Harold Fish gets a retrial

[Glenn E. Meyer]

The idea is that if you use an instrument of lethal force in a manner that you think is not lethal, then you didn't have justification to use an instrument of lethal force. Shooting someone is definitionally lethal force. Shooting in the leg is no guarantee that it wouldn't be lethal. Watch all the excitement if your femoral artery is cut.

Shooting COM is doctrine as it offers the most reasonable probability of hitting and stopping someone.

If you want to argue that a situation might arrive where you want to stop someone and lower the probability of lethality, that is something that should not be said for supposed legal reasons - even if you did it. One can argue the leg shot was just a panic flinch - there are plenty of videos of LEOs shooting round way in front of someone. I've seen a lot of low shots in FOF as the shots were rushed.

Someone will post that you should never engage in the strategy of trying to stop with a peripheral hit - you should maximize the stop with the COM if you can hit it. It's doctrine.

We once had a heated debated about this on THR, IIRC. However, I came up with the crazed relative theory. You are attacked by a beloved but crazed relative with a knife. You do have time to draw and shoot but don't want to go for the most lethal probability shot. Thus, you shoot the leg and take the chance that it might be lethal or you get sliced. An unlikely event but it's a thought question.

To go back to the original thought - it is not current doctrine to deliberately shoot the leg (or if you did it deliberately, say that you did it - you always say you were in fear of your life and shot because of that). No one will hold you to being William Tell or Annie Oakley under stress.

 

[mavracer]

You can look them up on the MSNBC article. They were nothing special.

did you look them up? a shephard mix and a chow mix two rather large breeds one of which used to be "the" police breed and the other probably the #1 breed for attacks for no apparent reason.(and the only breed in my fathers 35 years practicing veterinary medicine to bite their owner)

I have faced two dogs with a stick and did well. They ran away.

I'm proud of you, glad it worked for you.It still has no relevance here because reguardless of your opinion of what Mr Fish should have done the warning shot at the dogs broke no laws.
If it wern't the fact that apparently Mr Kuenzli was a train wreck looking for a place to happen Mr. Fish would not have needed to shoot him in fear.

 

[Tennessee Gentleman]

did you look them up?

Sure did. Also, mix breeds are not the same as pure breeds (huge difference in many cases) so not relevant to this incident. As I said before, they were nothing special, just pound mutts.

I'm proud of you, glad it worked for you.

Thanks, but like those dogs I am nothing special either, just common sense on dealing with playful dogs. BTW the vet who neutered one of them said they were not aggressive.

It still has no relevance here because reguardless of your opinion of what Mr Fish should have done the warning shot at the dogs broke no laws.

Not sure that is true. In many states you cannot discharge a weapon for a "warning shot", did you check AZ law?

If it wern't the fact that apparently Mr Kuenzli was a train wreck looking for a place to happen Mr. Fish would not have needed to shoot him.

I don't think a "train wreck looking for a place to happen" is justifiable grounds to shoot and kill somebody. Kuenzli's character is not admissable and the court only agreed to allow such as it related to the dogs. And as PT111 pointed out that might hurt Fish as well as help him since Kuenzli never hurt anyone in those instances or was arrested. Kuenzli might have been the nuttiest guy around but that is not reason to kill him.

 

[PT111]

DA - Can you describe Mr. Kuenzli's actions when you chased his dog?

Witness #1 - Yes he bacame enraged and waved his arms around like he was going to beat everyone up. He started cursing and his eyes bulged out like they were going to pop out.

DA - And what did you do?

Witness #1 - I backed off until he cooled down.

DA - Did Mr. Kuenzli ever do anything to you?

Witness #1 - He just cursed and finally walked off.

DA - Can you describe Mr. Kuenzli's actions when you grabbed his dog?

Witness #2 - Yes just like the first fellow said he bacame enraged and waved his arms around like he was going to beat everyone up. He started cursing and his eyes bulged out like they were going to pop out.

DA- And what did you do?

Witness #2 - I just stood there until he calmed down.

DA - Did Mr. Kuenzli hurt you?

Witness #2 - Not really, he gave me a tap on the shoulder but I was so scared I almost wet my pants. Then he turned and ran off.

DA - Can you describe Mr. Kuenzli's actions when you hit his dog?

Witness #3 Same story
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DA - Can you describe Mr. Kuenzli's actions when you fired a warning shot to scare his dogs?

Witness #15 - Yes, it was just as the others have said. He went all crazy and came running at me.

DA- And what did you do?

Witness #15 - I shot him.

DA - You mean to tell us that 14 people have described the same story as you have and he never did anything other than push a few people around but you had to shoot him!!!!!!

 

[hogdogs]

Sure did. Also, mix breeds are not the same as pure breeds (huge difference in many cases) so not relevant to this incident. As I said before, they were nothing special, just pound mutts.

