Permit holder kills mugger in S. Minneapolis!

[Heffay]

I guess noone here believes in the whole "unwilling participant" test. You know, for going a block away into an alley behind another store...

Yeah. This is a great example of responsible behavior.

[Heffay]

A person dies because he opened fire on another person who was,at the very least, acting in the benefit of the public.

I'm sure the grand jury will see it that way.

He better hope he gets me on his jury.

[Geezer43]

Give the Good Samaritan a medal, not a trial or a Grand Jury.

[jdege]

As I said, in general, people should NOT go running after muggers if they are carrying.

In general, chasing after a criminal is not wise. But it's not illegal.

To chase someone down and kill him, after he no longer represents a threat, is illegal.

To follow him for any other purpose is perfectly legal. Chasing after him so that you can better identify him for police, or can better direct them as to where he fled, or even to confront him and demand the return of the purse that he had stolen, are all perfectly legal.

And if, while you are engaged in your perfectly legal chase, he should threaten you with death or grievous bodily harm, you are perfectly justified in shooting him.

The problem is that it's going to be very difficult to prove that you didn't chase him down and kill him after he'd fled and no longer represented a threat. And even if you do win out in the end, it's likely to be a painful and expensive process.

So let's get it straight - he wasn't wrong to chase the thug. But he wasn't wise, given the current legal climate.

I hope things go well for him.

And I hope people remember the dozen or so middle-aged women this thug would likely have victimized over the next year, were he still walking the streets.

[JohnK87]

OK, so he got the guy, the guy's a convicted felon, record, etc. The guy turned himself in, pointed out the evidence, and hopefully didn't say too much.

Best case? He gets no-billed by a grand jury and is out $5-10k for lawyer fees.

Worst? A long run in Stillwater on a murder conviction.

If he had shot the guy during the pistol-whipping, he would have been fine legally. Chasing him put himself into danger and opens him up to potential prosecution. Remember, self-defense is an affirmative defense, where you admit you killed the guy but it was "reasonable" for you to do so in that situation. "Reasonable" being defined as a jury in Minneapolis being led around by an anti-gun prosecutor.

All this for someone you don't know? Think before you put your gun into a situation.

[jdege]

I guess noone here believes in the whole "unwilling participant" test.

There's nothing in MN law about being an "unwilling participant". That's something Joel put in his book, based on something Massad Ayoob used in some of his classes. It's a moderately accurate summary of an aspect of the law. It's not law. Not in statute, and not in precedents.

The place to look is in MN's standard jury instructions. Joel had the 2009 version on his website, but Google's been blocking it as a potential spam site, lately.

These are from 2009, so they may be out of date:

CRIMJIG 7.05 Justifiable Taking of Life

In Defense of Self [Note that in cases where the defendant claims to have acted in self-defense but contends that the killing was accidental, CRIMJIG 7.06 may be more appropriate.]

No crime is committed when a person takes the life of another person, even intentionally, if the defendant's action was taken in resisting or preventing an offense the defendant reasonably believed exposed the defendant (or another) to death or great bodily harm.
In order for a killing to be justified for this reason, four conditions must be met. First, the killing must have been done in the belief that it was necessary to avert death or great bodily harm. Second, the judgment of the defendant as to the gravity of the peril to which (he) (she) (or another) was exposed must have been reasonable under the circumstances. Third, the defendant's election to defend must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril. Fourth, there was no reasonable possibility of retreat to avoid the danger.

All four conditions must be met. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

In Defense of Dwelling

No crime is committed when a person takes the life of another person, even intentionally, if the defendant's action was taken in preventing the commission of a felony in the defendant's (dwelling) (place of abode).

In order for a killing to be justified for this reason, three conditions must be met. First, the defendant's action was done to prevent the commission of a felony in the dwelling. Second, the defendant's judgment as to the gravity of the situation was reasonable under the circumstances. Third, the defendant's election to defend (his) (her) dwelling was such as a reasonable person would have made in light of the danger perceived. All three conditions must be met. The defendant has no duty to retreat. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

Comment
M.S.A. § 609.065.

The four conditions for defense of self, including the absence of a reasonable possibility of retreat to avoid the danger, are found in State v. Johnson, 719 N.W.2d 619 (Minn. 2006).

In State v. Johnson, 310 N.W.2d 96 (Minn. 1981), the Minnesota Supreme Court approved self-defense instructions modeled on CRIMJIGs 7.05– 7.08.

