Merged Woman Killed by Illegal Immigrant in San Francisco

[ponderingturtle]

Never point a gun at anyone you don't intend to kill.

Good this was a ricochet so it wasn't pointing at someone.

 

[LTC8K6]

But there is no such thing as an accidental discharge only negligent. Gun facts 101.

Such discharges generally don't result in criminal charges if they don't injure anyone. It is often illegal to fire a gun within the city limits, outside of a designated range, so you can be given a misdemeanor charge.

You are almost always charged with something if you are using alcohol or drugs and you are firing a gun. Particularly if you shoot someone.

We have an appalling lack of enforcement of the law in the USA regarding guns.

Typically the people who get away with "accidentally" killing someone by being negligent with a firearm are relatives, such as when Dad accidentally shoots his own son. The prosecutor generally deciding that the loss of the child is enough punishment.

How Dehayes got off is beyond me, since he admits in the interrogation to being high as a kite and to fooling around with a gun that he didn't clear.

 

[LTC8K6]

Good this was a ricochet so it wasn't pointing at someone.

"In the general direction" is still considered pointing.

Drive by shooters who fire at a rival's house and hit a baby are not aiming at the baby. They still get charged for shooting the baby, though. Ricochets and "not aiming at the baby" have never been a defense.

I don't believe the creep's story, though.

 

[Ranb]

ANd as such you should have lost your right to own firearms. Or is that not the case because no one died even though you were reckless enough to have possibly killed someone.

Of course not. Each time the muzzle was pointed at a berm; the bullet went into the berm. One time I had my rifle sitting on the bench with the muzzle pointed at the berm. I had flicked the safety on prior to opening the action; when I reloaded and flicked off the safety, the rifle discharged into the berm next to the target. I actually had my eye behind the scope and my finger on the trigger. My other discharge was with a 9mm pistol. I loaded a round with a high primer which discharged into the berm upon closing the slide.

Explain how anyone was at risk when I was using the gun at a rifle range with no one between me and the berm.

 

[Skeptic Ginger]

I agree.


I ignored anything in an article about this case that had anything to do with Trump or his maniacal rants on the topic. I focused instead on specific claims made by the witnesses for both sides.

If the jury hears from anyone who is accepted as an expert, they are probably going to give more credence to them than a layperson. Sometimes those experts are wrong or bias.

For example when I was serving on a jury I chose to believe the crime lab scientist over the claims of the defendant where it came to claims about the device used to determine alcohol levels.

Remind me if I have this right: you don't think the prosecution adequately responded to the expert testimony about the gun's faulty trigger design/mechanism?

The prosecution did put on a tough expert of their own about the gun not being able to be fired accidentally.

Back to the point though, are you saying the only reason the defense presented reasonable doubt was because the prosecution failed, ergo you think he was guilty despite the reasonable doubt?

 

[Ranb]

Glock Leg is from pulling the trigger.

No safety, light trigger pull, no hammer.

I've yet to encounter a Glock trigger I would call light. I think they are heavy and mushy. This is compared to single action triggers or course. I think only a person who has exclusively used double action revolvers would call a Glock trigger light.

 

[Ranb]

Remind me if I have this right: you don't think the prosecution adequately responded to the expert testimony about the gun's faulty trigger design/mechanism?

Based on what I read that is what I think.

Back to the point though, are you saying the only reason the defense presented reasonable doubt was because the prosecution failed, ergo you think he was guilty despite the reasonable doubt?

I think the defense was able to provide enough evidence/testimony to raise reasonable doubt. I think he could have been found guilty of more than gun possession had he been appropriately charged. After all he killed a person with a gun he was actually holding in his hand.

Was anyone at trial able to prove that the actual weapon used to kill the woman was prone to discharging without pulling the trigger or that it had an excessively light trigger? So far all I've seen was that some Sig Sauer's in general (not the specific 239 used) are associated with negligent or accidental discharges. No one has shown that any of them have "hair triggers".

 

[Skeptic Ginger]

...

I don't believe the creep's story, though.

Of course you don't.

 

[Dr. Keith]

Ranb is right that the phrase "accidental discharge" is typically used by someone trying to cover up their own negligence or that of others.

It think this case could be different. The difference is that negligence requires that there is some duty.

Most "accidental discharges" are those where a gun owner mishandles the weapon in a way that leads to an unintended discharge. Anyone who owns or voluntarily possesses a firearm has assumed a duty of care. You pick up the gun you are assuming responsibility for where the bullet lands.

But in a case where the actor did not know they were picking up a gun they can not have assumed that duty. You would first have to show that he knew it was a gun when he picked it up. You have to show that he had a duty of care. If he thought it was a toy or just had no idea what it was, then there is no duty.

