A Lawyer’s Rant about Self Defense Myths
One of the most useful articles I have read for gun arguments resulted in Author Larry Correa condensing some of his forum posts into a single place. ( https://larrycorreia.wordpress.com/2012/12/20/an-opinion-on-gun-control/) I use it every year or so when gun control comes up.
So I find myself frequently having the same aggravating conversation, and at one point I roughly banged out my thoughts on a forum, and got a bit of positive feedback on that. I ain’t exactly a popular author, but I can steal ideas from Larry C. Here’s my (rant) article.
Normally, it’s dumb to list your resume before your opinion, but here it might be relevant.
I used to work for the prosecuting attorney in my county, then later under another attorney who was a private firearms defense attorney. Then I became an attorney. I have a degree in criminal justice, with emphasis on crime theory and statistics, and another emphasis on being a paralegal. Those fed into me being part of the system which generates crime states in the “uniform” crime reports. So I know about this stuff a bit. I do business law, NFA trusts and adoptions, not criminal defense. I’m informed about criminal law, but it isn’t my day job.
Frequently online and gunstore pontificators will talk about whether a certain gun, or type of ammo, or firearms accessory will screw you over if you ever use it in self defense. Attorneys will pretty much never argue about that nonsense in court. It’s beside the point. The other attorneys may quibble with me a little about how much to emphasize one thing or another, but they will back me up on the main points.
We attorneys argue about whether you had good reason to fear for your life when you pulled the trigger, and whether you actually did fear for your life when you pulled the trigger. They also talk sometimes about whether you are an innocent party before you pulled the trigger.
That’s basically it. All the fight is about whether you should have shot, not what you shot with.
People bang on about this crap forever, but it is all in your head. It’s not the issue the law asks about, so it isn’t what the attorneys ask about. Attorneys have to argue on law. We identify the law, then what facts the law considers, then we find the facts in the situation and apply them to the rule, line by line. If the rule doesn’t ask for a fact, we don’t waste time talking about it. We would get in trouble for that, and it would water down our case.
Lemme make it simple. If you were justified in using lethal force, you could have used a chainsaw. If you weren’t justified in using lethal force, nothing about the nature of your weapon will get you off the hook.
But unfortunately old wives tales get passed on as “common knowledge.” People apply laws from one area or time to another, and usually stuff that was never the law anywhere.
Here’s an example of this from the forum thread mentioned, followed by my responses.
“redacted online friend wrote: if they’re in your home, its castle doctrine, and you were in fear for your life.
if you’re outside the home in a CPL defense situation, you were in fear for your life.
any other answer is just asking to get yourself into trouble without your lawyer present. K.I.S.S.”
Not so much. This is an issue I know pretty well and I have done the analysis on the laws of many states. Really we are all pretty much the same, and the people who assert that the rules are different in their states are engaging in a lot of wishful thinking and don’t understand how to do full and proper legal analysis.
That is multiplied by 100 when people drop the phrases “stand your ground” and “castle doctrine”, which people misunderstand very badly.
Those are basically officially stating the presumptions about a couple of the factors/elements. Presumptions are rebutable, by evidence or testimony. Some states also have rules that are a little different about the affect of a criminal case on a civil suit, or vice versa, and when those can be filed. The terms tend to get muddled among both the press and the gun community. Just because “they” have it wrong, does not mean that “we” don’t have it wrong most of the time too.
The analysis for justifiable homicide or justifiable use of lethal force (i.e. threats) works the same in all the states.
1) It is an affirmative defense, and there is no turning back. You basically are pleading guilty as step 1. ~”Yes I admit that I did it, but that is okay because…”
2) The person using the defense a) has to be an innocent party, AND b) be protecting an innocent party (which could be himself).
3) The person had to be in fear for their life from immediate danger of death, severe bodily harm, or rape. (Defense of property is not enough, but if using justifiable force in defense of property exposes or escalates to a reasonable fear of death, then lethal force can be applicable…)
This is objective AND subjective.
3a) This is objective, meaning that another reasonable person in their position would have had the same fear.
3b) It is subjective, meaning that the specific person actually feared for their life…
4) the force was necessary. – This one varies a little bit state to state, but not as much as most people think. I’ll bullet point out the highlights:
– If you are safe, and you go to the fight, it isn’t necessary. i.e. you unlock your door and go to confront the guy, after the lethal threat is apparent, then the fight was not necessary.
