The Aftermath: Friendly Fire Isn’t

Legal & Second Amendment
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I agree with you but, since the ratification of the Civil War Amendments, and specifically the 14th Amendment, the Supreme Court has decided which rights are “fundamental” and to what extent that right applies. We can all agree that inciting a riot or falsely yelling fire in a crowded theater, are not protected by the First Amendment. When they look at these rights they also look at what restrictions the states had on them at the time leading up to the 14th Amendment. Before the 14th, most states banned concealed carry but allowed open carry. That was not considered an infringement. So, until SCOTUS speaks, we wait.

One thing unique about the 2nd Amendment, as compared to the 1st, 4th, 5th, 6th and 8th Amendments, is that the Supreme Court, in both Heller and McDonald, avoided the issue of what level of scrutiny the courts should apply when evaluating how a right can be limited. There are 3 levels, Strict Scrutiny, the highest level, Intermediate scrutiny and Rational Basis, the lowest level.

Beginning with rational basis, most restrictions are at this level and the government can place restrictions on activities if there is a rational basis for making the law. Pretty simple, a law must serve some legitimate government interest and there must be a reasonable or rational link between that interest and the law.

Intermediate Scrutiny is next and has been used primarily with laws relating to gender and sex. In order for a law to pass intermediate scrutiny, it must *serve an important government objective , and be substantially related to achieving the objective.

The highest standard is Strict Scrutiny. Strict scrutiny is generally used for laws that discriminate on the basis of race, national origin, religion, and alienage and is also applied whenever a “fundamental right” is being threatened by a law. Strict scrutiny requires the government to prove that there is a compelling state interest behind the challenged policy, and the law or regulation is narrowly tailored to achieve its result.

Considering Heller and McDonald recognized that the right to bear arms is a “fundamental right”, it seems appropriate that strict scrutiny ought to apply.

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82

The attorney’s assessment is wrong in this instance. The beer store owner broke no law. His action may not have been prudent, however he reacted to a deadly threat and most likely was responding in the defense of others. When the robber raised his gun to point it at the store owner, he had reason to believe his life was at risk and responded. I would not hire this attorney to defend me.

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83

I understand your point @Major_Paul. I will tell you that if this incident occurred in Philadelphia and not Allentown, it is likely that the beer store owner would have been charged for both a homicide (murder or voluntary manslaughter) for killing the burglar and for aggravated assault for injuring the other person. The undisputed facts are that the beer guy left his place of business with a firearm in hand after being robbed and went to the store next door that was being robbed. He had no duty legal to do so. Beer guy shot and killed the bad guy when bad guy raised his firearm and injured a good guy.
What we can only speculate on is what Beer guy’s intent was when he picked up his pistol and went next door. If he did so for retribution or revenge, then there is no question that he could be charged.
Regardless, the DA had probable cause to charge Beer guy if he decided to go that way and probably would have in a more liberal jurisdiction.

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84

You analysis is all wrong. First of all, we know Philadelphia is a messed up city and is not an example of justice or Constitutional adherence, They fight Pennsylvania’s carry laws at every turn. Then you hang your argument on whether the store owner “had no legal to do so.” What law prohibited him from going to the aid of a fellow store owner who’s life was in jeopardy? Please answer. What law says, when a bad guy comes to threaten you, your legal obligation is to run and hide? Is that your plan? Why do you assume retribution? With that bias comment you are blind to any facts or measure of intent and you are off the jury. Sorry, them’s the rules. Bear in mind, as soon as the robber raised his gun, legally he forfeited his right to life. The store owner was no prohibited from being where he was and acted defensively and not aggressively. This is an open and shut case. We don’t need any attorneys that are afraid of facts or public sentiment that burns down cities when they don’t like the outcome.

85

And we have also seen how the media, Democratic politicians, the Kenosha DA, and others on the Left have treated Kyle Rittenhouse. @MikeBKY’s assessment of the legal system reflects current reality. I believe what Mike intended to state was that the owner of the store did not have any legal requirement to seek out the BG. He was not barred from protecting others, and as this particular case showed, when the justice system isn’t seeking to punish those acting within the law, one will not be prosecuted for defense of self or others.

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86

I agree Philly is a mess, yet it is the most populace city in the state and, like many other large cities, is run by those that would love to see mass scale confiscation of firearms.

I apologize, I have corrected my comment to say he had no legal duty to aid the neighbor. That is a fact.

I do not see anything in my response that says one person cannot aid another person. I also did not say to run and hide.

