have a third video clip that essentially starts with the men on the ground and only moments prior to the gunshot—so this time we’ll hear the gunshot quick. That initial portion of the video has been blurred, so there’s not much detail to see, but I include it for purposes of completeness. We do, in this clip, see Hayes drop his pistol to the ground behind him, as he and others continue to struggle with the man who charged them.
Was Hayes’ Pistol a Sig P365XL?
Now, for any gun nerds in the audience, it seems to me that the Hayes’ pistol strongly resembles some variation of a Sig Sauer P365 in 9mm with a Sig Romeo X mini-red dot sight mounted for aiming purposes.
Here’s an inverted close-up image of Hayes’ pistol as it’s hitting the ground (top) along with a photo of a Sig P365XL+ Romeo X that I grabbed off the Sig Sauer web site.
As it happens, I’m fairly familiar with this particular model pistol as set up, as I frequently carry for personal protection my own P365XL with a mini-red dot sight mounted, although my MRDS is a Holosun 507k green. It’s a great CCW package, and highly recommended.
The model, caliber, and setup of this pistol doesn’t matter for purposes of evaluating Hayes’ self-defense claim, of course, I just thought some might find those details of interest.
As an aside, it appears from the available evidence that Hayes was in lawful possession of his pistol. I’ll mention that in Massachusetts concealed carry permits are issued by one’s local police chief and need not be terribly difficult to obtain. During the 25 years I lived in Massachusetts, for example, in the same Middlesex County where this shooting occurred and where Hayes lived, I personally had a concealed carry permit that entire time.
As a practical matter, the further one lives from Boston, the more likely the local police chief is to issue a concealed carry permit. Newton is immediately adjacent to Boston, and I would not be surprised if a resident of Newton had some difficulty obtaining a concealed carry permit. Hayes, however, lived in Framingham, well outside Boston, so his possession of a valid concealed carry permit doesn’t surprise me.
Felony Charge Against Scott Hayes
Hayes has been charged with a violation of Massachusetts § 15A. Assault and Battery with a Dangerous Weapon, good for 10 years in prison.
The assault and battery with a dangerous weapon charge is straightforward enough—unless the shooting can be justified as self-defense, it would clearly qualify as exactly that crime.
Indeed, Hayes is fortunate that he was not charged under § 15E, Assault and Battery by Discharging a Firearm, under which he’d be looking at 20 years in prison, not merely 10. Of course, that could change, and the prosecutor could decide to add that as an additional felony charge if they wish.
So, let’s consider the relevant Massachusetts law of self-defense—but first, let’s do a 30,000 foot view of how self-defense law works generally.
The Five Elements of Self-Defense
Self-defense law is pretty consistent across United States, and this is a reflection of how old and well-established a body of law self-defense is.
Any claim of self-defense will consist of up to five legal elements. For the claim of self-defense to be effective, every required element must be present.
That means that if the prosecution can effectively attack even a single required element, the entire legal defense collapses.
For such an attack to be effective, the state must disprove one, or more, of the required elements of self-defense beyond a reasonable doubt, to the satisfaction of the jury. If they do this, whatever the use-of-force was, it was not lawful self-defense.
And if a claim of self-defense is overcome in this way, conviction is virtually certain. The very act of raising the defense of self-defense requires that you concede it was you who committed the use-of-force act.
A defendant is not saying, “I didn’t shoot that guy, and it was self-defense.” That wouldn’t make any sense. The defendant is saying, “I DID shoot that guy, and it was self-defense.” If the self-defense claim is overcome, all that’s left of that sentence is effectively a confession.
If you’re wondering what those five elements of a self-defense claim, you’re in luck—they are Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
In the context of a use of deadly force in claimed self-defense, as in this case with Scott Hayes, these five elements distill down to the legal principle that the use of deadly force in self-defense is justified if the defender was protecting himself or another against a reasonably perceived threat of unlawful imminent deadly force harm.
That will be precisely the question the jury will ultimately consider in this case, and the argument the prosecution already knows they will ultimately be required to win—did the state successfully disprove beyond a reasonable doubt any one of the required elements of self-defense, jury believes it proven beyond a reasonable doubt that Scott Hayes was not protecting himself from unlawful imminent deadly force harm?
To do that the prosecution doesn’t have to disprove Hayes’ claim of self-defense in its entirety, it must merely disprove any one of the required elements of self-defense.
