Will a prosecuting attorney use your concealed permit against you?

[mljdeckard]

dallas;

I took the Rules of Evidence class. The reason I didn't mention them is, that ultimately, admissability comes down to the whim of a judge with immunity from any actions he executes in his office.

As for these boards, I am not at all afraid that anything I have said in here will one day be read in court. Pick Best Evidence Rule, Hearsay Rule, or any of a dozen different ways one could argue that postings in these boards are irrelevant, predjudicial, out of context, uttered in a cavalier and possibly ficticious forum, and impossible to attribute to the defendant with reasonable certainty.

 

[mekender]

As for these boards, I am not at all afraid that anything I have said in here will one day be read in court. Pick Best Evidence Rule, Hearsay Rule, or any of a dozen different ways one could argue that postings in these boards are irrelevant, predjudicial, out of context, uttered in a cavalier and possibly ficticious forum, and impossible to attribute to the defendant with reasonable certainty.

add in the fact that in the case where im standing in my kitchen, a BG is on the floor, the lock is broken, and my family is hysterical... its pretty damn unlikely for my internet habits to matter...

 

[Futuristic]

So, after all this discussion we have the following possible scenarios:

1. You do NOT get a CHL Permit and you Never get involved in anything that leads to Court proceedings. RESULT: NEUTRAL

2. You do NOT get a CHL Permit and you get involved in something that leads to Court, but the lack of a CHL Permit is not an element of the proceedings. RESULT: NEUTRAL

3. You do NOT get a CHL Permit and you get KILLED. RESULT: FRAKKING BAD

4. You do NOT get a CHL Permit and you get involved in something that leads to Court, AND you violated the law by NOT having a CHL Permit. RESULT: BAD or WORSE

5. You GET a CHL Permit and you Never get involved in anything that leads to Court proceedings. RESULT: NEUTRAL

6. You GET a CHL Permit and you GET involved in something that leads to Court proceedings, BUT the DA does not use the CHL Permit against you. RESULT: GOOD (You Lived, Didn't You?)

7. You GET a CHL Permit and GET involved in something that leads to Court proceedings, AND the DA uses the CHL Permit against you. RESULT: GOOD (You Lived, Didn't You?) AND BAD (You have one more thing to contend with in Court.)

I'll take the odds, and live clean, walk soft, and get (well, keep) my CHL Permit.

Futuristic

 

[GuyWithQuestions]

Could I use my pepper spray to counter the attorney?

I also carry pepper spray on me so that I have less lethal alternatives. If I'm in a situation that calls for lethal force and not less lethal, and I use my firearm, could I argue that me carrying pepper spray showed that I wanted to get out of using the gun if at all possible and that a lot of people have the attitude that all they're going to carry is a gun?

 

[Deavis]

As for these boards, I am not at all afraid that anything I have said in here will one day be read in court. Pick Best Evidence Rule, Hearsay Rule, or any of a dozen different ways one could argue that postings in these boards are irrelevant, predjudicial, out of context, uttered in a cavalier and possibly ficticious forum, and impossible to attribute to the defendant with reasonable certainty.

Sure, with enough money you can push away your stupid keyboard kommando ramblings. The point is, why give the enemy ammunition in the first place? Posting like an idiot is both stupid and a possible liability. Unlike in the old days where you could go to the bar and say stupid stuff that might be attributed to you by various bystanders with an alcohol hazed memory, today everything you say is recorded digitally and can BE DIRECTLY LINKED TO YOU. You may not think that the things you post on the Internet can be linked to you with any reasonable certainty but if you are in front a jury that includes me and the prosecutor details multiple posts from you on this board with your IP address, that is confirmed to come from your service provider, that all came from by your MAC, with the same login that is linked to your computer, I think as a normal person that I might be able to agree with the prosecution that you are an Internet Tough Guy that wants to cap bad guys based on your ridiculous Internet posturing.

You aren't going to be tried by 12 THR members. You are going to be tried by soccer moms, gun haters, regular Joe's, and irregular Janes. Don't be a fool.

