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?
He will need help, also help, and we all know how GoFunMe operates. He should also setup a https://www.givesendgo.com/ account.
https://www.gofundme.com/f/support-scott-hayes-legal-defense
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.
Just remember, it’s not only subjective reasonableness, it’s objective. Otherwise, how could a jury function? All you’d have to say is, “I thought I was gonna die” and they’d be forced to believe you.
No matter how justified you think your actions were, when you are on trial, you are not sitting in judgement of yourself. If, God forbid, if you ever face a prosecution, that side is already trying to string you up. Do not give anyone extra rope.
I have many friends from Massachusetts. Specifically one who is a retired Homicide Detective from Framingham. The prosecution will be hard pressed to rig a jury with nothing but liberals. It’s a fairly conservative area. Notwithstanding the DA.
The event happened in Newton. Looks like both newton and framington are in Middlesex county. I am unfamiliar with how the jury pools are deliniated in MA, so it possible that the Jury pool is limited to then immediate Newton area or would include all of Middlesex county
The jury is pulled from the entire county–so, all of Middlesex County–but Middlesex County is overwhelmingly liberal. Framingham will have more conservatives, but the balance is hard left.
“you have no idea what that guy
has under his shirt”
Incorrect.
Hayes had no idea what that Hamas-supporting, Israel-hating guy had under his shirt. But most assuredly had reasonable suspicions that it wasn’t just a pocket pen.
Mr Branca, does the defendant have to be sure that the attacker is armed to act in self defense?
No, they don’t have to be certain, or even correct, but the perception of a deadly force threat has to be reasonable.
–Andrew
Mr. Branca,
The act of tackling someone to the ground could seriously injure or kill them if the head hit the pavement just right.
Can a person who has just been tackled be expected to realize they may no longer be in mortal danger because the tackle has been completed and they were fortunately not seriously injured or killed?
Well, according to some, the threat stopped unless the attacker kept slamming Hayes’ head into the ground.
Of course, Hayes was smart not to let the attacker continue.
In September 2024, a crazed guy who had been shouting and then attacked a pro Israel rally by run-tackling a guy from behind, going after his throat and starting to pummel him, could not reasonably have been expected by the man pinned on the ground to NOT be armed.
Hoping the attacker was not armed without clear sight of The attacker and without frisking, and hopinghe would not soon feel his neck being penetrated by a knife, screwdriver or other unpleasant event, was not a realistic option under these specific circumstances.
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 reminds me of Thugvon.
After the gunshot, the victim dropped his gun behind him in order to have both hands free to wrestle. He asked his buddies to pick up and secure his gun while he was busy.
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.
And he could have drawn his weapon “as soon as the assailant charged”, how, exactly?
I haven’t seen any eyes in the back of Hayes’ head yet. Maybe I missed them.
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
I should have read further, I made a similar comment
.
In the Trayvon Martin case, Zimmerman called 911 and followed the 911 Operator’s direcrtions to see what Martin was up to, resulting in Zimmerman following Martin, thus making Zimmermn the aggressor in this very politicized case. In the Mass. case, though, there is only one aggressor., who was caught on video initiating the attack.
If I remember correctly, Zimmerman was acquitted. Tryvon Martin was repeatedly slamming his head against the concrete while Zimmerman was on his back in a helpless position except for his weapon. That appears to be a difference than what happened in this case.
True.
Nope. Martin snuck up behind Zimmerman, sucker punched him, knocked him to the ground, got on top of him, pummeled him MMA style, bashed his head into the concrete walk, then tried to strangle him. Arguably, the fight didn’t enter the deadly force category until Martin started beating Zimmerman’s head into the concrete walkway. At that point, Martin was not privileged to use deadly force, so Zimmerman was privileged to do so in self defense.
It turns out though that Martin was never legally justified in using any force against Zimmerman. The latter had followed Martin for a bit, then lost sight of him, and then headed back to his truck to meet te responding LEOs, when he was ambushed, knocked to te ground, etc. Everything that Zimmerman did was legally privileged and justified. Martin’s attack on him was not.
Let me add that you picked a bad example to use here. The Zimmerman case was where many of us got to know and appreciate AB and his understanding of self defense law. He followed the case extremely closely, giving us daily blow by blow analysis as the case progressed.
Zimmerman was not following a 911 operator’s instructions. The operator, in fact, told Zimmerman “we don’t need you to do that” when he said he was keeping an eye on Martin. Zimmerman was heading to his car, not following Martin, when he was attacked. You have the facts wrong.
The dispatcher first asked something like, “Can you see where he went?”