To illustrate, the prosecution here could effectively defeat Hayes’ anticipated claim of deadly force self-defense if they can convince the jury that they have proven beyond a reasonable doubt a failure of any of these required elements:
Innocence: That it was Hayes, rather than the man shot, who was the initial unlawful aggressor in this confrontation.
Imminence: That the threat against Hayes, if any, was either in the past or in the speculative future, rather than in progress or immediately about to occur.
Proportionality: That Hayes was not presented with a threat readily capable of inflicting death or serious bodily injury necessary to make his use of deadly defensive force a proportional defense to the threat.
Avoidance: That Hayes could have avoided the need to use deadly defensive force by taking advantage of a completely safe avenue of retreat.
Reasonableness: That either Hayes’ lacked a subjective belief in the need to use deadly defensive force, or that this belief was objectively unreasonable—that is, that a hypothetical reasonable and prudent person in Hayes’ circumstances would not have shared that belief.
If even a single of these propositions can be proven beyond a reasonable doubt to the satisfaction of a jury, Hayes’ claim of self-defense collapses, and he’s easily convicted of the assault and battery charge.
Massachusetts Law of Self-Defense: Jury Instruction 9.260
Massachusetts is an odd state in that it doesn’t really have any self-defense statutes, aside from a single castle doctrine statute.
Instead, the Massachusetts law of self-defense is found in its case law, it’s appellate court decisions—and case law is as valid a form of law as any statute created by the legislature.
Fortunately, we can avoid having to wade through dozens of Massachusetts appellate court decisions to get a general understanding of the Commonwealth’s law of self-defense law, because the essential principles have been captured within the state’s relevant jury instruction: 9.260 Self-Defense.
As is not uncommon, these jury instructions are rather sloppily crafted, too often conflating distinct elements of self-defense together into a single element, but now that we’re informed on what to look for we can readily spot the five elements of self-defense I’ve described within them.
The instructions begin with an introduction informing the jury that it is not the burden of Hayes to prove self-defense, but rather the burden of the prosecution to disprove self-defense beyond a reasonable doubt.
A person is allowed to act in self-defense. If evidence of self-defense is present, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense. In other words, if you have a reasonable doubt whether or not the defendant acted in self-defense, your verdict must be not guilty.
Let’s skip past the non-deadly force instructions directly to the deadly defensive force instructions relevant to this case:
If the defendant (used deadly force, which is force intended or likely to cause death or great bodily harm) (or) (used a dangerous weapon in a manner intended or likely to cause death or great bodily harm), the Commonwealth must prove one of the following three things beyond a reasonable doubt:
Note that although the jury instruction refers to “three things” the prosecution can attack, in fact there are all five elements of self-defense, they just combine them in a sloppy manner to arrive at what they call “three things.”
Again, the prosecution doesn’t have to disprove any defendant’s claim of self-defense in its entirety, it must merely disprove any one of the required elements of self-defense.
So what must the prosecution disprove beyond a reasonable doubt to overcome Hayes’ claim of self-defense with respect to his use of deadly defensive force?
First, that the defendant did not reasonably and actually believe that he (she) was in immediate danger of great bodily harm or death; or
Here the instructions rather sloppily conflate two distinct elements into one: Reasonableness (both subjective and objective) and Proportionality.
Nevertheless, if the prosecution proves the lack of Reasonableness or Proportionality beyond a reasonable doubt, self-defense collapses.
Alternatively, again focused on Hayes’ use of deadly defensive force:
Second, that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force; or
This is in reference to the element of Avoidance—if Hayes’ could have avoided the need to shoot by safely retreating, he would have the legal duty to do so.
Again alternatively, focused once more on Hayes’ use of deadly defensive force:
Third, that the defendant used more force to defend himself (herself) than was reasonably necessary in the circumstances.
This is in reference, again, to the element of Proportionality—Hayes’ could be justified in using deadly defensive force only if he were facing a deadly force threat.
The jury instructions move on past the focus on deadly defensive force to describe other requirements of self-defense, and by extension other targets of attack for the prosecution:
A person cannot lawfully act in self-defense unless he (she) is attacked or is immediately about to be attacked.
