HERO or VIGILANTE? Attorneys Marc J. Victor and Andy Marcantel Analyze the NY Subway Shooting
December 7, 2023
Criminal defense attorneys Marc J. Victor and Andrew C. Marcantel discuss a high-profile incident on a New York City subway system during an attempted robbery. The incident highlights the legal challenges surrounding self-defense, defense of third parties, and firearm possession in New York State. Their legal analysis provides a detailed breakdown of the relevant laws and the broader implications for lawful gun owners.
The Incident
The footage shows a man later identified as John Rote draw a firearm from his bag and fire two shots. According to the attorneys, Mr. Rote intervened in a situation where a homeless individual was reportedly mugging a woman. Upon Mr. Rote’s intervention and firing of the shots, the attacker fled the scene and was later arrested. However, Mr. Rote was also arrested shortly afterward at his workplace, not only for discharging the firearm but for possessing it in a restricted area.
“Allegedly before he fires twice he says quote, ‘leave her alone.’”
– Attorney Victor
Legal Grounds for Defending Third Parties
New York Penal Law § 35.15 governs the use of force in defense of oneself or others. This statute outlines circumstances under which one can defend a third party using the same level of force that the person being threatened would be lawfully allowed to use. However, New York imposes two additional requirements: the use of force must be objectively reasonable, and the person employing that force must have reasonably believed the use of force was necessary.
This standard is more stringent than in other states. For example, Arizona permits the use of defensive force based on a good-faith belief, even if that belief is later proven mistaken. New York’s tighter restrictions, particularly its anti-gun legislative environment, make lawful firearm use in public spaces difficult. Areas like Times Square are legally designated “gun-free zones,” adding another layer of legal risk for individuals who carry firearms, regardless of their intentions.
“The defense of a third-party statutes in these types of states, usually have some additional language in there that make it a little bit more legally difficult to defend a third party, and that’s the case here in this New York statute.”
– Attorney Marcantel
Deadly Force and the Defense of Property
One crucial principle discussed by the attorneys is that deadly force can never be used solely to protect property. Even if the stolen property is valuable, the law does not justify using lethal means unless there is a direct, immediate threat of serious bodily injury or death. In this incident, if the homeless man was attempting to steal a purse without using or threatening force, the action does not justify the use of deadly force from a third party.
In contrast, states like Texas provide narrow circumstances under which force can be used to protect property, including at night or when recovering stolen items. However, these exceptions are complex and rarely apply in public or crowded settings.
New York’s self-defense statute allows the use of deadly force to prevent certain serious crimes, such as kidnapping, forcible rape, and robbery – but only when such force is imminently necessary and proportional to the threat. The key terms here are “proportionate” and “necessary,” both of which are evaluated based on the circumstances and jury interpretation.
“There seems to be a third subsection that says… you can use some deadly physical force in certain areas if you thought it was imminently necessary to prevent one of those very serious crimes, and I was kind of surprised to see that.”
– Attorney Marcantel
Even if Mr. Rote believed he was stopping a robbery, the jury must decide whether the threat he perceived justified the use of deadly force at that exact moment. The attorneys note that New York juries, particularly in areas like Manhattan, are often skeptical of self-defense claims involving firearms, especially in highly populated public areas like subway stations.
Possessing a Firearm in a Gun-Free Zone
Regardless of the justification for using a firearm, New York law treats the possession of a firearm in a prohibited location as a standalone criminal offense. Notable places such as Times Square are designated as a “sensitive location” under recent state legislation. Thus, even licensed firearm carriers are prohibited from bringing weapons to Times Square.
In this case, Mr. Rote faces charges not only for the discharge of his weapon but for having the gun in a prohibited location. The attorneys make it clear that while one’s right to self-defense may still be considered, it does not excuse the unlawful possession of a firearm. Courts often treat the act of carrying a gun in such zones and the justification for its use as two distinct legal issues.
“You do not lose your right to self-defense even if your firearm was in a place or used in a place where you weren’t allowed to legally have it.”
– Attorney Marcantel
Legal and Ethical Responsibilities for Gun Owners
The attorneys emphasize the responsibilities that come with firearm ownership, including being aware of the laws in your jurisdiction. They emphasize that training, caution, and knowledge of gun-free zones are essential. A single misstep, even with good intentions, can lead to criminal charges.
Attorneys For Freedom Law Firm is solely dedicated to representing clients in self-defense cases through our Attorneys On Retainer Program (AOR). If you are interested in learning more about our AOR Program, please call 866-404-5112 or email us.