Zimmerman then exited the car and tried looking for him. After a short time, the dispatcher realized that Zimmerman might be following and asked him if he was. Zimmerman said he was, and the dispatcher then said, “Ok, we don’t need you to do that.” According to Zimmerman, he then turned around and headed back toward the car and got attacked by Martin halfway back.
Following Martin, whether at the behest of the (non emergency) operator or not, did not make Zimmerman the aggressor. Period. Non deadly force was initiated by Martin, as was deadly force. Martin could have screamed at Zimmerman all he wanted, as long as he didn’t credibly threaten him physically. But he was never legally privileged to physically attack him, or to escalate to the use of deadly force.
If you have any questions about the basics, I suggest reading AB’s excellent book “Self Defense Law” on the subject. I bought the electronic version so that I can refer to it, if I need to.
I have the book. And I attended a lecture by Branca on self-defense in which he discussed this case. Branca’s main point was that pollitics upend all normal porocedures.
Trayvon was delivering a sustained beating to George Zimmerman, and repeatedly punching Zimmerman’s head into a sidewalk as Zimmerman screamed for help. George did not shoot Trayvon 3.75 seconds into an attack in which George had friends standing nearby ready and willing to help him.
I agree, but it’s bullshit.
We all know that if Hayes’ friends got involved, they would be charged with assault and piling on an “innocent” victim.
You live in a nice cushy bubbled world where you don’t have to worry about being attacked.
But you do a nice job of finding fault in everything people do when defending themselves with guns.
That is why I will never pay for your protection program. You tell too many stories about how people could and be prosecuted for defending themselves, which can be used by prosecutors.
I would never have you represent me so a prosecutor can roll out any of your previous statements against me.
And you make money off of that. What a shame and a scam.
AB is better than almost anyone in investigating these potential self defense shootings. He is right, much more often than he is wrong. Things can, of course change, and he will likely change his prognosis, as necessary.
Totally unfair. The laws change from state to state, even community to community. Branca makes a concerted effort to know the applicable law and the usual procedures where the incident took place. Branca’s assessment of this case clearly specifies the incident took place in a community unfriendly to self-defense. I believe he specifically stated the analysis would be different in Hayes home town, as opposed to where incident took place.
I’m mildly curious as to whom you do want to give you legal advice when you’re being prosecuted for using lethal force. And how you believe that advice is going to be different.
“We all know that if Hayes’ friends got involved, they would be charged with assault and piling on an “innocent” victim.”
They DID get involved. I don’t believe they’ve been charged.
–Andrew
I attended one of your lectures on self-defense law in which you talked about the Trayvon Martin case. I remember you used it as an example of politicized pressure skewering the law. Zimmerman was not initially charged, but brought to trial in response to an almost George Floyd level of public pressure. And I remember the defense that Zimmerman followed Martin in order to answer 911 operator’s question rested on the sound of his car door being opened and closed during the 911 call. Many people still believe Martin was murdered, just as many believe Rittenhouse got away with murder, when it was a clear case of self-defense caught on multiple videos, Too much politics, not enough law.
Many people still believe that in the old days Jews used to bake their matzos with Christian baby blood. In the Moslem world many people even believe we still do it, though with Moslem babies, and for Purim rather than Passover, which makes less than no sense, but that’s what they believe.
I would have said many people believe the earth is flat, but I refuse to believe they really do. I’m convinced the flat earth movement is just an elaborate joke, like Pastafarianism.
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 carry every day, even in places that say no guns.
But I’ll be damned if I ever come to the defense of anyone while carrying. Unless it is my wife, my children, or myself, I would not use that weapon and put myself into legal jeopardy.
Inserting myself into other people’s problems make me the target of prosecutors, and even the victim may not come to my defense. They certainly wouldn’t pay for my fees and take care of my family if I were incarcerated.
This smells of a “he used a gun” prosecution rather than a prosecution done on its merits.
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.
The fear of imminent bodily harm or death has to be both subjectively and objectively reasonable. A jury might be willing to give the defendant a pass on subjective reasonability, but his belief must also be objectively reasonable.
So you’re saying Hayes should have given the Israel-hating guy on top of him who just jumped him to the ground the benefit of the doubt?
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.
MA has increased penalties for assaults on older people, but the threshold age is 60, not 47.
–Andrew
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.
Sure, The prosecutors will claim Hayes was clairvoyant.
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:
<>
His war chest will be very important.
“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.
“Once the assault commenced and the victim was on the ground, the victim had no opportunity to avoid, period.”
Certainly correct.
–Andrew
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.
An interesting, and potentially legally problematic, issue with carrying a firearm and the bear spray is that the prosecutor can posit you should have used the non-lethal defense when you used lethal defense. You put your self in a situation that many cops find themselves in, where they say that a taser should have been used, and the jury, who thinks you should incapacitate by shooting an attackers legs and similar tripe, latches on to you not first trying to incapacitate the attacker, which they assign weight to erroneously. I would add, I agree with another commenter above, when I am carrying, I avoid all confrontation like the plague.
