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.
