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Idaho man facing 2nd degree murder for defending himself against enraged attacker needs your help.

Citizen

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HankT wrote:
Citizen wrote:
According to the OP, the defender fired when the aggressor lunged at him, the defender having previously drawn and having his gun pointed down.
Whoa, whoa, Citizen! Whoa, now.

How does the OP know this? Was the OP there at the scene? Did he get this information from others? If so, who?

Speculating about this crucial issue is kind of, um, dangerous if one wants to avoid unnecessary assumptions.

Where did this piece of information come from? And how reliable is it? Is it biased?

Well, as for bias, I see the the OP's account of the incident (sorry, ixtow) on Jim's Plight and here don't mention even one word about the aspect of alcohol at the Christmas celebration. Why is that? Why is that?

I think it just might be relevent how much alcohol was involved in the family celebration. Who was drinking? How much? Who was drunk?

Did the part about Eilers having "lunged" at Malec come from a person who was drunk on the night in question?

Whoa, Citizen. You usually don't get to galloping so quickly. Whoa.

I don't think we know just yet what Eilers actually did...

Here is what the OP wrote: "...Malec then drew his licensed sidearm, and with both hands on his weapon and pointed down and to the right again commanded Eilers to vacate the premises. It was at that point that Eilers lunged at Malec and he fired a single shot hitting Eilers in the chest..."

Here is what I wrote: "According to the OP, the defender fired when the aggressor lunged at him, the defender having previously drawn and having his gun pointed down.

If true, this would be a critical point. The aggressor was about to come into possession of a gun. It doesn't matter much if he draws it from his own holster, picks it up off a nearby table, or takes it out of your hands. He now has a gun.

Also, consider. If an aggressor lunges at a person with a drawn gun,onehas to assume he considers he can win the fight he is initiating. Without knowing his training skill and backround, why would a defender assume the aggressor doesn't know his business?"


No galloping or jumping, involved. The'assuming' is expressed, as compared to implied.

What brought my reply tomind in the first place was the number of comments about [big, tuff, pro-fighter] being enough inthe minds of some posters to use a gun. Yet, I know even that is notnecessarilya required disparity of force. My main point in posting was to introduce Ayoob's information.

One might say there was a secondary, not entirely conscious, purpose to suggest a legal defense angle to the OPer. But I don't know thatIwas purposing even that much;mainly I was using the circumstances reported in the OP toestablish the basis formy post.
 

tradermike69

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I am a newbie here, But Idaho, does it have the "Castle Doctrine"? That gives alot of leighway,In fear of your life and protecting otherslivesin your Home? Just my .02 cents
 

danrr1

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This my first post here. SO WHAT. I don't understand the thinking of alot of people on here and similar sites. you preach about rights, carrying a gun,self defense and so on. but when someone uses a gun for self defense,all you all do is dog pile on with what was done wrong and how it should have been handled differently. no help no good advice no attempt at understanding. I have been around long enough and been thru enough to know how the world works, and your sitting there trashing and bashing every thing that comes down the pike does no good for anyone. A man was in fear for his family and himself. at least try to listen. You can call me a troll an idiot a noob or whatever I don't care. Alot of these carry sites sound alike. Big talk but you all seem scared of what carrying a gun is all about. If you are talk the talk then walk the walk. O maybe you should not carry if you are that scared. Now that I have that off my chest, say what you want. I won't argue about what I have said.
 

JSlack7851

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Danrr1 wrote:
I don't understand the thinking of alot of people on here and similar sites. you preach about rights, carrying a gun,self defense and so on. but when someone uses a gun for self defense,all you all do is dog pile on with what was done wrong and how it should have been handled differently. no help no good advice no attempt at understanding. I have been around long enough and been thru enough to know how the world works, and your sitting there trashing and bashing every thing that comes down the pike does no good for anyone.

Your right!
Its easier to bash what someone else says. Its work trying to think of something to help.

Its safer hiding behind a keyboard rather than getting out and actually doing a open carry walk, Might get harassed.... (only 9 showed @ the Cleveland walk)

Its cheaper figuring what else should of been done after the fact. That way one can justify to one's self why not to help out this family.

