Hiker who shot man says he'd do it again: NRA contributed to his self defense

[one...two...tree 2,762]

Case altered self-defense law; 5 years later, he awaits appeal

by Peter Corbett -

The Arizona Republic

The prosecution of Harold Fish for second-degree murder led to a change in Arizona's self-defense law, but the change came too late to keep the former Tolleson teacher out of prison.

Fish, 62, is serving a 10-year sentence for killing a man on a hiking trail north of Payson five years ago this week.

Fish fatally shot Grant Kuenzli, 43, saying the man and his dogs charged at him on a trail in the Coconino National Forest.

"The choice was this: Use the firearm or let (Kuenzli) kill me or seriously hurt me," Fish said in a recent telephone interview from the Arizona State Prison Complex- Lewis near Buckeye. "I would do the same thing again today because I didn't have any choice. That gun saved my life."

A Coconino County investigator believed that Fish acted in self-defense based on Fish's statements and limited evidence at the scene. Prosecutors saw it differently and charged him with second-degree murder.

Fish was convicted in June 2006. He must serve until June 2016 unless the conviction is overturned. The Arizona Court of Appeals reviewed Fish's appeal last July but has not ruled on it yet.

Fish's case sparked debate about self-defense, drawing national attention from gun-rights advocates. The National Rifle Association contributed to Fish's defense.

Unconvinced jurors

During the trial, jurors were not convinced that Fish was justified in shooting Kuenzli to protect himself. At the time of the shooting, Arizona's self-defense law required that a person claiming self-defense must prove that his or her actions were reasonable and justified.

The law was changed in 2006 just before Fish's trial. It now puts the burden of proof on prosecutors to prove that shooters were not justified in using deadly force to protect themselves.

Fish's attorney, Melvin McDonald, lobbied for that change in the Arizona Legislature before Fish's case went to trial.

Then-Gov. Janet Napolitano vetoed two bills that would have made the change in the self-defense law retroactive to his case.

'Classic' self-defense

"The state finally got it right, but they didn't give it to me," Fish said. "It is a bitter, cruel irony."

NRA spokesman Andrew Arulanandam said Wednesday that the shooting "was a classic case of a good person acting in self-defense."

The group is holding its national convention Friday through Sunday in Phoenix.

Arulanandam said the prosecutor manipulated the legal system to exclude "the mental history of the attacker (Kuenzli)."

Hike ends in tragedy

Fish, a father of seven who taught English and Spanish at Tolleson High School for 27 years, was completing a daylong hike along a forested trail north of Strawberry on May 11, 2004, when he fired the fatal shots from a Kimber 10mm handgun that he was legally carrying.

Kuenzli, unemployed and living out of his car, was camped at the trailhead with three dogs.

Fish said he saw Kuenzli's car and was relieved that his 10-mile hike was nearly over. Just then, Kuenzli's dogs charged down the hill, barking and snarling at him.

Single warning shot

Fish said he yelled to Kuenzli to call off his dogs. He fired a warning shot into the ground.

The dogs veered off the trail, Fish said. Suddenly, Fish said, Kuenzli charged down the hill, swinging his fists and threatening to kill him.

Fish dropped Kuenzli with three shots to his chest. Kuenzli fell dead in the dirt at Fish's feet.

Members of the grand jury later asked Fish why he had fired a warning shot at the dogs but did not do the same for Kuenzli.

Fish said he did not have time and had been trained not to fire warning shots.

Victim's past at issue

Kuenzli was unarmed, but the defense argued that a screwdriver in his pocket could have been used as a weapon.

Judge Mark Moran of Coconino County Superior Court did not allow that evidence into the trial. The issue is part of Fish's appeal.

McDonald also tried to introduce evidence about Kuenzli's mental-health problems, a domestic-violence incident and previous heated encounters Kuenzli had had with police, court officials and strangers.

Moran excluded testimony about any prior confrontations. The legal theory was that Fish did not know of Kuenzli's mental stability when they squared off, so it was irrelevant.

"Baloney!" Fish said. "If you look in the eyes of a man who wants to kill, you know he's not right. I'll never forget those eyes. This guy was as nutty as anyone I've ever seen."

McDonald said he hopes the Arizona Court of Appeals will overturn Fish's conviction and set him free so he can return to his wife and family.

Family is still hopeful

For three years, Debora Fish has been raising their seven children, ages 5 to 20, without her husband. She supports the family with his retirement income and her paycheck from a nursing home.

"We're keeping our heads above water," she said, adding that the family is eager for a ruling that would overturn the conviction and free her husband without another expensive trial.

Flagstaff attorneys John Trebon and Lee Phillips filed an appeal for Fish in April 2008.

