Charged with CCW violation after lawful shooting?

Discussion in 'Legal' started by Crusader103, Jan 30, 2012.

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  1. heeler

    heeler Member

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    It has only been a short few years that you could carry a handgun legally in your vehicle in Texas.
    However for years if you were traveling out of your county for over night you could as well.
    But the carrying legally in the vehicle is new in Texas and I am pretty sure that it is intertwined with the Castle Doctrine laws.
    Again I have never read or heard of a citizen that is legally allowed to own firearms(in Texas) that is in a justifiable shooting and is cleared by a Grand Jury of the shooting ever being charged with illegally carrying the firearm.
    Somewhere here perhaps,but I have honestly never heard of it.
     
  2. Zoogster

    Zoogster Member

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    heller said:
    Well keep in mind a big part of that many places is because those people are not often no billed by a grand jury.
    There is plenty of evidence to take them to trial for more serious crimes like murder/manslaughter and something as minor as just the illegal possession of the gun is less important unless those others charges don't stick.

    The illegal possession of the gun may influence the officers, detectives, and DA in how they view the individual and whether they pursue the murder/manslaughter/attempted murder/assault with a deadly weapon, etc charges.
    It also makes it less likely they will be no-billed by a gand jury (and only about half of states even use grand juries in many it is entirely up to the DA and detectives how things end up pursued.)
    So while not officially part of the reason they are tried, unofficially it means they are more likely to be tried than the same individual that was on their own property or otherwise someplace they could lawfully possess that firearm.
     
  3. Claude Clay

    Claude Clay Member

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    perhaps you were raised to be polite and you wished him to have it back

    ...one small piece at a time
    ----------------
    can't speak for other states but in CT black powder is not considered a GUN. even if it has powder and a bullet seated.
    put a cap on it and you are now in possission of a dangerous weapon. but, still not a gun.
     
    Last edited: Jan 31, 2012
  4. henschman

    henschman Member

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    The originally proposed scenario is one in which there is no question about the homicide being in self defense. Self-defense is always an affirmative defense to an unlawful homicide, so if that is truly the case, then legally there is nothing else the victim could be charged with except for the charge of unlawfully carrying a concealed weapon. The seriousness of that offense depends on the state. Here in Oklahoma, it is a misdemeanor. Other places, it is a felony. It also may be either a misdemeanor or a felony to carry in a prohibited place, depending on jurisdiction.

    Whether it was a misdemeanor or a felony, if the victim was a first-time offender, if he is even charged at all, he would almost certainly be offered a deferred sentence (one for which the offense is dismissed and removed from his record after he completes a certain amount of probation). The length of probation would be dependent on the seriousness of the crime in the jurisdiction. For instance, here in Oklahoma, I received a 6 month deferred sentence for violating this law (a misdemeanor). As an attorney, I usually see my clients get 2-5 years probation on their felony deferred sentences on a first offense, depending on the punishment range for the underlying offense. If it is a second or subsequent offense, instead of a deferred, the offender may be offered a suspended sentence (which means it stays on his record and he is sentenced, but the jail time is suspended as long as he complies with the terms of probation). If the offender has a lengthy criminal record, he is generally looking at some jail time as part of any plea deal. FYI this is kind of general information... this is how it works in most states, but some may be completely different (for instance, some states define a deferred sentence differently). And any time you're talking about plea deals, they vary by which DA's office and which ADA you're dealing with.

    Now the original premise of this thread was a situation in which the cops and DA's office see the homicide as unquestionably being self-defense. However, in the real world, there is no guarantee of that being the case... and the fact that you're carrying without big brother's permission will not help you any. Whether and/or how much it will hurt you might depend on the disposition of the cops and DA's involved. It is possible that you could be charged for some form of unlawful homicide (manslaughter, murder, etc.) if the police believe there was some sort of mutual combat, or that you did something to provoke the other person (which they are more likely to think if they see both people involved as criminals). Everything Massad Ayoob says, about immediately presenting the situation to the police that you were the victim and the dead guy is the attacker, would be especially important here. Saying something like "officer, that man attacked me," and then saying you want to talk to a lawyer before you say any more, might be a very good idea. It is also highly likely that the responding officers will ask you if you have a concealed carry permit. I think here, it would be a good idea to stick to what you said about not wanting say anything until you've talked to a lawyer. That could go over better for you than just flat out saying that you don't have a permit (which would instantly make them think "criminal").

