“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:
- You must not be a willing participant: you can’t start a brawl, and then shoot someone who breaks a bottle.
- 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.
- You must use appropriate force. In other words, you can only use the force needed to end the threat. No more.
- 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.