(TX "SYG" Case) Retired Firefighter Shoots Neighbor, Claims Self-Defense

[Nushif]

Well, for one the guys could have complied, played apologetic and called the cops on the dude coming over and threatening them with a gun. I would say don't play your music so loud, but seeing some character references for the guy I am not entirely sure that wouldn't have just postponed this entire affair or given him just another day of running that block.

Also, I find it bad policy to disagree with angry people pointing guns at me. Unless I have a lot more firepower in place already, which usually doesn't happen at my parties. 8)

The thing though is about asking "what could you have done at this point" is asking "how much can a person of that character get out of me" as well. Which doesn't sit well with my sense of justice.

 

[bikerdoc]

Not to "blame the victim" but what could the deceased have done differently?

Im thinking the same guidelines us CCW holders use, situational awareness -, avoid, disengage, evade, escape.

Call 911, be a good witness.

Dont provoke or escalate.

Just my .02

 

[Sam1911]

...what could the deceased have done differently?

As the gurus say, don't go stupid places, with stupid people, at stupid times, to do stupid things. Or, "play stupid games, win stupid prizes."

Said a little less starkly, recognize that folks' behavior is quite often modified by several factors which include the dark of night, alcohol, crowds, the social/sexual tension of groups of adolescents/young adults looking to hook up, loud music, and other factors that often attend parties. Your guests (and even yourself) may not be in a mood to (or even able to) exhibit the greatest level of common sense, decorum, and civility.

Also, be aware that your activities may have an equally strong influence on outsiders. For a variety of complex psychological and sociological reasons, groups of people nosily having a good time tend to be viewed quite negatively by un-involved persons observing from outside the circle of fun and light.

The whole point of attending a party (or bar-hopping, or going to raves, etc.) might be to forget your responsibilities, let your hair down, and have an inebriated blast for yourself. But any time you (and the group you may be hosting) are out of control, you are vulnerable to -- and even quite a magnet for -- trouble you're not in a good position to deal with.

So, the trick then is figuring out how to have a good time without making your party a "stupid place," full of "stupid people," playing "stupid games," and trying to attract as little attention and rancor from un-invited neighbors as possible.

For all we know, Rodriguez may have just been ready to snap that night, and may have ended up killing someone even if the party was a black-tie formal occasion with a string quartet. But loud music seems to have attracted his attention, and a less-than-courtly welcome from the partyers seems to have escalated his agitation and willingness to resort to violence.

 

[rod5591]

wish I was on the jury. I would acquit the guy. I admit that I hate loud music partiers--amazing how stupid people not caring about their loud music at night when working men have to sleep. The victim was in the public street and the loud music playing and loud mouth drunks looking for a fight and came down to confront him. Even after they saw he was armed, they stood there talking smack, threatened to go home and get his gun, and then attacked him. I'd acquit him in a heartbeat.

Not that I would ever do what this guy did. I would just call the cops and then put in earplugs and try to bear the noise. But the earplug solution has a big drawback--you can no longer hear well enough to hear someone breaking into your house. You have to leave yourself vulnerable, and that isn't right.

But I still wish I was on the jury. I would acquit him. And I don't agree the guy was a bully. He was just someone who stood up to the drunken noisy neighbor. I hope the guy doesn't have to go to jail, like that poor man in Arizona who shot the off-leash dog and then had to shoot the idiot owner who attacked him. Remember that one?

 

[Fred Fuller]

what could the deceased have done differently?

Read Rory Miller's Meditations on Violence, learned what the "monkey dance" is, recognized it when it started, and refused to participate?

 

[Sam1911]

But I still wish I was on the jury. I would acquit him. And I don't agree the guy was a bully. He was just someone who stood up to the drunken noisy neighbor.

We sometimes talk about the difference between rights and responsibilities here. You have the right to go speak with/confront a drunk person leading a group of other drunk and rowdy people. But when you do so you may provoke a negative response. If you have contributed to the conflict, you now bear some of the responsibility for the outcome. It "takes two to tango" as they say, and this is not a situation where one party made a unilateral decision to prey upon the other. The partyers did not go out into the neighborhood looking to harm Rodriguez. He came to them and opened the negativity.

That does not give them the right to assault him, but it destroys his self-defense claim that he was forced to take deadly action to save his own life. The only reason his life was (arguably) in danger was that he put himself in harm's way.

In other words, you can't go pick fights and shoot your way out, and call it "self-defense."

