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A Toter’s Worst Nightmare

That’s about what I would describe what Gerald Ung went through. I think when a lot of folks imagine using a gun in self-defense, they think of the mugger, pistol in hand, neatly spread out on the sidewalk, with the police arriving knowing exactly who is the good guy and who is the bad guy. Real life is almost never that clear cut. Gerald Ung had a lot of things going against him. He carried a gun to go out drinking, and admittedly had a large quantity of alcohol. This is probably the biggest factor that could have played against him, to be honest. Because you presumably carry a firearm to use it in self-defense, it will greatly complicate your case to have to admit before a jury that you had been drinking excessively. The legal standard for use of deadly force is being in reasonable fear of great bodily injury or death, and you don’t want the jury to have any reason to believe your reasonable judgement was impaired.

He shot an unarmed man. Obviously this is legal under some circumstances, such as when there is a disparity of force (as there was in this case), but that always throws up a big question mark, and when facts are in dispute, and all parties in question were arguably drunk, a prosecutor might just decide to go ahead and let a jury sort all the facts out, especially if the DA has a disincentive towards exercising discretion not to prosecute, which brings up the next point.

Ung shot a man who’s family had political connections. DiDonato’s father is a prominent attorney in Philadelphia, and he’s the nephew of Michael Meehan, who is heads the GOP in Philadelphia, and I believe the entire Southeast. I seriously have to wonder if Ung had shot someone from a random gang of troublemakers from North Philly whether this would have ever gone to trial. Unfortunately for Ung, he didn’t. He shot a white middle class kid from the suburbs with a connected family.

But Ung did plenty of things right. When the altercation started, he began to walk away, only to be followed by DiDonato and his friends. He did not draw his firearm until they began to attack him. After drawing his firearm, he attempted to use physical force to keep DiDonato at bay. It’s only when DiDonato started to take him to the ground did he pull the trigger. What choice did he have at that point? What reasonable person would attack a man that had a gun drawn on him? What was going to become of Ung once DiDonato had him on the ground and possibly had his gun? I’m glad the jury did not demand Ung find out the answers to those questions.

The ADA’s assertion that he could have fired a warning shot, aimed for the legs, or could have crossed the street and called the police were almost laughable. First, I can promise you had Ung fired a warning shot, they would have prosecuted him for that too, given that discharging a firearm in city limits is a crime. Second, how could he have crossed the street when Kelly was covering Ung and his two friends’ flank? Could Joy Keh have also retreated with complete safety? Could his other male friend? The police took two minutes to arrive after the gunfire. How badly can a gang of five young, intoxicated athletes beat a guy for two minutes? And what could they do to the girl? Thirdly, how many of us have practiced carefully aiming shots while an attacker is in possession of our leg, with such great precision we do not hit our own leg in the process?

Ultimately, even though the jury was aware Ung had been drinking, even though they were aware that he regularly carried a pistol to bars, and even though he fired his pistol six times, they still found he acted in self-defense, and acquitted him of charges. This case does, however, show the risk inherent in using deadly force. That is a big reason I am a strong advocate of carrying less than lethal force in addition to lethal force. It gives you more options, and will ultimately make you look far more sympathetic to a prosecutor and jury if you had exhausted all reasonable options available to you before resorting to deadly force.

Also, and this has to be noted too, Ung carried a Kel-Tec P-3AT, a .380 caliber pocket pistol, as best I can tell from news accounts. DiDonato took six hits before he went down. Ung is damned lucky that was enough to convince DiDonato’s friends to stop attacking, because I’m willing to bet Ung emptied his magazine if he wasn’t in the habit of topping it off after jacking a round into the chamber. Pistols are poor fight stoppers. Pocket pistols are even poorer fight stoppers.

Ultimately it is a victory for all of us that Gerald Ung was acquitted. It makes the DA less likely to pursue another case in similar or more favorable circumstances for the defendant. Prosecutors live and die by their win percentages, so they don’t like to bring cases forward they know they are likely to lose. They lost this one. That’s going to sting. Hopefully they remember this, and don’t needlessly ruin lives, and waste taxpayer money, prosecuting more cases that are pretty clearly self-defense.

