Friday, August 07, 2009

From the road #1: Does this person sound familiar?

From a USA Today article that ended up on the front page, below the fold, of the San Diego Union-Tribune:

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, fears that violent confrontations will increase as more people carry concealed guns. "When someone's carrying a gun around and they're not fully trained, oftentimes they'll use it just because it's there," he says.

Ignoring the grating singular "they", I'd hate to say it, but Paul Helmke may be right. This does happen, and in Arizona we should be more aware of it than almost anyplace else. (This, of course, doesn't imply that it's better to ban firearms...)

Why should we be aware of it? One name: Harold Fish.

On a hiking trail, Fish was approached by dogs being walked off-leash by one Grant Kuenzli. Made uneasy by the dogs, he fired a "warning shot". It doesn't take a genius to understand that (1) concerning humans, there's no such thing as a "warning shot" in Arizona law and (2) Dogs don't understand "warning shots". Following this escalation, Kuenzli ran toward Fish, upset and thinking he's trying to kill the dogs; Fish shot him three times and claimed it as "self-defense". At best, it's probably "imperfect self defense", a mere mitigating factor, but with the only witness to the altercation being Fish, who knows?

In 2006, the Arizona legislature began a dangerous experiment. In our legal tradition, self-defense and other justification defenses are affirmative defenses, that is, the defense must be proved to the jury with presumption against the defendant. In Arizona, justification defenses are no longer affirmative defenses; the prosecution must now prove that a murder was not self-defense!

In Arizona, we are thus more likely to be shot by an angry man who thinks he can claim self-defense, and more likely to see conflicts that would ordinarily end in a shouting match be escalated by cowards like Fish and end in shootings. Fish is currently released pending the outcome of a remand; the Arizona Court of Appeals says that Fish should have been allowed to introduce testimony to the effect of "Kuenzli was protective of dogs". This session, primarily for Fish's benefit (!), the legislature passed a bill making the 2006 change retroactive. If there is a retrial, the prosecution will now have to prove that Fish wasn't acting in self-defense. Attorney General Terry Goddard has appealed the Appeals Court's ruling to the AZ Supreme Court. For once, I have nothing bad to say about Terry Goddard.

Fish's release has been celebrated by firearms enthusiasts and RKBA supporters in the state and elsewhere. That's a bad call. The incident on the hiking trail is equivalent, up to a change of scenery, to the "blood in the streets" "shot over traffic disputes" scenario brought up always by RKBA opponents. Fellow supporters of firearms rights: this is not anything with which we want to be associated.

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