A Middlesex prosecutor doesn't think this qualifies as self-defense. Even in Massachusetts, however, don't be surprised if a jury disagrees -- if it even gets that far.

A group of pro-Israel demonstrators held a small rally yesterday in Framingham to show support in the Gaza war. At some point, a man wearing a pin to support the Palestinians began yelling at them from across the street, and the verbal argument escalated -- such as it was. As one can see from this video clip of the middle of the exchange, it wasn't exactly a Buckleyesque intellectual debate between this man and a woman in the rally.

However, at some point, the group gets charged by this pro-Palestinian counter-demonstrator, and he tackles Scott Hayes, a veteran attending the rally. And this turns out to be a very bad choice for the unnamed individual:

BREAKING: Anti-Israel man shot in stomach after charging through traffic to tackle a man at a pro-Israel demonstration outside Boston in Newton, Massachusetts.

Footage obtained exclusively by @KassyAkiva: pic.twitter.com/nsGN3MQVAO

— Daily Wire (@realDailyWire) September 13, 2024

Scott Hayes, 47, of Framingham, Mass., was getting ready to leave when the assailant began yelling at the group, showing his middle finger and shouting at the protesters.

In the next video, the man charges across the street through traffic and tackles Hayes, an Iraq War veteran, who was carrying an American flag during the protest. Seconds later, the gun was discharged and the man was shot in the stomach during their tussle on the ground, another video angle shows. 

Hayes then places the gun on the sidewalk behind him as bystanders try to break the two apart. After the altercation, Hayes told bystanders to call 911, and tended to wounds of the man who tackled him, a video shared with The Daily Wire shows.

From these two short and not entirely sequential clips in the video, it appears that the man assaulted and battered Hayes and the two struggled on the ground. In the midst of the melee, Hayes fires his pistol, seriously wounding the other man. The video would appear to indicate that the counter-protester not only initiated the assault but prevented Hayes from retreating.

For some reason, though, Middlesex County has charged Hayes with several crimes, including a weird charge of "violation of a constitutional right causing injury":

Hayes is being charged with assault and battery with a dangerous weapon and violation of a constitutional right causing injury, Middlesex County District Attorney Marian Ryan said. Ryan said the veteran had full legal possession of the gun, according to Boston 25 News. The veteran’s fellow protesters say they were not aware he had a gun, but believe he was acting in self defense.

Ahem. The purported victim attacked apparently peaceful demonstrators as a result of their speech. That looks more like a "violation of a constitutional right causing injury" than getting shot for attacking someone else. And that much is evident from the video evidence, even if the case for self-defense under Massachusetts law may not be. 

Bear in mind, as our colleague Aaron Walker warns at Twitchy this morning, that states differ in their approach to lethal force in self-defense. In Massachusetts self-defense law, the duty to retreat if possible only gets waived within one's residence (the "castle doctrine"). The state's 2009 guide on self-defense notes that prosecutors have to prove three points to successfully overcome a self-defense claim at trial when deadly force is used. The duty to retreat applies outside the home:

A person cannot lawfully act in self-defense unless he or she has exhausted all other reasonable alternatives before resorting to force. A person may use physical force in self-defense only if he (she) could not get out of the situation in some other way that was available and reasonable at the time. The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant resorted to force without using avenues of escape that were reasonably available and which would not have exposed the defendant to further danger.

You may consider any evidence about where the incident took place, whether or not the defendant might have been able to escape by walking away or otherwise getting to safety or by summoning help if that could be done in time, or by holding the attacker at bay if the means were available, or by some other method. You may consider whether the use of force reasonably seemed to be the only means of protection in the circumstances. You may take into account that a person who is attacked may have to decide what to do quickly and while under emotional strain.

There is also a symmetrical test in terms of force and risk that the state can apply, although their guide notes that this can't be made into an "exact" standard:

A person cannot lawfully act in self-defense if one uses more force than necessary in the circumstances to defend oneself. How much force is necessary may vary with the situation. Exactness is not always possible. You may consider whether the defendant had to decide how to respond quickly under pressure. The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant used clearly excessive and unreasonable force. You may also consider any evidence about the relative size or strength of the persons involved, where the incident took place, (and what kind of weapons, if any, were used), among other things.

In other words, we can probably anticipate the prosecution case. This was a fistfight and nothing more, so the use of lethal force was unnecessary for self-defense. And/or: Hayes could have run away rather than fight. We don't have a clear view of the tackle itself, so it may well be that Hayes chose to intercept the assault. In fact, it's not clear why the man chose Hayes in the first place. The video has a gap between the exchange with the woman and his running across the street; did Hayes initiate an argument with the man? If so, then Hayes may have a weaker claim for self-defense.

So much for the government's case, at least as we know it at the moment (and we don't know it well yet, keep in mind). What about the case for the defense? This wasn't a bar fight or a domestic squabble; Hayes and the others were engaged in a legal and peaceful political demonstration when the other man began acting irrationally and with hostile intent. They had done nothing to provoke the man into irrational behavior, and his rage clearly had escalated. When he charged across the street at them, Hayes and the others could easily have had a rational fear for their safety, up to and including their lives and grave bodily harm. Who wouldn't fear for their safety in that circumstance? 

And it wasn't just the charge either, but an actual and ongoing battery that otherwise arguably prevented Hayes from other means of self-defense. The question would be whether the level of force in self-defense was "reasonably necessary." But that also depends on the level of reasonable fear for death or grave bodily harm that Hayes had, for himself and others. The other man didn't just take a swing at Hayes -- he tackled him and had him down on the ground. Hayes had no way of knowing whether the man was armed with a pistol, a knife, or had other deadly force available to him. Hayes had no other possible defense against potentially lethal force if the man used it, and wasn't in position to wait and find out if he did. Is it reasonable to use lethal force in that case?

I know what I think the answer is. The Middlesex County DA apparently doesn't agree, but I'm going to bet that's a minority opinion, even in Massachusetts. Aaron Walker suspects a jury will have a tough time avoiding reasonable doubt on that argument, at least:

We’re not ready to say it was definitely lawful self-defense, but we will say that a fair-minded jury will have a hard time believing it was not, beyond a reasonable doubt. That would be the same legal standard that set Rittenhouse and Zimmerman free.

But can Hayes find a fair minded jury in that part of the country? We honestly don’t know.

Without seeing the whole case, it's tough to reach a firm conclusion. However, the fact that the DA is charging Hayes with the "constitutional violation" rather than the man who assaulted peaceful demonstrators may go a long way toward undermining her credibility with a jury. And I suspect a look at these videos will tell any reasonable juror that Hayes at least has a credible claim for self-defense once they ask themselves what they would do under similar circumstances.