How can anyone be expected to win a self-defense case?


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ccw_steve
June 6, 2011, 08:21 PM
I just read the Armed Citizen's Network article "Defending a Disparity of Force Shooting" that was posted by LPL on another thread.

After reading it, my first thought is "how would someone like ME ever be able to win a court case after a justifiable self-defense incident"? The guy in the article (Larry Hickey) had years and years of advanced training, and the support of many well known and well respected firearms instructors who flocked to his side to help him during the trials. Even with all of that support, the entire situation was a brutal struggle including misplaced evidence, poor police work, lying witnesses, etc.

I almost feel like it is better to be killed than defend yourself (almost being the key word); you don't have to go through years of court cases and potential prison time. I did not realize that evidence to validate your testimony literally may not be allowed in court based on a judge's opinion. I guess it is true what they say: you are guilty until proven innocent. Especially with a jury of "peers" who have little to no experience with firearms.

Comments? Am I too pessimistic here?

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ccw_steve
June 6, 2011, 08:26 PM
Sorry, just realized the 'Legal' topic would have been a much better place for this thread...feel free to move it Mods.

Deaf Smith
June 6, 2011, 09:07 PM
Have you ever noticed alot of people who do claim self defense win.

The real trick is to not be in 'grey area' as for the incident. Say you went looking for trouble, or you threatened the guy or you attacked first (or retaliated after the assailant had quit.)

You need to take LFI-1 from Mas Ayoob, or at least get his books on the subject.

Deaf

Bartholomew Roberts
June 6, 2011, 09:29 PM
Disparity of force cases are also very difficult. Anytime you are forced to shoot someone who is unarmed, even in a case like this, you are going to get a lot of scrutiny.

heeler
June 6, 2011, 09:47 PM
I think also it depends a whole lot in the state/city you live in and how firearms are viewed in said jurisdictions along with how the public in general in said areas feels about crime,especially violent crime.
I certainly would feel a bit more confident in Arizona,Texas,Wyoming,Montana,than I would facing the same music in New Jersey,New York,California,D.C.,etc.
But as we all know a jury can be a total crap shoot no matter where you live.

Frank Ettin
June 6, 2011, 10:48 PM
...I certainly would feel a bit more confident in Arizona,Texas,Wyoming,Montana,...?????????

Some tough cases recently have been in gun friendly States--

Larry Hickey (http://www.armedcitizensnetwork.org/images/stories/Hickey%20Booklet.pdf) in Arizona;

Harold Fish (http://www.haroldfishdefense.org/) also in Arizona;

Mark Abshire (http://thefiringline.com/forums/showthread.php?t=391091&highlight=mark+abshire) in Oklahoma.

I think you can improve your chances by thoroughly understanding the applicable and by both getting good training and maintaining proficiency so that you have the confidence in your abilities that will allow you to assess the situation and exercise good judgment.

Taking Massad Ayoob's MAG40 class (formerly called LFI-1) is also an excellent idea.

bratch
June 6, 2011, 10:58 PM
I think that having force options is important.

I can't help but think that if Larry had used pepper spray when the women first attacked him the outcome might have been much different.

If he was still forced to go to guns he would have at least been able to say that he tried a less lethal force option to stop the attack but the attack continued anyway.

Carrying a LL device is something I have been slacking on and need to remedy.

poihths
June 6, 2011, 11:05 PM
I have a hobby of following self-defense cases that show up in the media. The vast majority of the cases I've seen that went to trial were what I calll "bad-blood" cases--cases where an existing conflict between people who had decided to be enemies escalated over time until one of them tried to hurt the other, and the other used deadly force in response. Although these cases meet the idea of self-defense viewed narrowly--someone attacked someone else--it wasn't really self-defense; it was an ongoing fight over a span of hours, days or weeks in which both sides clearly chose to continue the conflict and continue the escalation. My impression is that police, prosecutors, judges and juries don't like those situations at all.

The other kind of case I see that goes bad is when someone truly is attacked through no fault of their own, responds with justifiable lethal force, and then goes overboard. Shots fired after the attacker is already down, shots that hit the fleeing attacker in the back, shots fired while chasing the attacker down a public street--again, the legal system does not like that stuff much at all.

Some justified shootings go bad for the justifiable shooter when the justifiable shooting causes collateral damage. A shot fired that misses the attacker and hits a bystander is not going to sit well with the legal system.

The last factor that comes to my mind is that some justifiable shooters handle the situation really badly. Throwing the gun away, fleeing the scene, refusing to cooperate with police--that sort of thing creates a strong impression that your self-defense claim is bogus. It is clear to me from my reading that bogus self-defense claims are pretty common.

To learn more, reading Massad Ayoob's books is a good place to start; attending a course on the subject from a reputable instructor is good; even spending an hour with an attorney in your area who has handled such cases would probably be a very good investment.

The most important investment of all, however, is to sit down and do some really clear, realistic, intellectually honest, emotionally dispassionate, thinking based on tangible, demonstrable, factual evidence as opposed to knee-jerk reaction, fear-based stereotypes, internet-based urban myth and so forth.

What is the actual legal environment where I live? What actually is my security situation? What kinds of threats am I realistically likely to face? What will I use lethal force to defend, given the very high costs I am likely to pay for doing so?

