Amid the scrum of personal and political news of this past week or so, I almost missed this one; the apparent self-defense shooting late Saturday night at a northeast Minneapolis bar involving a bouncer with a carry permit:

Tirso Cruz Gomez, 24, of Columbia Heights was found bleeding to death from a gunshot wound when police arrived at Grumpy’s Bar, 2200 NE. 4th St., shortly before 1 a.m.

Police have spoken to the bouncer, who was detained at the scene and later released. The investigation will be passed on to the Hennepin County Attorney’s Office, which determines whether charges will be filed.

Minneapolis Police Sgt. William Palmer said, “It does appear from our investigation that the bouncer was attempting to defend himself against an attack with a knife.”

The whole thing smells like booze, as it were – at least, on the part of Mr. Gomez:

It wasn’t clear why they were fighting. Gomez had apparently been at the bar earlier that evening before the confrontation, a witness said.

The bouncer has a legal permit to carry a pistol, police said, though they declined to make his name public.

According to witnesses, Mr. Gomez apparently left, and – against his mother’s wishes – came back to the bar, got into a scrap with the bouncer, and pulled a knife. 

[The bouncer] tried to take the knife away from Gomez, and he required stitches for hand wounds, Palmer said.

The police – notwithstanding that the Minneapolis cops will generally “arrest the gun” in any sort of shooting incident where they can find a shooter – did not arrest the bouncer at the scene.  However, the Hennepin County Attorney’s office – a famously anti-gun institution – still has the option to try to prosecute.  And when anti-gun, DFL-linked organizations want to squash a legitimate shooter, they’ll find a way.

Remember – if the Henco Attorney wants to file charges, self-defense in Minnesota is considered an “affirmative defense”; in effect, the shooter, no matter how justified, admits “Yes, I shot the “victim”, but the shooting was justified” – and then takes on the burden of proving it was justified.  And when you see the phrase “takes on the burden” in a legal context, what that means is “get ready to spend months in court and tens of thousands in legal bills”, because you are fighting the County.

As we’ve noted in this space in the past, there are four criteria for this affirmative defense: one must reasonably fear death or great bodily harm, must not be a willing participant in the squabble, must make a reasonable effort to disengage, and the lethal force must be reasonably appropriate.  And when you see “Reasonable”, above, that means “would convince a jury”. 

So let’s break it down:

Fear of Death or Great Bodily Harm:  Dude.  Knife.  Done deal.

Lethal force is appropriate:  Dude.  Knife.  Done deal.

Must make reasonable effort to avoid use of lethal force and must not be a willing participant:  these two scare me – not because I believe the bouncer was wrong (given what I’ve seen – and the story seems to be pretty thoroughly reported), but because I can easily see a Henco Attorney, operating at the direction of a city administration that actively tries to discourage the law-abiding from defending themselves, telling a jury “bouncers get paid to fight with people!  He should have run away!”, and “See?  He tried to grab the knife!  He was a macho guy who mixed it up, and then pulled a gun and shot when he got the worst of it!”.  And I can see a jury, sitting in a nice, well-lit jury room with hours to make the decision, being inveighed to decide that the twerp attorney has a point.

This is why Minnesota law needs to be changed to allow the system to decline to charge obvious cases of self defense (if, indeed, that’s what this case is – and I will assume it is until I have reason to believe otherwise) – to remove the prosecutors’ discretion to prosecute the otherwise-impeccably-law-abiding purely to advance an administration’s political policies.

17 thoughts on “Self-Defense

  1. Wouldn’t it be a case that it was the victim carrying this conflict to the bouncer, given he had left and returned, given he pulled the knife, given the bouncer had wounds?

    I am sorry a man is dead, apparently from a mix of alcohol and stupidity, but the bouncer shouldn’t be penalized for a case like this. On the other hand whenever people are killed, gun or other, we shouldn’t be making it too easy for that to happen either.

    “one must reasonably fear death or great bodily harm, must not be a willing participant in the squabble, must make a reasonable effort to disengage, and the lethal force must be reasonably appropriate.

    I don’t have a problem with these, on the assumption that deadly force should be the last resort. My thoughts on reading this were the instances of domestic violence rather than this kind of violence. The idea that one or both of the parties should stop the conflict and if necessary leave needs to be part of this.

