HikeArizona.COM

We suspect that many readers are familiar with what we're calling "The Pine Canyon Tragedy."

In short: In May 2004, a hiker is allegedly beset by two dogs. He allegedly shoots toward them. The dogs' owner allegedly charges the hiker, allegedly yelling one or more death threats. The hiker allegedly shoots the individual. The individual dies. A Coconino County Grand Jury indicts the hiker. Various legal proceedings transpire since then.

Today's Arizona Republic (March 25) carries the latest news in this case. Sicne it is likely that this case will continue in the "public eye," so to speak, we figured we'd bring the topic back up to front and center here on HAZ.

Here is the link to the latest story:

(dead link removed)

You can also get some more of the background by Googling various permutations of "Pine Canyon trail shooting" etc.

It is, indeed, interesting that the Judge noted the discrepancy on the speed of the deceased. One report we read supposedly indicated he was doing 8 miles per hours. Hum...that's about the median speed of most people who regularly run in 10K races. That's pretty danged fast. We've also read that the deceased supposedly had the "uphill" advantage on the shooter--in other words, he was allegedly running downhill, supposedly yelling his alleged threats or whatever.

If you've hiked that trail, you know the steep part is somewhat "Grand Canyonesque" in its switchbacks through the sandstone. Even though news reports are vague as to the exact location of the shooting, we deduce it had to be the switchbacks because they are in Coconino County. Anything South of there would be in Gila County as the county line pretty much sits on the edge of the Rim.

Well, we'd anticipate that several of you HAZ "regulars" will have some opinions to express. Therefore a note of "decorum" and legalities is in order. We suggest you use the words "supposedly" and/or "allegedly" or some other conditional synonym when refering to any supposedly guilt or action in this case. It is MUCH to wide open of a case to risk getting you or Joe sued over some statement that might wind up in discussion here.

Yes, it is a most compelling case to follow--just be careful "HOW" you say what you say about it and your opinions. Okie, dokie?

J&S

There is a high probability that Hal Fish's case will be a topic on Dateline NBC this Saturday, October 7th.

CW

NBC? Now there's a network with a political agenda! I can just imagine the spin they'll put on it!

I watched the presentation last night. I thought it was fairly well presented, it presented both sides of the case pretty well. (So I'll have to eat my words about NBC, I guess. Maybe....!)

I do hope Mr. Fish gets a new trial where the jury can see all the evidence, especially regarding the restraining orders against Mr. Kuensli, and that he was very unbalanced and could fall into uncontrollable rages.

I think a conviction of second-degree murder with a mandatory 10 years without parole sentence is just insane. Why did they not try Fish for manslaughter instead? A lot of very bad people have gotten less time for INTENTIONALLY committing worse crimes. This man does not belong in prison, especially not for that amount of time. I do think he probably made an egregious error in judgment, but I don't think he should do hard time.

Another point I think is interesting: If it had been me instead of Mr. Fish--I am 5'2" and weigh about 130. There is some provision in the self-defense law, I believe, that allows for someone to use deadly force with a firearm against an aggressor who is significantly larger in size. So if I had shot Mr. Kuensli under similar circumstances, I probably wouldn't have been prosecuted. (But then, who would have thought Fish was going to get prosecuted when it all started?)

Kuensli's sister took the stand and said that Mr. Fish had shown no remorse. Well, if he didn't commit a crime why should he show remorse? (If it were me I would not be remorseful, I would just be glad I was able to defend myself against a crazy guy.) He did try to help Mr. Kuensli, after he shot him, so that shows a degree of responsibility, after all.

Yeah I saw the same show. It was a real eye opener as to how little training or information the public has about firearms.

Some of the comments made by the jurors on that show were so off the mark that it’s not a surprise that he was convicted.

Most notable was the comment that one juror made about the bullets used. Apparently Fish used Hydroshock cartridges. If I remember correctly the juror was just taken back by how horrible these bullets were as in they might actually kill something if fired.

Last time I checked the vast majority of the cartridges manufactured are designed to kill. That’s the purpose of the tool. It’s not nice, it’s not pleasant to think about, but it’s exactly what the tool in question was designed to do.

If your intentions are to harm but not kill, then a firearm is not a good choice. Shooting a target once and even in an extremity can still kill that target. Tasers or sprays are also not a good choice seeing how many people could have bad reactions to those weapons. Less than lethal does not mean non-lethal.

