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Old August 10, 2014, 03:02 PM   #76
Frank Ettin
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Let me add an anecdote.

When I took LFI-1 from Massad Ayoob, he related a brief part of a cross examination of a defendant on trial for manslaughter following the defendant's shooting of a person in what he claimed was self defense.

The brief segment of the cross examination, as the story was told by Mas went like this --
  • Prosecutor to defendant on the witness stand, "Did you shoot to kill?"

  • Defendant, looking at the jury and answering in a calm, soft voice, "No. I shot to live."
The defendant was acquitted.

If someone having used force in self defense winds up in court, his legal defense presents some knotty problems. It is, in a self defense case, very different from ordinary criminal defense.

Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1:
Quote:
...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....
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Last edited by Frank Ettin; August 10, 2014 at 03:09 PM.
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Old August 10, 2014, 03:27 PM   #77
OldMarksman
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Armed, please read and heed Frank's responses.

One does not shoot "to kill".

One shoots when and only when it is immediately to prevent someone else from seriously harming someone. Shooting may well result in the death of the assailant, but that is not the lawful objective.

One of the things pointed out by Lisa Steele is that one may lawfully use no more force than is necessary to defend oneself. If one shoots and the assailant falls unconscious or drops his gun and runs, one may not shoot again--period.

A pharmacist who did shoot a person on the ground after he no longer constituted a threat was charged with and convicted of first degree murder in Oklahoma City not too long ago. Research the Jerome Ersland case.

Last edited by OldMarksman; August 10, 2014 at 03:42 PM.
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Old August 10, 2014, 08:10 PM   #78
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Quote:
Why are you doing that? We have settled the legal issue, correct?
TX law allows a person to display a firearm legally at a lower threshold of justification than the justification for deadly force. If force (a lower standard than deadly force) is justified under the TX Penal Code, a person may display a firearm.

The purpose is clearly stated:
Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
While it is reasonable to state that the display of a firearm may be viewed as a threat to cause death, that doesn't mean that a defender would be well-advised to state that his purpose was to kill the attacker.

Assuming the proper justification exists, the defender has the right to use deadly force to prevent or stop certain violent crimes with the understanding that the death of the attacker may result, but that is not equivalent to being given the right to kill. If the attack ceases and the attacker is still alive that is irrelevant—the justification for deadly force no longer exists even though the attacker has survived.

Justifiable deadly force is about preventing killing, not about killing. Sometimes death is an unavoidable consequence, but it is never the goal.
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Old August 10, 2014, 08:45 PM   #79
armed
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Quote:
Originally Posted by Frank
Oh my! How awful.

Admitting as the very first answer an intent to kill would be a terrible idea.
For clarity:

Quote:
Originally Posted by armed
What was played out above is true and real. Remember, my training is from a crisis perspective. In other words, you should not act this way with on scene authorities. The crisis is over and now it's time to assist. Frank Ettis has posted some good stuff on that, i.e., humble, cooperate, assist, to a limited degree, yada yada…If there's a problem you will see it slowly evolve into a crisis again.
When I said, “In other words, you should not act this way with on scene authorities.” That meant “Admitting as the very first answer an intent to kill would be a terrible idea.”

When I said “The crisis is over and now it's time to assist.” That meant the bursting/shooting event is over and it’s now time to assist the authorities in their investigation.

When I said, "Frank Ettis has posted some good stuff on that, i.e., humble, cooperate, assist, to a limited degree…” That meant you wrote excellent pieces on how someone should assist first responders in their investigation, i.e, how someone should act humble, cooperate, and aid investigators, but only to a limited degree.
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Old August 10, 2014, 10:25 PM   #80
Frank Ettin
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Quote:
Originally Posted by armed
Quote:
Originally Posted by Frank
Oh my! How awful.

Admitting as the very first answer an intent to kill would be a terrible idea.
For clarity:

Quote:
Originally Posted by armed
What was played out above is true and real. Remember, my training is from a crisis perspective. In other words, you should not act this way with on scene authorities. The crisis is over and now it's time to assist. Frank Ettis has posted some good stuff on that, i.e., humble, cooperate, assist, to a limited degree, yada yada…If there's a problem you will see it slowly evolve into a crisis again.
When I said, “In other words, you should not act this way with on scene authorities.” That meant “Admitting as the very first answer an intent to kill would be a terrible idea.”

When I said “The crisis is over and now it's time to assist.” That meant the bursting/shooting event is over and it’s now time to assist the authorities in their investigation....
Your fantasy "interrogation" is still hooey and lousy advice. Again see my alternate.

Another example of a very poorly thought out proposed response from that post:
Quote:
Originally Posted by armed
...Authorities: So you thought displaying a gun would prevent your imminent death or great bodily harm?

Client: No, I was going to kill X, therefore, I was acquiring proper readiness to do so....
A better plan:
  • Cop, "So you thought displaying a gun would prevent your imminent death or great bodily harm?"

