Table of contents
Including...Competition, Self Defense and the Law • 2011 In Review • President’s Message • Affiliated Attorneys Question of the Month: Brandishing Question • Networking • Book Review: Practical Home Security • Members’ Letters • Editor’s Notebook: Some Closing Thoughts
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Competition, Self Defense and the Law
by Marty Hayes, J.D.
I shot my first competition in 1978. The match was a police pistol competition (PPC), an NRA-sponsored event at the Spokane (WA) Police Academy. I was a new police officer at the time with only a minimum of firearms training. Fresh out of a reserve police academy, I had recently been hired at a small North Idaho town. Once on the job, I queried the chief (the department was only me and the chief) about firearms training. He gave me that blank administrator’s stare (the one which indicates that you have just been labeled a trouble maker) and told me our small department didn’t have a firearms training program. But he did offer to take me to the city dump and shoot cans. Seriously. And we did.
Shortly thereafter, I found out about PPC competition, and decided it was in my best interest to go and check out the matches. After all, the police firearms training I received in the reserve academy was patterned after PPC competition. So, off I went with my duty belt complete with a Ruger Security Six revolver. I came in last in the match, but I accomplished my goal of shooting above 70%, which was the qualifying standard in most police departments. Liability was not foremost in my mind; I simply wanted to be able to survive a career in law enforcement and figured it would be wise to be the best pistol shot I could be. Even though I came in dead last, that one competition whetted my appetite for more. Seeing those other guys shooting the X-ring out of the targets made me realize that I could learn a whole lot about shooting for blood by shooting at paper.
Fast-forward through two job changes and many more competitions to the year 1987. I had just finished up a two-year stint working at the Hanford Nuclear Reservation as a Security Inspector and a member of their traveling pistol team. The year after I left, they actually won the PPC National Championship. Alas, I was not on the team at the time, but I still took pride in their effort.
In the winter of 1987, I took my first job in the private sector as a firearms instructor at a Seattle-area indoor gun range, parlaying my police competition resumé and police firearms instructor status into a private sector job. By then, I was deeply into the gun culture, and had heard of such exotic training schools as Gunsite and the Lethal Force Institute. I wanted to join that exclusive club. I had also heard and read about IPSC combat pistol matches, which were a huge deviation from PPC. I correctly figured that “practical shooting” would soon eclipse PPC shooting as the number one shooting sport for self-defense practitioners, so I hung up my PPC guns, bought a Glock and started shooting IPSC in the Seattle area. Meanwhile, I was starting to make my bones as a civilian firearms instructor. One could correctly conclude that I gained at least some of my credibility as an instructor due to my success as a competition shooter.
Today, I estimate I have competed in over 300 pistol matches (and a few rifle/shotgun matches) several of them at the national championship level. I have also taught firearms for self defense for 24 years, and have worked as an expert witness in the field for about 20 years. In 2007, I completed my law degree. I hope this trip down memory lane allows the reader to decide if I have some credibility in this area, the area of competition, self defense and the law.
This is a three-pronged topic that leads with two initial concerns. First, will competition help, or will it hurt the armed citizen as it pertains to the actual use of deadly force in self defense? Let’s explore.
COMPETITION AND SELF DEFENSE
First, we need to define “competition.” For the sake of this discussion, we’ll confine ourselves to the “practical pistol” venues of the United States Practical Pistol Association (called IPSC at its formation; now known as USPSA) and that of the International Defensive Pistol Association (IDPA). Both these organizations were founded by self-defense advocates. Lt. Colonel Jeff Cooper of Gunsite fame was the driving force behind IPSC competitions and the organization’s first president. IDPA got its start when Bill Wilson, Ken Hackathorn, John Sayle, Dick Thomas, Larry Vickers and Walt Rauch put their heads together back in the mid-nineties.
Before either of these preeminent competitions became famous, my friend and mentor, the late, great Jim Cirillo was a force to be reckoned with in the PPC circles in the 1970s, and as late as 1997, he was actively competing in IDPA. Likewise many of the top instructors in the country routinely took part in competition. Massad Ayoob, Chuck Taylor and Ray Chapman participated in early IPSC competitions, and Ayoob is still an active and winning IDPA competitor. To a man, each of these great trainers will tell you that competition will absolutely NOT hurt you, as long as what you are doing is not counter-productive to good technique and self-defense tactics.
When he was a member of the NYPD Stake Out Unit, Cirillo was adamant that he wanted other competition shooters backing him up on the felony stake outs. He wrote in his book Guns, Bullets and Gunfights that he would ask potential recruits for the Stake Out Unit twelve questions. The first three were: “Are you a competitive shooter?” “Have you competed in major matches and placed and won awards?” “Can you perform well under pressure or fear?”
Cirillo (shown in the photo to the left) knew, the biggest benefit to shooting competition is the ability to practice your defensive handgunning skills under stress. Of course, this supposes that one has defensive handgunning skills to begin with! Most people start out at the lowest class, either D class in USPSA or Marksman class in IDPA. But with a little practice on the fundamentals and dedication to improvement, someone serious about improving their skills will quickly move up in class. Of course, a little formal training doesn’t hurt either.
Shooting under stress in competition will help prepare you for shooting under stress to save your life. There is no good counter argument to that premise. There are WAY too many people who have been involved in gunfights who attribute their success in part to their ability to hit targets under stress. And after all, what is greater competition than shooting to win the rest of your life?