This is in reference to the elements of Innocence and Imminence, again two elements sloppily conflated into one. First, the person claiming self-defense must have been the victim of aggression, not the aggressor himself. Second, the threatened harm must be in progress or immediately about to occur, not in the past or speculative future.
We also see additional emphasis put on the element of Avoidance:
A person cannot lawfully act in self-defense unless he or she has exhausted all other reasonable alternatives before resorting to force.
I’ve linked the full text of the Massachusetts self-defense jury instruction 9.260 here, but for our purposes of discussing this particular case we’ve covered what’s necessary to do a productive analysis of Scott Hayes likely claim of self-defense and its vulnerability to attack by the prosecution.
Most of the Elements of Self-Defense Favor Hayes, But …
Most of the elements of self-defense are pretty solidly in the corner of Scott Hayes, based on the evidence we have at hand.
Innocence: It certainly appears that it was the man who was shot who was the initial physical aggressor in this confrontation, charging across the street in apparent rage and tackling Hayes to the ground. The element of Innocence, then, appears solidly in Hayes favor.
Imminence: The attack against which Hayes was defending was actually in progress, and not merely some past threat or a speculative future threat. The element of Imminence, then, appears solidly in Hayes favor.
Avoidance: Given the rapidity of the charge and tackle upon Hayes, there would not seem to have been a completely safe avenue of retreat that would have enabled him to avoid this attack. The element of Avoidance, then, appears solidly in Hayes favor.
Reasonableness: I expect that Hayes had a genuine, good faith subjective belief in the need to act in self-defense, and that a reasonable and prudent person in his position would have shared that belief. He certainly didn’t imagine this attack upon him. The element of Reasonableness, then, appears solidly in Hayes favor.
That’s four of the five elements of self-defense that appear solidly in Hayes’ favor—and it’s worth keeping in mind that the state would need not only to disprove one or more of these elements, but to disprove them beyond any reasonable doubt. I think that unlikely if we’re dealing with a rational, unbiased, and impartial jury.
But remember that the state doesn’t have to disprove every element of self-defense, it only has to disprove any single element of self-defense, and unfortunately for Hayes the fifth and final element does appear vulnerable to attack by the prosecution.
Proportionality: The Prosecutor’s Target Element
I want to emphasize here that Hayes was very apparently the innocent victim of an unlawful imminent and actual attack by the man who charged across the street and tackled Hayes to the ground, and Hayes was absolutely privileged to act in self-defense against that attack.
It would appear on these facts, however, that this privilege of self-defense against what appears to be a non-deadly force attack would be limited to Hayes’ use of non-deadly defensive force—his own hands, OC spray, something along those lines. Once Hayes resorted to deadly defensive force he exceeded his privilege of self-defense, and therefore has no self-defense justification for that fired shot.
The element of Proportionality holds that you generally cannot use deadly defensive force unless you are facing a deadly force threat (there are some exceptions to this general rule, typically involving the context of highly defensible property like one’s home, but those don’t apply here).
So, for Hayes’ use of deadly defensive force—meaning not just force that can kill, but force that can cause seriously bodily injury, which the bullet fired here into the attacker clearly could—can be justified only if he was facing a deadly force threat—again, a threat readily capable of inflicting death or serious bodily injury.
Was this charge and tackle attack likely to inflict serious bodily injury? If not, Hayes’ deadly force defense would violate the element of Proportionality, lose him the justification of self-defense, and result in his easy conviction on the assault and battery charge that’s good for 10 years in prison.
What Constitutes a Deadly Force Attack?
There are a couple of ways that an attack might present as one likely to inflict death or serious bodily injury.
One is the nature of the attack itself. An attack with deadly weapons would clearly qualify as a deadly force attack. Even if the attacker was unarmed, an attack by a much stronger opponent, or an attack by a number of opponents such that there is a disparity of numbers, could also readily qualify as an attack readily capable of inflicting deadly force harm, against which deadly defensive force would be a proportional response.
The other is the nature of the person attacked. In particular, if the person attacked has some exceptional vulnerability to injury that makes what would normally be a non-deadly attack into an attack that actually is readily capable of inflicting death or serious bodily injury.
A thrown fist, absent some aggravating factor like greatly disparate strength, is generally treated as a non-deadly attack, because its not typically readily capable of inflicting death or serious bodily injury. But if the intended victim is on, say, prescribed blood thinners, that thrown fist is readily capable of inflicting death or serious bodily injury on that particular victim because of their exceptional vulnerability to hemorrhage.
