Gun Laws & Courts -  Gun owners and self-defense law (731 views) Notify me whenever anyone posts in this discussion.Subscribe
 
From: EdGlaze DelphiPlus Member Icon Posted by host7/20/13 4:31 PM 
To: All  (11 of 21) 
 541.11 in reply to 541.10 

Common mistakes in self-defense shootings
by Marty Hayes, J.D.
President and founder of the Armed Citizens' Legal Defense Network Inc.
and in his capacity as an expert witness, has worked on
dozens of murder and assault cases over the years.

One of my favorite sayings is "he snatched defeat from the jaws of victory." It happens all the time in the real world of self-defense, where an otherwise legitimate act of self defense is clouded by mistakes the defender made either before, during, or after the act of self defense. Sometimes the error can be corrected at trial, but many times it can't. In studying and working on self-defense cases over the years, I have seen a few common themes which can turn a justified shooting into a crime, at least in the minds of the jury.

Chemicals

The very first way to get you arrested and prosecuted for what would be an otherwise legitimate use of force is to use a gun while intoxicated, or even after a couple of drinks. Being under the influence opens a wide door for the prosecution, wide enough to convict you. Juries do not like drunks. They really do not like drunks who are handling guns. And they really, really do not like drunks who use deadly force, then claim self-defense.

I have worked on several cases where the armed citizen had been drinking, and in all cases, the drinking played a major part of the prosecution's theory of the case. Even when the level of intoxication was minor, below the legal limit, the issue is brought up by the prosecution. Sometimes it is the only negative issue in the case, so instead of attempting to defeat the self-defense claim, the prosecution claims he was intoxicated (even if he wasn't). Of course, they likely cannot link the intoxication to any wrongdoing regarding use of deadly force, but they use it to smear the good name and reputation of the armed citizen. Juries will likely see through that, but why take that risk?

Training

Secondly, can you document your training? You do have training in use of deadly force in self-defense don't you? Society demands (through court cases involving police use of force) that officers must receive competent, relevant and up to date training in the use of deadly force in order to avoid a negative outcome in a "failure to train" lawsuit. You see, people can and do make mistakes. But, society and the courts will often times forgive a mistake made in good faith, but will likely punish the individual if the mistake was made through lack of training and/or education.

I believe it will only be a matter of time before this same philosophy becomes a standard in the world of the armed citizen. Take it from a guy who has trained over 15,000 people in the use of deadly force in self defense. You want that training under your belt and you want it documented. Having deadly force training can be brought up on your behalf at trial, if it can be reasonably shown that you had the training, and relied upon the training in your decision making process. Opening that door at trial means that you can likely bring in your instructor or instructors to discuss the training you received, which by extension means you get to educate the jury as to what you knew at the time of the incident. Failure to have this training and failure to document it means you go it alone at trial. Because I teach firearms for a living, I have an extensive training resume, and I know that I can call upon any of my instructors to come to court for me and discuss the material they taught. It's like walking around with the "A-team" of firearms instructors in my pocket for back-up, only they shoot better!

 

  • Edited March 10, 2014 3:48 pm  by  EdGlaze
 
 Reply   Options 

 
From: EdGlaze DelphiPlus Member Icon Posted by host7/20/13 4:32 PM 
To: All  (12 of 21) 
 541.12 in reply to 541.11 

Gunpoint Another common theme in self-defense prosecutions is when a person commits an aggravated assault (pointing a gun at another person but not being justified to do so).


There is a distinction between drawing a gun as a warning to people who might be getting ready to attack, and drawing a gun as a warning to people who might be getting ready to attack and pointing it at them. The distinction is often up to 10 years in prison for the latter, if convicted of aggravated assault, (a felony) compared to a year in jail for the misdemeanor crime of brandishing. Additionally, if the armed citizen has a clean record, he can often plea bargain the brandishing charge to a deferred prosecution, (resulting in no criminal conviction and restoration of his gun rights). If an aggravated assault is plea bargained, it is often times to a lessor felony conviction, and loss of gun rights.