I hear a great many people substitute prating, chest-thumping, ranting, gear-bragging and similar BS for the clear, cold, fact-based thinking they need to do on an ongoing basis on this issue. Fortunately for them, actual lethal-force encounters are rare enough that they may well be able to get through life without ever having the weakness of their thinking exposed by crunching into a nasty reality.

JohnInFlorida
June 6, 2011, 11:40 PM
poihths,

Now that I've reached my 60th year, I'd like to think that I will be able to exhibit "the clear, cold, fact-based thinking" you mentioned.

You make your point extremely well and hopefully the "chest beaters" will think long and hard, BEFORE a situation arises, about just how messed up their lives can/will become the moment they draw a weapon in a situation that is not "imminently life threatening".

Far too often we see questions on these forums that begin "can I shoot ... ?" ... when in fact the person should be asking (of himself) "MUST I shoot, or is there something else I can do to prevent having to shoot?"

I guess the bottom line is that even if shooting is justified, proving that is likely going to cause one to utter what ccw_steve said in the OP ...

"I almost feel like it is better to be killed than defend yourself ..."

Sobering thoughts, for sure.

heeler
June 7, 2011, 12:32 AM
Mr.Fiddle,I do not for one minute discount that even in gun friendly states that individuals that have used firearms in self defense have been gone after by the legal powers that be.
But at the end of the day I still would rather be a resident in Arizona,Texas,or other gun friendly and anti crime states than some place like New Jersey,Cook county Illinois,D.C.,etc.
And once you have gone so far as pop a cap on someone in what you thought at the very,very quick moment that you have done so and in what YOU have thought vitally necessary for your survival,then all that training you speak of goes right out the window because now sir it becomes a legal matter and even in Texas or Arizona there is always some ankle biting left winger in the states criminal justice league that will do his/her level best to turn it against you to your very detriment.
So again even facing those odds where would you like to be living when said shooting YOU got yourself involved in...New Jersey/New York or Arizona/Texas,etc.??
Again though I never discount what can take place in our present legal system.
Let's just hope and pray the over all majority of us never,ever have to go through what the poor hapless,but now free, and perhaps penniless, Mr. Hickey had to go through.

Frank Ettin
June 7, 2011, 12:46 AM
...But at the end of the day I still would rather be a resident in Arizona,Texas,or other gun friendly and anti crime states than some place like New Jersey,Cook county Illinois,D.C.,etc....And at the end of the day, I would rather know what I am doing and be able to articulate the reasons I concluded it was necessary to use lethal force, than rely on the supposed mercy of the local authorities and public.

And speaking of Illinois, see this (http://articles.chicagotribune.com/2009-01-09/news/0901080598_1_starks-case-2nd-slaying-clerk).

heeler
June 7, 2011, 12:56 AM
Well,yea...if you carry you are supposed to know the law.
You may have gone to several high dollar shooting/training camps and legal seminars in which you were trained to the finest edge...
But there in lies the rub.
There may be some District Attorney that thinks it best that YOU be made an example of even though he/she was not present when you had to go so far as use your firearm to defend your life and well being in what you thought or knew was justifiable.
Again,not wanting to drag this on and on but many times it helps to be in a more friendly gun state/locale than not.

Frank Ettin
June 7, 2011, 01:19 AM
...You may have gone to several high dollar shooting/training camps and legal seminars in which you were trained to the finest edge...
But there in lies the rub.
There may be some District Attorney that thinks it best that YOU be made an example of even though he/she was not present when you had to go so far as use your firearm to defend your life and well being in what you thought or knew was justifiable....Or maybe some DA decides it would be a good idea to make an example of you since you chose to go about in public with a gun and yet you skimped on your training.

There are no guarantees. There are no magic amulets for protection. But the more you know, the better able you are to make good judgments, the better prepared you are emotionally, the more proficient you are with your tools -- the luckier you'll probably be.

heeler
June 7, 2011, 01:32 AM
Or maybe the DA will go after the state legislators who chose to write the law that such cretins as us should be able to obtain a carry license without going through law school along with an advanced degree in every tactical shooting class available complete with ballistic charts,lead poisoning realities, and advanced anger management training so we can carry out our second amendment rights.
Hmmm....What a thought.

Frank Ettin
June 7, 2011, 01:39 AM
...cretins as us should be able to obtain a carry license without going through law school...Speak for yourself. I've been to law school and practiced law for more than 30 years. :D:D:D

heeler
June 7, 2011, 01:41 AM
And I actually figured as much thus my quip about the law school spill.
Oh well....carry on

Frank Ettin
June 7, 2011, 01:42 AM
And thus my liberal use of smilies.

catnphx
June 7, 2011, 01:44 AM
It depends on where in Arizona the event occurs. Tucson is very liberal and I'd hate to be in a situation there. Phoenix is a much better place to be for this type of event. I think it goes without saying - but I'll say it anyway - that I hope none of us have to deal with this.

Frank Ettin
June 7, 2011, 01:46 AM
Harold Fish was around Flagstaff.

Good&Fruity
June 7, 2011, 01:47 AM
At the end of the day, it comes down to the Jury. If even ONE member of the jury has doubts about your guilt, you walk.

Frank Ettin
June 7, 2011, 01:50 AM
At the end of the day, it comes down to the Jury. If even ONE member of the jury has doubts about your guilt, you walk. No, you have a hung jury and can be re-tried. Larry Hickey endured two hung juries until the DA decided to dismiss the charges.