So the same fist thrown that might not justify a deadly defensive force response when thrown against a healthy person could instead justify a deadly defensive force response when thrown against a person who is exceptionally vulnerable to injury.
Was the Attack on Hayes a Deadly Force Attack?
It certainly doesn’t appear that the attacker here was in possession of any weapons when he charged and took Hayes’ to the ground, so there doesn’t appear to be a weapons-based argument to support the notion that Hayes was subject to a deadly force attack.
Nor does it appear that the attacker was much larger or stronger than Hayes—the attacker may have been younger, but actually appears smaller than Hayes—plus Hayes had friends immediately at hand who were able to, and did in fact, assist him against the lone attack. So there doesn’t appear to be a disparity-of-force argument to support the notion that Hayes’ was subject to a deadly force attack.
Was Hayes exceptionally vulnerable to injury such that being tackled to the ground and subject to some blows was reasonably capable of causing him serious bodily injury?
Keep in mind that it’s not enough that such injury could theoretically happen—it would have to be a reasonably expected result.
Absent some exceptional vulnerability to harm on the part of Hayes’, I think this would be a tough sell on the part of his defense. This is particularly the case given that the attacker was alone, and Hayes’ was accompanied by others who we can see on the video were quick to come to his defense.
In my view, the prosecution here can make a pretty robust argument that this tackling and some unprofessional blows was unlikely to cause Hayes death or serious bodily injury, especially with friends immediately at hand, and therefore was not sufficient to justify Hayes’ use of deadly defensive force.
Was There a Struggle for Hayes’ Pistol?
More speculatively, when I watch the video of this attack, there is a moment when Hayes is taken to the ground and just prior to the gunshot that I hear a clattering type sound.
You can listen for that yourself in the video above.
Is it possible that Hayes’ pistol fell from his holster onto the ground when he was tackled, such that the pistol was now in plain view of his attacker and subject to being grabbed by whichever of the two men was quickest?
If that’s what happened—and, again, I can’t see this on video, I’m speculating based on that apparent clattering sound—but if that’s what happened, then what we really have here is a gunfight with the two men battling over the gun.
Much like when Kyle Rittenhouse shot Joseph Rosenbaum when Rosenbaum lunged for Kyle’s rifle, and that shooting was determined to be lawful self-defense, if Hayes’ had a reasonable perception that he was in a life-and-death struggle for control of his pistol, then his use of deadly defensive force could be legally justified.
Presumably if this is what occurred we will have evidence of this either from further video or witness statements.
Hayes’ Self-Defense Appears Highly Vulnerable on Proportionality
Other than those scenarios—some exceptional vulnerability to harm on the part of Hayes or a fight over a dropped pistol—I’m hard pressed to see much difficulty to the state’s likely argument that Hayes’ was not faced with a deadly force threat and therefore could not be justified in his use of deadly defensive force—that he violated the element of Proportionality, and thereby lost the legal justification of self-defense.
In which case Hayes’ conviction on the felony assault and battery charge would seem certain, with a 10-year maximum prison sentence laying before him.
Attorney Andrew F. Branca
Law of Self Defense LLC
lawofselfdefense.com
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Comments
“ Massachusetts is an odd state…”
You can say that again.
To me this falls under the heading of “an armed society is a polite society” in that the attacker felt no need to check his aggressive behavior because he wasn’t armed and his expectation was that the man who shot him wasn’t either. There are large swaths of the United States where you would not *dare* attack a random stranger.
If I were on the jury the defendant could count on me to vote not guilty.
You are attacked by someone who believes that he should strike the infidels necks wherever they are found and kill them, or a supporter. How does one NOT apprehend a lethal attack?
The guy deserved it, he started it and attacked an innocent man, you have no idea what that man has under his shirt, what your suppose to wait till he slits your throat?
This parsing of PROPORTIONALITY is just BS and has come to pass by gun grabbing , left wing nut cases
IMHO
Rather than proportionality, think of a different requirement that (to me) is another way of saying the same thing, and which I live by as an everyday carrier: You can use deadly force only if you reasonably believe that you are in imminent danger of death or grave injury.
