What to Avoid to Reduce Chances of Arrest, Prosecution and Conviction

 

THUMBS-DOWN FACTORS

What to Avoid to Reduce Chances of Arrest, Prosecution and Conviction “You’ve got to learn from the mistakes of others because you’ll never live long enough to make them all yourself.” – Author Unknown

After reviewing what seems like countless self-defensive cases, we noticed certain recurring fact patterns that increase the chances of arrest, prosecu-

tion and conviction. We refer to them as “thumbs-down” factors, meaning you should try to avoid them if at all possible. We are not claiming that these are the only factors that could lead to arrest, prosecution or conviction; these are just the ones we saw over and over during our research.

In the first part of this chapter, we list and explain the factors. In the second half, we summarize some of the cases we found that helped us compile this list. Carefully compare these cases to the incidents in the following chapter that did not result in arrest or conviction. Remember, these are real cases involving real people, many of whom thought they had a legal right to do what they did.

Common Fact Patterns Resulting in Arrest, Prosecution and Conviction:

Armed defendant; Unarmed assailant(s) – This is one of the most com- mon reasons for arrest in our experience. The defendant feels threatened by one or more unarmed, but dangerous-looking and acting assailants, so he draws his gun and tells them to stop. Either the assailants or wit- nesses call the police from a cell phone reporting a “man with a gun.” You may have heard firearms instructors claiming that you are justified in threatening or using deadly force if you are at a disadvantage in strength or numbers (often referred to as a “disparity of strength” or a “disparity of numbers”). It has been our experience that, regardless of the disparity, the person with the gun is usually arrested and prosecuted because his attacker or attackers did not have weapons. Here in Utah, pointing a weapon at any part of the body usually results in a felony charge (aggravated assault), whereas simply showing the weapon results in a serious misdemeanor charge referred to in most states as “brandishing.” In our experience, if you threaten deadly force or use deadly force against an unarmed person, you will be at least arrested, probably prosecuted and could be convicted. There are two possible exceptions. The first is in defense of persons in the home in those states that allow deadly force against intruders threatening assault or personal violence. The second is in states that permit the use of deadly force against a forcible sexual assault

[ Another variation of the armed defender/unarmed assailant is where an unarmed defender takes a weapon away from the armed assailant and kills him with his own gun or knife. Focusing on the fact that the assailant is no longer armed when the defender uses deadly force, these cases do not usually turn out well for the defender as you will notice in the cases described in this chapter. ]

Initiating, provoking or escalating a fight – You may recognize these of- ten overlooked factors as [Exceptions to Justifiable Self-Defense] addressed in the individual states’ subchapters. Remember, we warned you that you lose the right to defend yourself if you initiate, provoke or agree to fight, even in your own home. You risk losing the right of self-defense if you allow yourself to actively participate in any of the following types of disputes:

1. 1. road rage,
   2. domestic violence,
   3. love triangles and jealousy,
   4. gang fights and defending one's machismo ("he disrespected me"),
   5. neighbor boundary disputes, or
   6. fighting over money or debts owed.

If you are responsible for starting or escalating a fight that eventually leads to the use of or threatened use of deadly force, you will almost always be arrested and prosecuted. The majority of brandishing cases we have defended have arisen from situations where the client’s temper got the best of him.

Shooting anyone in the back of any part of the body – What have we learned by watching television and the movies? Cowards shoot people in the back, right? Logically, if you were really being attacked, the en- trance wounds would be in the front of the body and exit wounds in the back. If the forensic evidence shows it was just the opposite, it adds fuel to the prosecutor’s argument that the person was retreating when shot and deadly force was not necessary.

Mixing drugs or alcohol with weapons, drug deals gone bad – Judgment and a clear mind are critical in applying the complicated rules of self-defense during an angst-filled instant. In many states, simply possessing a firearm while under the influence of drugs or alcohol is a crime. Making life-altering decisions when under the influence of drugs or alcohol is as crazy as racing up Pike’s Peak blindfolded. Notice how many cases illustrated below involved drinking. Finally, no matter how clever your lawyer is, it’s hard for jurors to side with anyone messing with drugs and guns.

Unnecessary use of excessive force –

1. 1. During an incident – Example: The mouthy neighbor kid takes a swing at you with a flimsy piece of wall molding and you respond with a 12 gauge slug.
   2. After the threat ceases – Example: “Further, the manner in which Davis shot his brother—26 times, including 16 times in the head and neck, after having reloaded his gun with an extra ammunition clip — belies his claim of self-defense.” U.S. Ex Rel. Davis v. Gramley,p. 9 (N.D.Ill. 3-26-2008).

Engaging in unlawful activity, including possessing illegal weapons – If you are committing a serious felony, you obviously lose the right to defend yourself against those trying to stop you from committing the crime. Also, if you possess a weapon illegally, you will be arrested for that crime, even if the act of self-defense was justified. It could cause detectives to take a lot closer look at your claim of self-defense.

Failing to call 911 and let the police handle it if time permits – You’ll notice that the phrase “call the police” is not in any of the self-defense statutes. Yet prosecutors continuously argue that defendants should have called the police rather than using defensive force. Although we believe it’s objectionable for district attorneys to impose conditions on self-defense not contained in state statutes, they often get away with it. It definitely can be a negative factor in your case if you have time to call the police but don’t.

7a. Hey Bro, you’re NOT a cop – Seeking out criminals while carrying a gun is a TERRIBLE idea and a thumbs-down factor we are seeing more and more of. As we counseled in the first edition, if it's a property crime, let the police handle it. Get a good description and let them run. NEVER go after fleeing felons or any criminal for that matter unless a human life is at risk, such as in a kidnapping. The George Zimmerman/Trayvon Martin case and the Reggie Campos case, both reported in this chapter, are recent examples of how things can go terribly wrong if you fail to heed our advice.