 

 

 

photo HandOnGunHayes_zps9ef5a2d8.jpg
Hand on gun, in bladed position will likely not get you arrested but this position, coupled with the command to "stay back," will likely communicate the message effectively. And you are just a moment away from drawing if necessary.

 

But, why does a person get into this trouble in the first place? Likely it is a combination of failure to know the law regarding when you can display a gun as a warning, combined with lack of confidence in your skill to use a gun for self-defense. Both these conditions can be addressed with professional training. And, compounding the problem is often times the armed citizen doesn't think the incident was important enough to call the cops, and when police do show up to investigate the "man with a gun" call, the armed citizen is hard-pressed to convince the police that HE was the victim, not the individual or individuals who claim you pointed a gun at them and threatened to shoot them.

My advice is to avoid drawing the gun unless you absolutely need to do so, avoid pointing the gun at anyone unless you absolutely need to do so, and then call the police to report the criminal activity which caused you to draw the gun. If you cannot articulate criminal activity on the part of the aggressive parties, don't draw the gun.

An alternative to drawing the gun at all is simply to take a bladed stance, with gun side away from the potential attacker or attackers, and place your hand on the gun underneath your concealment garment, with a warning to back off. Your resolve to use deadly force if necessary is communicated, but there is no exposure of the gun.

We are also seeing more and more incidents of persons chasing after others who were burglarizing their house, or perhaps trying to steal your car or other property, and then shooting the individuals while they're attempting to get away, seem to be increasing. Typically, when the incident is dissected, the armed citizen had the right to threaten deadly force to stop the crime, but when the individual turns to run (or drives away in your SUV) you are going to be hard pressed to justify shooting. But it happens anyway. Society has no problem with armed citizens who use deadly force to protect life, but juries typically have a tough time justifying killing someone to stop a property crime.
 

  • Edited June 5, 2014 2:05 pm  by  EdGlaze
 

 
From: EdGlaze DelphiPlus Member Icon Posted by host7/20/13 4:43 PM 
To: All  (13 of 21) 
 541.13 in reply to 541.12 

 

 

 

 

Post Shooting Procedures Lastly, the way a person who has used deadly force in self-defense interacts with the police after the incident can also land him or her in jail. This is one of the most commonly discussed issues in the world of self-defense. Do you talk to the police after a shooting incident, or to you demand to talk to an attorney before answering the cop's questions? There are pros and cons to each side of the argument.

Let me explain. Those people who believe that the armed citizen should say nothing to the police primarily come from the defense attorney side of the argument. Most criminal defense attorneys spend a great deal of their professional time trying to mitigate statements their clients made to the police. If I were a criminal defense attorney who spent all his working time trying to explain to juries why his client told police an incriminating story, I would likely feel the same way. But remember, the vast majority of criminal defendants are actually guilty of criminal conduct. So whatever they would tell the police is either confessional in nature or false. In either case, the statements do not help the defendant.

One thing to understand is that if you clam up and refuse to talk to the police, you very likely will be arrested. You see you purposely killed someone and absent evidence of justification, you have committed the crime of murder.

The other side of the argument comes from the professional firearms instructor cadre, with people like Massad Ayoob, John Farnam and others explaining that you, the victim of a criminal assault, need to let the police know what was happening that caused you to fear for your life.

 

 

  1. You were the person attacked.
  2. You will sign the complaint against the individual, or be a witness at trial (depending on the jurisdiction you are in).
  3. There were witnesses to the incident, and telling the police who those witnesses are.
  4. There is evidence of that criminal attack, and pointing that out to the officers. And lastly,
  5. you recognize the seriousness of this incident, and would like legal representation before you give a formal statement to the police.

Taking this approach will not guarantee protection from criminal prosecution but at least you got your side of the story out to the police first. Assuming you tell the truth, that story will likely be given at trial too and your consistent statements will absolutely help your defense. And, by pointing out the evidence of the crime being committed against you, the police have an alternative crime to investigate.

Let's look at legal representation. What you say or don't say will both be used by the police to make a judgment call regarding whether not they will arrest you for a crime. The few critical minutes after an incident is not the time for you to start thinking about how you are going to handle this critical part of your self-defense incident.

