Harold Fish conviction reversed
Pdf of AZ Ct of Appeals ruling here. To shave a long opinion to its core--
Fish was hiking, saw another guy, waved, other guy's dogs charged him, he fired a warning shot. Then the other guy charged him, crazed look in eyes, windmilling arms and shouting threats. Fish shouted to halt and, that having no effect, shot him fatally.
Major issue on appeal: trial court refused to allow testimony from several other people that other guy, upon confrontation relating to his dogs, had rushed at them, crazed look in eyes, arms windmilling and shouting threats.
Ruling: general rule is that self defense must be based on reasonable fear, and reasonable fear cannot be based upon something the defender doesn't know (in this case, that the guy tended to go off balance with regard his dogs and behaving in a threatening way). Arizona case had allowed court to admit unknown events, in its discretion, but adoption of the federal rules of evidence (which have no such provision) as the state rules ended that. HOWEVER, the prosecution, by arguing that Fish's claim that other guy behaved so crazily was ridiculous, opened the door to Fish bringing in evidence that that was, in fact, how the guy had behaved in the past. Conviction reversed and sent back for new trial.
UPDATE: yup, this was the case that led to a change in the statutes on self defense -- previously self defense was an affirmative defense, meaning that (like insanity, etc.) the defendant had to prove it, by a preponderance of the evidence (more likely true than not). During this case, the legislature modified the law so that justification defenses, including self-defense, had to be disproven, beyond a reasonable doubt, by the prosecution. Problem was the legislature gummed it up, and forgot to include a clause making the change retroactive, and the court held that the legislature *can* make a liberalized defense retroactive, it must give some indication of this intent, there was none here, ergo Fish would be tried under the law as it existed at the time of the shooting. There's now a move to pass a statute that would clarify a retroactive intent.
"Reasonable fear" ... may write a separate post on this. It's rather strange, I can't offhand think of another defense where what matters is what you *think*, but not how things *are*. To prove self-defense you must prove a reasonable fear that the other guy was going to inflict death or serious bodily harm. At least, that's been the US standard since the early 19th century. So....
Guy bashes in your door one night, comes at you, you shoot in reasonable belief he means you serious harm. Turns out he was staggering drunk, thought he was breaking into his own house. You have a defense since you feared serious harm and it was reasonable to do so (even though in fact you may not have been endangered).
Officer stops guy, guy has crazy look, reaches for something, officer shoots. Afterward it turns out guy has a murder warrant, killed last officer who stopped him, clearly did mean to kill this one, too. BUT officer didn't know that when he shot. In practice, he'd not be prosecuted, and the jury would walk him anyway, BUT in theory, were it tried, officer would only be allowed to prove the basis of his fear -- that guy looked crazy and seemed to reach for something -- and jury would only consider whether those two facts were sufficient cause to shoot him. That he in fact was a fleeing cop killer would not be allowed in evidence. The officer didn't know that, so it could not have formed a basis for him to fear for his life.
I don't say the above makes great sense, logically, but it's the way the law works just now. I've had proposals for statutory amendments to cure it, and may write an article on the subject.
Can there be a statistical case made to claim harassment of lawfully registered gun owners by ATF with cases like this one? (Where all charges were dropped only after the gun owner's life and reputation was financially, socially ruined? I can use that statistical data in my forthcoming admiralty lawsuit for the Second Amendment as a merchant seaman. I need all the help I can get.
Posted by: Don Hamrick at July 5, 2009 06:56 AM
Oops! Posted to wrong story. See the next story down.
Posted by: Don Hamrick at July 5, 2009 06:59 AM
Wasn't this case tried when self-defense was something the defense had to prove, rather than something the prosecution had to disprove?
Posted by: mac at July 5, 2009 11:20 AM
I do not understand this: "reasonable fear cannot be based upon something the defender doesn't know."
That seems to me to be an unattainable standard.
Posted by: Jim D. at July 5, 2009 11:36 AM
"I do not understand this: "reasonable fear cannot be based upon something the defender doesn't know."
Fish, by his own admission during his post-conviction/pre-sentencing statement, didn't know that Grand Kuenzli had a screwdriver in his back pocket. Fish did state that Kuenzli knew he was armed...he watched and heard Fish fire the warning shot at his dogs...yet charged at Fish anyway, making verbal threats of some kind.
Someone charging full-speed, downhill, at an armed man is unsual and counter-intuitive to say the least. Fish says he didn't know if Kuenzli had a knife, small gun, rock or whatever in his hands, only that he was barreling downhill toward him.
So, to bring up the fact that Kuenzli was armed with a screwdriver in his rear pocket, which the defendant didn't know about, can't be used as a basis for "reasonable fear".
However, his other actions as described above, along with the terrain elements, the dogs which were still loose, CAN be used as a basis for reasonable fear, since those are things Fish COULD know, see and hear.
That's how I read Dave's comment.
Posted by: Tim Weaver at July 6, 2009 09:01 AM
It's the nasty ol' "reasonable" cropping up again. "Reasonable" is that "term of art" used by judges, lawyers, and legislators to screw over things. These concepts are taught in the four courses, Ambiguity 101, 201, 301 and 401, during college years.