– no state has an absolute duty to retreat, but a couple used to. These states require you to retreat in public places if it is practically possible: Arkansas, Connecticut, Delaware, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New York, New Jersey, and Rhode Island. If retreat doesn’t make sense, you don’t have a duty to try and fail. i.e. turning your back to the knife in a phone booth.
– this is situational. In short, if the threat could have been completely and certainly avoided in some way after the threat arose then it wasn’t necessary.
–And finally whether your story rings true on each of those points. Anything which makes you look like a liar might be addressed.
To oversimplify, if a fact doesn’t plug into one of those points above, it won’t be in a trial. It is not relevant to what needs proved or disproved. Lawyers look for the “issue” which is whatever fact or rule people are likely to argue about in a case. We say, “What is the fight going to be about?” Notice how what kind of gun or ammo was used wasn’t on that list.
Castle Doctrine is really simple, and it isn’t what people think.
It does NOT mean you can shoot anyone in your house because it’s your house. Of course it doesn’t. That would be insane.
But I have personally had a lot of “experts” argue that it does mean that, so I am addressing it here. The remedy for tresspass is not high velocity lead. It is calling the cops, and getting them arrested, and automatic cash damages. You don’t get to shoot the neighbor’s kid when he’s getting his frisbee just because he crossed your magic property line. If we had a law like that, I would be working to change it, because it would be an evil and stupid law.
What it does mean is that in your case 3a) is automatically passed, and 3b) has a heavy thumb on the scale. We presume that if you wake up at 4:27 am with a stranger in your house that this person is there for no good, and a normal person would be afraid. We also think you personally are probably afraid. At that point all you need to do is convince them that you definitely were. The burden would be on the prosecution to prove that you weren’t afraid. Don’t be like my old boss’s client who went from a won case to a lost case by saying. ~”Yeah, I knew he was up to no good and a normal person would be afraid, but I knew I could take him no problem.” he rebutted his own fear by stating that he didn’t believe his life was actually in jeopardy.
Notice that those are presumptions. You don’t have to be in your house to be both objectively and subjectively afraid for your life. If you were getting cash at an ATM and someone came up behind you with a knife, you would be afraid, and so would the average person. You can prove those points without needing them presumed in your favor. Presumptions just mean that the burden of proof on those points starts out satisfied, and the other side would have the burden of proving them not satisfied.
On a related note, just like how we don’t let you just kill people because they cross your property line, we also don’t extend that to your car. So if you’ve heard that nonsense and passed it on, YOU ARE THE PROBLEM.
Stand your ground law– is just a statutory codification of the common law rule that all states in the US have, which is that you have no duty to flee. In other countries with similar legal structure, self defense is not available until an attempt to flee has been made, even if that attempt is futile. i.e. turning your back on a guy with a knife two feet away, with no-where to run. We don’t make innocent people risk their lives or flee before they are allowed to protect themselves in the USA.
Several states have rules to the effect that if you win at criminal, you may not be charged in a civil action. (Civil Immunity) *I think* all of them now have the “Micheal Jackson Rule” that the civil suit may not start or has to go on pause if a criminal case is filed until the criminal case is done. The remaining states still have something on the same lines, but it isn’t automatic. You can often take the findings from your criminal case and apply them to the civil suit either as a presumption against liability or as a reduction against complete responsibility for the damages.
Because these laws are often called “stand your ground laws” there is confusion, because the lack of duty to flee for criminal liability is tied to the lack of duty of care in a negligence or intentional tort action. (A tort works like this: 1) you owe someone a duty. 2) you breach that duty. 3) a harm is caused as a direct result of that breach. 4) a clear calculation of damages is possible. —> If you owed no duty, or the other person interrupts the “direct result” by causing the situation, the tort action is either prevented or reduced by proportion.)
The big takeaway is that the states work basically the same. It is very minor changes on the same tune that get talked about as though they are big differences at the counter of your local gun store.
I often hear this concept get called castle doctrine too. It isn’t.
The main point: Credibility is everything:
This stuff always boils down to the facts of the case and whether other people believe you about the facts. It’s a credibility thing. Any dishonesty about anything is the stupidest thing you can do. Nonsense like leaving out bad looking things you did, moving evidence, or concealing involvement of other people is deceptive. It would come out for sure, and then your credibility is shot. You don’t have to bring everything up, but definitely don’t lie about anything. Your lawyer will help you figure out what should be volunteered and what should not.