35 Responses to “A Toter’s Worst Nightmare”

  1. Chas Clifton says:

    “Real life is almost never that clear cut.”

    Too true. I feel relieved for the guy, and I hope that he can beat any civil case too.

  2. GMC70 says:

    I’d agree with all of that except one statement:

    Prosecutors live and die by their win percentages

    I prosecuted for a decade, and now defend. To be blunt, any prosecutor worth the paper his license is written on will have conviction rates well over 90%. He gets to choose his cases, and thus choose his winners – and this one wasn’t chosen well.

    But no prosecutor I know “lives and dies” by his win percentage. I tried more jury trials than any other prosecutor in my office, and I have no idea what my win percentage was, nor frankly do I much care. Having been around prosecutors for over a decade, I can say with some confidence that few prosecutors do. Indeed, I regularly told young prosecutors that they couldn’t be afraid to lose; some cases need to be tried, and you will lose occasionally. I accept that.

    A prosecutor has discretion to prosecute or not, and he needs to use it wisely. Don’t prosecute cases due to political pressure, or just because you can win. Don’t prosecute when you are likely to lose, either; that’s a waste of time and money. Most importantly, do justice – there’s damn little of that left in the system, after all, and prosecutors are the first and last real line of resistance to the pressure to do “process” rather than justice. I have no idea if this prosecution was politically pressured or not, but if it was, a prosecutor should be ashamed. As I mentioned in a previous post, someone pressuring me to do any particular thing on a case would have been told to take a long walk on a short pier.

    Most cases plead out. Cases that go to trial go for one of three reasons: 1) the case is so henious that no plea agreement is possible 2) the defense lawyer, or far more often his client, is an idiot, or 3) they legitimately thing they can beat the rap. This one likely fell into 1) or 3), and here, the defense lawyer was right.

  3. Wes says:

    And of course the other drawback to carrying a small caliber is that “I had to shoot him six times” instead of once or twice with a bigger caliber sounds bad to juries that may not understand small calibers may not stop people very well.

  4. Sebastian says:

    GMC70:

    Thanks for the insight. That was a poor assumption to make on my part, largely because politically, win percentage always seem to be what prosecutors tout when they are up for re-election.

  5. Interesting, there were 5 attackers. It took 6 rounds. Had the other 4 continued to press the attack. Ung would have needed a 30 round magazine.

    Who needs a 30 round magazine? Anyone facing multiple determined aggressors.

  6. Sebastian says:

    One thing to keep in mind is that if you’re going to claim disparity of force, you can’t necessarily shoot every member of the gang. If the rest break off the attack, you’re done.

    Also consider, if your disparity of force case is based on two men attacking you at once, and you shoot one of them, can you still claim disparity of force on the second man, with the first one being down? Maybe if he’s a male and you’re a female, or if he’s a young man and you’re an old man, but what if you’re both young men? You have to be careful.

  7. Matthew Carberry says:

    Sebastian,

    I think until the member of the disparity of force side obviously ceases the assault and/or flees they are still a lawful target.

    It is not reasonable to expect you to holster or disarm simply because the odds in an ongoing struggle against superior numbers have shifted momentarily.

    In a hypothetical, say DiDonato only had Kelly with him against a lone Ung. Pursuant to what I remember of LFI 1 (looks like it’s time for review) if Ung manages to shoot DiDonato off of him when both attack I don’t believe there’s any legal obligation for him to -not- shoot a still aggressing Kelly and go hands on just because the gun apparently evened the odds.

  8. twoeggsup says:

    Funny, there appears to have been very little press coverage of the Not Guilty verdict. The ADA is IMHO an idiot. Shoot at his arms or legs, shoot in the air… DiDonatto should have been charged. The PPD apparently did a poor investigation, perhaps even they thought Ung would get rail-roaded by the DA’s office for hopes of political gain.