I believe Jim will be exonerated and will have to live with what happened for a long time. Christmas will never be the same. I've been in Jim's position, only my guy lived.

Bullies that lunge/charge armed home owners will get whats coming to 'em.

I'm sending money.
 

Ian

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yale wrote:
This case once again proves the validity and accuracy of the much heralded HankT's Postulate of Civilian Self-Defense (HPCSD). Here it is for any who may somehow have not been made aware of it, even though it has diffused widely throughout this land:


It is a bad strategy to shoot an unarmed person.


This postulate has never been refuted. It is an amazinglyuniversally applicable construction. The instant case of the Justin Eilers Christmas shootingisbuta recentexemplar of HPCSD.

Please, all my brothers and sisters reading this case and this post.....NEVER forget HankT's Postulate of Civilian Self-Defense. You'll be sorry if you do.

HPCSD ALWAYS applies. Just ask James Malec and family
Hank,

I ave to disagree with you on this. If I face a young, healthy UFC cage fighter in a 1on1 fist fight I risk serious bodily injury or even death. That to me is the very reason to arm myself. To equalize things. Now if the cage fighter still feels the need to take on an armed person that just PROVES how big of a threat that person really is to me and how much I need to be properly armed against such a threat.
Took the words right out of my mouth. If I draw down on someone and they lunge at me, you better believe rounds are going down range. In my book, anyone that would advance to someone they know has a gun pointed at them has only one thing in mind, to take that persons gun and use it against them. This is a justifiable threat of serious bodily injury or death.
 

Legba

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Pulling on someone who has only made verbal threats is a bad idea in this jurisdiction, whether he's some kung-fu master or not. That he apparently went for the guy's gun may have caused the wielder to fear for his life, sure, but you could also make the case yet that the unarmed guy reasonably feared for his life when the guy pulled on him, for whatever reason, thus justifying his trying to disarm him, etc. Ugly mess, this.

-ljp
 

RedKnightt

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Prophet wrote:
Technically that UFC fighter IS armed with 2 deadly weapons. All professional fighters and any master of a martial art (ie Black Belt)hands are considered lethal weapons in the eyes of the law. Ipso facto even though they don't have a gun or a knife they are most assuredly armed with deadly weapons and use of deadly force would be an acceptable means to defend yourself.
Citation?
 

Nutczak

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Legba wrote:
Pulling on someone who has only made verbal threats is a bad idea in this jurisdiction, whether he's some kung-fu master or not. That he apparently went for the guy's gun may have caused the wielder to fear for his life, sure, but you could also make the case yet that the unarmed guy reasonably feared for his life when the guy pulled on him, for whatever reason, thus justifying his trying to disarm him, etc. Ugly mess, this.

-ljp

I could agree if this incident did notnot take placein the persons home!

Why have many states enacted a 'Castle Doctrine"? So you can protect yourself in your home (Castle) without being dragged through the mud trying to prove your innocence The guy was ordered to leave, he got violent in response to the request/order.

I would be looking at the states self-defense laws very intently to try and find if a retreat is required or equalforce is the only way.

A bit off-topic, but maybe we can use it as a similar scenario.
As a person is driving late at night in a very rural area 5-6 miles from the nearest building) and the area is generally crime-free, they see a vehicle on the side of the road and a person waving their arms franticallyfor them to stop. It is winter and about -10F outside. The driver stops and exits their vehicle with their trusty Maglite 3-cell flashlight in their handto see how they can assist this other motorist that appears to be stranded.
Afer exiting the vehicle they see a fist-fight in progress involving 2 other people. Nothing is said to the people fighting but one of them focuses their rage on the samaritan who stopped, and they start to throw punches at the person who happenedalong the scene with threats and foul language. What would you do if you were the person that stopped to help and was then attacked.

Makeyour replystate specific with your own states laws that outline a legal self-defense scenario and what force or how much force can be used.
 

rpyne

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Nutczak wrote:
Makeyour replystate specific with your own states laws that outline a legal self-defense scenario and what force or how much force can be used.

