Tuesday, September 26, 2017

Shut Up, Lawyer Up; 2 Bad Shoots

Know before you go.
UPDATED In the past week, two different “road rage” incidents have occurred in the Las Vegas Valley. One man is dead and two have been arrested. In the first “road rage” example, after a minor traffic accident, an 18 year old man, David Rosengrant-Munoz, stole the other party’s phone and threatened him with a gun. The other party had his own gun and shot Rosengrant-Munoz who is now in the hospital and facing charges including attempted murder.

Murder requires “malice aforethought” meaning that one has had time to contemplate their action and is not acting on emotional reflect. Surely after chasing the victim down and skidding to stop behind the victim’s car (stopped at the gate to a relative’s complex) the old soon-to-be felon had time to reconsider his actions. Or at least listen to the police dispatcher who practically begged Rosengrant-Munoz to stop chasing the other driver. Turns out it wasn’t a hit and run after all.

It was after having a gun pointed at him, the phone robbery, and the chase that the other driver shot Rosengrant-Munoz. Without a doubt, the elements of a justifiable use of deadly force were met. The second shooter wasn’t so lucky or smart, but the elements for murder do not appear to exist. In short, he screwed up big time, whether the shoot was truly justified or not. He is now in jail on an “open murder” charge, which means prosecutors can choose from involuntarily manslaughter to murder.

Jim Reed Davis shot and killed Lloyd Ullyott after the latter exited his vehicle to confront Davis. The incident started with a honk and ended with a gunshot. Davis claimed that he could not see Ullyott’s hands and feared that Ullyott might have had “something” in his hands.

A “bare fear,” or an unreasonable fear not supported by facts, is not grounds for justifiable homicide. State law requires that “it must appear that the circumstances were sufficient to excite the fears of a reasonable person” to kill in self-defense. Might is a possibility and killing in self-defense requires probability. Not being unable to see the “attacker’s” hands and having a non-specific fear typically does not satisfy the reasonable fear standard.

This law exists because all too often, during the Wild West days, the town bully or some other unsavory character would provoke a fight and claim that he was afraid the dead man had a concealed weapon. Self-defense acquittals were won on thin pretexts, often no more than the jury deciding if they liked the defendant or the dead man better. “I was in fear for my life” and a lie often excused all manners of murders. Blame was laid on concealed weapons, which were banned. Things did not change until courts, juries, and legislatures changed laws and practices to reject such baseless defenses.

Davis may well have been afraid, but without specific circumstances and facts to illustrate that the fear was a product of events outside Davis’ mind, the killing was not justified. For instance, an old woman shooting at a shadowy figure because shadowy figures are generally scary—not that the shadowy figure was trying to do anything other than go for his evening jog—would be unjustified as well. Just because you are afraid doesn’t mean the fear is a valid one.

The “furtive movement” defense and others like it do have merit, but an assertion like that has to be supported by eyewitness testimony and/or a solid explanation of what the suspect did to justify the fear of imminent death the killer had. For instance, in Davis’ case, he could have articulated the basis for his fear much better. A good attorney could have helped argue that, for instance, given Ullyott’s actions, his aggression, and the way that he held his hand out of sight, gave Davis the impression that Ullyott had a weapon and was intent on entering the vehicle or attacking Davis through the window.

Davis foolishly fell right into a trap the detective set for him by preying on his fear and regret immediately after the incident. From the Sun article:
“In an interview, detectives asked Davis if he had considered rolling up his window, driving around Ullyott or backing up, police said. Davis told them ‘now that he had a chance to think about it, that those would have been good ideas and he wished he had done one of those things,’ police said. According to the report, a woman in Davis’ vehicle told him to back up as Ullyott was approaching them.”
Don’t you wish you could have done something different to avoid being here tonight? Just one little thing. Any rational person would say yes. Maybe Davis should have stopped for ice cream or gone a different route home. Maybe he should have chosen to retire to a bunker in the desert twenty miles from any other person. An attorney would have told Davis not to answer the question or would have given a better answer.

With the additional information in today's LVRJ article, Davis' wife said that Ullyott never tried to get in the vehicle. Davis also may have had temper issues given completion of an anger management course after being charged with destroying property. In this case, the charges against Davis are likely justified, but again, Davis really did not help out his defense (and neither did his wife).

Now, given as Nevada is a “no duty to retreat” state, the detective’s question and Davis’ answer are potentially ill-relevant. In the first example, there would be no need to attempt to do anything to avoid a conflict and the question would be ill-relevant. NRS 200.120 does not require anyone to retreat before using deadly force (or acting in self-defense), if the person not the original aggressor, has a right to be present at the location where deadly force is used, and is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used. No duty to retreat has been Nevada law since the 1870s.