  9. Weer'd Beard says:

    I have to disagree with another point, Sebastian. DO NOT CARRY LESS-LETHAL force….or at least implements of it. (Shoving and punching might have their place, and you always have that tool at hand, so-to-speak) But this is a clear-cut example of how less-lethal will only get you in trouble or killed.

    First he retreated and didn’t fire until things had totally gone wrong, that’s good. If it took 6 shots of .380, a shot of pepper or a zap with a stun gun was NOT going to deter this. a Taser might have worked…but tasers often don’t do shit, and of course there were multiple guys here.

    Lastly if he had gone to less-lethal as a pre-emptive now he looks even worse because now it can be argued that he may have STARTED the fight.

    My defensive tools are my whits, my body, and my gun. Nothing in between the gray my choices when things go bad and my heart and mind are racing.

    My rule of thumb is you should be able to WALK away from a threat, if you can’t WALK away you are in a deadly force situation and you should be ready to use your gun.

    Its never going to be pretty, and there always will be some doubt (reasonable or otherwise) if you want something better than that you’re going to have to take the anti-gun route and shun reality.

  10. karrde says:

    In the ‘less-than-lethal-force’ category, I really wish the state I live in didn’t have a legal limit on the strength of pepper spray that non-LEO’s can carry.

    While arguing about the utility of pepper-spray is interesting, possession and attempted use does give a person more legal cover.

    (I live in Michigan…does PA have such restrictions on carry of pepper spray? MI also has restrictions against carrying in ‘establishments whose primary source of income is sale of alcohol for consumption on the premises’…this definition is a bit fuzzy, but there is a very-clear definition that it is a crime to carry with a BAC over 0.02. All of these would have spelled trouble for this guy, but I suspect he still would have been deemed to have been acting in Self-Defense in Michigan.)

  11. Jake says:

    I have to agree with Weer’d on the “less-than-lethal” issue. The average citizen is rarely going to have to try less-lethal force, determine if it worked, and then escalate to lethal force if needed.

    In this particular situation, when could Ung have legally deployed a less-lethal weapon? Not until the attack turned physical – at which point he had a grand total of maybe 5 seconds from the first attack until DiDonato’s lunge. If Didonato wasn’t dissuaded by a gun, he probably would have laughed at pepper spray or a taser. If using one of those less-lethal options didn’t work, it would have been too late for him to then draw and fire his pistol because DiDonato was already on top of him.

    Generally, in a situation where lethal force would be appropriate, you’re not justified in using less-lethal force before you’re justified in using less-lethal force – you’re either justified in using force or not, and lethal or less-lethal is a matter of the level of force you’re confronted with.

    (Subject to state and local laws and court precedents, of course. IANAL)

  12. Jake says:

    Ugh. The second sentence above should read “The average citizen is rarely going to have timeto try less-lethal force, determine if it worked, and then escalate to lethal force if needed.

    Prufreeding iz gud.

  13. Sebastian says:

    As soon as you walk away from a fight you are no longer a willing participant in the fight. It actually doesn’t matter if you sprayed someone before you walked away. I’m pretty sure it doesn’t even matter if the law later views your use of spray to be a simple assault. As soon as you retreat from the fight, and are no longer a willing participant, if your attacker(s) come after you, that incident is now a circumstance of their making, not yours. The proper response to a simple assault, after the threat has retreated, is to call the police. Retribution is the state’s prerogative.

    The thing to keep in mind about defensive sprays is that legally it’s a low level of force. Under the laws of most states, the standard is being in reasonable fear of having unlawful physical force being used against you. That can be as little as someone approaching you aggressively, or threatening you. Basically:

    If some guy says “I’m going to kick your ass,” and you spray him, then retreat, you’ve acted within the law.

    If some guy says “I’m going to kick your ass,” and you pull out a gun and shoot him, you’re going to prison in all likelihood.

