Posted on 07/09/2009 4:58:38 AM PDT by marktwain
It is a back country wanderer’s worst nightmare; arriving at a remote trailhead to find yourself accosted by two growling, snarling off-leash dogs, and then their owner, who threatens to kill you for having taken action to deter the approaching canines.
That’s what retired Arizona teacher Harold Fish told investigators in May 2004 at the end of a dayhike in the Coconino National Forest that put him in a deadly confrontation with a man named Grant Kuenzli. Fish said he yelled a warning to Kuenzli to call off the dogs—a warning apparently ignored—then drew his 10mm Kimber semiautomatic pistol and fired one round into the ground when the dogs were about seven feet from him. The dogs split up, one to each side of Fish.
...evidence from the crime scene – including footprints and the Victim’s wounds – corroborated Defendant’s story that the Victim moved quickly from high ground, that the Victim’s arms were raised, and that Defendant did not shoot until the Victim was very close; and the testimony of at least eight witnesses that the Victim frequently became violent and aggressive corroborated Defendant’s account of the Victim’s behavior.
At the sound of the gunshot, Fish said, Kuenzli became enraged and rushed toward him “yelling profanities and swinging his arms” according to court documents. Fish “thought (Kuenzli) was going to kill him and he had nowhere to run because the dogs were at either side of the trail,” the court documents said. “At one point (Fish) yelled to (Kuenzli) to stop or he would shoot.”
When Kuenzli was between five and eight feet from Fish, still advancing and yelling, Fish shot him three times in the chest. Kuenzli died at the scene. Fish made his way to a highway, flagged down a motorist and asked for help.
Fish was prosecuted and convicted, and sentenced to 10 years in prison, but last week, the now-incarcerated 62-year-old ex-teacher was granted a new trial by the Arizona Court of Appeals, which reversed the verdict and remanded the case back to the trial court.
There is a great deal about the Fish case, and the appeals court ruling, that raises more questions than answers.
..the court may have erred in precluding evidence of prior specific acts of violence related to the Victim’s relationship to dogs
Kuenzli had a long screwdriver in his back pocket, but apparently never took it out or threatened Fish with it. A screwdriver can be a very lethal weapon, but it never came into play. Fish essentially shot an unarmed man.
Or did he?
The appeals court noted that a dog can be used as “a dangerous instrumentality,” and further observed that the trial judge had not allowed evidence of Kuenzli’s prior violent behavior when it came to his dogs.
Incredibly, in the same 3-0 ruling, the appeals court sided with the judge for keeping more of Kuenzli’s prior history of violent behavior out of the courtroom because Fish had never before met Kuenzli and had no knowledge of his background. Yet the court also noted that “the evidence which was admitted was highly sanitized with none of the admitted testimony reflecting how aggressive or violent (Kuenzli) had become when he was confronted about being at a location with his dogs.”
If the Defendant did not know of the Victim’s prior violent acts at the time in question, those prior acts could not bear on whether Defendant was reasonably in fear of his life so as to justify Defendant’s use of deadly force.
In reality, Kuenzli didn’t own the two aggressive dogs, but had only picked them up at a local animal shelter to take them for some exercise.
The appeals court also said the trial judge also erred in not adequately describing Arizona’s self-defense statute.
There was considerable outrage over Fish’s prosecution and conviction; so much that the State Legislature revised the Arizona self-defense law to place the burden of proof on the prosecutor, not on the defendant as the law required when Fish pulled the trigger.
..evidence of the Victim’s specific acts of prior aggressive behavior to prove the Victim’s conduct on the day of the shooting, while relevant to self-defense, was generally inadmissible because it had slight probative value compared to the risk of misuse by the jurors.
Complaints run rampant in the hiking community about off-leash, aggressive dogs. I’ve had a couple of misadventures with such animals, and their all-too-typically jerkweed owners, who try to blame their dog’s misbehavior on the victimized hiker. The US Forest Service typically requires dogs to be on a leash, but it is remarkable the number of arrogant people who casually ignore that rule and let their dogs run rampant.
Under Washington State statute, a person has the right to use force to prevent personal injury or injury to another person provided that “the force is not more than is necessary.” (RCW 9A.16.020)
Under a separate statute, lethal force is permitted “when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished.” (RCW 9A.16.050)
This is a remarkably clear, concise and well-established statute. Washington is a “no duty to retreat” state. If attacked you can stand your ground.
However, the court held that general reputation or opinion evidence as to the Victim’s character for violence was admissible even if not known by the Defendant prior to the shooting to establish whether the Victim or the Defendant was the first aggressor.