 

[joab]

could I argue that me carrying pepper spray showed that I wanted to get out of using the gun if at all possible

Yes, as well as he could argue that you had other means at your disposal and chose to go for blood

Not as likely a scenario these days since the political tide seems to have shifted these days more in favor of self defense, but how long will that sentiment last?

 

[mekender]

You may not think that the things you post on the Internet can be linked to you with any reasonable certainty but if you are in front a jury that includes me and the prosecutor details multiple posts from you on this board with your IP address, that is confirmed to come from your service provider, that all came from by your MAC, with the same login that is linked to your computer, I think as a normal person that I might be able to agree with the prosecution that you are an Internet Tough Guy that wants to cap bad guys based on your ridiculous Internet posturing.

of course it can be linked, subpoenaed, recorded etc...yes they can track your IP, at least back to your modem... they can see what is connected to the router... beyond that, the MAC address is irrelevant... in a criminal case, they would seize any computer in the house and tear it apart in a computer forensics lab... and for 90% of the people, a cursory glance through a couple temp files would be plenty to track their online habits... post history wouldnt be stored on the client computer though... that would have to be tracked through the board... as someone that has run a phpbb board, i dont recall seeing a built in way to track what IPs were used for each persons login... might be there, might be an addon, im just not sure... but its simple enough either way...

what i was getting at was that in a case where a BG was laying dead in your kitchen, and the front door was broken down, it would be really UNLIKELY for a prosecutor to spend a lot of time tracking your online habits... now if said dead BG in your kitchen turns out to be your best friend... well you might have a problem...

now, you get arrested for a rampage like the omaha mall, you bet your ass that they will look at EVERY thing you ever did... even a questionable SD case in a public place, a parking lot robbery for example, COULD result in that scrutiny, but i doubt it... there are a lot easier ways to prove intent than dealing with all that computer work that may or may not be related to the case

 

[Double Naught Spy]

So you could legally carry your weapon while looking for someone to shoot.[/QUOTE

LOL, I guess you could, but I doubt anyone would get a permit so that they could legally carry while looking for someone to shoot. Something tells me that having a permit to carry legally isn't high on the list of folks who are looking for someone to shoot.

So sure, if you are carrying with the intent on committing a crime, I guess the permit issue might come up. I believe that might nullify the legality of the permit, at least in some states...not that a cop would know if the would be shooter was stopped before a shooting.

So would having a DL also be used against the person if the person was driving a car while looking for somebody to shoot because they wanted to be legal while driving?

 

[boalex207]

Jeff,

Excellent post on page 1.

Even though I hadn't specifically thought about "internet commandoitis" I talk about stuff like this with my Carry Permit classes.

Things like macho bumper stickers ( ex. "I don't dial 911" or "Forget the dog, beware of owner") may be humorous while your buddies are standing around elbowing each other, but they won't look good to a jury.

Thanks for the post. Mind if I reference it in the HCP classes ?

 

[mljdeckard]

Understand, that even if it CAN be linked to you, that's only one of a dozen reasons it wouldn't be admitted. Attributing it to one computer or IP does not conclusively link to one USER. And even if it IS linked to you, it's still predjucidial, and not in compliance with the Best Evidence rule, just to name the two easiest.

I don't make Kommando ravings in these boards, or any others for that matter.

 

[Hkmp5sd]

If a lawyer could prove you got your CCW so you could go out and kill someone, he could prove the state acted in conspiracy to help you kill someone by issuing the license in the first place.

Authors/Instructors like Ayoob have been preaching for years what Jeff White is saying. Your actions can come back to haunt you if you ever get involved in a shooting. Not just what you type on boards, but what you've said to your buddies over the years, the language you use, t-shirts you wear, stickers and signs on your car or house.

