Client found Not Guilty of Reckless Production of Firearm at Jury Trial

Scott County, Firearm Trial

The criminal justice system, it’s process, it’s scheduling, can be very hard on attorneys, but also on defendants.  The criminally accused faces many court dates, court dates which get rescheduled again and again.  So many defendants give up on their right to trial, but this client stuck to his guns, and by telling his story in his courtroom with the assistance of a good lawyer, he was acquitted of all charges.

Client was charged with Reckless handling of a firearm, a gross misdemeanor.  His neighbor lived across the street in the townhome development which they were both a part of.   This neighbor had filed with the housing association numerous complaints about manner in which the client parked his car.  The neighbor called the police several times regarding this and the client’s dog supposedly being unleashed in his own yard, which is not a violation of the law at all.  He eventually started taking photographs of the house, even filming video through the client’s window.  Several verbal altercations had arisen between them.

One day the defendant came home with his wife from the grocery store.  His wife noted that the neighbor had parked his car on the street, not in the spot where he was supposed to park.  Noting the hypocrisy, the defendant’s wife took him to task, and also started taking pictures of his car.  The neighbor became very agitated, and approached her in an angry fashion, confronting her in the road, a public space, and was yelling very close to her face.  The client intervened, got between the neighbor and the client’s wife, and told him to go back to his own property.   The neighbor challenged him a fight, which the defendant declined.   The neighbor than whipped off his glasses and watch, squared up with the defendant, and kicked him squarely in the groin, dropping him to the ground.   The defendant than produce a 9mm handgun, held it to his face, once again directing him to go back to his property.  Allegedly, the neighbor went to his knees and begged for his life, and then did indeed go back to him home, and the neighbor’s girlfriend called the police.

Police arrived on a call that the client had produced a firearm in a fight, and the neighbor alleged that the client started the altercation.   Police responded in full force, several squads and fully automatic weapons.  The client was ordered out of the home at gun point, handcuffed, and arrested.   The police then questioned him.   Against what would have been the better advice of counsel, he cooperated, and indicated what the neighbor had done and why he intervened.  He admitted to pulling on a gun on an unarmed man in a public place.  It was not his property.

Alex DeMarco asserted self-defense from the beginning.   In pretrial, the Court questioned whether the defense was even available since it was not what is known as a “specific intent” crime, but that the defendant was accused of acting recklessly.  Strategically, this is why he was never charged with second degree assault, which is a specific intent crime.   However through painstaking research, Alex DeMarco successfully argued for the self-defense instruction to apply, which is the only way the jury was ever allowed to even consider self-defense.  Had it not been for this, the Jury would not even be able to deliberate on whether the client acted in defense of himself or others.

Choosing the jury was extremely difficult.  This was merely two days after the Orlando Nightclub shooting.  Alex took his time with a process called “voir dire” whereby the jury is asked a number of questions to reveal their biases and prejudices in order that counsel by motion or by preemptive strike may eliminate jurors that may be less than fair and impartial.  Numerous jurors displayed an ignorance of firearms, assigning great significance to the term “semi-automatic.”  The pistol in question, like most 9mm’s, was a semi-automatic handgun.

Alex also produced evidence of a severe back injury for which the client had recent surgery before this incident.  Though he had completed his rehabilitation, medical records indicated that strenuous activity could re-injure the defendant, and cause the need for further and more extensive surgery.   This evidence was important, because the jury is instructed that they are permitted to consider the relative size, strength, and abilities of the parties.  Though the client was relatively young and not in horrible shape athletically, his back injury prevented him from scrapping like other people.

The State, at the close of trial, argued that the production of a pistol against an unarmed man in a public place was “excessive force.”   The law requires that one using such force against anyone has a duty to retreat first, or try to, or self-defense cannot be found.   Alex argued successfully that his client had been dealt a devastating strike to the groin and that this combined with his back injury rendered him not fully mobile.  He was not sure if his neighbor was about to strike him again.  So he resorted to his firearm.

The Jury deliberated for about two hours, and returned a unanimous verdict of NOT GUILTY.  The defendant walked out of the courthouse a free man, and collected his pistol from the police department shortly thereafter.  The defendant faced possible jail time, loss of his second amendment rights, and potentially loss of his job if he had been convicted.

If you or someone you know has been accused of a crime involving a gun, you should know that Alex DeMarco himself is well trained in the use and functionality of firearms, and is a gun enthusiast himself.  He understands well the law of armed force, the liabilities and exposure of defendants who face these accusations, and how to fight such charges every step of the way in court.  We live in a time when a great many people have misconceptions and prejudices regarding those who choose to exercise their second amendment rights, and it is made worse by constant media attention on tragedies and political interests seeking to limit the rights of gun owners.  If you or someone you know finds yourself accused of a crime involving a firearm, you should contact our office today. (651) 503-8394 or