9mmepiphany
June 7, 2011, 01:53 AM
A preferred way to go about surviving a use of force incident is three-fold

1. Train to be proficient with the weapon(s) you might use...not just practice, but actually get training
2. Become familiar with the Law...not what you think it is, what it really is
3. Limit your exposure...stay away from gray areas in either weapon/ammo selection or tactical choices.

If you follow these three rules, it really won't matter where you choose to live

heeler
June 7, 2011, 01:53 AM
Emm..Depending on locale maybe more with the Grand Jury than the trail court jury.
Many a man has walked in Texas after a Grand Jury ruled a killing as justifiable homicide,according to the law on the books of our fair state.
Still,I would rather avoid having to deal with the situation if at ALL possible,the legal system being what it is and all.

wideym
June 7, 2011, 01:54 AM
I do agree that flyover country courts are more resonable when it comes to self defence shootings. There are exceptions, but mainly I've noticed that charges just aren't filed or grand juries "no bill" defendants in a self defence shooting.

I have noticed however that large cities in the western and southern states are becoming more and more anti-gun and tend to file charges or at least make self defence shooters lives difficult more often than smaller rural cities and towns.

Frank Ettin
June 7, 2011, 01:58 AM
A preferred way to go about surviving a use of force incident is three-fold

1. Train to be proficient with the weapon(s) you might use...not just practice, but actually get training
2. Become familiar with the Law...not what you think it is, what it really is
3. Limit your exposure...stay away from gray areas in either weapon/ammo selection or tactical choices.

If you follow these three rules, it really won't matter where you choose to live Succinctly put, and I agree.

leadcounsel
June 7, 2011, 02:10 AM
You can "win or lose" a good shoot based on things you do immediately following the shoot.
1. Document with 911 and cops
2. Inform the police that you were threatened with deadly force and felt in fear for your life.
3. Have an attorney on retainer in advance.

Kleanbore
June 7, 2011, 08:19 AM
Posted by heeler: But at the end of the day I still would rather be a resident in Arizona,Texas,or other gun friendly and anti crime states than some place like New Jersey,Cook county Illinois,D.C.,etc.So would I , but the subject here is about defending self defense case.

It is important to not confuse laws that concern the ownership and carrying of firearms with use of force laws. There have been a number of well publicized cases of self defense in Illinois recently, some of them in Cook County, that did not result in the charges against the defenders. Fiddletown posted a link to one that took place in Lake County that could well have resulted in charges anywhere else. The use of force laws in California and New York State are fairly reasonable. Some years ago, Bernard Goetz shot four people in the Bronx, where carrying concealed is not a realistic legal option, and while he was prosecuted, his self defense case was successful.

The firearms laws in Arizona are quite permissive, but if one shoots someone else, one had better be justified and have some evidence to support his claim of justification.

And they do prosecute murderers in Texas.

heeler
June 7, 2011, 08:38 AM
No doubt about it that they prosecute murderers in Texas and usually quite severely.
But there is a big difference here in murder and justifiable homicide and what constitutes it.
Just as a lot of jurisdictions have draconian anti self defense laws on the books other areas of the country dont put such onerous yokes on the citizens.
Hence more states are coming forth with Castle Doctrine laws.
Frankly the last thing I ever want to do is get myself in a shooting no matter how right I am and if it does happen I pray I am in a friendly state so to speak in regards to self defense laws.
And as has been mentioned even that might not be enough to keep you out of prison.

TexasRifleman
June 7, 2011, 09:01 AM
One thing to keep in mind in all these cases is that these people were all STILL ALIVE to go to court and battle it out. Beats the alternative.

If you shoot someone you can pretty much bet on being arrested. If you manage to avoid that you are extremely fortunate.

In Texas, if they die you WILL go before a Grand Jury, prosecutors have no choice but to prosecute homicides whether they believe them justified or not, so don't get too worked up thinking location is a big piece of it.

Sebastian the Ibis
June 7, 2011, 09:38 AM
How can anyone be expected to win a self-defense case?
I just read the Armed Citizen's Network article "Defending a Disparity of Force Shooting" that was posted by LPL on another thread.

Step 1: Google and read the self-defense, and firearms statutes in your state. God forbid you wind up in a bad situation, you will to be tried under the laws of your state. The laws of AZ, TX, NJ, NYC, CA are absolutely irrelevant if you shot someone in WA. National writers and "legal experts" always try make it seem like there is one universal law of whatever they are supposedly an expert. This is usually crap, they just say it is so that they don't have to study the laws of all 50 states.

Step 2: Find a Criminal defense attorney now before you need him so that you know each other if you ever need him. You want your attorney to be driving to meet you the minute after you call. The chief reason is that your attorney can talk to the police without it being used against you, you cannot. He also knows the law a hell of a lot better than you, so let him do the talking.

Step 3: STFU until your attorney gets there.

The first three steps are free.

Step 4: Pay a criminal defense attorney in your state to explain what exactly to do in your state if you are involved in a shooting. You might not have to even pay for it, organize a group of people to hear his shpeil and he will probably do it for fee - lawyers are small businessmen too and jump at giftwrapped marketing opportunities.

Kleanbore
June 7, 2011, 10:02 AM
Posted by heeler: ...a lot of jurisdictions have draconian anti self defense laws on the books...If you are referring to a duty to retreat if such is safely possible, that was the law everywhere in the land before 1800-something. Is it "draconian". They didn't think so centuries ago.

