Everything You Say Can And Will Be Held Against You

“Play stupid games, get stupid prizes”.

It’s a mantra my first carry permit instructor, the late Joel Rosenberg, used to drill into his students’ heads.  The point?  The best case of self-defense is the one you don’t need to state in front of a court.  Don’t put on your legal gun and go to roughneck bars, or hang out where stupidity is likely to break out.   If someone provokes you, walk away – using extreme measures.  “When you’re armed”, Joel used to say, “it’s incumbent on you to be the biggest pussy in the bar”.

And the stupidity doesn’t start when the potential violence does.  Oh, no.

One of the things police and prosecutors would do, if you got into a lethal-force self-defense incident, was pore over everything they can find about your past, to find some way in which they can convince a jury that it wasn’t really self-defense.

Remember – under Minnesota law, there are four factors that must be upheld when you claim self-defense using lethal force:

  1. You must not be a willing participant:  you can’t start a brawl, and then shoot someone who breaks a bottle.
  2. You must reasonably, immediately fear death or great bodily harm.  Reasonable means “it’ll convince a jury”.  Immediate means now; if someone says “I’m gonna kill you…tomorrow”, you can’t kill them first.
  3. You must use appropriate force.  In other words, you can only use the force needed to end the threat.  No more.
  4. You must make a reasonable effort to retreat.  Reasonable.  If you’re pushing your baby in a stroller, you don’t need to leave it behind.  If you’re a 70 year old man with a knee replacement attacked by four youths, you don’t need to try to out run them.  And in Minnesota, it doesn’t apply in your house.  In “Stand Your Ground” states, this provision is disregarded.  Minnesota is not a Stand Your Ground state.

When you claim “self defense”, you must meet all four of the criteria above.  That means all four; if you miss one of them – or if a jury can be convinced you missed one of them, rightly or wrongly – you’re in big trouble.

Big Trouble:  Allen Scarsella was convicted of “Riot”, First Degree Assault and some counts of Second Degree Assault for an episode that happened at the protests outside the Minneapolis Fourth Precinct in November 2015.

The jury deliberated for seven hours following two weeks of testimony from nearly two dozen witnesses — including surprise testimony from Scarsella and a co-defendant — before returning guilty verdicts on all counts.

So – how did Scarsella get convicted?

Let’s go through those four elements.

Fear Of Death:   Observers, and even some of the victims, testified that there was a chase, as at least seven protesters ran after Scarsella and his companions.  Was fear of death or great bodily harm reasonable?  We’d have to ask the jurors – but the law doesn’t require one to be a mind-reader.

 Mobs do stupid things.  Call this a definite maybe.  It would certainly be obtuse to rule it out just because you don’t like the defendant or his motivations; people who believe objectionable things have rights, too.

Convincing a jury of this sort of thing is why defense attorneys make the big bucks.

Duty To Retreat:  Well, no doubt there.  Scarsella and his friends certainly tried to get away.   Call this a no-brainer for the defense.

Was Lethal Force Appropriate?:  Well, assuming it was reasonable to assume the threat was immediate and lethal, the shooting ended the threat.  As far as that goes, let’s call it a non-factor.

Not A Willing Participant:  Here’s the thing about jury trials (or so I’m told by my lawyer friends); a big part of the job is making sure the jury likes you, feels for you, identifies with you.  This becomes important when it comes to this criterion of self-defense in particular.

Going where a confrontation might happen might be considered “willing participation” – but in the Darren Evanovich shooting, where a Good Samaritan chased an armed robber into an alley, the prosecutor decided the evidence showed the Samaritan was not a willing participant; he went looking for the purse, not a fight.

But while Scarsella may well have had second thoughts about attending the protest long before the shooting started, the prosecutors also found some evidence that made him pretty  unsympathetic to the jury:

They watched several videos taken before and after the shooting, including ones of Scarsella making racist comments; and they viewed numerous texts where Scarsella described his intent to kill black people.

Now, could a good lawyer have gotten a jury to disregard this?  Maybe, maybe not.    Even racists have the right to defend their lives; self-defense isn’t a popularity contest.

But jury trials, to a great extent, are.  And the prosecution (according to sources familiar with the case) were able to create an impression with the jury that Scarsella went to the Fourth Precinct looking for a fight.  Which blew away his chance of calling himself an “unwilling participant”, and with it, his self-defense claim.

The obvious lesson – if you value the right to self-defense, and you believe things that a jury might find unsavory, then keep quiet about them, especially on social media, text messages and other searchable media.

And it’s not just racial ugliness.  If you’re a shooter, for crying out loud, don’t be jabbering on Facebook about how eager you are to turn your new shotgun on an intruder.  It’l make it harder for a zealous prosecutor to paint you as a slavering gun nut with an itchy trigger finger.

Another obvious point – the Good Samaritan in the Evanovich case, as well as the Broadbent shooting in 2015, involved citizens who followed the rules; after shooting, they called the police and tried their best to render first aid.  Scarsella fled the scene and didn’t call the police and was caught sometime the next day – a bad tactic if you want to claim self-defense.  It’s good to be a responsible citizen.

