Shooting People from a Car in Alleged Self-Defense Is No Crime in Arizona
No witnesses saw the gruesome end of a road-rage clash between Scottsdale lawyer David Appleton and ex-rodeo cowboy Paul "Tom" Pearson in the dark parking lot of a CVS Pharmacy on the evening of November 10, 2011.
As Appleton tells it, speaking publicly for the first time about the incident, the "moment of truth" came as he flailed against the seat belt of his blue Toyota FJ Cruiser, his neck firmly in the grasp of the bigger man reaching through the driver's-side window with his left hand.
"He used an expert chokehold," says Appleton, now 61. "He had big hands, and I'm a little guy . . . His middle finger was on my right carotid [artery], and his thumb was on my left carotid."
The lawyer says he tried to peel the viselike grip off his neck with one hand, breaking off part of the fingernail of his pinky. It was the only injury he suffered in the fight with Pearson, a 50-year-old family man with a wife and three daughters who was co-owner of a Phoenix auto-parts store.
At that fateful moment, each man had his other hand occupied.
Through the whole exchange, Pearson held his phone, his cousin in Wyoming listening on the other end.
Just below the Toyota's window, Appleton gripped his five-shot double-action .38-caliber Smith & Wesson "Chief" revolver. He'd taken it from the glove box as the two exchanged words on Pima Road in North Scottsdale. Then, before Pearson stormed up to the Cruiser's window, Appleton says, he "transferred" the gun from his right to left hand and kept it "hidden" from Pearson's view.
"When he first ran up and started abusing me, he said, 'You don't have a gun, do you?' I didn't say anything. You never reveal you've got a gun." That's what he was taught in a firearms class he'd taken years ago.
The incident began after a routine day in the life of the 36-year defense attorney. He visited a client in jail. Went to court. Met some friends at Sweet Tomatoes for dinner, where he consumed no alcoholic beverages. Driving north on Pima Road on his way home, he says, Pearson, in his silver Honda Ridgeline, cut him off and taunted him at a stoplight. They exchanged obscenities.
It's unclear why the two men became so angry at each other. But a touch of road rage was nothing unusual for Appleton, who'd called 911 on two separate occasions earlier that year to report altercations with other drivers. Still, there's no doubt that Pearson played a role in what happened next.
When the light turned green, Pearson began tailgating Appleton and followed him for more than two miles, the attorney says.
Pearson lived in the Los Gatos subdivision off Pima Road and was on his way home from work at the auto-parts store. As they continued north, the two road-ragers passed the light for the Los Gatos turnoff. It's clear that the former professional rodeo rider simply could've turned left at that light and gone home. But he tailed Appleton up the road a little farther to the CVS, where Appleton turned in.
The two vehicles stopped, and Pearson got out of his Honda and approached Appleton's Toyota. He grabbed the lawyer's wrist, but Appleton says he was able to break free. Then, according to the lawyer, Pearson used the clamp-hold on his neck.
Appleton says he realized the time had come to act — or die.
"I'm getting lightheaded. I'm starting to lose consciousness," Appleton says. "And so I displayed the gun."
He raised his weapon. Pearson, he says, only "squeezed harder."
He says Pearson told him in a strangely even voice, "Don't shoot me with that gun." He says Pearson still was holding his neck.
The lawyer, a self-described marksman, says he aimed for what he thought was a non-fatal shot to his attacker's abdomen. But the bullet he fired severed Pearson's spine.
Pearson didn't let go immediately, Appleton says, causing him to wonder for a brief moment whether he'd need to fire again. Then, Pearson staggered backward and collapsed to the ground. Seconds later, the lawyer called 911 to report that he'd shot a man. A few minutes after that, police had Appleton on his knees at gunpoint.
Except for details like the 911 call, most of this information comes from just one source — Appleton. Pearson's cousin in Wyoming heard yelling and heard Pearson say, "Don't shoot me with that gun," but not much else. The pharmacy didn't have security cameras outside. Pearson was alive but unresponsive when help arrived minutes later. He was rushed to Scottsdale Healthcare Thompson Peak Hospital, where he was pronounced dead just after 8 p.m.
