Second Amendment

Michigan Court of Appeals Has Reversed the Felony Assault Convictions of a Gun Owner Who Acted in Self-Defense

A then-pregnant Siwatu-Salama Ra was sentenced to two years in prison after using an unloaded gun to protect herself, her daughter, and her mom.

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One year after Siwatu-Salama Ra was convicted of assaulting a woman with a deadly weapon and committing a felony while in possession of a firearm, the Michigan Court of Appeals has reversed her conviction. Both charges stemmed from an incident in which Ra sought to protect herself, her 2-year-old daughter, and her mother from a woman who was threatening to run them down with her car. 

As Reason previously reported, the incident in question occurred while Ra, then pregnant, was visiting her mother at her mother's home in 2017. Ra's 2-year-old daughter was with her, and her teenage niece was also present. When A'Kayla Smith, a teenage associate of Ra's niece, arrived at the house, Ra told Smith she was not welcome to visit due to an altercation the two teenagers had at school. Ra demanded that Smith call her mother to pick her up.

When Channell Harvey, Smith's mother, arrived at Ra's mother's house, she yelled at Smith and Ra from her car, which was parked in the street. Ra testified that after Smith got in her mother's car, Ra demanded Harvey leave and that, in response, Harvey intentionally backed her car into Ra's car, which contained Ra's 2-year-old daughter, then attempted to run down Ra's mother, Rhonda Anderson.

Anderson testified that Harvey knew before she backed into Ra's car that Ra's 2-year-old daughter was inside. Ra's niece testified that after Harvey hit the car, Ra retrieved her daughter from the car, asked her niece to take the girl inside, and then retrieved an unloaded and legally owned handgun from her console and brandished it at Harvey while demanding she leave. Ra's mother testified that Ra did not retrieve the gun until Harvey attempted to run Anderson down while she stood in her own front yard. Harvey, meanwhile, testified that she hit Ra's car accidentally after Ra brandished the gun at her and that she never attempted to hit Anderson with her car.

No one testified that Ra fired the gun.

Harvey took pictures from her car of Ra holding the gun, and eventually drove to a police station where she reported the incident. Ra reported the incident three hours later. Because Harvey filed her report first, Detroit police treated her as the victim, per department policy. Harvey was never charged for driving her vehicle into Ra's. 

Ra was charged with felony assault of Harvey, felony assault of Harvey's daughter, who was sitting in Harvey's vehicle at the time, and with committing a felony while in possession of a firearm. A jury found Ra not guilty of assaulting Harvey's daughter, but guilty of assaulting Harvey and of possessing a firearm in the commission of a felony. Ra received a mandatory minimum prison sentence of two years and was forced to give birth behind bars.

On Tuesday, the Michigan Court of Appeals unanimously reversed Ra's convictions, arguing in its decision that her trial judge failed to appropriately instruct Ra's jury on her self-defense claim, and that said failure likely affected the outcome of her case.

It gets a little weedy here, but it's worth understanding exactly where Ra's trial judge went wrong.

Ra's defense asked that the jury be instructed to decide whether Ra was justified in using nondeadly force to defend herself. The trial judge determined that a firearm—even one that is unloaded and never actually fired in the course of a dispute—is actually deadly force, and instructed the jury to decide whether Ra was justified in using deadly force in self-defense.

However, several legal precedents highlighted by the Michigan Court of Appeals show that Ra's judge, Wayne County Circuit Court Judge Thomas Hathaway, was wrong to equate the threat of deadly force with the use of deadly force; and that, by definition, only threatening deadly force—in this case, brandishing, but not firing, a gun—is fundamentally nondeadly.

The distinction between deadly and nondeadly force matters quite a bit. Michigan's Self-Defense Act says that a person may use deadly force if she "honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual." The law's test for using nondeadly force, however, is much easier. It requires that the person believe "honestly and reasonably that the use of that force is necessary to defend himself, herself or another individual from the imminent unlawful use of force by another individual."

The Michigan Court of Appeals argued that if Ra's jury had been instructed properly, it might have determined that she was justified in using nondeadly force to dissuade Anderson from further aggression. "The evidence presented in this case supports the conclusion that it was reasonable for defendant to believe that she had to use force to protect herself or others from Harvey's imminent unlawful use of force, even if it was not reasonable to believe that she was in danger of being killed or seriously injured," the Appeals Court decision reads.

