Here's an article from the local newspaper that might be of interest. It's lengthy, but VERY relevant and informative. Read and ponder.....
Use-of-force doctrine has its limits, as a Coos County physician learns
FLORENCE - The shooting was clearly an accident - even the judge agreed.
And still, Coos County's former coroner found himself at the jailhouse last month, serving most of a 30-day sentence for felony assault - his first conviction after 29 years as a practicing physician and 15 years as the county's medical examiner. Now he is likely to lose his medical license.
But this case is as much about the right to self-defense as it is about the fall of a prominent member of the community.
It began when a group of rowdy young men charged onto Bill Hosack's property Feb. 7. One of the trespassers began beating his friend, says Hosack, 64. As the melee unfolded, Hosack - gun in hand - swung at one of the young men. The weapon fired. A stray bullet hit a bystander.
Hosack claimed he feared for his friend's life, and that one of the men was swinging a knife. That weapon wasn't found, however. And Hosack's response was not an acceptable way to practice self- defense, Curry County judge Richard Mickelson ruled in September. His verdict - in the wake of three police-involved shootings in the same county this year - raises intriguing questions about what citizens are allowed to do to protect themselves.
The National Rifle Association contributed $10,000 to Hosack's legal fund. The Coos Bay World printed a fiery editorial Oct. 20 comparing Hosack's situation to the police shooting in May of a man armed only with a marking pen - an incident that didn't result in even a reprimand for the officer involved.
"People are within their rights to keep and carry guns on their property," the newspaper penned. "Fundamentally, it's a constitutional right. Rationally for many people, it's a right of safety, particularly if they feel threatened by strangers. Rural Coos County residents should be asking themselves what they would do in a similar situation."
Coos County District Attorney Paul Burgett replied in a letter that the police case was different. The officer had reason to believe the suspect had a weapon. Hosack didn't, as no weapon was found at the scene.
"There is a lesson for everyone," Burgett wrote. "We need to carefully weigh the options, in light of Oregon law, before using a gun against another human being. The police are well-trained in this area, while most private citizens are not."
But Hosack still insists he could have done nothing differently.
"It's bigger than Bill," his wife, Kathy, says. "It's about personal safety. It's about private property. It's about owning guns."
Genesis of fight
The day of the shooting, Hosack was puttering around in the shop on his newly acquired 10 acres of land off the Coos River Highway on the east fork of the Millicoma River.
Sam Upchurch, Hosack's nephew, was driving up to the property to help fix a bulldozer when he passed a group of young people throwing rocks at a beer can. Upchurch ran over the can. The next thing he knew, the four men were racing up a private drive in two separate cars. They jumped out and accused Upchurch of spraying them with mud and gravel as he passed.
Upchurch, who was accompanied by Don Wyatt and Wyatt's wife, engaged in a shouting match with the group. Before long, Wyatt was on the ground, trading blows with 19-year-old Josh Andrade.
As Hosack tells it, Andrade, though half Wyatt's size, was handily winning the fight. Wyatt called to Hosack for help. With a .45-caliber semiautomatic pistol holstered in his shoulder harness, Hosack says he tried to talk to the men. When the beating continued, he drew his gun.
Hosack considered shooting Andrade to save his friend, but then he thought to himself, "These are just kids." So he fired two shots in the air, hoping the crowd would scatter.
Andrade charged Hosack, who says he reflexively swung his fist, pistol in hand. The gun hit Andrade in the face and discharged. To his left, several feet away, Andrade's 21-year-old friend Justus Mason Cloud stood with a shocked expression.
"You shot me," he said. And again. "You shot me." And again, as he staggered off down the road. The young men dispersed, threatening to return. Wyatt called police.
"If it wasn't for Bill, they would have killed me," Wyatt said.
Events unfold for Hosack
The events that followed have more to do with the coroner's conviction than the shooting itself. Wyatt called 911, but failed to tell dispatchers that shots had been fired. Hosack claims that's because no one believed Cloud had really been shot, and Wyatt was more concerned about his own broken arm and the group's warning that they'd be back.
After waiting more than an hour for police, Hosack and his wife, Kathy, left the property. But as they drove down the highway toward their home in Coos Bay, both Kathy and Bill passed police, who were questioning the men. Neither of them pulled over. "We just wanted to go home," Kathy said. Once at home, they never alerted police that they'd changed locations.
When an Oregon State Police trooper arrived at the Hosacks' Coos Bay residence to ask what had happened, Bill Hosack said, "We've been drinking," and "The guy got in my face, so I smacked him," according to Assistant Attorney General Erik Wasmann.
