NO. 15CR2519 JEFFERSON CIRCUIT COURT, DIVISION SEVEN COMMONWEALTH OF KENTUCKY WILLIAM SCOTT ALBRIGHT *** *** ***

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1 NO. 15CR2519 JEFFERSON CIRCUIT COURT, DIVISION SEVEN JUDGE AUDRA J. ECKERLE COMMONWEALTH OF KENTUCKY PLAINTIFF vs. OPINION AND ORDER WILLIAM SCOTT ALBRIGHT DEFENDANT *** *** *** This matter stands submitted on the pending motion to dismiss filed on June 4, 2016, by Defendant, William Scott Albright (hereinafter, Albright ), and the Commonwealth s response, filed on July 18, The parties came before the Court on August 2, 2016, for a pretrial conference, and the Court allowed the parties to offer any further argument and discussion regarding that motion, as well as claims of prosecutorial misconduct. Assistant Commonwealth s Attorneys, Messrs. John Balliet and Jeff Cooke, appeared for the Commonwealth, with Detective Brian Royse (hereinafter, Royse ), of the Louisville Metro Police Department. Mr. Robert L. Schaefer appeared with Albright. Family and friends of Albright appeared in the gallery, as did supporters of the victims. 1 The Commonwealth and Albright have provided a significant amount of discovery, including voluminous medical records, police reports, investigation narratives, witness interviews, EMS documentation, videos, photographs, physical evidence from the scene, and 911 calls. After having carefully considered and thoroughly reviewed those items, the motion, the response, and applicable law, the Court will grant Albright s motion. 1 After the hearing, the alleged victims mother, Ms. Stephanie Pearson, attempted to contact the Court ex parte through Facebook. The Court deleted her friend request, blocking the private message that was sure to follow. OPOR : of

2 Facts Numerous witnesses have given statements to police in this case. Their accounts are virtually identical. The physical evidence collected at the scene, at an autopsy, and within other medical records confirms those coinciding reports. Albright has served in the United States Army and the Department of Corrections. He has no criminal record. He lawfully possesses firearms. Albright coowns and works at the Hardshell Tactical L.L.C., 5410 Valley Station Road, Suite 106, which is located within a strip mall in Jefferson County, Kentucky (hereinafter, the Premises ). He stands charged with Murder and Assault in the First Degree. He has claimed innocence and urged dismissal, citing his right to defend himself, others, and property, which the Commonwealth omitted from its presentation to the grand jury. The events that unfolded for the alleged victims on July 8, 2016, actually originated from earlier incidents between those two and others, not including Albright. Both Ms. Amanda Waits, the sister of the two shooting victims (hereinafter, the Sister ) and her husband, Mr. Alton Waits (hereinafter, Waits ), described the genesis as follows. On or about July 5, 2016, Mr. Kyle Pearson, the younger brother (hereinafter, Pearson ), had stolen the gun of Mr. Cameron Pearson, the older brother (hereinafter, the Decedent ). Pearson had a serial history of thievery from the house in which he had lived with his family, and the mother finally kicked him out of the house for his predation. No one has disputed this history. On July 8, 2016, the date of the shooting, Pearson called his Sister about helping him obtain employment. She agreed to help him if he surrendered the gun he had purloined, and the two arranged a meeting at the Circle K in Valley Station, which 2 OPOR : of

3 was located in the proximity of the Premises. Prior to the meeting, the Sister spoke with Waits and the Decedent, both of who agreed to accompany her to the meeting. The Decedent told her that he was worried Pearson would shoot himself with the gun. Pearson remained unaware he would be meeting anyone other than his Sister. Mr. Joel Mohan, an employee of R&A Body Shop on the Premises (hereinafter, Mohan ), told police that Pearson walked into the shop on July 8. He said Pearson mentioned something about being in the wrong store and exited. Pearson subsequently observed the Decedent in the car with his Sister and Waits. He then fled on foot. The Decedent exited the vehicle, pursued Pearson on foot, caught up with him, and demanded the return of his gun. Mohan saw the Decedent confront Pearson claiming Pearson had robbed him. Instead, accordingly to everyone who has given a statement on the issue, Pearson pointed the gun directly at the Decedent. He then re-aimed and fired a shot the gun into the ground. The Sister said it may have ricocheted. Meanwhile, at the same time on July 8, 2015, Albright was at work on the Premises. He did not know the Pearson family and was unaware of the earlier drama and strife. He had just finished lunch with his friend, Mr. Jim Bob Sumner (hereinafter, Sumner ), in the shop when they both heard a gunshot in the parking lot. Sumner looked outside and saw a man with a gun in the parking lot. He yelled to Albright, urging him to hurry to the scene. Albright was already armed with his own handgun, a black Springfield Armory XD-9, in a holster on his lower back. He also asked Sumner for his black Glock model 19 handgun as well, and Sumner complied. Albright requested that Sumner call 911, and Albright exited the store. 3 OPOR : of