Second, you do want to call the cops if you use your gun in any way. The 911 call is possibly admissible as an “excited utterance” and also as contemporaneous record. It is extremely likely to get into court one way or another, so you want the 911 call(s) to be telling your perspective on what happened. More importantly, you get to tell the cops who show up what to expect, and that will make a big difference on how they look at the situation and at you. Facts and evidence are what wins cases, but what facts get noticed and how they are perceived is largely shaped by the first cop on scene. Tell him what to think before he gets there. “911! Send cops and an ambulance to my house at _address_ I’m really scared. Some guy broke into my place and attacked me. I think I shot him, and he probably needs medical attention. I don’t know if there are more robbers. I’m upstairs in the bedroom with my wife and 2.5 kids and will be waiting for you to get here. Send help fast. I’m the big guy in a white t-shirt and red (& brown) boxers….”
Similarly, your statements at the time can shape how the other witnesses see and remember the situation. If you are saying “this guy just attacked me! Did you see that? Call an ambulance and the cops. Are there more of them? Is he going to be okay? This is terrible…” v.s. numbly standing over a corpse with a smoking gun and a stunned look on your face. That’s a blank slate that the witness can read a lot of different stories into. Don’t be a Rorschach Test for the other witnesses and the first LEO on scene. Again, be honest. When the cops get there, say something like, “I do want to help and will make a statement, but I want to get my head straight and have a lawyer present just like they would with an officer involved shooting. My lawyer’s card is in my wallet, he will help me talk to you.” Don’t let any pressure convince you to do otherwise.
That first impression of the first cop has the most to do with whether they look at you as victim or perpetrator, so the best way to win the trial is to not be on trial.
p.s. When you get to the stage where your story is told, a lot of the issue will come out in 3b) and much of your story is probably going to be relevant for trial purposes, if not the police interview.
Examples: I was scared because he had a really crazy look on his face, because I had _____ history with him and knew what he could do… Because I just had a break-in a week ago, and was on edge. Because I saw her throw her microwave through a window a month ago when she was trying to hit her husband. Because I had training about this circumstance and knew how dangerous it could be. Because he was really big, …. Because I have a bad back and know that I could get it re-broken in a struggle…. Because I am a woman who lives alone and there was a strange man in my bedroom. Because my crazy ex has been making threatening calls and said she would be sending her new boyfriend to “teach me a lesson” Because I fired a guy at work today, and his behavior left me looking over my shoulder….Whatever the actual facts are.
The guy mentioned above under the castle doctrine section credibly convinced the jury that he didn’t personally fear for his life. Based on plugging that fact into the rule, he lost, and should have. Personally, I wouldn’t be as cocky to believe that I could certainly take a guy who I did believe was trying to kill me. If really I had doubts that he was trying and able to kill me, I wouldn’t shoot. His case swung on the fact that people did believe him, and his facts weren’t good. He really wasn’t justified.
You get the picture.
It is about justification, then credibility.
People think that the law is arbitrary and is like beating a tricky genie, but the rules around murder and self defense are actually very fair, and really well thought out. Our rules are based on English common law, which in turn was based on the law spelled out in the Bible. We’ve literally refined them over thousands of years to a point where there aren’t any holes. We hear and get outraged about the rare times the rules aren’t applied well, but generally justice happens. If you were justified in your actions, tell the truth and get a lawyer who specializes in the type of case.
I can also say that having worked in a prosecutor’s office, the prosecutors and the cops generally want the good guys to win, and don’t like violent attackers. I have read a lot of police narratives, witness statements, etc. in which the victim did shoot or shoot at the bad guy in times and ways that were not legally justified. Most often admitting shooting after the bad guy has broken off threat and started to flee. I never heard any discussion of prosecuting them. I am not saying you should shoot when there isn’t imminent peril, but I am saying that if you are the good guy and act like it, life will probably be okay.
I know of one case to the contrary, and have talked with the attorney who successfully defended it. It was in Spokane a few years ago. Circa 2013. Basically a guy came outside as his Chevy Tahoe was being stolen. The car owner pulled a pistol and shot the driver who was stealing his SUV about a half a block down the street through the back window. It really looked like he was shooting someone over stuff when there was no threat to his life. However, victim said that the driver looked back at him and seemed to be reaching over his shoulder. Victim said he thought that driver was pointing a gun at him. Tahoes have dark tinted rear windows. Press made victim look bad, and there was a prosecution, because cops really didn’t believe him. His lawyer was able to get corroborating witnesses and recreate the scene well enough to show that victim’s story made sense. Prior to talking with the attorney, I thought the guy probably had killed when he wasn’t afraid for his life. The attorney really felt that he had saved the man from a major injustice, and I believe him.