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?
Is that you Marshall Rooster Cogburn?
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
Rather surprised Gofundme hasn’t already shut that down–they do so with some regularity.
–Andrew
When GoFundMe terminated Kyle Rittenhouse’s fundraiser, they pointed to a still-wet “policy” prohibiting “campaigns in defense of formal charges of heinous crimes, including violent, hateful, or sexual acts.” At exactly the same time, they had absolutely no problem conducting legal defense funds for “Sorority Arsonist” Kathryn Patterson or the Boston Molotov Lawyers. They then attempted to divert all the donations for the Canadian Truckers to an entirely different fund. I wouldn’t send a nickel to GoFundMe if it cured cancer.
He will be judged by TDS libs. & at best it will take years to free him.
If Dems can create sanctuary and for criminals and other low life, why can’t conservative states states do the same for for people like this?
Because this isn’t a matter of states exercising their undisputed constitutional right to refuse to assist the federal government. This is a matter of state law.
If he flees to another state and MA files for extradition, the harboring state has no choice but to render him over. Extradition between states is not optional, there is no discretion, it doesn’t matter what the state he’s in thinks of the extraditing state and/or its laws and/or legal system.
Remember that “sanctuary cities” or states can’t and don’t interfere in any way with ICE enforcement. ICE can go anywhere it likes in California, and arrest anyone it likes, and CA will not lift a finger to prevent it. It can’t, and it doesn’t want to. But it refuses to lift a finger to help either, which is its right, guaranteed by the tenth amendment and recognized by our courts for over two centuries.
Are Dems and libs in general following law? No, So if states chose to ignore law and offer sanctuary to people being unjustly prosecuted, what are the Feds going to do about it? Start a war?
Depending on the existence of an election in November, and its results, the Feds may. A Social Contract and its relationship to the government that rules is as much popular perception as anything else. If enough people on either side believe that the laws and their enforcement [or lack thereof] violate the Social Contract that makes them submit to the government . . . that is how you get civil wars.
Subotai Bahadur
Are Dems and libs in general following law?
Yes, they are. That is a fact, and you are not entitled to your own facts. If a state refuses to extradite someone, the first court that sees the case will order the state to do so, and the state officials will have no choice but to obey it. The state governor and attorney general won’t even get a say in the matter, because the local authorities will automatically obey the order. That is what will happen, and what the constitution demands, and it is what always happens, and certainly no “red state” official who is sworn to the constitution will disobey it.
Millhouse says: “Yes, they are. That is a fact”
This is where we will have to disagree.
‘
As I said, you’re not entitled to your own facts. You can’t cite a single relevant case where a Dem (or Rep for that matter) administration (state or federal) defied a court order. It simply doesn’t happen.
For me, it wouldn’t be jury nullification. If you tackle someone to the ground and their head bounces off the concrete, you’ve already posed a deadly threat to them.
If there was a “head bounce,” that would be good to get into the record sooner rather than later, as it would change the analysis considerably–much as it should have for the prosecution of Michael Drejka for the 2018 shooting death of Markeis McGlockton, if only Drejka had better understood what to say, and not say ,in the aftermath of a use-of-force event. Instead, Drejka was convicted of manslaughter and sentenced to 20 years–and has exhausted his appeals.
–Andrew
You put everything in understandable order, Mr Branca.
To the great benefit of the prosecution.
If Mr. Hayes were a Law of Self Defense Platinum Member I’d be speaking about the case with nobody but his legal defense team, and I’d be doing that legal consult for free. But he’s not. https://lawofselfdefense.com/platinum
“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.
Uh … no. You have no understanding of business. In a plain asset sale, when you buy something in a business deal it is because you see it as better than fair value and are going to be able to make money by selling it for more.
The case of the hot dog vender is different … because that is a plain commercial transaction and not a “business deal”, per se. One doesn’t deal with “fair value” in a commercial transaction – most certainly not anything involving prepared food.
Your commentary on this is fairly retarded.
That’s retarded. Aside from individual differences and mistakes people make both sides are looking for the best price they can get, which is the highest price it can be sold at (given equal effort). It is worth the highest price to all parties – though some parties might suck at business and not know what the highest price is and others might be in distress and be forced to buy or sell. Of course, those are different circumstances that are not the bulk of normal business transactions.
As to your theory about two sides having different values on a thing with the seller willing to price it lower than the buyer willing to pay for it … go learn what the simple concept of arbitrage is for such situations.
Sheesh.
Or “you should have wounded him!”
