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Smoke Shop Shooting in Virginia 3/30/20 - An Ugly Mess

Discussion in 'Legal' started by Craig_VA, Apr 1, 2020.

  1. Craig_VA
    • Contributing Member

    Craig_VA Contributing Member

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    A shooting by an employee in an Arlington, Virginia, smoke shop is getting a high level of attention because the shop owner has gone public with interviews on Tucker Carlson, local DC radio station WMAL, and multiple news stories. See the end of this post for links.

    My overall take is that this case is a tragic and ugly example of (not surprising) ignorance of the law on the part of both the store owner and the employee, intersecting the presence of a progressive Arlington County Commonwealth’s Attorney (county prosecutor).

    Basic facts:
    Employee was temporarily living in the back of the shop, with the owner’s permission.
    Due to previous robberies, the owner had legally purchased a handgun and was keeping it in the store for protection.
    Between 4 and 5 am Sunday morning the employee was awakened by noise of three men breaking into the store.
    Employee got the owner’s gun, opened a door to the main store and fired three shots. One shot hit one of the intruders.
    Employee retreated to the back again, closing the door.
    Employee returned to the main store area and fired the gun again as the robbers were fleeing.
    Quoting the WJLA article:
    “The juvenile who was shot is expected to survive. Arlington County Police say charges are anticipated in the breaking and entering, but Abushariah [the employee] is already facing three charges.
    “The charges are malicious wounding, reckless handling of a firearm, and violation of a protective order. Arlington County Police say the third charge is because Abushariah had been ordered not to have a firearm.”
    During his interview the owner said, “The gun is registered.”
    =--=-=

    Having recently completed Branca’s Law of Self Defense Course, here are some comments on aspects of the case.

    1. Virginia has no gun registration. I assume that the store owner thinks that the 4473 he completed when buying the gun was a registration.

    2. The tables on defense of property, duty to retreat (stand your ground), and castle doctrine in Branca’s LoSD book have minimal indication of relevant statute or case law for those situations in Virginia. There appears to be no legal basis for defense of highly defensible property, such as home or business, that might justify use of deadly force in this case.

    3. I infer that the owner did not adequately check for legal basis for using the gun to defend his property, nor whether it would be appropriate to allow an employee to use the gun at all. Since the employee knew where the gun was, I assume the owner told him about it, showed him the location, and thus gave him implicit permission to use it in case of a robbery.

    4. It is not clear that the employee had good reason to fear for his life or major bodily harm. While he may have a reasonable explanation for his first volley of shots, the second round at the fleeing robbers looks very much like a chargeable offense.

    5. Violation of the protective order by obtaining the owner’s gun and using it looks like an easy slam dunk conviction for the prosecution.

    6. During the 2019 election in Virginia, the Commonwealth’s Attorney had been reported as having Bloomberg support in her effort to get anti-gun prosecutors in place. She won.(This from my memory as a former Virginia voter).

    7. Notwithstanding the moral outrage of the store owner, Tucker Carlson, and the WMAL morning show interviewers, the employee is toast.
    =-=-=-=-=
    THR readers can view the reporting yourselves at the following links:

    Police: Store Employee Charged After Shooting Would-Be Thief
    ARLnow.comMarch 29, 2020 at 8:35pm
    https://www.arlnow.com/2020/03/29/police-store-employee-charged-after-shooting-would-be-thief/

    Arlington employee charged for shooting burglar in middle of the night, owner speaks out
    by Tom Roussey/ABC7Monday, March 30th 2020
    https://wjla.com/news/local/arlington-employee-charged-shooting-robbers-owner-speaks-out

    Virginia shop owner calls arrest of employee who shot would-be robber 'very sad,' 'mind-boggling'
    By Charles Creitz | Fox News March 31
    https://www.foxnews.com/media/virginia-shop-owner-employee-arrest-mind-boggling

    Arlington Store Employee Charged With Shooting Juvenile Theft Suspect: Police
    The 33-year-old employee shot at a group suspected of stealing cash and merchandise and violated a protective order, police say
    By Sophia Barnes • Published March 30, 2020 • Updated on March 30, 2020 at 8:50 am
    https://www.nbcwashington.com/news/...ooting-juvenile-theft-suspect-police/2258063/

    ‘This Is Mind Boggling’: Arlington Store Owner Defends Employee Jailed For Shooting Masked Burglars
    SCOTT MOREFIELD REPORTER March 31, 2020 11:23 PM ET
    https://dailycaller.com/2020/03/31/arlington-smoke-shop-employee-self-defense-jail/

    Discussion on WMAL Radio Mornings on the Mall April1
    5- D — ‘This Is Mind Boggling’: Arlington Store Owner Defends Employee Jailed For Shooting Masked Burglars.
    https://www.wmal.com/2020/04/01/mor...-dana-cheng-cbps-robert-perez-gen-jack-keane/
    Discussion at time hack 38 minutes, with audio from Tucker Carlson, then more at 3:40.