Make it difficult to grasp and understand so we, the state, can do what we ant to whomever we want whenever we want.
Law may be difficult to write but the use of ambiguous language such as "reasonable fear" is simply garbage designed to allow the State more power.
Tiocfaidh ar la!
Posted by: fwb at July 6, 2009 11:03 AM
What is "reasonable" will be determined by people who weren't there when the poop hit the fan.
Posted by: W. W Woodward at July 6, 2009 09:51 PM
Is the point of the officer that evidence that would be withheld in that case would be admitted in the self-defense trial, i.e. cop killer info excluded but lost drunk admitted?
Posted by: Deavis at July 7, 2009 04:36 PM
The Castle Doctrine law requires that "evidence of justification" be presented to swing the burdon of proff over to the State in cases involving self defenders.
Anyone have ANY idea what "evidence of justification" might entail?
Posted by: AzFellow at July 9, 2009 02:24 PM
I cannot believe that the court system let him out. He shot and killed a unarmed man.
Posted by: Anonymous at July 22, 2009 09:10 PM
Two large dogs come charging you out in the mountains, and you shoot near them, then the owner charges at you shouting "I'm going to kill you".
You, A Set down on the ground and suggest having a cup of tea.(Your bones nay be found 5 years later, and you are a cold case.)
B.You takethe person at his word and take the steps necessairy to protect yourself.
Posted by: chiguy at November 13, 2009 11:00 AM
Defenders of Fish point to his own version of the murder victims actions as if that was proof in itself that he needed to pump THREE rounds into an unarmed man's chest. It's as if his supporters have their own NOW type truism: "Men don't lie about murders (Why would they???)"
Do you deep thinkers consider it a possibility that a man on trial for murder would lie about his victims actions or is that too sureal a notion for you.
Fish shot an unarmed man three times, each shot not a wounding shot but a killing shot and you suck it up as if it is a CBS "unimpeachable source".
Posted by: Mike Jackson at November 19, 2009 03:20 PM
I agree with "anonymous". The unarmed man had to be aware of Fish having the gun, unless he was deaf and blind. Maybe one dog was a seeing eye dog and the other trained to alert "homeless guy" of odd sounds. Maybe Fish should have given the dogs enough time to stop their owner. Too bad the were too busy trying to attack Fish. Maybe Fish set out in the woods thinking "Who can I shoot today? Oh look, a bum." Bang Bang Bang!!! If Fish did believe his life to be in peril, then I doubt he could keep count.
Posted by: Scott at November 25, 2009 06:22 AM
Some of you make it sound like the unarmed man was strolling down the street wearing a top hat and whistling a sweet little tune.
Maybe the weapon was a little too big, but I would rather have a 10mm auto with hollow-points than a dinky .32 cal. Perhaps Fish could have made an attempt to flee, since it seems he "might" have had the chance. Shoot the dogs, run from the crazy guy. If Fish shot once and wounded the other guy, then he would have to deal with the other guy lying about what happened (come on, wouldn't you lie?) Not to say that he should have killed to cover his own a**. But that is the world we live in. How many burglars sued the homeowner for injuries? If Fish was pissed off about what was happening then he may have reacted with pure emotion and shot to "get back" at the other guy. That is murder. If he truly feared for his life and/or limb, then that is self-defense. But to me, two charging dogs, a warning shot, and a man still coming at me aggressively seems to make it sound like Fish was defensing himself.
Posted by: Scott C at November 25, 2009 07:05 AM
Fish didn't pay for his crime of MURDER and my friend, Grant Kuenzli, didn't get Justice. It's that simple! Why are you hiking the Beautiful outdoors with a Big Gun, Mr. Fish? You obviously weren't comfortable or at ease on the mountain trail. Why didn't you expect the possibility of dogs with owner's in the Great Outdoors? I highly doubt they charged only you and never anyone else..especially Maggie. Maggie lived out there with Grant and saw people everyday. The real possibility would be Maggie coming up to give you kisses like she often did to others. Maybe running to see the newcomer out of excitement. You shoot a gun out of fear, Mr. Fish. You were afraid and shouldn't have been hiking with such uneasiness. No you shouldn't see your family like I'm not going to see Grant. Think before you act..it's a good rule!
Posted by: Tiffany at June 24, 2010 01:12 PM
Real issue in this case was the admissibility of Kuenzli's prior bad acts(his being a nut when it came to protecting his dogs in the past)where Fish had no prior knowledge. I think you make an interesting point about the cops... but do we really want to rely on the accuracy of our inferences alone? I think the the focus should be corroboration, Fish described a change in Kuenzli when he scared the dogs off with a warning shot, pretty specific evidence was oferred showing similar conduct. thoughts?,
Posted by: anonymous at December 28, 2010 09:55 AM
A good rule of thumb is to never run at a person who has a gun. Idiots die an idiot's death.
Posted by: Anonymous at October 29, 2011 03:19 PM