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Black Homeowner's Claim of Self-Defense Rejected in Fatal Shooting(NY)
New York Law Journal ^ | 25 May, 2010 | Daniel Wise

Posted on 05/25/2010 4:58:51 AM PDT by marktwain

An appeals court in Brooklyn on Friday upheld the conviction for manslaughter and gun possession of a Long Island, N.Y., black man who shot a white teenager to death in a confrontation in front of the man's home.

John H. White was sentenced to two to four years in prison for killing the teen, Daniel Cicciaro Jr., 17, who arrived at White's house along with four other teens in two cars and challenged White's son Aaron, 19, to fight as the group shouted racial epithets at the son and father, both of whom were armed.

A unanimous panel of the Appellate Division, 2nd Department, upheld the jury's rejection of White's defense that the shooting was justified because he believed he was defending his family from a "lynch mob."

The appellate panel found that the jury's rejection of the defense was not against the weight of the evidence. Justice Randall T. Eng writing for the panel noted that White testified that he had not observed any weapons in the hands of the teens, and Aaron had testified that Cicciaro had challenged him to come into the street to fight.

"The victim's clearly expressed desire to fight Aaron outside undercuts the claim that the defendant reasonably believed the youths were going to attempt to enter his home," Eng wrote in People v. White, 2662/06.

In addition, Eng wrote, White could have called 911 for police assistance, a "clear alternative" to confronting the youths who had gathered outside his home.

Justices Steven W. Fisher, Daniel D. Angiolillo and Plummer E. Lott joined the decision.

White has been free on $200,000 bail pending the appeal. Once a surrender date is set by Suffolk County Court Judge Barbara Kahn she will be required to order him to begin serving his prison term unless a stay is issued by the New York Court of Appeals.

White's appellate lawyer, Richard E. Mischel, said he had asked the court to continue White's bail until it decides his application for leave to appeal.

Mischel said that "the argument before the 2nd Department seemed to go well, and we are hopeful that the court will grant our application to take the case to the next level."

The Aug. 9, 2006, killing inflamed racial tensions in Miller Place, a predominately white community on eastern Long Island where the White home was located.

The prosecution and defense presented "sharply different" versions of how the confrontation developed, the circumstances in which the fatal shot was fired and the role of race in the shooting, Eng wrote.

White, testifying in his defense, said he was awakened around 11 p.m. when Aaron told him, with "absolute terror" in his voice, "these people are coming to try to kill me."

All four of Cicciaro's friends denied at the trial that they had used racial epithets during the confrontation in front of the White home, but Eng noted that "in a tape-recorded 911 call, one of the youths can be heard shouting racial slurs as he vows to avenge the victim."

At the conclusion of the 14-page opinion, Eng expressed some sympathy for White's predicament, writing "the law does not require that we turn a blind eye to human emotion, and we can appreciate that a parent in the defendant's situation would be concerned for the welfare of his son, and feel anger as the situation began to unfold."

He concluded, however, that White "took the life of a 17-year-old, shooting him at close range under circumstances which do not amount to legal justification."

At White's sentencing, according to The New York Times, Judge Kahn went out of her way to describe Cicciaro's four companions as "moral accessories" in the death of their friend. "They did not hold the gun, they did not pull the trigger, but they share responsibility," she was quoted as saying.

CONVICTION ON GUN CHARGE

The 2nd Department also upheld White's conviction for possession of a weapon outside his home. White had argued that his possession of a loaded .32 caliber Beretta pistol in his driveway constituted possession within his home.

Possession of an unlicensed loaded firearm outside of the home was at the time of the sentencing a Class D felony punishable by a maximum term of 2 1/3 to seven years in prison. Possession of a loaded gun inside one's home is a misdemeanor, carrying a top punishment of one year in jail.

The sentences all ran concurrently. White could have been sentenced to up to 15 years in prison for second-degree manslaughter.

