Retrial Begins for Firefighter Who Selfied “Stand-Your-Ground”
Firefighter repeatedly says he’s “standing his ground” on self-made video of deadly confrontation
A re-trial begins this week in Houston for retired firefighter Raul Rodriguez who was previously convicted of murder and sentenced to 40 years in jail, reports the Houston Chronicle. Rodriquez had unsuccessfully argued self-defense at trial. The notable oddity of this case was the fact that Rodriguez had videotaped himself rather bizarrely confronting loudly partying neighbors. Rodriguez would ultimately shoot and kill one of those neighbors, Kelly Danaher.
I first wrote about this case back in December of 2014, after the appellate court ruled that Rodriguez was entitled to a re-trial: “New Trial for Man Who Video Recorded Own ‘Self-Defense’ Shooting.” The grounds for ordering a re-trial was an error in the trial judge’s instructions to the jury on Texas self-defense law.
As I wrote at the time:
The facts of the case are somewhat ambiguous on detail, but in general they consist of an amalgam of a loud, drunken party, long-simmering neighborhood disputes, and incredibly poor judgment on the part of a retired fire-fighter in electing to exercise his concealed carry license by bringing his pistol to a confrontation. A tragic outcome was entirely predictable.
A particularly remarkable part of this case is that Rodriguez himself recorded the events of the conflict in an almost 20-minute video. A portion of the video recorded by Rodriguez is here. Roughly 15 preceding minutes are missing from this version, but the relevant end-stages of the conflict are captured, and the video ends with the first gun shot. Reportedly several shots were fired, including one which injured another party goer, in addition to the fatal round that struck Danaher.
Here’s that video:
Under Texas law a claim of self-defense can be defeated if the prosecution can prove that the defendant openly displayed (“failed to conceal”) a handgun in public concurrent with the purported act of self-defense (the legal reasoning behind this is complex, and described in detail in the post linked above).
The trial judge instructed the jury on this facet of the law using the following language [emphasis added]:
If you find from the evidence beyond a reasonable doubt that the defendant, Raul Rodriguez, did then and there on May 2nd, 2010, fail to conceal a handgun in violation of the law stated above, before seeking an explanation from or discussion with the other person concerning the defendant’s differences with the other person, then you will find against the defendant on the issue of self-defense.
The prosecution had not introduced evidence that Rodriguez had unlawfully displayed a handgun during the events immediately concurrent with his claimed act of self-defense, but they had introduced evidence that Rodriquez had openly displayed a gun to a person not involved in the ultimate confrontation some hours earlier in the day. The appellate court feared that the jury may have mistakenly believed that this earlier display of a gun required them to reject the claim of self-defense. Thus the appellate court awarded Rodriguez his re-trial, for which jury selection begins this week.
If anything interest results from the re-trial, we’ll write about it here.
Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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Comments
I want to remember that the new open carry laws adopted in texas would have the effect of eliminating (maybe not for this case?) the public display of firearm prior to self-defense problem. If that change in the law does change the public defense element and it applied retroactively then defendant in this case might be saved. Also, if it doesn’t apply retroactively seems unfair to this defendant, but I realize unfair doesn’t count necessarily.
That’s why I cover use of force law, and not gun law. Gun law changes to often around the country. 🙂
FYI, new laws almost never apply retroactively, unless they explicitly state that the Legislature intends them to apply retroactively.
–Andrew, @LawSelfDefense
It sounds like he admits to drawing his gun at 0:54. He says he’s in fear for his life, and his life is in danger, but that doesn’t make it true. If it had been true, he should have been shooting instead of talking. It sounds like he was trying to justify use of force with words that weren’t backed up by the facts.
You nailed it. The prosecutor should have offered him a plea deal. If this fool thinks he has a chance of winning at this point, he’s delusional and should plead insanity.
It is as simple as you said, and no jury instruction is going to alter that reality. If he was really in danger, he should have been shooting not talking. I’ve had a lot of close calls behind the wheel and it never crossed my mind to honk instead of evade.