  • Victim, "Yes."
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Old August 11, 2014, 11:56 AM   #81
spacemanspiff
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Yes, Armed, I do consider myself very fortunate. Things could have gone a lot differently, had the driver not pulled up behind us prematurely.

I'm not sure what to say about your further arguments supporting your theory on this 'burst presentation'. One thing I believe you are overlooking is that the person you feel threatened by, because of aggression and/or larger size, may not make another person who is also of similar smaller stature feel threatened.

If you want to do your burst presentation to defend your safety without having to point your gun at the threat, knock yourself out, good luck. Just don't try and insist that it should be added to the defensive repertoire of everyone else.

Like I said before, disparity of force is subjective. If all they appear to be intent on doing is attacking you without using a weapon, maybe you should be reaching for the pepper spray, or a taser, or even go and get training in hand-to-hand defense. Wouldn't that be better alternatives?
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Last edited by Frank Ettin; August 11, 2014 at 12:05 PM. Reason: remove some unhelpful commentary
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Old August 11, 2014, 03:04 PM   #82
Frank Ettin
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Quote:
Originally Posted by spacemanspiff
...disparity of force is subjective. If all they appear to be intent on doing is attacking you without using a weapon, maybe you should be reaching for the pepper spray, or a taser, or even go and get training in hand-to-hand defense. Wouldn't that be better alternatives?
This highlights one of the most difficult conundrums in self defense.

Disparity of force is a real issue. An unarmed big/strong/young person can indeed kill someone, especially someone who is infirm/frail/old. The difficulty can come in convincing a prosecutor or, if you're unlucky, a jury that under the circumstances you were at lethal risk from the unarmed assailant.

But if the threat is legitimately a potentially lethal threat, and if the victim is infirm/frail/old, effective unarmed resistance might simply be a bad dream. And things like pepper spray or a taser can fail and, in the face of a truly deadly threat and depending on circumstances, leave one without enough time left to resort to lethal force.

So there can be some merit to a threat of lethal force, when legally justified, which can immediately be backed up with lethal force if necessary. But that of course brings us back to the problem of having to establish that an unarmed assailant really did present a legitimately lethal threat.

All of that serves to illustrate that Avoidance/Evasion/Escape might often be the best choice if possible.
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Old August 11, 2014, 06:58 PM   #83
armed
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To All Conceal Carriers,

In relation to my writing it should be understood I’m addressing the working class, and folks that don’t necessarily have the discretionary income to hire a lawyer. What I’m offering is another approach you may want to explore. If you can afford a lawyer then disregard everything I’ve posted, and stop reading this.

This is the Tactics and Training forum:

Quote:
“When your best defense is a quick, hard offense, the lessons learned here may prove invaluable. This is a "no holds barred" training area.”
You can learn from this thread by recognizing that what you’re witnessing here is no different from the troupe of performers you’ll encounter after a Use of Force event.

The trained animals will arrive. These sheepdogs will be the first ones on scene. Most have instinctive intelligence, these are spectacular sniffers so cleanse yourself of wolf odor. Some only have obedience intelligence, and can be mislead down false trails…witting or unwitting - so always be wary.

For now, you are the cat walking a tightrope, but to the kings, queens, and their royal guests, you are just a jester who is expected to amuse. Though always remember, while you enjoy privileged status, excessive behavior could get you whipped for insulting the court. ENJOY THE CIRCUS.

Lets begin…

My arguments have been called stupid; silly; lousy; terrible; awful; nonsense; and my mock interrogation was hailed a “fantasy”.

This is all in attempt to devalue and diminish your argument. Attorneys and skilled interrogators use this tactic to make you look uneducated. They want you to feel shame and foolishness for trying to match wits with them. Remember, they see you as a jester and view your arguments as buffoonery and “hooey” (#80).

Ignore it and stand tall. If your argument is solid do not bend and be firm in your belief.

_______________________________________________________________________________________________

Quote:
I believe in an old saying “rather be judged by 12 than carried by 6”
Quote:
Originally Posted by OldMarksman
That's a neat cliche, but don't put too much stock in it.
A cliche promptly dismissed and and now we are to put more stock in the "stupid juror" cliche. Why? Because kings and queens believe we are jesters incapable of deciding their case.

_______________________________________________________________________________________________

Quote:
Originally Posted by DannyB1954
...If there were witnesses, they should be able to state that you gave fair warning to a perceived threat. If there are no witnesses, who says you put your hand on your gun?...

Quote:
Originally Posted by OldMarksman

Why? What do you know about eyewitness psychology?


In fact, the unreliability of eye witnesses is well studied and well known. See, for example the article "The Problem with Eyewitness Testimony" as published in the Stanford Journal of Legal Studies. An eyewitness might easily conclude that you were the assailant and that you threatened an innocent man with your gun.

And even if there are no third party witnesses, there will always be a witness besides you -- the guy you threatened with your gun.

