Will a prosecuting attorney use your concealed permit against you?

[GuyWithQuestions]

I was just thinking about this. Some people have the attitude that anyone who gets a concealed firearms permits does so because they want to kill someone, which may be because you do meet a rare occassional thug who's violent minded and wants a permit (although you always know that they wouldn't qualify if they applied). So my question is: if you're ever in a deadly self-defense situation and have to go to court, is a prosecuting attorney going to try to use "He had a permit so that means it was premeditated murder! Lock him up and I want a raise for another one prosecuted!" Would that ever turn into a persuasive argument, or would the attorney be basically grasping at straws and the jury would realize that? Would the judge step in and instruct the jury to ignore what the prosecuting attorney just said, since concealed permits are perfectly legal in the first place?

 

[Fisherman_48768]

Given that line of reasoning, here in Michigan the prosecutor as the gun board chairman would also be a co-conspirator.

 

[Standing Wolf]

Realistically speaking, I doubt there's anything a lawyer wouldn't use against you if it could help him win his case—and percentage of the take—against you.

 

[Boris Barowski]

you could argue that a drivers licence makes vehicular manslaughter premeditated murder (I'm no lawyer )

 

[sig226]

The state would have to argue that you planned the crime and that the carry permit was one element of the plan. I suppose there is a person out there who might try such a trick, but the argument is silly. The defense attorney would easily take it apart.

The crime is premeditated murder. Why would a person who intends to commit a capital crime worry about getting a permit? This argues that the defendant is not worried about the crme of murder, but doesn't want to get in trouble for unlawfully carrying a pistol in the process.

It's possible to argue that the permit was only one part of a complex plan so the killer would get away with it, but the other parts of the plan would have to be present. The state would have to prove its claim. The victim did something that so offended the killer that the killer spent months getting the permit and planning a situation where the murder would look like self defense. Then they'd have to prove that somethiing about the murder was done by the killer to cause the situation to look like self defense. Maybe the killer knew that the victim got drunk and violent at such and such bar every Friday after work and waited there to provoke the guy so he could shoot him. The state can't just say this kind of thing, it has to produce evidence. Statements against self interest can be evidence even though they are hearsay, so if the killer told others of the plan, they might be able to testify to the discussion.

But it wouldn't be easy to argue, and again, why would the killer bother? He could just kill the guy and be done with it.

 

[Jeff White]

So my question is: if you're ever in a deadly self-defense situation and have to go to court, is a prosecuting attorney going to try to use "He had a permit so that means it was premeditated murder! Lock him up and I want a raise for another one prosecuted!" Would that ever turn into a persuasive argument, or would the attorney be basically grasping at straws and the jury would realize that?

Maybe.....I can see it happening under these circumstances. Person is involved in a defensive shooting where there are questions about what really happened. Keep this in mind:

Most defensive uses of deadly force are not clear cut textbook examples of the legal use of deadly force. Most defensive uses of deadly force evolve from a confrontation of some sort where it can be argued that both parties involved are at fault. The typical gun forum example of the innocent CCW holder being attacked with no involvement on his/her part is not very common. Nor is the typical, "I heard glass breaking and found the bad guy standing in my kitchen naked, holding my butcher knife and spreading peanut butter across his chest and I shot him as he let out a low, wailing moan and raised the knife" encounters.

So let's say our hapless CCW holder was involved in a typical defensive use of deadly force that evolved from a confrontation that started verbally and escalated from there. Our CCW holder was totally right in his actual use of deadly force, but the physical evidence and conflicting statements from witnesses, (believe me, there will be conflicting statements and at least as many variations as to what happened as there are witnesses) makes what really happened less then clear. The police and the prosecutor do their job and start looking into things like any past relationship between the CCW holder and the deceased, what kind of life the CCW holder leads, and they discover that our CCW holder is a member of several internet gun communities and had a history of posting things like;

"We've got castle doctrine in my state, I don't car if it is my stupid alcoholic neighbor stumbling into the wrong house at 3 am, he's in my house, he's dead where he stands."

"Bang, bang, bang, bang, bang....reload, bang, bang...problem solved."

"230 grains from Mr. 1911 solves every human problem.

"Why worry about going into that neighborhood, you've got a CCW, that lets you walk anywhere with impunity.

"Here in Texas we just shoot after the sun goes down!"

