There is little question that Scott Hayes, a pro-Israel protester and Iraq war veteran, was the victim of a forceful attack by an apparently pro-Palestinian passerby. The video leaves no doubt.
🚨BREAKING🚨
A man wearing a Palestinian pin was shot in the stomach this evening after he charged through traffic and tackled a pro-Israel Iraq war veteran in Newton, Massachusetts.pic.twitter.com/Ix5JEJaJNp
— Kassy Akiva (@KassyAkiva) September 13, 2024
In the course, Hayes fired his lawfully carried gun and shot the attacker.
In a second video, the veteran is seen giving medical care to the man who tackled him until first responders arrived.
— Kassy Akiva (@KassyAkiva) September 13, 2024
Middlesex County District Attorney Marian Ryan charged Hayes with “assault and battery with a dangerous weapon and violation of a constitutional right causing injury.” The initial aggressor was not charged for his attack.
While one’s view of the incident is likely colored by where one’s sympathies lie, the question is whether Hayes was acting in self-defense or, by his use of disproportionate force, committed a crime. The Massachusetts pattern jury instruction provides some insight.
If the defendant (used deadly force, which is force intended or likely to cause death or great bodily harm) (or) (used a dangerous weapon in a manner intended or likely to cause death or great bodily harm), the Commonwealth must prove one of the following three things beyond a reasonable doubt:
First, that the defendant did not reasonably and actually believe that he (she) was in immediate danger of great bodily harm or death; or
Second, that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force; or
Third, that the defendant used more force to defend himself (herself) than was reasonably necessary in the circumstances.
While the initial aggressor’s running/flying leap at Hayes was hardly a de minimus use of force, and there was nothing Hayes could do to avoid physical combat, was it reasonable for Hayes to believe that he was in danger of “great bodily harm or death”? As the attacker was unarmed, there is little basis to have a reasonable fear of death, even though it is within the realm of possibility that an unarmed attacker could cause death.
But was it reasonable for Hayes to fear “great bodily harm”? Given the forcefulness of the flying leap at him, and the near certainty of his being forced backward to the ground with the attacker atop him, it is a far better argument that he could have feared serious physical injury.
But once the attacker knocked Hayes to the ground, other circumstances also come into play. Hayes appears to be at least as large, if not larger, than the attacker. Hayes was a trained army(?) veteran, likely capable of fending off an unarmed attacker. Hayes had others with him at the protest able and willing to help get the attacker off him and subdue the attacker. And most significantly, Hayes, at that moment, knew that the initial attack did not cause him “great bodily harm,” whether it might have or not.
Does that render his fear unreasonable? Even if you have little sympathy for the initial aggressor, who, without any justification whatsoever, ran across the street and leaped at Hayes, was the use of a handgun disproportional to the unarmed physical, albeit unjustifiable, attack?
There are arguments for and against Hayes’ use of a handgun in the scuffle. What’s objectively and subjectively reasonable is often a matter of personal bias more than a rational parsing of the facts. Based upon Hayes’ effort to provide aid to the aggressor, it would seem that he held no animus toward him that colored his judgment, and acted out of a sincere belief that he was justified in self defense. But that’s not the end of the query.
Much like the prosecution of Daniel Perry for choking a man to death in the New York subway, or to reach way back, Bernhard Goetz, the sense that self-defense is a rather fuzzy concept when the defendant is perceived to have acted with sincere intentions and without moral turpitude could well cause a jury to conclude that the defendant should not be found guilty even if the technical elements against self-defense are proven beyond a reasonable doubt.
In this case, it’s quite hard to fault Scott Hayes for defending himself against an unjustified and rather vicious and forceful attack. And yet, it’s similarly hard to justify the use of a handgun as Hayes fought the attacker on the ground. This case is going to prove to be very troubling, as demonstrated by the success of the gofundme campaign started for his defense, reflecting a strong public sympathy for Hayes’ actions regardless of whether it met the elements of self-defense.
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I dont know about the “used more force than required” narrative. This wasnt a fight where they squared up and then one shot the other when he was losing. The attacker ran and then took him to the ground with no provocation other than what he made up in his head.
In only a few seconds an attacker on top can pull a knife (favored by the pro hamas crowd) and stab an on the ground victim to death. Or to bash their head into the ground.
