Andy Marcantel
A road rage incident in Indianapolis turns into a fatal shooting. You're about to hear two lawyers. Break it down. Stay tuned. This is attorney Andy Markell and attorney Emma Whitman. We're from the Attorneys for Freedom Law Firm here today to talk about a very interesting case that has gone viral in recent weeks. How you doing today, Emma? Good.
Emma Wittmann
Excited to be here. Excited to talk about this unfortunate event that took place.
Andy Marcantel
Yeah, the main first thought that I had was this is just utterly tragic. Everything about it, just totally avoidable, totally tragic. And I guess why don't we start by just watching the video. I might editorialize a little bit about how disappointed I am that it turned out this way, but that's not our role today. We're attorneys. Our job here today is to give some kind of cold objective legal analysis. So let's start by looking at the video. Alright, so that happens very quickly and I think first we should start by talking kind of factually about what the video shows, what it doesn't show.
Emma Wittmann
So I think just to give some context, we understand that this started out as a road rage incident, which obviously we're only seeing a very small portion at the end of what potentially could have gone on for several minutes before this. We just don't know. But looking at what happened, it appears the guy in the green shirt has parked his vehicle, what looks like in front of the white truck, exited his vehicle at the end of this road rage incident, which we're going to dive into why you shouldn't do that and approach the guy in the white truck with a firearm in hand. Yeah,
Andy Marcantel
There's a couple of subtle things that happen too. Even though this video is only seven or eight seconds long, it's chalk with little important details that are super important in a self-defense analysis. A couple that I think are important. You mentioned that he's parked in front of the white truck. It appears that he's blocking traffic. It doesn't look like this is a proper place that you would normally park your car. It definitely looks like he's impeding the roadway. He gets out, he comes around his car in a very aggressive manner. The manner in which he is walking is incredibly legally important to the mental state of the fellow in the white Chevy pickup there. Also, you'll notice that when he is first, he punches the vehicle. It looks like the hand of the driver of the Chevy's hanging out of the vehicle at the time.
Emma Wittmann
Yeah. It's not clear if he makes contact with the driver's hand or if he ends up just making contact with the side of the truck. But either way, we know he's yelling things, we can't hear what's being said, but clearly this is just a heightened situation at this point.
Andy Marcantel
And also about that punch of the vehicle, I had to replay it another time because the first thing I thought was holy crap is the hand that the gun is in the one that he used to punch the vehicle. Yeah, sure enough it is. He's lucky it wasn't a negligent just discharge at that point. Absolutely. But shoot himself or that the gun didn't go off. But he appears to punch the vehicle with gun in hand using his right fist. And then also very importantly, kind of at that point below the line of sight of the window, he switches hands.
Emma Wittmann
Yeah, the first couple of times watching it, you don't necessarily pick up on it at first, but you can see the transition of the gun from one hand to the other right before he raises that same right arm where he had the firearm originally. So for the guy in the white truck who doesn't have that visibility, it would be easy to believe that he's raising his hand with the gun to shoot.
Andy Marcantel
Yeah, absolutely. And that's like a subtle little detail in there, but that's something lawyers would spend hours talking about if this case was ultimately charged. Just basically what's important here is the mindset of the person in the Chevy. And so I think that's maybe a good way to start is talking about self-defense in general. What is needed here in order for the driver of the Chevy to justifiably shoot this person in self-defense. And if you kind of want to just break it down to its elements, first of all, it's got to be an imminent threat. This has to be an imminent threat of deadly physical force and that also speaks to it's got to be a proportionate threat. So in other words, you don't get to bring a gun to a fist fight. You have to reasonably believe that you are facing an imminent deadly physical force.
Emma Wittmann
And I think it's very evident that one could claim this was extremely imminent, that he's now blocked in by the vehicle. The guy's abruptly approaching his truck, screaming, yelling, has a firearm displayed, punches the side of the truck with firearm in hand. This is definitely an imminent situation where the guy in the green shirt is coming at him with threatening use of deadly physical
Andy Marcantel
Force. Yeah, I mean I think it's reasonable for any person to think that this guy, especially he's punching the vehicle. Absolutely. This is a guy who's acting completely sporadically and pretty crazy in that moment. This guy is in a full blown rage because of whatever just happened in the roadway. So proportionate, imminent, I think those boxes seem to be checked to me. I've seen some commentary around the video usually just by folks in the comments who say, well, he never actually pointed the gun at the guy and then the guy just shoots him. Well, no, that's not the standard that the law imposes In order to act in self-defense, you don't have to wait until somebody points the gun and aims it between your eyes with their finger on the trigger. That is not what is required in the United States of America. There's no jurisdiction in the United States that would require that level of mency, but this certainly appears to be a sufficient amount of imminence. A guy yelling with gun punching vehicle, everything like that, certainly within less than a second he could end your life and appears to have the temperament where he may intend to.
