From http://www.legalinsurrection.com by Andrew Branca, February 23, 2014
Race has been a major element in many of the more prominent self-defense cases we’ve covered in recent months.
Both the George Zimmerman and Michael Dunn cases involved a white man shooting and killing a black teen, with both arguing the shootings were justified self-defense (Zimmerman successfully, Dunn temporarily so).
The Marissa Alexander case involved a black woman shooting at a black man and his two black children, but the severity of her 20-year prison sentence was attributed by many to her minority race (especially in the aftermath of the Zimmerman acquittal).
Within weeks, however, we’ll be live-covering a self-defense trial in which the racial paradigm has been flipped: the trial of Joseph Walker, a black New Jersey police officer charged with first degree murder for the road-rage fueled shooting death of the white (and apparently unarmed) victim Joseph Dale Harvey Jr.
We first covered this case back in August, in the immediate aftermath of the Zimmerman trial and not long after the June 8 shooting had taken place: “NJ Cop Faces 1st Degree Murder — should have followed Law of Self Defense.”
The facts at that time were in some important respects vague, and of course they were sourced from media reports, which alone makes them of questionable reliability. Since then some additional details have emerged from the Walker camp which presents his actions in a more favorable light. Given the source, of course, these can hardly be deemed unbiased.
The “Facts” of the Case As Currently Understood
Both sides agree that the June 8 shooting flowed from a perceived traffic offense that grew into road rage and from there to a death.
Both men were waiting to turn at the same intersection, essentially beside each other, Harvey in a green Honda Accord with a single passenger (Adam Pidel), and Walker in a Kia minivan with his wife and three small children. It appears that Harvey was in the left lane, and Walker in the right. When the light changed to green, Walker made a left turn across the front of Harvey’s vehicle. Harvey was forced to turn his Honda onto the shoulder of the road to avoid a collision. This, apparently, enraged him, and induced him to pursue Walker’s minivan.
The next set of details get less clear. Now driving side-by-side, the two vehicles took turns swerving at each other, almost colliding several times. (Or perhaps Harvey was aggressively swerving at Walker, Walker was swerving away and then necessarily turning back onto the roadway — an act that would look much as if he were swerving back at Harvey?)
At some time during this altercation, Walker purportedly showed Harvey his police officer’s badge, and perhaps even his pistol, a Glock in .45ACP.
In one report, Harvey threw an object, purportedly a bottle, that struck Walker’s minivan, after which Walker pulled over and exited the vehicle to check for damage. Whatever Walker’s reason for pulling over, Harvey chose do so so as well, a hundred or so feet further up the roadway.
When he stopped, Harvey exited his vehicle and began walking towards Walker. According to Walker’s narrative of events, Harvey’s demeanor was clearly combative He was swearing at Walker, calling both he and his wife the “n-word.” Seeing Walker’s upheld badge, Harvey is claimed by Walker’s lawyers to have said, “(Expletive) you. I don’t care if you’re a police officer, you’re gonna die tonight.”
Unarmed Disparity of Force? Demonstrable Racial Animus?
It should be noted that Harvey, at almost 300 pounds, was considerably larger than Walker.
Also, publicly released photos of Harvey have shown him wearing clothing with the label “SKINS” prominently displayed. It’s unclear what that refers to, but it might be an Ultimate Fighting Championship related shirt.
If there is any evidence of Harvey’s involvement in UFC, a key issue to keep an eye on will be whether and to what extent Harvey’s reputation in the community and specific past acts may be admissible to show either that he was more likely to have been the aggressor or to justify Walker’s reasonable fear of deadly harm, both to himself and his family.
Importantly, there’s also some dispute as to the distance at which Walker shot Harvey, with some accounts claiming Harvey was still tens of feet away when shot and others claiming that Walker did not shoot until Harvey was almost within contact distance (and well within the 21-foot “danger zone” of the Tueller drill). It appears that Harvey was unarmed as he approached Walker, and if so, would have been unable to present an imminent threat until he had come within closing distance.
Maryland: Very Much a Duty-to-Retreat State
A key question will center on the fact that Maryland is very much a duty-to-retreat state. Under these facts it seems odd that as the unarmed Harvey approached, Walker did not simply step back into his minivan, place it in reverse, and back out of the situation.
It is true, of course, that Harvey might have responded by regaining his own vehicle and again pursuing Walker — but in the absence of retreat being demonstrably ineffective, Walker would be obliged to take advantage of an apparently safe avenue of retreat before resorting to the use of deadly force.
Harvey was reportedly struck by three bullets, one of which hit him high in the leg, likely severing the femoral artery. He was pronounced dead upon arrival at the local hospital.
Walker Charged with First Degree Murder, Weapons Offenses, out on $1 Million Bail
Walker was initially charged with second degree murder, but this charge was bumped to first degree murder, for which the greater charge was approved by the grand jury. If found guilty of first degree murder under Maryland’s § 2-201. Murder in the first degree he faces a sentence of 35 years to life.
Walker was also charged with two counts of using a handgun while committing a felony under Maryland’s § 4-204. Use of handgun or antique firearm in commission of crime, which carries a mandatory minimum sentence of 5 years. Walker is currently awaiting trial on $1 million bail, and has been suspended from his job without pay for the duration.
The trial is scheduled to begin May 21, and between now and then we here at Legal Insurrection will post up occasional pieces setting out the current state of Maryland self-defense law and how it is likely to apply to this case.
Maryland Self-Defense Law Almost Entirely Based on Court Decisions, Not Statutes
It is notable that Maryland is one of the minority of states that effectively has no self-defense statutes. There is a statute for civil immunity for defense of dwelling or place of work, and another covering battered spouse syndrome, but that’s about it.
Instead, Maryland’s embodiment of the Five Principles of the Law of Self Defense must be found in case law (court decisions). A recent statement of MD’s law of deadly-force self-defense can be found in Wilson v. Maryland, 7 A.3d 197 (MD, Ct. Spec. App. 2010):
We have summarized the elements necessary to justify a homicide, other than felony murder, on the basis of self-defense in the following terms:
(1) The accused must have had reasonable grounds[5th Principle] to believe himself in apparent imminent or immediate [2nd Principle] danger of death or serious bodily harm from his assailant or potential assailant;
(2) The accused must have in fact believed himself in this danger; [5th Principle]
(3) The accused claiming the right of self defense must not have been the aggressor or provoked the conflict [1st Principle]; and
(4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded. [3rd Principle]
and, in addition:
It is the duty of the defendant to retreat or avoid danger if the means to do so are within his power and consistent with his safety; but if the peril is so imminent that he cannot safely retreat, he has a right to stand his ground and defend himself. [4th Principle]
Given the paucity of statutory authority to look at in this case — as was so richly available in the George Zimmerman, Michael Dunn, and even Marissa Alexander trials — you can count on Legal Insurrection to dig through the case law to find the relative law to apply to this case.
So, keep your eyes on Legal Insurrection for continued coverage of the Joseph Walker case, pre-trial, during the trial, and post-verdict.