Mimesis Law
21 September 2019

Who Assumes The Risk, Robber or Victim?

November 4, 2016 (Fault Lines) – On Saturday night – Sunday morning in Charlotte, North Carolina, three men attempted to commit a robbery at a Pizza Hut, after the store was closed. During the robbery attempt, a store employee drew his own gun, then shot and killed one of the robbers, Michael R. Grace, Jr., 28. Grace’s parents are upset that their son was shot, and understandably so—it is their child and entirely natural that the parents would be in pain and hurting over the death of their child. But blaming the employee for defending himself and his fellow employees is wrong.

The parents, Temia Hairston and Michael Grace, Sr. say that Grace Jr. had previously worked at the Pizza Hut and wouldn’t have hurt anyone; that he was just going through some hard times. They claim that he was only trying to provide for his own son.

There’s a problem with that. According to police, at least one of the robbers (Grace Jr.) was armed. Armed robbery in North Carolina is a Class D felony, punishable by up to thirteen years, four months in prison. Second, if he used to work at that Pizza Hut, as his parents claim, there would be a good chance that the victims would recognize him. In many cases, former employees who are armed won’t take that chance; they’ll kill the victims rather than take a chance of going to prison.

His mother, Hairston, said:

It was an act of desperation, but I do not believe that Michael would have hurt anyone.

That’s not how it works. If the felon is carrying a gun with them when they are committing the felony, the victim may presume that the felon intends to use it against the victim, and may respond appropriately. North Carolina law codifies that presumption, stating that:

“A person who unlawfully and by force enters or attempts to enter a person’s home, motor vehicle, or workplace is presumed to be doing so with the intent to commit an unlawful act involving force or violence.” NC Gen. Stat. 14-51.2(d).

When you enter a closed business, brandishing or displaying a firearm, that pretty much meets the definition of “unlawfully and by force.” The employee was clearly within his rights to defend both himself and the other employees.

Hairston also claims that the shooting was personal, stating:

This wasn’t a body shot. This was a head shot. My son was shot in the left side of his head just behind his ear. A head shot is personal.

Yeah, it’s personal. If someone shows up and tries to rob me with a gun, it’s personal. What the hell does she think was going through the minds of the victims? I can tell you what they were thinking. They were wondering if they were going to be the next Taylor Friloux, killed in a robbery by a former employee. Or Chaabane Tandji, killed by a former employee in a planned murder and robbery. Or the Wendy’s massacre in New York, where a former employee killed five and wounded two others. So yeah, it’s personal, and if a head shot is the fastest way to ensure that Grace Jr. and his accomplices don’t kill the victims, that is what the employee needed to do.

And then Hairston makes the comment that takes the cake. She said:

If there was to be a death, it was not the place of the employee at Pizza Hut. That is the place of law enforcement.

What the hell? It is “the place of law enforcement?” She expects us to believe that she would have been okay if it had been a police officer who shot and killed her son?

How about it was not the place of Grace Jr. to enter that Pizza Hut with a gun, and that he assumed the risk when he decided to commit an armed robbery?

Okay, I know that assumption of risk is a torts concept, a defense in a civil lawsuit, but the concept is applicable here, too. It basically states that if the party (Grace Jr.) voluntarily participates in a dangerous activity (such as armed robbery), then that party assumes the risk that is inherent in the activity.

I can positively say that committing an armed robbery in Texas carries with it the chance of being shot and killed by the victim. I assume that it carries the same risk in North Carolina. It’s a foregone conclusion that if you are going to rob someone, and that person is armed and has the chance, they are going to shoot you before you can kill them. It’s common sense.

Ms. Hairston and Mr. Grace Sr., I’m sorry that you lost your son, it is something that no parent should go through. But it’s not the fault of the robbery victim, it is the fault of your son. If you have to blame someone, blame him. He both created and assumed the risk.

2 Comments on this post.

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  • Turk
    4 November 2016 at 10:16 am - Reply

    Boo, hiss.

    While you are correct in concept, it isn’t really, in my view, blogworthy. A mother has gone through the devastating loss of a child.

    Lashing out at someone, anyone, is a perfectly normal human reaction. Clarity of thought is not easy, nor really to be expected. This is, after all, an event that just happened.

    Now if this was a lawsuit, my reaction would be wholly different. Because the lawyer is the one charged with having that clarity of thought and saying “no.”

    But simply berating a mourning mother is, in my view, a cheap shot, even if initial press interviews say things that make no sense.

    • Greg Prickett
      4 November 2016 at 7:10 pm - Reply

      I disagree.