    Ultimately, if you are charged with some form of unlawful homicide and you don't take any plea deals, it will be up to a jury to decide whether you are guilty of the charges. The state will have to prove every element of the offense, and the absence of any asserted affirmative defenses, beyond a reasonable doubt. In a trial, the DA will probably be able to get in the fact that you were carrying illegally, and he will use it in closing argument as one more reason why the jury should believe you are guilty. This could turn some jurors against you, and make them more likely to decide that self-defense did not apply.

    I suppose one option would be that if you are ever involved in this kind of self defense shooting, to just high tail it and not wait around for the cops. Obviously there are a variety of ways that it may be tracked back to you, but there are precautions you could take to prevent this... and if it isn't tracked back to you, you definitely just avoided a potentially sticky situation. Even if it does come back to you, there would be nothing preventing you from asserting self-defense at that point... though it is a bit risky, since leaving the scene AS WELL AS carrying illegally could pre-dispose the police, DA's, and/or jurors even more toward thinking you committed murder or manslaughter or whatnot.
     
    Last edited: Jan 31, 2012
  5. heeler

    heeler Member

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    Zoogster...I am not talking about anyone that is charged with murder or manslaughter.
    I am saying that over the years there have been numerous incidents in which the person doing the shooting did not have a concealed handgun license,but the shooting was ruled a just shooting by a Grand Jury,hence,no charges were filed, and after that I have never heard or read that the shooter was charged with carrying an illegal firearm.
    Perhaps they were,but I have never heard of this here in Houston if that person was not prohibited from owning a firearm.
    Not sure where you are going in post 27.
    But perhaps you can find where charges were filed against the person,but again, I have not heard of it before if it was a legal shoot and the shooter could legally own a firearm.
     
  6. Superlite27

    Superlite27 Member

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    Several years ago, James McCullough (an off duty security guard with a permit to carry only OPENLY while AT WORK) was in a Nebraska Walgreens when some teenagers attempted to rob it with a sawed-off shotgun (which wasn't loaded...HA! Brilliant idea, Sherlock!) After the thugs pointed it at several bystanders, Mr. McCullough pulled a pistol out of his waistband and shot the gunman four times, killing him.

    He did not have a permit to carry concealed, therefore, the district attorney decided not to press charges for illegal concealment because (get this) he determined that it couldn't be proven that it was completely concealed at all times during the incident!

    HA! This just goes to show you that the authorities have HUGE leeway in determining how the letter of the law is interpreted.

    Let Joe Schmo's jacket slip over his lawfully OPENLY CARRIED firearm without a permit to conceal and POW! They'll slap a illegal concealing charge on you in a heartbeat. But, if you perform an act of public heroism, they'll let you slide through a district attorney made loophole the size of the Grand Canyon.
     
  7. Loosedhorse

    Loosedhorse member

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    What would it take for their to be "no question"? The person shot had just shot a cop? The entire exchange between the atttacker and illegally armed defender was caught on video tape? I guess it could happen.

    In many cases, an attacker will attack because you are alone, and because there don't seem to be any witnesses around. In such a case, the defender's credibility is going to be crucial to his not being charged; and that credibility is going to be undercut severely by illegal carry.
    There is a legal precept: flight equals guilt. Very bad option.

    A scenario where flight was even practical (although it would still be a horrible idea) indicates that there are no apparent witnesses--no one to make your calim of SD "no question."
     
  8. henschman

    henschman Member

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    Loosedhorse, did you read my whole post? I know it was long, but I thoroughly discussed all the things you bring up, such as the fact that it is unlikely for there to be a situation that is unquestionably self defense, the possible negative consequences of carrying without the gov't's permission, and the possible negative consequences of leaving the scene of a self defense shooting.

    Whether a person thinks that the benefits of carrying without a license are worth the risks, or leaving the scene of a shooting, is up to them and may depend greatly on the circumstances.
     
  9. Loosedhorse

    Loosedhorse member

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    As long as we're asking silly questions: did you think carefully about what you were posting before you posted it?

    The idea of the shooter leaving the scene of his SD shooting to avoid (how shall we say it) all those unpleasant legal entanglements? That idea does not deserved to be thoroughly "discussed," as you put it: it deserves to be thoroughly condemned.

    I hope I was clearer this time. ;):D
     
  10. johncantiusgarand

    johncantiusgarand Member

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    TN state law takes an "All's well that ends well" approach--at least as far as handguns go. If you employ a handgun in justifiable self-defense, you are not liable for the otherwise illegal possession of that handgun.