If you stop and think about it, you will see that the practical effect is the same. I agree that proportionality, however phrased, will be the crux of this. Based on what’s now out there, if I were a juror I would vote for acquittal, because once you are tackled to the ground I think the imminent jeopardy question is answered in your favor.
Still, Branca is not wrong about this. Hayes’s future will hang on how the jury comes down on that single issue, IMO.
Mr Branca, does the defendant have to be sure that the attacker is armed to act in self defense?
In that case let us hope his attorney has video or arguments that there was a struggle or attempted struggle for the gun. Failing that hopefully there is at least 1 juror who thinks about crazed leftists feeling empowered to assault at will anyone who does not endorse their views and says to hell with it I am not going to vote to convict this victim of assault and battery. I know that is exactly what I would do. There is the letter of the law and the spirit of the law and if doing what is right (say helping an escaped slave) is not what the letter of law says so be it.
You have to look in the mirror and face yourself and someday you will face the ultimate judge.
I thought I heard something said about, “Grab the gun “, but I don’t know when or why it was said.
So I don’t know if there was indeed a struggle over the gun.
It is something that there were not charges immediately filed against the person who clearly assaulted someone who was not threatening.
This might — might — be a case where Massad Ayoob’s advice applies: “Don’t get into arguments if you’re armed.”
I’ve carried for many years. You have to make adjustments if you are going to carry, and avoiding conflicts is one of them, because conflict can escalate to violence.
If you go armed, allowing yourself to be drawn into a physical conflict places you in great danger. You cannot allow an assailant to take control of your weapon, placing you and potentially others in danger of being shot.
I open carry on the job (and most of the rest of he time, so I get asked about it. When discussing the realities, I warn people they must be prepared in some situations to shoot an apparently unarmed attacker to prevent loss of control of their weapon.
Carrying a sidearm changes the self-defense equation.
I think the proportionality argument is strong, so the following question is for further understanding in other cases.
If Hayes had been alone, how would proportionality be different? My guess is harder for the prosecution to prove, but I am still asking.
I wanted to add that even though I regard the proportionality argument as strong, based on the facts at hand now, if I were a juror I would vote acquittal. If someone tackles someone else to the ground, I think that’s grounds for deadly self defense.
That said, if it were me, I would not go armed to any demonstration, let alone on an issue that contentious. I would being effective, non-lethal tools — Counter Assault bear spray, zip ties, and a thick leather glove in case I had to throw a punch or four. Similarly, I think Kyle Rittenhouse should have stayed home.
Too risky in both cases, but that does NOT mean that I am somehow against their self defense claims. Very much the other way around.
Being attacked from behind, and unexpectedly, is an ambush. Gathering evidence toward the proportionality would mean the you give the guy time to continue to attack you while he has your back. Seconds away from potentially being choked out or struck on the back of the head, (or concerned about having your head repeatedly bashed against the cement) seem like obvious reasons that the UOF was appropriate and proportional. Very surprised by WAJ’s take on this one.
If you are carrying a sidearm you cannot allow an attacker with the apparent intention and the apparent capacity to do serious bodily harm to lay hands on you.
Such an assailant could do sufficient harm with a single blow to incapacitate you long enough to seize control of your weapon.
Obviously, that cannot be allowed.
From this perspective, Hayes appears to be fully justified. Tactically, he should have drawn his weapon as soon as the assailant charged.
I understand the rule of proportionality, but I find it difficult to apply to a guy on the ground with another one on top of him. I think the guy on the ground has every reason to suspect a knife attack in the making. I certainly would. And whether the pistol had fallen out of the holster or not, it was likely to be an object of contention. Also, I am more likely to factor in age and possible past injuries. I think the prosecutor is out of line here. Claiming protection for the idiot who ran across the street in traffic to launch an attack is illogical. Asserting that the victim should just have absorbed the physical punishment is ridiculous. Regardless of the legal niceties involved.. Forcing the guy to defend himself in court is punishment in itself. This is revolting.
Trayvon Martin comes to mind
There are too many potential problems to evaluate them in the midst of a struggle. The evaluation needs to come first, then full commitment.
Yes, an apparently unarmed attacker may in fact be armed. Yes, his companions may choose to join the fray.
All this must be assessed beforehand. The basic evaluations are inherent in every situation, and you should understand them and the necessary decisions before you go armed. That leaves only a couple evaluations in the moment.