It can make a defense of justification more difficult, but in states that now have a stand your ground law or case law, an attempt to retreat may be very sound tactically and may provide an important point in a defense of justification.

Somewhere along the way, the concept that a man's home is is castle ceased to apply in many areas. That did not make self defense within the home unlawful, but some people encountered difficulties in demonstrating a reasonable belief that deadly force had been necessary for self defense. Laws have been passed in some areas to state that an unlawful entry (sometimes "with force") provides the occupant with a presumption that imminent danger exists.

In some "gun friendly" states the stand your ground law does not exist, and in some, there is no castle doctrine. In some states in which one does not have a duty to retreat and in some in which there is a castle doctrine, it is very difficult to obtain the right to carry a firearm.

The only other area that I can think of in which a self defense law may be considered "draconian" has to do with presenting a weapon if deadly force is not justified. To my knowledge, that is lawful in only two states.

In all US jurisdictions, one may employ deadly force if it is immediately necessary to defend oneself against an imminent threat of death or serious bodily harm, whether or not one may lawfully own or carry a firearm.

Kleanbore
June 7, 2011, 10:08 AM
Posted by Sebastian the Ibis: Step 3: STFU until your attorney gets there.That can be very poor advice in a case involving self defense. See this (http://www.thehighroad.org/showthread.php?t=589272).

Also read the original article that spawned this tread. The defendant's having not followed the advice given in our "Sticky" may have compounded his legal difficulties.

catnphx
June 7, 2011, 11:04 AM
I thought this was a rather interesting development 6-7 months ago. Maricopa County is basicaly Metro Phoenix (which consists of several connected towns). The hope is that what happened to Hickey in Tucson doesn't happen in Phoenix.

News Release from County Attorney (http://www.maricopacountyattorney.org/newsroom/11-30-2010-Self-Defense-Review-Cmte.pdf)

Maricopa County Attorney Establishes Self-Defense Review Committee

PHOENIX, AZ (November 30, 2010) - Maricopa County Attorney Bill Montgomery today announced the creation of a Self- Defense Review Committee to evaluate specific cases involving the unlawful discharge of firearms, the defensive display of a weapon, and incidents of physical and deadly force where the right of self-defense has been asserted. Comprised of the same group of senior attorneys in the County Attorney’s Office who currently review officer involved incidents, the Committee will carefully and expeditiously review the facts presented in such cases prior to making final decisions.

“The Self-Defense Review Committee is designed to ensure that citizens legitimately exercising their Second Amendment rights do not incur significant financial and emotional costs as a result of having to defend themselves in the criminal justice system,” Montgomery said. “Reviewing these cases prior to charging whenever possible will also help ensure that the resources of the County Attorney’s Office are utilized to prosecute cases where a crime has actually been committed rather than on cases that ultimately get dismissed or result in an acquittal,” he added.

The objectives of the Self-Defense Review Committee are consistent with statutory laws (sometimes referred to as “Castle Doctrine” or “Stand-Your-Ground” laws) which recognize a citizen’s right to defend his or her family and property without fear of prosecution. Arizona law also justifies the use of both physical and deadly physical force if an individual believes such use is necessary to prevent criminal acts including aggravated assault, sexual assault, armed robbery, child molestation and kidnapping.

“Our recognition of an individual’s right to self-defense will not in any way change the standards we currently follow in determining whether to charge an individual with committing a crime,” Montgomery emphasized. “This office will continue to aggressively pursue cases we believe have a reasonable likelihood of resulting in conviction,” he added.

Bartholomew Roberts
June 7, 2011, 11:30 AM
One more shooting case you can add to the list, fiddletown is that of Gerald Ung (http://www.snowflakesinhell.com/2011/02/08/trial-for-gerald-ung-begins/) in Philadelphia. It is also unique in that there is actual video of the shooting (http://www.myfoxphilly.com/dpp/news/local_news/Old_City_Shooting_01_17_10) and the incidents leading up to it. Since his attacker was the son of a prominent attorney and the nephew of a city politician, the shooting also generated a lot of Internet buzz - you can still read all kinds of attacks on Gerald Ung's character and motives.

One thing these four shootings all have in common: all are cases where an armed person shot an unarmed person. Also, all four shootings happened in semi-public places, though two of the shootings took place in the yard or driveway of the person's own home.

I think another important point to understand is that making the "disparity of force" justification for a self-defense shoot can be very difficult. In the Ung video, he is attacked by several men ON VIDEO and he gets prosecuted. In the Hickey case, he was attacked by three people in his own driveway. In the Abshire case, he was attacked in his yard by six men. He had been knocked down into a ditch, had his front teeth cracked, and one man was sitting on top of him while another man kicked him.*

I can't help but think that if Larry had used pepper spray when the women first attacked him the outcome might have been much different.

That is a possibility. On the other hand, Mark Abshire did use pepper spray in an attempt to break up the attack on him and it didn't help the outcome of his attack or the decision to charge him. It is always nice to have options though as long as you've got the training to use them effectively.

Looking at all these cases, a couple of ideas are floating around my head:

1. Video cameras are ubiquitous these days. That doesn't mean you will be as fortunate as Gerald Ung; but you might be. However, most of them lack audio. It isn't enough to say non-threatening things, you want your body language to also convey "non-threatening" while at the same time maintaining your ability to respond to threats. One gesture I like is the open hands abot mid-torso level backing away. It is kind of a universal gesture of surrender, yet it keeps your hands in front of you and ready.

