Houston criminal lawyers Neal Davis and my husband Bill Stradley represented Raul Rodriguez, a man convicted of murdering his neighbor in a confrontation relating to loud music from a party. A jury sentenced Mr Rodriguez to 40 years in prison.
There have been many media reports about this case. It is difficult to find ones that are entirely factually accurate.
Public Interest in Stand Your Ground Laws, Gun Policy.
This case has generated public interest for many reasons: 1. The 22:03 minutes leading up to the shooting are all captured on video. 2. Kelly Danaher was a widely-beloved teacher, husband, father who died over something that didn’t have to happen. 3. The very publicized Trayvon Martin case has brought public attention to concealed handgun licenses and stand your ground laws.
I have been following the case and the media coverage very closely. Often with legal issues of public interest, I’ve observed that much of what is reported in the media is usually not quite right or can be misleading.
It’s hard to report legal issues in a way that is accurate, fair, and complete. There are time and space constraints of many media forms. Some outlets do not rely on original reporting but making assumptions based on reporting of others. Sometimes the media doesn’t understand legal rulings and misreports them. Reporters may have limited access to key facts, especially facts from the defense point of view, due to attorney confidentiality during trial preparation. Most media outlets did not show the complete video due to space limitations, and depending on which excerpts you watch, it can make things look differently. Even seeing the video without context can make it appear different.
And sometimes media coverage can be sensationalized to what is most Facebook sharable. I’ve seen this case reduced to things like, “Man shot because of loud music.” It is not my intent to shake my fist at a hostile media as I understand first hand how difficult it is to get the story right, fair, and quickly. I’m just adding a perspective I don’t think has been widely discussed.
If this ruinous case is going to be part of the public discourse on self defense laws, stand your ground and concealed handgun licenses, then at a minimum, people should understand the facts, law before drawing conclusions.
This blog post will serve as an attempt to answer basic questions, clarify key issues relating to this trial. It is based on what I know of the testimony, the law, and the evidence that is all public record. I’ve heard plenty of public comments on this case, and many of the basic and agreed facts are perceived incorrectly.
The final agreed transcript of the video is at the end of this blog post (strong language warning).
Rodriguez Fact and Law Sheet: Stand Your Ground, Concealed Handgun Licenses, Self-Defense, Texas Law
Why didn’t Raul Rodriguez call the police about his noise complaint?
Rodriguez did call the police that night. Many times. Before he went towards his neighbors house to meet with the police. While he was waiting for the police. During the confrontation with his neighbors. He was on the phone with police the exact moment of the shooting.
If the party was so noisy, why didn’t the police stop it?
Uncertain. The police arrived at the party area twice. The party goers were doing karaoke on their porch on and off during the day and into the evening. The nature of karaoke is that it is intermittent. If the police arrived when there was no singing, then there would be nothing to quiet down.
The incident happened in a wooded area outside of Houston. The party-goers could easily believe they weren’t bothering anyone. Rodriguez who lived two houses down, lived in a trailer home with thin walls.
The video is shot a little after midnight.
Why did Raul Rodriguez have a video camera with him?
At the scene of the shooting, police found a internet printout from the Constable’s office about the acceptable decibel levels and filing nuisance complaints. Rodriguez had this print out with him, and as he says on the video, was intending to meet the police in the street outside his neighbor’s home to document how loud the noise levels were.
What noise? The video doesn’t have party noise.
Some excerpts of the video do not have the party noise in them. In the first roughly 14 minutes of the video, you can hear karaoke/microphone talking that was coming from the party. It sounds loud on the video with people shouting back and forth on the microphone.
Why did Rodriguez carry his gun with him?
The testimony was that Rodriguez possessed a Concealed Handgun License (CHL) and holstered his gun with him every place where it was legal to do so. This is not an uncommon practice for Texas CHL owners. The Governor of Texas, Rick Perry apparently takes his laser-sighted pistol with him while jogging, and reportedly shot a coyote that threatened his dog.
Why did Rodriguez go to his neighbor’s driveway/property with a gun?