We talk about this kind of thing from time to time. "What do I do if someone cuts in line in front of me?" "What do I do if someone makes a nasty comment to my wife/girlfriend?" "What do I do if someone is being loud while I'm trying to sleep?" And so on. "What is this nation coming to when a man can't stand up for himself?"

If you're going to rely on your social skills to solve the injustices you see around you, you're going to have to rely on them to get you OUT of the trouble that may result. So if you feel you have to back down a bully or tell that rude teenager to learn some respect, you're going to have to have an exit strategy if he calls your bluff. And a GUN isn't it.

As some of our wiser contributors like to say, "If you're going to draw a gun, you'd better understand exactly what you're planning to do with it." So when you walk down the street with a video camera and a gun to try and deal with a noisy neighbor's party, you need to ask yourself -- if this sequence of events results in me KILLING someone or being killed myself, it is worth it? YOU are setting into motion a chain of events that may end in death. YOU have choices of whether to act, and if so, in what way. YOU will share the responsibility for the outcome, and other folks will decide whether your actions were justified under the law or not.

And a final point: There are legal structures in place to deal with minor infringements on your comfort and happiness. While we all may be less than satisfied with the response time and effectiveness of the local police coming to shut down a rowdy party on our block, that's the safe and lawful avenue for dealing with the matter. You may have a "right" to a good night's sleep, but it is a pretty "lowercase 'r'" right and one you're going to have to protect via civil means. Any confrontation over a minor complaint like that (not even close to a felony) that ends up with someone dead has long since reversed the roles of "victim" and "criminal." Folks tend to self-identify as "The Good Guy" and never realize that the rest of us can't see your halo and you forgot your white hat. Pursue your good-guy mission a step too far and it is mighty easy to discover you're now wearing the bad guy's boots.

 

[Double Naught Spy]

Im thinking the same guidelines us CCW holders use, situational awareness -, avoid, disengage, evade, escape.

LOL, us CCW holders includes the shooter.

Call 911, be a good witness.

Nobody has said, but I would not be surprised if one of the shootees was being a good witness when shot. When somebody uninvited shows up at a party with a gun and is acting inappropriately, your best defense it to be somewhere else.

 

[Loosedhorse]

you can't go pick fights and shoot your way out, and call it "self-defense."

Succinctly put.

 

[Sam1911]

Succinctly...

Well...that's the first time anyone's accused me of THAT!

 

[rod5591]

That does not give them the right to assault him, but it destroys his self-defense claim that he was forced to take deadly action to save his own life. The only reason his life was (arguably) in danger was that he put himself in harm's way.

In other words, you can't go pick fights and shoot your way out, and call it "self-defense."

I don't think it correct to characterize him as "picking a fight". He was asking them to turn down their loud music which was destroying the peace of the neighborhood, and videotaping their reaction from public place, not on their private property. After listening to the tape, it sounds like those drunks had tried to approach him and disarm him. If that was the case, he had the right to defend himself, in my opinion.

I am not saying he was 100% correct, but I would not vote to convict him were I on the jury, especially of first degree Murder

 

[Bartholomew Roberts]

I don't think it correct to characterize him as "picking a fight". He was asking them to turn down their loud music which was destroying the peace of the neighborhood, and videotaping their reaction from public place, not on their private property.

First, there appears to be some debate over where this took place. At least some of the prosecutor's witnesses have testified it took place in the middle of Danaher's driveway, although the video appears to show a street. Are you assuming that it occured in a public place or have you read something that speaks to that?

I ask because in order for Rodriguez to not have the jury consider whether he should have retreated, Rodriguez has to have 1) not provoked the fight, 2) be in a place he has a legal right to be, and 3) not be committing any crimes. If the jury starts asking whether a reasonable person would have retreated in Rodriguez's situation, he is probably going to prison.

As far as asking someone to turn their music down, I would say that how you do it is relevant. If Rodriguez walked on to Danaher's property and yelled "Hey ***stain, turn your blanking music down!" I would be inclined to see that as starting a fight. Showing up on a neighbor's front lawn with a flashlight and camera and yelling at his guests may not be quite the same thing; but it isn't an approach calculated to deescalate either, is it?

Edited to add: More testimony from yesterday reported by the Chronicle: http://www.chron.com/news/houston-t...o-sides-of-Houston-man-accused-of-3626044.php

Rodriguez's neighbor Pete Fornols testified that the day prior to the shooting, Rodriguez had used some foul language to describe Mr. Danaher, so apparently there is some pre-existing anger there, at least on his side. Fornols also testified that Rodriguez called him 13 times that night trying to get him to help complain about the music.