One might easily conclude that if you were forced to fire a warning shot at two clearly aggressive, perhaps attacking dogs, after which their owner rushed at you with swinging fists threatening to harm or kill you, there is “imminent danger” of this threat “being accomplished.” How? Somebody that aggressive, who ignores the fact that you’re holding a gun and that you’ve warned him to stop, could arguably wrestle your gun away from you (don’t the anti-gunners claim this will always happen?) and kill you with it.
In this state, determining self-defense would be up to the prosecutor’s office, after going through all of the evidence submitted by investigating police. It would certainly be up for a jury to decide whether such a killing is justified, should a case be brought to trial.
But what about shooting an attacking dog in self-defense? Same rules apply. If a person is in genuine fear of grave bodily harm or death, that person can act with appropriate force.
What happened to Harold Fish may be an anomaly, and it raises a question about court rules that do not allow the admission of evidence about someone’s past behavior that would clearly influence a jury of 12 reasonable citizens to conclude a pattern of behavior led to his own demise. A jury deserves to hear that kind of evidence, the defense should have the right to introduce it, and the court should be required to allow it.
Investigators determined that the physical evidence supported Fish’s description of the events that resulted in Kuenzli’s death. Nobody can know with absolute certainty what unfolded that day five years ago, but at least Harold Fish will now have a chance to perhaps straighten out part of the record.
He’s been in jail 5 years!!!!!!!!!!!!!! Ugh!!!
I am not sure about this - was he ever bit?
And 3 shots to the chest?
But then again, he did give a warning shot.
What I cannot figure is why Janet Napolitano hated him so much. It wasn't obvious what political advantage she gained by vetoing those bills. They would just have given him a new trial. She is a former prosecutor. I wonder if there is a link between her and the prosecutor in the Fish case?
That's the way I read it too. Glad I'm not a lawyer, knowing Kuenzli has a prior rap sheet for similar incidents and withold it from the jury, I couldn't sleep at night.
This is about my age (58), and I side with the shooter, with the “facts” as presented. I would vote to acquit, but then again the prosecutors would have screened me off the jury panel.
http://www.msnbc.msn.com/id/15199221/page/4/
There were several witnesses that described him as being a psycho.
Some folks just need killin’.
This case stinks of political agenda and not justice. This man should be freed right away for defending himself. The courts should dismiss this case.
Three shots to the chest should be considered restraint in self defense. When a weapon is used in self defense, a gun should be discharged at center mass as quickly as posible until the aggressor is down or the weapon is out of ammo. 5 shots can be fired before a body has time to drop.
A warning shot is a mistake.
Juries can be so stupid.
Nothing in this artcile would have me voting to convict this man of anything. If acosted by 2 dogs and a human being in the middle of nowhere what is the man supposed to do. Use a cellphone and call for park rangers? Wait a few hours and see if someone shows up?
You identify yourself as armed warn the attacker once and then kill him when he doesn’t stop.
Who can not understand that?
I also am unsure. But I know I wouldn't want to wait for vicious, snarling beasts to latch onto my arms forcing me to drop my weapon and have their owner descend upon me.
She’s a Rat so deep down, she hates people who defend themselves.
I think the right person got shot in this one.
DUH!! An “unarmed man” is perfectly capable of killing someone. Necks are notoriously easy to get in a head-lock and then, that little sideways twist...SNAP!
In the State of Washington, provate citizens have broader authority to use deadly force than available to cops.
"And this juror was disturbed by the type of bullets Fish used. 'Elliot: The whole hollow point thing bothered me. That bullet is designed to do as much damage as absolutely possible. It’s designed to kill.'"
So there you have it. In this numbskull juror's world self-defense ammo is murder ammo.
The judge limited "bad character" evidence of the dead man's violent snap-temper past but allowed the prosecutor to paint the use of an "evil" gun with "evil" ammo by the hiker under attack as proof of his unjustified, murderous intent.
Essentially, the gun and its ammunition were put on trial as a murder (not a self-defense) weapon, and once the jurors bought that characterization they transferred its "character" to the peaceable man under attack who fired it, finding him guilty of murder.
Yeah, when I read that, I wondered "Did they expect him to switch out his ammo for something less deadly in the heat of the moment?"
The true test is not what a "reasonable" person would have done, but what a reasonable person under the stress of an unprovoked attack by two aggressive dogs and a man rushing at him with anger in his eyes and voice would have done. That "reasonable" person is not going to act dispassionately with clear eyes and a calm mind.
The same juror who found the ammo "evil" said he was disturbed that the attacked hiker did not immediately apply first aid to the downed attacker but went to flag down a car. He wanted the attacked hiker to act not merely reasonably, but extraordinarily reasonably. He made much too high of a demand of the attacked hiker.
But he did the right thing and has spent 5 years in jail.
Logic tells me that all the shooter knew was he was being attacked by two dogs (unknown breeds)and an irate individual very far away from civilization. The guy did what I would do.
Really fine gun by the way! Big holes!
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