Some evidence of a struggle was found, a Scottsdale police report shows:
The broken nail on Appleton's little finger. A few popped buttons on his shirt, two of which still were in the Toyota (Appleton says a third fell outside when he opened the door after the shooting). Blood and gunshot residue were discovered on the Toyota's window frame, and the driver's-side door mirror was pushed inward and marked with a faint imprint of the fabric of Pearson's shirt.
Amber Metz, a crime-scene specialist, noted in the police report that she observed "the right side of [Appleton's] neck, continuing toward the front of his neck and around the left side of his neck, was red . . . The left side of his neck was a lighter shade of red than the right side."
No other officers noted redness on Appleton's neck. In a Scottsdale police interview room about 10:30 that night, Appleton told Officer Mark Cristiani that if he'd had the "presence of mind" to drive away, the incident never would've happened. But, he says, if he'd driven away, Pearson probably would've kept chasing him. He says he stopped partly to "placate" his pursuer.
Appleton tells New Times much the same thing, saying he simply didn't think to drive away when the unarmed man attacked him.
Yet, even if Appleton's version of the events is accurate, it appears that he should've done just that — driven off. Appleton had the keys in the ignition, the engine running. He could've put the Toyota, weighing more than two tons, in gear. In front of him, the parking lot was clear.
He was, in a sense, safe.
Under Arizona law, though, there's no "duty to retreat" if you're threatened. And your car, like your home, is your castle — a place in which you're presumed automatically to be justified in killing an intruder unless prosecutors can prove otherwise.
Which is why Scottsdale police and Maricopa County Attorney Bill Montgomery failed in their attempts to get criminal charges against Appleton to stick.
The death of a 17-year-old black kid in Florida at the hands of an overzealous block-watch captain last year caused people across the country to wonder whether self-defense laws go too far.
The facts of the February 26, 2012, shooting of Trayvon Martin should be familiar, given the vast publicity the trial of George Zimmerman got last summer.
The story goes like this:
Martin, while visiting his father in Sanford, Florida, buys some Skittles and an Arizona Iced Tea at a 7-Eleven. He draws the attention of Zimmerman, a man who takes his unpaid job as a citizen cop so seriously that he'd called police about 50 times in the previous two months, usually to report black people in the neighborhood who looked suspicious to him. On the night of the shooting, Zimmerman tells a 911 dispatcher he intends to follow Martin, and the dispatcher tries to discourage him. A confrontation between the boy and the 28-year-old man results in the shooting death of Martin.
Zimmerman's legal case ultimately focused not on Florida's "stand your ground" law but rather on the idea that Zimmerman acted because he was in fear of imminent serious physical injury or death — the classic self-defense claim.
Still, the 2005 National Rifle Association-supported Florida law, which has spread in various versions to about half the states in the nation — including Arizona — became a convenient catchphrase for the news media and gun-control advocates.
In August, following Zimmerman's acquittal by jury on July 13, Trayvon Martin's mother, Sybrina Fulton, spoke at a Phoenix forum on racial profiling and appealed to state lawmakers to change this state's version of the stand-your-ground law. Republican U.S. Senator John McCain and Democratic state Senator Steve Gallardo joined the chorus of voices who said some kind of fix should be considered.
McCain said lawmakers needed to review the law.
"I am confident that the members of the Arizona Legislature will, because it's very controversial legislation," he told viewers of CNN's State of the Union show on July 21.
Local pundits say that's not likely. Governor Jan Brewer's spokesman, Andrew Wilder, says her office has no plans to push for changes.
It appears the Republican-controlled Arizona Legislature is far more likely to bolster firearms and self-defense rights in 2014, if anything.
Todd Rathner, the state's NRA representative and a Tucson resident, says, "Arizona's self-defense law is pretty good — I don't think anything that weakens [it] would see the light of day in Arizona."
Rathner's take on the situation echoes that of many experts: If you have to shoot someone, this is the state to do it in. Statutes governing when deadly force can be used tilt strongly in favor of the person making a self-defense claim.
Not all cases of self-defense involve guns, of course, but the state's robust gun culture and the right to defend yourself go hand in hand. The same political forces that shaped Arizona into one of the most gun-friendly states in the country ("'Til Death Do Us Part," February 14) have tried to give every benefit of the doubt to law-abiding people who display or use their firearms against others.
Lawmakers even beefed up self-defense rights over the past few years, leading to this state's particular take on stand-your-ground statutes.