Like every self-defense shooting, the Scarsella case should be a sobering reminder – in this case, of what not to do.

12 thoughts on “Everything You Say Can And Will Be Held Against You

  1. A question for those in the know re:

    c.You must use appropriate force. In other words, you can only use the force needed to end the threat. No more.

    Quite a few self-defense courses teach doubletap to the center mass and then a headshot as a means to end the threat. In an adrenaline rush moment of truth, your muscle memory does exactly that. Would 3 shots instead of one be considered “more”?

  2. Reasonable Force: Don’t say afterwards “she looked like she was in pain, so I finished her off”.

  3. JPA, it all depends on the timing. 3 shots in quick succession? No problem. 2 shots, then one a minute later as the perp lays bleeding on the floor? Problem.

    Never underestimate the effect adrenaline has on people in an emergency. Even highly trained law enforcement officers frequently miss during an exchange of gunfire from six feet or less. It’s one of the reasons the FBI led the push away from revolvers to pistols — too many incidents were occurring where agents were emptying their revolvers at close quarters without hitting the perps despite intensive training.

  4. Now that the jury has rendered it’s decision I can say that from my point of view Scarsella went looking for trouble, he wanted to prove (to himself?) what a badass he was. I’m curious if he had a carry permit.

    I think that Mpls should not have let the protest go on as it did blocking the streets and such (I think they are complicit in events to some degree). Plenty of common areas where protests can take place without impeding on people going about their daily business (goes for any freeway, highway, bridge, road, private property, etc.). The crowd did chase these idiots, but the Scarsella crew had to know that wasn’t only possible but highly likely to occur.

    Seems he’ll have the next 12 – 18 years to reflect on his behaviors. Are any of the rest of his pals up on charges?

  5. From what I’ve been taught a DGU would involve only stopping GBH threat. Once that threat has been mitigated you can not use further force. I think that the double tap to the body and follow up to the head is in reality for Special Forces Operators. Most of my training and practice is to shoot COM, and I’m pretty proficient at that. I do some range practice drawing from retention and shooting 2 body – 1 head, but only as a drill exercise on a square range, I doubt that under extreme stress I could rely on the last shot placement. Too risky to try without a errant shot.

  6. It strikes me that unless I was REALLY proficient with a pistol, taking the extra time (second or two?) to aim at the head or another body part instead of center of mass just might indicate that my fear of death or GBH was not there, that I could retreat, etc..

    To this case, if the convicted was indeed yelling racial slurs, he was also a willing participant. Sorry, you don’t get to pick a fight and shoot your way out of it.

  7. bikebubba you are so correct. When doing range practice be it COM or 2 &1 drills I’m not under the stress of someone charging me with a knife, pipe, ball bat, threatening with or god forbid shooting at me with a gun. As nerbert points out even with some level of training misses are often in a conflict. It’s been said pick a big target, aim small, and miss small.

    Avoidance of places that put you at risk is surely the best advise, Scarsella chose not to follow that advice.

  8. Got it. It’s been said pick a big target, aim small, and miss small. – words to live by. Thanks all.

    It does sound like Scarsella case was judged fairly based on existing law. Which brings up a point – fairness and safety are not orc’s motivation, but turning people into sheeple then can abuse, enslave and lord over.

  9. nerdbert;

    When I was in the Air Force, our standard sidearm was a S&W .38 revolver with a 6″ barrel. Those damn things were pathetic and when qualifying with them, we were shooting at targets at 100 yards. Now, at the time, I was a pretty good shot, but I’ll be damned if it could get hits in the center of the bullseye.

    In Vietnam, many of the rescue copter pilots and gunners, FB-111, F-4 and F-105 air crews would buy black market Colt Pythons and ammo in .357 caliber off base, draw their .38 ammo, then load 3 and 3 with the .357. I heard rumors that several B-52 crews did the same thing, but never verified it. A SAM could take one down and only a few air crews were able to punch out before it crashed, so they may not have bothered.

  10. My comment on the case is that absent the fact that Scarsella was caught saying he was looking to shoot up someone, he might have stood a chance. Counter protesting doesn’t make you a willing participant in a fight, nor does it make you have to expose yourself to great bodily harm without the ability to defend yourself, and Scarsella certainly did retreat when threatened. But his previous actions indicated malicious intent, so he actually got what he deserved.

  11. As I recall the words of Col. Cooper, it was double tap, pause to see if the individual has decided to lay down and reconsider their negative attitude, if not repeat. Since center of mass shot GENERALLY but not always results in ending the threat it became common for Tier One folks to add the head shot, paying the insurance as it use to be called. But their rules are different from us ordinary folk.
    And I’m seeing more of reports of the Tier One folks now going direct to the head shot since it’s a more certain stopper. Of course they put 100K+ rounds down range in a year, so I would not advise that as a tactic for the rest of us.

Leave a Reply

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