    Information on the Commonwealth’s Attorney

    Official bio:
    https://courts.arlingtonva.us/commonwealth-attorney/meet-parisa/

    Article on her position as a progressive prosecutor
    Drug, Racial Reforms Emerge As Arlington Prosecutor Assumes Role
    Parisa Dehghani-Tafti talked with Patch about marijuana possession prosecution and other opportunities for reform.
    By Emily Leayman, Patch Staff Jan 23, 2020 11:32 am ET | Updated Jan 23, 2020 4:36 pm ET
    https://patch.com/virginia/fallschurch/drug-racial-reforms-emerge-arlington-prosecutor-assumes-role
     
    Last edited: Apr 2, 2020
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  2. badkarmamib

    badkarmamib Member

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    IANAL, but I think this right here is the biggest mistake made. Self-defense implies that you are defending. If the perpetrator is fleeing, and not firing over their shoulder, you are no longer in danger.
     
  3. Jim Watson

    Jim Watson Member

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    Real shootings don't happen as cleanly as a shooting match or a training class. Adrenaline, flight or fight reflex, combination of fear and anger can lead to actions the leisurely second guessers can use against you.

    But that protective order will crush him.
     
  4. .38 Special

    .38 Special Member

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    Morally, I have no issue with the fellow's actions, but the story just reinforces my personal choice to never start shooting unless I have no other way to protect the lives of my loved ones or myself.
     
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  5. Rule3

    Rule3 Member

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    What is the intent or purpose of this thread?
     
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  6. Kleanbore

    Kleanbore Moderator Staff Member

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    I won't speak for the poster, but this kind of posting can be quite useful in sensitizing people to the pitfalls of going to the gun when a "bad guy" comes 'round the door.
     
  7. Craig_VA
    • Contributing Member

    Craig_VA Contributing Member

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    Kleanbore is right on one thought I had in posting. Other aspects were in my mind:
    1. Provide a variety of news reports on the incident to help readers avoid running with a single source, which my or may not reflect any bias on the part of the reporter or editor.
    2. Get ahead of the "moral outrage" position already taken by at least some of the sympathetic interviewers, who speak from an inadequate level of knowledge on self defense law.
    3. Remind folks of a lesson that Kleanbore has addressed several time in THR: understanding "the law" means understanding the interplay among statute, case law (appellate court decisions), LEO judgments leading to their actions in context, and prosecutor judgments leading to their actions, all prior to going to trial.
    4. Consideration of the possible legal standing of both the store/gun owner and the employee/shooter in this case.

    I thought that this incident could generate meaningful discussion while staying within the guidelines for the Legal forum.
     
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  8. jjadurbin

    jjadurbin Member

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    ...prohibited possessor ...Mr. Carlson and others have failed to mention.
     
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  9. jmorris

    jmorris Member

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    To remind us that if we are prohibited from possessing a firearm and are found to have one, we would get locked up.
     
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  10. Phaedrus/69

    Phaedrus/69 Member

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    Certainly if a robber was legally barred from having a gun and used one in the commission of a crime most folks here would have something to say about it. Sounds like our vigilante had no legal means to use a gun.
     
  11. MEHavey

    MEHavey Member

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  12. Navy87Guy

    Navy87Guy Member

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    Lots wrong with this scenario:
    - Untrained gun owner
    - Uninformed gun user (vigilantism)
    - Illegal possession/use

    I hope that most of us go the extra distance to help educate new gun owners on not only their rights - but also their responsibilities.
     
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  13. Craig_VA
    • Contributing Member

    Craig_VA Contributing Member

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    For the youngsters here, Paul Harvey was a story-telling radio personality whose nationally syndicated show, and tag line, was "The Rest of the Story." During the 70's my wife worked for Bankers Life & Casualty Insurance, Harvey's sponsor for those programs. They had a special correspondent section to answer mail sent to him at the insurance company.

    As to the linked article, the employee is now in very deep kimchee.
     
  14. jjadurbin

    jjadurbin Member

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  15. billybob44

    billybob44 Member

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    ^^^+100 on the above...The shooter (Employee) needs a heavy handed court result...BUT...
    What I can not understand-I know their State has been taken over by liberals-How can the People elect a DA with Her track record??
    She has spent her life doing everything she can to get people OUT of jail??? Is that NOW the purpose of a DA???Bill.
    PS: From her Bio: "arisa comes to the office of Commonwealth’s Attorney with a twenty-year record of criminal justice reform as an innocence protection attorney"
     
  16. Rule3

    Rule3 Member

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    https://wjla.com/news/local/brother-arlington-employee-shoots-burglar

    "The Commonwealth’s Attorney’s office also argued the “castle doctrine” does not apply in this case because Abushariah was only sleeping in the smoke shop’s backroom for security. Investigators told prosecutors they found marijuana in the back room. The store owner denies it is marijuana.

    Prosecutors said Abushariah has four prior assault and battery charges, one of which includes a protective order that prohibits him from possessing a gun. Store owner Jowan Aqrawi said the gun belongs to the store, not Abushariah. Prosecutors argue possession does not just mean ownership".


    And there you have it How much discussion is needed?
     