"That didn't sound like self-defense," he said. "And I don't believe the later version. It never sounded to me in those first renditions that Don Wyatt was in any serious danger. He was losing a fist fight in a road. The mixture of guns, bravado and alcohol is not a healthy one."
Measure 11 charges
That night, Hosack was arrested on multiple assault charges, including a Measure 11 crime that could have landed him in prison. Cloud went to the hospital with a gunshot wound to his chest, but survived. Doctors found alcohol, marijuana and methamphetamine in his bloodstream.
Prosecutors didn't charge either Cloud or Andrade in the fight. Both have lengthy criminal backgrounds for charges ranging from disorderly conduct to minor in possession of alcohol and endangering the welfare of a child.
Burgett forwarded Hosack's case to the state attorney general. In April, Hosack was arraigned on Measure 11 charges of causing serious physical injury to Cloud and assault with a dangerous weapon against Andrade.
Third-degree assault
Hosack's actions after the shooting made his credibility suspect, the judge found. Since the young men weren't deemed credible either, however, the witnesses were something of a wash. "I don't think any of the eight (witnesses) told me the whole truth," Mickelson said in court.
Though the judge dismissed the Measure 11 charge, Mickelson did find Hosack guilty of "reckless self-defense." Mickelson ridiculed Upchurch, Hosack and Wyatt for not being able to overpower their vastly undersized adversaries - Andrade stood just over 5 feet and weighed about 110 pounds. He chastised Hosack for bringing "a gun to a fist fight." And he said the coroner had plenty of time to engage the safety before he swung at Andrade, which Hosack admits he didn't consider. He said he needed to be prepared to fire the gun.
"I brought a gun to a fist fight?" Hosack said. "They brought a fist fight to my gun."
But the judge had made up his mind. Hosack was convicted of third- degree assault, ordered to serve 30 days in jail, undergo alcohol evaluation and counseling, stay on probation for three years, pay $20,000 in restitution to Cloud and a fine of $5,000. As his wife sobbed in the courtroom, Hosack handed his keys and wallet to her and went to jail, leaving his outraged family with only an appeal to consider.
But the underlying question is whether Hosack had a right to defend himself - or in this case, his friend. Experts in criminal and self-defense law say that is a difficult claim to make, that self-defense so rarely exonerates defendants that there's little case law devoted to it, and less study of it in the nation's law schools.
A person can use deadly force in an altercation. But only under the following circumstances: He believes his or someone else's life is in danger - and if it's someone else, that the person didn't start the fight; and only if the force he applies - be it fists, a baseball bat or a knife - is equal to the threat he faces, said Doug Beloof, a professor of criminal law at the Northwestern School of Law at Lewis & Clark College.
"If the judge is saying he was using this gun in self-defense in a reckless manner, it sounds like the right answer to me," Beloof said.
Every case is different, and state laws on self-defense vary. But the conventional wisdom that people may take just about any action against an intruder on their property is "utter nonsense," said Andrew Branca, a former Massachusetts attorney who wrote "The Law of Self Defense: A Guide for the Armed Citizen" in 1998.
It's reasonable to assume Hosack didn't think he'd have to use his gun, said Joe Waldron, executive director of the Citizens Committee for the Right to Keep and Bear Arms, the nation's second largest gun lobby behind the NRA.
"In more than 98 percent of cases, the incident ends when a person shows he or she is armed," Waldron said.
Ironically, the shooting's accidental nature may have damaged Hosack's case, Branca said. If he had intended to shoot and indeed fired upon Andrade, Hosack might have been able to make a more credible argument that he fired because he feared Andrade was going to take his weapon or severely injure him. But the wounding of a bystander makes that claim tricky.
"The situation gets very complicated when they start claiming they did something accidentally," Branca said. "The doctrine of self- defense can only be in defense of an intentional act."
Ultimately, however, what hurts Hosack the most is credibility. Despite his rigorous defense of why he left the scene and passed up police on his way home, if his credibility is suspect, his ability to convince a judge of his version of events is that much more difficult.
"If you do things that make it appear to a reasonable person as if you believe you've done something wrong ... they can take that omission of action as evidence that you believed you were guilty," Branca said.
Hosack has filed a notice of appeal, which will focus largely on whether the judge overstepped his bounds by declaring Hosack had time to put the safety on his weapon. Hosack claims Mickelson had no evidence on which to base that conclusion.
Cloud plans to sue Hosack in civil court, his attorney said.