    TCA 39-17-1322 states : "A person shall not be charged with or conviction for a violation of this part ](the part it is referring to is the part 13 [weapons] of chapter 17 [offenses against public health, safety and welfare])if the person possessed, displayed, or employed a handgun in justifiable self-defense or in justifiable defense of another during the commission of a crime in which that person or the other person defended was a victim."
     
  11. Husker_Fan

    Husker_Fan Member

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    The James McCullough case in Nebraska shows the political pressures on county attorneys. If he had been charged, the jury may have acquitted and a challenger would have won the county attorney election next time around.

    It also shows the importance of our local RKBA organizations. The Nebraska Firearm Owners Association did a lot of good in that situation. They provided a replacement firearm for Mr. McCullough while his was in police custody, and really pushed the case publicly. An NFOA member also provided Mr. McCullough with a free CCW class so he could get his carry permit.
     
  12. henschman

    henschman Member

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    While it is easy to say "everyone should just be good little citizens and follow the orders of their governments at all times," sometimes unfortunately the realities of life come into conflict with the requirements the government places on us. For instance, someone who doesn't have a concealed carry permit might suddenly have an imminent and ongoing threat to his life, in which he feels the need to arm himself IMMEDIATELY, and would not have time to jump through all the legal hoops. And what about those who live in a place that does not provide for any legal way to carry a weapon, and self-defense is basically outlawed? It is easy to sit at your computer and tell people in these kinds of situations that the will of the collective is more important that their individual rights and that they should just shut up and obey; but you have to realize that is not very realistic. There are rational people out there who value their lives and the lives of their loved ones more than they fear any government, and will do damn near anything to protect those highest of their values.

    To anyone who might find himself in that or a similar situation, I want to offer an honest assessment that accurately portrays all the risks of various courses of action, so that an individual can assess for himself what course he should take based on the specific situation he is faced with, and whether or not the possible benefit of carrying outweighs the risk of breaking the law. I think that is a lot more beneficial than just flatly stating "always follow the law, even if it means sacrificing your own life and the lives of those you love."
     
  13. heeler

    heeler Member

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    ^^...A very good point henschman.
     
  14. Yoda

    Yoda Member

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    Look in Illinois

    There was a case about 5 (?) years ago where someone without a valid FOID Card shot an intruder or assailiant. According to Chicago "law," he was guilty of a serious firearms violation. That prompted some legislation in Illinois which said that if you used a gun in self defense, you could not be charge with illegal possession of the gun, even if you were actually possessing it in violation of the law. IIRC, the bill did pass, but our current fearless leader, who was serving in the Illinois legislature at the time, voted against it.

    - - - Yoda
     
  15. ThorinNNY

    ThorinNNY Member

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    My two cents worth says it`s hard to have a discussion like this UNLESS it is restricted to a specific town, city or county in a specifc state.It seems to me if someone uses an illegal weapon to defend themselves, their only hope is to ask for the mercy (alleged) of the courts. Some say, better to be judged by 12 than carried to your grave by six. True, but at the same time, prison suicides are not uncommon.
    We have 50 different states, each with very different laws. Within each state how those laws are ENFORCED is variable and strongly influenced by politics and the prevailing sentiment in the community.
    In some places, their laws specify that if someone attacks you, you are supposed to retreat,not defend yourself. In New York City, a man was recently sentanced to prison for defending himself against a knife wielding assailant. He was able to turn the knife against the attacker, which resulted in the assailant`s death!
    To me, that decision made no sense at all. Actually very little that goes on in NYC makes sense to me and I avoid it as though it were foreign country, and extremely hostile to "...bitter Americans who cling to their bibles, their guns and their antipathy......"
     
  16. Strykervet

    Strykervet member

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    Proof?

    In WA, if the shooting is justifited it doesn't matter who uses the weapon. Say I go down and Joe Blow picks it up and carries on the fight. I THINK it may even be okay if Joe Blow is a felon because that would be seen as rendering aid. Or I'm in the store and a friend is waiting in the car when something happens and he picks it up.

    Under those scenarios and a few others, as far as I know, they are covered under WA law. It isn't commonly known and it is an exception to the rule.

    Now if the person were carrying it prior to using it and they weren't supposed to... Well, the shooting would be justified and so I guess all they'll get is the gross misdemeanor for carry with no permit. Unless the cop and/or prosecutor is slime, then I guess they can tack more junk on in the name of their political records.

    But in WA, where CC is shall issue and OC is free for all, it is kind of stupid to carry concealed without the permit. If you can buy the pistol you can get the permit, and they are actually pretty quick in getting it out to you.