You obviously have had sheltered experience with mixed breed dogs...
If you take a less brave breed like the vizla, or several of the other "skittish" high strung dog breeds and breed it to the chow, pit or many other breeds and will have a "fear biter"! And hit a dog with a stick will often entice a pain bite/attack response. If you smack the majority of humans with any thing thinner than a ball bat and most will "curr out" and run off... Brandish a pool cue at me and I won't hesitate to head in and if hit I will really be ticked off... even with minor injuries like broken fingers etc. you will get all the wrath I can deal out until dead or out cold as will many dogs of any breed.... And I am a mixed breed mutt with 50% italian and the rest from points north in europe... 'cept french! You cannot judge a book by the cover holds true in both dogs and humans but a crazed dog or human charging you can be considered violent with intent to do great bodily harm by the reasonable person.
Brent

 

[OuTcAsT]

Not only would I consider Fishes' warning shot reasonable, but is should have served as a warning shot to not only the dogs, but the nutbag as well. If I have just fired a shot to scare away some possibly attacking dogs, and you come running at me, flailing about with your two hams, first, you know I am armed, and I know that you know I'm armed. Running toward an armed man shouting and cursing, just might seem threatening enough for you to assume ambient temperature.

 

[PT111]

Not only would I consider Fishes' warning shot reasonable, but is should have served as a warning shot to not only the dogs, but the nutbag as well. If I have just fired a shot to scare away some possibly attacking dogs, and you come running at me, flailing about with your two hams, first, you know I am armed, and I know that you know I'm armed. Running toward an armed man shouting and cursing, just might seem threatening enough for you to assume ambient temperature.

I have no argument with that but it will be up to the jury to decide and neither of us will be on that jury.

 

[rampage841512]

DA - Can you describe Mr. Kuenzli's actions when you chased his dog?

Witness #1 - Yes he bacame enraged and waved his arms around like he was going to beat everyone up. He started cursing and his eyes bulged out like they were going to pop out.

DA - And what did you do?

Witness #1 - I backed off until he cooled down.

DA - Did Mr. Kuenzli ever do anything to you?

Witness #1 - He just cursed and finally walked off.

DA - Can you describe Mr. Kuenzli's actions when you grabbed his dog?

Witness #2 - Yes just like the first fellow said he bacame enraged and waved his arms around like he was going to beat everyone up. He started cursing and his eyes bulged out like they were going to pop out.

DA- And what did you do?

Witness #2 - I just stood there until he calmed down.

DA - Did Mr. Kuenzli hurt you?

Witness #2 - Not really, he gave me a tap on the shoulder but I was so scared I almost wet my pants. Then he turned and ran off.

DA - Can you describe Mr. Kuenzli's actions when you hit his dog?

Witness #3 Same story
.
.
.
.
DA - Can you describe Mr. Kuenzli's actions when you fired a warning shot to scare his dogs?

Witness #15 - Yes, it was just as the others have said. He went all crazy and came running at me.

DA- And what did you do?

Witness #15 - I shot him.

DA - You mean to tell us that 14 people have described the same story as you have and he never did anything other than push a few people around but you had to shoot him!!!!!!

Were any of the people aside from the last witness armed?

Did Kuenzli approach them after any of them had fired a shot into the ground to scare away dogs that they thought were going to attack them? Were any of them approached by Kuenzli while they had a firearm in their hand in clear view of Mr. Kuenzli?

 

[rampage841512]

There seems to be a big hang up about the dogs, and for many reasons. Just for the record, does anyone know a reputable source for exactly what kind of dogs these were? How big were they? Did the dogs have a record of being agressive (Fish seemed to think they were agressive, but was there any evidence aside from his story that they were?) Are there by chance pictures of these particular dogs floating around (preferable with some kind of size reference also in the picture)?

 

[nazshooter]

I haven't read any posts that stated a dog cannot serverly injure a person but rather could a person with a wlking sitck fend off such an attack from a normal (not attack trained) dog?

A normal dog doesn't attack a full grown man except in defense of their owner or home (and most breeds won't even defend their home without training). If these dogs were really attacking and not just running up to be petted then they were not average dogs. Also, if this was one of those aluminum hiking sticks (I don't know if it was or not) then you're only going to get one good swing before it breaks and leaves you with a short jagged stabbing instrument. At that point a shot into the ground is going to seem pretty tame.

 

[zxcvbob]

Drawing and shooting a deadly firearm is doing a lot more than "just making a loud noise." I hope if you carry you know that.

No it's not. (not out in the wilderness, anyway)

 

[Tennessee Gentleman]

but it will be up to the jury to decide and neither of us will be on that jury.

And yet the first jury had those same facts OuTcAsT mentioned and they still convicted him. FWIW, Kuenzli's "friends" say he was just running up to get the dogs away from Fish.

Were any of the people aside from the last witness armed? Did Kuenzli approach them after any of them had fired a shot into the ground to scare away dogs that they thought were going to attack them? Were any of them approached by Kuenzli while they had a firearm in their hand in clear view of Mr. Kuenzli?