Eng found unavailing White's argument that possession of the gun in his driveway was tantamount to possessing it in his home. The court's precedents have narrowly construed the word "home" in Penal Law §70.02[1][b], the justice wrote, as reflecting a legislative judgment that possession of a gun in one's home is "less reprehensible that possession for other purposes" (quoting from People v. Powell, 54 NY2d 524).

White's possession of a gun at the "edge of his driveway, inches away from the public street," Eng concluded, does not warrant the same concerns for privacy as would possession in his home.

In asking for permission to take the case to the Court of Appeals, Mischel said he would press a legal point that took up a large portion of his 50-minute oral argument on Oct. 23.

The defense argued that it only belatedly received a tip that Cicciaro had used racial slurs while in the showroom of a Ford dealership only two weeks before the incident at the White home. Had the prosecution provided timely notice of the incident, which had been investigated by the police, the defense could have used the information to test the testimony of Cicciaro's four friends that there was no racial component to the confrontation, Mischel said.

Suffolk County Assistant District Attorney Thomas C. Costello, who argued the appeal for the prosecution, said the panel had conducted an "exhaustive review" of White's legal claims and reached a result "that comports with the law on each point."

Lisa Marlow, also of Mischel & Horn, worked on White's brief; Suffolk Assistant District Attorney Marion M. Tang worked on the prosecution brief.


TOPICS: Crime/Corruption; Extended News; News/Current Events; US: New York
KEYWORDS: banglist; defense; gun; ny
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Interesting update on this case.
1 posted on 05/25/2010 4:58:51 AM PDT by marktwain
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To: marktwain

I hope he goes to jail for longer than that.


2 posted on 05/25/2010 5:06:56 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: marktwain

Those are some really stupid kids. Yelling racial epithats to two armed black men. Perhaps according to the law this was the correct ruling, but in my mind, this shooting seems justified. If the father and son had walked inside, you know those kids would not have stopped.


3 posted on 05/25/2010 5:08:30 AM PDT by Old Teufel Hunden
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To: driftdiver

This was a 911 call, this man tried to use home invasion as his defense. He did not have to have a confrontation with this young boy.


4 posted on 05/25/2010 5:10:27 AM PDT by Paige ("All that is necessary for the triumph of evil is that good men do nothing," Edmund Burke)
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To: Paige

I think there was a racial component, this mans decision to shoot a white boy.

Why ON EARTH would you go outside and escalate this issue and shoot the kid?


5 posted on 05/25/2010 5:12:53 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: Old Teufel Hunden

‘but in my mind, this shooting seems justified”

Really? Where is the threat of great bodily harm or property?

Do you also support shooting people for cutting you off in traffic?


6 posted on 05/25/2010 5:14:14 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: Old Teufel Hunden
If the father and son had walked inside, you know those kids would not have stopped.

Clairvoyant much?

7 posted on 05/25/2010 5:17:04 AM PDT by mac_truck ( Aide toi et dieu t aidera)
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To: marktwain

Maybe its racial maybe it aint. I just know that if a bunch of young ‘hoodlums’ showed up like that & shouting epithets and taunts I would be real fearful too.


8 posted on 05/25/2010 5:19:50 AM PDT by valkyry1
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To: driftdiver

Don’t jump on me! I am only looking at the facts from what is presented in this case. I realize I could be wrong or don’t have all of the facts. I think we can both agree that these kids are stupid. The next thing is, were they criminal. I have to ask, why did they travel out to this kids house to challenge him to a fight. What else was said in the altercation? Did they convey threats?

I can tell you that if I had four punks outside my house harrassing me and not leaving I would definitely arm myself and call the police. What happens next depends on how the situation unfolds. How long did it take the police to respond once he called 911?


9 posted on 05/25/2010 5:19:59 AM PDT by Old Teufel Hunden
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To: Old Teufel Hunden

I think you’re right. First, these kids were stupid enough to start something with someone who is armed (and they weren’t). That’s doing us a favor, removing such stupidity from the gene pool. Second, I believe in that situation the homeowner had a reasonable belief his life and the life of his son were in danger. Of course, I didn’t read the transcripts from the trial or anything, but at first blush it sounds reasonable.


