Recently, an individual posted a question about a “clear case of self-defense” on the question-and-answer website Quora. After examining posts in gun groups on Facebook and elsewhere, I’ve determined that some individuals believe there is a general consensus that there is such a thing as a “clear case of self-defense.” Perhaps there is, but it doesn’t mean an assertion of self-defense won’t be meticulously investigated and possibly declared an act a prosecutor could charge as a felony. That’s especially true when there is evidence of a prior relationship between the parties involved.
Nowhere to Run
In many jurisdictions, the default presumption by law enforcement seems to be that any shooting is not self-defense. Consider, for example, the case of Roberta Shaffer. In Commonwealth v. Shaffer, the Supreme Court of Massachusetts held that one assaulted in his or her own home does not have an unlimited right to react with deadly force without any attempt to retreat. In other words, if someone comes into your home intent on harming you, you must retreat.
On the morning of Dec. 16, 1971, Roberta Shaffer was having breakfast with her fiance, John Ferruzzo, when an argument ensued. At one point, Ferruzzo rose, saying, “Never mind. I’ll take care of you right now.” She threw a cup of tea at him and ran downstairs to the basement playroom, where the children were having breakfast and watching television.
In Commonwealth v. Shaffer, the Supreme Court of Massachusetts held that one assaulted in his or her own home does not have an unlimited right to react with deadly force without any attempt to retreat.
Shortly thereafter, Ferruzzo opened the door at the top of the basement stairs and said, “If you don’t come up these stairs, I’ll come down and kill you and the kids.” Shaffer had been severely beaten by her fiance on several occasions. She started to telephone the police but hung up when Ferruzzo said he would leave the home. Instead, he returned to the top of the stairs, at which time Shaffer took a .22-caliber rifle from a rack on the wall and loaded it. She again started to telephone the police. This time, Ferruzzo hurried down the stairs. She fired a fatal shot. More than five minutes elapsed from the time Shaffer went to the basement to when the shooting took place.
Shaffer was in her basement, a place from which retreat might have been impossible. Ferruzzo threatened to kill not only her but also her children. She was acting under a dual death threat. She tried to call the police, but when circumstances changed, she opted to protect her children. She loaded a rifle, and when Ferruzzo started back down the stairs, fearing for multiple lives, Shaffer fired one shot from a .22 and killed him. A “clear case of self-defense,” right?
A Massachusetts jury convicted Shaffer of manslaughter. She requested the state’s Supreme Judicial Court to adopt the rule in the majority of other states that when a person is in his or her home, he or she does not have to retreat from a deadly threat. In 1975, the court had this to say when reviewing the case:
The defendant asks us in this case to adopt the majority rule that one assaulted in his own home need not retreat before resorting to the use of deadly force. This has never been the law of the Commonwealth, and we see no reason to adopt it now. We prefer instead to follow our long-established rule that the right to use deadly force by way of self-defense is not available to one threatened until he has availed himself of all reasonable and proper means in the circumstance to avoid combat, and hold that this rule has equal application to one assaulted in his own home.
Indeed, other recent cases suggest that the default, even in more conservative jurisdictions such as Ohio, may be to prosecute the shooter first and let the appeals courts sort out the facts later.
Paul Claren, 71 years old, had had frequent verbal conflicts with a younger neighbor. Claren was no saint himself, and even though he had prior convictions, he had obtained a replica 1858 Army .44-caliber black powder revolver that he kept for personal protection. Claren had told officers patrolling in his area that his 21-year-old neighbor, Bryan Galliher, was using drugs and had threatened him. Claren also expressed to multiple officers that Galliher was harassing him, and he informed the local mail carrier that he was armed with a pistol and would use it if threatened. The officers counseled Galliher to stay away from Claren. He didn’t take heed of their advice.
A few days later, on Aug. 18, 2016, Galliher came at Claren within the fenced confines of his front yard. Claren drew his gun when his neighbor was 10 feet away and issued verbal commands to get back. Galliher continued forward and said he was going to assault Claren. He even tried to grab Claren’s revolver. Claren shot Galliher once in the chest, and he died at the scene. Police arrested Claren and charged him with aggravated murder and possession of a weapon.
Claren drew his gun when his neighbor was 10 feet away and issued verbal commands to get back. Galliher continued forward and said he was going to assault Claren.
The case went to a jury trial, but the court refused to give a Castle Doctrine instruction for self-defense. Under Ohio law, a presumption of self-defense arises if an assailant “unlawfully and without privilege to do so entered the residence or vehicle occupied by the person using the defensive force.” The state convicted Claren of aggravated murder, though the Ohio Court of Appeals reversed the conviction because evidence supported the jury instruction. Incredibly, Claren’s lawyer had failed to object to the error in the instructions.
Ending a Nightmare
A similar instance involving a battered wife occurred in Texas in June 2018. Jasmine Moreno had called the police several times over beatings, strangulations and other abuse at the hands of her husband Cisco. District Attorney Allison Palmer had urged Jasmine to prosecute, but she refused. When her husband brought these same violent acts to bear upon her in an attempt to force her into non-consensual sex with additional partners, Jasmine seized his single-action revolver and shot him multiple times. She confessed to the shooting and to the fact that she had to cock and fire the gun multiple times. Jasmine gave her confession immediately after the shooting — likely without counsel or time to process what had happened.
