Self Defense, From Your Attorney's Point Of View...

Good material. Lisa Steele knows her stuff.

Posted by alsaqr: Very few folks involved in righteous self defense cases find themselves charged with a crime.

Click to expand...

On what facts do you base that assertion?

It may be largely true in the case of violent home invasions in which there was no prior connection of any kind between the defender and the invader.

Move outside and the situation changes. Consider the case of Larry Hickey in Arizona.

And to get an idea about how the system works, read this. Most readers find it chilling, and all will be cured of any naive preconception that one can rely on the "righteousness" of a case to avoid charges . That requires objective, factual exculpatory evidence in defense of justification. That is often much more difficult than it sounds.

Things to ponder when folks are charged with murder or manslaughter in a "self defense" case:

1. The police did not buy the story.
2. The prosecutor did not buy the story.
3. The grand jury did not buy the story.

Click to expand...

Well, yeah.

There is a very good chance the story is not true.

Click to expand...

The authorities may well believe that because everyone who cannot convincingly deny having shot someone will claim self defense.

But one cannot conclude that. It is equally likely that either (1) the evidence available after the fact is insufficient to support a defense of justification, even if the act of self defense was fully justified; or (2) in combination with (1), there are other indications that indicated against justification. For example, evidence may have disappeared, eyewitness recollections may be incomplete, or witness testimony may be biased.

Posted by alsaqr: i've been involved in two home invasion shootings in two different states. Perps died in both cases. In the first case the prosecutor declined to take the case to a grand jury. In the second case the prosecutor took the case to the grand jury without charges: i was no billed.

Click to expand...

As previously stated, the facts in a home invasion case are likely to be rather clear, though that has not always been the case.

Recently in Missouri, a castle doctrine state, a shooter was cleared after an investigation of a home invasion that took several months; the facts in that case included a prior relationship between the resident and the invader.

There are cases where an overzealous prosecutor charged the shooter in a good self defense case.

Click to expand...

Yes, and many people do labor under the misconception that when defenders who are in the right are charged and prosecuted, the prosecutors are somehow "overzealous".

We pay prosecutors to go after criminals. If one person intentionally shoots another, it will either constitute a crime or a justified case of self defense. The determination will depend entirely upon the evidence that can be gathered after the fact. If a preponderance of the evidence does not appear to support a defense of justification, one can expect charges to be filed and a prosecution to be conducted by any prosecutor who knows his or her duty, even if, in reality, the shooter was completely justified.

The problem is that the authorities may not have any real, objective way of divining after the fact whether or not it was really a "good self defense case." That is discussed at some length here.

Such cases are very rare.

Click to expand...

I would not jump to that conclusion.

Most self defense shootings occur in the home. Does that mean that most violent criminal attacks occur in the home, or that defenders in the home are much more apt to be armed? I think it is the latter. Tom Givens points out in Lessons from the Street that the majority if the attacks on his graduates occurred in the out of doors where the facts are more difficult to reconstruct after the fact..

And that's where the the points made by Lisa Steele in the material provided to us by Lee Lapin become most important.

alsaqr said:

Very few folks involved in righteous self defense cases find themselves charged with a crime...

Click to expand...

That may be true. But you can't know ahead of time whether, if it happens to you, you will be one of the many or one of the few who get caught up in the legal meat-grinder. That it might be rare would be small comfort if you're one of the unlucky few. Consider some cases --

This couple, arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.

Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

Mark Abshire in Oaklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal grinder before finally being acquitted.

Harold Fish, also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

Gerald Ung: He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted.

Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.

alsaqr said:

...There are cases where an overzealous prosecutor charged the shooter in a good self defense case...

Click to expand...

Kleanbore said:

...many people do labor under the misconception that when defenders who are in the right are charged and prosecuted, the prosecutors are somehow "overzealous"...

Click to expand...

Kleanbore's on the money here.

Our society takes a very dim view of one person intentionally injuring another. Our laws recognize that at times doing so may be justified; but unless and until the evidence clearly shows that your intentional act of extreme violence causing grave injury to another human was justified, you are reasonably suspected of having committed a criminal act.

If the evidence creates probable cause to believe that a criminal assault had been committed and that you did it, you will be charged and put on trial. The prosecutor doing so isn't necessarily trying to make a name for himself; he is just doing the job he's been hired to do. And at then it becomes up to you to demonstrate that you were justified.

X-Rap said:

...I went to a pro 2a meeting in Albuquerque and the DA at the time was speaking. ...He said he would refuse to prosecute his people if they were involved in a legit shooting and didn't think they should have to go in harms way as officers of the court and believed joe citizen had that same right....

Click to expand...

Yep, a "legit shooting." But who decides, how and when?

This business of "a good shoot is a good shoot" is the purest nonsense. It's not a "good shoot" or a "legit shoot" or a "righteous shoot" until the right people have so decided, and you ain't one of those people. And sometimes the people who need to finally decide it was a "good shoot" or a "legit shoot" or a "righteous shoot" will take a lot of convincing.
__________________

Posted by X-Rap: He said he would refuse to prosecute his people if they were involved in a legit shooting and didn't think they should have to go in harms way as officers of the court and believed joe citizen had that same right.

Click to expand...

That's great. A number of states have codified that into law and some have even extended some protection against civil liability.

Of course, it remains up to the shooter to show by a preponderance of the evidence that the shooting was in fact "legit".

alsaqr said:

...IMO: Abshire should have been indicted...

Click to expand...

[1] He was in fact charged (that's the same as being indicted). He was tried, and he was acquitted.

[2] As Bartholomew Roberts responded in this post on TFL to a similar attack on Abshire (emphasis added):

Bartholomew Roberts said:

...Abshire was attacked on his own lawn by six men. He was knocked into a ditch and one man pummeled him while another kicked him. Only after having his front teeth cracked did he draw and use a gun. Last time I looked, the penalty in Oklahoma law for yelling and shining a light at a car wasn't any of those things. I'd agree it could have been handled smarter - and that is one reason it comes up in self-defense discussion a lot - there are a lot of lessons to learn from it precisely because while it was ultimately a good self-defense shoot, it isn't "the model of a righteous shoot." ...

Click to expand...

[3] Oklahoma does have a "stand your ground" law.

X-Rap said:

...In the situation I described the DA would be having a great deal to say about what was and wasn't legit. I'm sure I am not quoting him verbatim but the just of his speach was that in his sphere of influence he believed in the right of his investigators and citizens to defend themselves...

Click to expand...

[1] Yes, the DA will have a lot of say. In fact, he will be the primary decision maker. In many jurisdictions, he can simply file charges without having to take the case to the grand jury, or he makes the decision to take the matter to the grand jury (except in Texas, where homicide goes to the grand jury automatically).

[2] And sure he believes in the right of self defense. Many really do, and it is the law. But when you shot that guy, was it really, under the law, self defense? That will always be the question. You might say it was, but a lot of people claim self defense when it really isn't. What will the evidence show? The DA might believe in the right of self defense, but if the evidence doesn't clearly show that it was, then it wasn't self defense, at least unless your trial jury acquits you.