Emma Wittmann
Absolutely. And one thing we could talk about too is making sure you understand your state's laws on what you can do in certain types of situations. And one thing we brought up initially was the placement of the vehicle in the middle of what appears to be an intersection blocking the white truck. So one thing to know is Indiana has stand your ground laws. The most simple way to break that down is he does not. White truck does not have a duty to try to retreat or get out of the situation. He's able to stay put and defend himself if he needs to. And so here, even though the car might be blocking him in, he doesn't have an obligation to try to find a way out or around before utilizing self-defense. Yeah, I
Andy Marcantel
Was aware that Indiana had a stand your ground law. A lot of states do. And so I went and took a look at the language. The language looks pretty consistent with most jurisdictions who have similar laws. It's Indiana Code 35 41 3 2, and as most stand your ground laws will cover, it also covers occupied vehicles in addition to an occupied home. And furthermore, it's not just a trespass or somebody attempting to trespass, but interestingly it also included the word attack against your home or occupied vehicle. That seems to be some pretty broad language. What constitutes an attack of an occupied vehicle if this doesn't constitute an attack against an occupied vehicle and you while you're in it, I don't know what would, it's a guy coming up with a gun punching it and threatening you and waving around a gun, everything like that. Absolutely. So it seems to be covered by the stand your ground law.
Andy Marcantel
For sure. And what this does in most jurisdictions is this creates what we might call a legal presumption of reasonableness. You've heard us talk about this a million times. The only thing that's important at the end of the day is what a jury is likely to think is reasonable whenever you're using self-defense, right. At the end of the day, you can hear us lawyers speculate and read you the code and talk about the law and talk about principles of proportionality and imminence and everything like that. As we all know, at the end of the day, it all depends on what a jury is going to find was reasonable. That's why laws like this, this stand your ground law that says, Hey, by the way, jury, if this person, if you find that this person was in an occupied vehicle and they were under attack while in the occupied vehicle, I want you to presume that that person I'm instructing you says the judge to the jury to presume that person was reasonable. This is very strong for the defense.
Emma Wittmann
Absolutely. Yeah. I don't think it really matters what necessarily took place leading up to this moment or what was being yelled. I think there is a very strong case for self-defense here, regardless of the surrounding circumstances that we still just don't know about.
Andy Marcantel
So here's some stuff that's completely irrelevant to our legal analysis, but I think is worth saying, I don't want to turn this thing into a whole PSA, but I think it's worth saying just because you and I have had so many situations with clients where if we could only have talked to them or showed them a similar type of a situation, it could have prevented them from getting into a situation that totally altered their life or maybe even ended their life. And it all just comes down to avoidance where possible. This is horribly tragic all the way around. The deceased name is Gavin. He was just married prior to this incident. We're making this video in July of 2024. He was just married at the end of June of 2024. He had a brand new bride, a brand new family apparently. I'm not aware of any extensive criminal background, history of violence, anything like that. The guy just lost it during a road rage incident and it cost him everything.
Emma Wittmann
Just very sad. Very unfortunate event. Sounds like his life was just getting started with his new bride and it's just very unfortunate that the heat of the moment got the best of him in this situation and it resulted in what it did.
Andy Marcantel
We've all lost our cool at some point in traffic, every single one of us has lost our cool. I mean people lose it to different extents, but we've all lost our cool in traffic and this is just one of those cases that goes to show you it ain't worth it. Even if the other person caused the traffic collision, even if they almost ran you off the road or cut you off or disrespected you or flipped you off or whatever it is, it just ain't worth it. These things are totally, totally avoidable. And we've had numerous cases in this office where we've defended people on both sides of a road rage incident. And when I say both sides, I mean people who look more like the justified shooter here in the Chevy where they get prosecuted as a result of something like this and we have to argue to justify their conduct. But also people like what Mr. Desar appears to be in this video is more of the aggressor. Right. We've had to defend people who are certainly the aggressors in these types of situations and try to negotiate something that's reasonable.
Emma Wittmann
Yeah, I think if we were defending the individual in the green shirt, Mr. Desar, we'd be having a much more difficult time versus if we were trying to present self-defense for an individual in the white truck. Yeah.
Andy Marcantel
Yeah, that's a really good point because there are usually hidden in the subsections of self-defense statutes in every single jurisdiction in the country. There's usually some information about what happens when you can actually lose your ability to claim self-defense in a case. And how that's usually worded is if you placed yourself in a situation where it was obvious that you would've had to use self-defense or put yourself in a situation where it's more likely you would've had to use self-defense. If you're the aggressor who put yourself in that situation, you lose your right to claim.
Emma Wittmann
I can hear the prosecutor now saying he didn't need to stop his car. He did not need to get out of the car. He certainly didn't need to approach the other vehicle with gun in hand screaming and yelling. That would be very difficult for us to try to overcome.
Andy Marcantel
Yeah, you could imagine this scenario had played out differently. You could imagine green shirt walked up to the Chevy and then the Chevy driver went for a gun and went to go point it and then green shirt shot the Chevy driver and killed him. And the green shirt's lawyer will try to claim, well, my client acted in self-defense. I think it'd be very difficult to get a self-defense instruction to defend Mr. Desar in this case just given his conduct leading up to the shooting.