10 posted on 05/25/2010 5:20:16 AM PDT by ThunderSleeps (obama out now! I'll keep my money, my guns, and my freedom - you can keep the change.)
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To: marktwain
shoulda called the cops...
11 posted on 05/25/2010 5:20:20 AM PDT by Chode (American Hedonist *DTOM* -ww- NO Pity for the LAZY)
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To: mac_truck
"Clairvoyant much?"

Don't need to be. Experience and common sense told me that.
12 posted on 05/25/2010 5:20:57 AM PDT by Old Teufel Hunden
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To: marktwain

Looks like stupidity on both sides.


13 posted on 05/25/2010 5:23:15 AM PDT by caver (Obama: Home of the Whopper)
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To: Chode
"shoulda called the cops..."

They mention in the article, the four kids were overheard on 911 tapes yelling racial epithats. Sounds like they did call the cops. From the article, it's hard to know what happened between then and when the cops got there. Something must have happened in order to escalate this.
14 posted on 05/25/2010 5:23:21 AM PDT by Old Teufel Hunden
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To: marktwain

One thing that I just thought of. I wonder how many on here are condemning this black homeowner also were defending the man in Houston Tx who went out of his home to his neighbor’s house and killed the two illegals robbing his neighbor. None of his property or life was at stake.

I’m just saying....


15 posted on 05/25/2010 5:26:16 AM PDT by Old Teufel Hunden
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To: caver
"Looks like stupidity on both sides."

Very well could be...
16 posted on 05/25/2010 5:27:05 AM PDT by Old Teufel Hunden
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To: Old Teufel Hunden

How do you know the kids would not have stopped. And this was not a JUSTIFIABLE shooting. This was not a home invasion and when the son came in claiming someone wanted him dead - the Father should have called “911”.

Sorry, this man has no right to take the life of the 17 year old.


17 posted on 05/25/2010 5:30:16 AM PDT by Paige ("All that is necessary for the triumph of evil is that good men do nothing," Edmund Burke)
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To: driftdiver

I wonder how you would react to four thugs standing in your yard threating your son. Challenging a man with a gun shows extraordinary threat and stupidity. In the end all these punks had to do was leave when an armed homeowner showed that he was willing to protect his family and property.


18 posted on 05/25/2010 5:30:37 AM PDT by ontap
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To: Old Teufel Hunden

That was my immediate thought as well after I read the first comment criticizing the homeowner.

You thing you can be sure of is that if the homeowner had been a cop, there would have never been a trial.


19 posted on 05/25/2010 5:36:01 AM PDT by SeaHawkFan
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To: Old Teufel Hunden

The main thing I see wrong is the homeowner was way out at the end of his property.

If he had stayed on or very near his porch and they had advanced within inches of him, as stated in the report and shouting threats, he would have a better chance of it being a legal shooting. Escpecially at night, at least those are the rules under the Castle Doctrine in Texas.

However, with him being in NY there are probably rules that you have to retreat from a threat.


20 posted on 05/25/2010 5:36:10 AM PDT by Max_850
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To: marktwain

“A unanimous panel of the Appellate Division, 2nd Department, upheld the jury’s rejection of White’s defense that the shooting was justified because he believed he was defending his family from a “lynch mob.””

I can see that. There are LOTS of lynching on Long Island. Just once I would like to see a black guy get in trouble and NOT play the race card.


21 posted on 05/25/2010 5:36:35 AM PDT by Hacklehead (Liberalism is the art of taking what works, breaking it, and then blaming conservatives.)
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To: marktwain

These kids were just plain stupid.

The father was also stupid. He should have called 911.

As long as the kids on the outside were not damaging his property he really had no right to shoot them.

Dumb moves lead to disastrous results. In this case a dead kid and a father who needs to serve some time.


22 posted on 05/25/2010 5:36:40 AM PDT by Venturer
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To: driftdiver

He thought his “race shield” was license to do just that.