Depending on what service Mr. Hayes was in and what he did he would have attended combatives training and understand the risk of an attacker on top. With certain courses focused explicitly on getting back to your gun to neutralize the fight (if you have a gun).
That said most Americans understanding of violence is from movies or a playground fight so who knows what a jury will decide.
Near the end of the video, you can hear “he tried to grab my pistol.” Someone who randomly attacked you trying to gain control of a firearm during the altercation is certainly something that would inspire fear of gross bodily injury in the mind of a reasonable person, regardless of whatever training they might possess.
I hear “grab my pistol,” which at that point was lying on the ground, not “he tried to grab my pistol.”
After watching again, I agree with you. Sorry for lowering the signal to noise ratio.
I use the crazy man defense. If he is crazy enough to do what he did, dashing perilously through traffic to make an unhinged attack on an elder, in full public view, he is crazy enough to kill maniacally. No time to reason, and if you have a weapon and he gets to it first, well, then, yeah. Sad. But strong defense.
Scott, why wouldn’t the initial attacker also be charged?
Would that be best asked of me or the charging district attorney?
To a layperson, at least, there is some ambiguity in the second clause as quoted above: “… that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force.” One possible interpretation is that the defendant must avoid “resorting to force.” However, an equally, if not more, plausible reading is that the obligation is only to avoid “physical combat.” This distinction may be significant. If my duty is only to avoid “combat,” then, for example, if an assailant jumps on me from behind, I could be free to use deadly force, even if I’m significantly stronger or in no real danger. Since I did not see the assault coming, there would be nothing I could have done to avoid it, and the state cannot prove element #2. I’m not sure that this is what was intended, but the wording certainly invites this reading. In fact, there is a certain justice in this: people are put on notice not to start unavoidable combat—f around and find out.
In Massachusetts, there is a precedent to simply skip over three word phrases in the law that favor gun rights—eg, “well-regulated militia” –so they may well ignore the words “…physical combat before…” here. But if the law’s language truly matters, then I believe Mr. Hayes must be found not guilty, as the “combat” in this case seems unavoidable.
Having read the provided links to the best of my limited ability to interpret formal written laws, I think the only possibly legitimate charge , and it’s weak in my opinion is proportional use of force. Was Hayes response in excess of the attack.?
Nothing Hayes did before or after suggests he wanted this physical confrontation .;In fact it shows he helped his attacker.
The assumption that any veteran is good at hand-to-hand fighting is wrong. I was drafted, I was in RVN for a year, I was flute player. The three or four moves taught in Basic Training were not going to be of much use.
An unarmed attacker absolutely can cause great bodily harm or death. Reality isn’t like a Hollywood action movie where people can kick each other in the head repeatedly and walk away unharmed. In real life a single punch to the head can cause a detached retina.
I’m more puzzled about how he got a carry permit in Massachusetts in the first place, given that state’s intense hostility to the very idea of self defense.
Focus, for crying out loud. FOCUS!
I understand your question but want to add that the prosecutor’s defiance of his legal duty to charge the offender provokes disgust for some of us. I could not serve on a jury in this case because the abuse of power by the prosecutor would dominate my evaluation of the facts and the jury instructions.
Being attacked and knocked down in a protest context has resulted in death for the victim from head trauma recently. Not sure at what point in such a situation the victim can reasonably determine if the attacker’s rage is less than intent on causing sever injury or death. Especially considering the expectation that an attacker insanely enraged at a pro-Israel protester might well be a radical.
It’s not like a fist fight in the ally behind a tavern over a girl where the loser wouldn’t expect the winner to continue beating him until he’s unconscious, then take the loser’s pocket pistol and shoot him with it.
When the law doesn’t seem to distinguish between those hypothetical situations, that should be why prosecutorial discretion exists.
The “motive”, “means”, and “opportunity” boxes were all checked. An attacker on top of someone, especially on a hard surface, poses an imminent threat of grievous bodily harm. (Scott’s demurral notwithstanding, it also poses a non-trivial risk of fatal injury. If memory serves, the FBI UCR shows deaths by “hands and feet” exceed those by “assault weapons”.) So, the shooting seems justified whether or not the attacker was trying to get hold of his victim’s handgun (or the victim thought he was). Any size disparity, and the possible skill level of the victim shouldn’t be factors once the victim has been knocked to the ground.
