Jeff Howes Compares Shoves to Wiffle Balls and Knives to Guns

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United States v. Chapman:

"If someone throws a Wiffle ball at you, are you allowed to pull out a .44 Magnum and blow their head off?" - Jeff Howes

Any reasonable person would answer "no" to that question because a wiffle ball is completely harmless. Three grown men, one of which has military training, and another showing that he will use force on you even if you have a knife out to deter him, are something any reasonable person would feel threatened by. Comparing a wiffle ball to a group of people circling up on someone and shoving him even after he pulled a knife hoping to deter them from further physicality, is not proportional at all. Nor is it appropriate to compare a Coast Rapid Response pocket-knife to a .44 magnum. This is a horrible analogy to use in voir dire to discuss proportionality. It is not proportional at all to what Jeremy Christian is accused of.

What's next? If someone flicks you on the forehead do you have the right to drop a nuclear bomb on them? Give me a break.

I'm not saying that Jeremy's response could not have been more proportional than it was, but it certainly was not proportional to this question.

Throwing a wiffle ball at someone is harassment. Circling up on someone and intimidating him is simple assault. In the 9th Circuit simple assault has been defined as, "either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm." United States v. Chapman, 528 F.3d at 1219-20 (quoting Unites States v. Dupree, 544 F.2d 1050, 1051 (9th. Cir. 1976)). Jeremy Christian had a reasonable apprehension of immediate bodily harm when three men circled up on him. Anyone would be intimidated by three strangers getting in their face like that.

The court elaborated in United States v. Acosta-Sierra, 690 F.3d 1111 (9th. Cir. 2011) that the victim of simple assault does not need to be put in actual danger. The law "recognizes the importance of protecting individuals from the mental disturbance of being put in reasonable apprehension of bodily harm...For this latter type of assault, one does not need to be put in actual danger...Even if one is only put in reasonable apprehension of imminent harm, the 'suffering is the same in the one case as in the other, and the breach of the peace is the same.'" (citations omitted). So, according to this one can commit the crime of simple assault by getting into someone's face and intimidating that person. Whether or not that person was orating in a racially insensitive matter is irrelevant. That only goes to motive and increases the likelihood that the three men got in his face to intentionally caused Jeremy Christian reasonable apprehension of harm.

Now, was Jeremy Christian defending himself? Most people use their hearts to answer this question and not their minds. The Acosta-Sierra court cited United States v. Urena, 659 F.3d 903 (9th. Cir. 2011) which addressed self defense in the context of excessive force by a law enforcement officer, "(1) a reasonable belief that the use of force was necessary to defend himself or another against the immediate use of unlawful force and (2) the use of no more force than was reasonably necessary in the circumstances." That second part is Jeremy's biggest challenge. To prove self defense I think he can show that some force from that last shove was necessary, but he is going to have a hard time defending the targeting of the throats. Most people, if they were going to use a weapon at all, probably would have gone for just enough of a flesh wound to allow them to escape. This is where some diminished capacity comes in. His mental state should lower this from a murder charge to manslaughter.

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