4 At approximately the same time, Pearson put the gun to his own head. The accounts differ slightly, but not significantly. Albright said he saw Pearson swinging a gun. Albright drew Sumner s gun, put both of his hands on it, pointed it at Pearson, and repeatedly exclaimed: Drop the gun! Drop the gun! Instead, according to Albright and Mohan, Pearson put the gun to his own head and started backing towards another nearby, occupied business, J&M Auto, which had propped open its front door. The Sister has said Pearson put the gun to his own head as Albright emerged from the Premises. Waits has disagreed with his wife and agreed with Albright that Pearson was swinging the gun when Albright emerged, and then Pearson put the gun to his head. The slight discrepancies are to be anticipated when attempting to remember accurately a situation as stressful as a shooting, and they are not dispositive of the merits of the motion. The Sister told police that in addition to telling Pearson to drop the gun, Albright said he would shoot him if he did not disarm. Waits agreed with his wife s version. The Court will accept this version for purposes of this motion, although again, this alleged statement is not pertinent to the resolution of this motion. Albright then noticed for the first time the Decedent, emerge and physically attack the Decedent and grab the gun. Pearson and the Decedent both fell to the ground in their struggle, physically fighting each other for control of the gun. The Sister agreed that once Albright told Pearson to drop the gun, the Decedent grabbed at the gun, and the two brothers struggled. By all accounts, Pearson was the heavier man, and he was wearing a black shirt. The Decedent was physically shorter. The melee was violent, resulting in contusions and torn, bloody skin. 4 OPOR : of

5 The Sister stated that when the Decedent grabbed the gun, Albright shot. Albright claims he did not shoot at that point. Again, regardless of which variation is accurate, the legal analysis is the same. Albright said that as soon as the two men hit the ground in their battle, he took protective cover behind a Jeep Liberty vehicle. He says he peeked around the automobile and saw the gun pointed straight at him. He ducked back behind the vehicle. The Sister appeared to Albright s side, commanding his attention, and she said the two hostile men on the ground were her brothers. She yelled at both of them to stop and let go of the gun. Mohan agreed that many people were yelling at the brothers to drop the gun. The Sister implored Albright to refrain from shooting them. He told her to retreat. Their discussion became heated. Albright said that at that point, another gun shot was fired from the brothers. Albright looked towards the men and observed again that the gun was facing him directly. Mr. Wesley Denton, a customer at the Circle K (hereinafter, Denton ), observed the same events upon the Decedent s chasing Pearson. Denton also told police that Pearson aimed the gun directly at Albright. Sumner concurred that Pearson pointed the gun at Albright. The Sister acknowledged that during the struggle, Pearson pointed the gun at her when she was standing beside Albright. Sumner also maintained that while aiming, Pearson told Albright I will shoot you. At that point, Albright fired and struck both brothers. Albright stated that he again sought the protection of the vehicle. According to him, a third shot then came from the duo. 5 OPOR : of

6 The Sister said that she only remembered one shot from her brothers gun. Her husband, Waits, said they shot twice. He claimed both shots hit the ground. Denton believed there had been at least one shot from the brothers, but possibly more. Mohan said the brothers shot once, twice, or several times. Mr. Byron Fenogio (hereinafter, Fenogio ) said he saw Pearson shoot the gun into the ground at least twice. Fenogio also called 911. Albright said they shot three times. Albright said he emerged from behind the Jeep after the alleged third shot. He recalled that he took aim at the two, and he fired his gun three to four times, until the threat had stopped. He said he aimed at Pearson, who had control of the gun at the time, was larger, and was on top of the other brother. He stated that he believed Pearson had shot the Decedent. Fenogio also said he saw Pearson shoot the Decedent. He did not see Albright shoot the Decedent. Albright noted that Pearson never lost control of the gun and was winning the fight against the Decedent. The Sister agreed that the Decedent never gained control of the gun. Mohan concurred that Pearson always controlled that gun. After Albright shot, the Sister ran towards the two and grabbed the gun. Albright commanded her to drop it. She complied, and he kicked it several feet away. An offduty police officer then arrived on the scene and asked Albright for his gun. Albright surrendered both Sumner s gun, which he had used in the shooting, as well as his own, which had remained in its holster on his back. Albright repeatedly told police that he had fired to protect himself and others: I saw a man with a gun, there were people around him, I was afraid that someone was going to get hurt. He swore that he felt 6 OPOR : of