The three conditions for defense of dwelling are taken from State v. Carothers, 594 N.W.2d 897 (Minn. 1999). There is no duty to retreat from one's own home before defending oneself, even against a co-resident. State v. Glowacki, 630 N.W.2d 392 (Minn. 2001). See also State v. Baird, 640 N.W.2d 363 (Minn. Ct. App. 2002).

In State v. Sanford, 450 N.W.2d 580 (Minn. Ct. App. 1990), affirmed on petition for post-conviction relief, Sanford v. State, 499 N.W.2d 496 (Minn. Ct. App. 1993), the Minnesota Court of Appeals rejected the defendant's request for an instruction for a subjective standard of the reasonableness of the belief that the action taken was necessary to prevent death or great bodily harm. The Court rejected the claim and reaffirmed its holding in State v. Boyce, 284 Minn. 242, 170 N.W.2d 104 (1969) and CRIMJIG 7.05 that the objective standard of reason was the appropriate standard upon which the jury should be instructed. The Court further rejected the request for an “imperfect self-defense” instruction. The defendant asked the trial court to instruct the jury that if it found the defendant acted sincerely and in good faith but that his belief was unreasonable, the jury must find him guilty of manslaughter in the first or second degree.

The Court also held that the decision of the United States Supreme Court in Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), did not require a contrary decision. In Cheek, the Supreme Court held there was a limited exception to the general rule that ignorance of the law is not a defense to a criminal prosecution, and applied that exception to certain mistakes of fact in criminal tax prosecutions. The Court held that the holding of Cheek did not extend to issues of self-defense.

In State v. McCuiston, 514 N.W.2d 802 (Minn. Ct. App. 1994), the Minnesota Court of Appeals held it was reversible error to refuse to instruct the jury that the defendant was authorized to use deadly force to prevent the commission of a felony in the defendant's place of abode pursuant to the statutory language of M.S.A. § 609.065.

This instruction is not to be employed if deadly force was used to prevent a felony that was not life-threatening. State v. Dodis, 314 N.W.2d 233 (Minn. 1982).

In State v. King, 287 N.W.2d 636 (Minn. 1979), the Court stated that the trial court's instructions on self defense should have contained an explicit statement that the burden of proof on that issue was on the State.

In Hauwiller v. State, 295 N.W.2d 641 (Minn. 1980), the Court disapproved of an instruction that as a matter of law the accused had not acted in self defense. In State v. King, 287 N.W.2d 636 (Minn. 1979), the Court stated that the trial court's instructions on self defense should have contained an explicit statement that the burden of proof on that issue

Accidental death

A cursory reference to accidental death, made in an instruction on the law of self defense in a homicide prosecution, has been held inadequate to explain the defense of accidental death. State v. Crisler, 285 N.W.2d 679 (Minn. 1979).

In State v. Edwards, 343 N.W.2d 269 (Minn. 1984), the Minnesota Supreme Court held that in a case of claimed self-defense when a defendant claims he pointed the gun in self-defense, but claims the shooting was accidental, CRIMJIG 7.06 should be used rather than 7.05. See also State v. Malaski, 330 N.W.2d 447 (Minn. 1983).

In State v. Sanders, 376 N.W.2d 196 (Minn. 1985), the Minnesota Supreme Court, while upholding the conviction in a case in which the jury was instructed on self-defense in an instruction modeled after CRIMJIG 7.05 and 7.08, cautioned that the trial court must use analytic precision in instructing on self-defense. It held that where death results and the defendant contends that the defendant did not intend to kill, the court should substitute the phrase “election to defend himself in the way he did” for the phrase “election to kill.” See also State v. Smith, 374 N.W.2d 520 (Minn. Ct. App. 1985).

CRIMJIG 7.06 Self-Defense—Death Not the Result

The defendant is not guilty of a crime if the defendant used reasonable force against ____________ to resist (or to aid ____________ in resisting) an offense against the person, and such an offense was being committed or the defendant reasonably believed that it was.

It is lawful for a person, who is being assaulted and who has reasonable grounds to believe that bodily injury is about to be inflicted upon the person, to defend from an attack. In doing so, the person may use all force and means that the person reasonably believes to be necessary and that would appear to a reasonable person, in similar circumstances, to be necessary to prevent an injury that appears to be imminent. An
assault is (the intentional infliction of bodily harm upon another) (or) (an intentional attempt to inflict bodily harm upon another) (or) (an act done with intent to cause fear of immediate bodily harm or death in another.

The kind and degree of force a person may lawfully use in self-defense is limited by what a reasonable person in the same situation would believe to be necessary. Any use of force beyond that is regarded by the law as excessive.

The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

(The rule of self-defense does not authorize one to seek revenge or to take into his or her own hands the punishment of an offender.)