    In places with a strong democracy that isn't completely corrupt and rotten like maybe NY and certainly IL, some common sense decisions are still legal. We also elect our prosecutors and judges, and with our law (I don't know what it is called, but our law is constructed such that if it isn't expressly stated as ILLEGAL, then it is assumed to be LEGAL) overzealous prosecution like that you may find in places where the law can be broadly interpreted and abused, and where judges and prosecutors are appointed, to be more rare.

    I'd just get the carry permit in WA, and anyone who thinks they may carry or plan on buying more than one pistol to just get it and get it over with. No waiting periods, no background checks on purchases, AND you get to carry. All you have to do is go to the courthouse, go get fingerprints, fill out the form, then hand all that over with $65 or something like that, and then wait a few weeks! It'll be cheaper than that gross misdemeanor anyway.
     
  17. Loosedhorse

    Loosedhorse member

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    Realities like a steel door closing on you if you carry illegally?
    Why didn't he have a permit, again?
    Is that what you are saying? 'Cause it ain't what I said, Strawman!
    An honest assessment that running away after you've shot someone in SD might be a good idea? An honest assessment that it's fine to carry illegally--don't worry, everything will work out fine?
    Another strawman--are you winning or losing this argument against yourself?

    The only thing I've argued: if you break the law on CC, be prepared to be sentenced to the specified penalty. If you carry illegally and shoot someone in SD, be prepared to have a very difficult legal defense, and perhaps be convicted of manslaughter or worse. And if you run away after a SD shooting, be prepared to be convicted of murder.

    Your "reality" may vary. To the extent that you feel free using this forum to advise others to break the law, please continue.
     
  18. Birch Knoll

    Birch Knoll Member

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    Not to endorse the idea of "hightailing it" from a defensive gun use, but it's not all that hard to imagine why the hypothetical person has no CCW permit. After all, the vast majority of law-abiding citizen do not have a carry permit.

    So, take Susie Average, for example, a citizen with absolutely no criminal history or other disqualifying factors, and who could easily obtain a carry permit if she wanted one. But she's never wanted one, and never given it a moment's thought. That's because she's never been in fear for her life. Until the day she acquires a stalker who begins to make increasingly alarming threats against her, turns up in the shadows around her home and job, and in shopping center parking lots. She gets a restraining order, but her stalker persists, always making sure to scoot before police can arrive. Now she's getting death threats texted to her phone from a prepaid TracPhone, and her cat turns up on her doorstep with its neck broken. Now she feels that her life may truly be in danger, so she buys a gun and applies for a carry permit. She learns that it'll take 30, 60 or maybe 90 days for the government to issue the permit. But her peril won't wait. She decides to start carrying the gun now, illegally. Because she'd rather not die while waiting for bureaucrats to mail her that little plastic card.

    That's why she doesn't have a permit.
     
  19. Loosedhorse

    Loosedhorse member

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    Being unprepared and ill-informed always carries a price. And it should.

    You seem to be saying, "If this happens, feel free to break the law then." I would prefer to say: "Since this might happen, get your permit NOW. Like I already have!" :D Since this is the LEGAL forum--which approach makes the most sense legally? :rolleyes:

    There is also the assumption (among many other assumptions in your hypothetical) that there is nothing else to be done: can't petition a judge for a faster permit; can't hire security; can't leave town for a while. Nope. This threat is SO IMMINENT that the right thing to do is nothing at all.

    Well, nothing other than break the law. Me? I carry a gun because I am expecting NO trouble. If I were expecting trouble, wanting to face it by myself with a carry piece is the last thing I'd want to plan on.

    Well...next to facing it with an ILLEGALLY carried piece, that is! :p
     
  20. Birch Knoll

    Birch Knoll Member

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    Should that price be a violent and avoidable death?

    Not at all. I'm saying that there are valid reasons a person might lack a carry permit and yet have a need to defend themselves from a deadly threat. People shouldn't break the law. But if the choice is to (a) die, or (b) possibly have to accept the consequences of a CCW charge, which would you choose?

    Not all crimes are equal. Carrying a firearm without a permit ranges from perfectly legal to an infraction to misdemeanor to felony, depending on jurisdiction. But anywhere it is illegal it is mere malum prohibitum, a crime only because it is prohibited by law. Murder is malum in se, evil and wrong in itself. You seem to be arguing that it is more important to avoid a mere prohibited act than is it to prevent a fundamental evil. If this were true, one should also wait for the 'WALK' signal before crossing the street to escape a mugging.

