Legal Considerations of Posting on the Internet

[Frank Ettin]

...I'm not saying that the OP and many other posts aren't valid, or that the things you say on a bulletin board couldn't come back to haunt you. They certainly could.

However......

It would be all but impossible to PROVE that YOU wrote the words in those posts...

Authentication is always an issue with all forms of documentary evidence. But it often can be done, and is often done. Various systems maintain audit trails, for example.

But as long as you're confident, fine. It's not my problem.

 

[Bartholomew Roberts]

My state takes the Castle Doctrine to the extreme, not only allowing you to defend your home and property, but also your car, your place of employment, or anywhere you have a legal right to be. In my state your vehicle is concidered an extention of your home and anything that is legal to posess in your home (like a firearm) is also legal in your car. There is also no "duty to retreat" before you take action to defend yourself. The law also adds civil immunity (you can’t be sued) if you are forced to defend yourself in accordance with this law. As a result violent crime by strangers is very rare.

Oklahoma has the exact same elements in its Castle Doctrine law and that law was in place when Mark Abshire was charged by the local prosecutor. Arizona had all those same elements in its law when Larry Hickey was charged.

It seems to me that most of these conversations are really not about what can happen in a self-defense shooting; but about what would happen in the scripted self-defense shooting we have envisioned in our heads. If that mental script had much relevance to real life, I'd be sitting on a yacht in the Caribbean right now sipping rum and getting a good tan, while debating whether to have lobster or steak for dinner.

 

[Kleanbore]

Posted by Bartholomew Roberts: It seems to me that most of these conversations are really not about what can happen in a self-defense shooting; but about what would happen in the scripted self-defense shooting we have envisioned in our heads.

Yes indeed. Not only that, but many apparently somehow envision that, as in the case of movies made on a sound stage, the triers of fact will somehow be able to review every move, every word, every glance, and every shot as it happened, rather than having to base everything on whatever evidence is available to them after the fact.

 

[moonpie]

As a result violent crime by strangers is very rare.

i live in the rural south myself and while violence by strangers is rare violence by family or "friends" is all to common and frequently a occurs in the home , which is usually where the webcam is.probable cause for search? anyone?

 

[SnowBlaZeR2]

I think that in general that's correct. If we undertook an exhaustive and detailed analysis of each of these events, and their aftermaths, perhaps we would learn things that could help improve results in other instances.

But the real point is to emphasize just how silly this "a good shoot it a good shoot" business is. We keep seeing on these boards all sorts of "my law is better than your law", or "it's not a problem in my State", or "I don't have to worry about the law in my part of the country" and various other flavors of denial. Maybe the legal aftermath of your use of force incident will work out just fine and easy. But there are no guarantees.

So, to maximize your chances of a good result ultimately, I suggest that it's wise and prudent to know and understand the applicable laws, avoid various choices that could make things tougher for you (such as improvident of inflammatory posts on gun boards), train and become proficient with your tools so that in the event of an emergency you can focus your attention on assessing the situation and deciding how best to handle it (all in an instant) rather than trying to figure out how to run your gun.

The point is that this is serious stuff. The more you know and understand, and the better prepared you are, the luckier you're likely to be -- both in the event and its legal aftermath.

Preaching to the choir. I have some of the best training the Marine Corps has to offer, and I'm always looking for more. There's never enough training or learning in my opinion.

One thing I have going for me is that I have been stationed in several places around the country throughout my career. Owning a firearm and using that firearm is different in California than it is in Texas, different in Maryland than it is Florida, etc. This doesn't give anyone free reign, but it does mean one states laws are "better" than a different state's. Like you said though, knowing your state's laws, knowing how to handle yourself and keeping a level head are your best options.

 

[Frank Ettin]

...I have some of the best training the Marine Corps has to offer, and I'm always looking for more. There's never enough training or learning in my opinion....