Use of “spring guns” or traps – These devices cannot distinguish be- tween the innocent and the guilty. This is why most states outlaw such contraptions, especially those that could kill or maim. Paper Boy: “Sorry Mr. Brown, didn’t mean to throw your paper into your garage! … I’ll get it … Blam!!!!”

Motive to kill –

“Of course I’ll pay you that gambling debt I owe you. Just come on over and pull hard on the screen door; it gets stuck (you locked it to feign a break in). I’ll be waiting in the kitchen,” as you chuckle silently to yourself, “Heh, heh.”

“Accidentally” shooting your wife claiming you thought she was a burglar soon after you insured her for $1M (and then bragged about it to your adulterous girlfriend).

Hate speech, then hate crime – Spewing verbal or written hatred against any race, religion, national origin or sexual orientation could become a link in a prosecutor’s chain of evidence proving pre-meditation if you later injure a member of the group you despise. In the civil suit against New York Subway Vigilante Bernhard Goetz (Chapter 15), the plaintiff’s attorney claimed Goetz acted out of racial bias. This obviously did not sit well with a racially mixed jury that handed down a multi-million dollar civil verdict against him.

Not retreating, even though your state says you don’t have to retreat – This should not be a reason for a jury to convict in states that have eliminated the duty to retreat. But it’s hard to get this out of a juror’s mind if he or she believes you could have avoided killing someone by simply backing off or walking away.

Fleeing after incident, tampering with evidence or witnesses, lying to the police – When you run and hide after you have killed someone, bury the body in a shallow grave, dump it in the Briar Patch, wipe away finger prints or ask a witness to lie for you, doesn't this suggest you have a guilty conscience? Tampering with evidence or witnesses is a felony in most jurisdictions. In one recent case, picking up spent brass after a shooting was held to be tampering with evidence. Asking a witness to forget what he or she saw or heard you say would be tampering with a witness. We suggest you read your state’s witness tampering aobstruction of justice statutes very carefully so that you do not make these kinds of mistakes after a defensive incident.

Use of deadly weapon to protect personal property – We strongly recommend not threatening with or using a deadly weapon to protect items of personal property such as an unoccupied vehicle, stereo, or a television. You’ll be sellin’ all your Big-Boy Toys to pay attorney fees. See the discussion of the Joe Horn and Tommy Oakes cases in the Texas subchapter.

Big/ugly criminal record – If lifting a bound volume of your criminal history could cause a lower abdominal hernia, it could cut against you in a case of “who started it?”

A child or teen is killed or seriously injured – Absent unusual circumstances, persons defending their homes and families against intruders usually get a free pass from police and prosecutors. An exception to this general rule exists when the victim/intruder is a child or teen who has broken into the home to steal rather than physically harm someone. Often there is such a public outcry against the homeowner for lighting up a teenage-mutant-ninja burglar that prosecutors feel compelled to prosecute.

And finally . . .

Pancho’s Wisdom – Don’t be an a--hole and don’t react to a--holes trying to rattle your chain. Avoid Conflict like you'd avoid a French Kiss from a Zombie Cross-Dresser. Soak up and comply fully with the advice in Chapter 9.

The “Case-Study” Method

Law professors insist that their students understand and remember the law better by reading how it is applied in cases rather than simply trying to memorize the words of statutes. This is known as the case-study method. Most lawyers agree it’s easier to remember a dramatic story than to memorize some abstract rule of law. Why do you suppose the good Lord gave us Bible stories and not just the Ten Commandments? We think you’ll remember the thumbs-down factors better if you read how they have affected the outcome of actual court cases. The more thumbs-down factors during a claimed defensive event, the more likely the defender will be arrested, prosecuted and convicted. Prepare your mind for a fascinating journey into the annals of armed conflict in America.

Thumbs-Down Factors in the Harmon Case (Chapter 2)

The defendant in the Harmon case described in Chapter 2 believed his ac- tions were justifiable against two younger, stronger men he claimed intended to overpower him and take his gun away. But his perception was only part of the story. The case involved several thumbs-down factors which undoubtedly led to arrest, prosecution and ultimately contributed to his conviction. To discover some of these factors, it was necessary to spend a day and a half reading 1500 pages of transcript available at the Millard County, Utah Courthouse. 1. Harmon was armed with a .45 pistol; his claimed assailants did not have weapons. 2. He shot at and hit Thomas while Thomas was running away. Undisputedly, he had an exit hole in the front of his arm and jacket. Was he trying to kill the witness who ultimately testified against him? 3. Harmon had been drinking. 4. Harmon gave several seemingly inconsistent versions of what he claimed hap- pened including the 911 call and multiple statements to investigators. Giving any statement, let alone multiple statements before re-visiting the scene with your attorney is a bad idea. 5. The DA argued Harmon had time to call the police before using deadly force. From the time he kicked the two intruders off his property until he confronted them with a gun on a dirt road outside of the cabin community, they had traveled a half mile on foot. 6. Although he denied saying it, there was testimony that he had told his former girlfriend that the law allowed him to “kill” trespassers. Chasing down and killing someone after they commit a misdemeanor is excessive force. 7. The jury may have understood him to be the initial aggressor. Although he claimed the victims tried to enter his cabin, there was certainly no evidence that they were aggressive toward him until after he drove down the road, parked in front of them and showed them a gun. Even then, it may have appeared to jurors that the two were simply headed toward town thinking he had no reason to be serious about using a gun against them. 8. It wasn’t clear, but there was some suggestion that his former girlfriend, who testified against him, had spent time with the man Harmon shot first. Love triangle? Jealousy? Who knows, but harmful innuendo such as this can contribute to an unfavorable verdict, especially when combined with several other thumbs-down factors. Like we said, the more thumbs-down factors, the greater likelihood of a conviction.

Additional Cases Containing Thumbs-down Factors

The following cases from several different states contain multiple thumbs- down factors. As you are reading these case summaries, ask yourself if you think pride, anger, or revenge had anything to do with what happened. If you had been a juror in any of these cases, would your decision have been any dif- ferent?

