Category: Carrying / Self-Defense

More detailed information on the Ung testimony at Phillylacrosse.com.

“I saw the group of guys and I saw Joy jumping up to the scaffolding and a guy kicked out at her,” Ung testified. “I said, ‘Joy let’s go’. I got 10 to 15 feet … I heard someone screaming … hey, hey I’ll touch her if I want, bleep.’

“I said, ‘Seriously, dude.’

”We began to walk backwards away from them. They kept coming at us; kept screaming. Tom kept coming at my back I just remember him screaming and Joy screaming. Tom was coming at me; he was right up on Joy.

“This guy was attacking Joy. I remember her pleading with him. He said, ‘I’ll bleeping kill you!’

” I walked away. I thought I saw Tom was reaching for something a gun or knife. I thought this guy was going to attack us again. We continued to walk away.”

Next time we report on this case, it should be with a jury verdict.

UPDATE: More over at Above the Law.

The Philadelphia Inquirer reports that witness testimony is over in the trial. It now goes to closing arguments, and to the jury. I will keep my fingers crossed that justice is served.

“I tried to kick him [DiDonato] away first,” Ung, 29, told a Philadelphia Common Pleas Court jury this morning, describing the incident at Fourth and Market Streets in Old City.

“He grabbed my right leg and I started to fall backward and my shoe came off. I just remember seeing sparks and hearing pops.”

Defense attorney Jack McMahon, who has argued that Ung fired in self-defense, drove the point home: “Did you shoot?”

“Yes, I pulled the trigger,” Ung replied though he added he did not know how many times he fired the .380-caliber semiautomatic pistol he had a permit to carry.

That’s not unusual. The same thing happens to police officers. You shoot until the threat ceases, and unfortunately, DiDonato fell into Ung, which a reasonable person couldn’t distinguish easily between going down and continuing to attack. The ADA seems to be hinging her case on Ung keeping up the “expletive-punctuated banter” with DiDonato. This is presumably to convince the jury Ung was a willing participant in the affray, but I don’t think words are an invitation to a beating.

The Philadelphia Inquirer has their report on the Ung testimony. They note:

Keh said she approached the scaffolding as DiDonato’s friend Andrew DiLoreto was doing pull-ups. Keh said she tried to do a pull-up and was distracted by a loud argument.

She said she turned to see one of DiDonato’s group – she could not remember who – legs apart, hands gesturing to his crotch, yelling, “Well, come on!”

“What did you say?” was Ung’s reply, Keh said.

The Inquirer notes that we still don’t have any testimony that sheds light on what started it, but my guess would be DiDonato and his buddies started making rude gestures to Keh, which Ung took great exception to. Standing up for reasonable standards of public behavior is not invitation to a beating.

It is unfortunate, or perhaps fortunate, that the media has lost interest in reporting this case, but Phillylacrosse.com is still on it. We now have testimony from Ung’s friends, who were with him that day:

“My attention was on Eddie,” Afsarmanesctehrar testified. “It was going fast and out of control. I had a feeling he was coming at us. Just my personal feeling

“I was really scared. At the last moment there was no way we could stop these kids from coming.”

I have to hand it to both attorneys if they correctly pronounced that name every time :) More important I think is the testimony of the girlfriend that was with Ung.

Another defense witness, Joy Keh, who was with Ung and Afsarmanesctehrar, called DiDonato and his friends “a bloodthirsty gang.”

She said she was extremely fearful because “the white hat guy (Kelly) was about to sucker-punch Gerald’s blind side. I blocked him. They were screaming and being aggressive; they wouldn’t stop.

I heard (Kelly) scream, I’ll kill you; you’re dead.” Then she testified she screamed back, “Stop, you’re a good person!” She claimed he rushed them again.

I seem to recall that one of DiDonato’s friend testified that she was flirting with them. Id like to know what kind of flirting makes a girl fearful. As far as I’m concerned Gerald Ung should walk, just based on this. You have five drunk, beefy athletic young men against two smaller guys and a girl, and the group of five have said “I’ll kill you; you’re dead?” What are the elements of a strong case for self-defense?