But somehow the prosecutor was able to convince the jury (or at least this juror) that these bullets were worse and since he was using bullets designed to kill, then the defendant must be guilty of murder.

Something I was also surprised about, that never came up, was the “police defense” issue. If you choose to carry, and someone aggressively advances on you, you basically have no choice but to draw and possibly shoot them if they do not stop advancing.

Why? Because if the attacker reaches you and intends to harm you, they can and probably will take your firearm and use it against you.

When you carry, this is your burden. Your “safety bubble” is greatly extended. But with the average knowledge of the general public with respect to firearm training/safety/info, I guess this kind of argument would fall on deaf ears.

davis2001r6 wrote:I wouldn't consider that guy a "poor hiker guy", he shot and killed a guy, in what is still arguably sell defense.

"Arguably" self defense? It was self-defense. Hope it gives other dog owners something to think about too.

Oh no, it did re-open! I'll take the blame for this. ;)

I'll resurrect this thread by way of today's decision by the Arizona Court of Appeals:

(dead link removed)

Retrial ordered in fatal shooting of hiker
by Michael Kiefer - Jun. 30, 2009 03:08 PM
The Arizona Republic

The Arizona Court of Appeals on Tuesday threw out a murder conviction of a hiker who claimed self-defense when he shot a man to death on a hiking trail north of Payson in May 2004.

Harold Fish, 62, was convicted of second-degree murder in June 2006 for shooting Grant Kuenzli, 43, after Kuenzli ran at him waving his arms because Fish had fired a warning shot into the ground to scare away Kuenzli's aggressive dogs. He was sentenced to 10 years in prison.

But the Court of Appeals sent the case back to Coconino Court Superior Court to be retried because the trial court judge had not given adequate instruction on what constituted self defense. And the panel of appellate judges scolded Coconino County Superior Court Judge Mark Moran for not answering a jury request to define the word "attack." The panel remarked that the jury may not have understood that someone can commit aggravated assault on another person without actually touching him.

Fish's contention was that Kuenzli's three dogs ran at him and put him in fear for his safety. He fired a shot into the ground in front of the dogs and scared them away. But then Kuenzli ran at him shouting and waving his arms and refused to stop.

The panel also noted that the lower court had "sanitized" evidence of prior incidents in which Kuenzli had become enraged and had frightened people during encounters with the dogs. Many times, in criminal trials, such "prior bad acts" are excluded. But in this case, the appellate judges felt it was relevant, especially since there were no witnesses to the event.

The appeals court also felt that Moran could have allowed the defense to classify dogs as potentially "dangerous instruments," furthering Fish's self-defense claims.

Two weeks after Fish's trial began, the Arizona State Legislature rewrote the state's self-defense statutes to force prosecutors to better disprove self-defense claims. And although the Fish case was a catalyst for the law, it could not be applied retroactively. That change in the law, however, coupled with the strong wording of the ruling may factor into whether the Coconino County Attorney decides to retry the case or whether Fish goes free.

I wasn't there, but it sounds like he genuinely felt threatened.

In response to Jeff MacE:
I have to say though, that 'feeling threatened' as a determiner honestly disturbs me. Mostly because I've "threatened" someone merely by walking up and asking directions.

But yea, wasn't there.. don't know the particulars.. etc.. etc.. etc.

If the same thing happened today, I think the answer would be much more clear. But the law at the time was different, and he was convicted under the old law. Because it was flawed, the law was changed, but JNap wouldn't make it retroactive to Fish, so he was tried under the old law, not the new law. Seems unfair to me.

At the time of the shooting, Arizona's self-defense law required that a person claiming self-defense must prove that his or her actions were reasonable and justified.

The law was changed in 2006 just before Fish's trial. It now puts the burden of proof on prosecutors to prove that shooters were not justified in using deadly force to protect themselves.

Fish's attorney, Melvin McDonald, lobbied for that change in the Arizona Legislature before Fish's case went to trial.

Then-Gov. Janet Napolitano vetoed two bills that would have made the change in the self-defense law retroactive to his case.

I would also be very surprised if they actually try the case again now. He's served about two years already, and I think a prosecutor will have a hard time convincing any jury that he needs to serve any more.

At this point might start asking does anything that takes FIVE years in court to figure out justify what one must decide in a split second?

joe bartels wrote:At this point might start asking does anything that takes FIVE years in court to figure out justify what one must decide in a split second?

joe bartels wrote:At this point might start asking does anything that takes FIVE years in court to figure out justify what one must decide in a split second?