Very good. I'd also suggest looking into one of Massad Ayoob's classes, especially MAG-20/Classroom or MAG-40. I don't know anyone who does a better job of covering for private citizens the legal aspects of the use of force in self defense.

 

[SnowBlaZeR2]

Very good. I'd also suggest looking into one of Massad Ayoob's classes, especially MAG-20/Classroom or MAG-40. I don't know anyone who does a better job of covering for private citizens the legal aspects of the use of force in self defense.

I wanted to get in on a class he was doing while I was out at Ft Huachuca several years ago, but military training took priority. I've read a few of his books, but nothing substitutes hands on learning. I'm the first to admit I need or at least want more civilian firearms training.

 

[Frank Ettin]

I wanted to get in on a class he was doing while I was out at Ft Huachuca several years ago, but military training took priority....

I got to help Mas out at the MAG-40 class he put on there in May or 2010 and wrote this article about it. Keep your eyes open; he gets around. I think he'll be in Phoenix this fall some time.

 

[Cosmoline]

Common sense applies to internet postings just like any other conversation. But folks seem to lose sight of the forest for the trees. The important things, the REALLY REALLY important things, revolve around whether you were facing imminent, unlawful deadly force or sufficient force to do you grave bodily harm. These factors should be at the forefront of your mind. They will always be critical. Something like internet postings are unlikely to come up or be relevant.

The subjective state of your mind is not a critical element. You can be a cold-hearted psycho who wants to kill people or a saint. The self defense code is indifferent. You're going to be judged first and foremost by your actions, so make sure they comport precisely with the law.

 

[JustinJ]

"Excuse me Judge, would you mind signing this warrant to seize Joe Bob's computer on the off chance that he might have written something incriminating in regards to his motives for shooting the guy he claims attacked him? "

Is it possible? Maybe. Is it likely? Sorry but I don't see it. Undoubtedly LE will use any medium available to gather evidence but the key word here is "available". On the other hand if something incriminating is displayed on one's Facebook page it would be fair game and readily available to LE. We should all be mindful of what we say online as it costs nothing to do so but i still believe in representing things realistically.

"By the way, what is the basis for characterizing the incident as a "self defense shooting"? That remains to be established, doesn't it?"

I would venture a shooting for the purpose of defending one's self. Obviously a shooting for the purpose of defense does not always equal a justifiable shooting.

"How would anyone ever be able to explain why someone was assaulting them? How do the police know that anyone was assaulting the shooter? How about the other ninety nine possible scenarios?"

Imaginary scenarios that don't make much sense aside, in most assaults from an unknown attacker the reason is obvoius. Such as the attacker saying "give me your wallet" while brandishing a weapon. Not to mention that perpetrators of such crimes tend to be repeat offenders with a history of criminal offenses.

 

[Kleanbore]

Posted by JustinJ: Is it possible [that a judge would issue a subpoena for searching the computer of a person who has shot someone]? Maybe. Is it likely? Sorry but I don't see it. Undoubtedly LE will use any medium available to gather evidence but the key word here is "available". On the other hand if something incriminating is displayed on one's Facebook page it would be fair game and readily available to LE.

I'm afraid that your concept of how the criminal justice system works is not consistent with reality.

I have known persons whose computers have been seized (though none had nothing to do crimes of violence), and they had not even been identified suspects in the investigation(s).

In the case of a crime of violence, the most likely issue is that of anything that may indicate possible motive. As Cosmoline points out, the subject of whether the actor had been predisposed to violence is less likely, but it has happened, as evidenced by the Larry Hickey prosecution.

There are also risks that can come about if the actor had posted or emailed something about the incident after it had happened , perhaps believing that he or she had been cleared. Such postings or messages could cause problems regarding possible discrepancies in his account of the incident, motive, or state of mind

[(In response to the question, "By the way, what is the basis for characterizing the incident as a "self defense shooting"? That remains to be established, doesn't it?")]: I would venture a shooting for the purpose of defending one's self.

