Milwaukee Man may face Charges for self defense shooting

I don't think it's rare. Frank Ettin, or one of the other mods, has a great post somewhere documenting a fair number of accounts of citizens who have had to defend themselves, yet been badly abused by the legal system in the (often insanely lengthy) process of clearing their names.
 
I see nothing in the story to indicate that the maintenance worker is being abused by the system. He committed homicide. So he faces charges. If charged that IS part of the due process of law.

While it is nice to not get charged if you are in a self defense shooting, just because you say it was self defense does not mean you won't get charged or that what you perceived as self defense means that it was self defense.

For example, the maintenance worker may have opted to shoot his victims well after the incident was over, hence at a time when it would not have been considered self defense. The action may have been punitive instead of defensive and hence potentially illegal. Just because he was beat does not mean that he can return the favor.

If it was that he managed to draw he gun while he was being beaten, that is a whole other matter, but to automatically assume that he is getting shafted by the system would be naïve, especially given that no charges have yet been filed.
 
I don't think he was being abused by the system either, he simply refused to give a statement to LE until he had counsel. Having now been released it appears, on the face of it, that he did the right thing by waiting to give his statement. I would much rather spend a day or two in jail, and get my story straight ( with the benefit of an attorney ) Than possibly face homicide charges due to my own big mouth.

The investigation continues.
 
Armed_Chicagoan said:
...I don't think they'd do that if they thought homicide charges were likely....
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Well there seems to be no doubt that he committed homicide. So now might be a good time for folks who might not know to learn what "homicide" is.

  • "Homicide" is simply the killing of one person by another. So let's examine how the law looks at "homicide."

    • "Homicide" is not a crime. Homicide might be a crime, or it might not be a crime.

    • A homicide can be --

      1. Accidental;

      2. Negligent;

      3. The result of reckless (or willful, wanton and reckless) conduct;

      4. Intentional without malice (evil intent);

      5. Intentional with malice; and

      6. Intentional, premeditated and with malice.

    • An accidental homicide basically would be a death occurring as the unintended result of actions of an actor, even though the actor acted as a reasonable and prudent person in like circumstances. The actor incurs no criminal or civil liability in the case of a truly accidental homicide.

    • A negligent homicide would be a death occurring as the unintended result of the actions of an actor failing to use the degree of care expected of a reasonable and prudent person in like circumstances. And the actor incurs civil, but not criminal, liability in the case of a negligent homicide.

    • Homicides (3) - (6) are crimes: involuntary manslaughter, voluntary manslaughter, murder, and first degree murder, respectively.

    • The various types of homicide are defined in terms of the state of mind/intent/conduct of the actor.

    • If you point a gun at someone, the gun discharges and the person dies, your conduct gives rise to at least an articulable suspicion that a crime anywhere from involuntary manslaughter (pointing a gun at someone is at least reckless) to murder in the first degree has been committed. If you are claiming that you acted in self defense, you would be at least admitting the elements of voluntary manslaughter, i. e., you intentionally shot the guy.

    • Self defense, simple negligence or accident is a defense to a criminal charge of involuntary manslaughter, voluntary manslaughter, murder, or first degree murder. Self defense or accident is a defense against a civil claim. It will be up to you to make the case for your defense, e. g., it was an accident, it was mere negligence, it was justified.

  • Now let's look at the basic legal reality of the use of force in self defense.

    • Our society takes a dim view of the use of force and/or intentionally hurting or killing another human. In every State the use of force and/or intentionally hurting or killing another human is prima facie (on its face) a crime of one sort or another.

      1. However, for hundreds of years our law has recognized that there are some circumstances in which such an intentional act of violence against another human might be legally justified.

      2. Exactly what would be necessary to establish that violence against someone else was justified will depend on (1) the applicable law where the event takes place; and (2) exactly what happened and how it happened, which will have to be judged on the basis of evidence gathered after the fact.

      3. Someone who initiated a conflict will almost never be able to legally justify an act of violence against another.

    • The amount of force an actor my justifiably use in self defense will depend on the level of the threat.

      1. Under the laws of most States, lethal force may be justified when a reasonable person in like circumstance would conclude that a use of lethal force is necessary to prevent the otherwise unavoidable, imminent death or grave bodily injury to an innocent. And to establish that, the actor claiming justified use of lethal force would need to show that the person against whom the lethal force was used reasonably had --

        • Ability, i. e., the power to deliver force sufficient to cause death or grave bodily harm;

        • Opportunity, i. e., the assailant was capable of immediately deploying such force; and

        • put an innocent in Jeopardy, i. e., the assailant was acting in such a manner that a reasonable and prudent person would conclude that he had the intent to kill or cripple.