  17. Zerodefect

    Zerodefect Member

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    Not guilty.

    Don't care about the fine print. Don't commit armed robbery and you don't get extra holes. Guess that I wouldn't be selected for that jury. lol. First responders do far worse than this too often. No innocents were hit, no dogs died.
     
  18. Kleanbore

    Kleanbore Moderator Staff Member

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    Do you understand the law? Have you heard the testimony and evaluated the evidence?

    That's not the point.

    Most probably not.

    You have now posted in a public forum, in indelible electronic ink, a searchable statement that could be used with devastating effect against you, should you ever need to mount a defense of justification after having used or threatened deadly force.
     
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  19. Kleanbore

    Kleanbore Moderator Staff Member

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    Not interested? Go do something else.
     
  20. Rule3

    Rule3 Member

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    So If someone has views that disagree with the others, they should go do something else? Why not discuss all the shootings in Chicago "
    The many links to the media all say the same thing, so multiple news links provides nothing. Might as well just link to AP news .

    What laws or statutes are being discussed? Many many threads and posts are deleted as there is nothing relevant per the guidelines.?

    A prohibited person used a firearm deadly force. Were the people robbing the store armed? Is it legal (other that maybe Texas) to shoot someone stealing personal property? How was his life in danger?

    So now it is just speculation and opinions. and some Political as we have no facts other than the media.

    Note: The Legal Forum is for the discussion of the law as it is and how the law actually applies in RKBA matters, not the way we think things should be or the way we wish they were. Comments and opinions should be based on legal principles and supported where appropriate with reference to legal authority, including court decisions, statutes and scholarly articles. Comments based on wishful thinking may be openly refuted or simply deleted by the staff.

    The Legal Forum is now for legal issues only. When giving advice, please endeavor to provide links or references to original documents, laws and other relevant resources. Please keep the topics related to guns and RKBA.
    Political topics go into the Activism Discussion Forum -- provided they are accompanied by plans of action. Mere griping is no longer appropriate for THR. If you want to discuss an injustice or a political development, propose a remedy!
     
    Last edited: Apr 3, 2020
  21. Kleanbore

    Kleanbore Moderator Staff Member

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    No. But all you have done is criticize the usefulness of the thread. Wy do you continue in it?

    By the way, in Virginia, most laws pertinent here are found at common law and are not codified in statutes.

    The OP was about several legal issues, and perhaps some people will learn from it.
     
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  22. Rule3

    Rule3 Member

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    Why? I am not "complaining" I just do not think it a Legal Forum Topic. Yet the posts with opinions, and Political are OK??
    Do members need to "learn" from this event, that you can not use a gun if you are a prohibited person or that you do not shoot someone in the back and claim self defense?? Use deadly force to protect some smoke shop items??

    Not to worry there is Video so lets all see what happens with that.

    Have a nice day and stay home and safe.
     
  23. WestKentucky

    WestKentucky Member

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    Bad situation all around and should have been avoided on many fronts. The store owner SHOULD have hardened his store rather than simply buy a gun and stick a cot in the stockroom. The employee with violent record SHOULD be well informed of his restriction on possession of the firearm (being the only one there with it available constitutes possession in many places). The employee SHOULD have never touched the gun. The employee SHOULD have never fired the gun unless at risk of death or serious injury to self or other innocent persons. The dummy theives SHOULD not be thieves.

    All that said, dude broke a few of the ground rules for defense. He became OFFENSE when entering a room unannounced and firing at the robbers. He fired without being at a reasonable risk of harm. He fired again after any conceivable threat ended and the robbers were doing nothing other than trying to get away. There will be legal repercussions for the shooter. There may be legal repercussions for the owner. There will be highly detrimental monetary damages to the business which will easily outweigh the potential losses of letting the robbery go unchecked. If the owner instructed the stockroom dweller to shoot robbers then he gets his share of the jail time for being complicit in the acts that happened, and for providing a firearm to a prohibited person.
     
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  24. Kleanbore

    Kleanbore Moderator Staff Member

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    The forum moderators do not agree with you.

    Obviously, a few people might have benefited.

    I think it was a good post
     
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  25. Kleanbore

    Kleanbore Moderator Staff Member

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    This case would likely provide a good basis for one of Attorney Andrew Branca's weekly blog posts.

    He would undoubtedly frame it in terms of the five elements of lawful self defense. The issues of imminence and reasonableness would certainly figure in, since the shooter fired at fleeing criminals. I do not see much doubt about the outcome, but Andrew often chooses such cases for teaching purposes.

    The question of whether the Castle Doctrine should apply might come up. In VA it only covers an occupied residence, but the prosecutor's state reason for why it would not apply in this case it seems highly inconsistent with the legal definition in the Commonwealth.

    Branca's subjects do not encompass firearms law per se, but an interesting question is, had the shooter been lawfully justified in lawful self defense, might the necessity doctrine excuse the otherwise unlawful possession of the firearm, under the circumstances.

    We will not likely see anything until there has been a trial, or maybe an appellate court ruling.
     
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