Unfortunately, yes, he was. But that's what can be used against him. His assailant wasn't trying to murder him. In fact, he stopped hitting him. He just stood there and intimidated him. If you're gonna argue that you had the right to kill him, he needs to be doing something more than mean-mugging you.
If he's got any chance of avoiding a conviction for murder, there's gotta be saying something about Simon threatening to kill him, and then not letting him leave. At that point, it's an argument that a jury can parse through. Without that, he's genuinely guilty of murder, and his articulation of imminent grievous bodily harm is going to have to be some stretch-armstrong levels of rationalization.
New York law states that self defense using deadly physical force is not permitted unless a person reasonably believes that deadly physical force is being used or is about to be used on himself, herself or a third person. Even in such a situation however, the law imposes on a person a duty to retreat before he or she can resort to using deadly physical force if they can retreat with complete safety.
If the guy genuinely believed his life was in danger then according to the law, he could use lethal force because he literally had no place to retreat. He could probably argue the the violence was escalating leaving him no choice but it might be a tough sell to a jury. If he's been robbed or assaulted before that may help speak to his state of mind, but again, it might be difficult to convince a jury.
At the point Alba grabbed the knife Simon had picked him up by the scruff of his collar and was marching him past the knife to God knows where to do god knows what.
Given the obvious size and fitness differences, the now-or-never choice being presented by being forced out from behind his counter, and the fact he was still being physically restrained and taken against his will, that should cover the bases for inability to retreat and reasonable belief that his life was in danger.
When the choice is take the last possible opportunity to use his only known and reasonably likely means of successfully defending himself, or let himself be abducted by someone with unknown intentions who had already demonstrated a desire to do him bodily harm, he was justified in taking immediate action at the last moment it was presented to him, even if it necessitated lethal incapacitation of his attacker. The argument that a dazed old man who'd just been thrown into a wall can definitely escape that weak collar grip imay not be untenable but certainly isn't beyond reasonable doubt, and should not be basis for a murder conviction.
At the point Alba grabbed the knife Simon had picked him up by the scruff of his collar and was marching him past the knife to God knows where to do god knows what.
You've got that completely backwards. Alba was walking away. Simon grabbed him, and that's literally the only thing that Alba has in his defense for why he had to use lethal force: Simon stopped him from leaving. Simon didn't take him, and wasn't going to take him, anywhere.
I dunno what to say, watch the video again to see if you see what I saw, I guess?
Alba is sat down still after being shoved, has no knife in his hands.
Simon approaches Alba still seated and reaches forward with his right arm, hand is blocked by camera.
Simon pulls back and Alba seems to be tugged left before standing up, can clearly see Simon has a fistful of Alba's shirt from behind his neck.
Simon pushes Alba forward towards scene left, can see Simon's hand holding the shirt pushing in front of Alba's body rather than pulling it back.
As he's being pushed left Alba lunges forward and left off camera and turns to face Simon, knife now in hand.
Simon still has hold of Abla by the shirt collar, dodges his lower body back from a potential blow and reaches for the hand holding the knife with the other.
Actually some new information 100% reversed my position on this.
Simon's girlfriend had a knife and stabbed an employee.
The moment she did this, it is 100% reasonable to assume he would be murdered by either Simon or his girlfriend who'd already used lethal force during the armed robbery.
Adding the intimidation and captivity to that is just icing on the cake.
In the US, self-defense is an affirmative defense. Basically, you're admitting to a pre-meditated homicide that you are saying you had to commit.
I don't like it, but that's why Binger kept pushing Kyle Rittenhouse to say he shot Rosenbaum to defend the Car Lot. That's an admission of pre-meditated homicide over property. Which is considered murder in every state but Texas under ultra-specific circumstances. If you or someone else wasn't in danger of grevious bodily harm or death, and you used lethal force over property, you're looking at very hard time.
Frankly, most Americans believe in lethal force over both property and trespassing as a moral justification, but American law hasn't for about a century.
The danger with a self-defense claim in the US is that you are doing 90% of the prosecutors work for them:
Yes, you did it
Yes, you used lethal force
Yes, you intended to use lethal force
But you had to.
So, everything relies on that last part. The prosecutor gets to ask why, and if your excuse is anything besides: "I had to save my life or the lives of others in that exact moment", it's murder.
Unfortunately, that means that proportionality is a major part of that. Could he have done anything else besides stab Simon in the throat to save his own life? If the answer is yes, then there's big problems for his defense. From what I'm seeing, I'm not even sure that he needed to. This is why I'm harping on what (literally) Simon says. The whole situation changes if a jury will believe Alba when he says "Simon said he was going to kill me". That functions as evidence that a reasonable man could argue is in fear of their life. The argument he'll need is:
"This man and his angry girlfriend attacked me over a bag of chips. Their actions were disproportionate, violent, and unpredictable. Simon was attempting a strong-armed robbery which is a felony. However, he said he would kill me which is an assault on it's own, and he held me captive which is another violent felony. When I tried to escape, he grabbed me and I assumed I was going to die because he told me so, so I grabbed a knife to defend myself. My actions were proportionate to the threat I faced."