THE DOWN SIDE
Having written eleven hundred words singing the praises of shooting competition, there are some drawbacks and I would be remiss if I didn’t point them out. The first huge drawback, and the most critical in my viewpoint, is the temptation to train only to win matches. You need to get some self defense/tactical shooting instruction, and need to practice that skill set along with shooting competition. It is a long known phenomenon that a person who is placed under extreme stress (like a life threatening encounter) will revert to the comfort level of their past experiences or recent training.
Take for example, sky diving. Before going up in an airplane, the skydiver practices pulling the rip cord of his parachute many times. He also practices finding and pulling the ripcord of the back-up ‘chute, too. Airline and fighter pilots practice handle critical incidents in the flight simulator many times before being allowed the responsibilities of transporting airline passengers or engaging in air-combat. They want to have the emergency plan foremost in their minds so they can concentrate on life saving actions. Shooting for self defense is not that different.
If a person’s last 1,000 shots have been fired at stationary targets, double tapping a reasonably large A-zone target area, while standing as still as if stakes had been driven into the ground through their feet, then if they need to fire in self defense, they will likely remain stationary, ignore movement and fire two shots.
In an IDPA match exposing half your upper torso when using cover is perfectly fine but in the real world that can get you killed. (In the above photo, Network Affiliated Attorney Brian Hallaq is shooting in an IDPA State Championship Match, but still takes care to remain as far behind cover as he can while shooting a match stage.) Even worse is not being required to use cover at all, even if it is available, as is often true at a USPSA match.
Other issues center around equipment used in competition, and how it differs from equipment used in self defense. The most logical approach is to simply choose a good self-defense handgun and holster, one that is perfectly suitable for everyday carry, and start using that in competition.
I routinely switch gun types for competition and carry, but when I do, I make a complete switch. For years, I shot and carried Glocks exclusively: on duty, for teaching, to carry off duty, and for competition. The manner of carry was virtually identical, even to the position of the Glock on the duty belt being comparable to the position on my belt for concealed carry. Because I practiced speed reloading much more often wearing concealed carry gear, on duty I positioned my extra magazines behind the hip, where I knew I would look for them first if ever needed. Thankfully, they weren’t needed.
COMPETITION AND THE LAW
The answer to that question is “it depends.” If you are up against a plaintiff’s attorney in a civil case, they will likely have found out about your Saturday afternoon hobby of playing Rambo Gun Nut by engaging in games where people run around and shoot humanoid-shaped brown targets, very fast and very accurately, over and over again, with the winner of the game being the person who shot the most humanoid-shaped brown targets the fastest and most accurately. I would be prepared for this to come up at trial, though you will also likely know ahead of time, because they would have broached the subject with you at deposition. (There are few if any surprises in a civil trial).
If you use a firearm for self defense, you face two legal challenges: a criminal one and a civil one. Remember the reasonable man doctrine? In either a criminal or civil trial the jury will be scrutinizing you and your credibility, measuring your actions against the standard of a reasonable and prudent person. Will the perception that you spend your Saturday afternoons with a gun in your hand, practicing how to kill people, and in fact seem to enjoy the endeavor, come up in your trial and have a negative effect on the jury? Remember who will likely be the jury.
First, I would arrange for at least two experts (and perhaps three or four) to testify on my behalf. The first expert would be a highly respected police trainer, hopefully local but if not local, then at least from the region. This first expert’s job would be to explain to the jury how police officers are trained to respond to threats against their lives and the lives of the public. I would explore how police training incorporates shooting at humanoid-shaped targets, and that some times, police officers even shoot at colored targets depicting people holding guns. Some of those targets might even be pictures of juveniles holding guns. Maybe even pregnant women holding guns. We would explore why this is done. (Photo below shows samples from LE Targets showing people from all walks of life in various poses for use in scenario-based training, long a staple of law enforcement education.)
We would also discuss how much training the typical officer receives before being put on the street, how much training officers receive annually, and why.
I would also explore with this police trainer, or perhaps another if necessary, police officers competing in matches similar to competitions I shoot. In fact, many officers likely compete in the very same matches as I do.
At the last State Championship, I was introduced to an FBI agent who was also a competitor. How cool is that? Could I get one of these officers to come to court and testify on my behalf? Likely so.
If participating in “combat pistol matches” was being used in court to paint me as some crazed Rambo type who enjoys the fantasy of killing scores of people, I would call as an expert one of the individuals who founded the shooting endeavors in which I participate. For IDPA, it would be one of the original board of directors, as mentioned above. If USPSA, I would call one of the early participants in the sport, to give a history lesson about how and why the sport of IPSC competition was formed.
Lastly, for my defense, I would call myself to the witness stand. That’s kind of a joke; I would not handle my own legal defense pro se! Instead, I’d have at least two top attorneys on my legal team. On the stand, along with explaining for the jury the reasons why I felt it necessary to use deadly force to protect myself or others, I would be ready to explain that I participate in these competitions in order to be best able to fulfill my responsibilities to myself and others I would be protecting, along with society in general. That means being the best, most competent armed citizen I can be. I would explain how many, many years ago, I decided to make sure that if I was ever forced to use deadly force in defense of myself or others, I wanted to be as skilled as possible, to minimize any risk to the general public. That’s why I compete and will continue to compete as long as I carry a gun.
[End of this article.