    I feel badly for the bouncer – for his injuries, and for how he might be feeling about killing someone, no matter how justified. That can’t be easy for him, poor man (I’m assuming it was a man from the news reports).

  2. If it goes to court I hope his jury is made up of people with more sense than some of the bozo commenters in the local papers saying that shooting someone twice in the chest is disproportionate to being attacked by a knife, or that the bouncer should have tried to wound his assailant in the arm or the leg (just like the Lone Ranger would have done). Just as with hollow-point ammunition, these people’s hollow heads can do a remarkable amount of damage.

    I think putting two shots, center-mass into an enraged, armed and moving target after being wounded in the hands speaks well of the shooter’s skill and presence of mind. If it had been me I’d have emptied the entire magazine or every chamber (and possibly my bladder) – just as Joel taught me.

  3. If it had been me I’d have emptied the entire magazine or every chamber (and possibly my bladder) – just as Joel taught me.

    I’m sure, just as I taught you, you would have immediately stopped shooting when the attack stopped.


    That said, in a case like what this appears to be (I’m adopting Mitch’s caveat, having arrived at it independently, anyway) most people could and probably would empty most firearms before the attack stopped.

    Yup, Mitch; if the facts are as they appear to be, the guy shouldn’t be prosecuted, and if the facts appeared to the cops as they appeared to be, he shouldn’t have been arrested in the first place (and, should we ever get the self-defense bill into law, he likely wouldn’t have).

    I do know some serious martial artists (Tuhon Bill McGrath comes to mind) who would be able to take on at least most knife guys with a Tonya Tapper or — better — a cane, but that’s a pretty advanced skillset. Unless this guy has a lot more training in that stuff than most well-trained bouncers would, it’s amazing that he managed to survive trying the baton.

    That said, my theory — I’ve no facts to back it up — is that the likely reason that this wasn’t an “arrest the gun” has a lot more to do with the fact that the late, lamented, was a Bad Guy and that the shooter was a bouncer who, like pretty much all bouncers, has had police contacts before when he’s had to have somebody stay thrown out, than anything else. (“Hey, it’s Bob [which may or may not be the guy’s real name] — we know he’s a good guy, so let’s just ‘ask’ him to make a statement, submit and blood and urine sample, and then kick him loose.”)

    Technically, Mitch, you’re a little wrong on the burden issue — once the defense has brought forth pretty much any evidence or evidence-based argument for self-defense, the burden, in theory, shifts to the prosecution to prove one or more elements of self-defense lacking, beyond a reasonable doubt.

    That said, there’s pretty much clearly enough to indict the bouncer — as the old saw goes, a prosecutor can indict a ham sandwich — and that would necessarily trigger a serious risk of conviction, going down at least somewhat with a good lawyer and defense investigator. So while I’ll quibble on the technicalities, in practice, you’re entirely right.

  4. Some years back a friend of mine (a young father augmenting his income as bouncer at Augies on Washington Ave.) was murdered by a patron with a shotgun at bar closing time (it was well publicized in the Strib at the time). He had told the man he could not keep playing pool as it was bar curfew. The guy took offense to the demand, went outside to his vehicle, returned with the shotgun, and killed the bouncer in the bar doorway. This was before the MPPA became law. The point is the perps intention was to kill the bouncer for slighting him. (He was later convicted of murder 1).

    The Grumpy’s incident seems to have been about a guy who felt slighted and came back to the bar seeking revenge. A knife will kill just as fast, and just as surely as a handgun in many instances. There are circumstances where a knife would actually be a more effective killing weapon. The bouncer’s knife wound may very well have been a defensive wound. Certainly the knife could suggest the intention of the perp was to inflict great bodily harm. It would seem that in and of itself justifies the use of deadly force.

    It’s impossible to make judgments about this case without knowing all the facts, and we don’t know them at this time.

    Treptow was railroaded by the system, a political hatchet job. Beard is the one the system should have come down on, but instead he skates. THOSE IN CHARGE OF THE SYSTEM FAILED US IN THAT CASE!!!

    No ifs, ands, or buts, we need a well defined “Stand Your Ground Bill” here in MN.

  5. DogGone, the trick is that the law presumes a duty to retreat if possible. Strictly speaking, that means you’ve pretty much got no right to draw your gun unless you’re cornered.