Why? On what basis? Do you not think that murders occur?

But it doesn't matter. That will be up to the investigators and possibly, the charging authority, a grand jury, and/or a trial jury to determine.

... in most assaults from an unknown attacker the reason is obvoius. Such as the attacker saying "give me your wallet" while brandishing a weapon.

OK, that's what the shooter says happened, but unless the incident had been captured from a close security camera in good lighting, that is something that will have to be shown via the evidence that can be captured after the fact--along with whether an "unknown attacker" had been involved.

Not to mention that perpetrators of such crimes tend to be repeat offenders with a history of criminal offenses.

And unless the shooter happened to have been aware of of the person's prior record, it would almost certainly be ruled inadmissible in court.

 

[mortablunt]

As a general rule, if you wouldn't want your kids to see it, don't post it.

 

[Kleanbore]

Posted by mortablunt: As a general rule, if you wouldn't want your kids to see it, don't post it.

I like that.

We used to say, if you don't want to see it on the first page of the New York Times, don't put it in email.

 

[JustinJ]

"I have known persons whose computers have been seized (though none had nothing to do crimes of violence), and they had not even been identified suspects in the investigation(s)."

Way too vague to be of any evidence to what you are arguing.

"There are also risks that can come about if the actor had posted or emailed something about the incident after it had happened , perhaps believing that he or she had been cleared. Such postings or messages could cause problems regarding possible discrepancies in his account of the incident, motive, or state of mind"

Absolutely although we probably don't agree as to how such statements are most likely to end up in court.

"In the case of a crime of violence, the most likely issue is that of anything that may indicate possible motive. As Cosmoline points out, the subject of whether the actor had been predisposed to violence is less likely, but it has happened, as evidenced by the Larry Hickey prosecution."

That case was more or less about if his actions qualified as a specific offense. In cases where the prosecutor is trying to prove if someone actually committed an act previous convictions are not even allowed so predisposition to violence is questionable as well. In cases in which the actor claims self defense against a threat that he claims justified lethal force the subjective state of his mind is very likely to become an issue as the Larry Hickey case shows. But i still don't believe a warrant has hardly any chance at all of being issued to confiscate a computer without an actual reason to suspect useful evidence may be found on it. Now if one actor in a shooting says our dispute began on the internet there is no question computers will be seized but again that is a specific reason. Not just a shot in the dark(no pun intended) to find evidence to show a potential state of mind.

"Quote:
[(In response to the question, "By the way, what is the basis for characterizing the incident as a "self defense shooting"? That remains to be established, doesn't it?")]: I would venture a shooting for the purpose of defending one's self. Obviously a shooting for the purpose of defense does not always equal a justifiable shooting.

Why? On what basis? Do you not think that murders occur?"

Huh? How does my statement imply i do not think murders occur? The fact that people shoot others to prevent harm from them does in no way imply other people do not shoot people for a variety of other reasons that constitute murders. I'll assume there is just a miscommunication here.

"Quote:
Not to mention that perpetrators of such crimes tend to be repeat offenders with a history of criminal offenses.

And unless the shooter happened to have been aware of of the person's prior record, it would almost certainly be ruled inadmissible in court. "

Who said it would be? As my post indicates i was explaining that convincing LE that someone was trying to rob you is not so hard if they have a record of committing similar criminal acts.

 

[Sam1911]

But i still don't believe a warrant has hardly any chance at all of being issued to confiscate a computer without an actual reason to suspect useful evidence may be found on it.

Just to point out one thing: A warrant is not needed (and no computer need be confiscated,) to look on the internet for statements you've made on a public forum. You might consider a site like this something akin to taking out a billboard next to the highway to express youself ... except far more people can see what you write here, and this billboard does not get taken down, ever.

 

[Frank Ettin]

...Way too vague to be of any evidence to what you are arguing....

Really now, you demand "evidence" from Kleanbore? You've been making claim after claim, in this thread and in others, without support or any evidence to back them up.