I think the fact that he pulled the gun early in the confrontation and shot later will sink him.
When you go out to the trouble, rather than the trouble finding you, it’s rarely helpful for a claim of self-defense.
A noisy party never killed anybody, and he could have called the police and filed a noise complaint. Or moved. Or most anything, other than shoot a drunk at a party that he provoked to confrontation.
–Andrew, @LawSelfDefense
Really, the prosecution would have to be truly grossly incompetent to not obtain a conviction on this case, if only on the element of innocence under self-defense law.
–Andrew, @LawSelfDefense
That was my first thought – that he lacked innocence. Videotaping the interaction, and starting early on talking about being in fear of his life, both seemed to be contrary to being the innocent party (though the other side probably weren’t innocent either).
He clearly provoked the confrontation. #shrug
Then with all the shouting about SYG on the video, he was clearly trying to “game the system” to make the confrontation appear to comply with lawful self-defense.
Prosecutors HATE it when people try to game self-defense. Here comes the anvil. The wartime equivalent would be wearing the enemy’s uniform. People get shot at the wall for that. 🙂
–Andrew, @LawSelfDefense
The guy left the safety of his home and he is in fear for his life?
“I am scared to death”
Why not do a tactical retreat and get back in the house and wait for the police.
He shoots and kills a man over loud noise?
Stunning he is going to jail for a long. long time!
He had the right to leave the safety of his home.
He is under no legal obligation to make a tactical retreat.
He supposedly shot because a belligerent drunk rushed him.
I have trouble thinking that drawing a weapon out of fear somehow eliminates one’s ability to legally use that weapon should that fear be confirmed by overt action.
I’m sure that’s what he’ll try to sell the jury.
The prosecution will try to sell them a narrative of a man who armed himself and went out to provoke a fight.
We’ll see which one the jury buys. 🙂
–Andrew, @LawSelfDefense
Well we already know which version one Jury bought.
I realize that there was a mistake made and the man deserves a new trial, but barring some hefty evidence I just can’t see the outcome changing.
Ok and now he will be going to jail for a long, long time!
He has zero to right to shoot a man!
Just from a self-preservation standpoint, if someone says he’ll shoot you, you should probably take that seriously, especially if he has already brandished a gun.
This case does illustrate one of the hazards of citizen carry, however. Learning the ins and outs of self-defense law, even for just a single jurisdiction, isn’t simple, especially (but not only) when you move away from what just the statutes say and add in the legal and safety practicalities learned from experience and the case law. That’s the reason we have folks like Andrew and Massad Ayoob teaching classes — hours-long classes — in nothing but that. For everyone who takes one of those classes, however, there are dozens if not thousands of armed citizens whose only knowledge of self-defense law is that which has been summarily obtained through a brief concealed carry class, if not through the Internet and public media. Then even of those there is a significant number who — in our “read the instructions? Who, ME?” / “if it’s not intuitive I don’t want it” culture — either do not or cannot understand the subtleties of the law and only get the highlights which they reinterpret or sloganize by their own lights. Much of self-defense law and practice is far less than obvious and some of it even approaches being counterintuitive. Even more of that law and practice runs counter to what individuals who carry because of paranoia or a “me against the world” / machismo attitude want to hear. All of those can lead to false presumptions, if not magical or wishing-will-make-it-so thinking, with the result that we get cases like this and others that Andrew has commented upon here, such as Markus Kaarma, Michael Dunn, and perhaps Theodore Wafer and Tom Greer (who was pretty clearly not prosecuted due to his age, not the facts).
All true, but Rodriguez didn’t even follow the rules of common sense, and even a mandatory CCW class (as required in Wisconsin, anyway) covers brandishing enough that he should have known he was in the wrong.
I still remember what my CCW instructor said when it came to drawing your weapon. He made it very simple; “If your gun clears the holster you don’t fire warning shots, you don’t display the gun and scream freeze, and you don’t shoot to wound, you shoot and you shoot to stop the threat, period. When you draw your gun you should already have decided to fire. If you draw your gun a wave it around you will be going to jail.
