It's not often that I peruse the aisles of Home Depot looking for a weapon that supposedly could kill a man, but I did recently, because I wanted to purchase a Nifty Nabber, manufactured by the Connecticut-based Unger tool company.
My intent was not homicidal. Instead, I wanted the 36-inch-long aluminum picker because it is the same brand that Phoenix resident and property owner Bill Russell said was used by Percell Bagley to attack him on March 27.
As I described in a recent column ("Gun in Hand," June 23), Russell shot the homeless man in what he said was self-defense. According to Russell, Bagley was sleeping in a rug on a vacant lot owned by Russell that Sunday morning as Russell was walking around the St. Matthew neighborhood picking up trash with the device, as he often does in the community just west of the state Capitol.
Russell told Phoenix police that he pulled at the rug, not knowing anyone was in it, planning to throw it into a bin. That's when, he said, Bagley jumped up, grabbed the picker, and swung wildly, yelling at him.
"He grabbed [the stick] that I was picking up trash with and started swinging it at me," Russell said in one of a couple of interviews I did with him. "I had a split-second decision to defend myself."
According to a police report, Russell fired two shots from a snub-nose .38 Special he had on him. One missed Bagley. Another lodged in Bagley's skull.
Bagley was taken to St. Joseph's Hospital. He was operated on the following day, and the bullet was recovered during surgery.
Despite neighborhood rumors to the contrary, he survived. He's since been transferred from St. Joe's, but the police are not releasing his whereabouts.
An ex-con who had a warrant outstanding for a parole violation, Bagley has family in Phoenix and a son who lives out of town. I've reached out to his Phoenix relatives, but they have not yet responded to my inquiries.
Amazingly, Bagley was well enough to be interviewed by police on May 2. Though "slow when responding to questions," he did recall a few details.
He said he had been living in a halfway house in Mesa and taking the bus to his workplace in the area. Two days before the shooting, he missed his bus to Mesa and stayed with a friend in St. Matthew.
He quit his job, picked up his last check, and rolled up in the rug to sleep on the night before the incident.
The report says Bagley believes he was awakened by a Mexican man, made to put his shoes on, then shot. Russell is Anglo, and there's no question that Russell shot Bagley.
"Initially, Bagley stated that he never got off the ground," the cop who questioned him wrote, "but later stated that he did not remember getting up off the ground.
"Bagley's last memory is of the subject shooting him. His next memory is waking up in the hospital three or four days later."
He told the officer that he wanted to prosecute and that he would testify in court.
As this column went to press, Phoenix police had not forwarded the case to the County Attorney's Office. PPD spokesman Steve Martos relayed to me that the detective assigned to the case planned to do so soon.
Which brings me back to the Nifty Nabber, and the use of deadly force.
Russell says he believes his life was in danger. Though Unger makes a couple of Nifty Nabber models, I asked Russell whether the one he had owned was three feet in length. He replied that three feet "sounds close," though he did not recall the brand name.
The device's aluminum shaft is lightweight and hollow with a trigger handle on one end and a two-pronged claw on the other.
Out of curiosity, I hit the picker on the side of my desk hard. Its shaft bent. I applied pressure from each end, with the picker over my knee, and was able to break it in half.
Arizona law states that deadly force can be met with deadly force, and one is under no obligation to retreat if attacked.
Specifically, the statute says that such force is allowable "when and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force."
Arizona also has a "castle doctrine" law, allowing the threat of the use of deadly force if a reasonable person believes it is necessary to stop a criminal trespass.
Let's assume for the moment that everything Russell has told the cops is 100 percent accurate. That Bagley, who was a little taller and little heavier than Russell, swung on him with the Nifty Nabber.
Would a reasonable person conclude that this was deadly force? Would a jury?
All I can say is that, personally, I would be more worried about a tough guy's dukes than a Nifty Nabber.
Having met Russell, he looks like a vigorous man who can handle himself. That being said, we don't know Bagley's mental state at the time. If Russell had chosen not to fight back, or flee, he could have been hurt. Perhaps even seriously.
Could he have been killed? Anything is possible. And if Bagley had gotten him down on the ground, well, even fists can kill.
The witnesses cited in the report did not see the shooting (though one told me she saw Bagley "swing" at Russell). And Russell is innocent until proven otherwise. He cooperated with police, allowed them to take DNA samples, and answered all their questions. He did not clam up and ask for a lawyer. He even attempted first aid on his victim, as they waited for first responders.
And, obviously, he has yet to be charged with anything.
According to Russell, Bagley was trespassing on his property. If so, he had every right to awaken Bagley, as he inadvertently did, and order him to leave.
But did he need to shoot Bagley? If Russell had not had his gun with him that March morning, what's the worst that could've happened?
I am not a lawyer, not a police detective, and certainly not a prosecutor. I have no idea whether, under state law, Bagley can be prosecuted — or prosecuted successfully.
Given that the Arizona Legislature shifted the burden of proof in self-defense cases to the prosecution, Russell might beat the rap should he ever be charged.
But this does not change my mind that some gun owners in Arizona are too quick to use their firearms. Too quick to draw and fire, when less-lethal means could suffice.
St. Matthew is a rough patch of sand, with a good deal of crime, drugs, homelessness, and prostitution. I would not blame anyone living there for packing heat.
Russell, who owns scores of properties in the neighborhood, told me that he has pulled his gun in the past.
"I've pointed my gun [at] people several times down in the neighborhood," he said. "It's been thieves. There's guys that were stealing the bulkhead right off my truck. There's guys that were ripping off my warehouse. There was all kinds of things."
As I mentioned in "Gun in Hand," Russell was accused of pulling his gun on a man in a 2010 incident.
The other man was using a metal detector on or near one of Russell's vacant lots, depending on whose word you take.
The man said Russell drove up and yelled at him, "This is the second time I fucking told you to get out of here."
The victim, who claimed he'd never seen Russell before, told police that Russell brandished a chrome .38 Special, pointing it at him, and ordering him to leave.
When cops interviewed Russell, his story differed from his accuser's.
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"William said [the victim] made a quick movement towards his vehicle like he was going to get something," reads the police report on the incident. "So William grabbed a hold of his gun. William said at no time did he ever point his gun at [the victim]."
Police found insufficient evidence to show that an aggravated assault had occurred. There were no witnesses, you see.
When I mentioned the incident to Russell during a face-to-face interview, he said he could not recall it, but he did not deny that the confrontation took place.
Russell can't be faulted for his candor. His use of a gun is another matter.