Rodriguez never went to his neighbor’s house or was ever on any part of his neighbor’s property. He was standing on the public street in front of his neighbor’s driveway waiting on police officers to arrive with his gun concealed and holstered. It was not his intention to confront anyone. It was his intention to meet the police officers and show him the video of the music.
Under what circumstances can you brandish a gun in Texas?
Under Texas Penal Code 9.04: “The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.”
The short version of that is if you have reasonable belief of immediate fear for your life or of serious bodily injury, you can brandish your weapon. [Correction 5:55pm 6/27]
Under Texas law, a jury is to evaluate the need for use of deadly force from the point of view of the person who threats the use of force or uses it. A “reasonable belief” in the need to use force is that which would “be held by an ordinary and prudent person in the same circumstance as the defendant.”
Why did Rodriguez draw his gun?
Originally, as is shown in the video, he thought a car that was approaching him was the police. Instead it was one of the people at the party.
It is clear from the first discussions between the party goers and Rodriguez that Rodriguez is frustrated that they won’t turn down the music, and the party-goers are baffled by why this neighbor is standing in the road with a video camera.
The original communication between the people starts out in a hostile way. Rodriguez does a poor job of communicating why he is there. And one of the party-goers is hostile about turning down the music. At this point, an unknown number of party-goers start advancing from the driveway towards Rodriguez and don’t stop despite his repeated requests for them to do so.
In addition, as was shown in the pictures in court, the person who was killed had a flashlight in a holster that looks like a gun and was approaching him quickly from the side.
Rodriguez is also a disabled firefighter and may have felt particularly threatened due to his condition by the aggressive words/body language of the numerous people in the dark and had to make a split second decision to threaten the use of deadly force.
After he showed his gun, he put it back away after the party-goers backed away from him.
Under Texas law, there is no requirement to retreat before the use of deadly force. As was codified in Texas Penal Code 9.32(c) in 2007: “A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.”
As the user of a CHL on public property, Rodriguez had a legal right in Texas to be present at the location where deadly force was used and had no legal duty to retreat. In Texas, the jury is given what is called a “charge” to explain how to make their decision.
The charge given to the jury said, “You are not to consider whether the defendant failed to retreat.”
Who cares what Texas law says. Why didn’t he retreat if he were actually afraid?
In an early part of the video, he mentions a concern that the police will show up to his house late to discuss the noise complaint and not in a timely way. During the confrontation, he tells the dispatcher he is worried that the people at the party will suggest that he was waving his gun around instead of what really happened: him branding the weapon, and then re-holstering it. So if he leaves, he worries the police will believe the party-goers version of events. Throughout the confrontation, the party-goers repeat how Rodriguez is going to jail.
And at one point, both the party-goers and Rodriguez are all calling the police at the same time.
Near the end of the tape, Rodriguez does get slightly further away from the angry party-goers when he is talking to the police.
Didn’t Rodriguez “provoke person against whom force was used” and under Texas law, doesn’t that mean he’s not allowed to claim self-defense?
Under Texas Penal Code 9.32(c), you are not allowed to Stand Your Ground if you provoked the incident. Provocation is not defined by 9.32(c).
Provocation is defined by 9.31(b)(4): “The use of force against another is not justified….if the actor provoked the other’s use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor.”
There is a long line of case law in Texas about what provocation means. In sum, you aren’t allowed to murder someone or provoke them so that you have an excuse to murder them and then claim self-defense.
Intent is an essential part of the case law on provocation. It’s not enough that the shooter riled people up, or even intended to rile people up. The prosecution needs to prove beyond a reasonable doubt that the shooter riled people up with the intention to shoot someone.
The prosecution claimed that the defendant used CHL buzzwords of “fear for life” “stand my ground” on video so that when he shot someone, he could claim self-defense.
The defense claimed that the facts and the video shows that he didn’t want to shoot people. And that at the moment of the shooting, he was on the phone with police and was startled and afraid when he was rushed at.