    By the time the incident had escalated to where Ung drew his firearm, I don’t really think he had any choice. I don’t suggest he should have used spray at that point. But I would have sprayed Kelly, at the least, as soon as he laid a hand on the girl (which the testimony of “I’ll touch her if I want!” would indicate he did, then walked away as Ung did, with my hand on the gun ready to draw if necessary. At the least Kelly is probably either out of the fight, or at least disadvantaged by having his eyes, face and mouth on fire.

    The advantage of less than lethal is you can bring it to bear earlier in the confrontation. It gives you an idea how committed your attacker is to the fight. In hindsight with this case, Ung’s attackers were committed, since we know they were advancing on a drawn gun, but that’s not the case with every attack, and there’s no telling whether hitting them with spray early on, before it escalated, would have prevented it from escalating.

    I think Ung did just about everything right in this case, despite the ADA’s second guessing. Given multiple attackers, and how aggressive they were, he’s not a poster child for defensive sprays. But there are certainly situations where it can save you from a fist fight, and where pulling a gun is quite likely to get your prosecuted.

  14. Wes says:

    karrde, yep, kind of odd in my state pepper spray is limited and knives are limited and stun guns are banned, but I can carry a .44 magnum without a permit if I want. Go figure.

  15. Sebastian says:

    If the state limits your LTL options, that’s the state’s problem. You can’t be called out in court for following the law. Though if your state limits LTLs, your laws need some fixing.

  16. Weer'd Beard says:

    Sebastian, or you could simply skip the pepper spray and walk away and get similar results. Only if you walk away after hosing (or zapping) somebody you’re obligated to call the police, which could cause you loads of issues. I love the cops, and I’m glad to have them, but when meeting with them on professional grounds they are NOT there to be your friend.

    Also there’s the possibility the less-lethal may escalate things as well.

    Better to just walk away, and express desires for peaceful resolution. If you are still being persued and threatened, the last thing you want to do is bet on a less lethal when you’re well out of the realm when that’s useful.

    Honesty less lethal is only useful for LE uses when somebody isn’t a direct threat to anybody but causing enugh problem to warrant arrest.

  17. Sebastian says:

    Sebastian, or you could simply skip the pepper spray and walk away and get similar results.

    That will work if the person is only interested in words. If they really want a fight they aren’t going to let you walk away. Then what? If you are OK with fist fighting, I think that’s fine. But if you shoot the guy you’re quite likely going to prison. Personally, I want to keep an attacker at arms length, and a good defensive spray lets you do that. It will also keep him immobilized at the same time you are retreating.

  18. Sebastian says:

    I should say I really only consider spray a viable LTL. Tasers or other zapping devices only work for as long as they are delivering charge, and usually only on a single attacker.

  19. Weer'd Beard says:

    I’d only be OK with fist-fighting if I felt there wasn’t the capability of deadly force from the other guy.

    Let’s face it, somebody looking to fist-fight with g33ks like us are using deadly force. I’m not a street fighter, nor do I intend to be. If somebody wants to press the issue I consider it just as deadly as a knife or a gun.

    Any of those encounters can lead to non deadly wounds…as well as deadly.

    In those situations there is no clean solution.

  20. Sebastian says:

    Let’s face it, somebody looking to fist-fight with g33ks like us are using deadly force.

    And if you shoot him, you’ll have to convince a jury of that. Not a situation you ever really want to be in. Just ask Gerald Ung, and his case was pretty clear cut in comparison to if there had only been a single attacker.

  21. Weer'd Beard says:

    I never want to be in a situation where I shoot somebody, period. I also don’t want to be in a situation where I’m smelling the pepperspray on some goon’s face while he smashes my skull into the curb with my gun safely nestled in its holster.

    Some situations simply aren’t clean because the world doesn’t have mind readers.

    If somebody continues to advance on me as I retreat from an altercation I did not instigate, I’m going to assume they mean to do me serious harm because I’m already retreating.

    If somebody continues to advance on me when I draw a firearm I’m assuming he’s crazy, has a weapon.