 

[HammerG26]

Problem with wording / quote

"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"
This is a problem as well... if I read this correctly, the author is suggesting that I have (and so does everyone else) a CCW (CHL) because I expect the NEED to arise to use my firearm. If I am wrong - please disregard the rest of this post...
I think it wrong for any of us to think we WILL NEED to use our firearms. I think we MAY NEED to use our firearm to protect ourself (or our family), and I have no problem with doing what is necessary - fact is, if one cannot come to that decision before-hand, one should not carry a firearm. However, that does not mean that I feel I will NEED to use my firearm one day... my analogy almost always goes back to auto insurance... I have it not because I WILL NEED it, but because there are a lot of bad drivers out there and I MAY NEED it one day... I don't change my level of auto insurance based on where and when I am driving, I just have it - at a level that is commensurate to my needs. The same applies to my CCW - I have one and I carry a firearm because there are a lot of idiots / BGs in the world (witnessed a couple at a gun store yesterday - that is another post).... my mindset is as follows... avoid a confrontation if at all possible, but be prepared for one (and its escalation) should one arise.
Just my $0.02

PS - Great posting Jeff... I often read people's posts thinking, "What are they thinking? Do they not realize how traceable their comments are?" [for the record, I am not a lawyer, but I am a "computer geek" - so I know all about traceability]

 

[Jeff White]

boalex207,
Feel free to use my post in your CCW class.

Jeff

 

[ashgee]

...believe me, there will be conflicting statements and at least as many variations as to what happened as there are witnesses...

Thanks for reminding me/us of that. Once you've seen this at work, you'll never say 'dispassionate observer' again. Quite frightening actually.

 

[Futuristic]

hkmp5sd Wrote:

Authors/Instructors like Ayoob have been preaching for years what Jeff White is saying. Your actions can come back to haunt you if you ever get involved in a shooting. Not just what you type on boards, but what you've said to your buddies over the years, the language you use, t-shirts you wear, stickers and signs on your car or house.

Yes, exactly, which leads us back to sage words from long ago, "Walk Softly and Carry a Big Stick."

More food for thought: Even if your lawyer is able to suppress your entire life outside of the actual incident in question from the Courtroom, you had better expect that all of that information: every internet post, every casual conversation about 'nutty things', every time your neighbor heard you yelling at your wife, etc. will all end up on the front page of your local newspaper during the trial. The legal system in America includes the Media now, whether we like it or not. The number of trials with effective gag orders is far smaller than those without.

Live as if your life is going to be the next Geraldo or Barbara Walters special, because it just might!

Futuristic

 

[logical]

Is anybody really going to make the arguement that I planned to commit a 1st degree murder but was concerned about a handgun charge so I got a CPL?

I'm a big tough murderer...remember?, why would I worry about the little laws.

In my mind, having a CPL brands me as a law abiding citizen and nothing more.

 

[TexasSkyhawk]

How many criminal investigations have you conducted?

Hundreds.

They aren't going to subpoena anyone's internet postings. They are going to serve a warrant on his home and office looking for evidence of a connection between the shooter and the deceased. Why? Because random violence between strangers is not common. The posts will be found. It's not going to matter if it's 1st, 2d or manslaughter, they are going to try to find out everything they can about the people involved. SO they can determine what to charge. Internet commando postings could make the difference between manslaughter and no charges or manslaughter and 2d degree.

We haven't even touched on what the plaintiffs attorney will do with them in the civil suit where the rules of evidence are much different.

I can't remember working with a local or federal prosecutor one that would go through all this much trouble to convict a law-abiding citizen who shot/killed a scumbag three-time felon who was trying to rob/burglar/assault him.

Maybe there's some yankee prosecutors who might be of a mind to try, but down here, you'd be toast.

It got tried, briefly, once, in Dallas county back in 1989 when a guy shot another guy dead in a mall parking lot. The deceased had gone into the mall, shot and killed his girlfriend and then her daughter. Ran out into the parking lot pointing his gun at people, screaming that he'd kill them. Customer reached in his glovebox, pulled out Ruger Super Redhawk and BLAMMO! Minus one scumbag.

DA announces he's charging the Ruger shooter. Press goes ape-crazy. Local business leaders very quietly explain to DA that they'll fund a petition drive and recall his ass by end of the week and he can kiss his Texas senatorial dreams goodbye.