And had the jury reached that conclusion, it could not have found Ra guilty of committing a felony while in possession of a firearm.

"This is a huge victory for justice," Wade Fink, Ra's lawyer, told Reason in a statement. "Siwatu acted in self-defense and we hope the case is completely dismissed. But if this case is brought again, we intend to prove it—this time in a fair trial where Siwatu is permitted to present a defense."

Ra's ordeal is not necessarily over yet. While Wayne County Circuit Court Judge Donald Knapp Jr. made the decision to release her from prison in November 2018, prosecutors will now decide whether or not they want to try Ra for a second time.

Should prosecutors decide to bring Ra to trial once again, the decision would set a poor precedent about the right to legal self-defense, especially for black gun owners. Vox reported in 2018 that Ra's conviction drew concerns from a wide span of the political spectrum, from Black Lives Matter to the National Rifle Association.

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  1. “Because Harvey filed her report first, Detroit police treated her as the victim, per department policy.”

    Let’s see. You if murder someone, then go to the cops, you will be considered the victim since you filed your report first?

    1. *INVESTIGATION!* What do ya think we are, *detectives*?

    2. I know that kid! I went to school with him….

      He’d run around starting fights, and then the second he started losing he’d run and tell the teacher.

      I hate that kid.

      1. The apple doesn’t fall far from the tree I guess.

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    4. Cops are often stupid. Like everyone else.

  2. I assume that wouldn’t apply in “murder” (given that murder has a strict legal definition). Moreover, if you murder someone how in the world would they get to the cops to file a report first? I’m assuming this applies in more ambiguous cases where it isn’t exactly clear (like the back and forth altercation with Ra)

    1. There was a horror episode where a guy dragged a recently-deceased corpse into the police station and said, “I’m dead, and this man killed me!”

      Spoiler – some plot twist involving poison or disease germs or whatever.

  3. “The trial judge determined that a firearm—even one that is unloaded and never actually fired in the course of a dispute—is actually deadly force, . . ”
    The same judge is the one that determined the sun rises in the west – – – –

    1. I think that is actually a point of law.

      Raising Arizona was wrong on that count – “It ain’t armed robber if the gun isn’t loaded”.

      I think they can deem even a toy gun as “assault with a deadly weapon” if they feel like it. We’ve been defining down terms for a long, long time.

      1. Raising Arizona was wrong. But, there was a time when thieves made sure their guns were unloaded. It wasn’t about being convicted of armed robbery. It was about risking the death penalty for felony murder. No stick up artist with any brains was going to risk a loaded gun going off and going to the electric chair.

        When we stopped enforcing the death penalty for felony murder, the crooks had a lot less to lose by loading their guns and things got a lot more dangerous for innocent people. But, who cares about those people. All that matters is the people on death row.

        1. No stick up artist with any brains

          John, I think I’ve found a flaw in your argument…

          1. Criminals have a feral sense of survival. They don’t care about going to jail but they do care about dying.

            1. I don’t think feral in that statement does what you think it does.

              An animal’s(feral) sense of survival is focused solidly on the here and now. No thought or consideration is given to how actions today affect survival tomorrow, next week, or next year.

              1. Not only is there scant if any evidence that the death penalty is an effective deterrent, I don’t find John’s reasoning slightly plausible.

                First of all, as you say, a “feral” sense of survival is focused on the here and now, rather than some distant unknowable future. Secondly, nobody really believes that *they* will catch a death sentence. They know so-and-so committed crime X and got away with it, so surely they will too.

                Truly coming to terms with the reality and inevitably of death takes time and effort. This is why the young almost invariably implicitly believe themselves to be immortal. It goes something like, sure, people die, but *I* won’t die, because that would mean the end of existence, which is obviously impossible. The illogic of it this is irrelevant, and this inconsistency is what most religions rely on: you don’t *actually* die if your consciousness gets to continue on in heaven; you simply are absent a corporeal body.

                1. John’s remark has nothing to do with the death penalty, and everything to do with the criminal not wanting to be on the receiving end of a self-defense action.

                  The oft reported difference in hot home burglaries between Britain and the US is certainly a correlation that lends some weight to that theory.

