by Alan Korwin, Author
The Arizona Gun Owner’s Guide

July 31, 2009

Landmark Arizona Self-Defense Case Gets New Life

The Arizona Court of Appeals has thrown out the conviction of Harold Fish and chastised the judge who tried the case. Mr. Fish has been released from custody into his family’s joyfully waiting arms, while he awaits final resolution of his case.

Fish was the retired school teacher who shot a man who charged at him swinging his arms and yelling threats in a forest outside of Payson. Fish was convicted of second degree murder in 2006, in a trial many thought was grossly unfair, and has spent the intervening three years in an Arizona state prison. He had no prior criminal record of any kind. The Appeals Court ruled, among other things, that Fish should have been allowed to introduce evidence of his homeless attacker’s violent past and the vicious histories of the man’s dogs which triggered the event.

The case was tried under an old abusive standard, quietly slipped into law without review in 1996 by state prosecutors. This forced a self-defense claimant to prove that actions were taken in a justifiable way — that is, guilty unless proven innocent, a terrible corruption of the legal system. That law was changed by state gun-rights activists in 2006 back to the former, proper standard. Now, if a person claims self defense, prosecutors must prove beyond a reasonable doubt that the person acted without justification, or the classic American standard of innocent unless proven guilty. Prosecutors were not happy with the change, and fought it every step of the way, an indicator of how vigilant people must be against deliberate government abuse.

This case outraged many rights activists, and alerted the state to the tyrannical changes that had been quietly made to self-defense law in Arizona. It also provided significant motivation for legislative changes that brought about the Castle Doctrine law, and a reversal of the corrupted burden of proof process, to the proper status it has today. Unfortunately for Mr. Fish, he suffered the slings and arrows of outrageous fortune through no intention of his own. He merely acted to protect himself against a violent attack in the wilderness.

The new law was supposed to be retroactive, to cover cases like Mr. Fish and others, but the courts decided it did not apply. Back to the legislature, and a clarification was enacted this year, making the correct innocent-unless-proven-guilty standard effective for all cases pending when the 2006 law was passed (which would include the Fish case).

Fish’s situation remains uncertain however, with democrat state attorney general Terry Goddard vowing publicly to review the case. There will be no retrial, according to attorney Michael P. Anthony, who has followed the case closely. If Goddard convinces the Arizona Supreme Court to take review AND the Supreme Court reverses the Court of Appeals, then Fish will have to serve the remainder of his sentence, unless clemency is granted. If the Supreme Court reviews and doesn’t reverse, Fish remains free. The best situation is if Goddard decides not to pursue the case against significant public sympathy for the former school teacher.

One More New Arizona Gun Law — Nine Altogether

If you missed my initial update, Arizona enacted eight changes to gun laws in 2009, all of them with a pro-rights flavor — and some particularly excellent, like the new “defensive display” law. They are posted at the top three links here: http://www.gunlaws.com/agogup.htm. With the help of Gary Christensen of the Arizona State Rifle and Pistol Assn. (http://www.asrpa.com), a top resource in this state, I’ve identified one more:

Restoration of rights for people deemed incompetent.
HB 2532, CH 145, Adds §13-924, amends §§13-3101, 32-2612, 36-540.

In new section 13-924, a person who was found to be a danger to self or others or who was acutely or gravely disabled as defined (§36-540, concerning involuntary treatment, referred to in this update as “incompetent” for brevity), may apply to court to have the right to possess a firearm restored. The person must show clear and convincing evidence that the person is no longer incompetent. The court must set a hearing for the applicant to make the case, where psychological or psychiatric evidence must be presented. The state can argue that the person should remain a prohibited possessor. A successful outcome for the applicant only restores the right to possess a firearm, and it “does not apply to and has no effect on any of the other rights or benefits the person receives.” This leaves us to wonder if the person can carry, buy, sell, transfer, practice or use the gun for hunting, self defense or any other purpose, a very ambiguous state of affairs. The three other sections noted above are amended to accommodate a person whose rights were denied due to incompetence, if rights have been restored under §13-924.