Your state’s definitions on use of force may differ. You are conversant with them, right?
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.