      2. "Ability" doesn't necessarily require a weapon. Disparity of force, e. g., a large, young, strong person attacking a small, old, frail person, or force of numbers, could show "Ability."

      3. "Opportunity" could be established by showing proximity, lack of barriers or the like.

      4. "Jeopardy" (intent) could be inferred from overt acts (e. g., violent approach) and/or statements of intent.

      5. And unless the standard justifying the use of lethal force is met, use of some lesser level of violence might be legally justified to prevent a harmful or offensive, unconsented to contact by another person.

    • If you have thus used violence against another person, your actions will be investigated as a crime, because on the surface that's what it is.

      • Sometimes there will be sufficient evidence concerning what happened and how it happened readily apparent to the police for the police and/or prosecutor to quickly conclude that your actions were justified. If that's the case, you will be quickly exonerated of criminal responsibility, although in many States you might have to still deal with a civil suit.

      • If the evidence is not clear, you may well be arrested and perhaps even charged with a criminal offense. If that happens you will need to affirmatively assert that you were defending yourself and put forth evidence that you at least prima facie satisfied the applicable standard justifying your act of violence.

      • Of course, if your use of force against another human took place in or immediately around your home, your justification for your use of violence could be more readily apparent or easier to establish -- maybe.

        1. Again, it still depends on what happened and how it happened. For example, was the person you shot a stranger, an acquaintance, a friend, a business associate or relative? Did the person you shot forcibly break into your home or was he invited? Was the contact tumultuous from the beginning, or did things begin peaceably and turn violent, how and why?

        2. In the case of a stranger forcibly breaking into your home, your justification for the use of lethal force would probably be obvious. The laws of most States provide some useful protections for someone attacked in his home, which protections make it easier and a more certain matter for your acts to be found justified.

        3. It could however be another matter to establish your justification if you have to use force against someone you invited into your home in a social context which later turns violent.

        4. It could also be another matter if you left the safety of your house to confront someone on your property.

    • Good, general overviews of the topic can be found at UseofForce.us and in this booklet by Marty Hayes at the Armed Citizens' Legal Defense Network.

  • Since the maintenance man here apparently intentionally shot three people, two of whom died, his actions satisfy the elements of the crimes of manslaughter (at least) and aggravated assault (although different jurisdictions might give those crimes different names.

    • If he now claims that he is free of criminal responsibility because his use of lethal force was justified, it will be up to him to present evidence establishing, prima facie, his legal justification.

    • Maybe the evidence, once reviewed, will be sufficient to exonerate him at an early stage. Or maybe it will be up to a jury to decide.

    • But anyone who uses violence against another human, even if he claims self defense, will need to go through the process until it can be decided that the use of force was legally justified.
 
If he now claims that he is free of criminal responsibility because his use of lethal force was justified, it will be up to him to present evidence establishing,
prima facie, his legal justification.
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I could have sworn that it was the state's job to first present evidence
that he is guilty, not the defendent to prove his innocence. Am I wrong?

BTW: I agree that homicide is homicide (the devil being in the details, and the
state's duty to hold the man until those details are established to some degree).
But does the state have the priviledge of presuming guilt up front?
 
Not a lawyer, but by claiming SD do you not automatically admit guilt(yes, I shot him, but), therefore it is up to you to prove your case?
 
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You don't have to prove anything. In order to get a self defense instruction there just has to be evidence presented that raises self defense. At that point the state is required to prove it was not self defense beyond a reasonable doubt.
 
By claiming "Self Defense," you are, in fact, admitting you did the deed. The prosecution needs to prove nothing, in that respect.

You will have to convince the Judge or Jury, that what you did was, in fact, self defense.

If the prosecution does not believe your claim of self defense, it will try and convince either the judge or jury, that it was not self defense.

You are essentially claiming that in committing the homicide, that you were justified and therefore exempt from criminal liability.
 
vranasaurus said:
In order to get a self defense instruction there just has to be evidence presented that raises self defense.
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OK, but who is going to present that "evidence", the Shooter maybe?
 
Claiming Self Defense puts you in a slightly different position than claiming innocence.

With any other charge, you claim you didn't do it, and the state has to prove you did (to one degree or another).

Claiming Self Defense admits that you did it. And then the decision becomes whether or not you were justified. In effect, you are pleading guilty, with extenuating circumstances.

This has an effect of the specific process the law will put you through.

in my area, a month ago, a homeowner shot and killed an intruder who broke in his house at 2am. The prosecutor took a month to review all the evidence. Last night, the local news ran the statement, It was quite detailed about the evidence they examined. The intruder didn't have a weapon, was 28, 6'5" and drunk. homeowner was late 30s, 5'4". (there is your disparity of force).
The intruder had a history (at least one) of drunken break-ins.