He'll need most of that argument, but without "he said he would kill me", a jury could look at this as Simon being a tough guy in front of his girlfriend, and not expecting to get stabbed to death over it. It's obviously a case of social violence, but social violence doesn't necessarily give you justification for lethal force.
Unfortunately, yes, he was. But that's what can be used against him. His assailant wasn't trying to murder him. In fact, he stopped hitting him. He just stood there and intimidated him. If you're gonna argue that you had the right to kill him, he needs to be doing something more than mean-mugging you.
If he's got any chance of avoiding a conviction for murder, there's gotta be saying something about Simon threatening to kill him, and then not letting him leave. At that point, it's an argument that a jury can parse through. Without that, he's genuinely guilty of murder, and his articulation of imminent grievous bodily harm is going to have to be some stretch-armstrong levels of rationalization.
New York law states that self defense using deadly physical force is not permitted unless a person reasonably believes that deadly physical force is being used or is about to be used on himself, herself or a third person. Even in such a situation however, the law imposes on a person a duty to retreat before he or she can resort to using deadly physical force if they can retreat with complete safety.
If the guy genuinely believed his life was in danger then according to the law, he could use lethal force because he literally had no place to retreat. He could probably argue the the violence was escalating leaving him no choice but it might be a tough sell to a jury. If he's been robbed or assaulted before that may help speak to his state of mind, but again, it might be difficult to convince a jury.
He should argue that he was attempting to leave the store, but Simon grabbed him and held him captive. That's really his only saving grace.
At the point Alba grabbed the knife Simon had picked him up by the scruff of his collar and was marching him past the knife to God knows where to do god knows what.
Given the obvious size and fitness differences, the now-or-never choice being presented by being forced out from behind his counter, and the fact he was still being physically restrained and taken against his will, that should cover the bases for inability to retreat and reasonable belief that his life was in danger.
When the choice is take the last possible opportunity to use his only known and reasonably likely means of successfully defending himself, or let himself be abducted by someone with unknown intentions who had already demonstrated a desire to do him bodily harm, he was justified in taking immediate action at the last moment it was presented to him, even if it necessitated lethal incapacitation of his attacker. The argument that a dazed old man who'd just been thrown into a wall can definitely escape that weak collar grip imay not be untenable but certainly isn't beyond reasonable doubt, and should not be basis for a murder conviction.
You've got that completely backwards. Alba was walking away. Simon grabbed him, and that's literally the only thing that Alba has in his defense for why he had to use lethal force: Simon stopped him from leaving. Simon didn't take him, and wasn't going to take him, anywhere.
I dunno what to say, watch the video again to see if you see what I saw, I guess?
Actually some new information 100% reversed my position on this.
Simon's girlfriend had a knife and stabbed an employee.
The moment she did this, it is 100% reasonable to assume he would be murdered by either Simon or his girlfriend who'd already used lethal force during the armed robbery.
Adding the intimidation and captivity to that is just icing on the cake.
womp womp
Good to know. Seems self-defence is just about as theoretical a concept in NY as it is in my own UK...
In the US, self-defense is an affirmative defense. Basically, you're admitting to a pre-meditated homicide that you are saying you had to commit.
I don't like it, but that's why Binger kept pushing Kyle Rittenhouse to say he shot Rosenbaum to defend the Car Lot. That's an admission of pre-meditated homicide over property. Which is considered murder in every state but Texas under ultra-specific circumstances. If you or someone else wasn't in danger of grevious bodily harm or death, and you used lethal force over property, you're looking at very hard time.
Frankly, most Americans believe in lethal force over both property and trespassing as a moral justification, but American law hasn't for about a century.
The danger with a self-defense claim in the US is that you are doing 90% of the prosecutors work for them:
So, everything relies on that last part. The prosecutor gets to ask why, and if your excuse is anything besides: "I had to save my life or the lives of others in that exact moment", it's murder.
Unfortunately, that means that proportionality is a major part of that. Could he have done anything else besides stab Simon in the throat to save his own life? If the answer is yes, then there's big problems for his defense. From what I'm seeing, I'm not even sure that he needed to. This is why I'm harping on what (literally) Simon says. The whole situation changes if a jury will believe Alba when he says "Simon said he was going to kill me". That functions as evidence that a reasonable man could argue is in fear of their life. The argument he'll need is:
"This man and his angry girlfriend attacked me over a bag of chips. Their actions were disproportionate, violent, and unpredictable. Simon was attempting a strong-armed robbery which is a felony. However, he said he would kill me which is an assault on it's own, and he held me captive which is another violent felony. When I tried to escape, he grabbed me and I assumed I was going to die because he told me so, so I grabbed a knife to defend myself. My actions were proportionate to the threat I faced."
He'll need most of that argument, but without "he said he would kill me", a jury could look at this as Simon being a tough guy in front of his girlfriend, and not expecting to get stabbed to death over it. It's obviously a case of social violence, but social violence doesn't necessarily give you justification for lethal force.
I'd like to see that part of Arizona's criminal code if you got it.
A kidnapping is likely to be considered a lethal act considering the survival rate of being moved to secondary locations is vanishingly low.
And I already told you why I reversed my position elsewhere.