Murder Conviction After Excessive Shots Fired Hard Pill For Oklahoma Pharmacist to Swallow –

Oklahoma v. Erslund (awaiting decision on appeal)

Disclaimer: The actual facts of this case are difficult to pin down because an ap- peals court has not summarized the sworn testimony in an appellate decision. However, because of multiple news stories, a surveillance video and a posted recording of the initial interview of the defendant pharmacist, some comments can be made about the potential thumbs down factors in the case.

Facts: Defendant pharmacist was working with two female employees when two teenagers entered the pharmacy demanding drugs and cash. The 16 year old was carry- ing a backpack and a ski mask. His 14 year old accomplice had a pistol. The pharmacist responded by opening fire with his Taurus Judge, loaded with alternating .45 Long Colt and .410 shells. A round hit 16-year-old in the forehead knocking him down. The 14 year old with the pistol quickly escaped on foot with the pharmacist chasing after him. Upon returning to the pharmacy, the surveillance video shows the pharmacist going back to the counter, grabbing a small pistol identified as a .380 Kel-Tec, and firing five shots at the wounded 16-year-old boy lying on the floor. A medical expert for the prosecution testified the boy would have survived the headshot, but the 5 shots to the torso were fatal.

The pharmacist gave a video-taped-police interview shortly after the incident with- out an attorney present. Media accounts report several contradictions between what the pharmacist told police during the interview and what was shown on the surveillance video. He told police that he’d been shot at twice. News accounts report the pistol of the 14 year old was unloaded and the 16 year old had no weapon. In he taped interview the pharmacist stated that on his way out of the store he noticed the 16-year-old was not going down and was trying to hit him. It’s not clear whether he meant hit him with his with his fist or with a firearm. He said he shot the boy at that time before he chased the 14 year old out of the store. However, the surveillance video showed that he did not shoot the 16-year-old as he was going out of store but rather after he came back after the chase. The video shows him walk past the place where the 16 year old was lying and with his back to him, he returned to the counter to pick up a second gun. He then calmly walks over and shoots the boy while he's lying on the floor. The pharmacist was convicted of first-degree murder and given a life sentence. The case is currently on appeal.

Thumbs-Down Factors:

1. Excessive Force After Threat Ceased – The most compelling thumbs- down factor in this case was the evidence that the unconscious teen was no longer a threat to anyone when he was shot five times in the abdomen. The prosecutor was videotaped giving a statement saying that the first shot to the head was clearly justifiable while the robbery was in progress. However, he argued, using excessive force to execute a robber after a 200+ grain slug had reduced him to a helpless blob, was not.
2. Armed defendant; Unarmed assailant: It’s understandable how the defendant may have perceived both robbers had guns and were shooting at him. This was a very violent encounter unfolding quickly. The echoes of his own gunshots might have misled defen- dant into thinking that he was being shot at. Nevertheless, once it was discovered that the dead boy had no weapon, the self-defense claim started to unravel.
3. False Statements to the Police – Stating that he shot the 16 year old “because he wouldn’t go down” when in fact the surveillance video showed him shooting the boy lying on the floor was a horrendous mistake and destroyed any credibility this defendant might have had with a jury. News reports indicate there may have been other false statements made by the defendant during the taped interview about his military history and his medical condition. Insisting on an attorney and refusing to give a detailed statement after such a harrowing event may have prevented many of these damaging contradictions to undermine the case.
4. Teen Victim – A teen or child victim creates a public outcry to prosecute that is difficult for an elected District Attorney to resist.
5. Racial Undertones – Like the Trayvon Martin case, also discussed in this edition, racial differences between the defendant and “victim” can raise the specter of hate crime. Somewhere in all the articles we scoured to get the scoop on this case, there was the allegation that the NAACP pushed the prosecution to charge this case as a murder.
6. Additional Comments: This case emphasizes that the law requires a defender to cease using force when the threat ends.

Pancho’s Wisdom – Sometimes it’s not always easy to know when the threat has ended. How many times have we read in the recent past of enemy soldiers killing our troops when our troops made the mistake of assuming they were down and helpless? Although no longer the law, at common law, armed robbery was considered a heinous crime and armed robbers not killed committing the crime were put to death. Therefore, deadly force against armed robbers was justified as simply hastening the inevitable. Do you think maybe it’s time to roll back the clock and make armed robbers bear the risk that they might be executed during the aftermath of such a heinous crime?

Less-than-Perfect Home Defense in Idaho –

State v. Turner, 38 P.3d 1285 (Id. 2001).

Facts and Verdict: George Turner (Defendant) and Danny Pratt (victim) were in Turner’s apartment arguing over money that Pratt allegedly owed Turner. Two other men were present (witness A and witness B). Witness A began an argument with Pratt that turned into a physical scuffle. Turner broke up the fight by hitting Pratt on the shoulder with a hammer a couple times. Pratt sat down on the couch and continued arguing with Turner, calling him a "f***ing liar.” Turner, a paraplegic, wheeled to his bedroom, assembled and loaded a .22 caliber pistol and returned to the living room. He pointed the loaded weapon directly at Pratt and said to him "Now who you calling a f***ing liar?" Pratt responded with “you better get me before I get you,” and started to stand up. Turner fired one shot at Pratt, hitting him in the head, killing him. Turner later testified, "I panicked, I thought he was going to get me." Witness A was on the ground still recovering from the fight, and wasn't paying attention. Witness B had put his head down when Turner appeared with the weapon, so neither witness actually saw whether Pratt tried to attack Turner as claimed. None of the men present called the police to report the incident. Pratt’s body was found over a month later near a local creek. Subsequent investigation led the police to those involved in the shooting. George Turner was convicted of first-degree murder and sentenced to life in prison.

