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WATCH: Pro-Israel Protester Shoots Pro-Hamass Protester. Was It Self-Defense?

Aaron Walker
Aaron Walker  |  3:16 AM on September 13, 2024
AP Photo/Matt Rourke

First off, let us start with a CONTENT WARNING. We are about to show you video of the moment that a man is shot. It is not a gory video and in fact, this author has slowed the video down to half time and can’t actually see the shot being fired, but if the mere fact of seeing a person get shot upsets you, you might not want to look. And as of this writing, the person who was shot appears to be alive, although he has been significantly harmed.

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Still, on Thursday there was a small group of people demonstrating in favor of Israel when a pro-Hamass individual decided to argue with them. Then, for some reason, the pro-Hamass man decided to run across a busy street and tackle a man later identified as Scott Hayes—wearing a blue shirt. There was a scuffle involving multiple people and, in the process, Hayes allegedly shot him. We say ‘allegedly’ because for all we know, Hayes might later claim the gun went off by accident, perhaps in a struggle.

Here’s that video:

Now, let’s put some law into this. Let’s assume for the sake of argument that Hayes deliberately fired the gun. That might not be true, but let’s play pretend.

First, Massachusetts appears to be a duty-to-retreat state, where if you are in public, before you are allowed to use lethal force, you have a duty to retreat if you reasonably can. And, bluntly, intentionally shooting another person with a regular gun is always going to be considered lethal force, even if the person who was shot doesn't die.

But one point people often miss is that the duty to retreat only applies in the second before you use lethal force. So, it doesn’t typically apply when two people are arguing or even when the only fear is of non-lethal force—lethal force being force that can cause either death or great bodily harm. So basically, Hayes’ duty to retreat doesn’t appear to be triggered until just before he actually fired—again assuming it was intentional.

But the duty to retreat is not absolute. It only applies if you can reasonably do so in safety and at the moment the shot was fired, Hayes was physically incapable of getting away. So, the duty to retreat appears to have no bearing on this—and for the same reason, we didn’t think it applied in the Trayvon Martin case, either.

We are still hedging our bets to a degree because if you watch closely, there is a cut between the argument and the moment the person who was shot started to cross the street. So, for instance, if he had threatened Hayes before crossing, then obviously Hayes could have left.

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But, in that hypothetical scenario, could he have left in reasonable safety? It is not entirely clear, because it would depend on the nature of the threat. If the person who was shot had threatened to shoot him while indicating he had a gun, Hayes might have been concerned about attempting to leave—he literally might have been afraid of being shot in the back. We are not saying that the man who was shot did any of those things, we are simply describing a hypothetical scenario where he would perceive potentially a deadly threat before the attack, but not be required to retreat.

Furthermore, Hayes would have a right to defend the others who were there, and so the government would have to argue that he could have left without leaving other people in unreasonable danger.

And of course, we would renew our basic objection to the duty to retreat rule in the first place. These protesters had a right to be there and to express their viewpoints without being threatened or being attacked. They should never be required by the law to leave because someone else posed a threat to them. That person should be required to leave. Otherwise, we create a situation where law-abiding people have to cede the public square to thugs. Most people won’t do that unless they specifically know they have a legal duty to do so, and they shouldn’t have to do that, either.

The other question is if Hayes did reasonably fear death or great bodily harm at the moment he pulled the trigger—still assuming he did so intentionally. That will depend greatly on what was happening and what Hayes reasonably perceived at that moment. For instance, if Hayes reasonably believed that his assailant was armed, or that he was reaching for Hayes’ gun, Hayes might have been justified in believing he was in danger of death or great bodily harm. But, bluntly, we can’t see exactly what Hayes saw at that moment, we can’t see where everyone’s hands are and so on, so we can't say at this time.

Which is a good time to bring up something else. Ms. Akiva provides a full report based on this incident, here:

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And one of the most outrageous lines in it is this:

Hayes is being charged with assault and battery with a dangerous weapon and violation of a constitutional right causing injury[.]

We have some sympathy with the notion that they don’t want to release Hayes until they are sure he acted lawfully. That justifies charging him with assault and battery for the time being, to make sure he stays in jail until the investigation is over. But there is no cause for a charge of a violation of a constitutional right. Here’s what the statute says:

No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the commonwealth or by the constitution or laws of the United States.