Better to be judged by twelve than carried by six.
I fail to see how one could argue, let alone have a jury believe beyond a reasonable doubt that the defendant did not reasonably and actually believe that he was in immediate danger of great bodily harm. How in the world is he supposed to know what the nearby crowd was going to do? The crowd seems like a red herring.
An old guy attacked by a young guy is at risk of permanent disabling injuries, which the old guy has every right to prevent.
Most States have either statues or case law that delineate what age or level of infirmity is required to gain this protection. Some still offer this to females, a few only to pregnant females, most offer it to the disabled. Those that qualify for the protection of their ‘status’ are not viewed as equal combatants. So two 25 year old men having a dust up is one thing, A 25 year old man v a 60 year old man is another and pretty much anyone v a pregnant female or a disabled person is another.
In Bama if you throw hands on one of those categories you may very well get some extra holes and they probably walk unless they do something stupid like putting a final round into the assailant after they are down and out of the fight.
He was 47. That is not old enough.
Did Hayes really have time to determine if his assailant had a weapon such as a knife? He was tackled to the ground and reacted quickly in self-defense.
Getting 12 people, even in MA, to agree that his actions lacked proportionality given the video evidence feels like a long shot to me.
This is the Commonwealth of Massachusetts; a Leftist-controlled state where the Constitution is only for those in power. Further, like other Leftist polities, it has a two or more tiered criminal justice system designed to promote the subjugation of free American citizens and protect the enemies of our country and Social Contract.
Admittedly I am not a lawyer. But I can see from a practical politics point of view that Scott Hayes is likely scrod in these courts and that his only real hope of freedom is to get this into a non-Leftist court. Which will cost several fortunes and yet still may not defeat the enemy.
Subotai Bahadur
I’ve seen this asked before but not answered:
Did any official bother to charge the attacker for attacking?
Please see the paragraph that’s just below the first video (i.e., the vid posted to X by Kassy Akiva:
<>
“Avoidance: Given the rapidity of the charge and tackle upon Hayes, there would not seem to have been a completely safe avenue of retreat that would have enabled him to avoid this attack. The element of Avoidance, then, appears solidly in Hayes favor.”
This is a catch-22 anyway. In this case, prior to the commencement of the actual physical assault, the victim had little reason to expect that an actual physical assault was imminent. Once the assault commenced and the victim was on the ground, the victim had no opportunity to avoid, period.
I believe the prosecutor will also go after that fact that it was chambered with safety off. To someone who doesn’t understand why you should carry this way- which would be most of the jury. When I carry – this is how I carry. As ASP shows time after time- that is how you don’t die in altercation (in conjunction with fast and first shots on target.
As noted on earlier posts—- I HATE gun owners who will carry a $500+ big honking giant pain in the ass back/belt breaking chunk of iron on their side, but won’t carry a 3 oz can of OC spray. So in a pinch when a bully is going to come at you- your options are either get your ass kicked (best outcome) or kill the effer.
Note that cops hate using the hot sauce because it’s so damn nasty and it’s going to wreck your entire world for the next 4-6 hours. It’s easier and just as justified to shoot you.
Two things, not all P365XLs have a manual safety. They have one or two variants that do, one or two others that don’t. I carry a P320 which does not have a manual safety.
With respect to pepper spray, are you saying carry the spray in addition to a firearm? If so, yeah, I have no problems with that at all. But, CS as a sole deterrent is….problematic. if you spray me in the face with pepper spray (which is legal for civilian carry for human self-defense) and you hit me when I’m still close enough to put my hands on you, you’re still finished, particularly if I have a bladed weapon. Pepper spray burns. A lot…like it really, really sucks. But, unlike CS and particularly CN gas, it doesn’t inhibit your ability to breath. So, people who are very aggressive and maybe on a chemical stimulant, can often times simply fight through it. While it would always be better than nothing, I would not describe it as a reliable form of self-defense.
I’m ALWAYs packing OC spray. I barely CC anymore, though that is mostly because I don’t get around much. For trips to Lowes or Sams club, it’s heavy, it jabs and I no longer live in a blue state war zone. Note a few years ago I used to carry all the time. I don’t sweat going into banks, schools, post offices and anywhere else.
