Tuesday, July 17, 2018

What is “Reasonable?" Messing Up by the Numbers

Frank Magliato
The State of NY v. Frank Magliato is often cited as an example of the application of the reasonable person criteria in judging a person’s actions and provides several important insights including: what constitutes reasonableness (i.e. reasonable behavior), how training can be a double-edged sword, and how flight is perceived as equaling guilt. 

What is a reasonable person? “Reasonable person” is a phrase frequently used in civil litigation and criminal law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining whether one’s actions are proper. A Westlaw search (reasonable /2 man) conducted on December 3, 1991 revealed that the term had appeared 23,320 times in the different state courts of America. 

In the 25+ years since that search it has undoubtedly appeared many more times. The decision whether an accused is guilty of a given offense might involve the application of an objective test in which the conduct of the accused is compared to that of a reasonable person, under similar circumstances, knowing what the accused knew at the time of the event. Understanding the concept of the reasonable person (man) is important to the citizen carrying a concealed weapon and one who finds themselves facing a court and answering for their actions resulting from a use of force or use of deadly force incident.

Background: During an altercation over a minor traffic accident, a passenger in one car (Giani) brandishing a club attacked Magliato. Magliato’s actions prior to the shooting, his actions during the incident, and his flight from the scene set the stage for Magliato being convicted of murder. Although his conviction was reduced under appeal, Magliato still served several years in prison. Some have speculated that had he remained on the scene and immediately contacted law enforcement, Magliato would likely have never been prosecuted. Let’s look at the court records of these events and the lessons we can learn from them.

First Encounter: On September 6, 1983, Donald Schneider and his friend Anthony Giani, (the deceased), drove to Washington Square Park. After a short stay, they departed and proceeded west on Houston Street when a rented red Ferrari driven by Frank Magliato, the defendant, came on the scene. Apparently, the station wagon Schneider was driving clipped the rear of the Ferrari; however, Schneider did not stop. Magliato followed the station wagon until it stopped for a traffic light where Magliato got out of his car. As he did so, Giani emerged from the station wagon carrying a nightstick. Initially, both men stood by their vehicles, facing each other and hurling curses. Giani then started toward Magliato and threatened to kill him and directed him to "get out of here."

Magliato returned to his car. In the interim the light had changed and Schneider drove off to find a parking spot, leaving Giani behind. Magliato followed the station wagon and Magliato’s passenger in the Ferrari, Edward Klaris, recorded the station wagon’s vehicle license plate number. After Schneider had parked his vehicle, Magliato drove past it and continued down the street where he spied Giani, who, apparently, was searching for Schneider. Court records show Magliato drove his car past Giani, barely missing him.

Magliato then went looking for a police officer. Failing to find one, he drove to his home, parked the car, and went to his apartment while Klaris remained in the Ferrari. Magliato returned to the Ferrari a few moments later. Now, however, he was wearing a holstered revolver.

Observation: Magliato has now had time to cool off. In the initial confrontation with Anthony Giani, Giani brandished a weapon and threatened to kill Magliato. Magliato could have called the police from his house (no cell phones in 1983) and reported the accident and Giani’s threats. However he chose not to do so and instead armed himself, departed his home, and returned to the area where he believed Schneider and Giani were located.

Second Encounter: After arming himself, Magliato drove back to where the Schneider vehicle was parked and stopped across the street, near a phone booth. While Klaris called 911, Magliato left his car and started toward the station wagon, again shouting profanities. Giani emerged from the station wagon, holding the nightstick in a threatening position.

According to the prosecution, the two men faced each other across a distance of some 45 feet (15 yards). Suddenly, Magliato cocked his revolver and assumed a firing position, crouching with both feet planted apart and arms outstretched. The revolver in his hand, he took deliberate aim and fired at Giani striking him in the forehead and causing such massive brain damage that he died two days later.

The defense version differs somewhat. Magliato did not dispute that he drew his revolver and cocked it. However, he contended that his revolver could fire under the slightest pressure and that immediately prior to the firing of the revolver, a car passed close to Giani, brushing him back. This incident so unnerved Magliato that he accidentally exerted pressure on the trigger (his finger was on the trigger) sufficient to discharge the revolver.

Immediately after shooting Giani, Magliato walked back to his Ferrari and, together with Klaris, drove the car to a garage across the street from his apartment and hid the car in the garage.

A day or two later the police located Klaris through the 911 phone call which he was in the process of making at the time of the shooting. Initially, he refused to cooperate. However, after the police had departed he called Magliato and informed him that he was ready to tell the police "the whole truth." Magliato then consulted an attorney and six days after the shooting surrendered to the police. His attorney, who accompanied him, turned two guns, both owned by Magliato, over to the police. A ballistics test indicated that the bullet which had killed Giani had been fired from one of them, a Colt .38 Detective Special.