Well Hayes wounded him instead of taking him out. Yet, Hayes is being prosecuted for using some level of restraint.
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”.
So let me ask: How many cases do you know of where someone was hit with a fist and survived? Given that number, do you really think it’s reasonable to believe that one you encounter is going to be that one in a thousand/million/whatever case? I get that you don’t want to face those odds. I don’t either. But it’s not reasonable to believe that you are going to be the one in a million case. If you do, I have a thick book of lottery tickets to sell you.
I know of cases where pitchers were nailed by a hit and it stopped their heart. I don’t think it’s reasonable to believe that everyone getting hit by a line drive is going to go into cardiac arrest. And I wouldn’t expect a jury to think such logic was reasonable either.
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.
Did the attacker tell you this? Or are you merely speculating?
–Andrew
You’re engaged in mind reading.
There is zero evidence of a choke in the video.
An arm around the back of someone’s neck is choking nothing.
I’ve seen no evidence of even an attempt to choke, except people’s fevered imagination.
Again, if Hayes reasonably believed he was being choked or that his attacker was attempting to secure a choke, it would be good for him to get this into evidence sooner rather than later.
–Andrew
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.
That’s very kind of you.
Also smart. 🙂
–Andrew
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.
“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.”
I wouldn’t bet my future on it.
Before I left the state 25 years ago, the Massachusetts Legislature had clarified in blackletter no fewer than three times that there was no duty to retreat out of your own house. Three times liberal judges reintroduced such a duty in case law.
When Andrew says that most of Massachusetts gun law is case law, this is a corollary of what he’s saying. Massachusetts is heavily rule of man, not rule of law.
MA case law has ruled that an empty cartridge is ammunition and subject to the state’s laws regarding purchasing and possessing ammunition.
As TargaGTS noted, the castle doctrine removes the factor of avoidance from the legal equation. But this incident obviously didn’t happen in Hayes’ home. But some people have argued that a “stand your ground” law would have been of help with Hayes’ defense. That is actually irrelevant in this instance despite Massachusetts having a requirement that you retreat but this only applies when you can retreat in perfect safety. Given that he had been taken to the ground with the initial assault, retreat was not possible given that the initial aggressor continued the attack; the Trayvon Martin case is similar as Martin had pinned his victim to the ground and escape was impossible.
With the information discussed in the article it would seem likely that his best defense is that a fight for the pistol occurred and he was facing a lethal threat if the initial aggressor gained control of the weapon.
And Fuzzy, there is no need to wait until you are being strangled to shoot; the house breaker removed the avoidance factor and provided you with the reasonable belief that they were not there to deliver Girl Scout cookies.
You can find your state’s (Florida?) self-defense laws in Andrew Branca’s book.
Don’t worry, Fuzzy. If you successfully defend yourself, then Andrew will defer to the state before defending you.
Is that you, mom? You PROMISED you’d stop drinking!
–Andrew
“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.”
This has never occurred to me before, but…
We’ve all heard of “foxhole conversions.”
Fuzzy makes a strong case for choosing “home-invasion transitions.”
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.
keep in mind that the “Jewish” population in many states is so far leftist that they will coerce their co-religionists into the cattle cars
^^^^THIS^^^^
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
Just busy. I think the world of Legal Insurrection, happy to contribute any time circumstances make it practical. 🙂
–Andrew
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.
You can ask Kitty Genoese about having others around you providing assistance and safety. Oops, I guess she can’t answer after all the assistance that she got.
One of my favorite Ogden Nashies:
Avoid the legal nets /
That entangled Bernie Goetz: /
Just scream, “Help! Help! Police!” /
Like Kitty Genovese.
That’s not actually what happened to her. One must distinguish Kitty Genovese the cultural symbol from Kitty Genovese the actual person.
This is asinine. Any non-aged, reasonably healthy man can kill another in short order with his bare hands, especially after having tackled him to the ground. He can beat his head into the pavement, throttle him, break his neck, drive his septum into his brain or permanently blind him by pressing thumbs into the eyes. A crazed, unprovoked lunatic who tackles one to the ground must be presumed capable and probably intent upon such an action. The innocent victim, scared for his life with only an instant to respond, hasn’t time to run a sophomoric, classroom decision tree. The prosecutor is the one who should be on trial.
Hear, hear!
Good luck.
–Andrew
Honest question. It seems to me that the questions of avoidance and proportion are rather intertwined. That if one is able to avoid an attack whether it would have likely resulted in severe bodily harm or death becomes a moot point. In the same respect if the attack could not be avoided (especially because one is physically overcome by the assailant) it is reasonable for the victim to believe the attack fully intends to inflict great harm that could result in death.