      2. Raising Arizona was right about round being a funny shape.

        1. Raising Arizona is a great movie!

  4. I would never point an unloaded gun at any one.

    1. Well, not unless you had no other choice. It does seem a good way to get shot.

      But if you are gonna scare someone off? If the choice is unloaded gun or just yell and call them names? Maybe I’d go with the bluff. Bonus with the bluff version, guns are pretty heavy and they can do some damage as a club.

      1. That depends on if it’s a real gun or some plastic piece of shit. My Security Six would make a great club.

    2. What if they had a pointed stick?

      1. Or even a banana?

        1. drop the 500 lb weight on them!

  5. This is a huge point of instruction when getting firearms training. The act of pulling a gun is very often considered “brandishing” and will get you into a ton of trouble, but because the act of “brandishing” the gun causes a de-escalation, the requirements for use of force are not met.

    As a result, you get someone who pulls a gun, prevents an altercation, but goes to jail. It makes having a gun for self defense extremely tricky, and incentivizes waiting until actual force is used on you before resorting to a firearm. At which point, it may be too late.

    1. Very true; once you pistol leaves concealment you’ve essentially “gone nuclear” and will bear the burden of proof to show that it was necessary. I think in this case the other person was using their car as a deadly weapon and it was justified [as the appellate court concluded]; but once you pull out a gun you’d better damned sure be the first one to call the cops; then immediately call your self defense insurance company and get a lawyer on the line before they arrive, and certainly before you give a statement.

      1. This is actually why I open carry. I know the meme is that open carriers will be “shot first” by dedicated, competent, hyper-aware ninja criminals, but I think the reality is basically this: concealed carry coupled with our legal situation forces you to leave the gun out of play until the last possible moment, at which point it may be too late, or you’re committed to pulling the trigger and all that goes with it.

        I am reminded of the guy that shot a 12 year old who attempted armed robbery (as I recall it was at a bus stop) with a toy gun. The victim saw an opportunity, drew and fired. Clear-cut self-defense, right? Except the aggressor was a kid, and the community went into an uproar, and so the DA felt obligated to try the man criminally. He was eventually acquitted, but did he really “win”? His life was basically ruined by the legal defense, not to mention he has the death of a 12-year-old to weigh on his conscious.

        The CC advocate says that open carry will get you shot first.
        The OC advocate says that open carry will act as a deterrent.

        In this scenario, I think it’s pretty damn inarguable that the open carry advocate is correct. There are, of course, other scenarios where the concealed carry advocate is correct. The question I pose is: which type of scenario do you believe is more likely to happen to you?

        Personally, I haven’t seen a lot of hyper-aware, competent, dedicated criminals. Most crimes are crimes of opportunity. But YMMV.

        1. Your reasoning makes a fair amount of sense, but like the “you’ll get shot first” mantra, it’s only conjectural.

          I think a much stronger argument against the “you’ll get shot first” concern is *where are the cases of this happening*? The modern open carry movement is at least 15 years old… Surely there would be some reportable instances of an open carrier being shot first if such a thing ever happened.

    2. This is a good point. It deserves further exploration. Maybe the good folks over at the reason foundation can put someone on it.

      1. It doesn’t revolve around open boarders or Trump, so…..

    3. That is a perfect description of the situation and why carrying a gun might save your life at the price of sending you to jail. Unless and until self defense laws are changed in this country, I would be very hesitant to conceal and carry for the reasons you describe. The other thing to remember is that the gun only helps if you pull it out before anyone else pulls out theirs. If I pull a gun on you, your concealed weapon is useless. All pulling it out will do is give me a plausible claim I was fearing for my life when I shoot you.

      So, to be an effective defense, you have to pull the gun out early. But pulling it out early puts you in serious legal jeopardy.

      1. If I pull a gun on you, your concealed weapon is useless.

        Only if your aim is perfect.

        1. At close range it likely will be. You bring up a fair point which is that pulling a gun and using it are two different things. If someone pulls a gun on you in a public place, your best bet is to run. It will shock the shit out of them and by the time they realize what has happened you will be far enough away to make them hitting you very unlikely even if they do have the nerve to do it.

          1. your best bet is to run

            And zig-zag.

            1. No, run in a straight line oblique to the attacker. Zig zag slows you down and doesn’t make it significantly harder to hit than running perpendicular. Only running straight away makes it easier.

