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November 19, 2012, 10:08 AM | #126 | |
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November 19, 2012, 10:47 AM | #127 | |
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I carry chambered, but I have also pointed out more than once that some methods of carry that do not raise such vehement objections - kangaroo pouches, ankle holsters, belly bands, tuckable holsters, for example - create similar delays in presentation, at least in some situations, and often require two hands. I am not saying that carrying without a round chambered is preferable, but neither is a person who chooses to carry thus as helpless as someone without a firearm. No offense, but it is not a club - it is a firearm that, with a certain amount of training and awareness, can be made ready for defense in fairly short order. |
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November 19, 2012, 10:20 PM | #128 | ||
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November 19, 2012, 10:51 PM | #129 | ||||
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But Washington is not one of them. And if you commit a crime, and if you haven't done so before, that may make a difference in sentencing, but it will not affect the question of guilt. Quote:
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November 19, 2012, 11:19 PM | #130 |
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OldMarksman, I am not a lawyer. However, I have been told by former prosecutors and defense experts that the alleged perpetrator's background can be brought up in almost any jurisdiction, as it pertains to past patterns of behavior and their relevance to the behavior the shooter/defender claims to have seen evinced.
In other words, if a BG has a prior history of using a crowbar to threaten and then attack people as they get out of their car, in their driveway, and if the client claims that the BG threatened him with a crowbar as he was getting out of his car, then the odds are good that past history will be allowed, at least as it relates to that specific MO. OTOH, the simple fact of the BG's prior history is otherwise irrelevant, unless the client can prove they had prior knowledge of that history. Example, a woman knows that a particular man in her neighborhood has previously been convicted of rape or sexual assault. If she can establish that she knew that prior to her encounter with the man, then his history (or what she knew of his history) would be relevant. Frank Ettin or Spats, please feel free to correct me. |
November 20, 2012, 12:02 AM | #131 | ||||
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In the prosecution of the "perpetrator", i. e., the person whose conduct was defended against, the prosecutor can introduce evidence of that person's past conduct to show a pattern or "common plan or design." But in a prosecution of the "defender", in defense of which the defender claims self defense, the "defender" can not introduce evidence of the "perpetrator's" past acts, reputation for violence or criminal record unless (1) the "defender" can establish the he/she knew those things; or (2) the prosecutor has put on evidence of the perpetrator's good character to challenge the "defender's" story about what the "perpetrator" did. So -- Quote:
However, if the crowbar wielder was being prosecuted, the prosecutor could put on that criminal history evidence to show MO. Quote:
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November 20, 2012, 12:03 AM | #132 | |||
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November 20, 2012, 12:12 AM | #133 | |
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No one is accusing this woman of having committed a crime. No one has finally decided that her conduct was not justified. We are discussing the standards that apply to determining whether a defensive threat or use of lethal force is legally justified and that the assessment of whether or not it was justified must go beyond the mere fact that it was a good result that we all can applaud.
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November 20, 2012, 12:59 AM | #134 | |
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Frank I can appreciate your post, but I wasn't worked up during my post. I honestly am curious with my question + consider it valid.
I feel like this thread is like kirk and spock(even way before I jumped back in)....as in, who is right...there's always two sides to every coin. Quote:
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November 20, 2012, 01:02 AM | #135 |
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Frank,
I would have sworn that in one class I attended, where Harold Fish was a topic of discussion, the point was made that one of Fish's bases for appeal was that the man he shot had a past pattern of behavior that exactly matched what Fish described as having been displayed toward him. In the original trial, the defense was not allowed to prevent that evidence. The instructor of the class I attended said that was a specific point on which the appellate court said the trial judge had erred. Because the past pattern of behavior matched so perfectly with what Fish had described to investigators, it should have been allowed to support Fish's veracity. It's entirely possible the instructor of the class was in error, but this is what he told us. |
November 20, 2012, 01:09 AM | #136 |
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I meant Spock and McCoy as if it matters...
yes MLeake, no doubt you are right. That is one major point of law in traffic or criminal courts(habitual offenders//those ones are easy). OldMarksMan, I hope you don't feel like I am trying to call you out or put you down. I just feel like you are unwilling to budge(you might see it the same from your point of view).
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November 20, 2012, 01:15 AM | #137 |
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younggunz4life, OldMarksman and Frank Ettin make some very good points - which should come as no surprise to you or me.
Now, would I as potential juror convict the woman? No... but that might require deliberate jury nullification on my part, because Washington law might call for a guilty verdict were charges to be pressed. Counting on jury nullification is not a strategy I would recommend. |
November 20, 2012, 01:19 AM | #138 |
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Nobody would; they would just hope for that strategy once they are already in a bind. It doesn't change the fact here what you just stated isn't even an extreme stretch, Frank has pretty much conceded this woman probably wouldn't, won't, andor shouldn't be charged(please correct me if I am wrong & I apologize if it appears I am putting words in your mouth, as I am not trying to).