Thumbs-Down Factors:

1. Armed defendant; Unarmed assailant – Turner had a weapon and Pratt did not. Turner’s defense was that because of his disability, he had reason to believe that Pratt would easily overpower him and use his own weapon against him. He claimed the shooting was in self-defense. However, because there was no evidence that Pratt attacked Turner, and since Turner was the one who introduced a gun into an already volatile situation, the judge refused to instruct the jury on self-defense.
2. Defendant was the initial aggressor – This was perhaps Turners biggest mistake in the incident. He was the one who introduced deadly force into the situation. Being called a "f***ing liar" is not a good reason to point a loaded gun at someone. In fact, it’s a good reason NOT to inject a deadly weapon into an already volatile situa- tion. Turner should have kicked Pratt out of his apartment, or called the police to solve the dispute. Instead, he took the time to wheel into his bedroom, assemble and load his weapon, and then point a gun at Pratt. The jury saw this as a premeditated act resulting in a first-degree murder conviction.
3. Unnecessary use of excessive force – It was indeed unnecessary and excessive for Turner to get and point a gun at Pratt in response to being called a "f***ing liar."
4. Failing to call 911 to let the police handle it if time permits – The shooting was definitely avoidable. Turner had plenty of time to call the police and let them handle the situation. The only threat was the pistol that Turner foolishly introduced into the disagreement, like sparking a match around an uncapped powder keg.
5. Killing someone you have a motive to kill – The whole argument started from a dispute about Pratt owing Turner money. Both the judge and the jury believed that this plus the insult were the reason Turner pulled the trigger.
6. Fleeing after the incident, tampering with the evidence or witnesses - If a person is confident he has acted in self-defense, why would he try to hide the assailant's body? Confined to a wheelchair, Turner probably didn’t accomplish this himself. This implies he conspired with one or both of the witnesses (although the case does not say).

Having your handgun taken away by an angry assailant could be a legitimate concern. Even police officers have been disarmed and killed with their own duty weapons. It is an issue that shouldn’t be lightly dismissed. We don’t agree with the judge not giving a self-defense instruction. But even if he had, juries seem to reject this defense. Being overpowered and losing his weapon was the same concern the defendant had in the Harmon case in Chapter 2. Remember, Harmon claimed the two strangers ignored his warnings to stop their approach. The trial judge in Harmon gave a self-defense instruction, but the jury didn’t buy it. From what we’ve seen, the I-was-afraid-he-would-kill-me- with-my-own-gun defense rarely works after shooting an unarmed person.

“I thought he was reaching for a weapon” in Vermont –

State v. Wheelock, 609 A.2d 972 (Ver. 1992).

Facts and Verdict: Wheelock (defendant) and Brillon (victim) had been con- suming alcohol, cocaine, valium and marijuana all night at Brillon’s girlfriend’s house. Throughout the evening Wheelock and Brillon had multiple confronta- tions. As early morning approached, Wheelock entered the living room with a shotgun. He fired one round at Brillon at close range and the chest shot killed him. Wheelock testified that he believed Brillon had a knife and that the shooting was in self-defense. However, the police found no knife near the crime scene. When Wheelock was apprehended, he possessed a bottle of partially consumed Scotch. Wheelock was convicted of second-degree murder.

Thumbs-Down Factors:

1. Armed Defendant; Unarmed assailant – Though Wheelock claimed Brillon had a knife, evidence suggests otherwise. (The “I-thought- he-had-a-weapon” defense usually doesn’t work very well).
2. Involvement of the defendant in either initiating or provoking a fight that escalates from a verbal dispute to a potentially deadly encounter – Wheelock and Brillon had been arguing and con- fronting each other all night. Wheelock’s anger from the multiple arguments may have been the catalyst that caused him to pull the trigger.
3. Mixing drugs or alcohol with weapons – Both men were stoned out of their minds. Wheelock claimed that he honestly believed Brillon posed a threat to his life. He was either lying or his perception was severely compromised by the chemicals marinating his brain. Most people understand the danger of driving while intoxicated. To the slogan, “don’t drink and drive” we add, “don’t drink, smoke, pop, snort, sniff or inject anything you know you shouldn’t and then pack heat.”
4. Engaging in unlawful activity – Wheelock’s violation of the law by using illegal substances may have been a factor in affecting the jury’s analysis of his character.

Where Does Self-Defense End and Aggression Begin in Maryland? –

Sydnor v. State, 776 A.2d 669 (Md. 2001).

Facts and Verdict: Sydnor (defendant) was out with some friends when Jackson (victim) approached and asked if he could buy some “weed.” When Sydnor responded in the negative, Jackson pulled a gun and demanded Sydnor’s gold chain. After hitting Sydnor on the head with the gun and threatening to kill him, Jackson took $30 in cash from him and was about to take the gold chain when Sydnor, assisted by his friends, grabbed the gun and, after a struggle, was able to take it from Jackson. As Jackson then attempted to flee, Sydnor chased Jackson, fired five shots at him, hitting him four times - once in the front of his thigh, once in the forearm, and twice in his back (not necessarily in that order). Jackson collapsed and died in the street 40 to 50 yards from where the robbery occurred. Five bullet casings were found in the street near where Jackson col- lapsed (indicating that the shots were fired near where the body was found). One witness said she heard people running followed by five or six gunshots. Another witness said she saw Jackson “[try] to run and he [Sydnor] shot him in his back and then he ran in the opposite direction." Several police officers, who were in the vicinity, responded to the shots and saw Sydnor running away. They gave chase and eventually apprehended him, still in possession of the gun. At the police station, Sydnor gave a formal, taped statement. He claimed he panicked as soon as he took the gun from Jackson. Sydnor added that he did not know whether Jackson had another gun, but that “I was already aggravated over the fact that he said he was going to kill me.” In a later part of his statement, he said that Jackson acted like he was getting ready to “go back in his jacket,” and “[s]o I panicked even more and just got to shooting.” Sydnor was convicted of voluntary manslaughter and use of a handgun in the commission of a felony.