Statistics show more than a quarter of Americans personally own guns. Arizona, in spite of its reputation, has an average rate of gun ownership compared with other states. However, permissive gun-carry laws mean that vehicles on the road in Arizona are far more likely to contain guns. Any adult 21 and older with no felony record can conceal a loaded weapon in a vehicle. And in 2009, Governor Brewer signed a bill that makes it illegal for most workplaces, shopping centers, or public places to prohibit vehicles with guns in parking lots, as long as the weapons aren't visible.
Some may question the need to carry a loaded gun in a car, an activity that in many states constitutes a serious crime. But it's easy to imagine a scenario in which a gun might come in handy while on the road.
Young father Alexian Lien, who on September 29 was chased for miles on New York City freeways by a vicious motorcycle gang, could have used a handgun with the sort of high-capacity magazine that's now banned in his state. When the gang finally managed to stop Lien's Range Rover behind a throng of traffic, one thug bashed in the driver's-side door with a motorcycle helmet, a viral video of the crime shows. The video mercifully ends before showing what happened next. Lien was pulled from his vehicle, beaten, and slashed in the chest and face with knives — all in front of his horrified wife. He survived.
Most real-life self-defense cases aren't as clear-cut. They don't involve such an obviously mismatched fight, or video evidence.
According to the Maricopa County Attorney's Office, most self-defense claims aren't really self-defense. They're murders or manslaughters in which the perpetrator tries to claim he or she is innocent. Exhibit A for fake self-defense claims is Jodi Arias, who infamously stabbed her boyfriend 27 times, sliced his neck from ear-to-ear, shot him after he was dead, then claimed self-defense during her trial ("Psycho Killer," March 14). She was convicted in May and, as of late October, still faced a possible death sentence.
You may not have qualms with violent actions like these: On October 6, a security guard caught 22-year-old burglary suspect Aaron Fisher in his Phoenix home and shot and killed him. On January 2, a Phoenix father discovered 35-year-old Jason Floyd Wilson allegedly trying to break into his daughter's bedroom and shot and killed the would-be intruder.
The cases of David Appleton, John Chester Stuart, and Don Purse represent a thinner margin in Arizona self-defense cases, where stand-your-ground laws begin to sound farcical — because the supposed victim is sitting in a two-ton vehicle, armed with a gun, and shooting an unarmed person standing outside.
Yet only one of the three, Stuart, has been criminally charged. He was convicted and faces up to 43 years in prison when he's sentenced in January.
A Maricopa County grand jury refused to indict Appleton earlier this year. And Purse, the owner of a mobile-home park who shot to death one of his former tenants last December, so far has escaped prosecution.
Each of the three shootings was preceded by a confrontation that could've been avoided easily by the gun owner, who claimed he was in fear of his life.
The cases show that for drivers with guns, "no duty to retreat" also may mean no duty to avoid trouble — and, sometimes, may mean no legal consequences.
Southern Meadows Trailer Park is a rough place in a rough neighborhood, though some of the older residents have cheered up their lots with fenced-off gardens or knickknack collections. Trouble of one sort or another is a routine feature of the enclave of roughly 100 mobile homes. The Sheriff's Office was called to the park at 4001 West Southern Avenue about 100 times for various reasons in 2011 and 2012.
The property is one of several similar ventures owned by Scottsdale resident Don Purse Jr. The 71-year-old pays personal attention to his properties, often going to Southern Meadows to help his staff manage the park. On December 11, 2012, while sitting in his pickup truck near the park's entrance, he shot and killed one of his former tenants.
Relatives of the dead man, Daniel Morales, 51, say they're concerned that Purse is getting away with murder, since he still faces no criminal charge.
At some point, the case probably will go before the self-defense review committee that Montgomery set up in his office in late 2010.
Montgomery said at the time of the committee's formation that he wanted to make sure people "exercising their Second Amendment rights" aren't unfairly prosecuted. Yet his panel of veteran prosecutors has given a thumbs-down to most claims of self-defense, the office's statistics show, electing instead to move forward with homicide prosecutions. To date, the committee has reviewed 61 cases. The office moved forward with criminal charges in 33, while four were "furthered," meaning prosecutors asked the referring police agency for additional investigation.
Just 24 of the cases were turned down for prosecution. Montgomery's office declined to release records related to his self-defense committee, including case numbers or any other identifying information about the cases it has reviewed.