Utah Code Title 76 Utah Criminal Code
Chapter 2 Principles of Criminal Responsibility
Section 402 Force in defense of person -- Forcible felony defined.
76-2-402. Force in defense of person -- Forcible felony defined.
(1) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that force is necessary to defend himself or a third person against such other's imminent use of unlawful force. However, that person is justified in using force intended or likely to cause death or serious bodily injury only if he or she reasonably believes that force is necessary to prevent death or serious bodily injury to himself or a third person as a result of the other's imminent use of unlawful force, or to prevent the commission of a forcible felony.
(2) A person is not justified in using force under the circumstances specified in Subsection (1) if he or she:
(a) initially provokes the use of force against himself with the intent to use force as an excuse to inflict bodily harm upon the assailant;
(b) is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or
(c) (i) was the aggressor or was engaged in a combat by agreement, unless he withdraws from the encounter and effectively communicates to the other person his intent to do so and, notwithstanding, the other person continues or threatens to continue the use of unlawful force; and
(ii) for purposes of Subsection (i) the following do not, by themselves, constitute "combat by agreement":
(A) voluntarily entering into or remaining in an ongoing relationship; or
(B) entering or remaining in a place where one has a legal right to be.
(3) A person does not have a duty to retreat from the force or threatened force described in Subsection (1) in a place where that person has lawfully entered or remained, except as provided in Subsection (2)(c).
(4) For purposes of this section, a forcible felony includes aggravated assault, mayhem, aggravated murder, murder, manslaughter, kidnapping, and aggravated kidnapping, rape, forcible sodomy, rape of a child, object rape, object rape of a child, sexual abuse of a child, aggravated sexual abuse of a child, and aggravated sexual assault as defined in Title 76, Chapter 5, and arson, robbery, and burglary as defined in Title 76, Chapter 6. Any other felony offense which involves the use of force or violence against a person so as to create a substantial danger of death or serious bodily injury also constitutes a forcible felony. Burglary of a vehicle, defined in Section 76-6-204, does not constitute a forcible felony except when the vehicle is occupied at the time unlawful entry is made or attempted.
(5) In determining imminence or reasonableness under Subsection (1), the trier of fact may consider, but is not limited to, any of the following factors:
(a) the nature of the danger;
(b) the immediacy of the danger;
(c) the probability that the unlawful force would result in death or serious bodily injury;
(d) the other's prior violent acts or violent propensities; and
(e) any patterns of abuse or violence in the parties' relationship.


76-10-506. Threatening with or using dangerous weapon in fight or quarrel.
Every person, except those persons described in Section 76-10-503, who, not in necessary self defense in the presence of two or more persons, draws or exhibits any dangerous weapon in an angry and threatening manner or unlawfully uses the same in any fight or quarrel is guilty of a class A misdemeanor.

[76-10-503 lists those restricted persons for whom mere possession of a firearm is a felony.]
 

Nutczak

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Utah looks like they have some decent laws to protectthe defender if he/shewas forcedto use deadly force in the defense of themselves or others. Does anyone have knowledge of a similar statute in Idaho?

My state (WI) also has similar self-defense laws, butno castle doctrine. You are not required to try and retreat, but is generally seen as a benefit in court if you do try to retreat before using deadly force.

A state that really terrifies me is Illinois. They have no provisions for self-defense (That I have found) and their restriction on firearm ownership has pretty much guaranteed that only criminals willpossess them.

Any more state specific self-defense statutes to add?
 

MichaelWDean

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My heart goes out to anyone in a situation like this.

I won't chime in on who was "right" or "wrong", I wasn't there, I'm not on the jury and don't have every fact.

My only defense about this sort of thing is what I can do for myself.

--I don't drink.

--I don't allow people to drink in my home.

--I don't go places where people are getting drunk. (I will be around people I know and trust who are drinking sociably, but I split, fast, if anyone is getting loaded or mean.)

--I cut nutty people out of my life, including family. Completely out. Gone.

--With the one family member who has been iffy in my life, but responded to bouandries, I put up strong boundries, with a clear statement that if they were violated, he was out of my life, for good, completely out. He was hurt at first, but came around, respected the bouandries, and has been decent to me solidly for two years now.