Thumbs-Down Factors:

1. Armed defendant; Unarmed assailant – The issue here is timing. Both individuals were armed, but at different times in the conflict. When the shots were fired, only Sydnor was armed. Though he claimed that he thought Jackson was going to pull another gun, no other gun was found nor did anyone report having seen another gun.
2. Shooting anyone in the back of any part of the body – A witness testified that she saw Sydnor shoot Jackson in the back and ballistics confirmed it. If the initial aggressor is retreating, no matter how up- set you are from their attack, once the threat of imminent danger is gone, you need to keep your cool and stop polluting Mother Earth with toxic lead pellets.
3. Not retreating – Unless you are in your own home, in Maryland there is a duty to retreat before using deadly force. Not only did Sydnor not retreat, he and his friends chased Jackson 40 to 50 feet before Sydnor shot him in the back. Some might think that the verdict would be different in a state where there is no duty to retreat. But there are so many thumbs-down factors in this case, we are fairly positive the defendant would have been arrested and prosecuted even in a no-retreat state.
4. Fleeing after the incident – It’s understandable that Sydnor was scared, but view this from the perspective of an investigating officer. You hear gunshots, rush to the scene, observe a bloody corpse in the street and witness a man with a gun running away. What conclusion would you make?
5. Using a deadly weapon to protect items of personal property – Although this was a robbery, the use of deadly force by the victim ended when the defendant took the gun away from him. After that, the victim was killed to avenge the taking of a gold chain.
6. Excessive use of force after the threat ceased – Because the im- mediate threat was over, there was no need to shoot Jackson in self-defense, nor was there any reason to shoot him multiple times, including twice in the back.
7. Spilling guts to police before talking to his attorney – Snydor told police he was already aggravated that Jackson said he was going to kill him. That suggests he acted out of revenge rather than out of fear of being injured. Your statements to the police can give the prosecutor evidence to prove his case that he cannot get anywhere else. Authors re-write sentences several times (including this one) before publishing. We don’t always say exactly what we mean the first time. Neither can you after a horrendous self-defense incident. Let your attorney explain what happened after you’ve both visited the scene together. See our detailed advice in this regard in Chapter 14 below.

Don’t Stand-Your-Ground In Connecticut Or Other States Where You Have A Duty To Retreat Before Using Deadly Force

Connecticut v. Garrison, 525 A.2d 498 (1987).

This case illustrates how not having a stand-your-ground law greatly in- creases the chances of arrest, prosecution and conviction in cases that would probably be justifiable in the stand-your-ground states (e.g. a vicious knife at- tack).

Facts: Defendant was visiting his sister in her home. Her live-in boyfriend showed up drunker than Cooter Brown and began arguing with defendant’s sister. Although the boyfriend and defendant's sister had separated briefly, his clothes were still in the apartment. Unfortunately, defendant tried to intervene to break up the impending quarrel. This is when he noticed that the boyfriend had a pistol in his waistband. Although the boyfriend was larger than the defen- dant, because the defendant was younger and quicker, he was able to take the pistol away from the boyfriend. Then the boyfriend picked up a steak knife and started to attack the defendant with the knife held high (Western Sign Language for "Shoot me!"). Defendant first shot the boyfriend in the foot while retreat- ing backwards and then killed him with a second shot rather than retreating into the next room. A Connecticut judge, acting without a jury, convicted the defendant of manslaughter. He reasoned that because he had taken the pistol away from the drunken boyfriend, he should have been able to take the knife away as well or retreat into the next room.

Thumbs down factors:

1. Not retreating before using deadly force in a state that does not have a stand-your-ground law. Knowledgeable self-defense experts will tell you that assailants with edged weapons who are within 30 feet of you pose an imminent deadly threat (See discussion of Tueller research in Chapter 11). Anyone who doesn’t understand the lethality of such an attack is apt to being carved like a pig at a luau. Pancho’s Wisdom – A court decision like this would be laugh- able (except for the defendant) in most Southern and Western States. Connecticut citizens need to demand the same rights of self-defense as Southerners and Westerners. Connecticut needs a stand-your- ground law.
2. Use Of Force Against Persons Authorized To Be In The Home – Did you notice the judge held defendant had a duty to retreat even though he was in his sister’s home? This is because the boyfriend who was killed still had property in the home and impliedly wa
3. authorized to be in the home. He was not an unlawful intruder. Therefore, the protection of Connecticut’s home defense statute did not apply. The courts in most states do not apply special home-defense rules against co-tenants. If you defend persons in your home against unlawful intruders, generally there is no arrest or prosecution (see discussion in Chapter 8). But if the force used is against someone who has a right to be in the home such as a rela- tive, co-tenant, landlord, police officer etc., then the special rights and presumptions related to home defense generally do not apply.

Emotional Daughter Sends Dad Looking For “Creepy” Guy Resulting In Dad’s Attempted Murder Conviction

Facts: Self-appointed neighborhood watch volunteer (“victim”/watch- man) was a sexual predator, having preyed upon under-aged young women. The defendant’s daughter was out late with her friends in the neighborhood and was “creeped out” by the watchman and his male ride along passenger. The defendant grabbed his 9 mm with full-metal jacket bullets and went out looking for the man who had upset his daughter and her friends. As they were driving through the neighborhood, the daughter pointed out the watchman’s vehicle. Defendant pulled his vehicle in front of the watchman’s car forcing him to stop. Watchman and his passenger testified defendant exited the vehicle pointing a gun at their car and shouted to them to explain what business they had confronting his daughter and her friends.