In my view for the prosecution to disprove that element of self defense they should show that Hayes had what I’ll call breathing space. Which is time enough to assess that he had a alternate means of stopping the attack because the attacker was not at an advantage which would allow him to escalate the assault.
I also think the mental state of the attacker needs to be considered when evaluating that element of self defense. JMHO.
Unfortunately, the “attacker” is considered the victim in this case. I find this to be a travesty of justice where someone runs from across the street and tackles someone, and then continues the struggle.
At what point does the “victim” have the obligation to not have approached the attacker in a violent manner?
And it is for this reason that I avoid any action that invites confrontation, or the possibility of an attack.
I don’t do rallies, concerts, crowds, and I certainly don’t do business in any state or city in a blue danger zone. If the location has an aggressive liberal prosecutor, I don’t go.
I am ultra polite and will leave the area if there is any sign of pending problems.
If I am forced to defend myself or my family, it is because I did nothing to incite or invite an attack.
My use of deadly force was ingrained in me in the Air Force Security Police Academy at the age of 18, and further ingrained in a civilian police academy at 22.
If my weapon sees the light of day, it’s because I know it is my last resort. I will not even use it to protect a stranger, no matter how horrible the situation.
I call 911, and let them sort it out in a police report later. I am willing to hang around and be a witness, but that’s it.
This is how screwed up this nation is. Coming to the defense of a stranger will get you injured, killed, or prosecuted.
I’m going on a diet to preserve my right to self defense.
More from Scott Hayes, including his posting of a picture of his pistol on X with the caption, “Hey Jew haters. Bring it.”
https://x.com/ScottHayes11b
What did the shitheel that started the fight post?
So I was right about the pistol. 🙂
–Andrew
I find it very odd that as a person with no X account, I can view this entire thread, or timeline, or whatever you call it… whereas when I view other tweets, I can see only the single tweet identified by URL, nothing before or after it. It’s been that way since shortly after Musk took over.
Oldies but goodies don’t talk to police
https://www.youtube.com/watch?v=CkZf6_jK3Zs
the secvond is an updated version which uncluded advice based on more current law
https:://youtube.com/watch?v=-FENubmZGj8
If he didn’t talk to police, I think they would have a hard time proving he shot him.I think I hear a shot but
I never see the pistol, only Hayes placing it behind him.
Proportionality is also hard to determine. The two trying to hold the guy back had a hard time and it is also impossible to tell if they grabbed him before the pitol went off. They also had a hard time of controlling him, so it’s hard to argue that anything but a shot would stop. There is also a shot where the attacker has his forearm across Hayes neck.
More things that complicate the analysis: the attacker was not engaging Hayes when he attacked
he wa arguing with a woman, and the attacker and Hayes had some sort of altercation earlier. I also think the attacker made posts which advocated for killing people.
The most reasonable interpration that I can come up with. Attacker knowing Hayes had a gun. Hayes was walking away, no indication of engagement, was tackled from behind to the ground where the attacker tried to
get the gun. In the scuffle the gun went off.
To me this explanation is hard to disprove, and if there is no more evidence I would have to acquit.
Lots of speculation there. Good luck! 🙂
–Andrew
The only speculation is that Gannon knew he had a gun and that he tried to take it.
No evidence of any interaction before Hayes was struck from behind. ( If you can show a better explanation than going for the gun, I’m listening. ) If you have a frame which shows the gun ( much less Hayes pulling the trigger ) in Hayes hand, preshoting, show it,
Also it will be hard to convict if Gannon testifies. You can’t show tha
Also the evidence of a previous altercation is from a twiter thread,
Unless he or his associates said anything to the police, I doubt they will have enough to convct.
Also they will almost vertainly have to have Gannon testify, and while you can’t show Hayes knew about his past, it can be used to impeach him, and that maeks him about as reliable as Lefty GrossKreutz. Maybe they will have other videos, or a witness statement, but for now this is a hard case to get a conviction.
“If he didn’t talk to police, I think they would have a hard time proving he shot him.I think I hear a shot but
I never see the pistol, only Hayes placing it behind him.”
You’ve got a guy with a bullet in his belly, and you have a gun you can try to match to it. After 15 years of CSI on TV, I don’t understand why this isn’t obvious.
This is the most idiotic thing I have herd. How many times has a person been shot with a gun that was someone else’s. You don’t have images ( and if you do fgeel free to post them ) of Hayes holding the gun or pulling the trigger before the shot. The only pirctures I have seen of Hayes holding the gun are after the shot was fired. That is not diwspositive.
“If you have a frame which shows the gun ( much less Hayes pulling the trigger ) in Hayes hand”
The gun in Hayes’ hand, muzzle pointed at the other guy’s abdomen, is clearly visible in the video clips just before the shot is fired, if you watch carefully.