 

[Esoxchaser]

Both parties are culpable. I am not so sure on the legality but morally Rodriguez bears the brunt of the responsibility for going by the neighbors and instigating the situation over a noisy party, and not diffusing the situation by going home when things were getting testy. It was just a noisy party, he placed himself in the "'danger", he initiated the series of events.

 

[Owen Sparks]

If he was on a public street it could change the dynamics of the case. In my state for example, there is no duty to retreat from any place that you otherwise have a right to be such as a street or sidewalk. Also, the courts have long held that the eye can not tresspass. It is legal to film anything that you can see provided that you do not physically tresspass to do so. This is how tabloid reporters can get away with publishing pictures of celebraties sunbathing topless in their own back yards. They take the pictures with zoom lenses from a roof top or balcony somewhere that they have permission to be.

 

[Deltaboy1984]

OH my the Firefighter in this case needs to go to JAIL. He is a Moron and a danger to all TX CCW people in the state that always exercise good common sense and would have simply called the police and filed a report.

 

[Sam1911]

If he was on a public street it could change the dynamics of the case. In my state for example, there is no duty to retreat from any place that you otherwise have a right to be such as a street or sidewalk.

Well, it could.

However, sometimes the distinction becomes cloudy between "no duty to retreat" and "can I shoot someone because of this?" Even if you have a legal right to be there, you cannot shoot someone without a clear, reasonable belief that someone is about to grievously harm or kill you (and even coming to blows does not always rise to that standard). Further, if you're a "mutual combatant" -- i.e.: you are out on the street having an argument/shoving match/fist-fight over loud music -- your ability to claim the affirmative defense of "self defense" is quite often destroyed.

In other words, just because you have a right to be in that place doesn't mean you have the right to use deadly force to protect your ability to remain there. Stand-your-ground type laws suffer from a terrible confusion of terminology. All they do is define that if you are presented with a credible threat to your life you do not have to prove that you tried to retreat before defending yourself.

Stand your ground laws may help here: "I was on a public street. The attacker drew a knife and I fired my weapon. I did not attempt to flee before I shot."
(The attacker presents a clear, credible threat to your life. You do not have to retreat to the wall before responding with potentially lethal force.)

Stand your ground laws don't help here: "I was on a public street. The attacker pushed me and tried to make me leave. I had a right to be there on that street, so I drew my gun and shot him."
(The "attacker's" actions may not be legal, and you may be able to file a charge of assault. However, his actions do not rise to a credible threat to your life, (or other serious injury) and therefore are not going to meet the standard to support your claim of self-defense.)

And they don't help here: "I was on a public street. Bill Jones and I got into an argument and started shoving. Then we threw a few punches back and forth and rolled around on the ground a bit. It seemed like he was winning, so I drew my gun and shot him."
(You and the "attacker" are mutual combatants. You are both guilty of probably several charges, and you do not have a clear standing to support use of lethal force.)

 

[Loosedhorse]

be in a place he has a legal right to be

no duty to retreat

These are valid considerations, but they ring hollow.

Is the juror going to be there (as I think some of us are) with a clipboard, pencil, and checklist, saying, "Yep. Yep. And Yep. Good. Now that these three boxes are checked--he gets to shoot them all! "

Or are they going to use the "reasonable person", what-I-would-have-done-in-that-situation test? To the extent that the jurors concern themselves with "was he on the driveway by an inch, or in the street by an inch?" it will go better for Rodriguez than if they say, "I would have left 10 minutes ago; in fact, I wouldn't have gone there in the first place."

 

[JustinJ]

Is the juror going to be there (as I think some of us are) with a clipboard, pencil, and checklist, saying, "Yep. Yep. And Yep. Good. Now that these three boxes are checked--he gets to shoot them all! "

In some sense are they not directed to do so by the judge? I've never been on a jury but as i understand it an explanation of the laws in question are presented before hand.

Stand your ground laws may help here: "I was on a public street. The attacker drew a knife and I fired my weapon. I did not attempt to flee before I shot."
(The attacker presents a clear, credible threat to your life. You do not have to retreat to the wall before responding with potentially lethal force.)