2. A humble attitude goes a long way. The Hickey and Abshire fights both began as arguments between neighbors that escalated. The Ung fight started with somebody bumping someone on the street at 2:30am. I wasn't there so I don't know if it would have helped; but I can't help but think that a quick apology would have been a lot more cost effective way of dealing with these situations - even if I didn't feel the other person warranted it. Having a gun on your hip means you really have to put some forethought into your normal interactions with people.

Quickbeam
June 7, 2011, 11:44 AM
Discussions like this often make me wonder whether it is better to kill a BG or not. I am relatively new to shooting and have been researching different practice regimens. One that resonates with me as being useful is "two to the body, one to the head." But that got me thinking that perhaps it might not be the best idea depending on the situation. I know that it is harder to defend yourself in court if you shot your attacker many times.

heeler
June 7, 2011, 11:46 AM
An interesting news release catnphx.
Thanks for sharing.

Bartholomew Roberts
June 7, 2011, 12:28 PM
Discussions like this often make me wonder whether it is better to kill a BG or not. I am relatively new to shooting and have been researching different practice regimens. One that resonates with me as being useful is "two to the body, one to the head." But that got me thinking that perhaps it might not be the best idea depending on the situation. I know that it is harder to defend yourself in court if you shot your attacker many times.

From a legal perspective, every single shot you fire from a firearm must be legally justifiable. The purpose of the firearm is not to kill your attacker; but to stop an immediate threat of death or serious injury, or other crimes as your state law may provide.

Once that immediate threat is gone, so is the legal justification for using lethal force. If you haven't already read it yet, you might read the Jerome Ersland thread in the Strategy and Tactics forum (http://www.thehighroad.org/showthread.php?t=594815) since it deals with that issue.

The Mozambique Drill (Two to the body, one to the head) was originated by Jeff Cooper as a response to a threat that failed to stop. The reasoning was that if you had shot the target twice in the chest and the threat was still continuing, it was better to shift your targeting to the head (either because the threat may have armor or because directly disrupting the central nervous system stops the threat faster than blood loss). again, the idea is to stop the threat as quickly as possible. This can result in the death of your attacker; but the point is to stop the threat to you, not kill the attacker.

The grey area here is what happens when you shoot the attacker and he turns to flee - is he just going for cover or has the threat stopped? This was one of the factors that complicated the Mark Abshire shooting. His attackers claimed that Abshire fired his second shot as his attacker was on the ground crawling away. Abshire claimed the man was twisting around as they fought and that he fired the shots in rapid succession. Forensic evidence at first appeared to support the attacker's claim; but the attackers themselves told different stories about how that happened and there was some argument about how the distance was determined by the forensic examiner. Ultimately, the prosecutor decided to let a jury make that call and they acquitted Abshire.

twomack2010
June 7, 2011, 12:38 PM
You know, a jury that was selected outside public view, i.e. not in an open courtroom, convicted pharmacist Jerome Ersland of first degree murder a couple of weeks ago. Unfortunately District Attorneys are far to often "politicians" and not sound minded legal professionals.

Now Jerome will sit in jail for killing a robber while his attorneys move the ball through the Oklahoma Court of Appeals.

The obfuscation of legal rights rules in this day.

TexasRifleman
June 7, 2011, 01:32 PM
Discussions like this often make me wonder whether it is better to kill a BG or not. I am relatively new to shooting and have been researching different practice regimens. One that resonates with me as being useful is "two to the body, one to the head." But that got me thinking that perhaps it might not be the best idea depending on the situation. I know that it is harder to defend yourself in court if you shot your attacker many times.

Big problem with that line of thinking though. Shooting someone is use of deadly force whether they die or not.

If you use something called "deadly" force with full intent NOT to kill them then you are pretty much saying "I didn't feel justified in using deadly force but I did anyway".

Well, if you shoot someone and you yourself don't feel justified in using deadly force, how can a prosecutor or jury justify your use?

That's why pretty much everyone says, teaches,and trains to "shoot my attacker until the attack stops". No more (as in the Oklahoma pharmacist case) and no less.

If he dies in the process that is not a conscious decision on your part and your defense doesn't get trapped in arguing whether you intended for him to die or not. You intended for him to stop attacking you and that's it.

brickeyee
June 7, 2011, 04:49 PM
Jerome Ersland of first degree murder a couple of weeks ago.

Shooting a person lying on the floor and no longer a threat is NOT a good idea.

Kleanbore
June 7, 2011, 05:42 PM
Posted by twomack2020 (referring to the Jerome Ersland murder conviction): The obfuscation of legal rights rules in this day.

This has been discussed at some length here (http://www.thehighroad.org/showthread.php?t=594815).

While it is lawful in most US jurisdictions to use deadly force when it is immediately necessary to prevent a forcible felony, no one, not even a sworn officer, has the legal right to employ deadly force because someone has committed a crime, unless a court has imposed the death penalty, nor does anyone have a legal right to employ deadly force against someone who does not represent a serious, imminent criminal threat.

In the Ersland case, the victim was an unarmed man who had been shot in the head in the course of committing a robbery and who was on the floor. The shooter returned from a place of safety after the robbery was over, obtained a second weapon, and fired five shots directly into him. There was no "obfuscation" of legal rights in that trial.