That's exactly the way I feel about it. I don't have any idea what what went on out on that trail. It sounds like an older guy was confronted by a couple of uncontrolled dogs and then accosted by their younger and stronger owner. Apparently that owner had a history of rage and physical intimidation. I can think of a lot of people in a recent war who got shot for *far* less. However, we are a nation of laws and there would have been a legal recourse for the shooter in this case that would have been far more appropriate an option, IMHO. Were they miles and miles into the backcountry and out of cell phone range, or were the shooter female, this case might be very different. I believe the facts are, however, that he had an opportunity to retreat without being harmed and contact the police to deal with the "rage-a-holic" and his dogs.

I've read through the older posts and noticed that no one else has pointed out the futility of carrying a firearm if you are not mentally prepared for the responsibility of doing so. Guns are not the panacea they were in the Old West. Simply stating that someone made you uncomfortable or called you a liar won't cut it, anymore. It is the responsibility of every gun owner to decide for his or herself under what circumstances he or she will use that weapon against another human being. He or she MUST do this in advance of being presented with such a situation, as trying to do so in the heat of the moment will result in a tragic outcome 99% of the time. The rationale for the use of force this final must be strong and well-rationalized.

For example, I have issues with the decision to fire a warning shot of any kind. If the dogs were advancing, the appropriate action would have been to withdraw as far as necessary to put some space between you and them and then stand your ground to let them know you will not be trifled with. This usually gets even the most aggressive dogs to back off. Many dogs, especially those accompanying females, act to clear a path for their owners. Take the moral high ground and give them the trail. If the dogs continued to attack, shooting them would have been the next logical escalation. The more likely outcome is that the dogs would lose interest or the owner would arrive before you needed to take further action. Either way, you would need to be prepared with the inevitable reaction from the owner(s) of the animals.

I would expect to have one of two reactions from a male dog owner whose dogs I have just shot on trail. He would either be scared out of his wits or very angry. The next question is whether or not he poses an immediate threat to you. You are now dealing with a "new" threat and the continued use of the same level of force is unwarranted unless that individual is brandishing a weapon of his own. The better choice would be to re-holster the weapon and explain the situation and your reaction to the owner calmly and demand that he back off. Law enforcement should be involved as early as possible after that point.

I can say what I would have done, and it never would have involved drawing my weapon. I would have yelled at the dogs and hollered out for their owner and then chewed his back end for having them out of his sight and off leash on a public trail. If he chose to continue the confrontation, he would get his second-point-of-contact kicked for getting physical after I got angry about his little marauders being off leash.

Jeff MacE wrote:The better choice would be to re-holster the weapon and explain the situation and your reaction to the owner calmly and demand that he back off. Law enforcement should be involved as early as possible after that point.

If you have a gun that you used to warn off some dogs and then the younger and stronger male owner is rushing at you at won't listen to reason, you either shoot him or watch him take the gun from you and possibly shoot you...

Jeff MacE wrote:were the shooter female, this case might be very different.

Glad you said that. It is very different if an unarmed attacker is much stronger and larger than the person he's attacking. I probably would have had my gun out, too. Arizona law has recognized that difference for quite some time, I believe.

Vaporman wrote:

Jeff MacE wrote:The better choice would be to re-holster the weapon and explain the situation and your reaction to the owner calmly and demand that he back off. Law enforcement should be involved as early as possible after that point.

If you have a gun that you used to warn off some dogs and then the younger and stronger male owner is rushing at you at won't listen to reason, you either shoot him or watch him take the gun from you and possibly shoot you...

Possibly, but, to be clear: I was discussing what I would have done if I had been forced to shoot his dogs.

FWIW, I still don't think he was justified shooting the owner, but I wasn't standing there in his shoes. If the dog owner said: "I'm going to take that gun out of your hands and beat you to death with it" or something of the sort, maybe it would have made sense to shoot him. The better option would have been to never introduce the weapon into the equation until it was absolutely necessary to do so. When you carry a firearm in the open, or brandish it, you make yourself an armed combatant thereby greatly limiting your and your adversaries' options(I hope this sentence sinks in for those reading it that have never thought of it this way.) If you are old and frail maybe carrying a gun for inevitable use by your own attacker isn't such a hot idea.

These are my opinions alone formed by my unfortunate experiences with armed conflict in the past. A better opinion to hear would be from someone who has experience with civilian law enforcement. Either way, everyone should feel free to share their own thoughts. ;)

azbackpackr wrote:

Jeff MacE wrote:were the shooter female, this case might be very different.

