Andy Marcantel
It's the shooting case that everybody is talking about. The killing of Sonya Massey in Illinois by Sheriff's Deputy. Was it justified or first degree murder? You're about to hear three lawyers. Break it down. Stay tuned. This is attorney's Andy Marcantel, Mark Victor and Pierre White, all from the attorneys for Freedom Law Firm, about to discuss a very tragic case that has captivated the heart of the country. How's it going gentlemen?
Marc J. Victor
Fantastic man. Alright, I'm excited. We're doing this video here because people are interested in this one. We get to talk quite a bit about self-defense and the rules that apply in besides the fact that we love talking about this stuff, this is a great one to educate people on some of the finer points of self-defense
Andy Marcantel
Law. Yeah, there's a whole bunch of stuff going on in the criminal context, but I guess we should introduce the viewers who aren't as familiar. You usually see Mark and I blabbing on these videos about issues, everything criminal law. We got our supervising attorney over on the civil side of our law firm today, Mr. Pierre White who's here to break down some of the civil aspects of this case. What's up Pierre?
Pierre Whyte
Sure. Very nice to be here. I'm excited to actually share my opinions regarding the civil aspect of the case. I've given this a lot of thought. I mean it's a topic, a hot button topic right now in the country. I think it's a good idea to discuss this issue regarding on the civil side and insurance, how that's all related.
Andy Marcantel
Sounds good guys. Alright, well I guess we should start by just giving a little bit of background about the case and then dive right in. So the incident happened on the 6th of July, 2024. We are filming this video I think a couple weeks afterwards and this involved a shooting by a Sanon County Sheriff's Deputy Sean Grayson. Now the sheriff's were called to Ms. Massey's home by Ms. Massey. She called 9 1 1 and she reported a prowler. She basically said, somebody's trespassing on my property. And so the sheriff's deputies arrive, they do a little bit of investigation, they walk around the house, they look at the car. Eventually Ms. Massey comes to the door, the sheriff's department asks her some questions. They said, are you the one who called us? And she said, yeah, I called you. There was somebody around here. Well, we looked everywhere, ma'am. We couldn't find anybody. And then at that point in the conversation, the body camera reveals that. She says some, I guess you could describe 'em as kind of strange things, stuff that might make a reasonable person believe that this person, Ms. Massey, was either suffering from some sort of mental health issue or maybe was under the influence. So what'd
Sheriff
You hear?
Ms. Massey
Somebody keeps outside my house.
Sheriff
Please, is this your car over here?
Ms. Massey
Please God, please God please.
Sheriff
Is this your car over here? Uhuh. Oh please God. That's not your black car in the driveway. Oh well we checked your yard. We walked around the whole block. We didn't see anybody. We don't check the whole area. There's nobody out walking
Ms. Massey
Around. I know we all please God. I'm trying to get help. But
Andy Marcantel
Suffice it to say there were some strange things that piqued the curiosity of the officers. Now eventually Ms. Massey invites at least one of the officers into her home and then both of the officers into the home and then there is a little bit of chitchat. She says, I want you guys to take a look at some paperwork that I have. She doesn't specify what paperwork she's talking about. And then the incident occurs where she then goes to the kitchen, there is a pot of boiling water on her stove.
Marc J. Victor
She goes to the kitchen because the officer tells her to go to the kitchen. Right, exactly. I mean I think it's a bit of an important point. She's got a pot on the stove boiling something up and the officer maybe let's give him with a charitable construction here, he's concerned about this is a possible threat. I don't know why he doesn't go over and deal with this himself, but instead he asks her to go, I guess to not start a fire or something. Yeah, he
Andy Marcantel
Says, we don't need a fire during this investigation. We don't need to burn the house down or something like that. Lemme get this.
Sheriff
We don't need a fire while we're
Andy Marcantel
Here prompting her to enter the kitchen and she goes over, she turns off the burner and then she puts on some pot holders and picks up the hot pot full of boiling water and walks to the end of her kitchen, which is a sink and places the hot pot of water on the counter. Now at that point the officers kind of back up a little bit and they ask her What's going on? And she says, where are you going? Yeah, she
Marc J. Victor
Finds out a little bit strange that these guys are backing off and I think I'm speculating a little bit, but she's probably thinking, why are these guys thinking? I mean he just told me to stop this pot boiling and now here I am and he's backing out. There's a problem. So maybe she's justified in being a little upset, but like you said, it seems like there's some mental health issues going on there.
Andy Marcantel
Yeah, even further demonstrated by the next statements out of her mouth, which is she says, I rebuke you in the name of Jesus. So she says that twice, which seemed, if you watch the video just seemed kind of a strange comment to make when people are backing up and you're in this tense situation. And so the officers don't really know how to respond to that. In fact, one of 'em I think kind of nervously laughs a little bit and says, you better not. And then he draws. He says, I'm going to shoot you in the f-ing face. Oh I would
Ms. Massey
You in the name of Jesus, I shoot you in a,
Sheriff
You better not. That's swear. I'll shoot you at your fucking face
Andy Marcantel
And then draws his gun and points it at her. When he points the gun at her, she then says, I'm sorry, I'm sorry. She lets go of the pot, still has the pot holders on her hands. The pot is left on the kitchen counter by her sink and she crouched and I guess you could describe it as cowers in her kitchen saying, I'm sorry, I'm sorry. Now at that point the officer still has his gun drawn and his partner who's standing to the right of him whose body captures the whole incident, then also draws his gun. And what happens there after happens really quick, but we're going to spend a lot of time talking about it today because the devil really is in the details in these things. It appears from watching the video very slowly, you can see that Ms. Massey gets up, suddenly takes the pot in at least one of her hands, maybe two, and throws the water towards the officer.
Andy Marcantel
Now boiling water, if you watch the images, you look at the still images, you'll see there's steam rising from the floor of the kitchen. So it hit the floor of the kitchen travels, looks to be about two to three feet part of it. Most of it if not all of it splashes on a chair. That's between her and the officers. A bit falls onto the floor and at that point, kind of when she's mid-swing or finishing up her swing of the pot of boiling water, the officer discharges three rounds. One of them strikes her in the face and kills her.
