Ellicottville Shooting

01/23/2020 2:06 PM | Anonymous

By Rob McNally, At Large Director

On November 4, 2019, a Cattaraugus County Supreme Court jury of 12 local residents stood up for this country’s right to selfdefense. The jury, overseen by the Honorable Judge Ronald D. Ploetz, handed down the not guilty verdict after only 45 minutes of deliberation.

The trial began October 30 with the prosecution putting on the case of felony Assault against Damien Marvin, a Salamanca resident. Testimony for the prosecution’s case attempted to point to Marvin as instigating a confrontation that began at the Villagio, a restaurant and club in Ellicottville, during an employee Christmas party on December 1, 2018; Marvin and his fiancée were attending it. The prosecution attempted to portray Marvin as the instigator who allegedly became jealous after two brothers, Brandon and Bryan Janesz, had been talking to Marvin’s fiancée.

The defense, led by Benjamin Smith of the Cattaraugus County Public Defender’s Office, presented additional facts that pointed to the Janesz brothers, both in their 40’s, behaving as bullies and attacking Marvin, 26. The brothers attacked Marvin, not just once but three separate times, as the club management was trying to calm the situation and remove all three parties from the location.

Part of the defense’s case presented facts that revealed the Janesz brothers attacked Marvin inside the club, which prompted their removal. Then, they waited outside the club door for Marvin’s removal, where they continued to instigate a confrontation against Marvin, both verbally and with fists. During the last of which, they reportedly ran a distance of 58 yards as Marvin was attempting to leave the scene. They then knocked Marvin to the ground, pummeling his head and face. According to testimony, Marvin once again backed away. When Brandon Janesz attempted to rush Marvin for a third attack, Marvin had already drawn his lawfully carried and possessed pistol and commanded Janesz to stop, three times, alerting Janesz at the same time that he had a gun. As Marvin perceived the threat persisting, he fired a single shot at Janesz which struck Janesz in the abdomen and ended the attack.

The jury agreed with Marvin’s actions by acquitting him of all charges

What remains to be seen is whether or not Marvin and his family will have to undergo further persecution through a civil suit by the Janesz. This is, frankly, almost always a secondary threat to criminal prosecution these days. Even if a case is clearly made and accepted for self-defense in such a situation, all believers in the Second Amendment and our rights for self-defense must be prepared to defend ourselves against criminal charges and then against a lawsuit for monetary damages.

While Marvin’s conduct was judged by his jury to be right and proper, there are those who will insist that because he fired at an unarmed man, he was wrong no matter what the circumstances. The jury in this case understood the lunacy of this belief and found the proper and lawful verdict in acquitting him.

We all must continue our defense against this state’s love of gun control efforts that make this state less safe - not safer. This case seems to confirm that.

While we had members of this organization present during the trial, the attendance was woefully low. An action alert was published to the four surrounding counties of Allegany, Chautauqua, Erie and Wyoming in addition to Cattaraugus County over a week in advance of the trial. Turnout from even Cattaraugus County members was disappointing. We went into this effort without the need for political rant, signs, T-shirts or showmanship. We wanted to simply show support for the defense and did so, but not nearly to the level that would have been appropriate.

This case also identifies the need for our members to educate all citizens on the power of Jury Nullification. In most states if not all states, the law prohibits the jury from being informed during their instructions on their right to this power. Simply stated, Jury Nullification gives the jury the ability to find a verdict of not guilty when their belief is that the law being enforced is unconstitutional in its very existence. That is not to say this is the situation in Marvin’s case. We don’t believe anyone would disagree with the presence of an assault law that protects the citizens from such conduct. However, in the case of gun controls such as Red Flag laws, mandatory storage laws, clearly unconstitutional pistol permit laws that require the state’s permission before purchase and a myriad of others that exist in this state, Jury Nullification can be a very useful tool for the citizens being oppressed.

Jury Nullification is and should be routinely taught and preached. Instead of seeking ways to avoid such duty, as citizens, we must learn that participation in a jury is a valuable means of discarding clearly unconstitutional laws that are forced upon us by a hierarchy of public servants who seem to believe they know what is best for us as ‘mere’ citizens. This is just another means of the checks and balances within our constitutional form of government and it puts power back into the hands of our citizens, where it rightly belongs. We must all strive to educate ourselves and others on all aspects of our Constitution or we stand very dangerously close to losing it all. 

A 2nd Amendment Defense Organization, defending the rights of New York State gun owners to keep and bear arms!

PO Box 165
East Aurora, NY 14052

SCOPE is a 501(c)4 non-profit organization.

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