Glad you said that. It is very different if an unarmed attacker is much stronger and larger than the person he's attacking. I probably would have had my gun out, too. Arizona law has recognized that difference for quite some time, I believe.

Yes. There was a recent court case down here in Pima County that made it clear that a woman is well within her rights to use lethal force to stave off an attack by an unarmed man.

I stand by what I said close to the top of the thread. Regarding the more recent discussion, in the place of the shooter, I would shoot the dogs first if it were feasible (perhaps that's a big "if"). I doubt the owner would mess with you after that.

For all you folks who are having so much sympathy for the "victim" in this case, here's an excerpt from some of the trial materials:

Witness after witness, in pretrial motions, and under
oath, provided this Court with "specific act" evidence
about the character for violence of Grant Kuenzli. The
decedent raped and kidnapped [Rape Victim], then
threatened her son with death as well as her mother and
sister while hold [Rape Victim] and her son hostage in
their home.

The decedent, without any warning, assaulted and
strangled [strangulation victim] without provocation and
without warning. [strangulation victim]'s offense was
simply delivering self help materials to [Rape
Victim].

The decedent was involved in numerous violent or
aggressive encounters with former police officers Steve
Corich, John Boylan, and Lynn Bray at Mesa Community
College. They were so troubled by these actions that
they contacted defense counsel after reading news
accounts of Kuenzli's death.

The decedent had two aggressive confrontations with
Placido Garcia who, through affidavit, described his
fears to the court. Stephanie Quincy was so terrified of
the defendant because of bizarre and threatening
behavior over the telephone that she would not meet with
him face to face unless he had cleared court
security. Judge Clayton Hamblin had a twenty minute
encounter in his courtroom that so terrified him that he
warned court staff to be beware of Kuenzli and to be
cautious of him. The judge feared that the decedent
might shoot him through a window connected to his
courtroom.

Ernie Encinas terminated the decedent from employment at
the Gilbert Fire Marshall's office because of repeated
violent outbursts with Mr. Encinas, with fellow
employees, and with customers of the town. The fear of
Kuenzli was so prevalent that the Fire Marshall changed
all of their locks at all locations at the request of
Kuenzli’s fellow employees because of fears that
Mr. Kuenzli would return and inflict harm.

A mere two weeks before his death, decedent charged
Steve James with James observing the same spastic arm
movements, the terrifying anger and verbiage, and the
irrational behavior that was seen on May 11, 2004.

These specific acts were critical to show, on occasion
after occasion, that rational people could not reason
with Grant Kuenzli, that he had character patterns of
uncontrolled violent behavior, and that Kuenzli
inflicted terror in the minds and hearts of each of
these witnesses because of his unpredictable volatility
and patterns of violence and aggression.

With all of this character evidence, how could Fish be convicted? Easy: he was never allowed to present it in court, because the law at the time required him to plead guilty to homicide BEFORE he could plead self-defense. Now that law is changed, and there will be a much fairer trial.

Well, I see where you're coming from. Was this individual ever convicted of these previous bad acts? It sounds like he shouldn't have been loose in society; but that does not necessarily mean that he deserved to be killed over what was, by all accounts, just a verbal confrontation. This is a tough one for me as I have been tempted on more than one occasion to shoot an uncontrolled dog, but It was always just that - temptation. Restraint is a key part of being a responsible gun owner and bearer.

What I will say is this: Angry and violent people are becoming more and more prevalent in our society. Walking or driving around near the UA in Tucson you start to wonder if there is a factory nearby that cranks out little rich wanna-be tough guys because there are so many of them. They must also issue big biceps muscles and shirts with the sleeves cut off and a pair of aviator sunglasses to all of them, too. If these guys were so tough they'd be humping an M4 in Fallujah not swaggering around in a huge pack pushing people off the sidewalk or running people off the road in their Beamers on a college campus. Don't even get me started on the people at the malls, etc.

Violence and anger only beget more of the same. Eventually, everyone who behaves like Kuenzli has been described as behaving or like I have just discussed encounters someone who is either:

A) Prepared to deal it back to them in spades, or:

B) Actually intimidated by their act enough to take them seriously as a threat and react...usually without thinking.

It would probably have been better for all considered if Mr. Kuenzli ran into someone from category 'A' in this case and just got punched in the face for his behavior; but, alas, that was not to be.