Comment

In State v. Johnson, 310 N.W.2d 96 (Minn. 1981), the Minnesota Supreme Court approved self-defense instructions modeled on CRIMJIGs 7.05– 7.08.

In State v. Fidel, 451 N.W.2d 350 (Minn. Ct. App. 1990), the Minnesota Court of Appeals rejected the appellant's claim that the trial court improperly instructed the jury on the law of self-defense. However, while rejecting the appeal, the Court did express a preference for use of the instruction found in CRIMJIG 7.06.

In State v. Soukup, 656 N.W.2d 424 (Minn. Ct. App. 2003), the Minnesota Court of Appeals held that self-defense is applicable to a charge of disorderly conduct where the behavior forming the basis of the offense presents the threat of bodily harm (involves a crime against the person).

A number of factors are relevant to the determination of whether the level of force used was reasonable, including the age and size of the victim and defendant; the victim's reputation for violence; any previous threats and/or altercations between victim and defendant; defendant's aggression, if any; victim's provocation, if any. See State v. Basting, 572 N.W.2d 281, 285–86 (Minn. 1997) (considering evidence of victim's and defendant's respective physical attributes, defendant's training as professional boxer, and that only victim sustained injuries in fight); State v. Bland, 337 N.W.2d 378, 382 (Minn. 1983) (allowing evidence of victim's reputation for violence and quarrelsome tendency to determine whether defendant was put in fear of imminent bodily harm or which party was aggressor); State v. Roy, 408 N.W.2d 168, 172 (Minn. Ct. App. 1987) (considering victim and defendant of comparable size, victim sustained multiple, ultimately fatal, injuries but defendant sustained none).

A defendant claiming self-defense carries the burden of going forward with evidence to support his or her claim. State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985). The burden is one of production, and “requires the defendant to come forward and present a sufficient threshold of evidence to make the defense one of the issues of the case.” State v. Charlton, 338 N.W.2d 26, 29 (Minn. 1983). Once a defendant has met this burden, the state must demonstrate that the defendant did not act in self-defense by negating one of the four elements of the defense. State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980).

An instruction on self-defense should be given whenever there is evidence to support a finding that the defendant had reasonable grounds to believe that the force used was reasonably necessary to prevent immediate bodily harm to the defendant. State v. Stephani, 369 N.W.2d 540, 546 (Minn. Ct. App. 1985).

CRIMJIG 7.07 Self-Defense—Revival of Aggressor's Right of Self-Defense

If the defendant began or induced the assault that led to the necessity of using force in the defendant's own defense, the right to stand the defendant's ground and thus defend (himself) (herself) is not immediately available to (him) (her). Instead, the defendant must first have declined to carry on the assault and have honestly tried to escape from it, and must clearly and fairly have informed the adversary of a desire for peace and of abandonment of the assault. Only after the defendant has done that will the law justify the defendant in thereafter standing (his) (her) ground and using force against the other person. An “assault” is (1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another

Comment

See M.S.A. § 609.02, subd. 10, for the definition of assault.

A plurality of the Minnesota Supreme Court, in State v. Edwards, 717 N.W.2d 405 (2006), expressed concern that the previous jury instruction on the revival of an aggressor's right of self-defense misstated the law as it would allow the jury to find forfeiture based on actions that were not sufficient to trigger the right to self-defense. Although Edwards involved the use of deadly force, the right to self-defense can also involve the use of reasonable force (see M.S.A. § 609.06 and M.S.A. § 609.65). The Committee has substituted the word “assault” throughout the instruction to more accurately reflect the circumstances under which forfeiture and revival of the right of self-defense occur. This approach incorporates the policy choices discussed in Justice Hanson's dissent and recognizes the reasonable beliefs of the victim in responding to defendant's initial assault.

In State v. Thompson, 544 N.W.2d 8 (Minn. 1996), the Minnesota Supreme Court rejected a claim that a first degree murder conviction should be reduced to manslaughter based upon a theory of "imperfect self-defense." The Court ruled that such a defense is not established under Minnesota statutes, and declined to accept the invitation to adopt this new defense by court decision.

In State v. Soukup, 656 N.W.2d 424 (Minn. Ct. App. 2003), the Minnesota Court of Appeals held that self-defense was applicable to a charge of disorderly conduct where the behavior forming the basis of the offense presents the threat of bodily harm.