Sheriff
14 shots fired shots fired, shots
Andy Marcantel
Fired. Lot to break down. Yeah,
Marc J. Victor
I think we should start kind of where we always start and say, look, we don't have a dog in this fight. Our job is to call balls and strikes. And so I think we want to be very clear about what is relevant, what is not relevant, and then also we kind of do parallel analysis on these things, right? One analysis is we're commentators talking about whether the self-defense rules apply, how they apply, whether the requirements here are met or not, who's got to prove what the other is. We sort of put on our criminal defense lawyer hats and say, okay, if this was our job to defend this guy, what kinds of arguments would we make? But maybe this is a spoiler alert or not. This one, here's not a good shoot.
Andy Marcantel
This is a bad
Marc J. Victor
Shoot. This is a bad shoot. This one makes me pretty angry too. So let's first get some stuff off the table that I think should be off the table. First off, I don't know if this guy's a racist or not. He might be and he might not be, but it doesn't need to be any part of our analysis here. People are speculating about whether this is racially motivated. Maybe it is, maybe it isn't, but it's not necessary for us to resolve that question in order to resolve this case. There's some other stuff kicking around too. Why this guy was hired as a cop. This is a very good question. This guy was going from department to department. He's got a couple of DUIs on his record. Why is this guy even working as a police
Andy Marcantel
Officer? There was even leaked footage showing him being reprimanded for ethics violations and dishonesty and all kinds of stuff.
Marc J. Victor
All this interesting stuff. Not relevant to the self-defense analysis here, but maybe more relevant to a more important question, why are we hiring guys like this to be police officers, right? Instead of defunding these guys, maybe we should be spending more and getting more higher quality in the police department. It's not to say we don't have a lot of high quality police officers, men and women there right now because to be fair, we have a lot of good police officers, but there's an unacceptable level of bad ones and this guy's a great example of that. We'll
Andy Marcantel
Leave a link in the description to a video SAI did a couple of years ago making an argument of why we should privatize all police departments to incentivize better officers to join the force.
Marc J. Victor
We should do another whole video on that point. So people are also excited about the fact that the victim here, Ms. Massey, she's the one who called them to the house. That's definitely unfortunate. I think a lot of people say think twice before you call the police. I get that, but not relevant to the self-defense analysis here. It doesn't matter whether she called the police or whether they showed up because somebody else called the police irrelevant here that the shooting occurred in her home isn't really relevant here. Sometimes this might come into play if you got a duty to retreat. There's no duty to retreat in Illinois even if there was, she's in her home so you never have to retreat from your home. Even if you did. You only have to retreat if you can in complete safety. That doesn't apply here. So it doesn't really matter that this was in her home or not. So that stuff, I think we should get off the
Andy Marcantel
Table. I want to talk about even more irrelevancies and I want to call these actual probable irrelevancies because you could make a case if you were the prosecutor that these things are tangentially relevant, but I think that they're irrelevant to the question of when the officer pulled the trigger, he used the correct amount of force for that situation and one of those probable irrelevancies is their conduct and their tone with her prior to entering her home. A lot of people are saying, look how rude and unprofessional these officers are. They're so condescending to her chit-chatting back and forth and private outside of her presence basically degrading her and saying mean things about her and everything like that. They're just so callous to her. Yes, I agree with all those things and yes, we deserve to have professional police officers who are representing us, but that is irrelevant to the self-defense analysis.
Andy Marcantel
Another probable irrelevancy is their conduct afterwards. There's a lot of outrage about this, how the officer is saying, you know what? Don't try to save her. Don't bother getting your med kit. She's a lost cause, dude, it's a headshot. He even says this bitch is effing crazy and everything like that to his friends when they showed up, and obviously those things do not look good for the officer in terms of maybe what a jury is going to think about the guy if they're able to see that evidence, but it is irrelevant. His conduct and callousness and unprofessionalism afterwards is irrelevant. It may even be explainable by just different people go through trauma and process things different ways. Maybe he was just in shock and trying to play it off in a way that came off callus. Don't know. Don't care. Totally irrelevant. Now I say probable irrelevance because when we get to the section of causing the death and what role he played in that, I'll kind of table this issue for now, but we might be talking about his instructions to his buddy not to go get his med kit or try to render any aid when we come to the element of causing the death or trying to prevent the death, but we'll come back to that.
Andy Marcantel
Yeah, I think
Marc J. Victor
We should parse out issues that go to is this guy a good cop or not? Because there's pretty overwhelming evidence. We got a bad cop here that this guy's unstable. This guy has the wrong demeanor to be a police officer, should never have been hired in the first place. That's a whole discussion. I think that's a legitimate discussion, right? I was offended by the guy's attitude but took her so long to answer the door. He says, are you coming to the door or not? You're supposed to be here to protect and serve. Dude,
Andy Marcantel
You're the one who called us. He's getting all in past,
Marc J. Victor
I'm sorry you guys work for us. We hire you. That's not the attitude we're looking for at all. And also this concept of what he said, I'm going to f and shoot you in the f-ing face. Holy mackerel talking about going zero to 60. Even with the statement that she made about rebuking in Jesus's name. She didn't say that with a hostile tone at all. No, she did not. She really didn't. I think what happened is, and I'm speculating here, she probably was a little bit offended because he made the statement that he was moving away from the hot steaming water. I think I'd be a little bit of like, are you accusing me of trying to do something? And so she responds with this statement. I don't think that's unreasonable. Now maybe he misinterpreted that as some kind of a threat.
Andy Marcantel
Well, he clearly misinterpreted as some kind of a threat because his response to that was, you better not or else I'll put a bullet in your face or I'll put a bullet in your eyes, whatever. But his response to I'll rebuke you is you better not. So I think he misunderstood that to mean I'm going to attack you or
Marc J. Victor
It's generous still. I mean there are people who saying this is a guy who wanted to shoot somebody and it sure looks like that. I mean, yeah, I'm a little worked up. I don't like this guy. It's embarrassing to me and I'm embarrassed for all the good police officers out there
Andy Marcantel
And we know a lot. We know
Marc J. Victor
A lot of 'em. And this jerk is out there acting like a jerk. Taking the thing from zero to 60 could have easily taken this in deescalated this. All you got to do is step back. Exactly. You're really worried about the water. Take a step back. That's pretty easy. So this thing is in fact, not only is he pulling his gun, right? You could have used pepper spray, you could have pulled a
Andy Marcantel
Snow, could have gone for non-line,
Marc J. Victor
Could have just used your voice, but then you're approaching her. I mean, sure looks like this is a guy looking for trouble, so maybe he misinterpreted that. Maybe it was just the thing he was looking for because he wants to show he's the big man and here's this lady with some mental health issues, much smaller by herself. He's got his buddy there, he's got the firearm. So yeah, I think this guy, let's be charitable.
