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November 12, 2008

A (clear?) self-defense case for a law student jury

Thanks to a fellow law prof blogger, I saw this local news story involving a notable case of self defense.  Here are the basics:

Arizona State University student Alex Botsios said he had no problem giving a nighttime intruder his wallet and guitars.

When the man asked for Botsios' laptop, however, the first-year law student drew the line. "I was like, 'Dude, no -- please, no!" Botsios said. "I have all my case notes…that's four months of work!"

Police said Gabriel Saucedo entered Botsios' apartment through an open window early Thursday morning.  When Botsios woke up, Saucedo threatened him with a baseball bat, police said. He was just like, 'I'm going to smash your head in,'" Botsios said.

At that point, the law student wrestled the bat away and began punching Saucedo, Botsios said. "I basically grabbed him and threw him this way, and he held onto the bat so it threw him to the ground," he said.

Police said they took Saucedo to the hospital for stitches before they arrested him on charges of armed robbery and kidnapping.  Other than a bruised knuckle and a few scratches, Botsios was unharmed.

So the "victim" in this case was unharmed, while the perpetrator had to go to the hospital for stitches.  Hmmm....  Would you say that Alex Botsios' act of punching Gabriel Saucedo to the point of him needing stitches was entirely justified or just merely excused?  

Suppose Botsios had punched Saucedo so hard that he eventually died from his wounds.  Do you think a state prosecutor should at least consider possible homicide charges under such circumstances.  Might a defense attorney develop expert testimony concerning "battered 1L syndrome" in an effort to explain why Botsios might have become so violent in response to an effort to steal his laptop? 

November 12, 2008 | Permalink


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Hey Folks,

Check out this self-defense case that hits close to home, and causes a good laugh.


Would you do the same thing? I think I would.

Posted by: Craig R. | Nov 12, 2008 12:51:06 PM

A man's home is his castle. Self-defense, including the use of deadly force, is fully justified when an intruder breaks into your home. The assumption is that the intruder could harm you or a member of your family.

The fact he had a baseball bat and said he was going to smash his head in is only more evidence.

Posted by: Torts | Nov 12, 2008 3:03:50 PM

Hmmm ... so a guy breaks into my home, brandishes a baseball bat, and verbally threatens to inflict grievous physical harm, if not kill me by smashing in my head ...

... and we're debating what if the student's bare-knuckled self-defense, especially after acquiescing his wallet and musical instruments in an attempt to peaceably resolve the situation, is over-the-top?

Good luck to any prosecutor that wants to take on that type of case.

Posted by: Mean Dean | Nov 12, 2008 5:26:26 PM

I don't know if Arizona has a Castle Doctrine but I think the fact that this happened in the victim's home makes a difference. If someone had demanded the goods outside of the home he might be in a little more trouble (in Ohio anyway, probably not Florida) but the fact that he had already been threatened with the bat, I think, puts this pretty clearly in the victim's favor. One could make the argument that the intruder wasn't a threat anymore because he seemed to just be willing to take the victim's possessions if he didn't put up a fight, I think that's a stretch though. As long as an armed man is still in your home I think it's an active threat, you never know if he's gonna get what he wants and take a few swings on his way out just for kicks.

If the question for justification is, if the same situation played out again would I want the same result? The answer for me is a very easily reached "yes."

As for the "battered 1L syndrome." If anyone can buy it I'd say a judge who has been through the same thing can.

Posted by: Andrew L. | Nov 12, 2008 7:28:15 PM

Saucedo was a threat until his head turned into a gelatin of brain and bone fragments. It's easy to criticize the law student from the sidelines, but I think he acted quite reasonably considering that the aggressor did his best impersonation of Johnny the Baseball Bat Boy.

Even if charges are brought and proven by a prosecutor, this case would be an ideal candidate for my favorite: the jury nullification.

BTW, I love how that article uses the colloquial phrase 'He was just like' when they should have said 'He said' or something less idiot-inducing.

Posted by: Aman | Nov 12, 2008 9:12:32 PM

To be fair to the fine people at KTAR.com I believe they merely omitted the quotation mark at the beginning of the "He was like" phrase. That aside, I did some minimal research and found that AZ changed its self-defense doctrine from an affirmative defense (requiring the D to prove by a preponderance of the evidence) to the MPC standard of requiring the D to raise the issue of the defense and then requiring the prosecutor to prove that the self-defense claim didn't exist beyond a reasonable doubt. Additionally it appears there was no duty to retreat in this situation as long as the 1L reasonably believed that physical force was necessary to prevent (among other things) armed robbery. I think it would take a rare prosecutor to bring a case like this (sympathetic D, fairly clear self-defense claim, burden of proof on prosecutor for self-defense claim, etc.), even if it were a homicide case.

Here is the text of the AZ legislation for those who want yet another criminal statute floating around in their head: http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/47leg/2r/laws/0199.htm

Posted by: Steve | Nov 13, 2008 4:01:33 PM

I'm not sure that this is a "clear cut" case of self-defense. Once Bostios had gotten the bat and started swinging, I'd say that he switched into the aggressor. I do believe that his actions are still excusable, due to the factors that people have already discussed, but I'm not sure a self-defense claim would hold up, and if that falls, then so does the castle doctrine discussion. Remember that even in a castle situtation the action to be taken still needs to be defensive. I doubt there is a prosecutor in the country that would want to take up this case, but I wouldn't be surprised if this turns into a tort action, possibly fodder for next years casebook.

Posted by: Andrew M | Nov 15, 2008 8:51:28 PM

note on my last post, when I say "started swinging" I mean his fists, and not the bat.

Posted by: Andrew M | Nov 15, 2008 8:54:34 PM

Does anyone else find it curious that one of the defendants in the prison rape case is named 'Lovercamp'?
It's like a character out of a Dicken's novel (see Pumblechook, Pecksniff, and Scrooge).

Posted by: Jake | Nov 16, 2008 12:34:04 PM

MPC 3.04 (2)(b) (ii) (1) reinforces the castle doctrine “the actor is not obliged to retreat from his dwelling… unless he was the initial aggressor.” It was pretty obvious that Botsois was NOT the initial aggressor and so in this situation he had no duty to retreat. But what if this happened late at night at the law library? Under MPC 3.04(1) “the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force…”. But what if there are emergency phones nearby or Botsios had other options- should he be forced to retreat then? I still think what Botsios did was justified; while Saucedo had to have stitches, Botsios didn’t use deadly force.
Unfortunately this situation hits a little too close to home for me. A good friend of the family was attending law school in DC when her apartment was broken into and her laptop and money was stolen as a 1L. She was in the apartment at the time and simply hid under the covers. While Botsios ended up with only a bruised knuckle, if I were his mother I am not sure if I would have been so proud of him. He could have been killed!!! The moral of this story- back up your computer!!

Posted by: Alexandra Wolfe | Nov 17, 2008 8:20:43 AM

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Posted by: star trek | Mar 30, 2009 4:09:51 AM

Interesting read. I will have to bookmark it for later.

Posted by: seattle criminal attorney | Nov 30, 2009 3:08:24 PM

This is a great article and very interesting.

Posted by: Self Defense products | Jun 4, 2010 4:34:29 PM

The last time I checked this was still America and we have a constitutional right to protect life limb and property. Even if the burglar died from Mr. Botsios defending himself and his property there should absolutely be no charges whatsoever in a case such as this. It is self defense plain and simple. If we start convicting people for defending themselves in their own home against an armed assailant than our troops are over seas dying for nothing.

Posted by: Donald the self defense weapons guy | Aug 16, 2010 10:31:07 PM

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