ALLENTOWN, Pa. — A road rage case over the weekend resulted in the death of a motorist who allegedly emerged from his car with a metal baseball bat after forcing another vehicle off the road.
It also likely will put to the test Pennsylvania’s self-protection statute — or what is referred to in some states as Stand Your Ground laws.
“You typically would have a duty to retreat. However, under certain circumstances, you don’t have a duty to retreat,” said Gary Asteak, a Lehigh Valley defense attorney who is not involved in this case.
Authorities said 35-year-old Tamir Johnson, of Whitehall Township, was fatally shot by another motorist after he used his Audi to force that other vehicle, a Toyota Prius, off the road near Fifth and Hamilton streets early Sunday.
When Johnson — a 6-foot-6 former basketball standout at Kutztown University — came at the Prius with a metal baseball bat, he swung it at the Prius driver in the vehicle, striking the driver’s side door, authorities said.
“If you are in fear of death or serious bodily injury, you have the right to protect yourself.”Gary Asteak, Easton attorney
Still sitting behind the wheel, the Prius driver fired a single shot from a 9mm handgun he was legally permitted to possess, according to Lehigh County District Attorney Gavin Holihan.
The Prius driver has not been identified nor charged with any crime.
Several factors to be considered
Under state law, Asteak said, the district attorney will have to weigh several factors in determining that the Prius driver acted in self-defense and shouldn’t be held criminally responsible.
Asteak said the law requires that self-defense is proportionate to the threat faced.
“Under certain circumstances, you don’t have a duty to retreat — you’re in a lawful place, you’re not engaged in a crime yourself, you didn’t provoke the incident and you’re lawfully in possession of a firearm,” said Asteak, whose law firm is based in Easton.
“If you are in fear of death or serious bodily injury, you have the right to protect yourself.”
John Waldron, a defense attorney in Allentown also not involved in this case, said on its surface it sounds like a clear-cut case of self-defense.
“This, I think, is one of the easier ones,” Waldron said. “Someone’s coming at you at 3:30 in the morning with a bat, and some things have already happened with this vehicle …
“A baseball bat can do a lot of damage. In Pennsylvania, you can use deadly force against deadly force. If someone’s swinging a baseball bat at you and you feel that you’re going to be killed or suffer severe bodily injury, then you can use equal force.
"The use of a gun against a baseball bat is equal deadly force.”
Early morning confrontation
The shooting happened at 3:37 a.m. Sunday in Center City Allentown.
Authorities said video surveillance from nearby locations showed two vehicles were involved in an altercation leading up to the confrontation.
They said the Audi forced the Prius to the curb and both vehicles stopped.
After the shooting, “the driver of the Prius was able to navigate away from the scene and drove approximately one and a half blocks away, where he parked and called 911,” according to a prepared statement from Holihan and Allentown Police Chief Charles Roca.
“We don’t know all the facts yet,” Asteak said. “So to provide a better opinion I would want to know whether his car was blocked in such a way that he couldn’t get out.
"If the guy swung the bat, hit the side of the door and the other driver could have hit the gas and drove away, that may not be a legitimate Stand Your Ground case.
“We also don’t know what precipitated this. Do these guys know each other? Was this just a simple road rage incident? What was being said or what were they saying to each other?
"All these are circumstances that could solidify or undermine a Stand Your Ground self-defense.”
'No duty to retreat'
Holihan did not respond Monday to a message seeking comment on the case or whether the Prius driver might face charges.
The Castle Doctrine governs the use of force in self-defense of one’s home.
According to the anti-gun violence organization CeaseFire PA, state legislators in 2011 expanded Pennsylvania’s self-defense statute by removing the duty to retreat in public places outside the home where someone has a right to be.
Under the amendment, that person “has no duty to retreat and has the right to stand his ground and use force, including deadly force if … [he] believes it is immediately necessary to protect himself against death, serious bodily injury, kidnapping, or sexual intercourse by force or threat,” the law says.
Both Asteak and Waldron said a key factor is that the threat encountered is potentially lethal.
“The shooter here had to have believed that the decedent was after him personally, not swinging the bat just to dent the door,” Asteak said.
“He would have had to believe that he personally was in danger of death or serious bodily injury, rather than his car was in danger.
“The moment the other guy swings the bat at or near you, creating real risk to him [the shooter], there needs to be a reasonable belief of death or serious injury.”