I’ve not taken the test but known people who have. Whatever quarrel they had before getting blessed is a distant second after being blessed. Unless he’s on bath salts, Mr Pro Palestinian protestor is rethinking his priorities about doing an open mat session rather than partaking in further debate. If the sauce you carry doesn’t do that- then you are carrying weak sauce. $12 POM is putting anyone in the fetal position w/out so much as a community service.
In a self defense scenario- yes I believe you could fight through the suck…. but that’s because it’s not optional. Optional fights become optional.
Also using it is a bystander has far fewer consequences as well. Sorry but I’m hitting both of these guys because it’s stopping the fight. I’ll buy the old guy a beer later and probably step on the other guys fingers while he’s down (making it look like an accident).
Also you can use it on his 3 buddies too lest they decide to kick your head in while you demonstrate your blue belt technique in a ground fight.
meant to say- jury will be harsh against carrying chambered… most people don’t understand.
Most people are dumb.
If not chambered, why carry at all?
Always, always, always some screaming wretch nearby.
I hope he is acquitted even if it is due to jury nullification.
Juries tend to armchair but there’s no need to overthink this one.
Put the attacker on the stand and either make him admit or take the fifth and show the tape. The jury should hate him after that and it’s a win for your client.
“I hope he is acquitted even if it is due to jury nullification.”
*****
If this goes to trial in Middlesex Co., which had 70+% vote for Biden, his odds for an acquittal are quite low. Likely outcome is that legal costs will bankrupt him and he will be forced into a plea deal for reduced prison time.
Gofundme already up to ~$160k, thankfully
You put everything in understandable order, Mr Branca.
“I hope he is acquitted even if it is due to jury nullification.”
*****
If this goes to trial in Middlesex Co., which had 70+% vote for Biden, his odds for an acquittal are quite low. Likely outcome is that legal costs will bankrupt him and he will be forced into a plea deal for reduced prison time.
Should have just snatched him by that punk-ass pony tail and smashed his head into the concrete a few times. Works like a charm.
As always, a thorough and balanced analysis.
Yeah … this is generally a BS argument. “Proportionality”, first of all, is dumb in any actual fight. This is like saying that all business deals should take place at fair value. The point of being in business is not to make deals at fair value but to GET DEALS at better than fair value. That’s how it’s done. And no real fighting is done at “proportionality”. That is a stupid game that only those who have nothing personally at risk yap about.
Whewn someone charges and attacks you you have no idea what he has on him, what he will do, and where it will all end up. When he attacks you he has given up any right to have some governance over your reactions. That is how life in the real world works. But for lawyers and people who only make rules that OTHER PEOPLE have to follow (over which the rule makers like to laugh and snicker about later) they live in la la land where a person is expected to give the benefit of the doubt to a violent attacker and lunatic and is supposed to leave his life in jeopardy for the benefit of his attacker based on some retarded idea as proportionality in self-defense against an unknown stranger on the street. Insane, really. Not much better than the morons who like to tell people that they have a duty to retreat when someone attacks them.
The only ‘fair’ fight is one I win.
“The point of being in business is not to make deals at fair value but to GET DEALS at better than fair value”
You only do deals where you come out ahead but it hasn’t got anything to do with fair value. The two sides of any transaction value the stuff differently. That’s how trade happens. The hot dog is worth more than $2 to me and less than $2 to you. We both come out ahead. Those are Trump deals. He finds stuff to put on the table so that it happens.
In a commercial transaction the two comings out ahead are called “profit” and “consumer surplus” respectively. The difference of our valuations is the sum of these two.
The sum of these two is new wealth added to the wealth of the nation. That’s the only source of wealth, and is why you want trade.
Not disagreeing, but this is an example of how the term “reasonable” can be, and is absolutely subjective. There should be objective criteria when affecting the life and freedom of a citizen.
I know of not one, but two cases where a thrown fist resulted in the death of the person on the receiving end. In one case the guy hit his head against the floor when he fell. In the other case the kid had a brain condition that was found in the autopsy.
And yes, I said “kid” intentionally. Both cases happened long ago, when I was still a teenager.
It was just kids fighting.
So my own life experiences define a different threshold for what can be “reasonable”.
at 0:41 in the video the attacker is trying to get his arms around the victims neck and multiple people are feeding him off. A headlock is deadly.
Also, FWIW, i think the prosecutor charged Hayes because there is no downside to charging first and withdrawing the charges later. Hayes made bail (low, 5000). After the media cycle, they go away.