All about firearms so far. What if the guy in Hayes’ position comes up with a really lethal blow? Say drive the heel of the hand up under the chin and shoot for the moon. Serious injury or death. Proportional or not? Would there be a difference if the guy had some martial arts or self-defense training, or figured this out on the spot?
I’m hoping the notion of proportionality inherently answers this question.
–Andrew
In the instant case, the guy shot is surviving. In my hypothetical, the attacker could be dead or paralyzed. Is “proportionality” solely a matter of means, or does result count? If a guy has martial arts training, or the Infantry hand=to-hand, could he be accused of choosing the lethal technique from among his options? Or if one guy in a scuffle trips and hits his head on a curb and dies, does result trump proportionality? Point is, seems “proportionality” can be flexible, depending on what the prosecutor wants. Or it’s solely and iron-clad a matter of what tool you use.
An interesting perspective. If Hayes’ gun was in contention, or if Hayes’ health meant he was at risk, proportionality is satisfied.
Hayes is a reportedly an Iraqi War veteran. Could he have acquired either combat injuries or trauma due to his time there? Could he have acquired injuries from his military service or gained instincts to respond lethally when attacked rather than with minimum force?
Note that the attacker remains unidentified and uncharged. Aside from being unusually (insanely?) determined, nothing about his motivation to attack is known. If he is mentally unstable does that factor in to Hayes’ potential use of deadly force?
And while this piece states a thrown fist is generally treated as non-deadly, cannot that still be argued? In Australia andor New Zealand there have been One Punch Can Kill campaigns, with sucker or coward punches given up to 25 years depending on the Australian state in question, and effort to legislate a 20 year sentence blocked by the governing Left in New Zealand.
Hayes’ attacker did a flying tackle that slammed him into the concrete then starting beating on him, or possibly struggling for the gun – video is unclear. The latter justifies lethal force, the former means Hayes would likely be stunned and sore – head slamming into concrete, There was also only about 3 seconds between Hayes’ attacker slamming him to the ground via airborne tackle, and Hayes’ firing. There was no assistance during this time, just screaming and comments. Only after Haye’s shot did the shock of the attack wear off and others move to his aid. Thus could the speed of events also factor in to proportionality and decision making?
Since Middlesex County is heavily partisan – over two-thirds of votes went Democrat in 2020, the politics of the place may mean a pro-Israel supporter will struggle to convince a jury that self defence against a pro-Hamas attack is justified. On the other hand Newton’s population is roughly a third Jewish, though most of them will be Left, so a non-partisan or split jury is possible I assume.
The guy that was shot was a terrorism supporter. I’d have feared for my life.
A fair argument–IF there is evidence that Hayes knew this at the time.
Do you HAVE evidence that Hayes knew this at the time?
–Andrew
The video I saw shows some s*** talking between them. I would have to assume that they both knew they were on opposite sides of that particular issue
A Newton MA jury is not going to equate “I hate genocide” with “I’m a terrorist supporter.”
–Andrew
They might not, but unlike them I’m not a retarded communist
Jewish jurors, even Democrats, will. Because the vast majority of Jewish Democrats know that when these people say they hate genocide they actually mean they love genocide.
Actually it doesn’t. It shows some shit talking between Gannon and a woman.
Show me the evidence Hayes knew, or reasonably could have known, the crazed attacker was unarmed, no knife, no screwdriver, no gun, no anything, and knew the attacker did not intend to kill him with his bare hands.
You’re thinking backwards. Lawful sefl-defense is responding to a reasonably perceived threat–in the case of deadly force self-defense, to a reasonably perceived deadly force threat.
It’s not a knowledge vacuum into which you can speculate whatever weapon pops into your head and use that speculation to justify your own use of deadly defensive force. Under your view, because ANYBODY potentially COULD have a deadly weapon, you’d be privileged to use deadly force against ANYBODY–but that’s what the law allows.
Indeed, if the law allowed that states wouldn’t have different conditions for the use of non-deadly defensive force and deadly defensive force–but they do.
–Andrew
Mr Hayes was quite vulnerable to having his head pounded on the pavement. It would not take much to cause a fatal head injury or at least a severe concussion (just watch NFL games when a player gets a concussion even with a helmet?). Mr. Hayes did not have any protective head gear and so was quite vulnerable. He (or any reasonable person in his position) also did not have full knowledge of any armament that his attacker might carry but had yet to display which could include a fire arm, knife, means to choke him, brass knuckles, or the ability to execute the wrestling sleeper hold at which point he would be completely defenseless. In situations such as this, time is of the essence,
Speculation is not a legal defense.
–Andrew
Head pounded on pavement worked for George Zimmerman.
Yes, but in his case, it actually happened.