As Bartholomew Roberts has pointed out, the recent proliferation of security cameras has influenced more than one shooting investigation and trial. Had the Larry Hickey case for some reason been on camera, it is likely that Hickey would not have been charged. However, the two cameras at the Oklahoma city pharmacy sealed Ersland's fate; what might have been a manslaugher conviction became a conviction for murder in the first degree.

Bubba613
June 7, 2011, 06:43 PM
Only piece of advice needed:
Don't shoot someone who doesn't need to get shot.

If you can't figure out whether someone needs to get shot or not, you probably shouldn't be carrying a gun to begin with.
The celebrated cases are celebrated because they are rare. In some of the ones mentioned here I tend to think the guy was guilty anyway. In others, I tend to think there is more evidence than has been reported.
The worst thing would be for lawyers to make someone think twice before shooting just because he is scared of lawsuits.

heeler
June 7, 2011, 07:05 PM
No Bubba,the worst thing would certainly not be a lawsuit.
The reason I say this is because if they did not die and you were hauled before a jury trail and you lost then some sharp DA that handled the states prosecution of you would probably push for a conviction of aggravated assault with a deadly weapon and here in Texas the result would probably end up with a 25 year to 99 year sentence.
So a lawsuit would hardly be something at that point to be worried about.
And if they died and you were convicted of murder...Well it would not be pretty.
Obviously Mr.Hickey thought or knew he was well within his rights or felt like his life was in deep straits enough to shoot his attackers and look at the road he was sent down.

Last,for some bizarre reason neither my home computer or work computer will allow me to open the attached pdf. so I still have not read about the case and can only limp along with what I am picking up here one bit at a time.

Kleanbore
June 7, 2011, 07:31 PM
Posted by Bubba613: Don't shoot someone who doesn't need to get shot.

If you can't figure out whether someone needs to get shot or not, you probably shouldn't be carrying a gun to begin with.

That just about says it all. Simple and true.

However, for the neophyte, it's one of those "how do I know what I need to know" situations. How does one know that someone does "need to get shot"? That's where knowing the law comes in.

The worst thing would be for lawyers to make someone think twice before shooting just because he is scared of lawsuits [or criminal charges--added by me].He or she who thinks too long after the need presents itself will likely not have the need to prevail in a defense of justification, nor will someone who is not proficient in the use of a firearm. That's where training comes in.

Of course, it is best that the need-- the need to shoot, or the need to offset certain things that could harm one's defense, should defense be necessary-- not arise in the first place. That's where limiting one's exposure comes in.

Which brings us back to this:

Posted by 9mmepiphany: A preferred way to go about surviving a use of force incident is three-fold

1. Train to be proficient with the weapon(s) you might use...not just practice, but actually get training
2. Become familiar with the Law...not what you think it is, what it really is
3. Limit your exposure...stay away from gray areas in either weapon/ammo selection or tactical choices.

If you follow these three rules, it really won't matter where you choose to live.

One last thing--don't forget about the evidence. Evidence will be needed to win a self defense case. Don't let it slip away, don't tamper with it, and do not create any evidence that will work against you.

clutch
June 7, 2011, 07:55 PM
No, you have a hung jury and can be re-tried. Larry Hickey endured two hung juries until the DA decided to dismiss the charges.

I *thought* one could only be tried once on a charge. What abomination of legal theory brought that one about. (Yes, I know it happens, I know about prosecutors holding back a charge for another bite at the apple but I'd love to hear about the start of the slippery slope from someone that might be able to explain the legal theory.)

Thanks,
Clutch

9mmepiphany
June 7, 2011, 08:26 PM
One last thing--don't forget about the evidence. Evidence will be needed to win a self defense case. Don't let it slip away, don't tamper with it, and do not create any evidence that will work against you.
This is extremely important. You were there, you know what happened, you know what you did and why you did it.

This isn't always apparent to the arriving officers/investigators...you need to make sure that they know what to look for, where it happened and where important evidence is that will support your defense.

If you choose to say nothing at that time, which is completely within your rights, to assist in the investigation, the investigators will take a guess...an educated guess, but still a guess. Any evidence that is not taken into consideration or lost (due to being overlooked) is likely gone forever. Anything you, and/or your lawyer, later produce will not carry the same weight that it would if recovered/discovered at the scene by the investigators.

If the shooting victim or their friends tell a different story, while you remain silent, theirs will be the only version of what transpired there the investigators will have to consider when looking for evidence.

Remember that a claim of Self-Defense in a shooting is an Affirmative Defense. To use it, you need to first admit to the crime and then prove that it was justified...you need evidence for that

9mmepiphany
June 7, 2011, 08:33 PM
I *thought* one could only be tried once on a charge. What abomination of legal theory brought that one about. (Yes, I know it happens, I know about prosecutors holding back a charge for another bite at the apple but I'd love to hear about the start of the slippery slope from someone that might be able to explain the legal theory.)

Thanks,
Clutch
You can only be tried once if the jury reaches a verdict. When a jury is hung, it means they were unable to reach a unanimous verdict...either for or against. In such a case, the judge usually declares a Mis-trial.

You start over from square one. The DA can choose to re-file or just let it go away

Sebastian the Ibis
June 7, 2011, 08:40 PM
Quote:
Posted by Sebastian the Ibis: Step 3: STFU until your attorney gets there.

That can be very poor advice in a case involving self defense. See this.