              Plus, it’s dumb advice because nobody follows it. Watch some combat footage, either trained soldiers or insurgent types. Wait until someone starts shooting and everyone runs for cover. Then tell me how many of them zig-zagged.

          2. Studies show that about 75% of shots fired by police are misses during gunfights.

            Same studies show that the majority of police shootouts take place at 10 feet or less.

            1. Yes, I think John overestimates himself.

      2. John, you might want to spend a little more time reading reports of actual gun fights, both those involving law enforcement and though it’s involving ordinary citizens. Lots and lots of instances of people drawing their defensive weapon while already being aimed at by the perpetrator.

    4. Kind of creates a perverse incentive: If you are going to pull a gun, you should be shooting someone. And if you shoot someone, you’d better kill them. Makes the self defense claim much simpler when it’s your word against a dead man.
      Seems to me like it would be better if brandishing a weapon to deescalate a situation had some better legal protection. I suppose there could be reasons I’m not thinking of why that isn’t a great idea, but nothing comes to mind right away.

  6. “Should prosecutors decide to bring Ra to trial once again, the decision would set a poor precedent about the right to legal self-defense, especially for black gun owners”

    Um, why? Not the precedent, why the “especially for black gun owners?”

    1. Don’t you read the New York Times?

      Well, maybe not the New York Times, but you get the idea.

  7. November 2018, prosecutors will now decide whether or not they want to try Ra for a second time.

    This is where prosecutors have a chance to endear themselves to the public.

    1. It’s like a tax; if it fails once, twice, three times…just put it back on the next ballot. And that’s not even playing the game between State and Federal courts as “separate but equal venues.”

  8. For some reason, the use of last names and familial relations in this story is infuriating. It’s worse than 1 Chronicles 1.

    1. It took me a few minutes to untangle all of that too.

    2. It may have infuriated you, but use of all those names obviously totally confused the author and editor(s). Maybe even the Court of Appeals.

      “The Michigan Court of Appeals argued that if Ra’s jury had been instructed properly, it might have determined that she was justified in using nondeadly force to dissuade Anderson from further aggression.”

      Anderson is Ra’s mom; Harvey is the one aggressively driving the car.

      One of today’s examples of why I, AND YOU ALL, can’t depend on reason.com’s reliability. They’re just too busy and/or lazy and/or incompetent to proof and correct their errors.

  9. The story also makes me wonder which version of events is actually true.

    Because if she had to call mom to come pick up her kid because she doesn’t want her ’round here….

    Well, there’s bad blood right there.

    And then mom shows up and they run their mouths about who’s daughter is the bad seed….

    And then?

    Mom get’s enraged and backs into Ra’s car and tries to run over grandma?

    Or Ra gets enraged and pulls out a gun, yelling “you better get out of here before I shoot your…” at which point mom panics, backs into car in her hurry and races away. Well, while shooting pics from her cell phone.

    I dunno.

    I’m not sure you need the PD’s policy of assuming the first report is the victim to arrive at that conclusion. It would take getting statements from everyone and seeing who is full of crap. And of course Mom is only gonna have her and her daughter. And Ra is going to have her, and her daughter and her mom. Unless someone defects, you can’t believe any of that. So now we are down to witnesses. And good luck figuring out who they are and what their connection to the Ra family is.

    Yeah, on second thought, this one isn’t a slam dunk.

    1. The appeals court didn’t have to decide which version was true, just whether the jury got the right instructions.

    2. Yeah, on second thought, this one isn’t a slam dunk.

      So, if you had a doubt, it might have been reasonable?

  10. The trial judge determined that a firearm—even one that is unloaded and never actually fired in the course of a dispute—is actually deadly force, and instructed the jury to decide whether Ra was justified in using deadly force in self-defense.

    Seems to me that this should be* a determination for the jury to make, not the judge.

    *IANAL so I’m not claiming this is legally correct, just that things should be this way.

    1. No. that was the judges call. The judge was saying as a matter of law brandishing a firearm is deadly force. That is a legal determination. The factual determination made by the jury is if she was justified.

  11. Sounds like one big shit show by a bunch of childish losers. No good guy to root for here. They deserve each other and I don’t care what happens to any of them, with the possible exception of the baby, who I hope was adopted.