23 posted on 05/25/2010 5:38:25 AM PDT by MrB (The difference between a (de)humanist and a Satanist is that the latter knows who he's working for.)
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To: Old Teufel Hunden
They mention in the article, the four kids were overheard on 911 tapes yelling racial epithats.

Let's get our facts straight, shall we? The article actually says: "in a tape-recorded 911 call, one of the youths can be heard shouting racial slurs as he vows to avenge the victim." Which means, if one were to read it, that ONE of the youths shouted racial slurs AFTER the unarmed teen was killed. The boys came to the house asking specifically for the son to come outside and fight one of them. Sounds like a gauntlet-throw to come duke it out one-on-one over a previous encounter, and the angry mob of three friends were there to egg it on. Note that they were outside "inches away from the public street" so they weren't trying to break into the house, and they were unarmed, while the father and son were armed. It was a war of words until the father shot.

24 posted on 05/25/2010 5:39:30 AM PDT by shezza (Blessed is the nation whose God is the Lord.)
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To: driftdiver
I hope he goes to jail for longer than that.

I hope he wins his appeal. The four thugs were looking for trouble. They found it.

25 posted on 05/25/2010 5:40:37 AM PDT by Grizzled Bear (Does not play well with others.)
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To: driftdiver
Why ON EARTH would you go outside and escalate this issue and shoot the kid?

He should have gotten rid of his nasty guns years ago. Then when thugs threaten him, he could hide under the bed and hope the police arrive in time to protect him. /SARC

26 posted on 05/25/2010 5:43:01 AM PDT by Grizzled Bear (Does not play well with others.)
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To: Old Teufel Hunden

“why did they travel out to this kids house to challenge him to a fight”

Good question, however challenging someone to a fight does not warrant use of deadly force.


27 posted on 05/25/2010 5:43:21 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: Paige
"the Father should have called “911”."

According to the article, it sounds like they did call 911. Question for you, how did you feel about the Houston Texan man shooting and killing the two illegals robbing his next door neighbor? Was that justified?
28 posted on 05/25/2010 5:44:51 AM PDT by Old Teufel Hunden
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To: Old Teufel Hunden

Did this idiot kid get a Darwin Award?

He should have got the kids to come inside, then plugged ‘em.


29 posted on 05/25/2010 5:45:13 AM PDT by Colvin (Proud Owner '66 Binder PU, '66 Binder Travelall,)
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To: Old Teufel Hunden

The 911 call was after he shot the man. The friend was vowing to “avenge the victim.”


30 posted on 05/25/2010 5:45:57 AM PDT by FreedomOfExpression
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To: SeaHawkFan
"if the homeowner had been a cop, there would have never been a trial."

You got that right. Maybe a few days without pay and desk work but thats about it.
31 posted on 05/25/2010 5:46:01 AM PDT by Old Teufel Hunden
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To: Old Teufel Hunden
They mention in the article, the four kids were overheard on 911 tapes yelling racial epithats. Sounds like they did call the cops. From the article, it's hard to know what happened between then and when the cops got there. Something must have happened in order to escalate this.

Read it again, It says the 911 call was made after the shooting, not before. The guy was in the wrong. Staying in the house and calling 911 would have been the way to go. If they attempted to enter then you shoot, but not out on the street. The only thing I disagree on is the possession law, which I think is wrong. As far as the shooting goes the facts, as given in the article, do not justify the guy shooting the kid. Running your mouth isn't a life threatening offense.

32 posted on 05/25/2010 5:48:39 AM PDT by calex59
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To: shezza
The article actually says: "in a tape-recorded 911 call, one of the youths can be heard shouting racial slurs as he vows to avenge the victim." Which means, if one were to read it, that ONE of the youths shouted racial slurs AFTER the unarmed teen was killed.

For some reason, that doesn't seem particularly bright. If you just saw someone shoot your buddy, would you stand there and shout racist slurs at them?

