Court finds man abused child by firing gun in his presence during justified self-defense

Discussion in 'The Okie Corral' started by Bren, Jun 13, 2020.

  1. Bren

    Bren NRA Life Member

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    I have to review the weekly cases of the Kentucky Court of Appeals every Friday and write a memo about them. I thought this one was interesting. There is no news story and no good way to look it up, since it was a family court case and they don't use the names of any of the people involved.

    T.W. v. COMMONWEALTH OF KENTUCKY; CABINET FOR HEALTH AND FAMILY SERVICES; K.W., A MINOR CHILD; E.W., FATHER; AND C.C., MOTHER, NO. 2019-CA-001702-ME (Ky.App. June 12, 2020)

    The judge in the case was Bullitt Family Court Judge Monica Meredith. She has been a judge for about 18 months.

    Basic facts:
    T.W. (“Grandfather”) appeals from a Bullitt Family Court order finding he committed abuse of his minor grandson, K.W. (“Grandson”) when he fired a gun at his son [K.W.'s father] in the child’s presence.

    Grandfather did not face criminal charges for the shooting after the Commonwealth attorney concluded he acted in self-defense. Grandfather argues that the determination he acted in self-defense precludes a finding of abuse.

    At the time of the shooting, Grandson was a 20-month-old toddler. His father (“Father”), who is Grandfather’s son, had been released from jail about five months before, and Grandson’s natural mother, C.C. (“Mother”), was homeless. Grandfather did not approve of Father associating with Mother because he believed she encouraged Father’s abuse of illegal drugs such as heroin and methamphetamine. Grandfather testified that although Father had not used drugs for four months after his release from jail, he had recently been on a drug binge with Mother.

    On the day of the shooting, Father called Grandfather and told him he, Mother, and Grandson were going to stay with him at his residence. Grandfather refused because he believed Father was high, and he did not want Mother on his property. He told Father he would pay for a motel but did not want them in his house.

    About two hours later, when Grandfather drove up to his residence from a greenhouse on his property where he had been working, Father, Mother and Grandson were on his porch. . . .

    Father demanded Grandfather allow them to stay at his house; Grandfather refused. Grandfather set Grandson down and told him to go see his mommy. Grandson ran to Mother who was seated at one end of the front porch.

    Father balled up his fists. Grandfather pushed him away; Father fell down the first two steps while Grandfather tried unsuccessfully to open his front door. Father grabbed Grandfather by the throat and squeezed it; he then punched Grandfather, breaking his jaw on both sides. Grandfather drew his handgun from his pocket. Father lunged at him and Grandfather shot him through the leg. The bullet passed through Father’s leg and a fragment of the bullet struck Mother in the leg. Grandfather fled to his nearby vehicle and called for help.

    Father was charged with assault in the first degree. Grandfather was not criminally charged because the Commonwealth attorney decided he acted in self-defense when he shot Father.

    The Cabinet for Health and Family Services [social workers] filed a dependency, neglect, or abuse petition as a result of the incident, naming Grandfather and Father as the persons responsible for neglect or abuse of Grandson.

    The [prosecutor] moved to dismiss the petition as to Grandfather on the grounds that Father was charged with assaulting him, and neither the police nor the prosecutors disputed that Grandfather had acted appropriately in self-defense.

    The family court refused to dismiss the petition as to Grandfather. Grandfather successfully moved for recusal of the family court judge and the case was reassigned to a different division of the family court. Mother stipulated to neglect for having been under the influence of methamphetamine. Father was sentenced to five years in prison on an amended charge of second-degree assault against Grandfather, and he thereafter also stipulated to neglect.

    The Commonwealth again moved to have the petition dismissed as to Grandfather. The family court denied the motion and set the matter for trial.

    Testimony at the trial was heard from the Cabinet social worker who initiated the petition, the police detective who investigated the case, and from Grandfather. After noting that the standard for determining abuse and neglect differs from the criminal standard for self-defense, the family court concluded Grandfather had a duty to retreat from his residence because of the presence of Grandson, and he should not have discharged a firearm in Grandson’s presence. This appeal by Grandfather followed.

    On appeal, Grandfather does not contest the essential facts of the case, but contends the family court’s conclusion is erroneous as a matter of law. He argues that the only person obviously to blame for causing any neglect or abuse of the child was Father, who, in keeping with the principle of criminal law, was solely responsible for the naturally foreseeable use of force by Grandfather in the attack. See, e.g., Robertson v. Commonwealth, 82 S.W.3d 832 (Ky. 2002) (holding that a criminal defendant may be liable for the reasonably foreseeable consequences of his conduct).


    Displaying an unusual degree of common sense, the Court of Appeals reversed the family court based on insufficiency of evidence:

    Admittedly, Grandfather was carrying a gun, but there was no evidence this was not his usual practice or that he was carrying the gun solely in anticipation of shooting Father. The family court’s decision in this case was based on a speculative theory, formulated in hindsight, prescribing how Grandfather should have acted under what were undoubtedly volatile circumstances.