    1. Hopefully the teen friends realized that shit’s fucked up, made amends, and then skipped town.

  12. So an unloaded firearm is “deadly force”, but second degree murder is not a “violent crime”, as noted in a decision by the 9th Circuit.

    Is someone putting LSD in the judge’s water?

    1. I believe that’s mandatory at the federal level.

    2. LSD typically provides clarity, not the opposite.

      1. I think your definition of clarity is highly subjective.

        1. Lol, yeah.

  13. It sounds like some sort of justice was finally served in this case, at least with respect to Ra. Assuming that everything in the article is true, I hope that the woman that endangered a child (and her own child) during a hit-and-run, used her motor vehicle as a deadly weapon and then filed a false police report is caught and prosecuted.

    There’s certainly some injustice in putting Ra through this horrible process in the first place while the real perpetrator goes free.

    This reminds me of a conversation I had with a gun-rights person about non-deadly use of firearms in home protection. They were talking about how you never hear “a good guy with a gun” protecting their home successfully from robbers because it hardly ever ends in some sort of deadly shootout. This person was saying that what usually happens is the homeowner hears a robber late at night in the other room, the homeowner grabs their shotgun and yells something along the lines of “I have a gun, if you’re there, leave immediately” and then cocks the shotgun. The robber flees in fear. No one is hurt.

    The person was saying this happens hundreds of thousands of times a year and that’s why they support gun ownership. Pretty compelling if true.

    1. I have no idea about the numbers, but it seems likely that successful use of guns in self defense is under-reported for exactly that reason. Especially when in a lot of places people might have guns that they don’t necessarily want the police to know about.

  14. So, maybe a silly question, but even if it was considered deadly force, how is Ra in the wrong if the facts as they’ve been presented here are true? Harvey was supposedly trying to RUN SOMEONE OVER.

    Hell, merely applying gas to the pedal near a police officer has been enough to get people shot in the past, there’s clearly a precedent that cars can be used as dangerous weapons, and that shooting someone acting in such a manner is acceptable.

    1. Well… The law IS kinda stupid sometimes… Apparently if someone sees my gun, I am “brandishing” it, and I’m an evil person using deadly force. By the same logic, I should be arrested and jailed for a few years whenever I get into an automobile!

      1. The rule ought to be that if you are not the aggressor and you don’t fire unless necessary, there is no crime. If I just walk up to you and start waiving a gun around, that should be a crime. But if you come up to me and start a confrontation, I should be allowed to pull a gun in self defense provided I use it responsibly and don’t just shoot you.

        1. Even if you do shoot imo, depending on the type of confrontation. If what we were told for this instance is true, I don’t see how shooting her couldn’t be justified.

        2. Good job, John, your response shows common-sense balance! An all-too-rare ingredient these days, MeThinks!

        3. Yeah. If you can’t pull a gun until the use of deadly force is obviously necessary, it’s likely too late.

      2. By the same logic, I should be arrested and jailed for a few years whenever I get into an automobile!

        Maybe you should let someone else do the driving 😛

    2. So, maybe a silly question, but even if it was considered deadly force, how is Ra in the wrong if the facts as they’ve been presented here are true?

      First to file means your predicate condition won’t be met.

  15. “drew concerns from a wide span of the political spectrum, from Black Lives Matter to the National Rifle Association”

    Open wide, clingers, here comes a retrial! And since the case will be tried in one of our progressive, successful cities, then this gun fetishist (who probably has white blood) will lose.

    /sarc /sarc /sarc

  16. Ra received a mandatory minimum prison sentence of two years and was forced to give birth behind bars.

    LIBERAL FUCKING RACISM AT ITS FINEST!
    ~
    “The trial judge determined that a firearm—even one that is unloaded and never actually fired in the course of a dispute—is actually deadly force, and instructed the jury to decide whether Ra was justified in using deadly force in self-defense.”

    You don’t fucking “instruct” me how to rule. That’s the entire point of a jury. _I_ instruct YOU.

    1. We can’t have juries interpreting the law, they might come with all sorts of ridiculous interpretations, like saying nondeadly force is actually deadly.

  17. This is awful news.
    Just wait until March for Our Lives hears about this!
    Then this woman will really be in deep shit.

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