Thumbing through the yellow pages to look for a self-defense attorney while sitting in police lock-up is a pretty poor legal defense plan. People spend hours and hours trying to decide what type of gun to carry or what bullets to use but ignore this important part of their response to criminal attack. Having an attorney to call after a self-defense incident is vitally important to your overall self-defense plan.

###

Related discussion:

Out of court statements

  • Edited March 10, 2014 3:54 pm  by  EdGlaze
 

 
From: wyrd0 DelphiPlus Member Icon7/22/13 10:20 PM 
To: EdGlaze DelphiPlus Member Icon  (14 of 21) 
 541.14 in reply to 541.11 

I don't mean to nay-say people who make a living teaching classes in gun use, but I don't think I've EVER heard of a case where it hinged on what courses the Shooter took or did not take...

After a year of dredging on the Zimmerman case, I don't think it was ever mentioned where he took any courses... (Yet we know he had to have at least ONE)

The 'gunpoint' issue is best solved by the advice "do NOT draw unless you can legally shoot".

Drawing IS use of deadly force, everything else done is as well. Yeah, yeah, yeah, you MAY be able to plea bargain down a criminal charge, but better yet is don't commit a CRIME!

___________

[the above was answered at: 1001.21]

  • Edited 7/30/2013 3:03 pm by EdGlaze
 

 
From: EdGlaze DelphiPlus Member Icon Posted by host7/30/13 2:59 PM 
To: All  (15 of 21) 
 541.15 in reply to 541.14 



Also see this discussion:

Stand your ground 
  • Edited 10/2/2013 2:35 pm by EdGlaze
 

 
From: EdGlaze DelphiPlus Member Icon Posted by host8/5/13 7:24 PM 
To: wyrd0 DelphiPlus Member Icon  (16 of 21) 
 541.16 in reply to 541.14 
I don't mean to nay-say people who make a living teaching classes in gun use, but I don't think I've EVER heard of a case where it hinged on what courses the Shooter took or did not take...

Also see this discussion:

 

 
From: wyrd0 DelphiPlus Member Icon8/5/13 8:58 PM 
To: EdGlaze DelphiPlus Member Icon  (17 of 21) 
 541.17 in reply to 541.16 
Interesting interview, but still never mentioned a case hinging on a specific course taken, or not.

Although interesting that some courses could be used against you, in his opinion.
I kinda think he was saying "take MINE, not those other guys" though.
 

 
From: EdGlaze DelphiPlus Member Icon Posted by host12/27/16 10:03 AM 
To: All  (18 of 21) 
 541.18 in reply to 541.17 

Improving Your Odds
by John Caile
23 Dec 16

If you are ever involved in an armed self-defense situation, it will become a clash between your attorney and a state prosecutor. And no matter how “justified” you may believe that your actions were, the outcome is never guaranteed. Contrary to the simplistic views often portrayed on television, there is no specific formula for the use or threat of lethal force in self-defense. Instead, there are fundamental principles of “common law” that will be applied to your case.

If you are lucky enough that everything just fell your way, you might get away with a brief investigation — and perhaps a court hearing — ending with no charges filed, which is the outcome we all hope to have. However, whenever a hearing judge, or a grand jury, is confronted with conflicting testimony, their default response is almost always to send the case to trial and thus “let the jury decide.”

At this point, prosecutors often try to get you to plead guilty to a lesser offense (e.g. misdemeanor simple assault rather than felony Assault with a Deadly Weapon). Depending on the circumstances, as well as your actions before, during, or even after the confrontation, your attorney may actually suggest that you “take the deal.”

Most of you, and especially followers of the USCCA, generally know (and practice) the fundamentals:

You are fully aware of your surroundings at all times.

You do everything possible to avoid confrontations, especially particularly stupid things like road rage.

You always look for a way out of a bad situation before it escalates to deadly force.

You understand what to say, and not say, to police following an incident, especially if shots were fired.

Finally, you have an attorney’s number programmed into your cell phone — and use it.

If you do go to trial, even if you’ve conformed religiously to the basic “common law” elements of self-defense, a zealous prosecutor will look for anything he or she can use to influence the jury. For example, since it is imperative that the jury see you as an innocent victim, prosecutors will try to convince the jury of the opposite — that you were a predator, and your attacker was the real victim. But you can win, especially if you avoid some common mistakes.

