Self Defense, From Your Attorney's Point Of View...

[Fred Fuller]

... some things to think about as a potential client. Keep in mind that before you need an attorney in the courtroom, you need to have a good basic familiarity with the law on self defense in your jurisdiction, case law as well as statute law. A chat with a potential legal counselor ahead of need might be a good way to work toward that basic understanding of self defense law.

lpl
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http://thetruthaboutguns.com/2011/09/robert-farago/defending-the-self-defense-case-pt-1/
Defending the Self-Defense Case Pt. 1

http://thetruthaboutguns.com/2011/09/robert-farago/defending-the-self-defense-case-pt-2/
Defending the Self-Defense Case Pt. 2

http://thetruthaboutguns.com/2011/09/robert-farago/defending-the-self-defense-case-pt-3/
Defending the Self-Defense Case Pt. 3

http://thetruthaboutguns.com/2011/09/robert-farago/defending-the-self-defense-case-pt-4/
Defending the Self-Defense Case Pt. 4

The following was written by attorney Lisa J. Steele for nacdl.org. ( http://www.nacdl.org/champion.aspx , originally at http://www.nacdl.org/Champion.aspx?id=4710)

 

[mljdeckard]

Very good reading.

 

[sidheshooter]

Excellent.

 

[8654Maine]

Great information. Thanks.

 

[Frank Ettin]

Good material. Lisa Steele knows her stuff.

 

[alsaqr]

Very few folks involved in righteous self defense cases find themselves charged with a crime. Things to ponder when folks are charged with murder or manslaughter in a "self defense" case:

1. The police did not buy the story.
2. The prosecutor did not buy the story.
3. The grand jury did not buy the story.

There is a very good chance the story is not true.

 

[Kleanbore]

Posted by alsaqr: Very few folks involved in righteous self defense cases find themselves charged with a crime.

On what facts do you base that assertion?

It may be largely true in the case of violent home invasions in which there was no prior connection of any kind between the defender and the invader.

Move outside and the situation changes. Consider the case of Larry Hickey in Arizona.

And to get an idea about how the system works, read this. Most readers find it chilling, and all will be cured of any naive preconception that one can rely on the "righteousness" of a case to avoid charges . That requires objective, factual exculpatory evidence in defense of justification. That is often much more difficult than it sounds.

Things to ponder when folks are charged with murder or manslaughter in a "self defense" case:

1. The police did not buy the story.
2. The prosecutor did not buy the story.
3. The grand jury did not buy the story.

Well, yeah.

There is a very good chance the story is not true.

The authorities may well believe that because everyone who cannot convincingly deny having shot someone will claim self defense.

But one cannot conclude that. It is equally likely that either (1) the evidence available after the fact is insufficient to support a defense of justification, even if the act of self defense was fully justified; or (2) in combination with (1), there are other indications that indicated against justification. For example, evidence may have disappeared, eyewitness recollections may be incomplete, or witness testimony may be biased.

 

[Loosedhorse]

There is a very good chance the story is not true.

Depends on the locale.

Some jurisdictions--perhaps out of a sense that all deaths must be thoroughly looked into, or perhaps to discourage carry, even where legal--will put all SD cases to at least a grand jury. The prosecutor in a grand jury preceeding has a lot of ability to influence the outcome, and the defendent will have admitted he shot the deceased.

That is why the emphasis from some instructors (most notably Massad Ayoob) has been that you MUST--if possible--be the first to call 911 (requesting police AND medical); and you MUST make a statement at the time that police arrive on the scene, specifying:

1) You were attacked with lethal force, and want to sign a criminal complaint against your attacker, should he survive
2) There are the witnesses
3) There is the physical evidence (like his gun, his knife, etc.) before it vanishes
4) That you will cooperate fully AFTER consulting with your lawyer.

If he attacked you with a knife and while the police are arresting you, the knife disapears and the witnesses walk away? Well, good chance no one will believe you.

Other threads have mentioned other things you might unwisely do that would later suggest to a prosecutor or jury that your intentions were perhaps not innocent.