Coconino County prosecutor Michael Lessler said he is awaiting the appellate court's decision, but he declined to speculate about the outcome.

After the trial verdict nearly three years ago, Lessler said of the shooting that Fish "engaged in conduct that the law just can't accept."

Kuenzli's sister, Linda Almeter, said Fish was unhurt in the deadly encounter and did nothing to substantiate his self-defense claim.

"He didn't have a button missing from his shirt," she said.

"I think justice put him where he is, and he needs to stay there," she said.

'God and I are OK'

Fish, a member of the Church of Jesus Christ of Latter-day Saints, said he has had a lot of time to reflect about what happened five years ago.

"God and I are OK with this," Fish said of the shooting.

Did he pray for Kuenzli?

"I wish I could say I did," Fish said, adding that it would be hypocritical for him to do that.

As prisoner No. 208513, Fish spends his time reading and watching TV. His family visits every week.

"It's not a happy place," he said of prison. "It's not meant to be an experience you want to repeat."

'Innocent citizen'

Fish will be 69 years old when he is released unless Trebon and Phillips succeed in getting his conviction overturned sooner.

People empathize with Fish because he went to prison for defending himself, Trebon said.

"Here's an ordinary, innocent citizen in a life-and-death situation," the attorney said.

"He makes the most reasonable decision under the circumstances and then is second-guessed by people who didn't have to live through that situation."

http://www.azcentral.com/community/swvalle...hooter0516.html

[c_and_a 0]

Janet Napolitano is a criminal statist, and the law should be made retroactive. Complete perversion of justice.

Edited May 16, 2009 by c_and_a

[Hilarious Clinton 452]

Janet Napolitano is a criminal statist, and the law should be made retroactive. Complete perversion of justice.

Exactly.

Gooooooo Self Defense!!!!

[fozzie 41]

"Members of the grand jury later asked Fish why he had fired a warning shot at the dogs but did not do the same for Kuenzli.

Fish said he did not have time and had been trained not to fire warning shots."

He didn't fire warning shots, the other man was unarmed, and the dogs had alredy been scared away with the warning shots. Not self defence. I'd also be interested in knowing who trained him not to fire warning shots.

[Scott & Lai 12]

Janet Napolitano is a criminal statist, and the law should be made retroactive. Complete perversion of justice.

Exactly.

Gooooooo Self Defense!!!!

The idea that a defendant had to prove that self defense was justified is ridiculous and flies in the face of the principle of innocent until proven guilty. Good thing that law was changed.

As for the lack of a warning shot, time is a definite factor. First, he had fired a warning shot when the dogs were charging him; that would have been sufficient for a rational person. Second, when a person is charging at you with intent to do you harm, you have only scant seconds to respond before the assailant reaches you. If they are close enough to harm you, a warning shot isn't appropriate. And I say this as someone who has taken self-defense shooting courses taught by law enforcement and military personnel.

[one...two...tree 2,762]

Janet Napolitano is a criminal statist, and the law should be made retroactive. Complete perversion of justice.

Exactly.

Gooooooo Self Defense!!!!

The idea that a defendant had to prove that self defense was justified is ridiculous and flies in the face of the principle of innocent until proven guilty. Good thing that law was changed.

I think this is tough one because if the two people involved are the only ones present, then what is to prevent someone from shooting another and then simply claim it was in self defense? Even if the burden of proof is placed on the prosecution, the shooter's only defense is that the man charged him. What if the man didn't charge him? Also, what is the criteria for determining that someone is threatening harm to you for you to be justified in shooting them in self defense? If they yell at you? If they cuss and verbally threaten bodily harm? IMO, allowing someone to simply claim self defense without any proof beyond their testimony is opening up a big can of worms.

[alienlovechild 75]

I think this is tough one because if the two people involved are the only ones present, then what is to prevent someone from shooting another and then simply claim it was in self defense?

I don't watch any CSI show and even I know there's more an investigation than witnesses.

Also, what is the criteria for determining that someone is threatening harm to you for you to be justified in shooting them in self defense? If they yell at you? If they cuss and verbally threaten bodily harm? IMO, allowing someone to simply claim self defense without any proof beyond their testimony is opening up a big can of worms.

It's reasonable person standard on determining if there was a threat. A girl around here was murbered on a trail by a homeless weirdo with a dog. It does happen and there's more to back the shooter's story. A normal people doesn't charge a man with a gun unless there's no way out.