7 threatened by both men. The Commonwealth has submitted no evidence to the contrary, although it has argued the case should be submitted to the jury. The physical evidence showed that police found six, spent casings at the scene, indicating that at least six shots were fired. The crime lab found two casings belonged to Pearson s gun, and four matched Albright s gun. Police located three projectiles at the scene: one in the grass by a dumpster, and two in the parking lot. An autopsy revealed that the Decedent was shot three times. Two wounds were highly similar; and the third was somewhat divergent. Medical records show Pearson was shot once. Law One who uses force to defend oneself against force is justified and immune from criminal prosecution for using such force. KRS The prosecution bears the burden to prove probable cause that the force used was unlawful. KRS (2). The Commonwealth has conceded that it bears the burden to establish probable cause that Albright was not justified in acting for self-protection or the protection of others. If someone reasonably believes that the use of deadly force is necessary to prevent the commission of a felony involving the use of force, that person is justified in using such force. KRS (2); see also Rogers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009). In determining the reasonableness of that belief, Courts shall consider all of the circumstances then known to determine whether probable cause exists to conclude that a defendant s use of force was unlawful. Rogers, 285 S.W.3d at 754. The Kentucky legislature has made clear that there is no duty to retreat under such circumstances. KRS (4). The Kentucky general assembly believes a citizen 7 OPOR : of

8 has the right to stand his or her ground and meet force with force, including deadly force. KRS (3). Kentucky Courts have long agreed. [I]t is a tradition that a Kentuckian never runs. He does not have to. Gibson v. Commonwealth, 34 S.W.2d 936 (Ky. 1931). The United States Supreme Court has, for over a century, found no duty to retreat: The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury. Beard v. United States, 158 U.S. 550, 564 (1895). The government is thus expressly forbidden from pursuing charges against someone who was defending himself, his property, or others. Rogers, 285 S.W.3d at 753. Therefore, the protection of self and others is not merely a defense to a prosecution, it is a prohibition against prosecution. Id. Indeed, the police shall refrain from even arresting someone who is protecting himself or another from harm. Id. at 754. Analysis Without weighing any of the facts or judging the credibility of any of the witnesses, based solely upon their statements, the following facts are undisputed and conceded by the Commonwealth. First, Albright had a lawful right to occupy the Premises. Second, he did not provoke the Pearson s family s feud. Third, Pearson fired the first shot. Fourth, the Premises, the area of the shooting, is populated with multiple 8 OPOR : of

9 businesses and numerous persons. Fifth, he pointed an obviously armed and already once discharged handgun at himself. Sixth, he then pointed that same handgun at others. Seventh, two men were clearly and very physically battling over a deadly weapon a loaded handgun, from which at least one shot had been fired. Eighth, Albright did not provoke that fight. Ninth, Albright repeatedly requested the brothers disarm before he shot. Tenth, they refused to comply. Eleventh, Albright has uniformly maintained that he acted only to protect himself and others. And finally, the Commonwealth has conceded that the actions of Pearson and the Decedent inherently endangered others and used deadly force. These undisputed facts unquestionably entitle Albright lawfully to return the deadly force with deadly force. Even if Albright said he would shoot the brothers if they did not release the gun, and even if they only fired one shot, and even if they did not threaten to shoot Albright directly, a lawful claim of self-defense still surely exists under the undisputed circumstances present here. Pearson s family has uniformly indicated he has a criminal past and would potentially use the gun unlawfully and perhaps to shoot himself. These same relatives have consistently reported that Pearson stole the gun, pointed it directly at his brother, willingly fired a gunshot in a populated area, and then held the gun towards his own head. Absolutely no evidence controverts those assessments. The Commonwealth s own witnesses clearly establish the danger to Pearson, the Decedent, the Sister, Waits, Albright, Sumner, and any and all proximate persons. The Commonwealth attempts to make much of Albright s alleged lack of a right to pursue; however, he clearly was lawfully on the Premises and had no duty to retreat. The gunshot and gun battled unquestionably impinged upon his person, Sumner, his 9 OPOR : of

10 shop, other shops, and other persons. The law does not require Albright to cower in his store, pray that the shots will not penetrate, and passively hope that the gunfight will not hurt him and others. Likewise, it does not mandate that Albright retreat from the Premises. The Commonwealth s notation that Albright was unaware that Pearson stole the gun and did not know that Pearson s family believed he might shoot himself is not pertinent. Whether Pearson stole the gun or possessed it lawfully, he still undisputedly used it to shot near people and thereby inherently risked their lives. Likewise, regardless of Pearson s possible desire to harm himself, his actions obviously endangered himself and others. Moreover, Pearson s firing into the ground does not constitute exculpatory or docile behavior on Pearson s part. Maybe he was firing a warning shot, as the Commonwealth apparently believes; but maybe he missed his target. Or maybe he was testing the gun to make sure it was loaded and operational and showing everyone its functionality. Irrespective of these ponderings, a known fact is that firing a shot, even into the ground, in close proximity to other persons and businesses is inherently dangerous and deadly. The Commonwealth emphasizes its unsupported premonition that Albright s participation fundamentally altered the course of events. First, of course, no one can know with any certainty what would have happened had Albright not been at the scene. Maybe Pearson would have killed himself. Maybe his shots would have ricocheted and hit his brother, his sister, or other patrons of the Premises. Perhaps Pearson would have deliberately fired at the Decedent, at whom the evidence shows he previously 10 OPOR : of