No charges brought against Ruger shooter.

But for any prosecutor that DID try and prosecute a law-abiding citizen who shot/killed a scumbag felon robber/burglar/rapist, he/she better have a crack staff of their own investigators because they're not getting any help from the local police department.

Internet talk is just that--talk. Any recent law school grad could negate any internet "Rambo" talk to a grand jury inside of sixty seconds and make it a non-factor. And it'd be the real idiot DA/USA to keep challenging it if the defendant didn't have any other history of such behavior.

And the legal profession wonder why Americans admire cesspool well-diggers and pumpers nine times more than they do lawyers . . .

Jeff

 

[Jeff White]

TexasSkyhawk said;

But for any prosecutor that DID try and prosecute a law-abiding citizen who shot/killed a scumbag felon robber/burglar/rapist, he/she better have a crack staff of their own investigators because they're not getting any help from the local police department.

I'm so happy that in the federal bubble that you live and work in you never once in the hundreds of cases you've allegedly investigated had one where the circumstances as to what really happened and who might be at fault wasn't 100% clear. I'm really happy that in the federal world all the good guys where white hats and the bad guys wear black ones. It must make your job pretty easy.

If you bother to read the whole thread, you would understand that we are discussing the typical self defense case, the one that happens from a conflict that escalates from verbal to violence. Of course then again, that isn't the type of crime a fed would have any experience with. Bar fights, road rage, domestic disputes, disputes between neighbors are not federal crimes.

Perhaps you should restrict your pontificating to crimes you have actual experience with, i.e. tax evasion, medicare fraud, anti-trust violations.....Your world isn't the same as the world a local officer works in.

Jeff

 

[GEM]

Yep, the DA won't take you to court on a 'righteous' shooting:

Shooting sends man to court

http://www.lubbockonline.com/stories/071098/LD0649.002.shtml

AUSTIN (AP) - An Austin man licensed to carry a concealed handgun has been charged with murder in the shooting death of a would-be thief.

Austin police on Thursday filed the murder charge, a first-degree felony, against 27-year-old Paul A. Saustrup. According to police, Saustrup shot to death Eric Demart Smith early Wednesday after Smith broke into a vehicle owned by Saustrup's girlfriend.

Police said the couple walked up on Smith as he was sitting in the vehicle. Saustrup pulled out a .380 handgun and attempted to keep Smith in the truck while his girlfriend called police. But Smith, 20, jumped out of the vehicle and began to "walk briskly" away and the couple followed him, investigators said.

Joe Turner, Saustrup's attorney, said his client warned Smith to keep his hands visible. Smith, said Turner, kept saying he'd have "his homeboys" shoot Saustrup and continued walking into a dark area of the street.

"He made a move to his belt area and started to twist around," Turner said. "My client did not want to shoot this person. He was still on the phone with 911. ... He wanted the police to arrest him (Smith)."

Assistant Police Chief Mike McDonald said Smith was not armed and had not taken anything from the vehicle.

Assistant Travis County District Attorney Buddy Meyer said whether the shooting was justified will have to be resolved in court.

Smith was shot once behind the left shoulder blade and once behind the right shoulder blade, said Travis County Medical Examiner Robert Bayardo. Both shots, fired from sat least three feet away, entered Smith's heart, the medical examiner said.

---------

So Paul went to court. IIRC, the thing that saved his butt was that the 911 operator told him or agreed with him following the criminal. Thus, he was able to avoid being painted as bloodlusted. One can google the whole incident and the trial.

 

[TexasSkyhawk]

Your world isn't the same as the world a local officer works in.

Street drugs, street crimes, street gangs isn't the same world a local officer works in???

Just how the hell do you figure that? Who do you THINK puts together task forces made up of local officers so that they can prosecute in a federal courtroom and get better sentences than what the candyass state judges dish out?

Can't wait to see some of my old DEA partners this evening and inform them that all those years we spent living in crackhouses, biker bangs, meth labs and busting street gangs, our world wasn't the same as a local officer's and therefore we really didn't know Bo Diddley.