Does not matter. Someone can pull a gun, shoot it and if I approach them they still can't shoot me. The fact that Fish was armed makes no difference to the point PT111 was making which was Kuenzli was mostly blow.

Just for the record, does anyone know a reputable source for exactly what kind of dogs these were?

Here's one:

and here is the other

Ferocious beasts aren't they?

 

[Tennessee Gentleman]

No it's not. (not out in the wilderness, anyway)

Maybe if you are just out plinking, but if it is in a self defense killing claim it is huge.

If these dogs were really attacking and not just running up to be petted

Naz you just posed the $64000 question. One I am sure the jury considered.

 

[Mike Irwin]

"Ferocious beasts aren't they?"

Absolute non-sequitor.

ANY dog can be vicious depending on the situation.

I owned a Chow-Beagle-Shepherd mix for over a decade. She was one of the sweetest dogs I've ever encountered. But if she thought I was threatened it was incredible how quickly she'd go into protection/attack mode. Chows and chow mixes are also incredibly strong, and have extreme bites. I made the mistake of getting between Nikky and another dog that decided it wanted to tussle with her once, and I took her bite full on, one that was meant to do damage to the other dog. She released immediately when she realized that she had me, but the damage was pretty impressive. 30 seconds later, when we got the dogs separated, Nikky was looking calm and peaceful as always, but I was still bleeding like a stuck pig with a nice big mirror set of punctures.

How a dog looks or is behaving right now is NO indication as to how it's going to look or behave 5 minutes from now when the situation is completely different.

 

[Tennessee Gentleman]

Absolute non-sequitor. ANY dog can be vicious depending on the situation.

Maybe, but I think he could have handled those two with a walking stick instead of a 10 MM. Maybe if he had he would be a free man today with his finances intact?

 

[hogdogs]

If them two mongrels were charging me... the one in the lead gets the lead aspirin first....
Nothing harmless looking about them 2!

Now here is a little puzzle pic.
Of these 4 which is least threatening from less to most?
I will tell ya'... If the white bulldog ar littlest red dog run at you that means you are putting off a good vibe and both want love-loves. If the bigger red one runs at you she will have her teeth bared but will hit the brakes a few feet from you (usually) and means she senses something off about you like you walked onto the place. The little one you had to look for is my daughter's dog and if you got close to her in any posture you may actually be bitten.
By the way, they are all howling to the very rare fire truck siren we hear.
Brent

 

[rampage841512]

Those dogs together look more than big enough to do some damage, or they could be the sweetest things ever. Now, find me a picture with them barking and growling and I'll bet they look mean and dangerous enough. Just a thought.

Oh, and if I have a gun drawn, and you approach me in a manner that leads me to fear that my life is in danger, I will shoot you. And I do have that right. It's called 'self-defense.' And yeah, I'm going to be placed under a hell of lot of scrutiny if you're unarmed, but I'm not willing to risk my life on the chance that maybe you won't cripple or kill me. While I more than respect your right to refrain from doing the same in such a situation, your rights end where mine begin. Kuenzli's rights ended when he took his first agressive and foolish step toward Fish.

The fact that our legal system allows convictions under such circumstances is a failure of justice, and one that needs to be corrected.

 

[Nnobby45]

Originally Posted by PT111
What we know is that a crazy man that scares everyone around him concerning his dogs finally runs into a man that is carrying a gun. He exhibits the exact same actions toward the man with a gun that he has exhibited toward many other people. No one has ever gotten seriously hurt until he finally runs into the man with a gun.

Isn't the point whether the man with the gun was in reasonable fear-- without respect to all the others who were scared S%*&less and thought they were about to be violently assaulted?

The fact that they ultimately weren't wasn't a fact know to Fish and wouldn't necessarily have been relevant to his situation if it had been.

 

[PT111]

The fact that they ultimately weren't wasn't a fact know to Fish and wouldn't necessarily have been relevant to his situation if it had been.

Exactly why the first judge ruled their testimony inadmissable. Thank you for pointing that out.

 

[mavracer]

Maybe, but I think he could have handled those two with a walking stick instead of a 10 MM. Maybe if he had he would be a free man today with his finances intact?

I think Kuenzli would have done the same damn thing as soon as the first dog yelped from you wacking it. So what are you going to do now?
shooting at the dogs,shooting the dogs or hitting them with a walking stick doesn't matter none of them would have been illegal.However aggravated assault is against the law.

But the Court of Appeals sent the case back to Coconino Court Superior Court to be retried because the trial court judge had not given adequate instruction on what constituted self defense. And the panel of appellate judges scolded Coconino County Superior Court Judge Mark Moran for not answering a jury request to define the word "attack." The panel remarked that the jury may not have understood that someone can commit aggravated assault on another person without actually touching him.

and running at sombody angrely yelling threats is aggravated assault.
So please get off your high horse about how well you can handle dogs and explain what your going to do now that Mr Kuenzli is running at you yelling threats.please remember he's 20 years younger and the three dogs may join the fight.