By running his keyboard and sitting there at his keyboard smiling smugly at the witty response he just made on THR, TFL, ARCOM.........., Our CCW holder is building a nice case against himself. It doesn't take reading too much of a posting history like that to make police and prosecutors wonder if our CCW holder was just being terribly boorish trying to be witty or if he really did get his CCW so that he could see if he could prove his manhood by prevailing in mortal combat. What benefit of the doubt he had from having a clean lifestyle and no criminal record has now been canceled out by the fact he's made an electronic record that says he was looking for a chance to shoot someone. Which may lead to:

Ladies and gentlemen of the jury, the defense is going to ask you to believe that Mr. CCW Holder is an honest, upstanding citizen who had to use deadly force to escape a bad situation with his life. I will show you who he really is. Mr. CCW Holder was a member of 4 different internet forums for five years before this incident. Mr. CCW Holder continually stated that he was anxious to use deadly force. After you see the public statements he made about using deadly force and cavalier attitude he expressed towards such a serious subject, you will agree that Mr. CCW Holder is not a clean living, upstanding member of our community, but a dangerous, unbalanced person who was obsessed with killing. He got his concealed carry permit in the hope that it would allow him to walk among us with a loaded firearm in his belt, looking to prove himself. And I will prove that he escalated a conflict on the mall parking lot from a verbal argument to a senseless killing, just so he could live out his internet fantasy.

There are enough members of THR and almost every other firearms forum on the internet who have created enough of an electronic record of a cavalier attitude towards the use of deadly force that eventually it will happen.

In answer to your question, yes, if other things in your background point in that direction, possession of a CCW permit can be used against you.

Jeff

 

[bruss01]

That was a great post, Jeff. I don't doubt that eventually, someone will prove you right.

 

[romma]

On an intersting note, if one were to get a weapons permit and shoot someone the same or very next day,,, eyebrows would probably be raised...

 

[joab]

The state would have to argue that you planned the crime and that the carry permit was one element of the plan.

Wouldn't that make the stae a co conspirator

I could see a prosecutor charging that you used your permit as a means of facilitating carrying a weapon to a premeditated crime scene
But I can't see him using a state issued background checked license against you without condemning the whole permit process

 

[lysander]

Jeff's answer is excellent.

I would echo it...if it helps the prosecutor build the case...they will use it if they can.

One of the unrecognized problems with our legal system starts in law school...where students learn to compete against each other in a winner-take-all system. They carry this mentality into practice and often, for the lawyer, winning the case is more about their own ego than it is about what is right or wrong, or what is best for their client, or society.

But what do I know....

Further, even though the prosecutor might not hold it against you that you were a CCW holder, the jury might. You carried cause you were looking for a fight.

YMMV....

 

[Sage of Seattle]

It's possible to argue that the permit was only one part of a complex plan so the killer would get away with it, but the other parts of the plan would have to be present. The state would have to prove its claim. The victim did something that so offended the killer that the killer spent months getting the permit and planning a situation where the murder would look like self defense. Then they'd have to prove that somethiing about the murder was done by the killer to cause the situation to look like self defense. Maybe the killer knew that the victim got drunk and violent at such and such bar every Friday after work and waited there to provoke the guy so he could shoot him. The state can't just say this kind of thing, it has to produce evidence. Statements against self interest can be evidence even though they are hearsay, so if the killer told others of the plan, they might be able to testify to the discussion.

Seeing as how in some states it's quite expensive and time consuming to get a permit, how about trying to convince the victim to move to Vermont with you instead.



Seriously, though I agree with joab who said,

I could see a prosecutor charging that you used your permit as a means of facilitating carrying a weapon to a premeditated crime scene
But I can't see him using a state issued background checked license against you without condemning the whole permit process

Actually, I can see that obtaining a permit could work in one's favor. I'm sure many of you remember Bernie Goetz the nauseatingly inaptly named "subway vigilante" of New York City fame. From what I remember, Bernie was mugged and later applied for a CPL and was denied. He carried anyway and later had to use it. He was aquitted of all charges but later found guilty in a civil trial.

 

[Liko81]

The fact that you had a CHL does speak to frame of mind. You as a CHL holder would not reasonably have one simply for its own sake; a CHL holder expects, however unlikely the situation, to at some point need to use a handgun and therefore needs to carry one.