2011 IN REVIEW
by Gila Hayes
With each passing year, the Armed Citizens’ Legal Defense Network, Inc. moves beyond being a start-up focused on establishing a greatly needed resource for armed citizens and comes closer to fulfilling the goals of its founders, as with each new member and each membership renewal the Network’s Legal Defense Fund grows ever larger. Concurrently, this member-focused organization grows stronger and better prepared to bring the strength of thousands of armed citizens to bear in defense of Network members being ground through the American criminal justice system after defending self or family. Each January, we give a review or state of the Network report, so members are no doubt waiting to read how their Network fared in 2011. The short answer: very well indeed!
Do you remember how thrilled we were in January of 2010 to report that the Legal Defense Fund had amassed $30,000? The following year, the Network itself made a substantial contribution to the Legal Defense Fund to wrap up 2010 with $100,000 in the Fund. That was a huge milestone for us. As this year slips away, the Legal Defense Fund contains $158,300. Has this financial resource fulfilled its intended purpose? Absolutely!
Two members of the Network who in 2011 acted in self defense, faced challenges from the criminal justice system, so their attorneys received Legal Defense Fund monies to represent them. While the membership benefit of a deposit against attorney fees is never contingent on using a Network Affiliated Attorney, in these instances neither member had suitable representation, so the first steps Network President Marty Hayes undertook when he received word that the member needed assistance was getting one of our affiliated attorneys in touch with the member, and the attorney took it from there.
In deference to our members’ privacy, we must decline to give details. In brief, the first case saw protracted legal maneuvering right up to the day of trial, but at zero hour, a settlement was reached. The member expressed satisfaction with the outcome and complimented the services of the Network Affiliated Attorney who provided his representation. The other case is new. A Network Affiliated Attorney is working the case aggressively, and knowing this advocate’s reputation, I have no doubt that our member is receiving a vigorous defense.
STEADY, SUSTAINABLE GROWTH
Network membership grew from 1,500 to 2,800 from January 1 to December 31 of 2010. Now we end 2011 with 4,600 Network members. A word about sustainable growth: sometimes I speak with folks who earn their living making sales and marketing products. They say, “Your Network could be huge, if you’d only ...” and I’m sure they are sometimes right. The question is whether developing the Network to its highest potential means having the most members or providing the best service. To us, it has always been the latter.
Still, because Network membership dues are the primary source of funding for the Legal Defense Fund, we are growing the Network as fast as the infrastructure will support. It is a delicate balancing act, as it has been the Network’s philosophy from day one to grow only so fast as the financial resources are available to provide services to our members. The Network does not incur debt or undertake business expansion for which it cannot pay out of existing operating capital. Instead of expensive advertisements or membership drives, the Network’s outreach tools are its web site, the tremendous network distributing our educational booklets to gun owners, word of mouth from satisfied members.
The result of this kind of outreach creates steady growth and while it’s not flashy, this conservative foundation for the Network is secure and assures that this organization will be here many years from now.
Network President Marty Hayes continues to make guest appearances on radio and television, speaking about the Network’s efforts, and educating audiences about the legal aftermath of self defense. He returns for a second season on the Outdoor Channel’s program The Best Defense, this season presenting information more tightly focused on the program instead of the general lecture points he gave during the 2011 season. Members and non-members alike tell us they make it a point to tune in to watch his contributions to The Best Defense, so they should be even happier this year, as he offers a specific analysis about each episode. In addition, he is happy to give radio and podcast interviews, and usually is invited to do that about half a dozen times a year. We hope to increase this kind of outreach, as we always reap dividends when informative interviews or educational articles spotlight the Network.
Network Vice President Vincent Shuck’s efforts expanded corporate sponsorship for the Legal Defense Fund and the Network during 2011, and now Accurate Edge, Blade-Tech, CCW Breakaways, Crimson Trace Corporation, Dakota Ammunition/Cor®Bon, Galco, North American Arms, Recluse Holsters and Safe Direction, LLC are listed as our corporate sponsors. These businesses have contributed to the Legal Defense Fund via product contributions that were auctioned on Gunbroker.com. Others on this list distribute Network materials as part of their mail orders. We are grateful for their outreach, as we’ve seen many new members report learning about the Network because one of our booklets arrived with their order. The Network also has a booth at the NRA Annual Meeting each year, using that excellent venue to speak with gun owners who share the same concerns as do we and other Network members.
Let’s return briefly to the topic of Network Affiliated Attorneys. Last year, we increased our count of Affiliated Attorneys from our 2010 numbers of 120 in 40 states to 203 in 45 states. Understand that these men and women are not just lawyers from undetermined sources that we list on our website. Not at all! Each Network Affiliated Attorney is a full member of the Network, receiving the same educational DVDs as do our members.
Many also contribute to the Attorney Question of the Month column in this monthly online journal, giving you a chance to see how clearly they understand topics of concern to our members.
We have high hopes for reaching even more attorneys in 2012 as development of a continuing legal education program for attorneys (CLE) approaches reality. We’ve spent several years refining the CLE curriculum, and one of the best things to happen to this fledgling program has been Network Advisory Board member James Fleming’s willingness to step into the role of director of curriculum development for CLE.
Now, dates and locations for a handful of pilot CLE programs are firming up for 2012. The initial CLE classes will be led by Massad Ayoob and James Fleming, organized by Marty Hayes and Vincent Shuck, and hosted by attorneys local to the area of the training. As the class dates near, we will notify our members as they will be welcome to attend and tuition rates are discounted for Network members.
