‘Stand your ground’

New Canaan murder case dismissed under Alabama defense law

Kenneth Don Malone (Cullman County Sheriff’s Office)

CULLMAN, Ala. – Kenneth Don Malone, 60, of Guntersville, was cleared of murder and manslaughter charges Tuesday in the shooting death of Joshua Adam White, 35, also of Guntersville. The shooting happened on Monday, July 16, 2018 at a residence in the New Canaan community in Cullman County.  Circuit Judge Gregory Nicholas dismissed the charges under Alabama’s “stand your ground” law.

 According to the court record, White entered Malone’s property without permission, assaulted a guest on the property and ignored both multiple verbal orders to stop and leave, and even multiple warning shots fired by Malone. Malone testified that he struck White in the head with his pistol while White was strangling his guest, and that the pistol accidentally discharged, striking White in the head. White died after being transported to Huntsville Hospital.

Under Alabama’s “stand your ground” law, as cited in the dismissal order:

 A person is justified in using physical force upon another person in order to defend…a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force and is legally presumed to be justified in using deadly physical force in… the defense of another person pursuant to subdivision (5), if the person reasonably believes that another person is:

  • Using or about to use unlawful deadly physical force.
  • Committing or about to commit…assault in the first or second degree…”
  • A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.
  • A person who uses force, including deadly physical force, as justified and permitted in this section, is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.”

According to the order, “Under Alabama’s stand your ground law, generally speaking, a person has no duty to retreat if the person claiming the protection of the act is ‘not engaged in unlawful activity’ and is in ‘a place he or she has the right to be.’”

Since Malone was on his own property at the time of the shooting, the court said, “Malone had no duty to retreat on the occasion in question.”

The court also determined that Malone acted reasonably in his use of force when his guest lost consciousness as White was choking him.

Nicholas concluded that “White was the initial aggressor, that Malone’s belief that White was causing or about to cause a serious physical injury to (White’s victim) was reasonable, and that his use of deadly physical force in defense of (White’s victim) was justified under the circumstances.”

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W.C. Mann