The simple fact that you expect to need to use a handgun, however, ignores a simple inference; you expect to someday need a handgun for defense purposes, NOT for murder. The burden of proof is malicious intent. Murder one requires "malice aforethought". The fact that you are a CHL holder and intend to use your handgun for defense, which is not malicious, is therefore not evidence of any intent to commit a crime, only of an expressed need to carry a gun. Malicious intent or reckless endangerment, if suspected, must be shown through the situation in order to meet the burden of proof for murder or manslaughter, respectively. CHLs have specific guidelines they must follow, and strict tests for liability when involved in a shooting. If all these are met, the CHL holder by definition has a valid defense to their having shot someone else with a concealed handgun in their possession. If a shooter is NOT a CHL holder and carried concealed, intent matters little; the shooter's getting convicted of SOMETHING. If malicious intent is proven, whether the shooter was a CHL holder or not matters little.

 

[El Tejon]

Jeff, that was a great answer, but it doesn't apply to Texas.

 

[lance22]

Jeff - WHAT ??? Are you tryin' to tell me that some people just need killin' isn't a valid defense?

If not, I guess I'll have to try the old better judged by twelve than carried by six bit - but only when I'm acting as my own lawyer.

 

[Jeff White]

El Tejon said;

Jeff, that was a great answer, but it doesn't apply to Texas.

I understand that the current jump in ammunition prices and the shortage of some calibers and loads is not due to the high cost of components and the military contracting for more ammunition, it's really the Texans fighting crime and/or evil.

lance22 said;

Jeff - WHAT ??? Are you tryin' to tell me that some people just need killin' isn't a valid defense?

It's apparently only a valid defense in Texas. I understand that they set the corpses of the previous nights trespassers on the curb with the garbage each morning there.

Jeff

 

[BryanP]

The fact that you had a CHL does speak to frame of mind. You as a CHL holder would not reasonably have one simply for its own sake; a CHL holder expects, however unlikely the situation, to at some point need to use a handgun and therefore needs to carry one.

"Your honor, one of my hobbies is target shooting. Getting my CCW was simply a way to keep from having to deal with the arcane rules Tennessee has about just how I could transport rifles and ammunition to the range, nothing more."

What? You don't think he'd buy it?

 

[Jeff White]

BryanP said;

"Your honor, one of my hobbies is target shooting. Getting my CCW was simply a way to keep from having to deal with the arcane rules Tennessee has about just how I could transport rifles and ammunition to the range, nothing more."

What? You don't think he'd buy it?

It depends. I really only think your possession of a CCW permit would figure into it if there were other things discovered that made it appear that you had your permit to facilitate shooting someone. Internet postings, trash talk about blowing people way to friends and family, written or verbal statements about ethnic groups....you'd be surprised at all the things that are looked into and could be relevant, could get you into trouble if the circumstances of your defensive shooting look suspicious. You can complain that your free speech rights are being violated, or anything you want, but in the long run, if you routinely act like you are looking to shoot someone, and you do actually have to shoot someone, the fact you went as far as getting a CCW permit could be used against you. Even if all the acting like you want to shoot someone is all in fun. It won't seem near as funny while you are waiting for your spouse to get that second mortgage so you can make bail.

Jeff

 

[ArmedBear]

A prosecuting attorney can and will use anything against you, if you find yourself in the wrong crosshairs.

Are you a caucasian male? Two strikes against you right there, if the prosecutor was Mike Nifong.

I wouldn't sweat it too much. There's not much you can do, other than keep your nose clean as possible.

 

[ExSoldier]

Well, I went to law school back in 1988 and I don't practice so don't take this as gospel:

I would think that a state which has a law permitting lawful CCW would be barred from inferring that mere possession of a permit coupled with an actual shooting incident doesn't present a prima facia case for manslaughter. It would have to be on the facts of the case, only. IOW, if it's a good shoot...it's a good shoot. Combat Handguns this month has an article discussing this precise point! But instead of using the CCW as proof of intent to kill, they posited a theory that carrying spare ammo was prrof of the RAMBO complex. Read the article it's great and it completely handles the issue.

 

[Crashola]

Great response Ken. Once a prosecutor gets any whiff or inkling that the CCW shooter was anything other than in a reasonable fear for his/her life or great bodily harm, they may start sniffing around to see what really makes the shooter tick. A key body of evidence would be determining what the shooter has said in the past about using deadly force. Email and the internet are a freaking gold mine for attorneys. Behind the seeming anonymity of a computer screen, people tend to say things that they would only normally say in close conversation. The exception here is that their words are documented for the forseeable future. All the prosecutor has to do is seize the home computer, determine where that person was visiting on the Internet, and start subpoenaing ISPs, email accounts, etc. and, voila!, the statements like you posted become Exhibit A blown up on the jury's computer screens. It's a prosecutor's wet dream.