Most of the time, an official "turn-down" means that the person claiming self-defense is off the hook. However, because no statute of limitations exists for murder cases, it's possible that some new information could arise in the future and force a re-opening of the case.
Whatever happens in the Purse case, he has two things going for him in his effort to avoid prosecution: The only other witness to the shooting was Morales' girlfriend, and there's physical evidence that Morales may have attacked his former landlord.
The deceased man has supporters, though. Lee Davis, who's married to Morales' sister, has hired a lawyer to review the case, seeking justice in the form of a criminal charge against Purse. He's talked to state Senator Gallardo a couple of times about the case and its relevance to the stand-your-ground debate. In an e-mail he sent Gallardo last month, Davis wrote that a detective had told him no decision had been made in the case, which had yet to be submitted to Montgomery's is office for review. Davis says detectives had requested a DNA test on "blood splatter" found in Purse's truck. Gallardo has yet to respond to Davis' e-mail.
Nancy Patricia Medina, Morales' girlfriend of 17 years, was in the Dodge sedan with Morales the day he died. It was just after 11 a.m. on a Tuesday, and the couple had driven to a mobile home where Morales' older brother, Leonard, lives to pick up some money Leonard owed them, she says. But, it turned out, his brother wasn't home.
Leonard Morales, 54, tells New Times that he had been at a doctor's appointment. Both brothers were living on government disability payments at the time. Danny Morales still was recovering from surgery he'd had for brain tumors a year earlier, according to relatives.
Medina says she knew they weren't supposed to be at Southern Meadows, since Purse had evicted them a few months earlier in a rent dispute. They'd lived in the park for nearly three years, she says, but their relationship with Purse ended poorly, with him accusing them of selling drugs and threatening to have them thrown in jail if they showed up at the park again.
As they sat in their car outside Leonard's mobile home, chatting with a friend in the park, they saw Purse's Nissan Titan come up behind their sedan. Morales decided it was time to leave, his girlfriend says. The pickup followed them westbound around the trailer park's circle loop, then eastbound toward the park's outlet to Southern Avenue, Medina says. Then, she says, the truck hit their back bumper once before Purse suddenly pulled it in front of their car and stopped, blocking their path. Overhead photos from a Channel 10 (KSAZ) news chopper show Morales' Dodge nearly touching the back bumper of the pickup, which has a clear path in front of it.
Medina says Morales got out of the driver's seat and walked over to Purse, who was sitting "waiting" with the door to his truck open. She says she heard the men exchange curses, and then Purse hit Morales in the head. At that, she jumped out of the passenger side and began to walk to the sedan's rear, putting distance between herself and the two angry men. That's when she heard the gunshot. Next thing she knew, she says, Danny was clutching his stomach, bleeding, and begging her to get him to the hospital. She started the car.
"If you leave with the car, I'm going to shoot you," a voice told her. She looked up to see Purse pointing the gun at her, she says. He told her to shut off the engine and get on the ground, which she did, until paramedics and a sheriff's deputy showed up.
The Scottsdale resident told a different story, according to a preliminary sheriff's report of the incident.
When Purse called 911, he informed a dispatcher that Morales had opened the truck's door "and started beating him," so he shot the former tenant. Deputy Ricardo Ledesma wrote in his report that he cuffed Purse and found his .45 in a holster on the truck seat.
The deputy noticed a "large cut" on the left side of Purse's face, which was bleeding. But Purse refused to go to the hospital. When Ledesma asked him to answer some questions, Purse "hesitantly replied that all he was going to tell me was, 'I have a concealed-weapons permit and have gone through classes. I feared for my life. The guy said he was going to kill me.'"
Morales could say nothing — he was found dead at the scene.
The Sheriff's Office report describes no witnesses to the shooting besides Medina, who told investigators the same story that she told New Times, records show. But, Medina says, when she called the MCSO a couple of weeks after the shooting in an attempt to press charges against Purse, a deputy told her he "didn't want to argue about it" and accused her of lying about who was driving the sedan the day of the shooting.
Supplements to the report don't include notes from the alleged phone conversation Medina describes. However, a toxicology report shows that Morales had meth in his system when he was shot.
Whatever happened, the fact that Purse was in his truck meant he had other options. He apparently knew that Morales was coming up behind him. Rolling up the window and locking the door could've been all that was necessary to defuse the situation.