The author misquotes Brown; it is, "detached reflection cannot be demanded in the presence of an uplifted knife." Makes a difference.

 

[alsaqr]

i've been involved in two home invasion shootings in two different states. Perps died in both cases. In the first case the prosecutor declined to take the case to a grand jury. In the second case the prosecutor took the case to the grand jury without charges: i was no billed.

There are cases where an overzealous prosecutor charged the shooter in a good self defense case. Such cases are very rare.

 

[AlexM]

alsaqr kind of hit on the point again though of different states laws. It is just SO vital that you know what the law says in areas you live, work, and play. A good example would be home invasion situations. In Texas, for example, if there is someone on your property that is uninvited and pose a threat you're in your right to open fire. In Neveda it might be required that you prove there was not chance at "retreat". This was hit on in those articles.

Lee good info by the way, thanks for bringing that to us

 

[Cosmoline]

The client actually believed that he or she, or a third person, was in such imminent danger. Establishing this subjective belief often requires the client to testify.

The objective/subjective issue is complex and varies according to each state's law. Your state may only look to an objectively reasonable belief, or may require both subjective belief and objectively reasonable belief. It's a good reason to keep your trap shut rather than starting to spout off about what you believed.

 

[sidheshooter]

I had the good fortune to sit in on a seminar with the sitting prosecuting atty in my area, along with a top defense atty, as they discussed the mechanics of prosecuting, and defending, a "self defense shooting". A lot can go wrong. One thing I got out of the seminar is that the average bill for defending a shooting is way up in five figures before it even goes to trial (assuming that it even does).

The guy that sponsored the seminar is our local hero instructor, as well as an expert witness; he was recently involved in a case that cost some guy 150k to defend, and it was for shooting a neighbor's dog (he had the dough, and chose to stand his ground).

People who have been around lawyers when the chips are down get this. People who haven't can hardly be blamed for disbelief that things can actually get that bad.

Hegde your bets by consulting experts before you need them. Don't carry handloads. Do every reasonable thing you can to avoid a shooting. That's what I got out of the seminar. Oh, and avoid bars.

FWIW.

 

[Kleanbore]

Posted by alsaqr: i've been involved in two home invasion shootings in two different states. Perps died in both cases. In the first case the prosecutor declined to take the case to a grand jury. In the second case the prosecutor took the case to the grand jury without charges: i was no billed.

As previously stated, the facts in a home invasion case are likely to be rather clear, though that has not always been the case.

Recently in Missouri, a castle doctrine state, a shooter was cleared after an investigation of a home invasion that took several months; the facts in that case included a prior relationship between the resident and the invader.

There are cases where an overzealous prosecutor charged the shooter in a good self defense case.

Yes, and many people do labor under the misconception that when defenders who are in the right are charged and prosecuted, the prosecutors are somehow "overzealous".

We pay prosecutors to go after criminals. If one person intentionally shoots another, it will either constitute a crime or a justified case of self defense. The determination will depend entirely upon the evidence that can be gathered after the fact. If a preponderance of the evidence does not appear to support a defense of justification, one can expect charges to be filed and a prosecution to be conducted by any prosecutor who knows his or her duty, even if, in reality, the shooter was completely justified.

The problem is that the authorities may not have any real, objective way of divining after the fact whether or not it was really a "good self defense case." That is discussed at some length here.

Such cases are very rare.

I would not jump to that conclusion.

Most self defense shootings occur in the home. Does that mean that most violent criminal attacks occur in the home, or that defenders in the home are much more apt to be armed? I think it is the latter. Tom Givens points out in Lessons from the Street that the majority if the attacks on his graduates occurred in the out of doors where the facts are more difficult to reconstruct after the fact..

And that's where the the points made by Lisa Steele in the material provided to us by Lee Lapin become most important.