That’s nothing like mine said. He said you could brandish, either by drawing, or simply displaying, if in fear for your life, to stop an imminent threat of death or GBI, and not have to shoot, if that is enough to end it. What if you draw your gun and your assailant suddenly backs off, drops his own weapon, or hightails it? What is your next step, shooting him in the back? Of course, then you’d still call the police and do everything else you need, but you don’t necessarily have to shoot to use a gun for self defense.
I guess that could happen, which is why he put the 99.9% and not 100%. However, I don’t know how fast you can draw and put rounds on target but for me once my hand is on the gun, it will be less than a second before the loud noises start. Most people won’t even have had time to notice you have drawn before you shoot, much less run, drop their weapon or surrender. Which is why you should be damn sure you are drawing for the right reasons.
Also, I have never heard an instructor say to draw and then give them time to respond, or run, or drop their gun. I would say that if you can draw your gun and brandish it and give them enough time to do any of those things then you probably weren’t justified in drawing your gun in the first place, because if a threat is truly imminent the time for wait and see has passed.
That is why this guy was convicted and will be convicted again, he showed his gun, even drew his gun and then started pontificating and using language that he thought would help his self defense case. He felt comfortable enough to speak, he had no reason to draw his gun.
It’s probably not as uncommon as you think. It’s about the situation, and situational awareness. It’s not about giving a man time to back down or retreat; if he withdraws, the threat is over, and you have no right to shoot. Maybe you’re a quick draw, but maybe some who are quick on the draw are slow in dealing with buildup to it — brandishing a gun, and yes, commands such as “Freeze!” can de-escalate a dangerous situation, but it all depends on the exact circumstances. Imagine a man coming at you with a 9-iron, threatening to put a divot in your head. You draw your gun, or even just show it by lifting your shirt, he drops the club, puts his hands in the air, and the threat is over. As Sun Tzu taught, to win without fighting is the acme of skill.
@ Char Char Binks
“but maybe some who are quick on the draw are slow in dealing with buildup to it — brandishing a gun, and yes, commands such as “Freeze!” can de-escalate a dangerous situation, but it all depends on the exact circumstances.”
Yep, and you are still guilty of brandishing a weapon in any jurisdiction that I know, and if you are drawing your gun and talking then you are not in Imminent fear of your life and you had no right to draw the gun in the first place. Either that or you must have a much different definition of “imminent” from the rest of the world.
As far as your situation with the guy with a golf club, if he is coming to attack me he is probably never going to realize I have drawn a gun. Once again even most untrained people can draw and start to fire before he can react. Now I can see if you shoot and miss and then they give up, sure.
I’m with Char Char here, Gremlin. Here’s an example: I hear loud noises at my back sliding-glass door. I grab my gun and run to the door. I can see two balaclava-clad men with knives trying to force their way in. There is imminent danger here — any reasonable person would agree that any act of self-defense on my part would be covered under self-defense immunity. Yet I don’t shoot immediately the second I draw on them. They’re still on one side of the sliding-glass door; I’m still on the other. I really don’t want to be forced to kill someone, and I’m really hoping they see the gun and take off. And that’s what happens – they see that I’m armed, that there’s a gun pointed straight at them, and they turn around and run away, and then I call the Sheriff.
I don’t know what jurisdiction you’re in, but in mine, I’m 99.9% certain that our local Sheriff is not going to do me for “brandishing” (in Florida this is covered under s790.10, “Improper Exhibition Of A Firearm Or Other Weapon”, and is a misdemeanor).
This kind of scenario, where someone draws their weapon in legitimate self-defense but thankfully doesn’t need to use it, is probably a more common outcome than that in which the person actually has to end up shooting.
@Amy in FL
Yes, I agree Amy, but you added 2 critical elements that @Char Char Binks didn’t to your example.
1: You are in your home.
2: You have actual time to respond.