33 posted on 05/25/2010 5:48:46 AM PDT by Grizzled Bear (Does not play well with others.)
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To: shezza
I can tell you that if I had four punks outside my house harassing me and not leaving I would definitely arm myself and call the police.

That would be prudent. What happened in this instance sounds totally different.
They called police after shooting the young man. And if he was so concerned for his safety, why was he "inches away from the public street" as the article also stated?

34 posted on 05/25/2010 5:48:47 AM PDT by FreedomOfExpression
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To: shezza

Sorry, I missed that. Did not read it intently enough and pick up the part about avenging the victim. He should have armed himself and called the cops immediately. That’s where he screwed up. I can tell you this, a bunch of jutes out in the front of my house threatening my son is something I would take seriously. I would not fluff it off like you are appearing to do. The homeowner screwed up by not calling the cops.


35 posted on 05/25/2010 5:49:03 AM PDT by Old Teufel Hunden
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To: Grizzled Bear

Thats a fairly illogical response. These kids weren’t attacking the house, they weren’t a threat except to this guys ego.


36 posted on 05/25/2010 5:50:52 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: driftdiver
"Good question, however challenging someone to a fight does not warrant use of deadly force."

You are correct, but I can certainly see them feeling threatened by having these "jutes" out in front of their house. In this day and age, often fights turn into deadly force with knives etc... You have four teenagers (sound like older teens, 17 etc..) threatening and challenging your son to a fight, it's serious. This is not the 50's anymore. Nowadays, these type of things turn deadly..
37 posted on 05/25/2010 5:51:41 AM PDT by Old Teufel Hunden
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To: Old Teufel Hunden

‘but I can certainly see them feeling threatened by having these “jutes” out in front of their house. “

Sure thats why an appropriate response would be to call 911 and then are yourself in case the threat was escalated.

“You have four teenagers (sound like older teens, 17 etc..) threatening and challenging your son to a fight, it’s serious. “

Sure, a serious ass whoopin. Don’t know the law there but here in Florida “I’m gonna kick your butt” is not justification for use of deadly force. Especially when those kids did not have any weapons.

These kids were not in the house and were not attempting to get into the house.


38 posted on 05/25/2010 5:55:42 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: calex59
"Read it again, It says the 911 call was made after the shooting, not before."

It doesn't say that exactly. It says on the 911 call one of the kids can be heard yelling racial epithats and vowing to avenge the victim. I didn't pick up on the vowing to avenge the victim part in my first read. My bad. However, 4 teenage youths I don't know out in front of my house and challenging my son to a fight and who knows what else they were saying, I would feel threatened and I would arm myself. He screwed up by shooting them in the street and not calling the cops first. These 4 kids can share some of the blame for the shooting also.
39 posted on 05/25/2010 5:56:16 AM PDT by Old Teufel Hunden
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To: driftdiver
"Especially when those kids did not have any weapons."

Put yourself in the homeowners position. He doesn't know they don't have any weapons. He doesn't know they don't have knives are even small pistols hidden away on their person somewhere. I doubt they would announce these things during the altercation. If I brandished a firearm (as he most assuredly did) and they didn't back off, thats a little scary in of itself. That tells me that these kids are really stupid (apparently they were) or they are in fact armed.

I agree he should have called 911. But these kids created a serious situation and they are responsible for their friends death also. I don't trust a bunch of unknown 17 year olds aren't armed anymore. I wouldn't assume that.
40 posted on 05/25/2010 6:00:20 AM PDT by Old Teufel Hunden
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To: Old Teufel Hunden

In “TEXAS” the shooting of the “ILLEGALS” during a home invastion was “JUSTIFIABLE”.

Read the state laws, each State is different.


41 posted on 05/25/2010 6:00:21 AM PDT by Paige ("All that is necessary for the triumph of evil is that good men do nothing," Edmund Burke)
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To: Old Teufel Hunden

You can’t shoot somebody standing in a public street unless he’s armed and threatening you. The fact that you disapprove of the WORDS coming out of his mouth, is no justification. Had the man acted properly and they came onto his property after them, it would be different.