Palmer, who insisted that Moreno prosecute her husband prior to the shooting, filed murder charges, in large part because Moreno’s cocking of the pistol and recocking it after firing indicated cool deliberation. Moreno’s pro bono attorneys filed a motion to disqualify the prosecutor. Legal rules prevent an attorney who is a necessary witness from taking a role in a case. Because Palmer was a necessary witness in Jasmine’s defense, the judge disqualified her and her entire DA office. When the Texas attorney general reviewed the case, he dismissed all charges against the woman.
Moreno’s pro bono attorneys filed a motion to disqualify the prosecutor. Legal rules prevent an attorney who is a necessary witness from taking a role in a case.
State District Attorney Geoff Barr, the attorney from the state’s attorney general’s office prosecuting Jasmine, even saw this to be an apparent case of self-defense.
“Cisco Moreno repeatedly physically assaulted the Defendant in their bedroom by punching her about her head and face and by strangling her in an attempt to force her to engage in a sexual threesome with another house guest against her will,” he declared. “This assaultive behavior, including strangulation, had been repeated in the relationship, which is evidenced by three separate prior reports to police. Additionally, charges were filed against Cisco Moreno on behalf of the Defendant for assaultive conduct that occurred just a few months before his death.”
“A defendant’s use of deadly force is not a criminal offense if the defendant reasonably believed the degree of force used was immediately necessary to protect the defendant against another’s use or attempted use of unlawful deadly force,” he added. “Hands, used in strangulation, constitute a deadly weapon and, therefore, constitute deadly force.”
Sorting It All Out
These cases illustrate three key points. First, self-defense between people who know one another is rarely “clear.” When there is a prior relationship, good or bad, the existence of that relationship factors into the decision to prosecute. In fact, that connection is almost always the tipping point. A person is far more likely to avoid charges when a stranger breaks in than when there is a prior relationship between the parties.
The second point relates to legal representation. At Claren’s trial, his attorney was ineffective because he did not raise an objection to the jury instructions. That left “plain error” as Claren’s only hope for an appeal. Plain error rarely results in an overturned conviction; in fact, the first appeal was dismissed because the case had not been properly handled by the trial judge. Thus, the quality of representation (and the ability to pay for that representation) is a key factor in obtaining a good outcome. While public defenders work long hours and strive to win their cases, they do not have the luxury of being able to devote countless hours to each client’s defense. It is critical to locate a top self-defense lawyer who can dedicate the necessary man-hours to your case.
While public defenders work long hours and strive to win their cases, they do not have the luxury of being able to devote countless hours to each client’s defense.
Third, the statements an individual makes in the days before a shooting — as in Paul Claren’s case — and what is said in the immediate aftermath — as in Jasmine Moreno’s case — are often key facts that determine whether an individual is prosecuted. After a shooting, it’s too late to take back things said. That is why attorneys routinely tell people not to say or post anything on social media that could be interpreted as “trigger-happy” or generally bellicose, violent or unreasonable.
In the wake of a shooting, having an attorney isn’t just important … it’s imperative. No one should ever go into a police interview room alone. An attorney should always be there to protect your rights. This is the reality for any self-defense incident, but as soon as you add the complicating factor of an assailant who was known to you, that competent legal representation becomes even more essential.
Self-Defense Cases in History
■ Shot to Death After Quarrel Over a Fence
Los Angeles Herald, California, Aug. 8, 1909
On Aug. 7, 1909, 53-year-old Clinton Burris shot and killed 28-year-old Irving G. Hobart, a Spanish-American War veteran, at his home in Lamanda Park, California. The neighbors had been feuding for three weeks over Hobart’s horses taking chunks out of Burris’ vegetable garden and nibbling away at his flowers. The quarrel came to a head when an enraged Hobart charged Burris with a hammer in each hand. Burris dodged Hobart’s numerous blows before he drew a revolver from his pocket and shot his assailant once in the chest. Burris immediately went into his home and telephoned the local deputy constable to report the killing.
■ Quarrel Over Hog Results in Killing
The Lakeland Evening Telegram, Florida, July 17, 1913
In Plant City, Florida, on July 17, 1913, B.B. Beaty shot and killed his neighbor C.M. Williams in a quarrel over a razorback hog. The two men had gone to court over the hog that March. Despite a judge dismissing the case, bad blood still existed. On that fatal day, Williams struck Beaty with the butt end of his revolver, causing Beaty to draw his pistol and shoot him. During the scuffle, Beaty also suffered a serious wound to his thigh. Police later charged Beaty with first-degree murder, but he claimed self-defense.
■ Wife Claims Self-Defense
The State-Line Herald, North Lemmon, North Dakota, Oct. 22, 1909
In St. Paul, Minnesota, on Oct. 21, 1909, a 35-year-old physician named Dr. George M. Doran was shot by his wife in the abdomen. He was taken to St. Joseph Hospital where, after a two-hour operation, doctors managed to remove the bullet and save his life. Mrs. Doran claimed that she had shot her husband in self-defense after he had knocked her down with his fist. On Oct. 29, George Doran arrived to court still suffering from his wounds and told the judge he would not press charges against his wife. The judge dismissed the case.
— Frank Jastrzembski, Associate Editor