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.

Jury to Ung: “Not Guilty”

See Above the Law for details as they come, but the Daily News is reporting an acquittal. I’ve often said we don’t have a justice system, we have a legal system. Well, sometimes it’s a justice system, and such was the case here. One of the great legal innovations of English Law was trial by jury, in which the people retain an important check on governmental power. It worked here. This case never should have been brought to trial, but it was, and the system worked. The only unfortunate thing is that Gerald Ung will now be helping make payments on Jack McMahon’s Porsche well into his 40s (I kid, I don’t even know if he has a Porsche, but Ung legal bills are going to be steep).

Ung will also likely need to defend against a civil case, which I’m sure his family will bring forward. It is very important that we pass Castle Doctrine quickly, so that Ung may have a chance of enjoying the civil immunities the bill brings. If you’d like to donate to his legal defense fund, you can find it here.

In the Jury’s Hands

About an hour ago, the jury started deliberations in the Gerald Ung case.

The jury of six men and six women began their review shortly before noon after receiving instructions in the law from Judge Glynnis Hill on the charges of attempted murder, aggravated assault and a gun charge.

I don’t even know what to think of this case anymore. When the prosecutor started advocating for warning shots in downtown Philly as a reasonable solution in the courtroom, it went beyond weird. It proves that there is no way for a lawful gun owner to win in that city while career violent criminals are allowed to roam the streets.

Warm Your Cold Heart

Feeling a little cynical with all the anti-gun bills introduced & discussed at the state & federal level lately? Well, here’s a story to warm your heart.

Kayla R. McMullen never fired a gun before signing up for Wilson High School’s newest sport.

But with a little practice and a steady hand, the 17-year-old junior has become the top shooter on the rifle team.

“I fell in love with it instantly,” she said of the marksmanship competitions. …

Some team members are hunters, but many never touched a gun before.

“We have people who are scholars, to those who are artists, to those who are struggling and we monitor their grades,” May said. “We reach people who would never play in an active sport, to those who fit this in between basketball.”

The principal reached out to the coach to start the team. They note that while other schools in the area are cutting sports, the principal thought it was a great addition to their program, and it doesn’t cost them much since they shoot in a former weight room and use air rifles.

Ignoring the Problems

It’s somehow appropriate that the Mayor of Philadelphia, Michael Nutter, was chosen to give the counterpoint to Chris Cox’s piece in US News. In his call for a magazine ban & “assault weapons” ban, he uses a Philly example to justify the bans.

Since May 2006, eight Philadelphia police officers have been killed in the line of duty, six by gunfire. One, Sgt. Stephen Liczbinski, was felled by an assault weapon.

We’ve covered Liczbinski’s killers here before, and it’s time to hold Mayor Nutter accountable. Before becoming mayor, Nutter was part of the City Council since 1992. During the time he has been in office, these murderers were repeatedly put back out onto the streets even as they racked up an impressive 26 combined pages of criminal offenses, the most of which were Nolle Prossed. As shown in his criminal record, if the City of Philadelphia had put the trigger man behind bars for only the firearms charges, he never would have been on the streets to kill Liczbinski in the first place.

Of course, Nutter won’t answer for why Philadelphia keeps putting these killers back out on the street every single day under his leadership. Instead, he hopes some op-eds in favor of more gun control will keep his constituents from asking real questions about his record on crime.

Defense Rests

More detailed information on the Ung testimony at Phillylacrosse.com.

“I saw the group of guys and I saw Joy jumping up to the scaffolding and a guy kicked out at her,” Ung testified. “I said, ‘Joy let’s go’. I got 10 to 15 feet … I heard someone screaming … hey, hey I’ll touch her if I want, bleep.’

“I said, ‘Seriously, dude.’

”We began to walk backwards away from them. They kept coming at us; kept screaming. Tom kept coming at my back I just remember him screaming and Joy screaming. Tom was coming at me; he was right up on Joy.

“This guy was attacking Joy. I remember her pleading with him. He said, ‘I’ll bleeping kill you!’

” I walked away. I thought I saw Tom was reaching for something a gun or knife. I thought this guy was going to attack us again. We continued to walk away.”

Next time we report on this case, it should be with a jury verdict.

UPDATE: More over at Above the Law.

Destroying Preemption in Pennsylvania

A Senate Bill has been introduced. NRA is not calling for action yet, just noting it. What’s interesting to me is that one of the sponsors of SB176 is Republican Stu Greenleaf, who is the committee chair for the Senate Judiciary Committee. Greenleaf lost his NRA endorsement after helping to sabotage Castle Doctrine with anti-gun amendments in the last session. I’m guessing his leadership position on this anti-gun bill means we can pretty much put him in the anti-gun column from now on.

What this means for Pennsylvania gun owners is that the party leadership of the Senate Judiciary Committee is now solidly anti-gun, despite the Republicans being in control of the Senate.

Chris Cox on the Magazine Ban

Chris Cox in US News and World Report. I’m guessing the publication chose that headline, since “high capacity” just plays into the other side’s rhetoric, and I’d like to think Chris Cox knows the difference between a clip and a magazine.

Ung Testimony

The Philadelphia Inquirer reports that witness testimony is over in the trial. It now goes to closing arguments, and to the jury. I will keep my fingers crossed that justice is served.

“I tried to kick him [DiDonato] away first,” Ung, 29, told a Philadelphia Common Pleas Court jury this morning, describing the incident at Fourth and Market Streets in Old City.

“He grabbed my right leg and I started to fall backward and my shoe came off. I just remember seeing sparks and hearing pops.”

Defense attorney Jack McMahon, who has argued that Ung fired in self-defense, drove the point home: “Did you shoot?”

“Yes, I pulled the trigger,” Ung replied though he added he did not know how many times he fired the .380-caliber semiautomatic pistol he had a permit to carry.

That’s not unusual. The same thing happens to police officers. You shoot until the threat ceases, and unfortunately, DiDonato fell into Ung, which a reasonable person couldn’t distinguish easily between going down and continuing to attack. The ADA seems to be hinging her case on Ung keeping up the “expletive-punctuated banter” with DiDonato. This is presumably to convince the jury Ung was a willing participant in the affray, but I don’t think words are an invitation to a beating.