--With the one person who has seriously threatened me with violence more than once (a wife-beater upstairs neighbor who beat his wife while she was pregnant, several times, and threatened to kill me each time I called the cops), I didn't say to anyone "I'd like to kill that guy." I calmly and quietly had a TRO served, took him to court, got a three-year restraining order put on him, and moved.

It's been well more than three years, haven't heard from him. But if he did "track me down", and did anything nutty, it would almost certainly work in my favor that I previously put a restraining order on him, and that I didn't threaten him or talk to anyone about doing anything violent to him.

--I understand self-defense, what it is, what it means, and what the laws and morality on it are.

-- I never post things on the Internet like people do some places like "I woulda emptied the whole mag in the bastard." Like Ayoob (and others) say, if you're ever dragged into court, that stuff will likely be blown up to five feet by five feet and shown to the jury.

--I'm moving out of California to Wyoming, for a number of reasons. Within a month, probably sooner.

MWD
 

autosurgeon

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I am always a proponent of "we shoot to end the threat" PERIOD if you pull your gun and the perp runs... let him and reholster. If he keeps coming go ahead and shoot if your state laws permit you to without first attempting to retreat. BUT if you shoot him once and he gives up or falls down and is no longer a threat DONT empty the gun into him... you can figure that someone is making a video of your actions so keep him coverd and call 911 if he attempts to resume the attack evaluate and if needed shoot again.

Remember we are not Rambo we are just trying to save our own life not wipe the scum from the earth.

I liked what the previous poster said about who he accociates with. That is an important part of Situational Awareness. DONT put yourself in places or company that can lead to violence unless you cannot help it. Avoid confrontation at all costs.
 

HankT

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Nutczak wrote:
yale wrote:
This case once again proves the validity and accuracy of the much heralded HankT's Postulate of Civilian Self-Defense (HPCSD). Here it is for any who may somehow have not been made aware of it, even though it has diffused widely throughout this land:


It is a bad strategy to shoot an unarmed person.


This postulate has never been refuted. It is an amazinglyuniversally applicable construction. The instant case of the Justin Eilers Christmas shootingisbuta recentexemplar of HPCSD.

Please, all my brothers and sisters reading this case and this post.....NEVER forget HankT's Postulate of Civilian Self-Defense. You'll be sorry if you do.

HPCSD ALWAYS applies. Just ask James Malec and family
Hank,

I ave to disagree with you on this. If I face a young, healthy UFC cage fighter in a 1on1 fist fight I risk serious bodily injury or even death. That to me is the very reason to arm myself. To equalize things. Now if the cage fighter still feels the need to take on an armed person that just PROVES how big of a threat that person really is to me and how much I need to be properly armed against such a threat.

+1,000
if I am faced with an enraged person with a highly publicized history for winning bare handed fights against several opponents hafl my age. I am not going to take my chances without a firearm! I think the phrase "I would rather be judged by 12, than carried by 6" fits really well in this case.


I think a new phrase would serve much better: "I would rather1right thing and neither have to be charged by 12 or carried by nor carried by 6."

I'm pretty sure ole Jim Malic would agree right about now.

It makes absolutely no sense whatsover to be drinking a bunch of liquor and toshoot an unarmed man who is moving away from you. No sense at all..





September 04, 2009

Southwest Idaho man convicted of killing stepson


A southwestern Idaho man has been convicted of voluntary manslaughter in the Christmas night shooting death of his stepson.

A jury deliberated about eight hours Thursday before convicting 48-year-old James Malec of killing 30-year-old Justin Eilers last December.

Malec faces up to 15 years in prison and a $15,000 fine. A sentencing date hasn't been set.

The defense argued that Malec properly used his former police training to stop a deadly threat when he killed his wife's son, a professional martial arts fighter.
But prosecutors told the jury that Malec's choice to shoot Eilers was deliberate, unnecessary and unlawful. They had sought a more severe second-degree murder conviction, while the defense had argued for acquittal based on self-defense.
Gwen Moore is Malec's wife and the mother of the shooting victim.