A number of factors are relevant to the determination of whether the level of force used was reasonable, including the age and size of the victim and defendant; victim's reputation for violence; any previous threats and/ or altercations between victim and defendant; defendant's aggression, if any; victim's provocation, if any. See State v. Basting, 572 N.W.2d 281, 285-286 (Minn. 1997) (considering evidence of victim's and defendant's respective physical attributes, defendant's training as a professional boxer, and that only victim sustained injuries in the fight); State v. Bland, 337 N.W.2d 378, 382 (Minn. 1983) (allowing evidence of victim's reputation for violence and quarrelsome tendency to determine whether the defendant was put in fear of imminent bodily harm or which party was aggressor); State v. Roy, 408 N.W.2d 168, 172 (Minn. Ct. App. 1987) (considering victim and defendant of comparable size, victim sustained multiple, ultimately fatal, injuries but defendant sustained none).

A defendant claiming self-defense carries the burden of going forward with evidence to support his or her claim. State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985). The burden is one of production, and “requires the defendant to come forward and present a sufficient threshold of evidence to make the defense one of the issues of the case.” State v. Charlton, 338 N.W.2d 26, 29 (Minn. 1983). Once a defendant has met this burden, the state must demonstrate that the defendant did not act in self-defense by negating one of the four element of the defense. State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980).

An instruction on self-defense should be given whenever there is evidence to support a finding that the defendant had reasonable grounds to believe that the force used was reasonably necessary to prevent immediate bodily harm to the defendant. State v. Stephani, 369 N.W.2d 540, 546 (Minn. Ct. App. 1985).

CRIMJIG 7.08 Self-Defense—Retreat

The legal excuse of self-defense is available only to those who act honestly and in good faith. This includes the duty to retreat [There is no duty to retreat, even against a co-resident, when acting in defense of one's dwelling] or avoid the danger if reasonably possible.

Comment

In State v. Johnson, 310 N.W.2d 96 (Minn. 1981), the Minnesota Supreme Court approved self-defense instructions modeled on CRIMJIGs 7.05– 7.08.

The Minnesota Supreme Court has consistently upheld the use of this instruction. See, State v. Morrison, 351 N.W.2d 359 (Minn. 1984).

There is no duty to retreat from one's own home before defending oneself, even against a co-resident. This instruction should not be given under such circumstances in conjunction with CRIMJIG 7.05 (Defense of a Dwelling). State v. Glowacki, 630 N.W.2d 392 (Minn. 2001). See also State v. Baird, 654 N.W.2d 105 (Minn. 2002), applying Glowacki retroactively.

Included within the concept of reasonableness would be those infrequent situations in which pursuit might be justified (such as the attacker going to another room with the stated intention of getting a weapon with which to do further violence), or situations where standing one's ground may be justified. These would be proper argument for counsel.

It appears that the instruction in State v. Love, 285 Minn. 444, 173 N.W.2d 423 (1970), and State v. Schluter, 281 N.W.2d 174 (Minn. 1979)—which informs the jury that one who is exercising his right of self-defense “is not required to retreat and he may not only stand his ground and defend himself … but may also pursue his assailant until he has secured himself from danger …—was approved by the Minnesota Supreme Court not as a correct statement of the law, but as being more favorable than that to which the defendant was entitled. The rule is still as set out in State v. Johnson, 277 Minn. 368, 152 N.W.2d 529 (1967), in which the Court approved an instruction that said, “[t]he rule requires … the duty of the slayer to retreat or avoid the danger if reasonably possible.” This specific instruction was again approved in State v. Baker, 280 Minn. 518, 160 N.W.2d 240 (1968) and State v. Jones, 271 N.W.2d 534 (Minn. 1978).

[bstrawse]

The correct phrase would be "reluctant participant", which is in the case law. See State v. Baker, MN Supreme Court. It's spelled out more succinctly in State v. Bastings (1997).

I do note that the jury instructions above use the four conditions the court spelled out in Bastings, just slightly reworded (with arguably the same meaning)

I believe both cases are available online.
B

[tweener]

As I said, in general, people should NOT go running after muggers if they are carrying.

In general, chasing after a criminal is not wise. But it's not illegal.

To chase someone down and kill him, after he no longer represents a threat, is illegal.

To follow him for any other purpose is perfectly legal. Chasing after him so that you can better identify him for police, or can better direct them as to where he fled, or even to confront him and demand the return of the purse that he had stolen, are all perfectly legal.

And if, while you are engaged in your perfectly legal chase, he should threaten you with death or grievous bodily harm, you are perfectly justified in shooting him.

The problem is that it's going to be very difficult to prove that you didn't chase him down and kill him after he'd fled and no longer represented a threat. And even if you do win out in the end, it's likely to be a painful and expensive process.