The watchman grabbed his 1911 .45 and exited his vehicle, claiming that he told the defendant that he had a gun as well, to calm down, that he was put- ting his gun down (which raises the question why would he even mention the gun if he was simply planning on putting it on the ground?) The Defendant testified he heard what sounded like a gun racking and fired two shots, one of which missed and the other penetrated watchman’s chest, severing his spinal cord below chest level. Defendant/dad was prosecuted for attempted murder. Prosecutor argued that because the dad had full metal jacket bullets in his pistol that more easily would pierce the body and that it was strong evidence of evil intent! The jury convicted the defendant/dad of first-degree attempted murder. He is now doing five to life in the state penitentiary. More than one girl came forward to testify that the “victim” neighborhood watchman had had illegal sexual relations with them, but they were not allowed to testify about this be- cause he had not yet been convicted. They were only allowed to testify that he had a reputation in the community as an untruthful person. He was indicted and convicted at a later trial.

Thumbs down factors:

i. Initial Aggressor – After the conviction, it is reported jurors told the defense attorneys that they were troubled with the decision they had to make, but felt compelled to convict the defendant/father because he was the initial aggressor in this incident. Although the daughter and her friends were “creeped out,” they were allowed to leave, the daughter came home and the father simply could have and should have called the police to report the incident. She was not in imminent danger justifying the use of deadly force. In essence, their dramatic message to the defendant father was, “Bro, you’re not a cop!”

Home Defense and Teenage Victims – Quaggin v. State, 752 So.2d 19, (Fla. App. 2000) (a guilty verdict overturned on appeal and then an ac- quittal); Texas v. Gonzales (an acquittal).

These two cases show the legal risk of shooting a teen intruder who is not committing a violent felony.

Quaggin involved a 76 year old man living in a home surrounded by trail- ers and old parade floats (made by Quaggin) containing piles of horded papers and personal belongings. Two boys, one 14 and the other 10, trespassed onto the lot, entered several of the trailers without permission and began gathering items without permission. They eventually wandered into the old man’s home. When they finally encountered Quaggin, there was a pile of clutter between him and them. They claimed they entered his home to ask permission to gather lumber to build a fort in the woods. Mr. Quaggin perceived them as burglars and tragically shot the 14-year-old dead. He was convicted of manslaughter and sentenced to 15 years in prison. He won a new trial because of faulty jury instructions that had been given. He was found not guilty in the second trial, but his daughter told the media he later died broke because of the dreadful legal expense. Six years later Florida beefed up its home-defense law to give homeowners a presumption of innocence when using deadly force to defend against an unlawful and forcible entry (see Florida’s subchapter and The Mother of All Self-Defense Laws, Chapter 20).

Gonzales – Just when we thought it was safe in Texas to defend one’s home from any intruder, the state brought murder charges against Jose Gonzales, age 63. On an evening in July of 2007, he killed one of three teenagers who broke into his home to “rummage for snacks and soda.” Although Mr. Gonzales was found not guilty, he had to endure the emotional nightmare and astronomical cost (assuming he wasn’t represented by a public defender) of a murder trial. “Man cleared in killing of intruder sneaking snack.” Deseret News at deseretnews. com, 28 September 2008.

Although Quaggin preceded Florida’s dynamite new home-defense statute, Florida and Texas have had comparatively strong home defense laws for years. No matter how strong your state’s self-defense statutes appear, a community uproar fueled by a sensationalized media “investigation” can put pressure onan elected District Attorney to prosecute. Pancho’s Wisdom – Every agency that arrests or prosecutes should be required to pay the attorney fees, out of its own budget, of any defendant who is found not guilty on the theory of self-defense or defense of others. The State of Washington has a similar provision as part of its self-defense statute. See Chapters 5 and 20.

Did the Fear of Racial Riots Prompt the Arrest of George Zimmerman in the Florida Trayvon Martin Shooting?

We would feel remiss if we did not comment on the nationally renowned George Zimmerman/Trayvon Martin case in this edition.

Disclaimer: At the time this edition was submitted for publication, the Zimmerman/Martin case had neither gone to trial nor had the court held an immunity hearing to determine if there was probable cause for the case to pro- ceed to trial. Therefore there was no appellate record summarizing the sworn testimony in the case. It's difficult to gather facts based on media accounts because of possible media bias.

Facts: Trayvon Martin, dressed in a gray hoodie, went to a convenience store to purchase ice tea and Skittles while visiting his father in a condo com- munity in Sanford, Florida. George Zimmerman, who considered himself part of the neighborhood watch program, did not recognize Martin and thought he might be up to no good. Zimmerman called 911 to report a suspicious person trespassing in the gated community and told the operator he was following Martin. The operator told Zimmerman he did not have to do that. Zimmerman followed Martin despite the suggestion from the 911 operator. Zimmerman was licensed to carry a concealed weapon in the state of Florida and had a 9mm in his possession.

Although the facts are not entirely clear, somehow Zimmerman and Martin ended up in a physical battle. Zimmerman has stated that Martin attacked him from behind. At one point Zimmerman was apparently on the ground, on his back and was having his head beat against concrete. At some point he pulled a gun out of his waistband and shot Martin through the upper abdomen or chest killing him.

Witnesses reported hearing someone screaming for help but the identity of the person as either Martin or Zimmerman is hotly disputed.

The police took Zimmerman to the police station for questioning. They also took pictures of blood on the back of his head that appear to support his claim of Martin smashing his head repeatedly against the sidewalk before the shooting. Such an assault would be considered a violent felony under Florida law giving Zimmerman justification to defend himself with deadly force. We have not heard of or seen any evidence that would prove Zimmerman was the initial aggressor. Obviously, the wounds on the back of his head preceded the shooting. There is no evidence that Martin’s DNA was on the pistol. This would suggest Zimmerman did not pull the pistol first causing Martin to try to wrest it from him in self-defense. We suspect this is why Zimmerman was not im- mediately arrested and charged. There was simply no evidence other than he was defending himself from a violent felony initiated by Martin when Martin was shot.

Nevertheless, because of the fear of race rioting, the police and prosecutor in the county took another look at the case and charged Zimmerman with second-degree murder. Unless the fear of race riots affects the decision of the judge assigned to the case, we suspect the case will be dismissed at or after the immunity hearing.

