Yesterday, a Jefferson Parish Jury reached a verdict in this highly publicized case, sentencing the shooter to 30 years in prison for manslaughter. Take a moment to read this article.
I believe that the court reached the correct result in this case under our laws, at least based on the information I have. I have only read the news articles. I have not pulled the court records or anything. It will be interesting to see if this is appealed and reported as caselaw, in which case it may be very useful indeed.
But for the time being, here is what I believe happened, legally speaking. For the purposes of this discussion, I am assuming that the law was applied properly, and that neither the judge nor the attorneys made a grievous error of any kind.
As you can see from the article, “the trial showed [defendant Gasser] passed up many opportunities to defuse the situation by pulling off the road, calling 911 or even rolling up his car window.” This may, of course, cause one with any familiarity with Louisiana self-defense laws to ask: “but wait, I thought we had no duty to retreat!”
It does seem like the court imposed a duty to retreat on Gasser in determining whether or not he held the reasonable fear for his life that would justify a homicide. But why? After all, the justifiable homicide statute says, among other things, that “no finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.”
I believe it is the previous statement in that same statute that decided this case against Gasser (or, if it did not, could have anyway, which is what matters for the purposes of this discussion): “A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.”
I think this “engaged in unlawful activity” language likely vitiated Gasser’s “no duty to retreat” protections. Gasser apparently made a statement to police that he became irritated and set off after McKnight and they continued a “tit-for-tat” argument arguing as they drove. So it seems like Gasser, in engaging in a rolling car chase argument, was probably doing at least something unlawful during the course of the encounter. This was likely enough to remove his protections under the statute and allow the jury to consider his opportunities to retreat, which were many, in determining whether or not he held a reasonable fear. Being allowed to consider those facts probably made all the difference, as someone who truly feels threatened would take an easy opportunity to escape if presented with one, or would call the police.
I don’t think that a determination of who was the aggressor made the difference here, despite how much it was talked about in previous news articles, though it may have. I base this pretty much solely on the fact that they don’t mention it in this article with specificity, and don’t seem to discuss the law or trial in a way that would necessarily be consistent with the outcome relying on that determination. But, for the sake of this article, let’s run through some analysis of how it could have come into play. In Louisiana, the aggressor cannot claim self-defense at all unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. In this article, they were discussing whether or not his fear was reasonable, not whether he had the right to self-defense whatsoever, leading me to believe this was not the core issue.
However, it could have been important. The jury may have been considering his duty to retreat in terms of trying to decide if he was the aggressor or not. Had they found him to be the aggressor at any point, they would have to determine whether or not he had, prior to the shooting, withdrawn from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. This requirement of withdrawal from the conflict is, essentially, a duty to retreat. As I state in my classes, an aggressor does have a duty to retreat (withdraw) before he can claim self-defense.
So again, whether or not you look at it as “unlawful activity” or Gasser’s status as the aggressor that provided a duty to retreat, it seems like the court got this one right. It is a great example of why I call my operation “PaciFIST Firearms” and why I have my PaciFIST Principles. Even if the law does not impose a duty to retreat on you, if retreat is the better option (as it seemed to be in this case) retreat is a good idea. Even if McKnight started the altercation, this result goes to show you why taking the bait and choosing to engage further in an altercation, even if you didn’t “start it,” is never a good idea.
Piece be with you,
Everett C. Baudean
PaciFIST Firearms LLC