This edge case is a perfect example of how it is all about your facts + your credibility. The first person you have to be credible to is the initial cop. If you don’t convince him, then you get to convince the prosecutor, and then a judge or jury. In this case he convinced his own lawyer (not a given). His attorney did a very good job using a ton of work to show that he was credible, and had both 3a) and 3b) in his favor. Without that work, both elements would have probably been found against him. This one was marginal, and it wouldn’t have taken a lot of stuff to shade the fact finder’s perception of his subjective intent. As it was, I think the cops, prosecutor and news started with strong and not unreasonable belief that he failed the objective part of the test, and the fact finder’s mind had to be changed with very careful explanation of the evidence. I bet he is glad that he wasn’t posting on Facebook about what he would have done in the Rodney King Riots or whatever. If you want to see what a fool does, look on the comments of this terrible video I made.
In my opinion using some garbage ammo like R.I.P. probably wouldn’t swing your case. However, your old Facebook comments about how excited you are to make a bad guy suffer with it might. I know no defense attorney wants the case muddled with arguing about your intent based on your character. So use an HST or whatever; if you talk online about your ammo choices, it should be based on reasoning consistent with legal self defense.
Now let’s circle back to the castle doctrine, as told by your cousin-in-law. You know the guy. — “If you have to shoot someone, first thing you do is drag him inside your house, then you call the cops. That makes it self defense. I know a guy who knows a guy this totally happened to….” I know you have heard this one. I hope you haven’t been the cousin-in-law. Think about it. His advice starts with inaccurate representation of how the law works. It then jumps to disturbing the crime scene in order to create evidence for a lie based on this bad understanding of the law. It presumes your story won’t fall apart and that no one will see you dragging a body around. All for nothing. Worse than nothing. The whole case is about whether the cop, the prosecutor, the judge, and the jury (if there is one) believe you. And you start things with a pointless lie. How does that help your case? The truth comes out. If you told a lie, it will be found.
So that’s it. Don’t be the kind of guy to get into trouble. If you don’t have a choice, be silent about it, then be honest about it when your lawyer says it’s time to talk. Being justified is everything, and your whole case is about whether people believe that you are justified. Don’t make up stuff. Don’t spread myths.
Possible future articles on this series of lawyer gun rants:
- That meme about keeping a glove and ball in your car next to your defense bat, which your lawyer will thank you for…. is so stupid that I can’t come up with hyperbole that is both fitting and printable. See above about credibility and ignorance of the law.
- Lawyers didn’t give you a bad trigger, etc., a fearful corporate exec did. I.e. Bill Ruger Sr. had a low opinion of you.
- Gun trusts are a good idea for more reasons than just the NFA.
-edited in June 2020 to give clarify a little on the duty to retreat. No state has an absolute duty, but some states have duty under some circumstances. It’s all still about necessity, and the facts of your situation.-
Remember, if you didn’t sign a contract with me and pay me, I am not your lawyer. These are general statements not legal advice tailored to your situation. It isn’t a law review article, and it doesn’t have a single citation. No one even paid me to proofread! If you are looking for serious legal advice, my advice is to look for those things. (maybe hire a lawyer if you want too) This is a casual discussion intended to get you onto the right track, not give nuanced and specific understanding of any particular state law. Hopefully this free legal information is worth more than it cost. Also there is a 49/50 chance that I am not licensed to practice in your state- I have studied the lethal force law in almost all of them, focusing on the minor differences. They are minor. You don’t live in a state with significantly different use of force laws. Your state isn’t special. If you think otherwise, you are misinformed. (Lookin’ at you, Texans.)
If you are still reading, read this too. It isn’t related, but it is good:
GunFunZS (AKA just GunFun in some venues) is an avid tinkerer. He is a techy guy with experience in commercial fishing, fabrication and the practice of law, and some other stuff too. He knows gun law professionally, and ballistics as an enthusiastic amateur student of many years. Show. Him. The. Data.
He loves paintball and motorcycles, and making knives. He grew up shooting at pests in Alaska, and that formed a lot of his shooting biases and bad habits.