Emma Wittmann
Yeah, and like you were saying, the moral of the story here is it's just not worth it. Things get heated, you can be upset on the road, but stopping, getting out, approaching the other driver, especially not knowing what the other driver's going to do, it's just not worth it. Go about your business, let it
Andy Marcantel
Be. Yeah, as you pointed out at the very beginning, very short video, we don't know what happened beforehand. I mean, usually you don't get a video of this type of a situation even though cameras are everywhere. It's very rare where you have a video taken by a witness, a bystander, or even by a surveillance camera or something that clearly shows the entire interaction like it does in this video. So we don't know what happened before, but while there are, I guess hypothetically things in the world that if I saw could change my analysis at this case, I can't even imagine what they would be right
Emma Wittmann
Now. I agree. I agree.
Andy Marcantel
Even if the white Chevy tried to run him off the road mere seconds before and then yelled out the vehicle, I'm going to kill you. Just the fact that Mr. Desar gets out of his vehicle with gun in hand walks around and punches the vehicle, first of all doesn't show. It doesn't tend to show that Mr. Desar was an imminent fear for his life if he marched up and was punching the vehicle and waving the gun around. But second of all it clearly you can lose, as we just pointed out, you can lose your right to claim.
Emma Wittmann
Yeah. He would become the aggressor at that point in time. Losing that right to present self-defense like you were saying, I don't think there are really too many circumstances that would change our mind on this.
Andy Marcantel
Yeah, I mean certainly if something new comes to light in the news and we learn something new, I certainly would like to do a follow-up video. Absolutely. But this seems cut and dry to me. This seems good shoe, this seems proportionate. This seems like we're definitely dealing with an imminent force. The Chevy pickup driver does not appear to be the aggressor at this point in the interaction. Who knows what happened before, but at least at this point in the interaction, which is all that's important in terms of the analysis for self-defense does not appear to be the aggressor. And Mr. Desar appears to be the clear aggressor and it's tragic. I'm sure I saw an interview with his grieving widow in which he was talking about what a great person he is and everything like that. I'm sure that's true. I'm sure that this is not reflective of who he is, but all it takes is an instant. All it takes is one bad decision, one bad scenario like this to cost your life and it's just tragic all the way around.
Emma Wittmann
Very unfortunate.
Andy Marcantel
And my guess is that this case is going to be presented to a grand jury. As you know Emma, a lot of jurisdictions have grand jury presentations. Whenever we're dealing with the loss of a human life, the death is obviously a homicide, and homicide is a term of art. It doesn't mean it's a crime necessarily. Homicide just means that the cause of death was another human being's actions. And so a lot of jurisdictions have a baseline rule that whenever it's a homicide, we let the grand jury decide. We send it to a group of people randomly assembled from the community to take a look at the video, hear what the law is, hear from the cops who investigated it. But we have some reason to believe that the cops also thought that this was a valid self-defense act. Yeah,
Emma Wittmann
I agree. And it'll be interesting to follow this one and see if a grand jury does return an indictment. I don't know if they will, but we know if they do return an indictment, he definitely has a strong case for self-defense. And let's just chat for a second here about the fact that while at the scene the driver of the white truck was cooperative with police officers, they did temporarily detain him, took him down, he did answer questions, and then he was released. They did not have probable cause for arrest at that point in time.
Andy Marcantel
Yeah, and I think that's pretty telling. If officers had any reason whatsoever to believe that he was legally responsible in a criminal sense for the guy's death, it would be very, very rare for them to release a murder suspect or even a manslaughter suspect. No problem. Bye. Have a nice day. We will be in touch with you. That tends to show us that they're leaning towards feeling that this was a justified act.
Emma Wittmann
Absolutely. I think between his cooperation and the circumstance and likely this video and the witnesses that were around probably were able to give the officers the information they needed to make that decision. Yeah.
Andy Marcantel
What a prosecutor would've loved if they wanted to charge the gentleman driving the white Chevy, they would've loved for him to leave the scene. They would've loved for him to take off and run away from the cops and try to avoid arrest and then having to find him in a week and drag him into the station. This is what we have talked about before as consciousness of guilt evidence that the prosecutor is allowed to bring up at trial. So that did not happen here. He stayed on scene after the incident. And so everything here seems to be pointing to good shoot, legally justified, as tragic as it is.
Emma Wittmann
I
Andy Marcantel
Agree. Alright, well short and sweet today, guys. I think this one's pretty cut and dry, but I hope that you took a lesson from it. Remember, it's just not worth it to put yourself in this type of a situation. Avoidance is the best form of self-defense, wherever reasonably possible. And you have a right to defend yourself. Certainly no matter what somebody does to you on the road. Don't put yourself in this type of a situation, it's just not worth it. Go and check out attorneys on retainer us to learn all about our self-defense program and what it can do for you. Check out attorneys for freedom.com to learn all about our law firm and how we defend people at this law firm. If you like this video, make sure to share it with a friend. Leave us a like on the video, shoot us a comment down below. And until next time, my friend, this has been attorney Andy Markell and attorney Emma Whitman signing out. Peace. Peace.
YouTube Video Link: https://www.youtube.com/watch?v=YAy3Gu7zqUg
Credit: Andy Marcantel And Emma Wittmann, Attorneys On Retainer