Again, I am not assuming retribution. I said "What we can only speculate on is what Beer guy’s intent was when he picked up his pistol and went next door. If he did so for retribution or revenge, then there is no question that he could be charged. Why are you assuming that it was not retribution? Do you KNOW what his intent was? Do you have a crystal ball or are you a mind reader? I do not know his intent and stated only that IF he was seeking revenge or retribution that he could be charged. In reality, if that were the case, he should be charged. But I am not a mind reader or psychic, nor have I assumed any facts not given in the case.
My comment was also not biased. I did not make an assumption, I simply gave an if this then that explanation.
But you are right, if a juror says he believes the defendant was seeking revenge and is guilty, he is off the jury. Likewise, if a juror says the defendant was seeking to protect his neighbor and is innocent, he is off the jury. The jurors are expected to listen tot he facts and evidence presented at trial and to come to a decision. If they have already decided innocence or guilt, they should not be on the jury. As you say, “them’s the rules.”

I agree he was not prohibited from being where he was. How do you know he acted defensively and not aggressively? Were you there? Bad guy is dead and the other guy he shot was running in the opposite direction.

You could say the same for Kyle Rittenhouse on the Kenosha shootings. Yet he is still being held and prosecuted on several homicide and assault charges even though video shows that he is clearly defending himself from the threat of serious physical injury or death. Spend a few years working in the criminal justice system and you will see that “open and shut cases” are rarely open and shut.

I am not afraid of facts. But some of the facts that you suggest are opinion, not fact. Just because you believe something to be true does not make it a fact. There are no facts provided that can say with any certainty what Beer Guy’s mental state was when he picked up his pistol and left his business. He could have been checking on his neighbors or could have been searching for the thief to give him what he had coming to him. We will never know. I believe it was the former, as did the DA, however, in advising a client, I would still recommend not searching for the suspect.
And, as an attorney representing a client, it is my job to act in the best interest of my client without regard to what public outcry there may be. But the pulse of the community will also play a role in the trial of a matter. Jurors are people and, like all people, have their own preferences, prejudices and opinions. Attorneys cannot blindly lead their clients to a trial on the basis of truth, justice and the American way and be blind to the realities of the community where the jury will be selected.

The point of my response was that you should never make an assumption that the prosecutor will be on your side. My experience with most prosecutors and police is that they will file charges and then let the judge and/or jury decide.

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87

I’ll respond more later (time for work), just want to remind you upon where the burden of proof lies. My assumptions are just as (if not more) valid as yours was that his actions were out of retribution. I would easily take this case just as I would the Kyle case. I appreciate the engagement…the real reason this forum exists.

88

I probably should not jump in… but…

@MikeBKY did not say the beer guy’s actions were out of retribution. Can you show where he said it was? I might have missed it, but I think he said if a court or DA could show or claim his actions were out of retribution… a different context.

Trying to understand how some people view certain words or phrases. (perhaps different wording or details might clarify)

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89

I didn’t say he had such a legal duty.
And yet how does that imply guilt? Not seeing the relevance to your case.

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90

I do not see anything in my response that says one person cannot aid another person. I also did not say to run and hide.

Hence…he was legal in giving or coming to give aid to someone in jeopardy…which was/is my point.

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91

I do not know his intent and stated only that IF he was seeking revenge or retribution that he could be charged. In reality, if that were the case, he should be charged. But I am not a mind reader or psychic, nor have I assumed any facts not given in the case.

You raised the issue of retribution…so how would you make the case?

In general I agree, however intent is argued in court. So unless he foolishly confessed such intent, how would you even begin to draw up such charges? Determining intent is the job for the jury, applying the “reasonable man” standard. You have actus reus only, but you also have a mitigable defense.

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92

Bad guy is dead and the other guy he shot was running in the opposite direction.

Then is going to be hard to rebut the testimony of the Bar Owner, isn’t it? Unless you find cameras which is entirely possible. So if the BG raised his weapon, do you agree it was in self defense? BG does not get to raise the self-defense please since he was the assailant and source of the threat.

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93

What give you the idea that I haven’t? Another interesting assumption.

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94

But some of the facts that you suggest are opinion, not fact.

It was only in response to your suggestion that the BO acted in retribution (an opinion) that I offered a counter argument, and questioned the legal merits of any wrong doing based upon facts (i.e. what prohibited the BO from aiding another store owner or being where he was when the BG raised his gun). I didn’t see any presented, as you stated the DA seemed to agree. Perhaps there are better means to debate such matters, not sure this forum is so conducive but it is what it is.

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95

Tough decision since the BG already displayed a weapon in the first incident. The second victim seemed to have safely retreated. Call 911 and try to identify the "getaway’ vehicle. The BG could have had accomplices that would have gotten to pizza guy in a jam. The pizza guy was pretty ballsy to confront the BG. I wonder how "FREEZE!!! DROP THE GUN!!! " Would have played out.
Back to the original question… the guy shot in the buttocks could have sued the guy in civil court for a tidy sum of pizza dough.