Think about this: what organization can show not only several hundred attorney members who are happy to be resources to their fellow members, but also trains those and other attorneys to provide the best counsel and defense for armed citizens? With each milestone in preparing the Network’s CLE program, we become increasingly excited about being able to better prepare attorneys to defend innocent armed citizens.
OUR MISSION OF EDUCATION
We continue to focus our efforts on the Network’s successful public educational program, with distribution of our 24-page booklet What Every Gun Owner Needs to Know About Self-Defense Law. It is one of our major tools for Network promotion. This publication provides a seriously needed resource by which armed citizens can better understand the legal system with which they will interact if they ever use a gun in self defense. In addition, it establishes the Network as THE reliable source of information about the legal aftermath that follows self defense, planting a positive image in the minds of those receiving the booklet. In 2011, more than 120,000 copies of the booklet were sent at no charge to Network members, Affiliated Instructors and Affiliated Gun Shops. The latter use the booklet to better educate their clientele and our members share it with friends, families and acquaintances they make at their gun clubs and shooting ranges. A big thank you to anyone who handed out a booklet last year. Your assistance makes this outreach and education initiative successful! Please let us know if you need more booklets!
The better educated American gun owners are, the fewer injudicious uses of firearms will occur. Our booklet makes new gun owners stop to ponder the power they’ve assumed. Those who are serious about their responsibility want to learn more and many join the Network because of our aggressive member education program. Network members receive three educational DVDs with their first year’s membership and additional educational programs on DVD each year thereafter. As of this writing, our sixth program, a lecture given by Massad Ayoob entitled Understanding and Explaining Altered Perceptions of Witnesses and Participants in Violent Encounters is at the replicators and will be mailed to renewing members around the first of February.
Our seventh educational DVD program is completely taped, and our new video editor is hard at work smoothing out any glitches, camera angle switches and “oops, let me say that over” incidents the camera’s unforgiving lens captured. We are very pleased with the new editor’s work on the sixth program, so can’t wait to get the seventh program ready in time for the next year’s renewals, which will begin mid-summer of 2012. In the production of our educational DVDs, high-tech, glitzy formatting has never been on our agenda. Instead, we seek out the subject matter experts, with the intent of creating a very well-prepared membership and thus a more defensible group of armed citizens.
For many, 2011 was a year of change, and the Network had its share of change, too. Detail-oriented members may have noted a very small change that came when the Network’s business structure changed from LLC to Inc. With mounting taxes nipping at our funds, we had spent several months conferring with the experts and subsequently restructured slightly. None of the changes have the least effect on members and their benefits, and I doubt many even noticed the small change in our name.
Perhaps the biggest change in member benefits for 2011 didn’t really capture much attention. Network leadership had discussed it in prior years, and after fully studying the question, decided to extend the deposit against attorney fees to which members are entitled beyond situations where guns were used in the defensive act. A lot of our members, conscientious and law abiding, carry knives and other defensive tools in times, locations and circumstances where they are forbidden to carry their trusty self-defense gun. It made no sense to leave those members in the lurch should they have to defend themselves with what ever tool was at hand.
In addition, in May of 2011, the deposit against attorney fees was increased from its original $5,000 up to $10,000 for cases in which, given the facts of the case, it appears likely that the Network member will be charged with a felony. If the member’s attorney reports that the situation is more likely to result in misdemeanor charges, the deposit against attorney fees is $5,000. We were pleased to be able to increase the benefit as it is also a subtle measure of the Legal Defense Fund’s growing ability to provide meaningful intervention on behalf of our members.
PREDICTING THE FUTURE
Most of 2011’s growth, changes and accomplishments mirror expectations we expressed 12 months ago. Membership numbers didn’t quite reach the 5,000 that Network President Marty Hayes set as a goal, so we’ll have to work extra hard in 2012 to catch up to his expectations!
Increased recognition of the Network among American gun owners is making membership development easier with each passing year.
When the Network started in 2008, we introduced an entirely unique concept for armed citizens–a means of receiving assistance in preparation for and immediately after a self-defense incident, as well as later help preparing for and putting on a vigorous legal defense in court when necessary. A lot of people simply didn’t understand how the membership benefits would work, and tried to view the Network through their concept of other gun owner associations. We still work hard making sure potential members understand what the Network does for members and how it works.
During our first few years, we countered a certain amount of suspicion that the Network simply wouldn’t endure to be there if a member needed help three, four, six or eight years after joining. Most of those worries have apparently subsided, and with the introduction of multi-year membership packages, it’s became apparent that members who understand and are enthusiastic about the Network’s services and our mission are as convinced as we are about the organization’s longevity.
I am sure I speak for the Network’s founders and our generous advisory board in noting that even during the challenging early days, we never lost sight of the Network’s goal, to provide the legal support armed citizens desperately need to fight an overly-aggressive criminal justice system challenging the steps they took to survive criminal attack. Now, as more and more armed citizens realize what an excellent resource the Network is for them and their friends and families, and as they endorse our services by becoming part of the Network, it is indeed rewarding to know that thousands of other armed citizens share our vision for the Network.
