Andrew Branca Show@TheBrancaShow
WHAT A GREAT DAY FOR DALTON EATHERLY!
TLDR: The State's case against Eatherly appears to be utterly lacking in ANY LEGAL MERIT WHATEVER, based upon what appears to be the official Affidavit of Complaint just made public (attached).
This in a case in which the State's BURDEN is proof of guilt, and disproof of self-defense, beyond ANY REASONABLE DOUBT.
All of it: So, it appears the affidavit of complaint against Dalton "Chud the Builder" Eatherly has been made public, and the contents will ABSOLUTELY SHOCK many of you.
FIRST SHOCKER: THERE IS NOT A SINGLE WORD ABOUT DALTON HAVING UTTERED ANY RACIAL SLUR TOWARDS JOSHUA FOX WHATEVER, SO AS TO HAVE PROVOKED THE FIGHT AND THUS TO HAVE LOST THE LEGAL JUSTIFICATION OF SELF-DEFENSE.
NOT. ONE. WORD.
That was Dalton's biggest potential vulnerability on self-defense, and we can now be confident that we can put that concern to rest.
But it gets even BETTER for Dalton.
SECOND SHOCKER: Even if self-defense IS NOT EVEN CONSIDERED, the Affidavit of Complaint fails to present ANY evidence-based narrative that Dalton has committed ANY CRIME WHATEVER. (But, of course, self-defense WILL be raised, only further buttressing Dalton's legal position.)
Specifically, there's literally not a SINGLE WORD in this Affidavit of Complaint that describes ANY criminal conduct whatever.
I've embedded the Affidavit in my possession, but for purposes of succinctness, the relevant portions reads:
"... Dalton Eatherly and Joshua Fox engaged in a verbal altercation in front of the Montgomery County Courthouse."
This is not a crime, unless it's merely the misdemeanor of disorderly conduct, which would apply equally to both Eatherly AND Foxx. And in any case Eatherly has not been charged with disorderly conduct (nor Fox, of course).
"During this verbal altercation, Mr. Eatherly turned his body in a bladed stance towards Mr. Fox ..."
There's nothing unlawful about taking a defensive stance when dealing with an angry antagonist. Certainly Eatherly is not charged with the "crime" of "taking a bladed stance."
"... and reached for his firearm located in his right jacket pocket."
Again, there's nothing unlawful about reaching for a firearm in one's pocket in preparation for possible necessary self-defense. Note that Eatherly is not charged with the "crime" of "reaching for a firearm in located in his right jacket pocket."
"Thereafter, a physical altercation ensued."
Note the passive voice. The "altercation ensued." There's no claim that EATHERLY initiated the "altercation."
Indeed, if anything, to the extent the affidavit has detailed Eatherly's conduct, the absence of any representation of his conduct to indicate that it was EATHERLY who initiated the altercation, we can only infer that it was instead FOX who initiated the altercation.
This would, of course, make Eatherly the VICTIM of Fox's unlawful attack upon him.
The next paragraph: "Mr. Eatherly discharged his firearm, striking Mr. Fox multiple times."
There's nothing inherently unlawful about discharging a firearm and shooting someone multiple times. Thousands of shootings that fit this description occur every year, and qualify as perfectly lawful self-defense. Of course, now self-defense need actually be put on the table.
Then there's a discussion of Fox being flown to a hospital, followed by: "In addition, at the time shots were fired, there were several innocent bystanders in the area. Surveillance video fo the incident shows a ricocheting projectile hitting nearby walls."
Again, there is nothing inherently unlawful about firing shots that miss the intended target. Police involved in lawful shootings of suspects routinely miss about 70% of the shots fired. Those shots ALSO go flying about the neighborhood until they hit something. None of that is a crime, absent evidence of recklessness--and the affidavit provides no statement of recklessness. Indeed, not a word of recklessness.
Note that if the shots were fired in lawful self-defense, as a matter of law they were not fired recklessly.
I would also note that there's not a word in this affidavit that even contests, much less contradicts, even a single legal element of Dalton's anticipated claim of self-defense. Not Innocence, not Imminence, not Proportionality, not Avoidance, and Not Reasonableness.
Not a single element. Not a word of it.
If this were a civil case, I would argue that this complaint fails to state a cause of action.
Indeed, it's hard to recall the last time I saw an Affidavit of Complaint so utterly lacking in legal substance whatever.
At this point I have to say that I've never felt more positive about Dalton Eatherly's claim of self-defense, at least based upon the representations of this apparently official "Affidavit of Complaint."
If these facts provided in this Affidavit of Complaint are all the State of Tennessee has on which to prosecute Dalton on the attempted murder, aggravated assault, reckless endangerment, and malicious firearms possession charges brought against him, I simply don't see any prospect to any reasonable degree of legal certainty of prosecutors securing a conviction on any of those charges beyond a reasonable doubt on the legal merits.
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