 

[X-Rap]

Quite a few years ago I went to a pro 2a meeting in Albuquerque and the DA at the time was speaking. NM in those yrs was OC only and didn't allow CC and apparently his deputies did not fall under LE as far as carrying weapons. He said he would refuse to prosecute his people if they were involved in a legit shooting and didn't think they should have to go in harms way as officers of the court and believed joe citizen had that same right.
His views didn't cause blood to run in the streets. My point is as always, know the laws and who will enforce them and make your choice of conduct knowing how others have fared under similar circumstances.

 

[Frank Ettin]

Very few folks involved in righteous self defense cases find themselves charged with a crime...

That may be true. But you can't know ahead of time whether, if it happens to you, you will be one of the many or one of the few who get caught up in the legal meat-grinder. That it might be rare would be small comfort if you're one of the unlucky few. Consider some cases --

This couple, arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.

Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

Mark Abshire in Oaklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal grinder before finally being acquitted.

Harold Fish, also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

Gerald Ung: He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted.

Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.

...There are cases where an overzealous prosecutor charged the shooter in a good self defense case...

...many people do labor under the misconception that when defenders who are in the right are charged and prosecuted, the prosecutors are somehow "overzealous"...

Kleanbore's on the money here.

Our society takes a very dim view of one person intentionally injuring another. Our laws recognize that at times doing so may be justified; but unless and until the evidence clearly shows that your intentional act of extreme violence causing grave injury to another human was justified, you are reasonably suspected of having committed a criminal act.

If the evidence creates probable cause to believe that a criminal assault had been committed and that you did it, you will be charged and put on trial. The prosecutor doing so isn't necessarily trying to make a name for himself; he is just doing the job he's been hired to do. And at then it becomes up to you to demonstrate that you were justified.

...I went to a pro 2a meeting in Albuquerque and the DA at the time was speaking. ...He said he would refuse to prosecute his people if they were involved in a legit shooting and didn't think they should have to go in harms way as officers of the court and believed joe citizen had that same right....

Yep, a "legit shooting." But who decides, how and when?

This business of "a good shoot is a good shoot" is the purest nonsense. It's not a "good shoot" or a "legit shoot" or a "righteous shoot" until the right people have so decided, and you ain't one of those people. And sometimes the people who need to finally decide it was a "good shoot" or a "legit shoot" or a "righteous shoot" will take a lot of convincing.
__________________

 

[Kleanbore]

Posted by X-Rap: He said he would refuse to prosecute his people if they were involved in a legit shooting and didn't think they should have to go in harms way as officers of the court and believed joe citizen had that same right.

That's great. A number of states have codified that into law and some have even extended some protection against civil liability.

Of course, it remains up to the shooter to show by a preponderance of the evidence that the shooting was in fact "legit".

 

[alsaqr]

Yep, there's the Abshire thing again.

Something about the Abshire thing grabbed me and i did some checking. Turns out an acquaintance is a deputy who is very familiar with that case. IMO: Abshire should have been indicted. Instead of staying in the house and calling 911; Abshire went outside with a gun and played traffic cop. Both Abshire and the other guy had been boozing prior to the incident.

 

[Frank Ettin]

...IMO: Abshire should have been indicted...

[1] He was in fact charged (that's the same as being indicted). He was tried, and he was acquitted.

[2] As Bartholomew Roberts responded in this post on TFL to a similar attack on Abshire (emphasis added):

...Abshire was attacked on his own lawn by six men. He was knocked into a ditch and one man pummeled him while another kicked him. Only after having his front teeth cracked did he draw and use a gun. Last time I looked, the penalty in Oklahoma law for yelling and shining a light at a car wasn't any of those things. I'd agree it could have been handled smarter - and that is one reason it comes up in self-defense discussion a lot - there are a lot of lessons to learn from it precisely because while it was ultimately a good self-defense shoot, it isn't "the model of a righteous shoot." ...

[3] Oklahoma does have a "stand your ground" law.

 

[mortablunt]

I had a lawyer describe it to me in these terms:

"You're asking me to prove that you killed someone who just so happened to be there with you at that particular moment, of all the places in the world, doing of all things, putting you in mortal danger for who knows what reason and your response is an excuse which has been used so many times that I hear it every single day from people who are lying."