If I pick up a pile of my roommate's laundry from the floor and grad onto the trigger of an undisclosed gun buried in that pile of laundry, any shot fired from that gun would be accidental on my part but my roommate could be found guilty of negligence. Likewise, in this case the person who left the gun on the pier may be found negligent. Or if the prosecutors had shown that he knew or had reason to know that it was a a gun, then negligence could have stuck.

But Ranb is right that "accidental discharge" is rarely the right description when a gun is fired unintentionally. And the gut reaction to say it is never an accidental discharge is not at all misplaced.

 

[Ranb]

They also showed that the model of gun was prone to accidental discharges, and argued that when he went to unwrap the gun it discharged accidentally as the model is prone to do....

What I've read so far just says that some models Sig Sauers are prone to negligent or accidental discharges. Was the model (a 239) used in this crime prone to accidental discharges? Was the actual gun shown to be prone to accidental discharges?

 

[Giz]

Of course you don't.

Yes, isn't it terrible when distrust is based on politics (rather than on five deportations, felon, drug use, killing someone)?

 

[Skeptic Ginger]

Based on what I read that is what I think.


I think the defense was able to provide enough evidence/testimony to raise reasonable doubt. I think he could have been found guilty of more than gun possession had he been appropriately charged. After all he killed a person with a gun he was actually holding in his hand.

Was anyone at trial able to prove that the actual weapon used to kill the woman was prone to discharging without pulling the trigger or that it had an excessively light trigger? So far all I've seen was that some Sig Sauer's in general (not the specific 239 used) are associated with negligent or accidental discharges. No one has shown that any of them have "hair triggers".

The prosecution expert witness, according to the SF Examiner I cited above, said the following:

The handgun has internal safety mechanisms that prevent it from discharging unless the trigger is pulled, according to Smith. The mechanisms are designed to prevent an accidental discharge when a gun is dropped or mishandled.

“If this gun was dropped, the only way for it to discharge is if something pulled the trigger during the dropping of the gun,” Smith said.

The defense argued:

“I’m not saying that it’s impossible that his finger caused it,” Gonzalez told reporters outside the courtroom. “But it’s also possible that in the movement of whatever this was wrapped in, the fabric was also in there and being pulled back.”

And:

But during cross-examination from Gonzalez, Smith said a gun could discharge with less pressure applied to the trigger than a standard trigger pull.

For instance, a gun with a standard trigger pull of 4.4 pounds could discharge under just 3 or 3.4 pounds of pressure if applied at the tip or another part of the trigger than usual.

“If this gun were wrapped in something, most likely Mr. Garcia Zarate’s hands and fingers would have been probing the object as he handled it,” Gonzalez said. “That’s when he could have hit the side of a trigger and depressed it back.”

But Smith said the gun does not have a hair trigger that is easily pulled with under 2 pounds of pressure.

“We want the judge to allow the jury to dry fire it in single-action mode,” Gonzalez said. “I am very confident that if you handle this firearm in single-action mode and depress the trigger, it’s very light.”

It requires 2.9 pounds of pressure on average to push a key on a computer, according to Gonzalez.

Image of the gun shows the curved trigger and one can imagine a different force being required if one's finger is properly on the trigger and if cloth is caught just on the tip of it.

 

[LTC8K6]

I've yet to encounter a Glock trigger I would call light. I think they are heavy and mushy. This is compared to single action triggers or course. I think only a person who has exclusively used double action revolvers would call a Glock trigger light.

5-6 pounds is typical of a Glock from the factory.

 

[LTC8K6]

The prosecution expert witness, according to the SF Examiner I cited above, said the following:

The defense argued:

And:

Image of the gun shows the curved trigger and one can imagine a different force being required if one's finger is properly on the trigger and if cloth is caught just on the tip of it.

Well, that's not even a Glock type trigger mechanism, so I think we can dispense with talking about Glocks.

 

[Ranb]

It requires 2.9 pounds of pressure on average to push a key on a computer, according to Gonzalez.

Does anyone believe this claim? I don't, but I'm going to test it this evening.

I'm trying to image a pistol wrapped in a cloth and making it easier to pull the trigger or to pull it with less effort. I think it's more than a bit of a stretch to imagine.

ETA; I have to admit that the defense fought well for their client like they are expected to. I'd want someone like him for my own lawyer if I needed one.

 

[Skeptic Ginger]

Yes, isn't it terrible when distrust is based on politics (rather than on five deportations, felon, drug use, killing someone)?

Sure when that is what is hyped about this man being a dangerous villain.

He was a down and out drug user with no history of violent crimes. And a couple of those felonies were for crossing the border again after being deported.