1. Ability? This means that the attackers have the means to inflict grave bodily injury or harm. Five guys that big can kill with their fists and feet, and more importantly can prevent flight.
2. Opportunity? Opportunity means they are in a position to inflict such force. They were in the process of rushing Ung. Ung was armed. He stupidly had told them so. Once the gun came out, he was charged by one of the parties. The party did not break the attack once the gun was displayed.
3. Jeopardy? This means that the attackers were acting in a manner where a reasonable person might assume they have intent to inflict grave bodily injury or harm. You have that right here: “I’ll kill you; you’re dead.” I’m not going to demand Ung find out whether they are kidding or not, especially when they do not break off the attack when the party being attacked is known to be armed.

I don’t think Ung had a choice if he didn’t want to end up in the hospital at the least. Maybe he did make a crack that provoked the five young men. That was his mistake. But that’s not an invitation to beat someone. The only thing left is whether he violated a duty to retreat. Ung was in the process of retreating when it escalated to physical violence. By the time he was being physically attacked, the girl was engaged with the guy in the white hat, and Ung was engaged with three other men. The law requires that all members of the party be capable of retreating to complete safety.

If Ung is found guilty, I’ll read the transcripts before I render final judgement. Some key bit of information might be missing from this testimony, and we only have bits and pieces. But from what I see here if he is found guilty it’ll be one travesty of justice. The others will be that DiDonato and his friends haven’t been charged with simple assault yet.

From the Inquirer. This largely matches what I saw.

Anyone who wants to take a close look, I would recommend screen capturing the video and slowing it down. You can pretty clearly see the following action happen:

On the video, the two groups walk toward the cameras mounted outside the Fox29 studios at Fourth Street and Market: Ung and friends, then DiDonato and his friends about 10 feet behind. Kelly, recognizable in a white cap worn backward, darts into Market and walks ahead to flank the trio.

Ung kicks at Kelly, backs up, and holds up a gun. Suddenly, DiDonato moves forward and appears to lunge at Ung.

Twice Kelly rushes to the sidewalk at Ung. The first time he is pushed away by the woman. The second time, he gets through.

And that’s the point where Ung starts firing. It looks as if DiDonato fell onto Ung, which can explain why Ung kept firing. It would be difficult to tell the difference between someone falling on you, and continuing to attack you.

Delaware has always been one of those states that neither side could really move. Their carry are may-but-we-kind-of-sort-of-mostly-issue, but other than that Delaware’s gun laws aren’t that different from most other states. Neither side has tried very hard to change anything until now:

Gov. Jack Markell announced a package of bills Wednesday aimed at strengthening Delaware’s gun laws.

He wants to “close the gun show loophole,” make it illegal to possess a firearm under the influence, improve reporting to NICS, and allow seized firearms to be destroyed. The first one is non-negotiable, but I’d trade making it illegal to carry under the influence to make Delaware a shall-issue state. No word on what the legal BAC limit would be, but if it’s the same as an automobile, I have no objection.

Especially in the comments over at Above the Law, many of whom are obviously lawyers. Massad Ayoob has some worthwhile things to say about defense against unarmed opponents. I don’t think it’s a situation you ever want to be in, and is one reason I’ve been convinced of the utility of carrying a defensive spray.

Multiple attackers is a tough situation, however. And it wouldn’t do much good to spray one guy only to get rushed by others. The advantage of spray is you can employ it much much earlier in the confrontation than you can deadly force. It is a step above verbal commands on the force scale. A good strategy would be, early on in the encounter, before it escalates, to spray the most aggressive member of the group and run like hell, while drawing your firearm. If you’re pursued by the remaining meatheads and end up trapped, your use of deadly force is going to look a lot more reasonable to police, prosecutors, and if it goes that far, to a jury.

Ung’s situation is far from good, however. DiDinato’s group was five strong. Ung had two other people with him, including one female. We don’t know yet whether Ung or any of the people in his group were intoxicated. Even if Ung wasn’t, it could complicate his retreat options if the others are. It could complicate his options if any of the members of his party were running their mouths off.

But generally speaking, if you shoot someone who’s unarmed, you can probably expect a trial, unless it was so clear cut (like a group of men surrounding a sixty year old man) that no prosecutor would risk it. Whether or not Ung acted reasonably, or not, will be up to the jury to decide. Once you’re in that situation, in a lot of ways your life is already ruined.

From Above the Law, with plenty of links. We now have more information from the Philadelphia Inquirer:

Police Officer Mario DeLuca, who also testified Tuesday, said he and his partner were on “nightclub detail,” parked at Third and Market, when they heard four or five shots.