The situations we were discussing were imminent threats, (i.e. man running at me with a golf club). Also, I said from the beginning that there were going to obviously be instances when you draw and don’t have to shoot. Like someone is getting stupid and knows you carry, sure that person may have time to surrender in some way before you clear the holster. But that is not what was being discussed. If you have an unknown assailant running at you with a golf club to hit you, are you seriously going to draw and not fire? Because he isn’t going to have time to surrender and I would have to presume that in the case that @Char Char Binks put forward the person is already within 21 feet, which means you have about a second to do something.
Gremlin, I left out distance away from the attacker, for brevity’s sake, but it seems I shouldn’t have. There could be plenty of possible instances when someone is a threat, but just out of 9-iron distance (and doesn’t have a driver). You seem to place a lot of value on quickness, but why wait till you need to quick draw when you can MORE QUICKLY brandish LAWFULLY and end the threat?
Furthermore, I reject the notion of shooting automatically and unthinkingly just because you’ve mentally checked a box on your escalation list. That kind of thinking comes dangerously close to Raul Rodriguez and his, “I’m in fear for my life.” nonsense. Pulling the trigger is a decision, right or wrong, no matter how long you take, or need to take, to make it, and it’s always dependent on the particular circumstances.
@ Char Char Binks
Of course distance matters, but no if someone is more than 20 or so feet away with a golf club, I am gonna retreat, not draw my gun a scream drop it, retreating is the smarter action.
“but why wait till you need to quick draw” when you can MORE QUICKLY brandish LAWFULLY and end the threat?”
My comments on reaction time are just that about the time you have to react not being a quick draw shooter.
“when you can MORE QUICKLY brandish LAWFULLY and end the threat?”
In my state there is no time when you can “brandish lawfully”. Now as Amy said they my decide not to charge you but that doesn’t make it lawful. I encourage you to check your local laws.
Also, there is a point to be made that since the person is further away than 21 or so feet, you “brandishing” instead of retreating means that you are committing a crime.
“(and doesn’t have a driver)”
In that case you, most likely, wouldn’t be justified in using deadly force in the first place.
“I reject the notion of shooting automatically and unthinkingly just because you’ve mentally checked a box on your escalation list.”
Which is not something I ever said or advocated. Nice try though.
My suggestion to you is to take a force on force class that actually involves mock instance where you have to decide to shoot or not, it can be very eye opening.
@ Char Char Binks
” Pulling the trigger is a decision, right or wrong, no matter how long you take, or need to take, to make it”
Yes it is, and it is usually a decision that you only have an instant to make.
Obviously, you’re not a golfer.
@ Char Char Binks
LOL, no I am not a Golfer, I already have one habit I can barely afford and that is shooting, I don’t need a second.
The only reason we’re talking about this case, though, is that it’s a pretty rare occurrence for something like this to happen. There are millions and millions of us in this country with concealed carry licenses (over a million in Florida alone), and for almost all of us, common sense kicks in and keeps us from pulling stunts like this.
Once you have a concealed carry license, that’s not a license to go around looking for opportunities to defend yourself. If you wouldn’t go confront a drunk bunch of partying neighbors without a gun, don’t do it with a gun either. An inner voice has just told you that you acknowledge that the situation might erupt into violence (why else would you need your gun? why else would you be reluctant to go over without your gun?), and no-one’s life or immediate safety is in danger, so most sane, normal, law-abiding gun-owners are smart enough to stand down and find other ways to handle the situation. It’s just common sense.
This guy’s actions were the extreme exception to the rule. His behaviour was unusual for a CCL holder. I don’t think it points to “the hazards of citizen carry”, because if it were a general hazard of citizen carry, we’d be hearing about dozens of cases like this every week. And we’re not.
I would like to see your evidence of the “hazard of citizen carry”, because in every area where concealed carry has been instituted it has had the opposite effect. Also, this case isn’t a matter of citizen carry, since the guy was basically right at his home and could have just brought the gun outside with him, regardless of his CCL status.