Let's look at some examples from this thread:

• Post 35 (emphasis added):

  ...In reality though i find it highly unlikely a warrant to seize one's computer will be issued unless there is suspicion of online correspondence between the involvded parties...

  You find it unlikely? On what bases do you conclude that it's unlikely? What training or experience do you have that might warrant our crediting your bald opinion concerning when a warrant is, or is not, likely to issue?
  
  
• Post 60 (emphasis added):

  ...Is it possible? Maybe. Is it likely? Sorry but I don't see it...

  So you don't see it? Why does that mean anything? What training or experience do you have that might suggest to us that your opinion about what you do, or do not see, in this connection warrants our attention?
  
  
• Post 60:

  ...in most assaults from an unknown attacker the reason is obvoius...

  What evidence do you have to support this claim? If it's just your opinion pulled out of the air, tell us so; and tell us why we should consider your opinion under that circumstance to mean anything. And does it never turn out that what appears to be the obvious reason isn't the reason after all?
  
  
• Post 60:

  ...perpetrators of such crimes tend to be repeat offenders with a history of criminal offenses...

  What evidence do you have?
  
  
• Post 64:

  ...i was explaining that convincing LE that someone was trying to rob you is not so hard if they have a record of committing similar criminal acts....

  How do you know this? What evidence do you have to support this claim? How would you know what it might take to convince LE of anything?

You toss around claims and opinions pretty freely, but you don't seem willing to be bothered to give us any reason to pay attention to them.

 

[SnowBlaZeR2]

Just to point out one thing: A warrant is not needed (and no computer need be confiscated,) to look on the internet for statements you've made on a public forum. You might consider a site like this something akin to taking out a billboard next to the highway to express youself ... except far more people can see what you write here, and this billboard does not get taken down, ever.

To be used as evidence though? How would they be able to associate any post back to me without having my computer?

 

[GEM]

Welcome to the Internets and IP addresses.

You going to claim that George Anthony is sending out messages for you?

So you get into a shooting incident and you are going to throw your computer in the swamp or run some high level HD cleaner on it?

That's a plan and will look good to all.

 

[SnowBlaZeR2]

Welcome to the Internets and IP addresses.

You going to claim that George Anthony is sending out messages for you?

So you get into a shooting incident and you are going to throw your computer in the swamp or run some high level HD cleaner on it?

That's a plan and will look good to all.

Not sure where that post was directed or what you are implying with it, but you are the first person to bring that up.

 

[GEM]

My point is that your electronic history is easily determined and not denied with any credibility.

Not to be too rude, but some of the posts here are clearly delusional about how your postings will be retrieved, determined to be yours and used if you are going to trial or being seriously investigated.

Kleanbore and Fiddletown have it nailed and to continue to argue with them is more a sign of a personality characteristic as compared to a rational approach. There is a great deal of precedent and legal/jury research indicating how factors like this can hurt you.

 

[SnowBlaZeR2]

My point is that your electronic history is easily determined and not denied with any credibility.

Not to be too rude, but some of the posts here are clearly delusional about how your postings will be retrieved, determined to be yours and used if you are going to trial or being seriously investigated.

Kleanbore and Fiddletown have it nailed and to continue to argue with them is more a sign of a personality characteristic as compared to a rational approach. There is a great deal of precedent and legal/jury research indicating how factors like this can hurt you.

Well, I understand what you are saying. I'm assuming it wasn't directed my way then, as I am not arguing with anyone.

No one is saying you should run your mouth off at will, but the worrying over being sent to prison over an isolated internet post is unfounded. A good rule, if you wouldn't say it in a crowded public place, don't say it here.

 

[Owen Sparks]

If this was really likely to happen, (and I don't think it is) couldn't you simply take the computer off your property before the police arrived? If the computer is not involved in the shooting in any way, would you be tampering with evidence if you "loaned" it to your buddy next door? And what about the Fifth Amendment guarantee that you can’t be compelled to witness against yourself? Would allowing the police to read your opinions (like this one) with the intent of using your words against you to impugn your character in court be a form of testifying against yourself?