What if the knife wielder has drawn his weapon and acted in a threatening manner from say 20 yards away. 20 seconds later he then charges. Wouldn't we still be saying, "well if the shooter was in fear for his life why did he not flee immediately"? If the attacker immediately charges then fleeing is obviously not viable so retreat would not be a reasonable response to begin with with or without a "stand your ground" law in place. The requirement was to retreat if possible. Even before stand your ground laws it seems i find it unlikely anybody would have been charged for using a legally carried gun against a charging knife wielder since turning one's back is such a risky thing to do. If we say people who are in fear for their life will always try to flee if able then stand your ground laws make no sense against this standard.

As foolish as the actions of Rodriguez were it seems hard to classify them as illegal if stand your ground laws are in place. I'm not arguing against stand your ground or tyring to defend the actions of Rodriguez. I'm just pointing out what seems to be a fairly large contradiction.

 

[Sam1911]

What if the knife wielder has drawn his weapon and acted in a threatening manner from say 20 yards away.

Retreat carefully but quickly keeping an eye on him in case...

20 seconds later he then charges.

If you've not created enough distance to escape, well, that's why we go armed.

Wouldn't we still be saying, "well if the shooter was in fear for his life why did he not flee immediately"? If the attacker immediately charges then fleeing is obviously not viable so retreat would not be a reasonable response to begin with with or without a "stand your ground" law in place. The requirement was to retreat if possible. Even before stand your ground laws it seems i find it unlikely anybody would have been charged for using a legally carried gun against a charging knife wielder since turning one's back is such a risky thing to do.

And yet, when laws are written to try to discourage folks from willful combat cloaked under the banner of "self-defense" (e.g. -- the olde west shootout at high noon meme, wherein whoever reached for his gun first is guilty and whoever reaches for his gun second is just defending himself ) sometimes those laws appear to a prosecutor and jury as though all people should retreat if there is any physical way to do so. And that someone cannot have a legitimate self-defense claim unless they first have moved to retreat. "SYG" type laws are an attempt to balance things back in favor of those who truly are defending themselves -- to take a bit of the burden of proof that they acted responsibly off their shoulders.

If we say people who are in fear for their life will always try to flee if able then stand your ground laws make no sense against this standard.

I don't believe anyone has suggested that they WILL always flee, only that it is the smart and most appropriate response -- if it can be accomplished safely. SYG laws protect those unfortunate folks who did not get the opportunity to retreat from danger, from having to prove to the court that they tried to do so before the court will consider their claim of self-defense.

As foolish as the actions of Rodriguez were it seems hard to classify them as illegal if stand your ground laws are in place.

1) He killed someone. That's inherently illegal. If he cannot prove that there was a reasonable, realistic, immediate belief that he was about to die if he did not shoot, he bears the guilt for that death.

2) He was voluntarily in the situation, and voluntarily remained in the situation, and (seems to have) voluntarily continued the interaction that lead to him killing another person. That indicates that he shares some culpability in the death that resulted (mutual combatant). He had paths of de-escalation open to him and chose poorly. The very poorly named "Stand Your Ground" laws are not constituted to encourage you to, or protect you if you do those things. But these will be up to the jury to decide.

I'm not arguing against stand your ground or tyring to defend the actions of Rodriguez. I'm just pointing out what seems to be a fairly large contradiction.

Not really. "SYG" only protects you from having to prove you retreated. It doesn't alleviate any of the other problems there seem to be with his defense of his actions.

 

[Bartholomew Roberts]

The prosecution finished its case today with the testimony of the widow of Kelly Danaher, which apparently had the jurors crying.

http://abcnews.go.com/US/wireStory/sides-rest-houston-stand-ground-trial-16550563

The defense made a motion to dismiss the case claiming they had clearly shown all the elements of self-defense. The judge denied the motion and the defense decided not to call ANY witnesses and rest its case.

It seems to me that Mr. Rodriguez is looking at a very high probability of prison as a result of his choices that night.

 

[Loosedhorse]

It seems to me that Mr. Rodriguez is looking at a very high probability of prison as a result of his choices that night.

And as a result of his choices today.

JMHO, but if you are claiming SD, the jury is expecting to hear from YOU: an explanation of why you felt you had to do what you did. They want to look at you, hear your words, and assess whether they believe you.

Instead he has in essence said, "I don't have to say anything--you guys need to PROVE I did it." Not IMHO the stance of an honest man claiming SD.

 

[Carl N. Brown]

Rodriguez bragged to her that you could basically shoot anyone you wanted as long as you said you were in fear for your life.

A reasonable person hearing all the evidence must agree that they would be in fear of imminent death or greivous bodily harm from the attacker and that the attacker had the ability and opportunity to be a jeopardy to the defender's life or limb.

People who brag about being willing to kill and expect to "get away with it" by claiming self-defense don't do so well in court.