At the time of the printing of this edition, the immunity hearing had not yet been held. Nevertheless, because of the numerous facts reported about the incident, we believe it is possible to mention something about the thumbs-down factors leading to arrest and prosecution.

Thumbs down factors:

1. Armed defendant; Unarmed assailant: The arrest and prosecution in this case show what a strong thumbs-down factor exists when the defender shoots an unarmed “victim.” In this case the physical injuries to the back of Zimmerman’s head strongly suggest he was rightfully fearful of serious bodily harm at the hands of Martin be- fore he resorted to deadly force. Nevertheless, our research reveals that, unless it’s a home defense situation, shooting an unarmed person almost always results in arrest and prosecution.
2. Teen Victim – Killing or seriously injuring a teen victim creates such a public stir that elected district attorneys have a hard time resisting prosecution, especially where there are possible racial undertones.
3. Racial Undertones – Racial differences between the defendant and “victim” can raise the specter of a hate crime. If it turns out that you injure or kill an unarmed teen or child of a different racial background, you should expect that any statement you give will NOT keep you from being arrested or prosecuted. So our question to you is "why would you give a statement in the first place?" Tell the police you want a lawyer and SHUT UP! But the best advice is that if you see yourself getting sucked into such a situation, make EVERY effort to disengage and de-escalate. See Chapter 9, Conflict Avoidance.
4. Hey Bro, you’re NOT a cop – Defendant ignored the 911 operator’s advice to stop following Martin and let the police handle it (remi-niscent of the Joe Horne case reported in the Texas subchapter). As we’ve counseled throughout both editions of this book, if you’re carrying a gun, don’t seek out a confrontation with visions of making an arrest for a property crime. It’s too easy for the situation to escalate into a deadly nightmare.

 

Road rage

Criminal defense attorneys must wonder if road rage is the root of all brandishing cases. Gun owners rationalize that because their antagonist’s vehicle could be considered a dangerous weapon, they have a right to threaten with a weapon. The following description is out of an actual case I handled.

Two vehicles were stopped for a red light at 9000 South 450 West. One of the vehicles was a pick-up truck and the other was a passenger car. The passenger car, driven by [ my client (MC) ], was stopped in the #2 lane. The pick-up truck, driven by [ other guy (OG) ], was stopped in the #3 lane. At approximately 500 West and 9000 South, the #3 lane merges into the #2 lane. The truck in lane #3 accelerated in an attempt to merge in front of the vehicle in the #2 lane. As the two vehicles were side by side, MC and OG both flipped each other off. . . OG said that MC started waiving a gun around inside his car. OG described the gun as a black semi-auto Glock Handgun. MC did not threaten OG with the gun, but waved the gun around inside the window so he could easily see it.

Our client was charged with threatening with a dangerous weapon in a fight or quarrel, also known as brandishing. Because of certain technicalities in Utah’s law, I got the case dismissed. Fortunately, the defendant had not pointed the gun at OG or he could have been charged with felony assault. Unfortunately, the dismissal didn’t keep the defendant from incurring attorney fees. Carrying a gun should be the reason to de-escalate a situation like this, not escalate it.

I could relate dozens of similar stories. Similar circumstances; different cli- ent. The vehicles of MC and OG almost collided where two lanes merged into one. Tempers flared and angry words were exchanged (like a severe cosmic disturbance caused by the collision of two parallel universes. Sometimes I feel like I’m entering . . . ominous music. . . The Twilight Zone!). MC followed OG home. OG emerged with a knife and his live-in girlfriend (two witnesses to one – ugh). They called the police claiming MC pointed a gun at them during the standoff in front of OG’s yard. MC said he never showed the gun. Problem was, OG and his girlfriend were able to describe MC’s gun fairly accurately (“It was a black gun!” I would have given anything had MC’s pistol been purple.) MC was initially accused of assault with a deadly weapon, a felony. Fortunately, MC’s charges were later dismissed, but not before increasing my tax liability. Please read and internalize Chapter 9.

8

JUSTIFIABLE ACTS OF SELF-DEFENSE

By the time you get to this part of the book you might be asking yourselves, “What’s the use of even having a gun for self-defense?” So to keep you from selling your guns to some liberal mayor’s gun-buy-back effort, we felt compelled to feed you some good news along with the bad. Based upon our research we have concluded that the inalienable right to self-defense is still kickin’ and not usually seriously questioned in primarily three types of defensive incidents: (1) defense of persons in the home (“home defense”) (2) defense of self and others during attempted mass shootings and (3) armed robberies. Caution: Notice that we said “not usually questioned;” we didn’t say, “never questioned.” The exceptions are illustrated in quite some detail in the previous Chapters 3, 4, 5and 7 and also in Chapter 13.

Home Defense: Typically the use of force to prevent burglaries or home invasions by strangers does not result in arrest or prosecution. Notice we said “strangers.” An unlawful entry is an important requirement. Force in defense of persons in the home used against uninvited intruders is seldom prosecuted. In contrast, claimed home defense involving disputes between family, friends or acquaintances on the premises with permission are almost always prosecuted. Shooting the landlord, mortgage holder or repo man almost always turns out bad no matter what the homeowner claims. Injuring or killing a child or teen intruder involves substantial legal risk. Executing a wounded, helpless intruder can also lead to arrest and prosecution. Otherwise, defense of persons in the home against violent, unlawful entries by strangers is the type of incident that is rarely prosecuted.

Attempted Mass Shootings: Those defending themselves and others against random mass shootings are not generally prosecuted. The defense of parishio- ners at a Colorado church by a volunteer security guard and of shoppers at a Salt Lake City, Utah mall by an off-duty police officer provide two examples.