Affirmative Defense laws, Castle Doctrines, Carry Permits, and Stand Your Ground laws are not an invite to fire away. Even if your state is the most gun loving place with all legal support for defensive firearms use, shooting your daughter's boyfriend when he walks in the door will still get you a murder conviction, even if he is an absolute deadbeat.

 

[X-Rap]

Quote:
Originally Posted by X-Rap
...I went to a pro 2a meeting in Albuquerque and the DA at the time was speaking. ...He said he would refuse to prosecute his people if they were involved in a legit shooting and didn't think they should have to go in harms way as officers of the court and believed joe citizen had that same right....

Yep, a "legit shooting." But who decides, how and when?

This business of "a good shoot is a good shoot" is the purest nonsense. It's not a "good shoot" or a "legit shoot" or a "righteous shoot" until the right people have so decided, and you ain't one of those people. And sometimes the people who need to finally decide it was a "good shoot" or a "legit shoot" or a "righteous shoot" will take a lot of convincing.

In the situation I described the DA would be having a great deal to say about what was and wasn't legit. I'm sure I am not quoting him verbatim but the just of his speach was that in his sphere of influence he believed in the right of his investigators and citizens to defend themselves and seemed ready to back that up when he investigated a shooting.
I am only trying to get past generalizations and hope people will look at laws and those who enforce them in their own jurisdictions. The same can be said for legal advise, get it locally first, what happens in one county may be far different than across the state, let alone across the country.

 

[Frank Ettin]

...In the situation I described the DA would be having a great deal to say about what was and wasn't legit. I'm sure I am not quoting him verbatim but the just of his speach was that in his sphere of influence he believed in the right of his investigators and citizens to defend themselves...

[1] Yes, the DA will have a lot of say. In fact, he will be the primary decision maker. In many jurisdictions, he can simply file charges without having to take the case to the grand jury, or he makes the decision to take the matter to the grand jury (except in Texas, where homicide goes to the grand jury automatically).

[2] And sure he believes in the right of self defense. Many really do, and it is the law. But when you shot that guy, was it really, under the law, self defense? That will always be the question. You might say it was, but a lot of people claim self defense when it really isn't. What will the evidence show? The DA might believe in the right of self defense, but if the evidence doesn't clearly show that it was, then it wasn't self defense, at least unless your trial jury acquits you.

 

[bikerdoc]

Every bullet has a lawyer attached to it probably two.

Best to know your local laws and how these situations are processed, then act accordingly.

 

[Loosedhorse]

Hey, guys--

It strikes me that if we're talking about what a prosecutor might do, we're talking about "Legal."

If we're talking about what WE can do, before or immediately after a SD shooting to make it less likely that that you will face charges, that's more like "Tactics." I read the article with an eye to "so what does that mean I should be doing now, or when the police arrive, that will help my legal case."

JMHO

 

[alsaqr]

Oklahoma does have a "stand your ground" law.

IMO: The prosecutor rightly decided that the OK "stand your ground" law did not apply to Abshire. Yes, Abshire was acquitted. Abshire's bad decisions also trashed his life.

Its absurd to assume that elected prosecutors in my pro-gun state are going prosecute armed self defense cases with the same zeal as prosecutors in some "experts" anti-gun state with its appointed prosecutors.

Here is case that could have gone differently in another place. Personally, i would not have killed this big dumb kid. Our county prosecutor declined to take this one to the grand jury. He also declined to take other self defense shoots to the grand jury.

http://concealed.wordpress.com/2007/10/28/stand-your-ground-law-in-oklahoma-upheld/

 

[Buck Snort]

Very few folks involved in righteous self defense cases find themselves charged with a crime. Things to ponder when folks are charged with murder or manslaughter in a "self defense" case:

1. The police did not buy the story.
2. The prosecutor did not buy the story.
3. The grand jury did not buy the story.

There is a very good chance the story is not true.

Let's not forget that business about being innocent until proven guilty in front of a jury of your peers.