We had a local situation. An employer fired a guy. The guy stormed in the office and punched him. The employer shot the guy, claiming the guy pulled a knife. A junky knife was on the floor. No witnesses.

Witnesses recalled the guy that day at work tearing off tape with his teeth because he forgot to bring a knife that day. No witness who knew the guy recognized the knife as being his property. Other witnesses recalled the employer saying if he ever shot someone unarmed, he would plant a knife to justify it. Character witnesses recalled the employer as deliberately intimidating people by going armed and the ex-employee as ordinarily nonviolent.

The employer got two years voluntary manslaughter, two years altering a crime scene (by planting the knife) and six years for use of a firearm in a crime of violence.

 

[JustinJ]

Quote:
What if the knife wielder has drawn his weapon and acted in a threatening manner from say 20 yards away.

Retreat carefully but quickly keeping an eye on him in case...

It was a rhetorical question to display some ambiguity created by SYG law. Maybe that wasn't obvious.

And yet, when laws are written to try to discourage folks from willful combat cloaked under the banner of "self-defense" (e.g. -- the olde west shootout at high noon meme, wherein whoever reached for his gun first is guilty and whoever reaches for his gun second is just defending himself ) sometimes those laws appear to a prosecutor and jury as though all people should retreat if there is any physical way to do so. And that someone cannot have a legitimate self-defense claim unless they first have moved to retreat. "SYG" type laws are an attempt to balance things back in favor of those who truly are defending themselves -- to take a bit of the burden of proof that they acted responsibly off their shoulders.

There is more to the TX, and probably others state's, SYG law than that. Part of it does say that a person's failure to retreat can not be used against them as a finder of fact to determine if the deadly force was justified. If the purpose of the law is to take a bit of burden of proof off that they acted responsibly it would seem this section is enough. But it goes beyond stating:

"(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section."

There seems to be a little more to SYG than reducing burden of proof.

Another ambiguity, as can be seen by this case and the zimmerman case, is what does provoke mean? For example, if a person is lawfully protesting a business are they not provoking? Are they then not allowed to use lethal force if their life is in danger? Or what if somebody wears a political shirt that another disagrees with? Is that not provoking as well?

 

[Sam1911]

There seems to be a little more to SYG than reducing burden of proof.

Really? I read that as reducing the burden of what the defender has to prove in order to have his claims of self-defense accepted as meeting the standards of the affirmative defense.

Whereas absent the "SYG" law it is possible s/he might have to prove that s/he retreated or prove that s/he could not possibly have retreated, now that burden is removed.

what does provoke mean? For example, if a person is lawfully protesting a business are they not provoking? Are they then not allowed to use lethal force if their life is in danger? Or what if somebody wears a political shirt that another disagrees with? Is that not provoking as well?

What, indeed! And the short answer is that a jury will have to decide in each case.

Lawfully protesting on a public street and you are physically attacked? Probably you are justified. You're in a screaming match with the proprietor and maybe traded a few shoves and even a punch or two? Maybe not.

Wearing an incite-ful t-shirt? Not bloody likely to be considered provoking to the point you'd forfeit a claim of self-defense.

Remember Tom Givens' tale of one of his students who got really afoul of the law. The young man made a few statements to a group of about 6 men in a convenience store parking lot that made them pretty mad. They chased him for a block or two before he managed to draw his pistol and shoot two of them. He came within a hair's breadth of a manslaughter conviction because he was seen as having provoked the group's actions. Nothing about their actions of threat and assault was lawful, but he was not able to claim self-defense because of his role in the event. He did not go to jail, but I believe ended with two years of probation.

 

[heeler]

I was just viewing a clip on Houstons local channel 2 news a few minutes ago,www.kprc.com and the widow of the man killed really gave a very emotional showing that was said to bring tears to several of the jury members.
Rodriguez attorneys looked visibly fraught.
Rodriguez as well.
I'm certainly no lawyer and none of us gets to hear the whole tale but Rodriguez's lawyers are truely hoping the cell phone audio and video gets their guy off the hook.
I'm not so sure.
Although I guess it is possible to get a hung jury.
I guess we will know tomorrow or Thursday surely.

 

[GEM]

From the tapes, it may be that Roddy was brandishing his gun. That is clearly illegal as IMHO (worth what?), there was not a lethal force threat to him. Thus, he loses a SYG defense as HE was engaged in a lethal threat. His 'attackers' disarmed him (stupid to try but drunk).

But we will see.