Should the defendant choose to take the stand, and I do not see any other way that those "cues" could ever be presented as part of a defense of justification, most defendants would most likely have a terrible time describing the "cues" and why he or she happened to be qualified to interpret them as an indication of criminal intent. There are multiple possible explanations for each of them, and frankly, some people just act that way. I would dread being put in that position.
That's right, we know nothing, we give terrible descriptions, and why should we we even possess the skills and knowledge to give such descriptions? Because it's "fact" that's why.

[I'm getting nauseous - literally]

_______________________________________________________________________________________________

I have to break for dinner. I will be back shortly and rip to shreds their arguments on substantive law, and the ohhhhh-so-offensive word "kill". I'll even use it in a mock trial, so that you all may weigh in with a verdict on who's keeping things real.

Last edited by armed; August 11, 2014 at 10:14 PM.
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Old August 11, 2014, 07:19 PM   #84
OldMarksman
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Quote:
Posted by armed: What I’m offering is another approach you may want to explore.
"Another approach"? Other than what?

And please, one more time, what are you "offering"?

Quote:
You can learn from this thread by recognizing that what you’re witnessing here is no different from the troupe of performers you’ll encounter after a Use of Force event.
I'm afraid I have no idea what you are trying to say.

Quote:
The trained animals will arrive. These sheepdogs will be the first ones on scene. Most have instinctive intelligence, these are spectacular sniffers so cleanse yourself of wolf odor. Some have only obedience intelligence and can be mislead down false trails…witting or unwitting - so always be wary.
You have lost me.

Quote:
For now, you are the cat walking a tightrope, but to the kings, queens, and their royal guests, you are just a jester who is expected to amuse. Though always remember, while you enjoy privileged status, excessive behavior could get you whipped for insulting the court. ENJOY THE CIRCUS.
To whom, and to what, are you referring?


Quote:
Quote:
Originally Posted by OldMarksman

Why? What do you know about eyewitness psychology?

In fact, the unreliability of eye witnesses is well studied and well known. See, for example the article "The Problem with Eyewitness Testimony" as published in the Stanford Journal of Legal Studies. An eyewitness might easily conclude that you were the assailant and that you threatened an innocent man with your gun.

And even if there are no third party witnesses, there will always be a witness besides you -- the guy you threatened with your gun.
It was not I who said that, but it is really quite incontrovertible.

Quote:
Should the defendant choose to take the stand, and I do not see any other way that those "cues" could ever be presented as part of a defense of justification, most defendants would most likely have a terrible time describing the "cues" and why he or she happened to be qualified to interpret them as an indication of criminal intent. There are multiple possible explanations for each of them, and frankly, some people just act that way. I would dread being put in that position.
That's right, we know nothing, we give terrible descriptions, and why should we we even possess the skills and knowledge to give such descriptions? Because it's "fact" that's why.
You have missed the point completely.

The point is that the "cues" might prove very valuable indeed in giving one cause to be wary, but a lay defendant's ability to describe them convincingly in a manner that would indicate reason to believe that he or she had had an immediate need to use deadly force would be unlikely to suffice in a defense of justification. I know that I would not want to try it.
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Old August 11, 2014, 08:21 PM   #85
Frank Ettin
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Quote:
Originally Posted by armed
...I’m addressing the working class, and folks that don’t necessarily have the discretionary income to hire a lawyer. What I’m offering is another approach you may want to explore....
Very bad advice.

If someone has a serious legal problem and his property or freedom is at stake, he needs a qualified lawyer. If he can't afford a lawyer he also can't afford not to have one. I know that a number of my colleagues made a good deal of their money trying to sort out messes for folks who tried to do it themselves -- messes, and legal expenses, that perhaps could have been avoided or minimized with a little care or attention. But at least that lack of care and attention helped enrich my colleagues.

Anyone who thinks good legal representation is too expensive, or they can't afford it, should think about how much more it'll wind up costing them after they tried to do things themselves and made a hash of it.

If you have a serious legal problem, you want a lawyer because (1) dealing with those things is something he's been educated and trained for; and (2) you will be under a lot of stress because you are at risk, while your lawyer is in a better position to think things through clearly and objectively.

Lawyers when dealing with their own legal matters hire lawyers. When a few years ago I had occasion to sue the federal government, I immediately hired a good lawyer.
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Last edited by Frank Ettin; August 11, 2014 at 11:25 PM. Reason: correct typo
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Old August 11, 2014, 08:27 PM   #86
Art Eatman
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I won't get into the merits of anybody's views, okay? But it looks to me that this thread is an example of the problem of the written word without facial expressions and body language to help provide clarity.

Some could be "dictionary" as to what differences there could be in interpretations of various words. The old "talking past each other" thing.

And what might be legal in one state might well not be legal in another.

Might be best to just let this die. Go away and think about what's been said. Maybe try again--maybe.

And I'll close with another of my "Damfino."
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