A loaded 9 mm handgun was found in the car slain former New Orleans Saints defensive end Will Smith was driving Saturday night when he was shot and killed, New Orleans police said Wednesday.
The discovery of the weapon came after the police executed a search warrant Tuesday for the interior of Smith’s SUV.
In addition, police also say they found a fully-loaded revolver in the car of the man accused of shooting Smith, Cardell Hayes. Neither of the weapons appear to have been fired in the incident, according to law enforcement authorities.
Police also revealed Tuesday that in addition to Smith and his wife, Racquel, there were two other people riding in Smith’s car when the shooting took place.
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"During the argument, Hayes produced a 45-caliber handgun and opened fire, striking Smith and his wife. No one else was injured in the gunfire," police said in the statement released late Tuesday.
What the attorneys are saying
Hayes’ attorney, John Fuller, has suggested Hayes will be exonerated of the charge, saying that his client “felt threatened” by the presence of a second weapon prior to the shooting. Untill late Tuesday, police has said they found no second weapon at the scene of the shooting.
“It would be safe to say that not only did my client feel threatened but citizens that were out there in that block felt threatened as well and I think the unearthing of a second gun will lend itself to the defense of Mr. Hayes," Fuller said.
According to the attorney for the man who was a passenger in Hayes’ car that night, Kevin O'Neale, Hayes was protecting both himself and O'Neale when the shooting happened.
"Smith had a gun and was going to shoot it and Cardell may have saved both of their lives," attorney Tanzanike Ruffin told NBC Sports. "In my mind, this is justifiable homicide. We assume Will Smith is a saint but he's not."
Both Fuller’s and Ruffin’s statements suggest that Hayes may use a justifiable homicide – or “stand your ground” – defense if the case goes to trial.
Here’s a quick look at Louisiana’s justifiable homicide statute.
Does Louisiana have a “stand your ground” law?
Yes, in essence, it does. It is housed under the statute for justifiable homicide and reads, in part:
“A homicide is justifiable: When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.”
Will it matter to Hayes’ defense if there was a gun in Smith’s car?
It could, but to use a “stand your ground” defense for killing someone in Louisiana, several factors must come into play.
How does it work?
According to the Louisiana criminal code RS 14:20 for justifiable homicide, a “stand your ground” defense can be raised under certain circumstances and conditions. According to the statute:
- A deadly force homicide is justifiable if you reasonably believe you are in imminent danger of losing your life or receiving great bodily harm, and that the killing is necessary to save yourself or someone else from that danger.
- A person who is in a place where he or she has a right to be – including a public place – does not have an obligation to retreat before using deadly force, and, according to the statute "may stand his or her ground and meet force with force."
- During criminal court proceedings, a judge or jury can't consider the "possibility of retreat" as a factor in determining whether someone may, lawfully, use deadly force as self-defense.
- No one acting in self-defense under these laws can be civilly prosecuted for the use of deadly force.
What does the law not allow you to do:
- The law does not give you the right to aggressively pursue someone then claim self-defense.
- The law does not protect someone who is engaged in an illegal activity.
Does it apply in this situation?
It depends. Louisiana's aggressor statute (RS 14:21) reads: "A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict."
In other words, if a person starts a fight, then decides to stop fighting because he is losing, cannot lawfully pull a weapon then kill the person he’s fighting with. To use the “stand your ground” or justifiable homicide defense ,he must prove he tried to stop the fight and made that intention clear to the person he was fighting with.
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What happened on Saturday
According to police, the incident in which Smith was killed started when Hayes’ vehicle was rear-ended by Smith’s SUV. Smith drove off and Hayes followed, rear-ending Smith about a block and a half from the first incident. The two men argued, police say, then Hayes shot at Smith killing him and injuring his wife.
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According to a statement from New Orleans police, "Hayes was on the scene when officers arrived and identified himself as the shooter. Detectives detained and questioned Hayes. Based on the interview and evidence gathered from the scene, detectives arrested Hayes and booked him with Second Degree Murder. An additional charge for Smith's wife's injury is pending further investigation," the statement read.
Smith, 34, was drafted by the Saints in 2004 and played nine seasons with the team. The shooting happened Saturday night in the Lower Garden District of New Orleans. On Sunday, a judge set his bail at $1 million. He has not entered a plea.
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