[End of this article.
by Marty Hayes
RANGEMASTER TACTICAL CONFERENCE
For those of you who have read in the eJournal about previous RangeMaster Tactical Conferences and thought that you might like to attend one, well there is one coming up in February. Tom Givens has scheduled the 2012 conference at his home range in Memphis, TN on Feb. 24, 25 and 26. Tom blends instruction from some of the top trainers in the country with a street-relevant pistol match. It is absolutely the best event going for the money and if you are anywhere near the Mid South, you should try to attend. Enrollment is limited, so don’t delay if you want to participate.
GROWTH GOAL NOT MET
Last year, I set a healthy goal for membership, that being to double our membership, and to reach 5,000 members by this time. Well, we have come up about 400 members short. That’s the bad news. The good news, and what needs to be taken away from this, is that this past year we almost doubled our membership again, and we continue to grow every day. So, let me set a new goal for this time next year. Let’s top the 7,500 mark in 2012, okay? If we can do that, we should have a quarter of a million dollars in the Legal Defense Fund, so we’ll be stronger financially and better able to cover any additional expenses of growing pains.
[End of this article.
AFFILIATED ATTORNEY QUESTION OF THE MONTH
With help from Network Affiliated Attorneys, this column keeps our members in touch with our attorneys and demystifys the legal system for readers.
The current question stems from concern expressed by concealed carry licensees that they don’t know at which point they are allowed to draw and point a firearm at an assailant as one of their tactics to escape imminent attack. In a lot of states, displaying a firearm is termed “brandishing” and is a crime, so they aren’t sure how their claim of “self defense” is invoked to avoid being found guilty of brandishing.
We asked our affiliated attorneys: “Can you explain your state laws on displaying a weapon to stop an attacker? When does the law allow pointing a gun at an assailant during self defense?” Their answers were so comprehensive that this column is a continuation of answers received and owing to the volume of responses, we will continue covering this question next month, as well.
M. REED MARTZ
In Mississippi, our Code (§ 97-37-19) prohibits the exhibition of a deadly weapon in the presence of three or more persons “in a rude, angry, or threatening manner, not in necessary self-defense.” Additionally it is illegal to “unlawfully use the same in any fight or quarrel.”
For example, when threatened with less than grave bodily harm (say, an evenly matched fist fight) one cannot respond with deadly force or even the exhibition of deadly force. Displaying a gun in this situation would not be “necessary self-defense.” If, however, the threat is deadly or presents grave bodily harm, displaying a firearm to prevent further attack would be justified and legal.
JAMES B. FLEMING
You managed to find a very complicated topic this month. It is complicated by variations in the law from state to state, and variations of interpretation within each state as well. As you note, this often falls under the discussion heading of “brandishing,” as in, “Is it okay to brandish, or isn’t it, in order to discourage a potential attacker?”
The answer depends, as most of these questions do, upon where you live, and, as always, the circumstances of the situation in which the question arises. In each case, you have to start, or should, with the question of what is brandishing?
In Minnesota, there is no brandishing statute, by name, as you might find in other states, such as Virginia:
Or, California, which prohibits brandishing a firearm in “a rude, angry, or threatening manner,” Cal. Penal Code § 417(a)(2), or Missouri, which makes it illegal to display a weapon “in an angry or threatening manner” Mo. Ann. Stat. § 571.030(1)(4).
In Minnesota, Minn. Stat. §609.66 makes it illegal to (1) recklessly handle or use a gun or other dangerous weapon or explosive so as to endanger the safety of another; or (2) intentionally point a gun of any kind, capable of injuring or killing a human being and whether loaded or unloaded, at or toward another.
Interestingly, Minnesota also makes it illegal to display, exhibit, brandish, or otherwise employ a replica firearm . . . in a threatening manner . . . Minn. Stat. §609.713, subd. 3 (2008). So, it is possible to argue that simply revealing the fact that one is carrying a pistol in Minnesota does not rise to the level of a crime.
Minnesota is an “open carry” state, meaning that if one possesses a properly issued permit to carry a pistol, the pistol can be carried in an open fashion and need not be concealed. Most firearms instructors, including myself and my staff, strongly recommend to our students that they carry their handguns concealed. However, that advice has more to do with issues of public reaction and relations, safety, and firearm retention. Openly carrying a handgun when armed thugs barge into a convenience store for a robbery, for example, will likely guarantee that you are the first one shot.
On the face of it, it would then appear that in Minnesota, simply displaying a holstered handgun as a deterrent to a violent attack would not be the subject of prosecution. Similarly, in Michigan, the State Attorney General issued an opinion in 2002 that openly carrying a firearm under Michigan’s open carry law did not equate to an illegal brandishing. Noting that neither the Michigan Penal Code nor the Michigan Criminal Jury Instructions include a definition of brandishing, the AG concluded since the dictionary definition of brandishing is defined as: to wave or flourish [a weapon] menacingly, then “carrying a handgun in a holster in plain view, is not waving or displaying the firearm in a threatening manner.”
However, there are other Minnesota statutes which are from time to time unfortunately employed by over-zealous prosecutors who believe that only cops should carry guns, gun possession by private citizens should be outlawed and in general, have only a limited understanding of the laws and realities of self defense.
For example, there is assault in the second degree, a serious felony which includes an act done with intent to cause fear in another of immediate bodily harm or death. Assault in the fifth degree, which is defined (in part) as committing an act with intent to cause fear in another of immediate bodily harm or death. There is also disorderly conduct, defined as engaging in offensive, obscene, abusive, boisterous, or noisy conduct tending reasonably to arouse alarm, anger, or resentment in others. Or, terroristic threats, in which the actor directly or indirectly, threatens to commit any crime of violence with a purpose to terrorize another. Ask any criminal defense attorney and they can recount examples of clients who have been subjected to criminal prosecution under one of these laws or similar statutes, for simply displaying the fact that they were carrying a means of protecting themselves.