11 aimed. This fundamental unknowability of the future is precisely the point of the law of self-defense. One does not have to subject oneself to the whims and the vagaries of another s criminality and hope it turns out well. Albright did not create this situation and did not control it. Pearson put this situation in motion. The Decedent s behavior may have been undertaken in an effort to deescalate the danger; it may, however, have escalated it. Albright was not required to turn tail and run. Likewise, the law does not mandate that he become paralyzed with fear and refrain from acting in the hopes that the smaller, unknown, and unarmed brother would save the day. As a combat paratrooper and gun expert, Albright recognized the danger to himself and others. He had already spent a large portion of his life protecting others. He reacted to the circumstance in which he found himself and acted to protect himself and others from the unfolding, and chaotic, lawlessness. He is privileged to do so. The Commonwealth opines that Albright should have somehow guessed that Pearson had a permit for the gun and knew how to use it. It also asserts that the Decedent may have jammed the gun, and Albright should have recognized that possibility. There is no evidence to support either supposition. There is also no relevance to the theory. Regardless of Pearson s potential gun knowledge, or lack thereof, and the potential gun jam, or lack thereof, Pearson was certainly and undisputedly shooting the gun near people, aiming in different directions, and engaging in hand-to-hand combat for the loaded and operational handgun. Again, the danger here is as inherent as it is readily apparent. 11 OPOR : of

12 Here, all of the uncontroverted evidence supports Albright s claims and does not contradict them. Albright has proffered sufficient proof that he and others were potential victims of deadly violence. The Commonwealth s proof and the physical evidence do not contradict that showing. Thus, on its own, the proof submitted is not conflicting and does not rise to the level of probable cause to believe that Albright s decision to use deadly force was unjustified. Rodgers, 285 S.W.3d 740. Finally, the Commonwealth has submitted no proof that Albright used excessive force. Indeed, he returned the clear and undisputed use of deadly force with deadly force. In so doing, he was compliant with Kentucky law. The Commonwealth opines that Albright s use of force may have endangered himself, other patrons, the Sister, Waits, Sumner, Denton, Mohan, or Fenogio. In hindsight, it clearly did not. However, no hindsight is required to know with certainty that Pearson s and the Decedent s conduct clearly did endanger others. The legislature, knowing that using deadly force to counteract initial deadly force will necessarily involve danger, has authorized it under the narrow circumstances in which it is used to protect self or others. In codifying the lack of any duty to retreat, the general assembly has explicitly rejected the notion that returning deadly force with deadly force increases danger. Whether Albright endangered Pearson and the Decedent more than the deadly force already being used is not the issue. The sole issue is whether the Commonwealth has shown probable cause to believe Albright was not justified in using deadly force. It has made no such showing here. In the Commonwealth s opinion, Albright should have exercised more restraint. It said that he acted wildly and recklessly by shooting the brawling duo. But the 12 OPOR : of

13 Commonwealth has not offered an opinion on what Albright should have otherwise done to eliminate the danger. He did not have to retreat. And he was authorized to meet the deadly force with his own. The determination before the Court is not what should have been done; it is what could legally have been done. Likewise, it is not for the Court (or the Commonwealth) to say what ought to have been done, but only what is allowed under the law. The issue is one of authority for an action, not preference of it over other possible alternatives. For all of these reasons, the Court finds that the Commonwealth has not met its burden of establishing probable cause to believe Albright was not acting in selfprotection, protection of property, and/or protection of others. It holds that there is no probable cause to conclude that the force used was not legally justified, and Albright is immune from prosecution under the facts of this case and the law of the Commonwealth. Id. at 755. Thus, the Court need not reach the claim of prosecutorial misconduct before the grand jury. Wherefore, IT IS HEREBY ORDERED that the motion of Defendant, William Scott Albright, to dismiss is granted. The indictment against him is dismissed with prejudice. There being no just cause for delay, this Order is final and appealable. 13 /s/ AUDRA J. ECKERLE, JUDGE Jefferson Circuit Court August 11, 2016 OPOR : of

14 cc: Mr. John Balliet Assistant Commonwealth s Attorney Mr. Robert L. Schaefer Schaefer & Dupree, P.L.L.C. 112 N. Mulberry Street Elizabethtown, KY OPOR : of