Can Assaulting My Child’s Drug Dealer Be An Act Of Self-Defense?

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Friday, April 26, 2013

The St. Louis Post-Dispatch ran a feature story on a somewhat unusual criminal case in Jefferson County. The State had charged Sherrie Gavan, 54 years of age and not even five feet in height, of misdemeanor assault of Joshua Loyd, 22 years of age, over six feet tall, and an admitted supplier of heroin to Sherrie’s son, Clayton.

It seems that Clayton got into the wrong group of kids at school and developed a serious addiction to illegal drugs, especially heroin. Like any loving mother, Sherrie took every step possible to get her son clean – including detoxing him herself and changing his schools to get him away from the bad crowd that got him hooked. Just as Sherrie had started to turn a big corner with Clayton, Joshua Loyd reappeared, ready to supply Clayton with drugs. Sherrie went to Loyd’s house and told the parents to keep their son away from Clayton and the Gavan house. The next day, while taking Clayton to Pizza Hut, Sherrie saw Loyd again. Concerned, she followed him in her car and yelled at him to stay away from Clayton. Loyd allegedly grabbed something in his hand in his car. Sherrie, already outside her car, reached into it and pulled out a bat, walked over the Loyd and struck him with the bat. Though Loyd suffered no injury, he insisted on pressing charges.

The trial became quite a sensation, with many people unable to serve on the jury because they felt so much sympathy for Sherrie. Eventually, the court seated a jury and the testimony lasted only a day. After closing arguments and instructions, the jury deliberated and found Sherrie guilty. The court will determine sentencing at a later date, but she could face up to a year in the county jail.

The really interesting question about this case has to do with the defense. Assuming that Loyd had nothing threatening in his hand, could Sherrie still argue self-defense? Could the harm Loyd had done to her son support such a claim?

In Missouri, a defense to an assault is the defense of self or others. If someone attacks you or your family, for example, you have a right to defend yourself and your family. However, the concept of defense of self or others has a component of immediacy to it – the threat must be real and imminent, so that without some act of defense, harm will come to you.

In this case, Sherrie felt she had no choice but to keep Loyd away from her son. She tried talking with the parents, she tried warning off Loyd, but still Loyd seemed to hang around, making recovery so hard for Clayton. She testified she did what she had to do to save her son, and as parents we sympathize and may even agree. But as far as the law, the immediacy of the threat to Clayton did not require her to take a bat to Loyd. While one could make a good argument that Loyd, by pressing his supply of drugs to Clayton, posed a threat of imminent harm to Clayton because one dose could cause him to relapse or die, that would really be an argument to take out anyone who deals drugs to teenagers. At that point, as the State argued, we become vigilantes, taking the law into our own hands. Even though the police had let Sherrie down, she needed to work within the bounds of the law. She could have secured an order of protection; she could have chosen several other options. And that is what probably turned the jury – she had other options. Defense of self or others means you have no other options in the moment.

Sherrie made her case for defense of self or others – the facts allowed her to do that much. But the jury did not agree. But what if the jury had agreed? Or, what if her lawyer wanted to get the jury to ignore the law? If you have watched enough legal dramas on television, you will know this as jury nullification – appealing to a sense of justice to persuade the jury to ignore the law and do “right” by the facts. The whole area of jury nullification is controversial and hotly debated in legal and political circles. Some argue the existence of juries is to do “justice” especially when the law is less than just. It is fascinating territory, but generally not the way you want to go for a defense. It is a defense of last resort.

Sherrie had been offered a plea bargain that would have made everything go away – but that is precisely why she did not take the plea bargain. She wanted the public to know about the scourge of heroin and how it is killing kids like her son. We have to admire a woman with that much courage of her convictions (pun intended).

If you have questions about an assault case or self-defense, contact us – we can help.

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