Andy Marcantel
I'm going to be more charitable than you be charitable. I don't believe that his, because that's what a lot of people are saying, right? This guy's a psychopathic serial killing cop who's going out there hoping to shoot somebody that night. And I understand why people would say that given his demeanor and everything like that, but I think his conduct after the shooting does not reflect that at all. He seems terrified, scared. He actually seems way less stable than I would want. A cop that works for me would be after a shoot, oh my, he's cursing left and right and he's looking at his buddy and he seems like he's in a panic and he's pacing and he doesn't seem like taking joy or satisfaction and now it could have been that he went out there wanting to shoot somebody and then when the reality of what happened set in, it didn't turn out to be as glorious as he thought it to be, but to just be completely charitable here, I think he just made a huge, huge, huge stupid mistake because he was in the wrong frame of mine.
Marc J. Victor
Baby, you're more charitable than me on this one. I think he knows the camera's on. I think he yells drop the pot after he's already shot her in the head and the pot's been sitting on the countertop the whole time. The whole time he's yelling, drop the pot damn thing is sitting on the countertop. So I don't know, but let's be charitable because I think the analysis still comes out the same
Andy Marcantel
Way. Well, you can start being charitable at any moment. I'm not
Marc J. Victor
Ready yet, man. Still upset with this guy. I just don't like,
Andy Marcantel
I'm upset with him too. But we got to call balls and strikes. We got to stay objective here in our analysis.
Marc J. Victor
Alright, fair enough. That's what we do. Let's stay. In fact, we're going to even travel so far as to say how would we defend this guy?
Andy Marcantel
Yeah, yeah. I would love to have that conversation. Right.
Marc J. Victor
Imagine this guy's an A OR member and he says, Hey man, I'm accused of first degree murder in Illinois now and this is the video we're going to defend this guy. Absolutely ain. No question about it. Absolutely. We are going to do our very best to defend this guy as cranky as I am about how this guy acted and I'm pretty cranky. We're going to do everything we can possibly do to give this guy the best possible defense.
Andy Marcantel
So currently this deputy is charged with first degree murder following the incident. He was promptly let go. Everybody seems to think that that was the right decision. He is then charged by the prosecutor's office, first degree murder and several other very, very serious felonies. Yeah,
Marc J. Victor
He's got aggravated batteries, got some official misconduct stuff in there. I don't think anybody's going to be surprised that he's going to claim self-defense here. Right? We know what's coming. This is going to be a self-defense case, but
Andy Marcantel
We see him setting up that defense in the body camera itself. He keeps saying statements like, well, she was coming at me with the pod and I'm not going to take boiling water to the effing phase.
Marc J. Victor
This is another point to mention. Just shut up. He says on the video, after the shooting, she came at me with boiling water and one thing that's clear, she didn't come him with boiling water. That's not what happened.
Pierre Whyte
Yeah. See, and to that point, I think his distortion of the facts goes to his mental state, right? This is important. The distortion of facts. You have a different take on the video than I have. I see the video. I never see her approaching him with the pot. I see her leave the pot there. I see her reach for it, but I never see her motion towards him with the pot. So that's important. I think distortion of the facts after the fact, after the shoot goes to his mental state, goes to him knowing what he's doing at the time. I think a jury could agree with me on that. I mean seeing that shoot, but then again, I think Mark said it best co to say that afterwards, to show concern afterwards when you tell your partner don't go get the medical kit
Andy Marcantel
Right to Mark's conspiracy theory that he manufactured all of the terror and everything afterwards because he was really excited to shoot her and everything like that. It does seem like he's trying to kind of construct the narrative in real time afterwards. Right, right. Well, you saw it, right Partner. She was coming at me with the pot. You look, it's right there at my feet
Marc J. Victor
When you make this statement. If I'm prosecuting this case, which I would never be because I'm not a prosecutor, I would focus in on that. I would say, here's what the guy said. She came at me with boiling. What when did, at what point? You mean when she's cowering on the ground? Is that when she came, this is bs. He's making up a BS story. Just like after he shot her in the head, he says, put the pot down. The whole time he's saying, put the pot down, the thing is sitting up on the counter. So look, afterwards, you got to keep your mouth shut. He didn't help himself there. But look, he's going to claim self-defense, right? The burden is going to be on the state to prove beyond a reasonable doubt that this was not. That's really what this case is going to shake out to be. So we could go through some of the elements of self-defense. You want to go through that right now, Andy? Yeah, of course. Yeah, let's do that.