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November 20, 2012, 01:35 AM | #139 | ||
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
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November 20, 2012, 01:49 AM | #140 | |
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I would like to add though...this is sort of a question that doesn't need to be answered...you and MLeake realize I was talking about past offenses amongst other factors 'coming into play' before court proceedings, right? As in, these factors can play a major or minor role in decisions of an arrest not being made in the first place.... In which case, it doesn't matter whether it can or cannot be added into evidence.
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November 20, 2012, 09:29 AM | #141 |
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No matter what is gained or lost here this has been a very interesting tread. And yes we don't have a lot to go on but like with any good mystery we have to use logic and reasoning to fill in the blanks
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November 20, 2012, 09:51 AM | #142 | |
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We are all capable of some pretty horrific things. BTK was married and the deacon of his church and folks knew he wasn't capabe of such horrific acts for which he was accused, but he was. Capability really isn't the issue here, is it? If so, then a lot of us are in potential trouble even though we have done anything wrong (or anything anyone currently knows about).
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November 20, 2012, 10:09 AM | #143 |
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Prior bad acts by your opponent, if they were not known to you the defender at the time you harmed him, are normally not allowed into evidence. They did not have any bearing on the decision you made, the decision for which you are being judged.
Two cases in Massachusetts, Commonwealth v. Adjutant and Commonwealth v. Pring-Wilson, go against that according to that state's supreme court; ditto Arizona in Arizona v. Harold Fish. And in any state, as Frank Ettin has pointed out, if the prosecution "opens the door" with an argument like "you can't believe a nice guy like X would try to harm someone like the defendant," the judge can set the rule aside. |
November 20, 2012, 10:22 AM | #144 |
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^^^^
I almost went into that myself. Learned it at MAG-20 last year. |
November 20, 2012, 10:44 AM | #145 |
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Some Things to Keep in Mind
Last edited by OldMarksman; November 20, 2012 at 11:49 AM. Reason: typos |
November 20, 2012, 05:51 PM | #146 | |||
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good points oldsmarksman, that being said:
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November 20, 2012, 09:15 PM | #147 |
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dang you actually let me get the last word on that one.....
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November 21, 2012, 09:52 AM | #148 |
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OK, now that we're past the emotion, let's summarize this from the standpoint of tactics and training.
The original question was whether the woman went too far in drawing her gun. Pax has shown us that justification under the law in her jurisdiction would depend upon whether she had reason to believe that doing so was necessary to protect herself or her child from presently threatened unlawful force. That's it. Nothing else really matters. Whether we may we have an actor for whom we may be sympathetic-and we do, a woman with a disabled child--doe not show up in the code, nor does our opinion of the person she threatened. Those who insist on believing otherwise need to study more, and to consider some of the very upstanding citizens who have been convicted of felonies after having drawn when it was later not deemed justified, and some of the criminals who have won acquittals in self defense cases. The threshold in other jurisdictions is different. Penalties for violation very widely. There may be those who contend that when the outcome is favorable, the actor did the right thing. That doesn't follow. Luck will not always smile on us. We can learn from after action reports on successful encounters as well as from failures. Personally, I do not think that carrying a semiautomatic pistol without the magazine, or with the magazine unseated, depending upon which report is accurate, is a very good idea at all. True, she was not overcome, disarmed, raped, or beaten, but it is a very good idea to be able to react very quickly to a rapidly unfolding attack. The consequences of failure can be very severe indeed. We cannot judge from news reports whether drawing was either justified or a good idea. The man reportedly approached "aggressively." We cannot tell whether a present threat of unlawful force existed. Personally, I do not think it very bright at all to shout "I'll blow your brains out" when pointing a gun at someone who is seated. Had things gone bad, and had there been an earwitness, that could have tipped the scales against her, all other things being equal. Did she do anything right? Yes indeed. She contacted the police immediately. We talk about that all the time here. Yes, she is a sympathetic character. Yes, the other guy is anything but sympathetic. Yes, she came out of it unhurt, and most probably legally OK. But there are a number of things she did that she could have done a lot better. |
November 21, 2012, 12:49 PM | #149 | |
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Now if it was a man then you may be right. As it was, there was a disparity of force with aggression involved. |
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November 21, 2012, 12:53 PM | #150 |
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So a guy goes up to a strange woman and flashes. I'd say he may be capable of anything. All bets are off the table as far as I am concerned. How would you like if if that woman was your wife, mother, sister? She did the right thing. Why should an INNOCENT woman have to grant any leeway to a possible male attacker?
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attack , self-defense |
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