It is true that the defense of self defense would apply in any prosecution where such offenses are charged. However, legally employing deadly force, even by the display of a firearm, would require that there be a reasonable apprehension of imminent crippling injury or death. The Minnesota Appellate Courts have ruled that threats of physical assault can create such a reasonable fear. However, they set out that ruling in a different context, probably did not consider the natural and logical extension of their ruling, and nobody should want to be a test case. Being a test case costs money, time, stress and notoriety.
In Minnesota, deadly force is justified in the defense of oneself or another, in the face of a reasonable fear of imminent death or crippling injury. If pointing a firearm at an attacker is enough to stop the attack, then the analysis of the justification is the same. It is not necessary to shoot the attacker to give rise to a valid self-defense claim. However, you are going to have only seconds if that, to interpret the attacker’s intentions. So, I cannot recommend that a member show the gun unless they pull it, and if they pull it, they have to be ready to use it. The right to carry a firearm is more than a Constitutional right as some would suggest. It carries with it tremendous responsibility. A criminal only has to be right once. We have to be right all the time.
The Regan Law Firm, L.L.C.
I was asked to comment about whether the common law defenses of self defense or defense of others applies to situations where one exhibits or brandishes a firearm at someone, but does not actually fire the firearm. The answer generally is yes, but BEWARE AND BE CAREFUL MY FRIENDS, BEWARE AND BE CAREFUL!
The granting of a concealed carry permit confers a grave responsibility on the citizens who choose to carry. Licensees and permit holders are now permitted to carry deadly weapons in their daily lives in the community. The government, whether you like it or not, sees the granting of this authority as a privilege and not a right, and can revoke it for certain statutory reasons.
One of the most foolish things a permit holder can do is brandish or exhibit their weapon when it is not legally necessary or permissible to do so. I have seen this happen in many instances of road rage, domestic disturbances and confrontations when the permit holder lost his/her temper.
I was at a shooting range recently and observed a woman who was a very good shot. She was able to place rounds accurately down range at different distances with great precision. She also had great gun handling skills and was obviously very well-trained.
I overheard her telling her shooting companion how someone had stolen her purse from her car while she was getting out of it at a local shopping mall. Her friend asked the obvious question, “Well, did you shoot him?” Having heard the story, there was no doubt in my mind that this woman could have shot and seriously wounded or killed the thief at this close range in broad daylight. However, her quietly confident reply was, “No, I didn’t. I was not going to kill someone over a purse. I was in no fear of imminent danger, as the thief was unarmed.”
In general, the law of Kansas and Missouri allows a citizen to use deadly force only when he/she reasonable believes he/she is in imminent danger of death or serious bodily harm. This protection also extends to defense of third persons, as well, such as friends, family or other loved ones. There are other extensions of this legal defense when one is protecting one’s home, as we discussed in earlier columns on the Castle Doctrine.
The self-defense protections provided by law extend not only to the use of deadly force, but also the threat of the use of deadly force. Threat of the use of deadly force would occur when a citizen points his/her firearm at an assailant in an effort to discourage an assault, battery, robbery, sexual assault, etc. As a general matter, a weapon may only be pointed at someone when the licensee or permit holder has a reasonable fear and belief that he/she is in great imminent danger of death or bodily harm.
You need to account for your weapon and its ammunition. If using a rifle, what about over-penetration and innocent people being hit across the street? If using a shotgun, will pellets hit someone behind your threat? Can you really hit that guy at ten (10) yards in the dark? You are morally and legally responsible for every round you discharge from your gun.
These cases are decided on a case by case basis, one at a time, based on the facts available to the police and prosecutors who review these facts. There is no across the board answer to the question that would apply in all instances.
As a general rule, one should not display a weapon unless he/she is encountering a genuine and imminent threat. Waving a weapon around indiscriminately could result in the individual being charged with brandishing or exhibiting a weapon or felonious assault.
You should know that any time you pull out and point your weapon at someone, which is called exhibiting or brandishing, several things are almost certain to happen:
1. Someone is going to call the police about this.
2. Your weapon will be confiscated and perhaps never returned to you, even if you win the case. I’d hate to forfeit a Luke Volkmann 1911 Combat Model with Dan Chinnock ivory grips!
3. Whether you are right or wrong, your decision will be second-guessed by a prosecutor and a police officer using their standards and not yours. These standards vary from community to community and from region to region and you need to be aware of what they are before making this type of decision.
4. Your name will be entered into a police computer and may result in you having a permanent arrest record, even if you are acquitted or the charges are later dismissed. I have seen cases in the last several years where guns were pulled after road rage incidents during verbal altercations on the highway. In most of these cases, the police were called and the armed party was initially charged.
There are overt and hidden prejudices sometimes in law enforcement directed toward citizens who use guns to defend themselves. It cannot be said that all law enforcement officers and prosecutors are on the side of the armed citizen when investigating these disputes. A firearm should never be displayed to make a point or for any other reason than to protect one against an imminent threat of serious bodily harm to themselves or an innocent third party.