Wiki - suspect

Garcia Zarate arrived in the U.S. sometime before 1991, the year he was convicted of his first drug charge in Arizona. In 1993, he was convicted three times in Washington state for felony heroin possession and manufacturing narcotics. Following another drug conviction and jail term, this time in Oregon, the U.S. Immigration and Naturalization Service (INS) deported Garcia Zarate in June 1994. However, Garcia Zarate returned to the U.S. within two years and was convicted again of heroin possession in Washington state. He was deported for the second time in 1997.[16]
On February 2, 1998, Garcia Zarate was deported for the third time, after reentering the U.S. through Arizona. United States Border Patrol caught him six days later at a border crossing, and a federal court sentenced Garcia Zarate to five years and three months in federal prison for unauthorized reentry. Immigration and Customs Enforcement (ICE), successor of the INS, deported Garcia Zarate in 2003 for his fourth deportation. However, he reentered the U.S. through the Texas border and got another federal prison sentence for reentry before being deported for the fifth time in June 2009.[16]
Less than three months after his fifth deportation, Garcia Zarate was caught attempting to cross the border in Eagle Pass, Texas. He pleaded guilty to felony reentry; upon sentencing, a federal court recommended Garcia Zarate be placed in "a federal medical facility as soon as possible".[16]
On March 26, 2015, at the request of the San Francisco Sheriff's Department (SFSD), United States Bureau of Prisons (BOP) had turned Garcia Zarate over to San Francisco authorities for an outstanding drug warrant.[20] San Francisco officials transported Garcia Zarate to San Francisco County Jail on March 26, 2015, to face a 20-year-old felony charge of selling and possessing marijuana after Garcia Zarate completed his latest prison term in San Bernardino County for entering in the country without the proper documents.[21]
U.S. Immigration and Customs Enforcement (ICE) had issued a detainer for Garcia Zarate requesting that he be kept in custody until immigration authorities could pick him up. However, as a sanctuary city, its “Due Process for All” ordinance[22] restricted cooperation with ICE to cases only where the immigrant had both current violent felony charges and past violent felony convictions; therefore, San Francisco disregarded the detainer and released him.[23][24] He was released from San Francisco County Jail on April 15, 2015, and had no outstanding warrants or judicial warrants, as confirmed by the San Francisco Sheriff's Department.[18]

Do you see anything there besides crossing the border and being a drug addict, probably a homeless one? What do you see there that says reasonable doubt doesn't apply to this man under the circumstances of this case?
If he was a gang banger with a long string of armed robberies, I could easily see that not recognizing it was a gun and/or not knowing how to handle it was a bogus defense. But that is not the case.

 

[LTC8K6]

P239 trigger makes me doubt the accident story even more.

I think a P239 wrapped in a T-shirt is still very obviously a handgun.

 

[Skeptic Ginger]

Does anyone believe this claim? I don't, but I'm going to test it this evening. ....

I'm interested in your findings. It's hard to imagine 2 pounds of pressure to push a key. An old typewriter key, maybe and there is the issue of many different keyboards from light touch to harder touch.

A net search turns up several sources saying 1-2 ounces, so clearly 2 pounds is a bogus example.

 

[ponderingturtle]

Of course not. Each time the muzzle was pointed at a berm; the bullet went into the berm. One time I had my rifle sitting on the bench with the muzzle pointed at the berm. I had flicked the safety on prior to opening the action; when I reloaded and flicked off the safety, the rifle discharged into the berm next to the target. I actually had my eye behind the scope and my finger on the trigger. My other discharge was with a 9mm pistol. I loaded a round with a high primer which discharged into the berm upon closing the slide.

Explain how anyone was at risk when I was using the gun at a rifle range with no one between me and the berm.

I remember seeing an analysis of an accidental shooting at shooting range during a competition.

The bullet in question was fired high because the weapon doubled, went over the berm, under the baffle through two walls, bounced off a ceiling tile and right into the temple of a teenager just sitting there. As we can see these things just happen.

 

[ponderingturtle]

Ranb is right that the phrase "accidental discharge" is typically used by someone trying to cover up their own negligence or that of others.

It think this case could be different. The difference is that negligence requires that there is some duty.

Most "accidental discharges" are those where a gun owner mishandles the weapon in a way that leads to an unintended discharge. Anyone who owns or voluntarily possesses a firearm has assumed a duty of care. You pick up the gun you are assuming responsibility for where the bullet lands.

But in a case where the actor did not know they were picking up a gun they can not have assumed that duty. You would first have to show that he knew it was a gun when he picked it up. You have to show that he had a duty of care. If he thought it was a toy or just had no idea what it was, then there is no duty.

If I pick up a pile of my roommate's laundry from the floor and grad onto the trigger of an undisclosed gun buried in that pile of laundry, any shot fired from that gun would be accidental on my part but my roommate could be found guilty of negligence. Likewise, in this case the person who left the gun on the pier may be found negligent. Or if the prosecutors had shown that he knew or had reason to know that it was a a gun, then negligence could have stuck.

But Ranb is right that "accidental discharge" is rarely the right description when a gun is fired unintentionally. And the gut reaction to say it is never an accidental discharge is not at all misplaced.

This is america though, you have to always assume there is a gun in anything.