Steller: In Arizona, if you get scared to death, you can kill the person scaring you

2014-04-13T00:00:00Z 2014-06-05T18:26:18Z Steller: In Arizona, if you get scared to death, you can kill the person scaring youTim Steller Arizona Daily Star Arizona Daily Star

David Mota knew what was coming. He felt it. And he acted.

A young man was screaming at Mota from a car lingering beside Mota’s pickup truck on North Oracle Road on Feb. 28, 2013. Mota, who thought he saw the man bend down, pulled a .45 caliber pistol from under his driver’s seat, pointed it across the front of his friend in the passenger seat, toward the man’s Pontiac Grand Am, and fired twice.

Then Mota, 21 at the time, saw the Grand Am pull forward through the light at Pusch View Lane, and thought maybe the driver was going to turn back and follow him. Mota turned and fled.

In Mota’s view, firing the shots was natural and instinctive, the reaction of a man who was scared and believed he was in imminent danger.

“It just scared me. I freaked out. I seen him bend down,” he told me by phone Thursday from his home in San Manuel.

But here’s the catch: He shot and killed a man, Joshua Switalski, 22, who never made any clear physical threat. Switalski yelled slurs, he gestured and he paused next to Mota in his car, but he didn’t say he’d kill Mota, he didn’t get out of his car, he didn’t pull a gun. He didn’t have a gun.

In Arizona, in 2014, that doesn’t matter. Feelings matter. Fears matter.

Facts don’t matter.

On March 26, a Pima County Superior Court jury acquitted Mota of all charges: first-degree felony murder, drive-by shooting and aggravated assault.

The prosecutor, deputy county attorney Bruce Chalk, and the defense attorney, Natasha Wrae, largely agree on why Mota was acquitted. Arizona’s 2006 “stand your ground” law makes it hard to convict a defendant with even a slightly credible claim of self-defense.

Under the 2006 law, we have no duty to retreat before using deadly force in self-defense if we’re someplace where we’re allowed to be and we’re not engaged in a crime.

As Mota’s case shows, under the law, it doesn’t matter whether your fear is based on facts. It can be a gut instinct. Basically, if you get scared to death, you can kill the person scaring you.

The jury in Mota’s case received these instructions based on the law: “The use of deadly physical force is justified if a reasonable person in the situation would have reasonably believed that immediate deadly physical danger appeared to be present. Actual danger is not necessary to justify the use of deadly physical force in self-defense.”

In addition, the 2006 law makes it the burden of prosecutors to prove beyond a reasonable doubt that the defendant was not justified in using deadly force in self-defense. It used to be the defendant’s burden to prove his claim of self-defense. The jury’s instructions said, “If the state fails to carry this burden, then you must find the defendant not guilty of the charge.”

And that’s what they did.

“My argument is, it was words alone. Their argument is, there was more to it than that,” Chalk said. “It came down to whether 12 people believe he acted reasonably when he shot his gun.”

Neither Mota nor Switalski had criminal records or any significant sign of being a bad guy.

None of the jurors I tried to reach got back to me to explain their verdict. But with these instructions, the verdict seems self-explanatory. Chalk couldn’t prove beyond a reasonable doubt that Mota was not acting in justified self-defense. Mota’s feelings of fear proved the justification.

None of this is to say Mota wasn’t justified in being scared. Here are some additional details that flesh out the story but don’t change the fundamental facts: Mota was driving north on North Oracle Road when he signaled to take a left at Pusch View Lane and squeezed in between two cars. This enraged the driver of the car he cut in front of, Switalski, who swerved around Mota’s pickup and paused to scream obscenities at him.

Mota was in a left-turn lane with a red light. Switalski was in the center lane with a green light to continue north to the Olive Garden, where he was planning to have dinner with his girlfriend, also in the Grand Am. Mota told me Switalski’s vehicle was stopped when he fired; Wrae, his attorney, told me earlier that it was moving forward. In any case, Switalski’s Grand Am was ahead of Mota’s pickup.

It was the perceived bending down motion that Mota says caused him to pull out his gun and fire. He thought it might have meant that Switalski was going to pull out a gun. Mota said he was not intending to hurt anybody, just hit the car, when he fired. Of course, that intention is irrelevant when you shoot at an occupied vehicle.

“I wasn’t totally sure what he was going to do or if my life or if my friend’s life was in danger,” Mota told me. “I never wanted to kill anybody.”

I believe he didn’t want to, but note that he wasn’t even sure his life was in danger and he acted like it was anyway. That’s OK under Arizona law.

These laws didn’t appear from nowhere. The National Rifle Association and American Legislative Exchange Council pushed them in the mid-2000s, with the first one being passed in Florida in 2005. Arizona was one of about a dozen states to pass similar laws in 2006, despite the protests of prosecutors. Now, about 23 states have them.

“The stand your ground law really has to be changed or we’re going to be in a load of trouble,” said Jeri Switalski, Joshua’s mother. “That could happen to anybody.”

Note that these laws go beyond the “castle doctrine,” under which you are permitted to use deadly force against intruders in your home or on your property without first retreating. Laws such as Arizona’s apply anywhere you’re allowed to be, as long as you’re not doing anything illegal.

“Stand your ground laws encourage armed vigilantism by allowing people to shoot to kill even when there is a safe and obvious way to avoid conflict,” said Jocelyn Strauss, a Tucsonan who is regional director of a group called Moms Demand Action for Gun Sense in America, via email. “In this case, the shooter could have simply driven away and both men would be alive today — but because of Arizona’s stand your ground law, an innocent young man was killed and his shooter is protected in a court of law.”

Mota told me he didn’t know about the state’s self-defense law that day. He just acted out of instinct. But as cases such as these occur in Arizona and across the country, the new rules of the road are becoming clear to the public.

All you have to do is articulate feelings of deadly fear, not facts that justify that fear, and you can fire away.

Contact columnist Tim Steller at tsteller@azstarnet.com or 807-7789. On Twitter: @senyorreporter

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Activate

Follow the Arizona Daily Star

Featured businesses

View more...

Deals, offers & events

View more...

Event Calendar

Today's events | Add an event

Most viewed:


Get weekly ads via e-mail