 

[Frank Ettin]

...couldn't you simply take the computer off your property before the police arrived? If the computer is not involved in the shooting in any way, would you be tampering with evidence if you "loaned" it to your buddy next door?...

Yes it would be. It would also reflect poorly on you and could be used to support an inference that you had something to hide and that you had a guilty conscience.

...Would allowing the police to read your opinions (like this one) with the intent of using your words against you to impugn your character in court be a form of testifying against yourself?

No, it would not. Pre-existing communications, especially those made in public to strangers are always in play. Among other things, you can have no expectation of privacy as to anything you post on the Internet for anyone in the world with Internet access to read.

 

[JohnKSa]

The subjective state of your mind is not a critical element. ... You're going to be judged first and foremost by your actions, so make sure they comport precisely with the law.

In TX, the subjective state of the defender's mind must be considered if one is to "comport precisely with the law".

That is, one is not complying precisely with the law, regardless of the actions taken, if the person's mindset at the time of the incident does not fit the model plainly set forth in the law.

One can certainly argue that it's not possible for the justice system to know what's going on in one's mind, but that's a secondary issue. If one's goal is to comply with the law (comport precisely with the law, if you will) then it's not possible to dismiss the subjective state of mind of the defender.

From the TX penal code preceding the section on the legal use of force and deadly force:

The use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is specifically required by statute...​

From the TX penal code regarding the legal use of force:

...a person is justified in using force against another when and to the degree the actor reasonably believes...​

From the TX penal code regarding the legal use of deadly force:

A person is justified in using deadly force against another: (1) if the actor would be justified in using force against the other under Section 9.31; and(2) when and to the degree the actor reasonably believes...​

Note that in all cases, the primary stipulation that the defender must satisfy is that he must have the proper state of mind; i.e. he must have the reasonable belief that deadly force is required and the reasonable belief that it is immediately necessary and then he must use it only to the degree that he reasonably believes is necessary.

It's true that the Castle Doctrine provides that PRESUMPTION of reasonable belief exists if the Castle Doctrine criteria are satisfied. What many don't understand, or don't want to understand is that it's possible for the defender to destroy that presumption by providing evidence against himself in the form of public statements that make it clear his subjective mind set was NOT, in fact, in compliance with the letter of the law.

For example, let's say a person were to state publicly that he was going to kill any intruder in his house, regardless of the circumstances, and then later was involved in a shooting inside his house where the intruder died.

Had he kept his mouth shut and assuming that the Castle Doctrine criteria were satisfied, the presumption would have AUTOMATICALLY existed that he acted out of a reasonable belief that deadly force was immediately necessary and that he only used deadly force to the degree that he reasonably believed was necessary. The state, in order to successfully convict, would have to PROVE that he didn't have the right state of mind. A very difficult task by any standards.

HOWEVER, his prior public statements that he was going to kill any intruder in his house regardless of the circumstances would be VERY damaging to that presumption and could be used by the state to demonstrate that he acted based on a pre-conceived strategy which had nothing to do with the actual circumstances of the situation or his reasonable belief of what was necessary at the time. In other words, his ill-advised public statement has destroyed, or at least significantly weakened a presumption of justification that would have existed had he not made such statements.

Now he'll have to prove what the law would have formerly been required to presume was true, and even worse, the evidence against him is of his own making. He'll have to prove that what he said before should be disregarded but that what he's saying now is the truth. Why would anyone want to put himself in that situation? Especially since the the only cost of avoiding the situation is merely not making ill-advised comments in public/online.

 

[Kleanbore]

I have edited the original post to include comments made by others in this discussion and to attempt to better explain things that some have not understood. The added words are in red font.

I believe that this discussion has been valuable so far.