You find it acceptable because you’re offended by the words.
Name calling is not a life threatening attack. If the home owner believed an attack was coming by an armed group, why would he expose himself to attack at the end of the driveway? I would have defended from inside the house, where I could return fire from cover.


42 posted on 05/25/2010 6:05:55 AM PDT by Robbin (If Sarah isn’t welcome, I’m not welcome, it’s just that simple…)
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To: Old Teufel Hunden

The charge of manslaughter seems to fit the facts perfectly, imo. Seems to be the very definition of manslaughter in the U.S.


43 posted on 05/25/2010 6:07:17 AM PDT by ltc8k6
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To: Old Teufel Hunden

“Put yourself in the homeowners position. He doesn’t know they don’t have any weapons. He doesn’t know they don’t have knives are even small pistols hidden away on their person somewhere”

Then how do you justify going out to the edge of the property to meet them? Why didn’t he call the cops ( maybe he was afraid they would shoot his dog)?


44 posted on 05/25/2010 6:08:08 AM PDT by Hacklehead (Liberalism is the art of taking what works, breaking it, and then blaming conservatives.)
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To: Old Teufel Hunden

Any threat could be eliminated/avoided by not going out to the street.

He took the life of a kid showing bad judgment but was not a threat.


45 posted on 05/25/2010 6:13:22 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: driftdiver

You can’t help but contrast this situation with the SEIU mob attack on the banker’s home in DC...


46 posted on 05/25/2010 6:14:09 AM PDT by MrB (The difference between a (de)humanist and a Satanist is that the latter knows who he's working for.)
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To: Robbin
"You find it acceptable because you’re offended by the words."

I never said that. Don't assume. I'm not offended by anything. I'm trying to analyse what went on. The article was not well written as it did not present all the facts and make you assume certain things that happened.

Four teens who I don't know out in front of my house issuing threats and challenging my son to a fight would concern me. Just by these four unknown kids showing up in front of my house is threatening. He was wrong in the fact that he should have called the cops. If you would read my posts I've said this numerous times. What's never mentioned in there is what escalated this altercation? There had to be something.

As for why he would expose himself to attack at the end of the driveway. I don't know if you have ever been a part of something violent but people don't always think logically when exposed to violence or possible violence. Emotion and fear get all mixed together and you don't always think as clearly.
47 posted on 05/25/2010 6:16:27 AM PDT by Old Teufel Hunden
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To: Grizzled Bear
The four thugs were looking for trouble. They found it.

I agree. As I'm sure he now agrees in hindsight, the father should have called the police at the outset. But the fact remains that a mob descended on this man's home and threatened his son. Any reasonable person in this day and time should assume that such a group might be armed, and their refusal to back down in the face of armed resistance sent a clear signal that they indeed might have been.

Sad that it ended this way, but the kid chose his own path when he joined a mob and went to somebody's home. I would acquit in a New York minute...

48 posted on 05/25/2010 6:17:39 AM PDT by Always A Marine
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To: Hacklehead
He should have called the cops. Theres no doubt about that. I've said he screwed up on that a bunch of times in this thread. I will cut and paste what I said in another post about why he went to the edge of the property to meet them.

"As for why he would expose himself to attack at the end of the driveway. I don't know if you have ever been a part of something violent but people don't always think logically when exposed to violence or possible violence. Emotion and fear get all mixed together and you don't always think as clearly."
49 posted on 05/25/2010 6:19:18 AM PDT by Old Teufel Hunden
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To: driftdiver
"He took the life of a kid showing bad judgment but was not a threat."

He definitely showed bad judgement by not calling the police. I would not assume these kids were not a threat. I would have assumed the opposite. He didn't know if they were armed or not. All he knew was that there were four kids outside his home threatening his son. He didn't know if they were armed or not. It's easy to know this now after its all over.
50 posted on 05/25/2010 6:25:21 AM PDT by Old Teufel Hunden
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