"Everyone asked me what justice I wanted," she said before weeping into her sister's arms. "I want my son back, that's what I want. And I'm not going to get that."

Defense attorney Gordon Petrie reminded jurors that Malec had testified that Eilers had threatened to kill Malec and moved toward him before Malec shot Eilers once in the chest.

"Never lose sight of the fact that Justin tried to make a living by pummeling people into submission," Petrie said.

But Deputy Canyon County Prosecutor Scott James said Eilers was not armed and moving away from Malec when he was shot.

"Justin Eilers was acting like a jerk, there's no question," James said. "He was ruining Christmas. He was disrespecting the defendant in his own home. But he didn't deserve to die."

Moore testified that Eilers was backing away from Malec just before Eilers was shot.

http://www.theolympian.com/northwest/story/960582.html
 

daniel kelly

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"Moore testified that Eilers was backing away from Malec just before Eilers was shot."

A bereft mother might say that even if it weren't true.
 

DKSuddeth

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the lack of intelligent and rational deliberation is disappointing in the jury members. Each and every one of them should be forced to face an angry MMA fighter threatening violence upon their person so they can judge for themselves.
 

M198

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daniel kelly wrote:
"Moore testified that Eilers was backing away from Malec just before Eilers was shot."

A bereft mother might say that even if it weren't true.
In order to send her husband to jail? I don't think so.
 

HankT

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DKSuddeth wrote:
the lack of intelligent and rational deliberation is disappointing in the jury members. Each and every one of them should be forced to face an angry MMA fighter threatening violence upon their person so they can judge for themselves.

So, DKS, you think Malec should have been found not guilty?
 

deepdiver

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HankT wrote:
DKSuddeth wrote:
the lack of intelligent and rational deliberation is disappointing in the jury members. Each and every one of them should be forced to face an angry MMA fighter threatening violence upon their person so they can judge for themselves.

So, DKS, you think Malec should have been found not guilty?
"lunging towards" and "backing away from" -- almost diametrically opposed statements and I think the entire crux of the matter. If the wife is correct/telling the truth I agree with the jury whereas if the original story was correct I disagree (within the scope of the information that we have available in this thread).

I am troubled also that although this by all accounts appears to have been a somewhat slowly escalating situation that LE was not contacted during the event to remove the now deceased from the home. I'm not a small guy but I am also not 20 something anymore and not as able to absorb physical abuse. And while I can handle myself in a physical altercation I would never claim to be capable of defense against a professional level fighter.

As such, if I had someone of that category in my home, he became belligerent and refused to leave and I thought violence not only possible but likely I would call 911 or have someone else do so. The escalation sequence of this situation implies that there would have been time to do so although perhaps not time for LE to arrive. If they did not arrive I might very well have reacted as did Mr Malec rather than allow myself to be engaged in a potentially life ending (for me) physical altercation initiated by an enraged pro fighter. However, I think such a phone call might have defused the instant situation and convinced Eilers to leave and if not, it would have at the minimum had some amount of CYA effect with a jury.

This all leads to Deepdiver's Postulate of Holiday Self-Defense (DPHSD):

It is a bad strategy to shoot a relative even if s/he is ruining Christmas.
 

Citizen

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deepdiver wrote:
SNIP This all leads to Deepdiver's Postulate of Holiday Self-Defense (DPHSD):

It is a bad strategy to shoot a relative even if s/he is ruining Christmas.

:D

Unless he is ruining it by eating all the treats and hogging the Bailey's. Open season on everybody 'cept mom and dad in those circumstances. :)

Not even mom and dad are exempt if they make negative comments about my Burl Ives or Neil Sedaka Christmas music. :)
 

MSC 45ACP

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Citizen wrote:
MSC 45 ACP wrote:
It isconsidered badmanners to shoot a relative even if s/he is ruining Christmas.
(There... fixed it for ya. :))


:D

Unless he is ruining it by eating all the treats and hogging the Bailey's. Open season on everybody 'cept mom and dad in those circumstances. :)

Not even mom and dad are exempt if they make negative comments about my Burl Ives or Neil Sedaka Christmas music. :)
 
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