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

Discussion in 'Legal' started by ccw_steve, Jun 6, 2011.

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  1. leadcounsel

    leadcounsel member

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    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.
     
  2. Kleanbore

    Kleanbore Moderator

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    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.
     
  3. heeler

    heeler Member

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    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.
     
  4. TexasRifleman

    TexasRifleman Moderator Emeritus

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    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.
     
  5. Sebastian the Ibis
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    Sebastian the Ibis Member

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    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: **** 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.
     
  6. Kleanbore

    Kleanbore Moderator

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    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.
     
  7. Kleanbore

    Kleanbore Moderator

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

    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.
     
  8. catnphx

    catnphx Member

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    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

    Maricopa County Attorney Establishes Self-Defense Review Committee

     
  9. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    One more shooting case you can add to the list, fiddletown is that of Gerald Ung in Philadelphia. It is also unique in that there is actual video of the shooting 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.*

    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.
     
  10. Quickbeam

    Quickbeam Member

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    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.
     
  11. heeler

    heeler Member

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    An interesting news release catnphx.
    Thanks for sharing.
     
  12. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    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 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.
     
  13. twomack2010

    twomack2010 Member

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    Jerome Ersland

    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.
     
  14. TexasRifleman

    TexasRifleman Moderator Emeritus

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    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.
     
  15. brickeyee

    brickeyee Member

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

    Kleanbore Moderator

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    This has been discussed at some length here.

    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.
     
  17. Bubba613

    Bubba613 member

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    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.
     
  18. heeler

    heeler Member

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    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.
     
  19. Kleanbore

    Kleanbore Moderator

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    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.

    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:

    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.
     
  20. clutch

    clutch Member

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    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
     
  21. 9mmepiphany

    9mmepiphany Moderator

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    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
     
  22. 9mmepiphany

    9mmepiphany Moderator

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    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
     
  23. Sebastian the Ibis
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    Sebastian the Ibis Member

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    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 – ****! Since we have butted heads on this issue before let me explain my reasoning.

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

    So really all we are arguing about are these points

    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:

    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.
     
  24. Kleanbore

    Kleanbore Moderator

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    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.
     
  25. Frank Ettin

    Frank Ettin Moderator

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    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'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 (and see here for discussion).

    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:
    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.
     
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