DO Sweat the Small Stuff

Your goal is to take away as many “tools” from the prosecution as possible. Thankfully, most of these are completely under your control, starting with your gun/ammo choice. Research shows conclusively that certain guns tilt a jury against the defendant.

This shouldn’t be surprising; after all, imagine a prosecutor holding up a nickel-plated, pearl-handled Desert Eagle (rather than a J-frame, Glock or XD). Stick with “standard” model pistols or revolvers; avoid anything that screams “Rambo” or “Jason Bourne” to the jury.

Same goes for ammo. In my carry classes, I recommend FACTORY ammunition from major manufacturers, clearly labeled “personal protection” or “defensive” on the box. NO handloads! And avoid “exotic” ammo — sorry, but ultra-high-velocity and/or fragmenting rounds are unlikely to be any more effective than good quality hollow-points, but a prosecutor will describe them as “cop-killer” bullets.

And watch your wardrobe! Having a jury see your T-shirt proclaiming, “Kill ‘em all! Let God sort ‘em out!” is not going to help your cause. Duh.

Finally, a warning about social media: Emails, Facebook postings and “Tweets” are all fair game. Before you hit send, imagine it being read to your (future) jury.

Be smart. Be safe.

  • Edited December 27, 2016 10:05 am  by  EdGlaze
 

 
From: EdGlaze DelphiPlus Member Icon Posted by host5/6/17 6:20 PM 
To: All  (19 of 21) 
 541.19 in reply to 541.18 

THE PROBLEM WITH HANDLOADS FOR DEFENSE
by Massad Ayoob
5 May 2017

For years, I’ve warned people that there are a couple of serious concerns with using handloaded ammunition for personal or home defense. The big one is forensic replicability when the shooter is accused, and opposing theories of distance become a factor.

How often does this happen? One time some years ago, that question came up on an internet debate. I looked through the ten cases I had pending at the time as an expert witness, and gunshot residue (GSR) testing to determine distance from gun muzzle to the person shot was an issue in four of them.  Forty percent is not what I’d call statistically insignificant.

I’ve found this to be perhaps the most visceral and contentious of gun forum debates. When I suggest to someone that the ammo he crafted himself might be a handicap in court, it’s as if they had just prepared a Thanksgiving feast for their family from scratch, and I’d told them “Don’t poison your family with that crap, go out and buy them some KFC.”

They react as if you had told them they had ugly babies.

Here are two very good write ups, at least one by an attorney, explaining how and why handloaded ammunition can muddy the waters if and when you find yourself in court after a self-defense shooting:

https://www.glocktalk.com/a/the-peculiar-problem-of-handloads-in-self-defense-shootings.18/

and

https://www.thehighroad.org/index.php?threads/carrying-https://www.thehighroad.org/index.php?threads/carrying-handloads-for-self-defense.618021/

New Jersey v. Daniel Bias, who was bankrupted by legal fees before the first of his three trials was over, and wound up serving hard time. Both of his attorneys were convinced he was innocent, and told me they believed that if he had simply had factory ammo in his home defense gun, the case would probably never have even gone to trial.

  • Edited May 6, 2017 6:21 pm  by  EdGlaze
 

 
From: EdGlaze DelphiPlus Member Icon Posted by host1/28/18 8:50 AM 
To: All  (20 of 21) 
 541.20 in reply to 541.19 

In Today’s Liberally Screwed-Up Society What is a Reasonable Self Defense Response?
Opinion by John Farnam
8 Jan 18

“Reasonable” Response.

A student asks:

“I’m in my 70s. When I’m the victim of an unprovoked attack by a younger, bigger, stronger person(s) who is using only his fists, elbows, knees, and/or shod feet, how much of a pommeling am I expected to absorb, and for how long, before I employ deadly force in order to stop the attack and thus prevent myself from being injured/murdered?

We have seen several instances where a single blow from a fist to an unprotected head proved fatal, many others where such a blow caused permanent, disabling injury and/or disfigurement.