Andy Marcantel
Yeah, yeah. Well, as we always talk about whenever we're analyzing a shooting case, we ask a couple important questions. They really revolve around proportionality and was the threat imminent? So what do I mean by those? For those of you who've seen our videos, where we're going with this was the amount of force that he used proportionate to the threat that he was facing, and the idea here is that you can't bring a gun to a fist fight as the old adage goes, you're allowed to use a certain amount of force when you're facing a certain threat
Marc J. Victor
In this proportionality point. Look again, if we're super charitable to this guy, then what you have is a person with boiling pot of water getting ready or at least let's just say in the process of throwing this at the police officer, that's what the defense attorney in this case is going to say. That's a threat of deadly physical force. I recognize that's not likely to cause death, but deadly physical force doesn't actually require the death as the only problem or risk here. It's also a serious physical injury. Okay? Everybody's going to agree If you throw scalding hot water at somebody, this is a serious physical injury and that's happening I think pretty clearly at the time the officer is firing. So in proportionality, there's an argument here. Now look, you might also say, ain't no way that this little woman is going to chuck that pot of boiling water at this dude at that
Andy Marcantel
Distance. In my opinion, that goes to a different element, not proportionality, but imminence. Proportionality absolutely I believe is met. If the weapon being the weapon being used is boiling hot water,
Marc J. Victor
Assuming it can
Andy Marcantel
Reach him. Well, that's an mency question. I think proportionality here is met. If the weapon is boiling hot water, that can definitely cause permanent serious physical injury, probably not death, but probably everybody can agree. You can get serious physical injury,
Marc J. Victor
You might satisfy him then see by saying it's happening right now, the time he shoots is the time she's throwing that water at him. Those aren't the problems,
Andy Marcantel
Sir. Well, IM sees about it being the threat being up in your face and if the range of your weapon is two feet, which it was in this case, the water, as I saw the video, the water went about as far as any reasonable person would have believed that it would've gone when a 80 pound woman is chucking it with one hand with the pot, which is about two feet, it landed on the chair next to her mency is about is the threat right up in your face or capable of actually harming you? If somebody is across the room from you and says, I'm going to punch you here I come and they're not right up in your face, that threat is not yet imminent.
Marc J. Victor
These are the things that are going to be discussed at the trial, right? Because the defense attorney's going to make the case. It was proportional use of force imminent because it was happening right now and the officer can't predict how far she can throw, but he's not required to estimate this perfectly and it's in the heat of the moment and he shouldn't have to be put in harm's way. To me, the problem here is something completely different. He's the aggressor. Exactly. He's the aggressor because if you look at this video closely, he pulls out that firearm awfully fast, and at the time he does, she puts that pot down on the counter and she has in her hands the pot holders and she says, I'm sorry, and then she cowers on the ground At that moment, you got to put the gun down. You do not have an imminent threat at this point. If
Andy Marcantel
There was, which there probably wasn't an imminent force as I just argued because the water probably isn't going far enough. Even if she wanted to hit them with the water, the water's probably not going far enough to actually make contact with them. But being charitable, even if there was an imminent threat of deadly or serious bodily injury, it had ended. As soon as she's cowering with her hands up, absolutely with oven bitch, she's not even going to scratch you at that point.
Marc J. Victor
At that
Andy Marcantel
Point she got other admits, cowering behind you at
Marc J. Victor
Your argument's done and in the main video, this is at one 20 in 45 seconds is when this comes up. At that moment, she's ducking down. She said, I'm sorry, that's pretty clear. Whatever I said, whatever, however you took it, that threat is over at this point. She says, I'm sorry, whatever you perceived her range of throwing that hot water, she's on the ground and that's on the countertop. You got to put that gun down and instead of putting the gun down, he keeps it trained on her, he advances on her and he continues to hold it on her. I'm sorry. He's the aggressor at this point and he's threatening deadly physical force in my opinion. Had she pulled out a firearm at that moment and shot him through the eyes, she's justified at that point. And so look, she was justified in throwing the hot water at him as a defensive measure. Now, was this smart? Definitely not. This was not going to be an effective use of self-defense here. Was she legally justified? Yes. Was this a smart act on her part? No, but she's mentally ill. She's
Andy Marcantel
Probably mentally ill.
Marc J. Victor
She's mentally ill and police officers and I don't want to be too hard on police officers. It's going to be difficult, but you kind of know after she made this statement, given how she's been acting, what she's been saying hasn't been making sense, she's got something going on in her head that she's not well in
Andy Marcantel
Some way. Well, then this is going to be, it's funny, the tables are turning right now, mark, this is where I'm going to be more harsh on the officer because I have lots of friends who are police officers. I have lots of experience with police officers. I've spoken to friends who are police officers who have looked at this shooting and they've all uniformly told me, when you're dealing with somebody who has obvious mental health issues, a good officer is trained to treat that situation much differently than when you're dealing with somebody who has normal cognitive capacity. And these officers didn't do it. These officers were annoyed by her behaviors. These officers were impatient with her. They were callous, they were rude to her. When you're dealing with somebody with mental health issues, there's certain training and techniques that you have to do. I'll tell you what, one of them isn't telling the person to go over there and get that or turn off the stove and everything and put them next to the thing that you're then a few seconds later claiming is a deadly weapon. So they didn't follow protocol, they didn't follow training. That part is outrageous to me.
Marc J. Victor
This effing bitch is crazy. That's how you're going to deal with
Andy Marcantel
Somebody real compassionate.
Marc J. Victor
Yeah. Yeah. Not impressive
Andy Marcantel
To protect and to serve.
Marc J. Victor
Not impressive here. I think it's pretty clear we don't think this is a good shoot, but to make it a little harder, what if this guy's an eight? What if the phone rings and he says, hi, it's Officer Grayson. I'm an attorney's on retainer client and I've just been involved in a shoot and I need self-defense. What are we going to do with this case,
Andy Marcantel
Andy? No, we can defend it. Absolutely.
Marc J. Victor
Let's talk about how,
Andy Marcantel
Yeah, we've got some really good arguments because as we, first of
Marc J. Victor
All, hey, so take off analyst hat, put on defense attorney hat, criminal defense attorney hat. Yeah, I don't want people to misunderstand what's going on here. We think this is a bad shoot. We think this guy's either going to plead or he is going to go to trial, and if he does, he should get convicted. Now, whether it's first or second, we can return to that question as well. I think there's something to discuss there.
Andy Marcantel
Absolutely. And in fact, just a teaser, I think this case is overcharged. Well, I guess we could talk about it now in terms of the defense, because oftentimes when you're defending somebody, you can get charges reduced significantly. You can get things dismissed. The biggest charge, here's clearly first degree murder. Part of what we do is criminal defense attorneys when we're defending a case is sometimes the case is overcharged and punishment might be appropriate for a client that we defend, but the punishment has got to fit the crime. So first degree murder in Illinois doesn't require premeditation. There's lots of talk on the internet right now where people are analyzing this case for premeditation. If you take a look at the statute, maybe we'll put it up on the screen. It does not require premeditation. It requires intent. So in other words, he had to have intended to kill her and people are pointing to his statement, oh yeah, he's clearly demonstrating his intent to kill her when he says, I'm going to shoot you in the effing face.