All evidence (casings, autopsy, "bullet fragments in the door", etc,) was considered, and it proved the intruder was shot inside the house. No charges were filed, and the shooting was ruled justified.

A month.

As to the Milwaukee man being released, without charges being filed, that's normal. He's NOT off the hook, yet. Unless he was felt to be a flight risk, releasing him until the final decision on charges is SOP most places.
 
steve4102 said:
vranasaurus said:
In order to get a self defense instruction there just has to be evidence presented that raises self defense.
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OK, but who is going to present that "evidence", the Shooter maybe?
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Yes, it could very well be up to him.

mehavey said:
If he now claims that he is free of criminal responsibility because his use of lethal force was justified, it will be up to him to present evidence establishing, prima facie, his legal justification.
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I could have sworn that it was the state's job to first present evidence
that he is guilty, not the defendent to prove his innocence. Am I wrong?

...But does the state have the priviledge of presuming guilt up front?
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This has effectively been answered, but I'm going to go through this again. It is tremendously important that folks who keep or carry guns for self defense clearly understand these concepts.

If you have been charged with a crime, it is the prosecution's burden to prove the elements of that crime beyond a reasonable doubt. So if you have been charged with manslaughter committed with a firearm, the prosecution must prove beyond a reasonable doubt that you intentionally shot the person.

But if you are claiming that your use of force was in justified self defense you will of necessity be admitting that you in fact intentionally shot the person who died. You will be admitting the truth of the key fact which the prosecution would otherwise have to prove.

Your defense against criminal responsibility for your admitted act of violence against another human being is that you were leaglly justified in using violence to defend yourself (or another). Sometimes things will be so clear that the authorities will be able to conclude that for themselves. But often it will now be your burden to at least produce evidence (which could include your statement about what happened, hopefully backed up by physical evidence and/or witnesses) that, prima facie, the elements necessary to support a claim of self defense have been satisfied.

Once you have done that it would become the prosecution's burden to disprove (often beyond a reasonable doubt) your claim of self defense. But while you might not have had the burden of proof (only the burden of producing evidence), the less convincing you have been the easier it will be for the prosecution to overcome your claim.

And if you have not produced evidence sufficient to support prima facie your claim of self defense, the judge will not instruct the jury on self defense.

Gary L. Griffiths said:
...Great post, Frank. Now do you want to tackle the difference between justifiable and excusable homicide?...
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Maybe later. I haven't had my coffee yet. But in the meantime, anyone who is interested might want to read what this lawyer says about it.
 
Can the accused simply keep quiet, in a situation where the DA may have difficulty establishing that they were the shooter, and request a directed verdict, when the prosecution rests its case in chief. Then, if the motion for a dv is denied, put on evidence of justification, or must they elect to go with self defense earlier in the proceedings? (This may be a poor strategy, but can it be done?)
 
Dreaming100Straight Wrote;
Can the accused simply keep quiet, in a situation where the DA may have difficulty establishing that they were the shooter, and request a directed verdict, when the prosecution rests its case in chief. Then, if the motion for a dv is denied, put on evidence of justification, or must they elect to go with self defense earlier in the proceedings?
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It may not be typical for all States but, In TN, If you plan to use an "affirmative defense" you must do so from the beginning.
 
Dreaming100Straight said:
Can the accused simply keep quiet, in a situation where the DA may have difficulty establishing that they were the shooter, and request a directed verdict, when the prosecution rests its case in chief. Then, if the motion for a dv is denied, put on evidence of justification, or must they elect to go with self defense earlier in the proceedings? (This may be a poor strategy, but can it be done?)...
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It is pretty much a guaranteed losing strategy. Basically, if you delay asserting your claim of self defense you lose credibility.

Double Naught Spy said:
You have the right to remain silent. Anything you say can and will be used against you in a court of law...
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And sometimes what you don't say can be used against you too. The Supreme Court has ruled that one may be asked questions in under circumstances not amounting to a custodial interrogation, and one's silence in response to such questioning may be used by the prosecution (Salinas v. Texas, No. 12-246, Supreme Court 2013).
 
I could have sworn that it was the state's job to first present evidence
that he is guilty, not the defendant to prove his innocence. Am I wrong?
Click to expand...

In the case of self defense as a legal defense for homicide, it varies between states. That was a big selling point in Ohio's castle law. Used to be you got charged with homicide, because you killed somebody, and you had to defend yourself by proving it was justifiable. Now the burden of proof is upon the state to prove it was NOT justifiable.
 
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