First, just to translate a bit of legalese into English, ‘acting under color of law’ means whether or not you are essentially cloaked in government power. A cop on duty is acting under color of law, for instance. A private citizen is not.

But the gist of the charge is hat Hayes did this to try to silence the person he allegedly shot in violation of his right to freedom of speech, and, well, you can see in the video that if anyone should be charged with that, it should be the person who was shot. 

You don’t have a right to attack someone just because you disagree with them. Contrary to what a bunch of fools have said, it is illegal to just punch a Nazi because you don’t like him. And, bluntly, the man who was shot looks a lot closer to being a Nazi than his opponents.

And to its credit, the ADL is calling authorities out for this charge:

The cut off text reads:

Protests should not subject anyone to violence. We encourage Newton Police and the Middlesex District Attorney to conduct a thorough investigation of the entire incident. We are concerned about escalating tensions and remain in contact with law enforcement and community officials.

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This whole thing smacks of the authorities being biased against the pro-Israel side in this fight.

That is incidentally jumping ahead in Ms. Akiva’s thread. Here’s the rest of it:

That second video is likely to help Mr. Hayes in whatever defense he offers. He is seen asking for someone to call the police and trying to give aid to the person he shot. And you might have noticed in the first video that Hayes appeared to drop his gun after shooting. Those actions are consistent with a man who never wanted to hurt anyone (but maybe had no choice) and doesn’t think he did anything wrong.

That press conference solidifies this author’s belief that it is wrong to charge Hayes with violation of constitutional rights. They indicate that they know that the person who was shot initiated the physical confrontation. So, they should at least doubt that Hayes was motivated by a desire to silence the person he shot. Rather, his obvious motivation—if he intentionally shot at all—was the fact he was being attacked. Even if he was not justified in using lethal force, his motivation is still obviously the fact he was being attacked.

Akiva next shares a link to a legal defense fund for Hayes:

Of course, our misgiving right now is that it with GoFundMe, which has a history of refusing to allow people to raise money in their defense if they don’t like you. 

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A few reactions:

We like that patch.

At the very least, this is a reminder to people not to start fights if only because the other person might severely injure or kill you. Even if Hayes is found guilty of assault and battery, is that going to undo being shot? Is that person’s life going to be better going forward because he attacked Hayes? Or would he have been better off remaining peaceful?

And, of course, imagine if eventually Hayes is set free based on self-defense. How good will the person who was shot feel, then?

We think the answer is obvious. 

Ms. Dowd lives in Massachusetts so we defer to her on local geography. The cut off text reads:

This incident apparently took place at a pro-Israel event. I find it VERY WEIRD and disturbing, if true, that the local police and prosecutors immediately arrested and charged the man who was acting to save someone’s life in the face of a full-on life-threatening rage-filled assault.

We tend to think that if you shoot someone in lawful self-defense, you aren’t going to be walking free for several days, so a charge of assault and battery makes sense as a mechanism to keep you in jail during the investigation. But the violation of constitutional rights charge suggests a bias in local authorities.

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We will say bluntly we cannot verify that @ScottHayes11b is the same Hayes we have been talking about in this piece. But we will note he hasn’t posted on Twitter/X for a while, which is consistent with a person being in jail.

Also, while the pro-Hamass attacker might not be in jail, we doubt he will be in any position to attack anyone else for a while. But we absolutely think he should be charged in the attack. Even if it is eventually proven Hayes was wrong to use that much force to fight back, the pro-Hamass man clearly struck the first blow.

We deserve to know the name of the person who was shot. We deserve to be able to crowdsource his background, including any criminal record.

The problem with that analysis is that Hayes was already on the ground when he fired. This argument would work better if Hayes shot before the other person tackled him.

Finally, we get this from another lawyer:

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We’re not ready to say it was definitely lawful self-defense, but we will say that a fair-minded jury will have a hard time believing it was not, beyond a reasonable doubt. That would be the same legal standard that set Rittenhouse and Zimmerman free.

But can Hayes find a fair minded jury in that part of the country? We honestly don’t know.

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Tags: ISRAELI-PALESTINIAN CONFLICT LAW LAW ENFORCEMENT MASSACHUSETTS PROTEST PROTESTERS

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