Andy Marcantel
That is a statement of intent according to a lot of the people who are looking at the case. And therefore it's a slam dunk case for first degree murder as defined in Illinois law. Well, to take the opposite side of that, not exactly. In fact, police training oftentimes involves very serious threats where no intent to carry through on those threats are intended whatsoever. It's a common police tactic to get compliance from a suspect to make certain threats. And we see this in our cases all of the time where the cops say, I'm going to do this to you, I'm going to do that to, and most of the time it ends up in compliance because people don't want to get shot. People don't want to get killed. People don't want to get shot in the F in face. 99% of the time when there's a threat like that, it ends up in compliance of the suspects. One might argue he makes such a statement not as a statement of intent to kill, but rather to try to get compliance from this woman he was perceiving as non-compliant. Now whether or not that was a reasonable belief that she was being non-compliant, that's an irrelevant question.
Marc J. Victor
Yeah, well, when he shoots her in the head, he certainly has an intent to kill her. And the reason this might get to second degree is because the way it works in Illinois is you commit first degree murder, which I think happened here, but you do it under sort of an unreasonable belief that you were acting in self-defense. We call this imperfect. He'd have to make the case though. In fact, this is how we're going to defend the case, right? Look, he misinterpreted that statement. This I rebuke you in Jesus's name statement as she's holding the water, right? I mean she's holding the boiling water. She makes this statement, she says it calmly, but maybe he interpreted as this is a threat, she's going to throw this water at me. And remember, when you're talking about reasonableness, there's always the two-sided monster here. There's subjectively believe it.
Marc J. Victor
You got to actually believe it in truth in your mind or in your heart, if you will, that there was an imminent risk of death or serious physical injury. And then number two, that belief has got to be reasonable, objectively reasonable, which means it's the sort of hypothetical, we pretend there's this reasonable person out there and that person would look at that and consider and say, yeah, I think that's a reasonable belief. And so the way you get to second here is by having that subjective box check. So they got to convince the jury to get to second here that this officer, for whatever reason, maybe he was mistaken, I think he was mistaken, but best case scenario, he thought there was a real threat. Now they're going to argue that that wasn't unreasonable, right? They're going to make the case, which is what we would make if we defended this guy, which is not only did he believe that this person making this statement, I rebuke you in Jesus' name as we're holding the boiling hot water.
Marc J. Victor
Maybe there's something rolled in here. Look, we know she's mentally ill. People who are mentally ill sometimes are not rational. He was very concerned about this. When you bake that into the cake, that belief was reasonable and therefore he still didn't shoot at that point, right? All he's doing preventatively is he's just training the firearm on. It wasn't until she actually went in through the boiling water at him, that's when he shot. Okay, that's going to be the argument for all the reasons we pointed out. We think it's a loser, but you're going to bring that argument if you take this case to trial.
Andy Marcantel
Yeah, there is an actual other interesting facet to her conduct leading up to her statement. So something interesting that the defense could raise here in terms of her conduct leading up to the shooting is that the officer prompted her to go and turn off the burner by saying, we don't need a fire over here. Basically saying, go turn off the burner, but she doesn't just turn off the burner. She could have just turned off the burner. You would think that that's all she would have done, but instead of that, she turned off the burner, put the pot holders on, and then walked it over to where the officers, towards where the officers were standing. What was the point of doing that? Why couldn't she have just let it on the burner? Is this basically conduct that supports aggression on her part, moving towards them. She's not going to start cooking and putting noodles in the pot or anything like that on the counter.
Marc J. Victor
So we're going to go down that road if we're going to defend this case. And also we're going to essentially say, look, pay no attention to all that stuff that happened before the actual incident. We're going to make the case and say, look, what matters here is what was going on at the time the officer pulled the trigger and here's what was going on. She had just made that threat. She wasn't following instructions. She's bringing the boiling water over. He's telling her, stop. Put it down. Put it down. Okay, it was on the counter still, so he got a problem there. But look, she gets up and then she grabs it and then she throws it
Andy Marcantel
At him. And to that point, mark, most of that stuff that we talked about at the beginning where we kind of started flagging different total irrelevant things, but we also noted that the jury would likely hate most of those things that they hurt him. They're going to hate this guy. If we were defending this guy, we would be doing everything in our power to exclude that stuff. Way pretrial with motions in limine and motions, arguing that they're totally irrelevant or more prejudicial than probative of different facts in the case. And we'd probably have some success, and I expect that his defense attorneys are also going to do that. Also, given the high profile nature of the case, we'd probably be looking for a change of venue here. I'm guessing it's going to be very difficult for this deputy to get a fair trial in his jurisdiction,
Marc J. Victor
But if you can narrow down that time window and say, look, ladies and gentlemen, what matters here is what was going on.
Andy Marcantel
Focus like a laser on the seconds leading up
Marc J. Victor
To it what was going on. And the state wants you to believe that this officer in the heat of the moment, is supposed to calculate the physics of how far she can throw the boiling water and whether or not it hits him. And by the way, even if it hits him on the leg, that's a serious physical.
Andy Marcantel
If it hits him on the toe and causes a S skull or a burn, that could scar that serious physical injury under the statute. So we're going
Marc J. Victor
To start piecing this again. In fact, frankly, look, and I know this will be unpopular because people hate this guy and people could tell I'm not happy with this guy, but as a defense attorney, it's quite a challenge to defend this case and one we would gladly undertake because everybody, even this guy, is entitled to an effective defense at trial.
Andy Marcantel
You make a good point, mark, which is that when it comes to these types of analysis, I wish more people would check their emotions at the door. That's what I've been trying to do whenever I look at this or any other high profile case that I come here and talk to our audience about, which is check my emotions about how I feel about it at the door as best I can. I think some of the most interesting reactions are when you can see people's perspectives from the other side of a given issue. There's a lawyer that we have a lot of respect for, we're very friendly with by the name of Andrew Bronca who comes down saying, this is a totally justified shoot. Mr. Bronca is an extremely talented, extremely intelligent, very experienced criminal defense expert, specifically in the area of self-defense shootings, and is the author of a wonderful book, the Law of Self-Defense. And so a lot of respect for the guy, and he comes down on the other side of the issue that we do. He says, I know you guys aren't going to like it, but good.