Trial and Appeal Results: The state charged Magliato with a two-count indictment charging intentional homicide (Penal Law § 125.25 [1]) and "depraved indifference" murder (Penal Law § 125.25 [2]). The jury returned a verdict of not guilty of intentional murder and manslaughter in the first degree under the first count; however, Magliato was convicted of depraved indifference murder. The NY Supreme Court subsequently reduced this conviction to manslaughter after determining that Magliato’s recklessness was not such that it demonstrated "a depraved indifference to human life" [thereby] creating "a grave risk of death to another person" and [as a result] caused the death of another person.

A Dissenting Justice’s view: One justice had a dissenting view: “When defendant went into a shooter's crouch, cocked and aimed the gun at Giani's head, he was acting in such a reckless manner as to evidence a depraved indifference to life. Defendant's own witnesses testified that once the Colt .38 was cocked, even the slightest movement over a distance as short as .012 inch would cause the gun to fire. The owner's manual for this gun warns that cocking the revolver is extremely dangerous since (once cocked) it easily can be accidentally discharged.

Defendant's experts also testified that they had witnessed or investigated numerous incidents where an accidental application of a very light touch discharged this type of revolver. One of the witnesses even testified that this risk is so serious that numerous law enforcement agencies, including the New York City Police Department and the Secret Service, do not allow officers to fire in this fashion.

The evidence before the jury showed that defendant was aware of the substantial and unjustifiable risk in cocking his gun and consciously disregarded that risk (Penal Law § 15.05 [3]). He had access to the owner's manual and underwent individual training, although brief, from a professional instructor in handling, firing and safety. He had practiced at least half a dozen times on the firing range with the same Colt .38, usually with the weapon cocked. Thus, defendant must have been aware that when he cocked and aimed the gun, there was a grave risk of the gun discharging with the slightest pressure exerted on its hair trigger. He consciously disregarded that grave risk.”

Magliato—messing up by the numbers.

Through the course of the trial and subsequent appeal, Magliato variously claimed that his drawing of the revolver was a reasonable and therefore justifiable act; however, he also maintained that his actions did not constitute the use of "deadly physical force" within the meaning of the law. Magliato also claimed to have panicked and stated that he did not recall pulling the trigger.

One can only assert the defense of justification against a charge of some kind of intentional act. If Magliato was claiming that the revolver went off accidentally, then he could not claim that his firing of the revolver was justified. In another case, the court stated that “justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all.” McManus, 67 N.Y.2d at 545, 496 N.E.2d at 204, 505 N.Y.S.2d at 45 (1986).

If in Magliato’s mind the use of deadly force was an accident (i.e. he did not intend to shoot Giani), then he could not claim that it was justified. If Magliato had been justified (in the eyes of the law) in drawing his revolver and pointing it a Giani (i.e. using deadly force) then his “intention” was immaterial. The court saw Magliato’s cocking of the revolver as going beyond creating an apprehension that he would use deadly force to creating a reckless risk that he could unintentionally cause the revolver to fire.

Lessons: The Magliato trial is informative in that it addressed the question of what constitutes the behavior of a “reasonable person.” In Magliato’s case this worked against him in that the court found that a reasonable person, knowing what Magliato knew at the time of the encounter (i.e. cocking a revolver and placing your finger on the trigger creates substantial and unjustifiable risk of firing it unintentionally) would not have cocked the revolver and pointed it a Giani with no justification to immediately fire.

Control your emotions, just let it go--something many people find very hard to do. In this incident, Magliato was driving a rental car, presumably with insurance. By going to his apartment, obtaining the revolver, and returning to Giani’s location, Magliato turned what would have been a report of a minor traffic accident and insurance claim into a life altering (for Magliato) and a life ending (for Giani) event. It was totally unnecessary.

Documenting your training can be a double-edged sword if you cannot control your emotions and do something stupid. In this incident, the fact of Magliato’s training worked against him because it supported the prosecution’s assertion that he knowingly was reckless and negligent. It could have worked in his favor had Magliato properly presented his revolver and held his fire until/if Giani pressed home his attack against him. Of course, if he had not gone back in the first place all of this would have been moot.

Flight equals guilt. In the eyes of the law, an innocent person will stand their ground and justify their actions. This was seen in the Magliato case where the dissenting justice cited Magliato’s conduct (his flight from the scene) as indicative of his depraved indifference to human life. “He left Giani dying in the street, and deliberately interrupted a 911 call which could have brought medical aid to the victim.” Another case from Louisiana (2009-Ko-0160 State of Louisiana v. Willie Reed), Reed claimed a fatal shooting was an accident; however, immediately after the shooting he fled the scene. The court saw Reed’s flight as further allowance for an inference of guilt.

Summary: Proper training can help form the basis for proving that the actions we take in defending ourselves against force and/or deadly force are reasonable. Establishing that you know the potential dynamics of a deadly force encounter can serve as a shield against criminal or civil claims that your actions resulted from recklessness or negligence. In Magliato’s case his minimal training did not serve him well. Although he had some training, he clearly had never trained for situations that would have enabled him to control his emotions, use proper tactics, and to make good decisions within the framework the law provides. 


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