Of course, ‘injury’ is easy to demonstrate AFTER it has been inflicted. But, the object of legitimate self-defense is to PREVENT such lethal/disabling outcomes. How can I persuasively demonstrate what didn’t happen?”

My comment:

No matter whom you ask, you won’t get a very satisfactory answer to that question, and mine (as follows) won’t be very satisfying either!

We all look for “safety” in “the law.” We ask ourselves, “When I strictly follow the law can I know that I will never be prosecuted?”

In fact, many naive instructors keep reiterating, “Know the law,” as if that were even possible, and as if that represents a guarantee that bad things will never happen to you.

If you were to read every law carefully, along with each ordinance, rule “guideline,” and regulation that could ever possibly apply to you as a gun-owner/carrier, particularly as you travel around the Country, there would not be enough years left in your life to complete the task!

Even then, the task would be largely an exercise in futility, because we no longer have a “nation of laws.” We have a “nation of agendas.”

Some laws, like our immigration laws for example, are openly, deliberately, and contemptuously violated every day, with no consequence! Laws against possession and use of marijuana are openly violated in entire states, with no consequence.

So then, what is “the law” when it can be ignored by state governments? What other “laws” can we all ignore?

I am today seeing officer-involved shootings which are completely justified, by any standard. The shooting then being the subject of civil suits, where cities don’t even put up a fight, as they dole-out untold millions of taxpayer dollars to the “bereaved” families of vicious, violent, (and mercifully dead) criminals but these innocent officers. Officers who acted properly and did correctly the job we pay them to do, are also being viciously prosecuted by politically-active prosecutors, who cynically see an unjust conviction merely as a career stepping-stone.

So, when you’re involved in a self-defense shooting, what will be important?

The factor that will most sway prosecutors is usually the way the event is reported in the papers and other news media.

When the headline is, “Local Gun-Nut Slays Honor Student,” you can bet the system will be under immense pressure to prosecute, while facts of the case shrink to irrelevance!

When the shooting is cross-racial, hang on to your hat! You may find yourself being prosecuted merely to mollify rioters!

When the shooting takes place during an election year, hang on to your hat! A political candidate may push for prosecution merely to court votes from a particular minority. We saw this exact phenomenon in the Zimmerman Case in FL in 2008!

So, where is “safety?”

There is no safety, but here are some things I can recommend:

1) Be a good person! Heaven knows none of us are perfect, but good people ever strive towards goodness, decency, and personal honesty. At the same time, be very good at minding your own business!

2) (a) Don’t go to stupid places.
    (b) Don’t associate with stupid people.
    (c) Don’t do stupid things.
    (d) Be in bed by 10pm (your own bed!).
    (e) Have a “normal” appearance.
    (f) Don’t fail the attitude test!

3) When you go armed, keep weapon(s) discreetly out of sight. Don’t talk about your guns. Don’t “show” your gun(s) to anyone. Don’t brandish your gun except for good cause.

4) When you must shoot, use your sights, press your trigger carefully, and hit with every shot.

5) Stop shooting when the threat(s) is clearly neutralized.

6) Don’t chase suspects!

7) Don’t flee the scene, except as necessary to preserve your own safety

8) Be first to the phone! Report the incident to police as soon as practicable.

9) Know what to say, and what not to say, to police. Know your lines!

10) Get your lawyer involved as quickly as possible

11) Be prepared for an unpleasant aftermath, endless media lies, PTSD, complete disruption of your life. Don’t expect anyone to be sympathetic, nor “understanding.”

12) Like any traumatic event, you’ll never really “get over it,” but as days and weeks pass, you’ll be able to put it in perspective, and move on.

I realize the preceding is inadequate and grossly oversimplified, but it may be helpful.

There are no guarantees!

 

 
Navigate this discussion: 1-10 11-20 21
Adjust text size:

Welcome, guest! Get more out of Delphi Forums by logging in.

New to Delphi Forums? You can log in with your Facebook, Twitter, or Google account or use the New Member Login option and log in with any email address.

Home | Help | Forums | Chat | Blogs | Privacy Policy | Terms of Service
© Delphi Forums LLC All rights reserved.