Display the handgun and deliver a warning

[c6601a]

I saw the following article about a 1996 shooting in NY where an off duty officer shot and killed a person swinging a baseball bat at his father's head: http://www.cnn.com/2012/01/19/justice/diguglielmo-new-york-deli-killing/index.html?hpt=hp_c2

The shooter was initially found guilty on the grounds that the dead person was using the bat to defend himself from 3 aggressors and was not actually swinging the bat at the time he was shot. The conviction was overturned in 2008 on the discovery of evidence that the police intimidated witnesses into changing their testimony from "he was swinging the bat at the old guy's head" to "he was backing up with bat raised in self defense" http://i2.cdn.turner.com/cnn/2011/images/12/26/people.v.diguglielmo.pdf

The NY supreme court overturned the acquittal and reinstated the conviction: http://i2.cdn.turner.com/cnn/2011/images/12/26/final.appeal.order.pdf

On page 10 of the supreme court ruling it states: "Given the fact that the defendant's gun was a far swifter deadly weapon than the bat in Campbell's hands, there was time to display the handgun and deliver a warning."

I would like to hear your opinion of the quoted section, as it goes contrary to most training.

I would also like to hear your analysis of this case, especially in light of the two court rulings. I know that a detailed analysis is not appropriate for GATE, but if you chose to write about it, can you please post here directing us to the article.

Thanks again for your time.

To the mods: Court opinions are not copyrighted. They are in the public domain and quoting them, even in their entirety, is not a copyright violation.

[Mas Ayoob]

Fascinating case. Thank you for bringing it to my attention, and Glock Talk's. I would urge you to post it in Carry Issues for group discussion.

You asked specifically about the final court's opinion at Page 10. I see no indication that there was any testimony that would have educated the triers of the facts to the dynamics of speed and lethality in contact weapon situations. The death weapon was a Colt Pocket Model .32 auto. I think any trained homicide investigator, forensic pathologist, or use of force expert could have shown the jury that you can splatter more brains on the sidewalk with a baseball bat than the defendant could have done if he'd fired every round in that little Colt .32.

Distance was apparently disputed by the witnesses. At the closest distance to which there was fact testimony, the defendant's father was in INSTANT danger. Only at the farthest distance -- and then if the man with the bat was static, not lunging -- could there have been any reasonable, practical chance of taking him at gunpoint and stopping him without bloodshed.

FWIW, I'm in agreement with the first appellate court decision that vacated the conviction.

Once again, definitely discussion worthy with a wider range of participants than GATE is geared for, and once again, thanks for bringing it to light here.

best,
Mas