I too am a lawyer, but I am not your lawyer. And in that capacity I will tell you what every criminal defense attorney in Miami Dade County will tell you – STFU! Since we have butted heads on this issue before let me explain my reasoning.

First, as per the article you cited, Mas Ayoob says STFU too:

5. Then saying something like, "I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."

So really all we are arguing about are these points

1. Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
2. Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
3. Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.
4. Pointing out possible witnesses before they vanish.

If you look at what I actually posted you will see I wrote “You want your attorney to be driving to meet you the minute after you call. The chief reason is that your attorney can talk to the police without it being used against you, you cannot. He also knows the law a heck of a lot better than you, so let him do the talking.” Your attorney can say each of points 1-4 without any risk since he can talk to the police without it being used against you, you cannot. And he knows the law a lot better than you. If you have a relationship with a criminal attorney he will get there quickly, that’s how they do business.

As to point 4, I’ll concede that witnesses may wander off before your attorney arrives. However what you really want is a record of the witnesses yourself. It’s nice if the cops have it too, but at the end of the day you need favorable witnesses, not the cops. Think of all the people freed by the innocence project because witnesses came forward to the police, which were never identified to the Defendant. In my area the standard A-form that goes from cops to prosecutors does not even have a line for the cops to write down witnesses and they never do. When I was at the State Attorney’s office a guy broke into a marked squad car, and we almost had to let him go because the cop didn’t actually see him do it and he forgot the name of his neighbor who saw it happening and screamed out the warning. You can and should take names of witnesses yourself without necessarily involving the police.

As to point 3, what “material” evidence that helps you is not immediately apparent? The BG’s gun that fell on the ground next to him? I think they will find that, Police canvas homicide scenes pretty well, IHMO. If the police cannot see it, there is a good chance you are wrong in thinking it is helpful. If you ask the police to walk around to the back of your garage so you can show how the BG was trying to steal your compressor, the cops are going to want to know why you shot him in the front yard- and now your attorney is going to have to explain to a jury how it is still self defense when you shot a guy who had been burglarizing your house but walked away when he heard you coming. If you said nothing your attorney can help you out with a much more compelling Self Defense story without involving the compressor. The average layperson will not know if such details are helpful or harmful so it is better to say nothing.

I have no problem calling 911, and saying “someone is breaking into my house, and describing him.” You probably have to if there is nobody else around. However, I would not say anything more than that. If you say anything else it is because you feel pressured in one way or another to help the police and that is completely the wrong mentality to have. Once you start talking and the adrenaline is flowing you say everything and cannot stop. Even cops do it; that is why police unions negotiate a 24 hour cooling off period for cops after a shooting before they have to make an official statement.

Saying “I’ll sign a complaint” against a dead guy you just shot makes you look like a world class *********. You may as well just tell the officer you are going to sue they guy for the cost of the bullets you pumped into him. Also, if you say “I’ll sign a complaint” the cop is going to say “for what?” and you are going to say something stupid, like “he was trying to steal my compressor out of the back of the garage.”

Finally I take special offense to this:

While one has a right to remain silent, clamming up is what the bad guys do.

The Fifth Amendment right to silence, like the Second Amendment right to bear arms is there for our personal protection against the government. It takes a real shmuck to say you personally should give them up so you do not look like a bad guy.

Kleanbore
June 7, 2011, 08:43 PM
Posted by clutch: I *thought* one could only be tried once on a charge.I believe that you are thinking of this, from the Fifth Amendment: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;"

The concept is one of "double jeopardy". Once acquitted, you may not be tried again by the same branch of Government for the same offense.

In a criminal trial, the verdict must be unanimous--either way.

One may be tried again if the jury fails to reach a verdict, if the judge rules that something else has resulted in a mistrial, or if an appeal by a convicted defendant results in the verdict being thrown out by a higher court--provided that the prosecution still wants to pursue the case.

The movie "Twelve Angry Men" would have been a very short one had the Henry Fonda character's one vote been sufficient to bring about an acquittal.

Frank Ettin
June 7, 2011, 09:43 PM
I *thought* one could only be tried once on a charge. What abomination of legal theory brought that one about....9mmepiphany and Kleanbore beat me to it. A failure of a jury to reach a verdict (i. e., a hung jury) is not the same as an acquittal (i. e., a unanimous verdict by the jury of "not guilty").

If you are acquitted by a jury, you can not be re-tried by the same governmental entity (e. g., the State) for the same crime. But you might be subject to still being tried by a different governmental entity (e. g., the federal government) for a different crime arising out of the same event.

And if the jury only failed to reach a verdict, you can be re-tried.

...I too am a lawyer, but I am not your lawyer. And in that capacity I will tell you what every criminal defense attorney in Miami Dade County will tell you – STFU! Since we have butted heads on this issue before let me explain my reasoning... I'm a lawyer as well, although I'm no one's lawyer here; and I'm not giving legal advice. Nonetheless, I stand by what I wrote as posted here (http://www.thehighroad.org/showthread.php?t=589272) (and see here (http://www.thehighroad.org/showthread.php?t=589269) for discussion).

Finally I take special offense to this:


While one has a right to remain silent, clamming up is what the bad guys do.
The Fifth Amendment right to silence, like the Second Amendment right to bear arms is there for our personal protection against the government. It takes a real shmuck to say you personally should give them up so you do not look like a bad guy. You're welcome to think I'm a schmuck. You also called Massad Ayoob a schmuck, because this came from him originally (and you spelled it wrong). It's also consistent with the recommendations from Marty Hayes. So, I'll stand by my statement.