I’m not familiar with Massachusetts law, but there may be a “duty to retreat” in their statues., though, I’m not sure how that would/ should apply when someone’s been knocked to the ground.
JMO, but he shouldn’t have been charged. Assuming there are no salient/ significant facts we’re not aware of, were I on the jury I’d vote for acquittal.
Here in NJ, I’ve seen people charged with use of a deadly / dangerous weapon which turned out to be a boot, fists and one time, even the sidewalk.
Had this guy, already on top of Hayes, slammed his head on the ground, it was possible to kill.
I can’t fault the guy for not taking time to calculate whether the criteria met the definition, in the moment and I don’t even know if he had PayPal.
Sometimes you just have to do what you think is necessary to get home for dinner.
I don’t doubt that GI Joe had an objectively reasonable and actual fear of at least great bodily harm. It’s hard to tell if he was turned towards or facing away from Ponytail Guy when the latter took his flying leap. Either way, GI Joe wasted little time in shooting Ponytail Guy in the gut. So that raises the question: Where was the gun in the moments leading up to the attack? The answer(s) to that question likely will have a big difference between a conviction and an acquittal.
People who take concealed carry seriously practice. They practice situational awareness, drawing under duress and distraction, drawing quickly with target acquisition, and any other condition they can think of.
He may not have specifically practiced drawing after being jumped on and knocked down, but if he was, as it seems from this incident, of that type he was much more prepared than an average person for a high stress encounter and how to deal with it.
This is not your “I’m a big man because I have a gun” type with molon labe and skulls with a roman numeral 3 stickers in their rear window. This is the quiet type who is much more efficient when the manure hits the rotary air impeller.
It makes perfect sense to charge the veteran and not his attacker. Ordinary citizens cannot be allowed to think that they may be allowed to defend themselves. A citizen’s personal defense is best left to the trained professionals in our nation’s police forces. Next time you’re attacked, don’t defend yourself. Dial 911. When seconds count, the police are just minutes away.
I was wondering if “violation of constitutional rights causing injury” was a real thing. it seems to actually be.
I found:
(Ed. note: Link deleted per rules.)
that seems crazily open ended.
as far as the question
I don’t see how the veteran could have known whether or not the guy had a weapon, so unless further information comes out, I don’t think he should be guilty.
I teach classes in armed self-defense, albeit down in Florida, where the laws are both a bit clearer and more supportive of self-defense. The facts are not ideal for a claim of self-defense, but it seems justified to me. Being knocked down does not justify the use of deadly force. When someone knocks you down and is on top of you, a reasonable person might believe his life is in danger.
“… there is little basis to have a reasonable fear of death.” Someone jumping through the air to tackle me, then proceeding to grapple with me on the pavement – that’s absolutely a reasonable fear of death. People die from similar circumstances all the time. Once someone starts that sort of fight with you, you don’t have the luxury of knowing whether they’ll conclude the fight according to the Marquess of Queensbury rules or whether they’ll smash your brains out on the sidewalk if they get the upper hand.
“… trained army(?) veteran, likely capable of fending off an unarmed attacker.” This isn’t Jack Reacher, where Army soldiers have super special skills and abilities that they maintain for years after they leave the service. This is a late-middle-aged guy who for all you know might have effectively been the Army cable guy.
Sean Connery: “He pulls a knife, you pull a gun. *That’s* the *Chicago* way.”
Kevin Costner: “What if he just pulls fists? Do I still pull a gun?”
Sean Connery: “I said Chicago, pal. Enough of this Florida shit.”
I’m not sure if you were alluding to the Zimmerman/ Martin shooting here, but there are valid reasons for such a comparison.
Per Zimmerman’s testimony, he was on the ground being pummeled by Martin, when Martin felt the gun in Zimmerman’s waistband and tried to take it. The two men struggled over the weapon and Zimmerman shot Martin once, killing him. Contrary to what was widely reported, Florida’s “Stand Your Ground” law did NOT figure in this incident.
The officers responding apparently recognized that Zimmerman had been acting to defend himself and chose not to charge him. The media ran with the story of a white man “gunning down” a young black man wearing a hoodie and the resulting outcry caused the DA to charge Zimmerman. At trial it became clear that all the physical evidence and witness statements were consistent with Zimmerman’s account of events and he was acquitted.
I expect that if this case goes to trial, it will end in an acquittal, too.