    In the end we’re now getting pretty specific for this scenario which is saying something on its likelihood. So I’d rather have more pocket space for a reload or for my sundry items. And I’d rather have one less item to reach for when my mind is racing.

  22. FL dood says:

    Interesting “piece” — and a good analysis. I don’t carry (am thinking about it), but am a trained martial artist. There’s all sorts of weirdness when it comes down to that issue; namely, do I start from a worse legal position than an ordinary person carrying a gun? Maybe, if the jury thinks I could have gone all Jackie Chan on the lax bros instead of pulling a gun.

    Regardless of any training, this was definitely a nightmare scenario. Bigger, more numerous attackers; one of your comanions is a woman; and everyone has been drinking.

    Thank God I’m old, married and boring!

  23. Weer'd Beard says:

    Well said, FL Dude.

    Also, carry, if not for you, for your wife. Remember, Chuck Norris is a NRA life-member for a reason!

  24. Stone says:

    I am with the blogger; carry non-lethal with or instead of just lethal force. This said, I don’t know limitations if any on pepper spray in Pennsylvania.

    For those who say DiDonato would have ignored a blast of pepper spray in his eyes:

    No, he would not have. Pepper spray is incredibly effective for stopping bears – who has ursine as DiDonato appears, tend to be larger and always are much stronger than Mr D

    Pepper spray hurts like hell, and keeps hurting, and ruins the vision, which in turn ruins the balance.

  25. Sebastian says:

    Bears have more sense than DiDonato :)

  26. Wes says:

    Pepper spray won’t necessarily stop someone. You can look for training videos and home-recorded videos of people testing it. It generally works well, but some people can still function at least adequately or better.

    A bit similar to stun guns. Some people can shrug it off if it’s not constantly on them, (maybe the voltage on those particular guns is just too weak?), while others basically have their bodies shut down for 30+ seconds.

    No surprise on either of the above, really, since people can get shot with a gun and keep coming, too. As usual, there is no perfect answer.

  27. Chas Clifton says:

    The “magic caliber” is not the real issue here. After all, here is a guy who lived a long and productive (in his terms!) life carrying four .38 and one .45 bullets in his body, including his head..

  28. Jake says:

    The “magic caliber” is not the real issue here.

    [Yoda] Size matters not. Critical, shot placement is. [/Yoda]

  29. Ian Argent says:

    I get that you can have a theoretical “continuum” of force, but I come down on seeing two “levels” of force. You’re exerting verbal force, or you’re exerting physical force. If you’re exerting physical force, the goal is to disable the person you’re exerting force on. At which point the game is up.

    There is no level of (unlawful) physical force where I can assume in perfect safety the person exerting it will stop after disabling me. That would require prescience. Thus, I must assume that initiating unlawful physical force against me is initiating possibly deadly force.

  30. Sebastian says:

    Wes:

    No one disputes pepper spray won’t stop someone every time. Neither will a pistol. Each has their role, depending on circumstances.

  31. Bill says:

    In light of the recent controversy over someone carrying a shotgun in a library, I found this statement very interesting:

    “Pistols are poor fight stoppers. Pocket pistols are even poorer fight stoppers.”

    Looks like we all SHOULD be carrying a long arm to take care of the unpredictable!

  32. LC Scotty says:

    Any idea what the ammo Ung used? Was it ball or a decent HP round?

    Any data on where DiDonato was hit?

  33. Wes says:

    “Wes:
    No one disputes pepper spray won’t stop someone every time.”

    Except for maybe in comment #29, which I was responding to. :-\

  34. Ian Argent says:

    @Bill: I’d love to be able to carry a short-barreled rifle; my theoretical preferred self-defense arm is a heavy-pistol-caliber with extensible stock, folding forward grip, and an integral suppressor. But, I often dress in such a fashion that I could conceal such and still deploy easily with a single point sling

  35. TMK says:

    Eddie DiDonato’s sister had some interesting quotes back in January of last year:

    “He does think he’s invincible,” Kristin DiDonato said. “He is the type that would think he could take a gun from someone.”

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