So let's get it straight - he wasn't wrong to chase the thug. But he wasn't wise, given the current legal climate.

I hope things go well for him.

And I hope people remember the dozen or so middle-aged women this thug would likely have victimized over the next year, were he still walking the streets.

my thoughts exactly....awaiting the details.......it may set good precedent

[jshuberg]

Some amateur lawyering here:

Reading over the various statutes, it appears to me that the big difference is that a LEO doesn't have to retreat, and can utilize lethal force when necessary to affect an arrest. A citizen cannot use lethal force to perform a citizens arrest, only to defend oneself or another from an imminent threat of serious bodily injury or death. I believe all other laws governing the use of deadly force apply equally to LEOs and civilians alike.

When the Samaritan chased after the criminal, it was not yet a lethal force encounter for him (although it may have been for the original victim). Once the criminal escalated the situation to lethal force, the Samaritan was no longer legally able to pursue the criminal, or attempt a citizens arrest. At that point, and only at that point, the laws governing the use of lethal force took over, and the Samaritan would have to retreat from the situation if possible.

Personally, I think it's still a really bad idea to go down this road. Even if the grand jury rules that the Samaritan acted lawfully, his life is still likely going to change dramatically for the worse because of this. I wish the guy the best.

[mnmike59]

Give the Good Samaritan a medal, not a trial or a Grand Jury.

I'd chip in for one!!! Hell, I'd buy the medal for him. good job!
Channel five had a nice short report on it last night. Rothman was speaking and did a wonderful job! Bravo for Channel 5. they made it out as it was........ A good thing.
They did however call the permits a "conceal" permit.

[jdege]

Some amateur lawyering here:

And some more. I read over the CRIMJIG, and I see this:

If the defendant began or induced the assault that led to the necessity of using force in the defendant's own defense, the right to stand the defendant's ground and thus defend (himself) (herself) is not immediately available to (him) (her). Instead, the defendant must first have declined to carry on the assault and have honestly tried to escape from it, and must clearly and fairly have informed the adversary of a desire for peace and of abandonment of the assault. Only after the defendant has done that will the law justify the defendant in thereafter standing (his) (her) ground and using force against the other person.

So, in this case the perp began or induced the assault against the woman. Our Good Samaritan intervened. The perp declined to carry on the assault, and honestly tried to escape from it, fleeing the scene. Our Good Samaritan pursued, and in the process threatened the perp with deadly force.

Should I read the above as saying that the perp was now justified in using deadly force against our Good Samaritan, despite having beginning the initial assault, because his right to self defense was revived by his having declined to carry on the assault?

Seems to me that there's a very important line drawn in the law, that is exceedingly fuzzy when dealing with real-world situations. And I have no confidence whatsoever in the ability of any particular jury to draw it in the right place.

[Squib Joe]

I'd like to know more about the accomplice. Because there was a death, if she was involved in the crime in any way she should at the very least be charged with manslaughter as an accessory.

[goalie]

Do any of you guys posting actually ask yourself if it could be detrimental to the permit holder to spout off opinions on the internet (in a public forum) regarding what happened?

Or, put another way, doesn't it occur to anyone that, like the permit holder, shutting the **** up might be a good idea?

[Squib Joe]

Better article at the Pioneer Press:

http://www.twincities.com/ci_19168598?s ... ost_viewed

"Hennepin County Attorney Michael Freeman said police had not brought the results of their investigation to his prosecutors so they can determine whether charges should be filed.

"The question in this case is, did the good Samaritan act in self-defense when the punk pulled out his gun?" Freeman said. "We don't know that yet."

Surprising quote from Freeman...

And the dead guy? I'm sure he was just turning his life around but...

27-CR-09-16859
EVANOVICH, DARREN LAMONT
05/26/1988

04/03/2009
Hennepin Criminal/Traffic/Petty Downtown
Barnette, Toddrick S.

Crim/Traf Mandatory
Under Court Jurisdiction

Simple Robbery
27-CR-09-24426
EVANOVICH, DARREN LAMONT
05/26/1988

05/15/2009
Hennepin Criminal/Traffic/Petty Downtown

Crim/Traf Mandatory
Under Court Jurisdiction

Attempted Aggravated Robbery-1st Degree

[Pinnacle]

Do any of you guys posting actually ask yourself if it could be detrimental to the permit holder to spout off opinions on the internet (in a public forum) regarding what happened?

Or, put another way, doesn't it occur to anyone that, like the permit holder, shutting the **** up might be a good idea?

Exactly. This is the entire point. Spouting off sometimes is a bad idea.