Protecting citizens who claim they've been attacked in their vehicles or homes is a hallmark of a package of laws signed by former Governor Janet Napolitano in 2006 and hailed by the NRA. A legal change, added in 2010, clarifies that people defending themselves have "no duty to retreat" as long as they're in a place where they have a right to be and aren't "engaged in an unlawful act."
Now, not only can Arizonans be considered justified in using deadly force or threatening to use it against anybody trying to get into their homes or cars, they're presumed to be acting reasonably as long as the intruder is "unlawfully or forcefully" entering.
The burden-of-proof provision provides additional protection to those who claim self-defense. While prosecutors always have to prove their case beyond a reasonable doubt for the jury in self-defense cases, they're now tasked with proving that a homicide was not self-defense, as opposed to their defendants having to prove it was. Michael Bloom, a Tucson defense attorney, says this means that when people claim self-defense, the law gives them the edge if they have a smidgen of evidence that the homicide was justified.
Some exceptions to Arizona's self-defense laws exist. For instance, the defender must not have provoked the fight.
In general, juries are very sympathetic to self-defense cases, he says. With an armed-robbery defendant, "the jury looks over at you with hatred in their eyes. It's something they can't identify with."
But in a homicide with a self-defense claim, "they're very open to hearing what this is all about. Jurors would be scared to death if that happened to them."
New Times explored the burden-of-proof change in detail in a March 11, 2010, cover story ("Shoot to Kill") about the legal odyssey of Roger Garfield, owner of a Phoenix antiques store who shot and killed Bobby Cain, a transient who'd been hassling him inside his business.
The 2006 shooting case hinged on the testimony of numerous witnesses inside the store who pegged Garfield as a hothead who'd had problems with Cain previously and didn't need to shoot him. Garfield claimed Cain had threatened to kill him and had stalked him for months near the store at Seventh Avenue and McDowell Road. In their final confrontation, he said, Cain approached him menacingly. He felt Cain had him trapped and would overpower him, he said in a 2010 interview.
Garfield, convicted of manslaughter and sentenced to seven years in prison, was released that October and granted a new trial based on the 2006 standard that puts the burden of proof on prosecutors. Because of this retroactive provision, he's been free since, awaiting a retrial that's been delayed several times and is scheduled for December.
For his part, former County Attorney Rick Romley says he'd prefer Arizona laws rolled back to what they were before the 2000s. Back then, the clause that legitimate defenders had "no duty to retreat" couldn't be applied unless the shooter faced a threat of "imminent serious physical injury," Romley says.
As the law is now, there's no real downside to sticking around if someone threatens you, even if you're in a vehicle, because of the presumption of self-defense if someone tries to enter that automobile, he says.
"We've somewhat turned into a macho society," Romley says. The current self-defense laws "almost entice that type of mentality," he argues.
On the night of January 29, 2008, in North Phoenix, just a few miles from Appleton's fatal confrontation with Pearson three years later, the "macho" mentality Romley describes manifested itself in horrifying fashion.
John Chester Stuart, then 49, had been putting up Ron Paul campaign signs that day with his girlfriend, Cindy Cantrell, and they were on their way home. Orville "Tom" Beasley and his wife, Rebecca, had been at a golf tournament and a bar. Beasley was drunk; an autopsy later showed that he had a blood-alcohol content of 0.19.
Stuart and Beasley exhibited road rage when they encountered each other along Pinnacle Peak Road, a Phoenix police report shows. As is often the case, the origin of the fight isn't clear, but Stuart apparently thought Beasley was driving too slowly, and Beasley had flashed his high beams at Stuart when he passed. While stopped at a red light at the Tatum Boulevard intersection, Beasley rolled down his window and the two exchanged insults.
After the light changed, Stuart maneuvered his SUV (a Toyota FJ Cruiser, like Appleton's) into the path of Beasley's Isuzu. Beasley got out and approached Stuart's vehicle. That's the point at which witnesses' accounts vary.
Rebecca Beasley says her husband was shot while walking toward the Toyota. Stuart's girlfriend, Cantrell, says Beasley made it to the Toyota screaming, "I'm gonna kick your ass . . . You're going to die." Beasley reached into their vehicle, poking and hitting Stuart, she told a Phoenix Police Department detective.
