A recent event in New York City is illustrating whether under the law, you can defend yourself and others for reasons of health and safety.
The incident occurred at 11 p.m. on a recent Friday night in the Harlem section of New York City in a bodegas, which is a small version of a convenience store that primarily sells deli sandwiches, coffee and individual cigarettes.
A woman of undefined age, referred to as “mom, Simon’s girlfriend,” or just “girlfriend,” had her 10-year-old daughter pick up a bag of potato chips. When the woman’s “benefits” card,” which is how welfare payments are made, was declined, the clerk, Jose Alba, took the chips bag back. The surveillance camera shows that the woman screamed obscenities and threatened to bring her man to attack the clerk.
In a few minutes she returned with her man, Austin Simon, 35, an ex-con on probation for assault with 27 previous arrests. As Mr. Simon rushed behind the small counter, the much smaller 61-year-old clerk, Mr. Alba, apparently thinking Mr. Simon was the father of the 10-year-old, said, “Papa, I don’t want a problem, papa.”
Papa or not, Mr. Simon was much younger, bigger, stronger and as his conviction for assault indicated, prone to violence. He broke shelves while pushing Mr. Alba down.
Mr. Alba managed to wrestle a hand free from Mr. Simon to grab a kitchen knife and stab Mr. Simon as the woman who, unlike Mr. Alba, carried a knife, pulled a knife from her purse and stabbed Mr. Alba in the arm.
Mr. Simon died from the knife wounds, and Mr. Alba recovered while displaying his lack of malice by not attacking the woman for stabbing him. What were the legal consequences for Mr. Alba and the woman?
The legal consequences for what are labeled the “duty to retreat” or “stand your ground.” And they vary considerably from state to state.
“Duty to retreat” means if threatened, you have a duty to retreat rather than defend yourself or others. “Duty to retreat” states include New York, Vermont and Wisconsin.
Most states have one of three forms of “stand your ground” where:
— You have no duty to retreat, which includes California although there are limits as discussed below
— You live under the “Castle Doctrine,” after the theory that your home is your castle. That provides three categories for having no duty to retreat if you are: a) in you home, in states such as Maine, Minnesota and N.J.; b) in your home or vehicle, as in Ohio; in your home, vehicle or place of work in states such as Delaware, North Dakota and Nebraska.
— You have a duty to retreat if you can do so safely.
In the Bodegas matter, prosecutor Jennifer Sigall charged Mr. Alba with second-degree murder, which is murder with “malicious intent” (which seems like a strain since Mr. Simon attacked him) but is not premeditated. It carries a sentence of 15 years to life. His bail of $500,000 guaranteed that this clerk working the night shift in a bodegas in Harlem would be sent to the notoriously harsh jail called Rikers Island while the woman, who carried the knife she used to stab Mr. Alba, was not even charged with assault. Why?
Ms. Sigall said “Alba was only justified in using deadly force if he believed he was about to be the recipient of deadly force” and that the “use of the knife was not a proportional response to a beating.”
Apparently under the “Sigall” standard, Mr. Alba was legally required to that his beating in the hope that if he reached the point where he was close to death, he would still be strong enough to stab Mr. Simon.
Ms. Sigall said the woman-stabber was “justified in stabbing Mr. Alba, using force to stop “his assault” on the “victim.” Amazingly, Ms. Sigall made the woman’s stabbing Mr. Alba “justified,” Mr. Alba an “assaulter, and his attacker, Mr. Simon a “victim.” What a great set of examples illustrating the concept of prosecutors discretion.
Ms. Sigall’s boss, District Attorney Alvin Bragg, who instead of applying his usual liberal approach, chose to charge Mr. Alba but did help to reduce Mr. Alba’s bail to $50,000 so his family could raise the necessary $5,000 for him to “only” spend a week at Rikers. However, Mr. Alba still faces the mental and financial stresses of a trial with a jury deciding his future.
How would this type of case proceed in California?
The California standard is applied to mean the person must “reasonably” believe that they, or another person, are in imminent danger of harm and “reasonably” believe the use of force is necessary to defend themselves or others against this harm. Under this standard, the person must use no more force than is “reasonably” necessary to defend against the imminent danger of harm (emphasis added). The repeated use of “reasonable” means prosecutors have the discretion to decide the self-defense was necessary or pass the case on to juries.
If a case goes to trial, CalCrim 505 provides for the judge to tell the jury the law is “An accused is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until danger of death or great bodily harm has passed.” The arguments will be about the discretion in the application of “reasonably.”
What would happen in California would, as in New York, depend on how the district attorneys exercise their discretions. George Soros understood this, and the citizens of New York, Los Angeles and San Francisco are being reminded that elections have consequences, and district attorneys are elected.
Brent E. Zepke is an attorney, arbitrator and author who lives in Santa Barbara. His website is OneheartTwoLivescom.wordpress.com. Formerly, he taught law and business at six universities and numerous professional conferences. He is the author of six books: “One Heart-Two Lives,” “Legal Guide to Human Resources,” “Business Statistics,” “Labor Law,” “Products and the Consumer” and “Law for Non-Lawyers.”