That oughta be more entertaining than the eggnog.

Maybe we should've wrote tickets--would that have helped?

Yep, the DA won't take you to court on a 'righteous' shooting:

In the law's eyes, this was a questionable shooting. Paul's life was not in immediate danger. He FOLLOWED the suspect and tried to play cop when he obviously wasn't trained to do so.

That was his big mistake. (Another mistake is living in Austin, but that's a whole nother discussion) It resulted in him not being able to control the situation, which then allowed it to escalate to the point that he (Paul) DID feel his life was in danger.

From just about any inivestigating officer's viewpoint, the shooting COULD'VE boiled down to a "he said/he said" scenario that was the result of a lover's trist (you got a girlfriend involved), rival gang problems (cop doesn't know if Paul is a gangster or not), etc etc.

Personally, I have zero problem with the shooting. But even so, were I an investigating officer for that, I would more than likely have no choice but to read the guy his rights.

NOW. . . how I write up the incident could make all the difference in the world in how it is perceived by said DA. That apparently didn't happen. But then again, Travis County DA's have a long history of being sympathetic to the criminal element and suspicious of law-abiding citizens who refuse to cower.

Jeff

 

[Biker]

BryanP...

I'm very sorry to hear the news about your wife. There really is nothing useful to say beyond that.

Sympathies Bro...

Biker

 

[GEM]

The two cases - Dallas and Austin make the point. It is someone's opinion as to what is a good shoot (the DA, for example and then the jury). It is subjective to some degree.

Thus, if you get to court because of this subjectivity, can the impression of 'bloodlust' be used against you? Is the CCW 'bloodlust' ?

I can tell you from jury simulation research, presentation of weapons related info has influenced some mock juries. The actual effects are complex and I don't feel like writing a long review now but they are there. The shoot has to have some ambiguity about it for them to operate. I gave a talk about this at the National Tactical Invitational a few months ago.

That's why DAs wave the weapon around. For one example, in the DC Snipe case the DA started by slowing assembling the AR in front of the jury. That's because weapons exposure keys a jury against a defendant with the right circumstances.

It is not out of the realm of possibility that one's extreme 'bloodlusted' musing on the Internet couldn't influence the jury. Whether the defense lawyer can stop them from getting admitted isn't my domain. Research does show that things that the judge tells you to ignore as a juror, aren't ignored.

To the main point, I think the CCW permit itself will be a minor point and not a tremendous influence.

 

[alan]

Providing that the permit holder acted WITHIN THE LAW, I fail to see how the prosecutor could. On the other hand, A PERSECUTOR could perhaps do all manner of strange things.

The late criminal defense attorney William J. Fallon, who in a long career lost one case, that as a prosecutor in Westchester County New York, years later, when asked about that matter offered the following, according to a biography of Fallon I once read. He said that he lost because rather than PROSECUTING the case, he PERSECUTED the case, ending with the conclusion that the trial jury recognized what he was doing, and didn't like what they saw.

 

[GEM]

Providing that the permit holder acted WITHIN THE LAW,

If that was so clear, why are you going to trial! That's what all the 'righteous' shoot statements seem to miss. If it was so clear, then, duh, you ain't going to trial.

At trial, the subjective decision is in the hands of the jury. Go get a book on juries to see what influences them.

 

[alan]

Gem and I seem to be overlooking one point, the anti gun hot dog prosecutor, one that shares the opinions held by some in police management, and possibly some street cops too, that being that they, the citizenry do not need, nor should they have those things, guns.

This is based on the cops being there, of course they aren't, and also on the cops knowing better or best, they don't,and despite the number of bad shootings involving police officers, as opposed to the smaller number of bad shootings involving the armed civilian.

Given media hype, the above mentioned hot dog prosecutor and the possibility of an election coming up too, your righteous armed civilian could well be looking at a problem. Merely having a carry permit or license, abssnt an actual shooting, who knows what you have in your pocket, wallet or card case.