Reasonable Fear, Self-Defense, and Carrying 10mm Handguns

David Hardy over at Of Arms & The Law has a post up on the Harold Fish case. I'll give you his summary:

Fish was hiking, saw another guy, waved, other guy's dogs charged him, he fired a warning shot. Then the other guy charged him, crazed look in eyes, windmilling arms and shouting threats. Fish shouted to halt and, that having no effect, shot him fatally.

Fish was prosecuted for shooting the man. The Arizona legislature tried to help him out by passing a law shifting the burden in self-defense cases, but didn't make their retroactive intent clear. They just passed a new law making it retroactive to address the Fish case, but he has already had his conviction reversed. The law will impose the burden of disproving self-defense on the prosecution (instead of putting it on the defendant to prove it) in a new trial if the governor signs it into law.

Hardy highlights the odd nature of self-defense as a legal defense:

It's rather strange, I can't offhand think of another defense where what matters is what you *think*, but not how things *are*. To prove self-defense you must prove a reasonable fear that the other guy was going to inflict death or serious bodily harm.

This is not unique to Arizona, the jurisdiction where Fish prosecuted and sentenced to ten years in prison. Virginia has a parallel requirement. This is a judgment of what you knew at the time of the use of defensive force, not what may become available for presentation at trial. So when Fish shot Grant Kuenzli, he couldn't justify his actions on the screwdriver in Kuenzli's back pocket. All he had to go on was Kuenzli's verbal threats and that Kuenzli was charging him while whirling his arms in a windmill fashion.

It turns out that Fish had good reason to be afraid. As his defense counsel points out:

Witness after witness, in pretrial motions, and under oath, provided this Court with "specific act" evidence about the character for violence of Grant Kuenzli. The decedent raped and kidnapped [Rape Victim], then threatened her son with death as well as her mother and sister while hold [Rape Victim] and her son hostage in their home. The decedent, without any warning, assaulted and strangled [strangulation victim] without provocation and without warning. [strangulation victim]'s offense was simply delivering self help materials to [Rape Victim]. The decedent was involved in numerous violent or aggressive encounters with former police officers Steve Corich, John Boylan, and Lynn Bray at Mesa Community College. They were so troubled by these actions that they contacted defense counsel after reading news accounts of Kuenzli's death. The decedent had two aggressive confrontations with Placido Garcia who, through affidavit, described his fears to the court. Stephanie Quincy was so terrified of the defendant because of bizarre and threatening behavior over the telephone that she would not meet with him face to face unless he had cleared court security. Judge Clayton Hamblin had a twenty minute encounter in his courtroom that so terrified him that he warned court staff to be beware of Kuenzli and to be cautious of him. The judge feared that the decedent might shoot him through a window connected to his courtroom. Ernie Encinas terminated the decedent from employment at the Gilbert Fire Marshall's office because of repeated violent outbursts with Mr. Encinas, with fellow employees, and with customers of the town. The fear of Kuenzli was so prevalent that the Fire Marshall changed all of their locks at all locations at the request of Kuenzli’s fellow employees because of fears that Mr. Kuenzli would return and inflict harm. A mere two weeks before his death, decedent charged Steve James with James observing the same spastic arm movements, the terrifying anger and verbiage, and the irrational behavior that was seen on May 11, 2004. These specific acts were critical to show, on occasion after occasion, that rational people could not reason with Grant Kuenzli, that he had character patterns of uncontrolled violent behavior, and that Kuenzli inflicted terror in the minds and hearts of each of these witnesses because of his unpredictable volatility and patterns of violence and aggression.

Even though Fish didn't know any of the above when the shooting took place, it appears that Kuenzli probably conveyed an earnest (and unnerving) intent to kill Fish. Problem is that none of it was admitted at trial.

The prosecution also made hay about Fish carrying a 10mm handgun loaded with hollowpoint ammunition. In an urban area, that may not be your preferred carry gun. But on a hiking trail that is probably the caliber of choice. It's enough bullet to drop most any four-legged predators you may encounter, and the hollowpoint round is a good choice both for stopping power and to prevent overpenetration. As Massad Ayoob has said at length, overpenetration and hitting an innocent on the other side can bring a lot of liability. Let's be honest, 10mm FMJ is a hot round that makes Rule Four (be sure of your target and what lies beyond it) a serious consideration. There's a good faith argument that not using hollowpoints in a 10mm is reckless. But be prepared to make that argument in court.

All of this goes to show that even when you use force in what you believe to be justified self-defense, the justice system may see things differently.