Marc J. Victor
Shoot. Yeah, we usually see the case the same way with Andrew, but on this one, we respectfully disagree with him because I think if you watch his analysis, he starts the video a little bit late. What he does is he focuses the audience on what we would do if we were defending the case. He kind of misses the point that, Hey, before that you've got an officer. And if I'm the prosecutor, I'm going to blow that picture up. Here she is on the ground cowering after just having said, I'm sorry, where's the pot? The one he's telling her to put that it's sitting up on the counter. Why is he holding a firearm on her still screaming, drop the pot. So that all makes him the aggressor, which deprives him of the argument of self-defense.
Andy Marcantel
Well, his criminal defense attorney and probably Andrew Bronc are going to say, well, because at any moment all it takes is a quick half second movement for her to stand up and propel the water in the pot. Sure. She's
Marc J. Victor
Acting in defense here, in my opinion. Like I said earlier, she could have pulled out a firearm and shot this cop through the eyes, and I think that's justified under, I would certainly defend her if that was the case here, because look, if you got an officer training a firearm having just said essentially, I'm going to shoot you in the face, and she's presenting no threat at all, none. There is no argument that she, while sitting on the floor with the scalding hot water up on the counter, having just said, I'm sorry, she's not a threat of even an ordinary physical injury. So when this case finally gets resolved, you better believe there's going to be a civil case here.
Andy Marcantel
Absolutely. So that's why Pierre, I can't wait to hear your thoughts on this.
Pierre Whyte
This is an interesting, I got to be honest. I was talking to Mark about this, the 1983 claim against the federal claim against the officer and against the department is definitely a relevant claim. And we started talking about damages, right? So that's one claim that's brought. There are two others that I would definitely bring myself, which is a wrongful death claim and a survival action for the family. She survived by two children. She has a daughter. Those are state claims, right? Those are state law claims. So she survived by a daughter and son. They would have an action against the department as well and against the officer. So if we're bringing this case civilly, right, we're going to sue the department and their capacity and we're going to sue the officer in his capacity as well. And as an individual, and this is an important point because there's still claims against him.
Pierre Whyte
I don't know how well he does financially, but looking at her age, her life expectancy on her projected life expectancy or what it could have been, she had at least 35 years left on this earth according to statistics in that area. As far as the average income for someone of her age, I don't know her background, but economically in that area, it's about a thousand dollars a week doing the math on this. I mean, damages wise, this can total $2 million just in compensatory damages, and we haven't even talked about non-comp compensatory damages. So these claims are ways to get to this money. That's essentially what on the civil side, compensating the family and even her for the loss. How we do it is through damages. I think punitive damages. I agree with Mark on in this respect regarding getting punitive damages from the department. It's tough.
Andy Marcantel
Tough. What's a punitive damage as opposed to a compensatory?
Pierre Whyte
Very good question. So punitive damages, the point of it is to essentially punish to punish for egregious conduct. So it's something like malice. You talked about second degree murder. So for me, that's malice murder, malice of forethought. So if malice of forethought is an issue, well then that's ripe for punitive damages on the civil side. So first degree, I couldn't agree with you more as far as your analysis on premeditation and intentional and intentional murder. I don't think there's, if there is evidence there, I would fall on second degree with Mark, that second degree. There's a better argument for malice murder than first degree.
Andy Marcantel
He clearly intended to kill her by shooting her in the head, but it was a result of a justification. It was an imperfect
Pierre Whyte
Self, and that's fair. I like the analysis, but that intentional element is relevant on the civil side because we can use that evidence to support a punitive damage claim or at least a claim for punitive damages, which is important. So that's the difference. The difference between compensatory is to compensate someone for loss that they actually experienced medical damages, loss wages. These things are compensatory because these are actual out-of-pocket expenses someone
Andy Marcantel
Has. So you're being compensated for the damages.
Pierre Whyte
Exactly. Which is what compensatory damages are. Non-comp compensatory damages are like pain and suffering, things like that. Things that can't be quantified other than someone's loss of happiness. How do you measure that? There's a way to get to a number. Even with non-comp compensatory, it's usually a threshold in the insurance world. That's essentially what's used. They use a factor analysis. You take the compensatory damages and you multiply that by a factor.
Andy Marcantel
Seems so cold to me. Oh yeah. Whenever we've talked about this, and I remember just because I don't do civil law, but it's crazy to me that we put dollar amounts on what a human arm costs. If it's
Pierre Whyte
Chopped up, there's uniform lifetime tables for everything.
Andy Marcantel
We put a dollar amount into how much you should be compensated for losing a wife. It's just who comes up with these numbers?
Pierre Whyte
Good question. Very good question. Case law supports it. Statute,
Marc J. Victor
It's fun to hear the criminal guy who just, we went off and we ripped this top and in two seconds said, well, we can defend this guy and here's how we defend. No problem at all. But then went to the civil. You guys do crazy stuff.
Andy Marcantel
You're speaking Chinese to me right now, man, I have no idea. But
Pierre Whyte
There's the crossover though. The intentional part is the crossover. I think it's relevant. Not only that, we haven't talked about the burdens of proof. You all are beyond the reasonable doubt standard on this side. We're a preponderance of evidence. We only need to show 51%. So you can win, you can get your defendant off, and he could still be sued civilly and win. And we could win big actually on these types of facts. I mean, I would love for him or at least the family to be our clients, right? This is important because these claims, or at least the type of damages that she'd be able to, I mean, this is upwards of $5 million. Sure, it's
Marc J. Victor
A great case when you're on the plaintiff's side, of course, but you could suffer from the same issues we have. This guy calls the firm and says, Hey, I'm an a OR client. That's true. I'm getting sued fair, and I'm going to buzz over to Pierre's office and hey, man, you got a case to defend there. Have fun defending this guy. Yeah, I
Pierre Whyte
Like the full court analysis too. So if I'm defending him, I think this is important too. You mentioned taking a plea deal on the criminal side. For me, it's about settlements. I think this settles, this is important. He settles this fast with, of course, with an ND, a confidentiality clause that prevents conversations regarding what he settled for. That's a way to get out of it where I'm defending him. Aside from that, I think the justification defense, which is what you all are talking about, self-defense is a type of justification for the crime, right? I think we get there, at least on the intentional aspect, the mental element, the fact that he was in his official capacity or not acting in his official capacity matters greatly. So how he sued and what capacity he sued in goes to indemnification. If the state is going to indemnify him and actually provide his defense, that actually might be a win for him.