    The evidence presented at trial does not support the family court’s finding that Grandfather could have avoided the risk of physical or emotional injury to Grandson, and consequently its ruling that he committed abuse of Grandson must be reversed.

    For the foregoing reasons, the Bullitt Family Court’s opinion and order finding Grandfather committed abuse of Grandson is reversed.


    So, anyhow, the Court of Appeals did the right thing, but it's pretty interesting that some lefty POS social workers came up with a theory of child abuse that, its a safe guess, was motivated as much by left-wing anti-gun beliefs as by any genuine belief that it was child abuse.

    About 20 years ago I represented a guy on appeal who had been convicted of Criminal Abuse in the First Degree and sentenced to 10 years in prison for hitting his daughter on the side of the face with a plastic flyswatter one time. In that case, they came up with the wacky theory that he had "exposed the child to the risk of serious physical injury" based on a theory unsupported by any medical evidence that he could have put her eye out if he had hit her in the eye. Like this case, that one was reversed on the insufficiency of the evidence to support the conviction, which is a pretty rare reason for reversal.

    Funny thing is, while I was appealing it, my client skipped out on his probation and fled to Mississippi. I never heard from him again, so as far as I know, the guy is still in hiding in Mississippi, thinking he is a fugitive from a 10-year Kentucky prison sentence.
     
  2. Bren

    Bren NRA Life Member

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    Sorry that's such a long post, but it was hard to cut those facts down. If I had worked hard I could have cut that down to a paragraph.
     
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  3. seagravedriver

    seagravedriver

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    It was worth reading, all of it.
    Thanks for posting.
     
  4. shadowgunner9

    shadowgunner9 This used to be AMERICA........

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    I find most of law enforcement and court cases pretty interesting. This seems way out of line.
    I, however, could never see myself in this line of work- dealing with idiots of human beings day in and day out, acting as a babysitter and parent most of the time. dealing with the stupid acts of violence mankind doses out on his fellow man.
    Our justice system is indeed an interesting line of work. My sister worked as an assistant DA for a while. Has attorney's license. Dealt with these same issues of stupid acts and stupid people.
    It drove her out of the profession.
    More power to you if you can keep going day after day.
     
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  5. BillKilgore

    BillKilgore

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    I'm glad to see common sense finally prevailed in the grandfather's case.
     
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  6. SRS

    SRS

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    I don’t know much about family law, much less Kentucky family law, but the case seems procedurally weird. Is the prosecutor responsible for litigating these petitions, which are apparently filed by Family Services? If so, it seems odd to force the prosecutor to pursue a petition it believes lacks merit.
     
  7. norton

    norton

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    Interesting.
    I suggest Grandpop keep his firearm handy, especially when worthless POS Father gets out of jail.
     
  8. larry_minn

    larry_minn Silver Member Millennium Member

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    Sadly it’s not likely he could win a malicious prosecution case. IMO it should be. All his legal costs, time, suffering. (I would be worried I would get put in child molester category.). Likely considered domestic violence, guns taken away....
    Child social services are not a group I respect much. Most any social workers.
     
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  9. ede

    ede

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    Bren that was interesting and at same time hard to believe the amount of stupidity put into it. Last year my DIL prosecuted guy for rape of a child. His lawyer argued in court the sentence she was asking for was excessive because the actual crime lasted only a matter of minutes. I know his job is to represent the accused but I'd have a damn hard time standing there saying that.
     
  10. spork

    spork Caffeinator

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    That was a very good post and thanks for making it.
     
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  11. ReaPer105

    ReaPer105

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    That's an utterly ridiculous decision.
     
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  12. RenoF250

    RenoF250

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    What is with these courts thinking they can prosecute?? That is not their job.
     
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  13. HanKill

    HanKill

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    Reminded me of a certain member here who recently had better luck with his abused grandson...
     
  14. ottomatic

    ottomatic

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    Having had many dealing (both personal and professional) with both DCS and APS, I was frustrated much of the time.
     
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  15. Wyoming

    Wyoming

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    When do people start losing their jobs for abusing power. Stupid will never end until there is consequences.
     
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  16. MurrayNevada

    MurrayNevada USMC (MOS 0369) (RVN 69-70)

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    Ask General Flynn about judges acting as prosecutors.
     
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  17. rcems2000

    rcems2000

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    It crazy. Common sense is gown. I'm glad I purchased uscca to help in case of incident.
     
  18. Ay Dios Mio

    Ay Dios Mio

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    I love a good stupid story...thanks, Bren.
     
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  19. fastbolt

    fastbolt

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    No apology necessary. It was rather succinct and conveyed the salient points needed to understand it.

    Not bad for someone who may normally charge a client by the word on written documents. :outtahere:
    :p

    Thanks.

    Just when you think you've seen or heard it all ... that really just means it's time to cautiously look around the next corner. ;)
     
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  20. vikingsoftpaw

    vikingsoftpaw DEPLORABLE ME!

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    Family Court it's basically clown Court. It's nothing more then a system used to transfer wealth from Men to women at the point of a gun.
     
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