Several other witnesses claimed to have seen one or both Beasley's arms in the Toyota. Still more witnesses told police that Beasley was shot in the head a few feet from the Toyota, while holding up his hands. Stuart didn't help his case by driving away from the scene. When he was arrested a short time later, police saw no marks that would suggest he'd been attacked.
Stuart represented himself during a November 2011 trial on charges of second-degree murder, managing to achieve a mistrial when the jury couldn't agree whether the slaying had been justified. Montgomery's office tried again, and a new jury on September 3 found Stuart guilty on the two counts.
Despite the lack of injury to Stuart, it's easy to see how the outcome of the criminal case — if one even would've been launched — could've been quite different if Cantrell and Stuart were the only surviving witnesses.
David Appleton looks frail when he walks into a coffee shop to talk to New Times, holding his shaking right arm at an angle across his chest. The shaking almost never stops during the interview. He was diagnosed with Parkinson's disease last year — he says his doctor told him that he probably was destined to get it but that it may have been triggered by the extreme stress of the shooting.
"Please mention that I pray for the [Pearson] family," Appleton says.
But he wants the public to know that he, too, has suffered because of the November 2011 incident. A divorced single man, he sold his home to pay legal bills and now rents a house in Phoenix.
"It's wiped me out financially and emotionally" and he suffers from nightmares and "intrusive thoughts," he says.
Appleton grew up in rural Murphysboro, Illinois, and got his first gun when he was 10. He practiced law for five years in his home state before moving to the Valley in 1982. "Never in a hundred years" did he think he'd ever have to use his weapon, he says. He has no criminal record.
Yet his previous road-rage incidents, two of which came in the same year he shot Pearson, shows that Appleton, at least in recent years, seems unable to let highway slights — perceived or otherwise — pass.
"Yeah, I got a road-rage incident here," he told a dispatcher after calling 911 from East Pinnacle Peak Road on March 22, 2011, before the fatal incident. "He's getting out of his, car and I've got my weapon . . . I'm gonna display my weapon right now."
"I don't want you to do that," the woman on the phone told him.
"He's blocking traffic . . ."
"Listen to me, sir, I don't want you to do it."
A third voice can be heard on the tape — apparently that of the other man, who tells Appleton, "I'm gonna report you."
"He says I'm the asshole," Appleton told 911.
The incident ended peacefully, with both drivers leaving and police filing no charges against either man.
Two months before that, on January 2, 2011, Appleton placed another 911 call from the road.
"Yeah, I got a road-rage person out here creating havoc," he said at the start of the call. He said a woman had been tailgating him, "trying to cause an accident" and that she'd zoomed off at "110 miles per hour" down Happy Valley Road. He said he'd followed her to a gated community.
The dispatcher told him it didn't necessarily sound like road rage.
"No, it was totally road rage," Appleton argued with her. The woman had been driving "as fast as she could within an inch of my rear bumper."
Police concluded that Appleton had been the aggressor, but no charges were filed.
It was eight months after the March incident — in which Appleton threatened to display his weapon — that he used the weapon on Pearson.
Scottsdale police Officer Mark Cristiani outlined his theory about Appleton during a conversation with Pearson's Wyoming cousin, whose name wasn't given in a transcript of the conversation from the police report. (As mentioned, the cousin had been on the phone with Pearson until the moment he got shot and had heard the two men arguing before the line went dead.)
"It's like a game; it's like he invites it," Cristiani told the cousin. "He's looking for the altercation. He's baiting people into getting into a fight with him. And, unfortunately, you know, [Pearson] took the bait and walked up to his car. We don't know what — what happened after that. We don't know."
What is known is that Montgomery's office tried to prosecute Appleton, but a grand jury — which, it's often said, would "indict a ham sandwich" — concluded that Appleton was justified.
Arizona law doesn't say which part of the body must enter or attempt to enter a vehicle before gun violence is justified. Reaching a single arm into an auto, as in the cases of Appleton and Purse, appears to be sufficient cause for legal roadside execution.
Yet for someone in a vehicle with the motor running, there's a better way of avoiding trouble.
"Get your ass out of there," says Jerry McCown, a veteran cop and adjunct firearms instructor for Glendale Community College. "That's the best thing you can do. [You] don't want to pull that trigger. The gun is the last resort."
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