Within five seconds, DeLuca testified, they arrived on the scene and witnesses were pointing to Ung as the shooter. He pushed Ung against a wall and needed two other officers to help handcuff Ung.

DeLuca said he removed the .38-caliber pistol from Ung’s pocket.

“He was struggling,” DeLuca testified. “He kept saying, ‘I have a permit to carry.’ “

Two other officers in plain clothes or in uniform? It would also seem Ung may not have realized it’s a permit to carry, not a permit to shoot people. If police show up on a scene, and you’re standing over a dead guy with a gun, you can pretty much expect to be cuffed, at the least. We also learned, from other sources, Ung’s gun was a Kel-Tec in .380 caliber. Probably a P-3AT.

You might remember the shooting that was caught on a Fox News studio surveillance camera a year or so ago. Quite a number of people thought this looked like a legitimate case of self-defense. Gerald Ung’s trial for attempted murder is now underway.

Assistant District Attorney Jan McDermott told the Philadelphia Common Pleas Court trial that the evidence will show that Ung, a native of Fairfax, Va., became infuriated when DiDonato and his three friends appeared to be flirting with Ung’s female companion.

“Don’t . . . me off,” McDermott said, quoting Ung. “What he was saying was, ‘I got a gun, I’m a man and I’ll show you.’ “

Gun people need to watch this trial carefully, because this is going to be instructive about what you can expect to go through if you shoot someone who doesn’t have a weapon.

Already we have a key mistake on the part of Ung. Verbal command should be telling them to back off, not “Don’t piss me off.” If they don’t respond to verbal commands, you should have some kind of less-than-lethal option to go to. If they produce a weapon or start to attack you, go to the gun. In Ung’s case, from what can be seen in the video, he did not produce a firearm until he was being attacked, and it appeared to me he was in the process of retreating.

Force disparity should be easy here. Multiple attackers on one person doesn’t leave you with a lot of choices if you don’t want to end up in a hospital. The key question will be whether Gerald Ung created the circumstances that lead to him having to use deadly force. I would imagine the testimony of Ung’s girlfriend is going to be key in this, because it’s hard to imagine a jury is going to convict someone of attempted murder if he was trying to protect his girlfriend from unwanted harassment by a group of drunken men.

UPDATE: Much more information here. I still don’t see anything yet that defeats the self-defense claim.

UPDATE: Prior link has been updated with more testimony:

“The defendant resisted handcuffs and wouldn’t give the gun to the police. They had to pull their guns to get his gun. Use every day common sense and watch and listen.”

Bad move. This will greatly complicate Ung’s defense.

That Chance Ballew guy, who rumor has may or may not be a well known blogger, has a new article up at Shooting Illustrated highlighting a holster for carrying pocket pistols. There’s no doubt about the fact that pocket carry is suboptimal. My draw from pocket is a good two seconds slower than from IWB at 4:00. The Executive looks like an interesting holster, but just based on the photos, I’m concerned about a few things, based on my experience carrying the P3AT. Some of these might be issues with the P3AT more than whatever holster you’re using. As guns go, I would say the P3AT, Ruger LCP, or other small pocket pistols are very hard to design an effective holster for just because of their size.

I’ve noticed a tendency for the magazine release to trip on the P3AT in pocket carry, because it’s not protected by the holster. It hasn’t happened often, but it’s an issue. That said, I’m not sure how much you can really do about it, because the holster needs to ride low enough to allow you to get a decent grip for the draw. But a holster that rides low on the gun also doesn’t leave much leather holding onto the gun. The other issue I’ve had with conventional leather holsters is that in regular use the split leather smooths out considerably, and they lose their ability to retain the firearm after a while. Retention on the split leather pocket holster I have was adequate when I first got it, but after use, if I turn my pocket holster upside down with the P3AT in it, it’ll dump.

It’s for this reason I’ve largely kept to pocket carry for the P3AT, where protection of the trigger is more of an issue than retention of the gun. I’d be wary of the P3AT carried IWB in something other than Kydex or boned leather, just for fear it’ll work its way out of the holster if it catches something while I’m sitting down. That’s less of an issue with a larger pistol, where there’s more leather to grab onto the gun, but more of an issue with a small pistol.