[one...two...tree 2,762]

It's reasonable person standard on determining if there was a threat. A girl around here was murbered on a trail by a homeless weirdo with a dog. It does happen and there's more to back the shooter's story. A normal people doesn't charge a man with a gun unless there's no way out.

alc, when this man was on trial, the laws on the books put the burden of proof on to the shooter when they are claiming self defense, and apparently there wasn't enough evidence to convince the jurors that he acted in self defense. The law has since changed where the burden of proof that they didn't act in self defense lies now with the prosecution (at least in Arizona). So basically, if you meet up with another soul out in the wilderness and he pulls out a gun and shoots you, if the shooter claims he acted in self defense, the prosecution will have to prove that he didn't act in self defense. Can you see the can of worms this will be?

[Ban Hammer 13,395]

Janet Napolitano is a criminal statist, and the law should be made retroactive. Complete perversion of justice.

Exactly.

Gooooooo Self Defense!!!!

The idea that a defendant had to prove that self defense was justified is ridiculous and flies in the face of the principle of innocent until proven guilty. Good thing that law was changed.

As for the lack of a warning shot, time is a definite factor. First, he had fired a warning shot when the dogs were charging him; that would have been sufficient for a rational person. Second, when a person is charging at you with intent to do you harm, you have only scant seconds to respond before the assailant reaches you. If they are close enough to harm you, a warning shot isn't appropriate. And I say this as someone who has taken self-defense shooting courses taught by law enforcement and military personnel.

21 foot rule applies

[john & jean 37]

Janet Napolitano is a criminal statist, and the law should be made retroactive. Complete perversion of justice.

Exactly.

Gooooooo Self Defense!!!!

The idea that a defendant had to prove that self defense was justified is ridiculous and flies in the face of the principle of innocent until proven guilty. Good thing that law was changed.

As for the lack of a warning shot, time is a definite factor. First, he had fired a warning shot when the dogs were charging him; that would have been sufficient for a rational person. Second, when a person is charging at you with intent to do you harm, you have only scant seconds to respond before the assailant reaches you. If they are close enough to harm you, a warning shot isn't appropriate. And I say this as someone who has taken self-defense shooting courses taught by law enforcement and military personnel.

21 foot rule applies

so you need to wait till they are at 20 feet then blast away

[fozzie 41]

What is reasonable when the other person is unarmed?

If everybody that used threatening behaviour was shot in 'self defense' we would not have a population problem.

Edited May 17, 2009 by fozzie

[john & jean 37]

What is reasonable when the other person is unarmed?

If everybody that used threatening behaviour was shot in 'self defense' we would not have a population problem.

SO WHEN SOMEONE IS CHARGING YOU, THREATENING TO KILL YOU, YOU ASK THEM IF THEY ARE ARMED???

[Danno 1,228]

As stated above, there is more to an investigation than testimony, for starters the distance of the foot prints will indicate if he was charging.

In my judgment the point of a warning-shot is to give notice that A) I have a gun B) It is real and loaded C) I am willing to shoot.

One need not repeat the warning shot for both the dogs and the man nor for each assailant .....if there were multiple.

[Ban Hammer 13,395]

Janet Napolitano is a criminal statist, and the law should be made retroactive. Complete perversion of justice.

Exactly.

Gooooooo Self Defense!!!!

The idea that a defendant had to prove that self defense was justified is ridiculous and flies in the face of the principle of innocent until proven guilty. Good thing that law was changed.

As for the lack of a warning shot, time is a definite factor. First, he had fired a warning shot when the dogs were charging him; that would have been sufficient for a rational person. Second, when a person is charging at you with intent to do you harm, you have only scant seconds to respond before the assailant reaches you. If they are close enough to harm you, a warning shot isn't appropriate. And I say this as someone who has taken self-defense shooting courses taught by law enforcement and military personnel.

21 foot rule applies

so you need to wait till they are at 20 feet then blast away

For more than 20 years now, a concept called the 21-Foot Rule has been a core component in training officers to defend themselves against edged weapons.

Originating from research by Salt Lake City trainer Dennis Tueller "rule" states that in the time it takes the average officer to recognize a threat, draw his sidearm and fire 2 rounds at center mass, an average subject charging at the officer with a knife or other cutting or stabbing weapon can cover a distance of 21 feet.

The implication, therefore, is that when dealing with an edged-weapon wielder at anything less than 21 feet an officer had better have his gun out and ready to shoot before the offender starts rushing him or else he risks being set upon and injured or killed before he can draw his sidearm and effectively defeat the attack.

link

[Ban Hammer 13,395]

What is reasonable when the other person is unarmed?

If everybody that used threatening behaviour was shot in 'self defense' we would not have a population problem.

SO WHEN SOMEONE IS CHARGING YOU, THREATENING TO KILL YOU, YOU ASK THEM IF THEY ARE ARMED???

you should call the local aclu and make sure it's ok to shoot