Colorado Church defense – In December of 2007, Jeanne Assam, a church volunteer carrying a concealed weapon at the invitation of her pastor, is credited with saving hundreds of worshipers during an attempted mass killing at her church. She was honored by the Colorado Legislature in Joint Resolution 08.019. Here are the facts reported in the legislative record without all the whereases:

On December 9, 2007, Matthew Murray drove to the Youth With A Mission campus in Arvada, Colorado. At approximately 12:30 A.M., the gunman, Matthew Murray, shot four students, killing two of them. Following the shooting in Arvada and later that day, the gunman drove to New Life Church in Colorado Springs, Colorado. At approximately 1 P.M. on December 9, 2007, the gunman entered the parking lot of New Life Church, as a church service was con- cluding. The gunman carried as many as one thousand rounds of ammunition for his assault rifle, with the apparent intent to cause a great loss of life and injury. The gunman began to open fire on the members of the congregation as they exited the church, injuring two and killing two members of the same family. Jeanne Assam, a volunteer security guard, was inside the church when she became aware of the shooting taking place and rushed toward the scene. Upon witnessing the gunman entering the church and firing his weapon, Jeanne Assam, putting herself in harm’s way and risk- ing her own life, drew her weapon, believing God was with her, and stepped into the gunman's line of fire. Jeanne Assam shot Mr. Murray and thereby stopped him from harming any more of the hundreds of people in the church.

Trolley Square Shooting – The following detailed description of the incident comes from a Salt Lake Tribune article investigated and reported by veteran reporters Kristen Moulton and Russ Rizzo:

Staring down on a gunman’s carnage at Trolley Square, Ogden police officer Kenneth Hammond had a choice: retreat to safety with his pregnant wife or confront a killer. He chose to act. Off-duty but armed with a .45-caliber handgun, he exchanged fire with 18-year- old Sulejman Talovic, who had killed five people and wounded four in less than six minutes at the Salt Lake City mall…Hammond and his wife, Sarina Hammond, had finished a pre-Valentine's Day dinner at Rodizio Grill on the mall's upper floor. Married just a few months, Hammond was waiting on a bench outside the restaurant for his wife…He heard popping noises that he thought were from construction, but when he looked over the balcony, he saw bodies on the floor below and a man with a shotgun leaving a store. He told Sarina, an Ogden Police dispatcher, to return to Rodizio, “lock down” the restaurant and call 911. Sarina said Tuesday that she borrowed a waiter’s cell phone to tell Salt Lake police that her hus- band was an off-duty officer, not a second gunman. She described what he was wearing, hoping to protect her husband from officers' fire. Hammond drew his .45-caliber handgun, but did not dare put it back in his holster to pull out his badge. To let mall customers and clerks know he was not a second gunman, Hammond said, “I was yelling and screaming as loudly as I possibly could . . . Officer Hammond, off-duty OPD!” and “Get down! Get down!” “It was tense for a few seconds,” he said. Then he and the gunman traded shots, Hammond on the second floor and the shooter down below. Hammond said he moved to another part of the balcony and lost sight of the gunman. He lay flat, but soon realized the gunman could come up the escalator behind him. No words were exchanged. In fact, Hammond said he couldn’t even describe the shooter. “I was so focused on that gun.” When he looked down again, he saw a Salt Lake City officer below and shouted out that he was an off- duty officer. "I didn't know him. He didn't know me." Hammond went down the escalator and together the two officers pursued the gunman. They fired at him and Hammond said there was silence for five to 10 seconds, before he heard rapid gunfire-apparently from the SWAT team—and looked up to see glass falling and the gunman down. In about nine minutes, the massacre was over. . . Salt Lake City police Chief Chris Burbank called it “amazing.” . . . “There is no question his quick actions saved the lives of numerous other people.”

“Trolley Square: The Hero Cop – Six-Year Veteran Having A Romantic Dinner With Wife Stalled Shooter Until SWAT Arrived.” The Salt Lake Tribune, 02/14/2007. Notice the extent of efforts made by both Hammond and his wife to inform responding police officers that he was a defender and not the mass shooter.

Like with the New Life Church and Trolley Square incidents, there have been other random mass shootings where citizens intervened to either stop the shooters or help apprehend them. These include school shootings in Pearl, Mis- sissippi and Edinboro, Pennsylvania. We have found no information to indicate that the armed citizens who intervened were arrested, prosecuted or sued.

Armed Robberies: Another fairly common scenario nowadays is where a business owner defends his business against an attack or robbery. Convenience stores, pawnshops and jewelry stores are often the targets. It’s not uncommon for the assailant to enter the store firing a round to terrorize the employees into submission. Under those circumstances, responding with deadly force is generally deemed justifiable as long is it is necessary to stop a robbery carried out with a deadly weapon. The exception to this generality was tragically and dramatically illustrated by the Oklahoma pharmacy shooting where a phar- macist executed a young, unarmed robber whom he had wounded and was lying unconscious. Because he used more force than was necessary to stop the robbery, the pharmacist was convicted of first degree murder.

Because of the risk of lawsuits, many businesses not only prohibit their em- ployees from possessing self-defense weapons, but will actually fire employees for offering any resistance or assistance during violent encounters. For example, see Feliciano v. 7-eleven, 210 W. Va. 740 (2001), where an employee was fired for wrestling a handgun away from a female armed robber and Bruley v. Village Green Management Company, 592 F.Supp.2d 1381 M.D. Fla. (2008) in which an employee of an apartment complex was fired for, among other things, respond- ing with his shotgun to the aid of a tenant who had been shot. The state of Utah has removed the risk of lawsuit for property and business owners who allow concealed weapon holders to possess a weapon on their property in the passage of U.C.A. 53-5a-103. We included this provision in the Mother of All Self-Defense Laws, paragraph IX.G, Chapter 20. We encourage readers to work hard in their states to pass such a provision to remove the excuse employers have to deprive their employees of the right to carry firearms at work for self-defense.

Pancho’s Wisdom

You just might be a Gunnut if . . . when your teens come home

late after you've gone to bed, they roll twice across the kitchen floor,

just in case they wake you up!