Use-of-force doctrine has its limits, as a Coos County physician learns
FLORENCE - The shooting was clearly an accident - even the judge agreed.
And still, Coos County's former coroner found himself at the jailhouse last month, serving most of a 30-day sentence for felony assault - his first conviction after 29 years as a practicing physician and 15 years as the county's medical examiner. Now he is likely to lose his medical license.
But this case is as much about the right to self-defense as it is about the fall of a prominent member of the community.
It began when a group of rowdy young men charged onto Bill Hosack's property Feb. 7. One of the trespassers began beating his friend, says Hosack, 64. As the melee unfolded, Hosack - gun in hand - swung at one of the young men. The weapon fired. A stray bullet hit a bystander.
Hosack claimed he feared for his friend's life, and that one of the men was swinging a knife. That weapon wasn't found, however. And Hosack's response was not an acceptable way to practice self- defense, Curry County judge Richard Mickelson ruled in September. His verdict - in the wake of three police-involved shootings in the same county this year - raises intriguing questions about what citizens are allowed to do to protect themselves.
The National Rifle Association contributed $10,000 to Hosack's legal fund. The Coos Bay World printed a fiery editorial Oct. 20 comparing Hosack's situation to the police shooting in May of a man armed only with a marking pen - an incident that didn't result in even a reprimand for the officer involved.
"People are within their rights to keep and carry guns on their property," the newspaper penned. "Fundamentally, it's a constitutional right. Rationally for many people, it's a right of safety, particularly if they feel threatened by strangers. Rural Coos County residents should be asking themselves what they would do in a similar situation."
Coos County District Attorney Paul Burgett replied in a letter that the police case was different. The officer had reason to believe the suspect had a weapon. Hosack didn't, as no weapon was found at the scene.
"There is a lesson for everyone," Burgett wrote. "We need to carefully weigh the options, in light of Oregon law, before using a gun against another human being. The police are well-trained in this area, while most private citizens are not."
But Hosack still insists he could have done nothing differently.
"It's bigger than Bill," his wife, Kathy, says. "It's about personal safety. It's about private property. It's about owning guns."
Genesis of fight
The day of the shooting, Hosack was puttering around in the shop on his newly acquired 10 acres of land off the Coos River Highway on the east fork of the Millicoma River.
Sam Upchurch, Hosack's nephew, was driving up to the property to help fix a bulldozer when he passed a group of young people throwing rocks at a beer can. Upchurch ran over the can. The next thing he knew, the four men were racing up a private drive in two separate cars. They jumped out and accused Upchurch of spraying them with mud and gravel as he passed.
Upchurch, who was accompanied by Don Wyatt and Wyatt's wife, engaged in a shouting match with the group. Before long, Wyatt was on the ground, trading blows with 19-year-old Josh Andrade.
As Hosack tells it, Andrade, though half Wyatt's size, was handily winning the fight. Wyatt called to Hosack for help. With a .45-caliber semiautomatic pistol holstered in his shoulder harness, Hosack says he tried to talk to the men. When the beating continued, he drew his gun.
Hosack considered shooting Andrade to save his friend, but then he thought to himself, "These are just kids." So he fired two shots in the air, hoping the crowd would scatter.
Andrade charged Hosack, who says he reflexively swung his fist, pistol in hand. The gun hit Andrade in the face and discharged. To his left, several feet away, Andrade's 21-year-old friend Justus Mason Cloud stood with a shocked expression.
"You shot me," he said. And again. "You shot me." And again, as he staggered off down the road. The young men dispersed, threatening to return. Wyatt called police.
"If it wasn't for Bill, they would have killed me," Wyatt said.
Events unfold for Hosack
The events that followed have more to do with the coroner's conviction than the shooting itself. Wyatt called 911, but failed to tell dispatchers that shots had been fired. Hosack claims that's because no one believed Cloud had really been shot, and Wyatt was more concerned about his own broken arm and the group's warning that they'd be back.
After waiting more than an hour for police, Hosack and his wife, Kathy, left the property. But as they drove down the highway toward their home in Coos Bay, both Kathy and Bill passed police, who were questioning the men. Neither of them pulled over. "We just wanted to go home," Kathy said. Once at home, they never alerted police that they'd changed locations.
When an Oregon State Police trooper arrived at the Hosacks' Coos Bay residence to ask what had happened, Bill Hosack said, "We've been drinking," and "The guy got in my face, so I smacked him," according to Assistant Attorney General Erik Wasmann.