If you are claiming self defense, you will need to put forth evidence establishing prima facie that your use of lethal force satisfied the applicable legal standard for justification in self defense. It will be to your benefit that the investigation start off on the right foot and that the investigating officers at least have in their minds that this may have been self defense. Keeping completely quiet, however, may affect their perception and thus how they begin to look at evidence.

If you can't control yourself, you may well be better off shutting up. But as Sam1911 wrote here (http://www.thehighroad.org/showpost.php?p=7287707&postcount=29):

....Here we study strategies and tactics, skills and mindset, through which we attempt to elevate our responses above those basic levels attained by "most people" or even "gun-owners" in general. We work, think, and practice to give ourselves a more complete, more competent, and hopefully more universally successful counter-action in the event of a violent confrontation.

I would consider this discussion a direct continuation of that effort. Yes, some folks will be successful fending off an attacker if they just draw and point a gun. But we don't practice for that. We practice having to move, shoot, take cover, reload, shoot from a retention position, even shoot in a close grapple with an attacker right on us, etc. A more complete and effective set of skills to improve the success of our defense.

Some people will be exonerated of wrong-doing if they simply shut up and let whatever evidence the police find on the scene (or whatever stories they are told by others) exonerate or condemn them. We practice a more complete, effective, direct, and proactive response to the questions of responding LEOs, calculated to improve the success of our defense.

Just like "tool-set < skill-set < mind-set" works for what happens before a shooting as well as once the bullets start flying, it works after a shooting as well.

And while an LEO involved in a shooting generally has 24 to 48 hours before he is required to give a detailed statement, he is usually expected to immediately give a preliminary statement, to help preserve evidence and facilitate the apprehension of any subjects who may have left the scene.

heeler
June 7, 2011, 10:30 PM
I am beginning to get the impression there are a lot of attorneys on this website.
Dont talk...Get an attorney....Talk...You will appear guilty if you dont...
Ugghhhhhhh.

9mmepiphany
June 7, 2011, 10:41 PM
The Fifth Amendment right to silence, like the Second Amendment right to bear arms is there for our personal protection against the government. It takes a real shmuck to say you personally should give them up so you do not look like a bad guy.

I gather you are referring to the section which states "nor shall be compelled in any criminal case to be a witness against himself"...which is commonly referred to as the Right to Remain Silent in the Miranda warning.

However, you do give up that right when using Self-defense as justification for committing a homicide...it is an Affirmative Defense

While criminals are presumed to be innocent and charges need to be proven against them in court, this is reversed when you want to use Self-defense as a justification for the crime which you'll first be required to admit to have committed.

Now I should say that I am not a lawyer...but my wife is...and while I have stayed in a Holiday Inn recently, it wasn't last night. Most of my experience has been on the the investigation and collection of evidence side of these cases...but I have good friends who are very good Criminal Defense Attorneys

catnphx
June 7, 2011, 10:43 PM
Big difference between getting your a$$ kicked and fearing for your life. If I'm just getting my a$4 kicked the gun stays in its holster but if I'm fearing for my life and I didn't start the mess then out if comes.

Kleanbore
June 7, 2011, 10:45 PM
Posted by Sebastian the Ibis: If you look at what I actually posted you will see I wrote “You want your attorney to be driving to meet you the minute after you call. The chief reason is that your attorney can talk to the police without it being used against you, you cannot.The reason you want your attorney present is that when you are questioned he can advise you about whether to answer. We are not talking about your being questioned here.

Your attorney can say each of points 1-4 without any risk since he can talk to the police without it being used against you, you cannot. He can point out evidence and witnesses? Not at the outset, I'm afraid. You were there, he was not, and may not be there until it is too late.

As to point 3, what “material” evidence that helps you is not immediately apparent? Read the article about Larry Hickey for a little hint.

Frank Ettin
June 7, 2011, 10:53 PM
Big difference between getting your a$$ kicked and fearing for your life...Plenty of folks have been killed by unarmed assailants -- especially multiple unarmed assailants. And if you're carrying a gun, your unarmed assailant can quickly become an armed assailant.

heeler
June 7, 2011, 11:19 PM
And on that note fiddletown we had a high school coach that was messing around with another mans wife last year and said husband caught them in a parking lot,threw one punch and killed the coach.
Of course the coach died a day or two after the incident but he was killed by a punch..One...So it can most definitely be lethal.
So it goes to reason if several people are punching,kicking you the risk goes up.

Bartholomew Roberts
June 8, 2011, 10:54 AM
And on that note fiddletown we had a high school coach that was messing around with another mans wife last year and said husband caught them in a parking lot,threw one punch and killed the coach.

And it doesn't have to be an especially big or well trained person either, there is a 5'5" 142lb 22yr old woman who is on trial in Illinois right now for killing a man with a single punch (http://abcnews.go.com/US/woman-trial-killing-rapper-punch/story?id=13724992). The guy had accepted a $5 bet to be punched in the face by a woman. Her punch burst an artery in his neck and he died from a brain hemorrhage.

azmjs
June 8, 2011, 05:42 PM
The best thing to do is to be sure that you use force only when truly appropriate and permitted by law.

Art Eatman
June 9, 2011, 10:56 AM
The thread is becoming circular...

Nuff fer now.

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