    The “out” (not really in the law, but something any good lawyer can argue) is that if a bouncer retreats, he’s just let a killer in a room full of people who are not allowed to carry lethal force to defend themselves. Kinda like no jury is going to convict a dad if he shoots the perv who is coming after his daughter, even though the dad technically “could” retreat.

  6. Actually the knife wounds to his hands probably indicate pretty nicely that in fact the bouncer did TRY to avoid the use of lethal force…he tried a lessor force until that no longer became an option.

    As to the not being a willing participant…that’s a little harder to definitively prove. Granted the bad guy came to him, not the other way around. However, he did, presumably, confront the guy…although that’s his job. If bouncers are supposed to run away from every unruly customer you may as well not have bouncers.

    How to definitively sell that to a jury I’m not sure…thereby proving I’d make an awful attorney.

  7. Pingback: Tweets that mention Shot in the Dark » Blog Archive » Self-Defense --

  8. Can I quibble with a quibble? I don’t want to cause tribble, but . . .

    . . . the defendant does NOT have a right to argue to the jury that his actions were excused by the law of self-defense. He must be given permission by the judge to make that argument, which comes in the form of jury instructions.

    The judge tells the jury what law applies to the case and if the judge declines to give the self-defense instruction, the jury is not allowed to excuse the shooting on that basis. The decision which jury instructions to give comes AFTER the evidence has been presented, right before the jury retires to deliberate. A self-defense instruction is NOT automatically given.

    See, for example:

    Therein the risk – you must admit shooting the guy as part of the testimony in your case; but after you testify, the judge might not let the jury consider the justification for your actions, in which case you have stuck your neck into the noose and kicked away your own stool.

    Therefore the need for pre-charge judicial review. If the prosecution wants to charge you in a shooting incident and you want to make a self-defense claim, you ought to find out up front whether the judge will let you argue that defense before you make damaging admissions.

  9. Yes, Joel, I would have stopped shooting as soon as the attack stopped! The attacker might have gotten another bullet or two on the way down, though since, unlike at the range, I wouldn’t have much opportunity to evaluate placement and grouping of the initial shots. Once he was on the ground if I found I had bullets left I wouldn’t walk over and say, “You don’t look so bad, here’s another.” And if I turned out that I had somehow hit my assailant in the hand, arm or leg it would purely be due to dumb luck!

  10. If I read Nate’s comment correctly, that would indicate that if the judge fails to apply the law inasmuch as self-defense is concerned, he must go to appeals. Is that about right? Foot? You following this one? (or other lawyers out there?)

    Exactly why a defense lawyer or prosecutor is not allowed to explain the law as it relates to the case is not entirely obvious to me here……

    …and sad to hear about Treptow. Granted, he wasn’t smart to follow a rogue cop with an attitude, but is that a felony? If I were governor, he’d get a pardon.

  11. Nate, sure — and there are obviously situations where an attorney for somebody who has engaged in self-defense might reasonably want to put the prosecution to the trouble (perhaps insuperable trouble) of proving that the actually killed the guy, beyond a reasonable doubt, rather than admitting it.

    But, where I think you’re wrong — and remembering, as I do, that IANAL and you are — that while the judge can refusing to issue a self-defense instruction (or, as in McCuiston, a defense of dwelling instruction) the burden on the defense to put forward evidence that compels that instruction is very light, which is in part why, frex, McCuiston’s conviction was reversed.

    Going a little more into the details of it all, in this case, it may well be possible for the defense — if this ever gets to court — to raise self-defense without ever putting the bouncer on the stand; as I understand it, there were ample witnesses to the event, and ample physical evidence (what appear to be, for example, defensive wounds, the knife, the Tonya Tapper, etc.) that might well make it possible to secure an acquittal without the defendant uttering so much as a word.

    I doubt that we’ll ever see it come to that; I think that this is going to go away, as the attacker is, unlike Treptow’s attacker, not a cop.

  12. Pingback: The Many Lies of “Protect” MN, Part XXIV: “No Precedent!” | Shot in the Dark

  13. Pingback: Ten Years | Shot in the Dark

  14. Pingback: BREAKING: A Good Guy With A Gun: Part V | Shot in the Dark

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.