Whether you win or not, legal fees will be incurred, your name could be unfairly publicized in the newspaper, jobs could be lost and the unintended social cost levied against you. Your gun will be confiscated and maybe never returned.
It has been my experience that shooters who opt for practical and tactical shooting training beyond their CCW classes make more intelligent and reasonable decisions in avoiding unnecessarily displaying their firearm. The mere possession of a handgun or self-defense firearm does not qualify one to use it, any more than the mere ownership of a beautiful brand new Harley-Davidson motorcycle makes one a proficient Harley rider. Training, education and experience seem to help practitioners be more responsible.
The defenses allowable for the use of a weapon are also afforded the citizen in the threat of the use of a weapon, i.e. pointing it at an assailant or threat. However, remember the four rules of firearms safety always apply! Pointing a gun at another person with a crowd around could get you charged with pointing a gun at an innocent crowd member. Pointing a gun at someone you are not prepared or legally entitled to shoot could also be dangerous. Your firearm could be taken from you. You could be shot by a third party who wrongly thought you were an attacker. Your gun could be taken from you and used against you by an assailant with superior training.
The bottom line here is that before you point a firearm at someone, you need to be sure you are legally and morally entitled to do so and you can do so without injury to innocent bystanders.
God bless and good luck.
[End of this article.
by Brady Wright
He wrote, “They are so good to give my CCW classes. It is what I have been teaching, but you do it so much better. I gave my last one out last night and now I don’t even have one for myself.” Doctor, those are some kind words, and we’ll take care of you!
[End of this article.
Practical Home Security – A Guide to Safer Urban LivingBy Alex Haddox100 pages, softbound
Palladium Education, Inc.
50 S. Delacey Avenue, Suite 202, Pasadena, CA 91105
Reviewed by Brady Wright
The latest work by Alex Haddox is an introduction to the man for this reviewer. Because of that, I spent some time going over his section on credentials, so that I could learn where the information he was sharing came from.
The book does not disappoint.
He uses the device of “overview-explanation-example” in his discussions of over 70 situations and scenarios that cover the concerns of every citizen who would go armed in this world. The clear and logical writing style gives the reader a no-BS encyclopedia of how to make good defensive decisions for self and family. This is a freight car full of information packed into a Kindle-sized package.
Practical Home Security, A Guide to Safer Urban Living is available through Palladium Education, Inc. and you can find them at www.palladium-education.com, and Alex Haddox’ podcasts and website are at www.alexhaddox.com/practicaldefense.shtml. The book is a great value and should be in the library of everyone who is serious about armed self-defense and family safety.
[End of this article.
Here is a sampling of emails we received about the December journal.
I believe one of Massad Ayoob’s favorite words is ‘articulate.’ Verbal articulation is a skill as important to someone considering a firearm for defense as is marksmanship.
P.S. My credentials for offering these comments: Thirty-eight years of service (prior to retirement) with a major metropolitan police agency.”
This topic is timely and essential to prevent the loss of thousands upon thousands of dollars during our defense of a legal act. The vast majority of us have no knowledge base to use in these interactions with police, and you are correct: we all have a morbid dread of contact with police.
More importantly, this article brought home to me the dread of the police: they do not know we are good guys. They are worried about being shot. So for us to expect a good guy response from the police is totally out of the question.
Thank you for providing this essential piece of knowledge for our members. It is one of the most relevant topics we have, and the one with the least amount of data available.”
Upon learning that further exploration of this issue is of interest to Network members, our Network President Marty Hayes has agreed to research this topic and write about it. We’ll allow him enough time to do a thorough job.
THE JOURNAL FORMAT
Change is never easy, and this one in particular struck a nerve. As members have expressed considerable variety of opinions about the change, it makes sense to bring the discussion out into the open as less vocal members may have similar questions. I’ll add a few explanatory comments in italics where it may help clarify questions or requests made.
“After starting to read the December journal I found it pretty hard on my eyes (even with my reading glasses on). I found the PDF files much easier to read and also enjoyed being able to read them offline. I’d hate to have to print out each and every one (I live on a boat and don’t have lots of storage space for printed files) besides using up lots of paper. Would it be possible to have a ‘download as PDF’ button on the page for those of us who are able to download and view the PDF version of the journals?”
“PDF ends up being 27 pages. I copied, pasted the PDF into a Word file and changed font size. Bummer about the computer issues for others. I liked the other way better, but don’t mind the few minutes it took to reformat the journal. I appreciate you ‘guys.’ I have bought a few books, further researched topics and been validated by other articles due to the journal. I also hope never to need the legal service part of ACLDN, but it’s nice to know it’s there.”
I made several refinements to the “Get eJournal PDF here” link in hopes of resolving these kinds of problems. The PDF does not have to be printed and is archivable on the member’s own computer. Give it a try!
Other members have inquired about formatting for a variety of eBook readers, and I admit that the idea of reformatting for all the various readers out there was daunting. Then, came a ray of hope: A member reported using a Linux program called Calibre to convert text to eBook format. Perhaps similar utilities exist for Windows Mac, I thought. Further research turned up several options to do just that. If members want to optimize journals for their eBook readers, they certainly have our permission, with the restriction, of course, that it is only for their personal use, not for distribution.
“Thanks for the December web version of the Journal. It has been needed for some time. I have not been able to read any of the journals for months. I have tried on three different computers, my home desk top, my work desktop and a new laptop purchased last month. I have the latest versions of Adobe on the computers. When I try to download, the first page comes up and the computer(s) freeze up.”