There is a lot of case law on the issue of “provoke the difficulty” because it is easy even for lawyers to confuse the common view of provoke, with the legal view that it is provocation with the intent to be forced to kill in self-defense. The charge given to the jury on provocation isn’t the easiest to follow along as in its entirety; it goes for about 1 1/2 pages of the charge. In small, relevant part:
“if you find and believe from the evidence beyond a reasonable doubt that the defendant, Raul Rodriguez immediately before the difficulty, then and there did some act, or used some language, or did both, as the case may be, with the intent on his, the defendant’s part, to produce the occasion for shooting Kelly Danaher, and to bring on the difficulty with the said Kelly Danaher, and that such words and conduct on the defendant’s part, if there was such, were reasonably calculated to, and did, provoke a difficulty, and that on such account Kelly Danaher attacked the defendant with deadly force, or reasonably appeared to the defendant to so attack him or to be attempting to attack him, and that the defendant then shot Kelly Danaher with a firearm, in pursuant to his original design, if you find there was such, then you will find against the defendant on the issue of self-defense.”
Not the easiest read. Not sure that this should apply to this case because the prosecution claimed throughout the trial that Danaher didn’t charge Rodriguez triggering the shot. Or perhaps as a matter of law and not for a jury to decide, you can’t be provoking an incident if you are on the phone with the police at the moment of incident. If your intent is to provoke a reason to murder someone, being on the phone with the police is an odd way of demonstrating that. But how do you get the Stand Your Ground sort of no duty to retreat language in the jury charge language if you don’t have the definition of provocation under the law?
I apologize for the length of this answer. It took me a while to wrap my brain around the provocation aspects of these particular facts. It can’t be easy for a jury.
What caused Rodriguez to shoot? The tape gets very dark at the end.
Near the end of the tape, the truck that is partially illuminating the shot is pulled into the driveway. In addition, Rodriguez puts his flashlight down to hold his cell phone to call police.
Right before the shooting, there is a large bang that sounds like a gun. Rodriguez audibly reacts to that noise. No one is able to say what that noise was.
At the time of the shooting, Rodriguez is talking to police. The exact thing that happens after that is hard to tell because the camera is dropped.
What is agreed by all is that one of the party-goers makes a loud laugh right before the shooting.
At trial, it was claimed by the prosecutors that he took a few steps forward and just waved his arms.
At trial, it was claimed by the defense that the three guys who were shot charged toward Rodriguez, after the first person committed to charge toward him to disarm him while yelling.
Why should Rodriguez been afraid of his neighbors? They were his neighbors having a birthday party.
After he pulled his weapon and then re-holstered it, what was a difficult encounter with neighbors turned into a hostile one. They were threatening him and using profanity. At least one statement suggested that someone was going to get their own gun. Some party goers appeared intoxicated, and test results showed a few were over three times the legal driving limit of alcohol. Testimony at trial from one of the witnesses was that they “wanted to kick his ass.”
Under Texas law, self-defense doesn’t have to be against an actual attack. As the jury charge noted, “a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force was immediately necessary to protect himself against the use or attempted use of unlawful deadly force by his assailants.”
The law says that the jury is supposed to give the person claiming self-defense the benefit of the doubt. From the jury charge, “if you have a reasonable doubt on said occasion and under the circumstances, then you should give the defendant the benefit of the doubt and say by your verdict, not guilty.”
Some media reports say that Rodriguez walked away from the event without injury. Is that true?
Immediately after the shooting, Rodriguez received the abrasions shown on his face in his mug shot and had a broken ankle which made it difficult to walk. He was immediately arrested and put into the back of a patrol car.
Some of the stuff I heard about Rodriguez was that he was a bad person. What is the story on that?
The adversarial process means that the prosecutors will scrutinize every aspect of a defendant’s life in the search for bad information about them. Things with innocent explanations are then evaluated in hindsight with the view that the person is a bad person because someone is dead.
During trial, a number of people testified about negative things about Mr. Rodriguez. They characterized him as a bad neighbor who was angry, aggressive and gun-hungry. In closing arguments, the prosecutor claimed that family members who testified for him were brainwashed by him to do so.
Cross-examination and with rebuttal evidence contradicted the prosecution’s evidence and argument. Testimony revealed he served his country in the Navy for around 10 years and was a firefighter after that. He stopped being a firefighter after becoming disabled on the job. He had a clean criminal record.
What was the sentencing range for this case?
What should CHL holders/gun owners learn from this case?