Actually there wasn’t there was only evidence of his trying to slam Zimmerman’s head against the ground.
Zimmerman had abrasions on the back of his head caused by its impact with the sidewalk, and these were captured by photograph and testified to by medical experts. You know–evidence.
–Andrew
It was physical evidence of a potentially deadly attack on Zimmerman. You can die from having your head bashed into concrete. If I remember correctly, there was also some of his blood (from the head wound) on the concrete walk, further corroborating his story. Then, after George screamed for help, Martin apparently tried to strangle him. Another deadly attack.
No speculation. Completely reasonable fear under the circumstances that Mr. attacker was going to go beyond fisticuffs in the next few seconds.
A few seconds of pummeling only is not enough to draw a reasonable conclusion about the attacker’s next move.
This further solidifies why I would never live and will not visit any communist shitholes like massachusetts. You don’t have any rights there
When someone in a rage attacks a person, how do they know how to respond? Do they wait and see if the person is armed? Do they wait until they are wounded by thumbs to the eyes or head to the pavement? How long does the MA government want a victim to get attacked before they, in fear of their life, react with the greatest force available to them? If they feel a rock on the ground and swing it, is that too great proportionally?
“I hold that the laws of the state of Ohio should be so applied and so interpreted as to favor the law-abiding rather than the law-violating people. If this decision shall stand as the law of Ohio, a very large percentage of the good people of Ohio to-day are criminals, because they are daily committing criminal acts by having these weapons in their own homes for their own defense. The only safe course for them to pursue, instead of having the weapon concealed on or about their person, or under their pillow at night, is to hang the revolver on the wall and put below it a large placard with these words inscribed:
Justice Reuben Wanamaker, State v. Nieto, 101 Ohio St. 409, 436, 130 N.E. 663 (1920).
According to Mr lawyer, the person being attacked should just assume the attacker is a well intentioned, honest attacker who is going to commit mostly peaceful violence against him.
I didn’t have time to read through all the comments but I believe the pistol is a Hellcat pro with a red dot.
The prosecutor will spend a lot of time on on his training, if any, for the use of his weapon. Also social media posts will be brought up to show his state of mind in reference to hamas supporters. As Mr Branca analyzed he has a lot to prove to a jury about why he chose to shoot. As a person with a CCP from the state of Florida, I take it upon myself to train. I do carry with a round in the chamber. It’s how I was taught in the Marines. (Old school .45 auto) The round in the chamber argument only seems relevant to semi auto pistols. If carrying my .357 magnum wheel gun it always has 6 rounds. Cocking or pulling the trigger rotates the cylinder anyways. In any this gentleman will be out a lot of money to defend himself in court. As has been said, “ when you carry don’t involve yourself in arguments”.
Scene:
Terrorist supporter sprints across open road and plows into me, tackling me to the ground.
Dialogue:
Me: “Sir, do you have a dangerous weapon on your person or do you otherwise intend to kill or seriously injure me? Please carefully consider your answer as the nature of my response to your attack depends upon it.”
(Hayes’ response was reasonable and proportional to the potential danger, in context.)
“ 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?”
Yes,
He wasn’t tackled to the “ground”, which is an array of natural elements, from cushy sand to grass covered dirt.
He was tackled on concrete.
Attacked with a large, flat brick, so to speak.
For decades, I carried a coping saw handle. Perfect fit for the hand. One end had a blunted screw–for fitting into the saw frame. It was useful from time to time as an ad hoc tool for one thing or another around the house or office.
But the screw end, driven hard into the torso or elsewhere would be both damaging and disablingly painful. Got through customs in several countries. No law against it. If I used that in a fight, where would that stand in “proportionality”? I could put a guy down with worse injuries than Hayes did with a gun. So what does the prosecutor do….? See who I supported in the previous election?
The thing I most appreciate about Mr. Branca’s commentary is that he always focuses on the law in that particular jurisdiction & the motivations of the prosecution. No speculation, no “wishcasting” and no posturing. What he WANTS to happen never enters into the conversation.
That takes quite a bit of effort. Thanks Andrew.
Looks to me like the evidence shows that attacker rammed into the victim when his back was turned. Then, instead of punching or behaving as though he just wants a run of the mill fist fight, he at some point snakes his right arm up around the victims neck, which is clearly visible in the video. One could reasonably say that he appears to be trying to “take his back” to get in a better position for a rear naked choke. Chokes can knock you out in seconds and are objectively lethal so if I were in the victims position, I’d be trying to find the fastest way to prevent it from happening. Doesn’t matter that the victim is bigger because most of his non lethal defence options (punching and kicking) are prevented because he isn’t facing his attacker. Only an elbow strike would remotely be effective but it would be to the abdomen, so I even question that. Even if he was facing his attacker, he has little leverage from bottom.