"That didn't sound like self-defense," he said. "And I don't believe the later version. It never sounded to me in those first renditions that Don Wyatt was in any serious danger. He was losing a fist fight in a road. The mixture of guns, bravado and alcohol is not a healthy one."
Measure 11 charges
That night, Hosack was arrested on multiple assault charges, including a Measure 11 crime that could have landed him in prison. Cloud went to the hospital with a gunshot wound to his chest, but survived. Doctors found alcohol, marijuana and methamphetamine in his bloodstream.
Prosecutors didn't charge either Cloud or Andrade in the fight. Both have lengthy criminal backgrounds for charges ranging from disorderly conduct to minor in possession of alcohol and endangering the welfare of a child.
Burgett forwarded Hosack's case to the state attorney general. In April, Hosack was arraigned on Measure 11 charges of causing serious physical injury to Cloud and assault with a dangerous weapon against Andrade.
Third-degree assault
Hosack's actions after the shooting made his credibility suspect, the judge found. Since the young men weren't deemed credible either, however, the witnesses were something of a wash. "I don't think any of the eight (witnesses) told me the whole truth," Mickelson said in court.
Though the judge dismissed the Measure 11 charge, Mickelson did find Hosack guilty of "reckless self-defense." Mickelson ridiculed Upchurch, Hosack and Wyatt for not being able to overpower their vastly undersized adversaries - Andrade stood just over 5 feet and weighed about 110 pounds. He chastised Hosack for bringing "a gun to a fist fight." And he said the coroner had plenty of time to engage the safety before he swung at Andrade, which Hosack admits he didn't consider. He said he needed to be prepared to fire the gun.
"I brought a gun to a fist fight?" Hosack said. "They brought a fist fight to my gun."
But the judge had made up his mind. Hosack was convicted of third- degree assault, ordered to serve 30 days in jail, undergo alcohol evaluation and counseling, stay on probation for three years, pay $20,000 in restitution to Cloud and a fine of $5,000. As his wife sobbed in the courtroom, Hosack handed his keys and wallet to her and went to jail, leaving his outraged family with only an appeal to consider.
But the underlying question is whether Hosack had a right to defend himself - or in this case, his friend. Experts in criminal and self-defense law say that is a difficult claim to make, that self-defense so rarely exonerates defendants that there's little case law devoted to it, and less study of it in the nation's law schools.
A person can use deadly force in an altercation. But only under the following circumstances: He believes his or someone else's life is in danger - and if it's someone else, that the person didn't start the fight; and only if the force he applies - be it fists, a baseball bat or a knife - is equal to the threat he faces, said Doug Beloof, a professor of criminal law at the Northwestern School of Law at Lewis & Clark College.
"If the judge is saying he was using this gun in self-defense in a reckless manner, it sounds like the right answer to me," Beloof said.
Every case is different, and state laws on self-defense vary. But the conventional wisdom that people may take just about any action against an intruder on their property is "utter nonsense," said Andrew Branca, a former Massachusetts attorney who wrote "The Law of Self Defense: A Guide for the Armed Citizen" in 1998.
It's reasonable to assume Hosack didn't think he'd have to use his gun, said Joe Waldron, executive director of the Citizens Committee for the Right to Keep and Bear Arms, the nation's second largest gun lobby behind the NRA.
"In more than 98 percent of cases, the incident ends when a person shows he or she is armed," Waldron said.
Ironically, the shooting's accidental nature may have damaged Hosack's case, Branca said. If he had intended to shoot and indeed fired upon Andrade, Hosack might have been able to make a more credible argument that he fired because he feared Andrade was going to take his weapon or severely injure him. But the wounding of a bystander makes that claim tricky.
"The situation gets very complicated when they start claiming they did something accidentally," Branca said. "The doctrine of self- defense can only be in defense of an intentional act."
Ultimately, however, what hurts Hosack the most is credibility. Despite his rigorous defense of why he left the scene and passed up police on his way home, if his credibility is suspect, his ability to convince a judge of his version of events is that much more difficult.
"If you do things that make it appear to a reasonable person as if you believe you've done something wrong ... they can take that omission of action as evidence that you believed you were guilty," Branca said.
Hosack has filed a notice of appeal, which will focus largely on whether the judge overstepped his bounds by declaring Hosack had time to put the safety on his weapon. Hosack claims Mickelson had no evidence on which to base that conclusion.
Cloud plans to sue Hosack in civil court, his attorney said.
There is so much about it that doesn't make sense. Why wasn't Andrade criminally charged? He seems to be the instigator.