 

[Cosmoline]

I suppose it's possible, but I've never heard of or seen such a thing. Jeff, can you actually point to a case where your scenario took place? If not, maybe you should redact the whole thing. Suggesting that folks avoid getting a carry permit because some theoretical attorney might use it in a theoretical case is fear mongering.

I've noticed a lot of people worrying a great deal about what attorneys could "use against them" in court. It's a waste of time. Worry instead about whether you are truly faced with imminent and unlawful deadly force that you cannot avoid through other means.

 

[BryanP]

Cosmoline,

It was a joke. Hence the .

Maybe my sense of humor is a bit screwy right now. My wife died a week ago today and I'm still not quite processing correctly.

 

[mljdeckard]

I'm with ex-soldier here.

ONLY the fact, in and of itself, that you hold a permit duly issued by correct authority to carry a gun does not in and of itself constitute intent or malice aforethought. To say it does would be to infer that holding a driver's license is intent to commit drunk-driving. It would have to be all the OTHER elements involved that would incriminate.

And as others have stated, this would make the issueing authority a co-conspirator, as well as infer that all permit holders are the same. If a judge allowed the arguement, (and I were the defense lawyer,) I would trot out permit holders as rebuttal witnesses one at a time until the prosecution stipulated that just because one has a permit, it does not in and of itself indicate a tendency to commit crime.

 

[GuyWithQuestions]

Ladies and gentlemen of the jury, the defense is going to ask you to believe that Mr. CCW Holder is an honest, upstanding citizen who had to use deadly force to escape a bad situation with his life. I will show you who he really is. Mr. CCW Holder was a member of 4 different internet forums for five years before this incident. Mr. CCW Holder continually stated that he was anxious to use deadly force. After you see the public statements he made about using deadly force and cavalier attitude he expressed towards such a serious subject, you will agree that Mr. CCW Holder is not a clean living, upstanding member of our community, but a dangerous, unbalanced person who was obsessed with killing. He got his concealed carry permit in the hope that it would allow him to walk among us with a loaded firearm in his belt, looking to prove himself. And I will prove that he escalated a conflict on the mall parking lot from a verbal argument to a senseless killing, just so he could live out his internet fantasy.

Jeff and others, I've actually posted quite a few times on this board and other Internet forums that I don't think you should shoot someone just because they come into your home, they have to actually be presenting a deadly or forcible felony threat (which is what my state law says). I've also said here and other forums that I think a non-LEO citizen should carry around pepper spray because if they're in a situation where deadly force isn't warranted, they have other ways of self-defense. Okay, maybe earlier I was asking in the forums about criminals disguised as police officers and what to do in those situations, but I never said blow them away. Other forum members said that they would blow them away. I just asked how to deal with certain situations like that. I even said that I agreed with carrying a fake wallet on one post because throwing an old wallet with lots of one dollar bills in it is a lot cheaper than paying an attorney because you just shot someone. I did say in another post that if someone is robbing you at gun point, it may be a good idea to use deadly force against them because it's a pretty big and risky assumption that they're not going to kill you because most reasonable gun owners say you don't point a gun at someone unless you intend to put holes through the target (basic firearm safety rule) and that's what the armed robber is doing. I have said if I had the choice of being dead for the rest of my life or going to jail for the rest of my life because I used deadly force in self-defense, I'd rather go to jail; however, I did say that I would avoid deadly force if at all possible.

 

[Dallas239]

Most states probably have something like the following in their evidence rules (from the Federal Rules of Evidence):

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution;
...

Yes, there are exceptions and your state law may vary. But unless the fact that you did or didn't have a CHL tends to prove an element of the crime you are charged with it isn't likely to be brought up by the prosecution. Same goes for idiot postings on the Internet. Unless they are factually related to the actual crime you are charged with, they are likely either irrelevant, or inadmissible character evidence.

I'm not a lawyer, and you should only take legal advice from your lawyer.

I think the best advice so far came from Cosmoline and it's worthy of repetition:

I've noticed a lot of people worrying a great deal about what attorneys could "use against them" in court. It's a waste of time. Worry instead about whether you are truly faced with imminent and unlawful deadly force that you cannot avoid through other means.