    Sure, that would be great. But most people do not have carry permits, and I do not foresee a time when a majority will.

    No state I have every held a carry permit in has any provision for a judge to issue an expedited permit. I make good money, but I don't think I could afford to hire bodyguards. Leaving town is (a) probably not a very practical solution for most people, and (b) does not negate a great many threats.

    Not nothing. Something of which you do not approve. There is a difference.
     
  21. Loosedhorse

    Loosedhorse member

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    Not a question of should. It's a question of is. You go camping without checking the weather forecast, and without bringing the right equipment, and you die of hypothermia? "Should" doesn't really enter into it.

    And the person doesn't have to die, as I outlined before. There are many alternatives (that no one seems to want to recognize). Including going to jail for breaking the law--how does THAT help with their safety? :confused:
    Valid reasons like, "I never thought about it much," and "I was against guns until I needed one"?
    Is claiming that your crime was "mere malum prohibitum" a defense at law? It is true that not all crimes are equal: some carry 20 year sentences, some less than a year. Killing someone "in self-defense" while carrying illegally and then fleeing the scene--what's the sentence for that?
    Wrong analogy. More like: "But officer, I only jaywalked because I think I might be at special risk for a mugging at some time in the future, so I couldn't afford to obey the traffic light right now!"
    And ALL people should be held responsible for what they do and for what they fail to do (see "hypothermia," above).
    But you could afford to be convicted of a felony...or could afford to DIE? Come on, it's one or the other: either this "threat" is in fact so dire that any reasonable person would do something extreme (like leave town) to mitigate the risk; or it's so trivial that you can't be bothered to inconvenience yourself...except to place yourself at legal jeopardy by carrying illegally and "hope for the best," knowing you've always got Plan B: shoot and leave the scene! :eek:

    The correct response to a known, imminent lethal threat is not to arm yourself so you can have a good, fair gunfight, and a great court fight after that (assuming you survive at all, and in enough physical condition to eventually make it to court). It is to use that knowlege to AVOID the threat. Just like a TRO and leaving town, a handgun does not negate all threats--and carrying one illegally exposes you to new threats to your finances, freedom, and safety.

    (Sorry for talking tactics in a Legal forum; but the arguments seem to be, "Screw the law: if you think you need a gun, break the law!" Hey, interesting advice.)
     
  22. ColdCoffeeMug

    ColdCoffeeMug Member

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    I vaguely remember an instance of this happening in my hometown. An employee at a WalMart retrieved his firearm from his vehicle to come to the aid of a female employee being assaulted by her boyfriend in the parking lot. The male employee shot the female employee's boyfriend. If I recall correctly, the shoot itself was ruled justified but he stuck the pistol in his waistband and when the police showed up, they charged him with carrying a concealed weapon without a permit. FYI, the state of Florida allows the carrying of loaded firearms in a vehicle without a permit.
     
  23. Birch Knoll

    Birch Knoll Member

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    Well, yes.

    Of course not.

    As I said, I'm not endorsing that, and I did not address that. I am merely addressing your rejection of the idea that a person could find the need for being armed thrust upon them before they have the ability to obtain legal sanction to do so.

    If Susie Average is found to be carrying illegally, I have no doubt that poilice and prosecutors will consider, and possibly bring charges. Is this not accountability?

    Talk about false dichotomy! No, in real life, the threat is not likely to be either (a) dire or (b) trivial. It will be in some unknowable place along the spectrum between those two extremes.

    Er, no. The correct response is to eliminate the threat if possible, attempt to avoid it if not, and prepare to counter it if avoidance fails.
     
  24. Loosedhorse

    Loosedhorse member

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    I haven't rejected the idea that someone could find themselves in such need, any more than I have rejected that someone could find themselves camping and in serious need of warm, dry clothing.
    There is also something called a contradiction in terms: a threat so dire that one is willing to break the law in order to prepare a shoot-out, but so flimsy that one is unwilling to avoid a shoot-out.
    And prepare tpo counter it LEGALLY. Hey, why not just go up to this guy and shoot him before he has a chance to threaten you. Now THAT is eliminating the threat.

    Me? I'll stick with legal, and being legally prepared.
     
  25. Nicky Santoro

    Nicky Santoro Member

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    OP,
    Some believe that if you are not present when the popo arrive you are not involved in the whole process.
    Not me of course. I believe that if you defend yourself you should stick around and let a prosecutor looking to make his bones select you to be the guest of honor at a reenactment of Good Friday. Seriously, I'm a good little Jersey sheeple and I really believe that.
     
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