So as far as I can tell, the only options he seems to have had are 1) to throw ineffective strikes, essentially waiting it out and see what happens, which is dumb 2) try to jiujitsu his way out of it which takes tons of training and skill in the best of circumstances, nevermind when ambushed, or 3) use a weapon. Given all that, I struggle to see how proportionality as you describe it wasn’t met here.
Seen on the web – some common sense:
“Open letter to Middlesex District Attorney Marian Ryan”
1. Israel-supporting man Scott Hayes experiences unknown, enraged, anti-Israel, quite likely mentally disturbed person viciously run-tackling him to the ground with great force, apparently while Hayes’s back was turned, an act of aggravated assault. Then the attacker grabbed Hayes’ neck. This was aggravated assault clearly intended to cause great bodily harm or death to Hayes (and could easily have done so).
Hayes on the ground tries to fight back, but even when compatriots try to get the attacker off him, the attacker does not surrender or stand down but continues his enraged, violent behavior. The attacker continues to hold on to the victim he tackled so viciously and continues assaulting him.
The tackled man Hayes has a chaotic, limited view of his attacker, and does not know if that attacker, acting in a violent, reckless and explosive fashion regarding a cause that has led to bloody butchery of Jews, has a knife, gun, bomb, suicide vest, or other weapon. This is in a city near where terrorists blew up marathon participants in 2013.
So what’s the attacked Hayes supposed to do?
1. Do nothing, and possibly get stabbed, his throat slit, or blown into bloody body parts, reasonable fears under the circumstances.
2. Continue struggling with his attacker, and possibly get stabbed, his throat slit, or blown up.
3. Beg the attacker to stop, with same risks as above.
4. Pull his firearm and put an end to the attack and an end to the risk of being stabbed, having throat slit, or being blown up.
You tell me.
“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.”
Hayes got jumped from the back and could not have known that the perp was unarmed, being on the ground and not having a clear and consistent view of the attacker.
Under the circumstances (apparent Israel/Jew-hating, pro-Palestinian guy), who would have thought Hayes to be Jewish and an Israel supporter, a reasonable person would have been concerned his attacker was armed. With knife, gun, bomb….
It would have been reckless In the extreme for Hayes to have, with the information he had available on the ground, believed the guy was unarmed.
He acted In the only reasonable way possible to protect himself.
From just viewing the video up until the time of the gunsh, can someone prove to me – beyond a reasonable doubt – that the attacker was unarmed?
The state doesn’t have to prove he was unarmed. Hayes must have had reasonable grounds to believe his attacker was using deadly force. So all the state has to prove beyond reasonable doubt is that Hayes didn’t have reasonable grounds to believe that. And speculation is not reasonable grounds.
Summarizing all my previous thoughts,
I think it’s clear Hayes would have had a reasonable fear, 1) after being sucker tackled and attacked from the rear and 2) after a few seconds of pummeling and 3) throat grabbing and 4) the attacker (who he did not have clear sight of) not standing down despite attempted interventions of others …. of being attacked (A) with an actual weapon or (B) the attacker being able to get in a blow that would cause serious injury or death or (C) both of the above..
This is inarguable In a real court …although perhaps not in a Soviet Star Chamber.
Still don’t get “proportional”. Do we presume the result of the attacker’s assault would resemble something at kindergarten recess since he didn’t have a weapon? If so, then shooting would not be proportional.
Is it a matter of means–pistol versus bare hands–or results? If Hayes had, while unarmed, landed a blow which turned out to be lethal–guy falls and hits his head–is that disproportional? If Hayes uses a technique learned someplace which is usually very seriously injurious if not fatal, is that not proportional? After all…bare hands?
So…means or results?
As far as I know, proportionality is required in every single jurisdiction in the entire world. If someone has some counterexamples please cite them.
What it means is that you have no right to defend yourself with deadly force unless you reasonably believe you are being attacked with deadly force, which for this purpose means force that could kill or seriously injure you.
It’s got nothing to do with whether you or your attacker are using weapons, nor has it anything to do with the actual outcome. Using bare hands in a manner that is reasonably likely to result in serious injury or death is deadly force, and you may not use it unless you reasonably believe it’s being used against you.
Martin attacked Zimmerman with his bare hands, but he did so with deadly force. Zimmerman had a very reasonable belief that it Martin was not stopped he was likely to kill or seriously injure him. So he was entitled to use deadly force to stop him. Likewise Michael Browne was charging at Darren Wilson with his bare hands, and Wilson reasonably believed that if he did not shoot Browne he would kill or seriously injure him, so he was entitled to do so. But that belief must exist and it must be reasonable.