Pierre Whyte
I've looked at, I mean so far in research, I'm unsure if that's the case. I know he was terminated. So the fact that he's terminated, that seems like that's evidence. They're cutting their not exactly, which is smart. We're not paying for this good, which is smart because if they did, they could very well open them up to liability on punitive damages. So it's smart to cut him off. But then again, for him, if he's a client, which is important, my thought is settle this fast and you could settle it in different ways. If he's uncollectible, I don't know what his financial situation's like, but if they get a judgment, so what they can't enforce it, and there's a way to get this settled in another way,
Andy Marcantel
The department's still going to be liable though because he was working for them at the time. Firing him is not enough, in other
Pierre Whyte
Words. Exactly. No, they're not off the hook as far as liability of the family, the action for the family, the action, her children that she survived, and even her own actions. That's what the wrongful death action statute allows. Her estate can actually bring this claim herself. There's multiple claims here. So you're right. The deceased has her claim, her claims and the family have theirs. The state is not absolved from any of this. This is important. And the officers definitely not absolved, but he's less collectible, right? So this is important. I think the state is smart or the department is smart in firing him that cuts off or reduces their liability. It shows that they are aligning with society. I think it's important, especially because their image is in question now, right? There's a negligent hiring issue that Mark mentioned. Why is this guy even working here? I think this is important. This is another claim. I would say that they were negligent in hiring this guy and negligently. They negligently supervis him.
Marc J. Victor
That's, there
Andy Marcantel
Seems to be a lot of evidence of this.
Marc J. Victor
While the negligent hiring issue is irrelevant on the criminal side, it's very relevant on the civil side. In fact, you're going to bring a claim based on that and say, look, we're not even going after this particular officer for what he did. We're going after you department because you guys are idiots hiring this guy.
Pierre Whyte
Exactly. And that's vicarious liability. That can be brought under 1983 claim. So you can't even bring that claim. But the vicarious liability of negligent hiring is available against the state and the department. A completely different claim. But that is a separate claim than the other ones we've talked about. So this is important. So if I'm defending him, I think the justification, I think you're spot on regarding justification. I think the way to get out of this is to reduce his mental state can't reduce his act as rea, but his mens rea, there's definitely an argument can be made there aside from that component, his collectability, right? Whether he calls the accident. So
Andy Marcantel
This is what his assets that he has.
Pierre Whyte
Exactly. So his assets could be what are his wages, his retirement, what does he have? Of course, I don't know what his financial situation is. He could very well own a home. There's less pens that can be placed on his property. There's ways to get to his funds to compensate the family for their loss. So he's not absolved from that. That's important. But then again, if he doesn't have assets, you have the judgment against him. So what? You can't enforce it. So usually that's the time to talk about settlement. What's the amount of money that he could pay to actually make this claim go away? That's a smart way to look
Andy Marcantel
At it. Okay. Where is immunity going to come into all of this question? There's lots of talk about
Pierre Whyte
Immunity. No, absolutely qualified immunity. Immunity is important and it actually applies if we're talking about if he's being indemnified by the state. So if the state indemnifies him, meaning that they're going to provide representation, which I haven't seen any evidence of that happening. The fact that the state, or of course the agency terminated him, means to me that they're not going to indemnify him. So if they're not indemnifying him, then he is not acting in his qualified or his defic capacity.
Andy Marcantel
Can you define indemnify for our
Pierre Whyte
Audience? Perfect. Indemnification
Andy Marcantel
Reimbursement for me because I'm a dumb criminal defense
Pierre Whyte
Attorney. Fair? No, no, no, you're not.
Andy Marcantel
They're going to pay his reimbursement.
Pierre Whyte
Reimbursement. They're going to provide him with a defense. So it's no different than a car accident. You think of it, right? The insurance company has first right of refusal. If you get sued because of a car accident, they're going to provide representation for you. They hire an attorney that represents you. This is no different, right? The state essentially is going to step in and provide representation for the shooter here. But it doesn't seem like that's the case though. It seems like they may very well of course allow him to f for himself, find his own defense attorney, meaning that he was not acting in his official capacity. Immunity wouldn't apply, and that's important. So if immunity applies, he was acting in his official capacity. But it all goes to the facts here. I really much like the analysis that you all have broken down regarding, well, who became the aggressor and when, right? Because big on self-defense, if at one particular time she was the aggressor and then she became a passive innocent person, I don't know if there's enough facts to show that she now becomes an aggressor. If the gun is still trained on her, she never becomes the aggressor again. For me, I think she was, I mean, if it's arguable that she was ever an aggressor, but even if you do argue that there was a point in time where she stopped, the officers were
Pierre Whyte
Theor the entire time. Once he pulled his gun, he was the aggressor the entire time. But if his in response to that and his concern is, well, she may very well pick the pot up again and do something to me, call me physical bodily harm, things like that. I think that matters regarding his intent and maybe that actually is why the state is on the fence on whether or not they're going to provide defense for him, which is important because if they don't, then qualified immunity is then the malice murder seems like a better approach. And if that's the case, definitely changes settlement. I think when we were talking, I was talking to Mark earlier about the punitive damages and ways to get this matter settled. So punitive damages are a tool they can be used to negotiate higher settlement without even going to trial.