However, NRS 200.200 prohibits anyone from picking a fight and then using the fight to justify homicide; if a fight that you started gets out of hand and you are now in fear for your life, you must have tried to get away, give up, or otherwise attempted to stop fighting before you can legally use deadly force. In this case, the “other options” would be relevant. The million-dollar question is, who was the aggressor? Does a honk equal starting a fight and what else might have transpired to make it one?

I doubt that any lawyer or jury would take honking as starting a fight. Even if there was stupidity back and forth, ultimately Ullyott got out of his car. No duty to retreat would apply in that case leaving the only remaining valid question being: “Was the danger was so urgent and pressing that, in order to save the person’s own life, or to prevent the person from receiving great bodily harm, the killing of the other was absolutely necessary?” That would be for a jury to decide, but I’d bet Davis will take a plea bargain for voluntary manslaughter for a year or so in prison.

Davis could have done himself a huge favor and remained silent. He provided the seeds of his own destruction. A competent attorney could have helped him give a statement that did him more justice. On his own, in the psychological aftermath of a killing, Davis unwittingly provided police and prosecution huge leverage over his fate. Even if truly innocent of any crime, Davis is responsible for his arrest and his open murder charge. After an ambiguous defensive gun use, nothing good can come by talking to the police unrepresented. It’s not a shyster’s game of avoiding responsibility, it’s about getting a fair deal in the midst of an unpleasant event.

As for road rage, never get out of your car, never roll down the window, and keep your gun out of sight until it is absolutely necessary. Vegas attracts terrible drivers and every kind of jerk. Just let the bad behavior go. It’s not worth it. Mr. Ullyott would be alive today if he had stayed in his car, regardless of what Davis did. Willingly participating in a confrontation makes you partially responsible, at least in a cosmic sense, for what happens next.

Something similar happened in Reno this weekend as well. James Upton, who also happens to be a National Guard captain, shot a teen in the leg after he and a neighbor confronted the teens who were “acting suspiciously.” According to the shooter, the teen who got shot approached Upton aggressively and was making threatening gestures. Just guessing from the news article, that Upton also talked to the police while unrepresented.

Shooting someone in the leg seems to me like something one would do if they didn’t intend to kill someone. Guns are made for killing people or wounding them so seriously they cannot kill you; they’re not a good tool to keep a teenager from walking towards you. I doubt that Upton truly felt his life was threatened, but was being set upon by an obnoxious teen who was ready to fight. When all you have is a hammer, all your problems tend to look like nails. Be ready to throw down or create distance, not just shoot people.

Also, this is why it is best not to play cop. If someone gets aggressive, back off and save yourself the trouble. George Zimmerman decided to play cop, got seriously beaten, and was pilloried in the press.

The Problem

The problem here is that at least two of these men likely acted without a solid understanding of when it is acceptable to shoot someone. Using deadly force, whether you kill or not, is only to be done when you or another faces imminent death or serious injury. The question one needs to ask themselves is “Am I certain to die or be badly hurt if I don’t shoot?” before pulling the trigger. Not a possibility, but a probability. I’ve had a gun in my face and I’ve had people threaten to kill me without the means of doing so; only one of those situations would have justified shooting the guy and it wasn’t the loudmouth stomping towards me trying to look tough.

Ordinarily law abiding men and women find themselves in trouble because they lack knowledge and understanding of gun laws. Just because you can buy a gun doesn’t mean you are automatically qualified to use it. A constitutional right doesn’t come with instant common sense. Freedom of speech and a mouth doesn’t enable you to speak eloquently on any topic (especially your own defense). The same way an unrestrained tongue can lead one into all kinds of trouble (like murder charges), so can carrying a gun if you don’t know the law. Carelessness puts people in jail for many reasons.

Nevada Carry exists to help properly educate people on the law and firearm related concepts. A CCW class taken once does not help you make good decisions if you are only there to check the box for your permit. Had Upton and Davis really appreciated the law and when it is okay to shoot someone, they wouldn’t be in jail right now. Neither should have been talking to the police without an attorney either. Be smarter than you think you are.

Nevada Carry Self-Defense page

Don't talk to the police. It's for your own good.


  1. Rule 1 is always, always, always STFU.

    Rule 2 is always, always, always be able to articulate your actions using the words under the revised statutes/penal codes of your state.

    Rule 3 is always, always, always have insurance and a lawyer.

    Rule 4 is if you have any kind of medical problems which would prevent you from being able to fight back when an "average person" would be able to, make sure you have it well documented in your medical records!

    I also love that video you posted. Been one of my favorites for a long time.

    It's too bad police get away with a lot more shootings that are bad compared to the common person. Having a great lawyer to show a person with more training and experience shot someone legally for less than your encounter is helpful.

    1. Lawyer insurance might be a good idea. Not always going to be a 3AM violent home invasion cut as clearly as black and white.

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