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.
(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.
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 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.
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.
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.
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.
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 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 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.
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.
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.
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.
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.
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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