You make a fair point here….for a jurisdiction not in crazyland. The problem is they had a press conference celebrating the arrest and forthcoming prosecution. I think this augers poorly for anyone hoping for cooler, more rational heads to prevail in the DA’s office. This is a campaign event for them.
Andrew’s analysis is exactly what I feared it would be. I hope this guy has really, really good representation. Move out of the Blue State shitholes. The life you save may just be your own.
EXACTLY- if you live in a jurisdiction that is prosecuting cops for doing their jobs, the population is having a love affair with crime. You may not even have the chance to unholster…. in most of these areas the criminals will kill you behind the wheel @ 120 MPH in a drugged up fog.
I had two bad discs in my neck. A few years after being rear-ended which required months of PT for the neck injury, we have found two more are bad, I’m guessing, exacerbated by the accident.
So the next time some eejit hits my car, I may quite well end up permanently disabled from what would for most be a minor fender bender. There is no sign from just looking at me that I am an “eggshell”. An attack like the one above would leave me in very bad shape indeed.
A younger smaller woman could easily leave me paralyzed even if she assumed there would be no lasting consequences (though in these circumstances id think the attacker would be happy to think they had permanently damaged their victim for his “bad think”).
I personally feel that the eejit who got shot deserved that and more, pour encouragez les autres. If folks had to consider that they could be injured or killed for physically attacking random strangers because of their speech, maybe we’d have less “your words are violence, our violence is just words”.
Here’s hoping for a sane jury for this man, even in MA.
LI does all of us a great service in publishing the views of Andrew Branca. Sometimes you need an armed defense expert to step outside of all of the high emotions involved and look at the cold, hard, facts and the law of self defense.
If this had happened 41 miles to the north, there would be little question that this would be ruled justified.
New Hampshire has a Stand your ground law and some pretty solid self defense laws.
Massachusetts is so far gone that if you ever defend yourself, lethal force or other, they will come after you. There was a time when you had to actually leave your house of burglars came in and let them take whatever they wanted.
Awesome analysis as usual, Andrew. All these bits and pieces of law regarding self defense, leave me a bit worried. I’m just a girl, if some guy is breaking into my house, there is no way I don’t see that as a deadly threat at the get-go. Do I really need him to get in and overpower me before I can shoot him? Seems crazy.
The good news is your home, like your car and even your workplace in many states, is considered highly defensible property, I I believe (but am not certain) even in MA, its limited application of the castle doctrine exempts you from a duty to retreat in your own home. But, you may not be able to shoot through the door in some place like MA like you can in many other states with stronger stand your ground laws. I think HI is the only state that doesn’t have statutory castle doctrine. HI is a very weird place when it comes to firearms and self-defense.
If you live in blue area, none of that matters. You’re at the mercy of the whims of whatever democrats are in charge.
A clear case of self-defense will once again be charged as a crime which will result in 10s of thousands of dollars being paid in defense, at minimum. The state, criminals and lawyers win again. Citizens lose. Yay.
By the way, Andrew, the Sig P365 is my everyday carry, in a Sneaky Pete holster. No red dot. Round is chambered, no safety. I feel confident because those Sneaky Petes are really well designed. They look like a cellphone case. Never let ’em see ya coming, I say.
Instagram etc. shows the 31yr old alleged perp twerp lives at home, supports Hamas, “demands” destruction of the US, considers his family “ghouls” (for disagreeing)…
I’d applaud the FAFO factor — with the hope that people like him could learn to control their emotions — but this is just sure to bolster his self-righteousness.
I used to live about 3/4 of a mile from where this happened. Hayes should seek to have the trial held in Newton, which has a significant Jewish population. I very strongly doubt a Newton jury will convict him.
Great. MooSlime and their followers can now attack people with impunity.
Because MooSlime can physically bumrush people in an aggressive manner, and innocent people can’t do a damn thing about it. Or it’s off to jail you infidels.
The asswhole should have been dead.
Correct. But how about this legal breakdown on the law? Riveting stuff.
Haven’t seen you round these parts in a bit…
Welcome back
I don’t see being a part of a protest as “being there with others”. You can be in a crowd and be alone, especially if you don’t know any of the others. I don’t think it is reasonable to presume that anyone in the crowd was going to come to his aid.
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