“I understand your pain trying to resolve problems with members reading our newsletter. However, I think that you erred in changing everything because a few members had old Adobe Reader versions on their old computer. Updates are easy and free, and members should be responsible for staying current. PDF files are the universally accepted basis for easy transfer and reading, and I respectfully suggest that the Network return to that format. If not, at least allow the web page format to be one complete screen so that I can download the entire file and read it at my leisure. The current method only shows one page at a time, and I cannot scan or save the entire file as I could with your old PDF formats. In addition, the PDF download icon does not work on the new style.”
The website template’s PDF download icon is indeed faulty so we provide the ”Get eJournal PDF here” link to the downloadable PDF with each monthly journal description. It should help, and besides, that link is more prominent and probably will be used more.
The new online journal format has an “All Pages” option at the upper right of each journal page. When converting journal material for personal use or printing the journal, I believe members will have the best results copying out of “All Pages."
“This has to go! I print 3 pages to get one usable page. I have a folder (in memory) of all the back [journal] copies. PDF is very good. I know PDFs take a lot of bandwidth but this format isn’t worth my time. Can you make each article a separate email down load?”
I answered several requests to distribute the journal by email and others have asked for a link to the journal download in our announcement emails. Unfortunately, both options cause big problems. Bulk email is a necessity for an organization like the Network, but if I include live links or attachments, many email settings relegate the message to the Spam folder. Before you retort that it sounds like a problem for the end user, let me explain how this costs the Network money.
When services like Comcast detect our emails being marked as spam, they black list our IP address and any emails sent to that provider are returned undeliverable. A number of providers subscribe to commercially compiled black lists, and if, for example, Comcast black lists our IP address that action snowballs and we will experience delivery problems from others as well.
When that happens, I call our IT contractor and he checks the blacklist, finds our IP address on it, and opens a ticket with Comcast (or the appropriate provider). Sometimes it takes a while to get delisted, during which time not only are we unable to answer many other emails so business is disrupted, but the time spent following up to get off the list costs money, too. It took a few harsh lessons early on, but I’ve learned to avoid links and attachments in our bulk email to members and it has been quite sometime since I’ve fought a blacklist problem.
“I got the impression from your general membership e-mail that there are a lot of people who cannot access your PDF file. Yes, the web version is not as beautiful but it doesn’t use the memory that a PDF does and if all members can access the web version, then everyone wins.”
The cost of publishing and distributing a paper magazine is truly formidable. Our Network leadership determined in 2008 that online publishing was our best option to deliver educational articles to our members, as it does not siphon off money better dedicated to building up the Legal Defense Fund. Since then, publishing and distributing magazines has only become more expensive, so we stand by our first decision. Thank you for understanding.
[End of this article.
EDITOR’S NOTEBOOK: Closing Thoughts
by Gila Hayes
I was wrong, and I’m really pleased that I was! In January of 2010, citing violent crime and a stagnant economy, I predicted that we were in for increased crime in 2010 and beyond. A few weeks ago, however, I read that CNN reports that for the first half of 2011 violent crime dropped, and even property crime declined a little. Who would have guessed? John Lott’s blog alerted me to the CNN report that tells the good news. With more states legalizing concealed carry and more new gun owners, citizens–armed and unarmed alike–must seem poorer prospects to robbers and rapists.
It seems that I should offer our readers some deep thoughts in this January edition of the Network’s journal. What I have to say focuses on our gratitude to Network members for helping our organization grow.
I am touched by how many members add a contribution to their membership renewals when they renew online and am also pleased when a member simply goes to the website and sends in a contribution, or as one of our affiliate instructors does from time to time, spontaneously sends a check for the Legal Defense Fund with no prompting or requests from us whatsoever.
I think we’ve all experienced contributing to an organization because they work toward a goal we believe in only to later regret lending support after discarding pounds of unwanted junk mail or hitting the Delete key on hundreds of over-amped spam mailings from an organization you only wished to help grow. I’ve suffered donor’s remorse, and I’m determined that our Network will never create those sentiments. That’s why our Network’s contribution efforts are extremely low key–an option on the Network website, followed up by our personal thanks when a member or benefactor contributes. I promise we’ll never hound you with follow up requests for more!
Some follow up to my December editorial, in which I commented that some of our members, active participants on a number of Internet forums and online chat groups, included a live link to the Network in their signature line. Since I’m not a big participant in forums, I became aware of this practice when our website optimization service showed multiple visitors coming from certain Internet forums. Following the trail back, I’d find a post to a forum thread that while it had nothing to do with the Network, was read by someone who noticed the Network’s link in the signature line and visited our website to see what it was all about. What a great idea, I thought, so in December’s journal editorial I asked members to consider doing the same in their forum activities. Not long thereafter I visited by phone with a member who said he’d give it a try. Sure enough, soon the website visitor “came from” log showed visits tracking back to our member “Caribou” who had done as he said he would, and thus sent other gunowners to the Network’s website. Thank you, “Caribou,” “10th Mtn,” and “Craig_VA” and all the rest of you out there in Internet-land who are doing the same! I really appreciate it!
In closing, 2011 has been a great year for the Network! I thank each of you participating in this tremendous enterprise and for your role in the Network’s success. My enthusiasm for the unknown that lies ahead in the days and weeks of 2012 ahead is boundless and I look forward to sharing the Network’s fifth year with you.