This is where I diverge from both facts and law and squarely into my own opinion. (Nothing in this blog post, of course, should be considered legal advice):
The theory that you may learn in CHL class may be very different then when you are confronted with conflict in the real world and need to make split second decisions on the use of deadly force.
When a police officer uses deadly force in self-defense, prosecutors and juries tend to give them the benefit of the doubt, even in some circumstances when they were wrong about an apparent threat. (e.g. they thought there was a weapon but there wasn’t). People acknowledge that police are trained in using guns and when to use them and are often confronting danger in the day to day of their job.
When a private citizen uses deadly force in self-defense, they need to be prepared to be charged with a crime as they do not get such benefit of the doubt. They often need to hire an attorney, possibly go to trial, possibly go to jail.
This is especially true if the person killed has many people who loved them.
The adversarial process means that the person who uses a weapon will often get every aspect of their life scrutinized for information that could possibly paint them in a poor light.
If they own many guns as some gun owners do, attempts will be made to make bad inferences from that. If someone is a CHL holder and is wearing their gun outside their house, bad inferences will be made from that. If they served their country in the military, they may be painted as militant and controlling.
Nothing of defendant’s life will escape inspection: their work, their family life, their social life, their private internet and cell usage, their personality, everything about them. Things that they’ve said or done that may have innocent explanations will be interpreted in the adversarial process in the worst way. Even if they have a perfectly clean police record, any gossip about conflict or bad acts will often be a part of the adversarial process.
For CHL holders, it may be easier to demonize people who are charged with using deadly force in an illegal way. And believe that you would never get yourself into that situation. And that you never get into confrontations. And that no-one would attempt to paint you as an angry aggressive, gun-hungry bully after you were accused of murder.
Raul Rodriguez was waiting in the street for the police to arrive so he could make a nuisance complaint. I don’t think he could have planned the events to go the way they ended up going. It is easy to judge Rodriguez in retrospect, but much harder to deal with your own future uncertainties.
A recent Texas A&M study suggests that homicide convictions are up [pdf ] in those states that allow expanded self-defense rights that do not require retreat. If you are a CHL holder who takes your gun with you most places, just by basic math it increase the chances that you might get into confrontations that you do not anticipate.
For those who care about bias or apparent bias beyond what was obviously identified in the first paragraph as my reason for heightened interest in this case, I am a Houston lawyer (a generalist by background), a longtime gun owner, and often write about legal topics for an audience of non-lawyers and lawyers. Not sure that matters any, but some people care about that.
Questions and Comments: An Appeal for Civility and Reason on Emotional Topics.
My policy is to be fairly open about moderating blog comments and allow pretty much anything that isn’t vulgar. However, due to the sensitive, tragic nature of the subject of this blog post, I do not want it to devolve into a stupid ugly trolling debate about US gun policy or anything about the people involved in this case. There are plenty of places on the web where you can find that sort of thing.
Much of my blogging is a response to that–to try to find reasoned discussion of often difficult, sometimes painful, divisive topics. I understand that this case is very much about deep crushing emotion, but the appropriate forum for that is not anonymous blog commenting.
I’m not intending to persuade you of anything because what is done is done. Just offering another perspective because I’ve been asked about this case a lot, and it is yet another example why I am so skeptical/cynical about reporting of controversial, emotional topics, especiallly those of a legal/political nature.
So you can leave comments or questions if you want. I strongly suggest that this isn’t one of those blog posts where you skip to the bottom to comment without reading or just a quick skim. There is no guarantee I will publish it if I worry it could be at all hurtful to anyone or if it just strikes me in a bad way. Enough hate in the world without creating a forum to add to it.
If you are interested, I suggest donating to the Kelly Danaher Memorial Fund.
Transcript of the Raul Rodriguez Video:
Raul Rodriguez Jury Charge
Update: 6/29 – Here’s a copy of the actual jury charge in the Raul Rodriguez case. The Stand Your Ground section is listed on page 4, and mentions “provoked the person” without defining it. The “provoke the difficulty” language starts on page 10 and isn’t really connected with the Stand Your Ground language on page 4.
If you are someone who used self-defense, and your case goes in front of a jury, this is the sort of language the jury will use to determine your guilt or innocence.