Pierre Whyte
The threat of punitive damages. So if I'm making the argument against the state, I'm going to say, well, I'm going to seek punitive damages for you. Well, that may increase the damages award as far as the settlement. I just save litigation costs and receive more money because they've calculated what it's going to cost them and a jury does not. Even if I agree with you, change jurisdictions matter. I think that matters a lot. But these facts, if I see this video, a woman in her own house and this happens, these are bad facts. I think it's a loser. You settled this case. If I'm the state, you settled
Marc J. Victor
This. They're going to want to get out of this case. This thing is obvious for them, and it should be, and it should be. They should never have hired this guy. I'd love to know what was going on. Was there a real shortage of police officers at the time part? I don't know. It's hard to imagine why they hired this guy, but stepping back from this case, we got to do a better job getting better trained police officers on deck
Andy Marcantel
Here. And we're only going to do that if we're able as a society to incentivize people to be police officers. That part, you know what doesn't incentivize our best and brightest to be police officers right now, the shitty pay that we have on the table for police officers right now. You know what doesn't incentivize our best and our brightest to be police officers right now? This attitude of all cops or bastards and broad brushing everybody and making it a despicable position in our society. You think we're going to get better or worse when those are the incentives for people to enter? I've always said this, and once again, I want to refer people to my video essay that I wrote on this exact subject because I feel very strongly about this. A police officer should be the cream of the crop of our society. It is the government giving them a monopoly on deadly physical force.
Andy Marcantel
It allows them to arrest people and deprive people of the rights and make life-changing decisions like being able to charge them with serious crimes that could affect everything. We want the people who are doing this job to not only be the most knowledgeable of the law, but also the most physical fit among us, the most mentally competent among us. When people hear that Mark and I and Pierre are just lawyers, oh, okay. You couldn't hack it as a cop. That should be what a police officer should be in our society and just what the current system we need to do better.
Marc J. Victor
And it's really important to say that these kinds of incidents happen and they go out there and they go crazy on social media. It sort of makes an unfair representation of what police officers are like. And you see the comments in these videos and people are making statements that start with all cops or cops are and that it's really unfair. Look, we try to call balls and strikes. There definitely are bad cops out there, but there's an awful lot of good cops out there and
Andy Marcantel
Nobody's more pissed off about bad cops than the good cops.
Marc J. Victor
No question about it. So yeah, we're not pro good cop and we're anti badd cop. I think that's the right position here. But again, calling balls and strikes on these and we're not afraid to go against the grain on these kinds of cases. We've been out there against the grain on these kinds of cases before. We've defended police officers and unpopular cases
Andy Marcantel
Before. Very high profile ones. Very
Marc J. Victor
High profile. We've also sued police officers in
Andy Marcantel
The past and very high
Marc J. Victor
Profile ones. Yes, we have. And
Andy Marcantel
By the way, we're trying to avoid the issue of talking about race in these types of cases. We can tell you we have a thriving civil practice. We've practiced civil rights many, many, many times. In many cases, many of which are high profile. And we can tell you bad cops victimize everybody of all races. Not just black people, not just white people, not just Hispanic people. Bad cops are a problem for all of us in this society. That's right.
Marc J. Victor
So we don't know, maybe this guy was a racist, maybe he wasn't. I don't know if we'll ever know the answer to that, but this is going to be a fun one to watch. It'll be interesting to see if this one settles. I don't think they're going to offer, they may not even offer second because it's a high profile. We've done a lot of high profiles. They're different. They may go for first degree on this one. Maybe they get second degree. But guess what? This guy's going to be spending a significant amount of time in prison. I think. I'd be very surprised if a jury lets this guy walk.
Andy Marcantel
Yeah, couldn't agree more. Pierre, any final thoughts from the civil side? What do you think it's going? What do you anticipate the family's going to do?
Pierre Whyte
Good question. So very unfortunate for both sides. I mean both families lives are changed. His family's life, the officer's life changed, the family's changed. The victim changed. At least for her. I see settlement. I don't see on the civil side. This ever goes to trial. I see. Once the criminal trial wraps up either with the plea agreement, the settlement for the civil side follows shortly. I see the family as far as survival action, I mean this could very well settle in the millions. That's what I think, at least on my end, as far as the family, her own action. Yeah, I see that settling also. I mean I don't see this going to a civil trial. I would say immediately if it does, that would shock me only because of these facts, right? The facts are I think, guiding on this. So that's my thought.
Andy Marcantel
Pierre, do you see any liability at all for the second police officer, the one who was filming the entire interaction?
Pierre Whyte
Yes. So the acting in concert is an issue, right? So there's an issue there regarding he didn't prevent it. So this goes to another negligent hiring piece. I hate to go there, but there is culpability for him as well. He's not absolved either. So I know I've been talking about the shooter mainly. But the person acting in concert is also could very well be not vicariously liable for the same offenses. And I shouldn't even, it's more so his own liability. So the shoot itself regarding assault, I think that he drew a gun on her as well. I think that's in the facts too. So there is liability for him also, even though he didn't shoot. That's my thought on it. To
Andy Marcantel
His credit, I mean at least while the shooter was saying, don't worry about trying to sav, or at least the second guy had the humanity to try to stop the bleeding and
Pierre Whyte
Do what? And that goes to mitigation. I think that goes to mitigation on the civil side. I think it goes to the mental state. I think it's important regarding that. The fact that he said the shooter, don't worry about it. It's a headshot. She's gone already and then the statements about her, it's going to be
Andy Marcantel
Relevant on the criminal side. Jury's not going to like that. It goes
Pierre Whyte
To mental state, right? It goes to mental state. I think the second officer on the mental state, I think he was spot on. I think he was spot on. Let me go get my bed. Lemme try to preserve life. That's what they're supposed to do. Preserve life.
Marc J. Victor
This one could have easily been avoided and where I started, I'm cranky with this cop, definitely bad shoot here. This guy did everything wrong in my opinion, and I think he's going to get what he deserves at the end of this
Andy Marcantel
One. Yeah, couldn't agree more. Thank you, gentlemen. All right, everybody. Thank you for tuning into this conversation. 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 more about our great lawyers at our law firm and how we defend people and how we fight for our clients. If you like the video, make sure to like the video. Leave us a comment down below, subscribe to the channel and share it with a friend. Until next time, there's been attorneys, Andy Markell, mark j Victor, and Pierre White signing out. Peace.
YouTube Video Link: https://www.youtube.com/watch?v=ASrPOt_Kaho
Credit: Marc J. Victor, Andy Marcantel, And Pierre Whyte, Attorneys On Retainer