by Gila Hayes
People sure seem to like hard and fast rules, but rules betray us when changing circumstances make a rule or what was imposed as policy no longer applicable. The perceived safety of knowing rules and following them without question can quickly turn to danger – not only of failing to act to save life, but also danger of post-survival punishment. Decades ago, Dennis Tueller studied how police responses needed to be scaled to consider the officers’ proximity to threats. He distilled his findings into a principle that law enforcement and private citizens alike have used to save lives for several decades. He has consistently stressed that his findings did not constitute a rule, and an article I stumbled across underscores the danger of inflexible rules directly related to his warning. Take a look at https://www.police1.com/edged-weapons/articles/the-21-foot-rule-is-back-in-the-news-IXEw5hfE4HVKnBIh/.
Early in this journal’s history I had the privilege of interviewing Tueller to commemorate the 25th year since publication of his famous article How Close is Too Close, which introduced what has come to be known as the Tueller Principle. People being people, quickly morphed the principles of awareness, cover and obstacles, threat recognition and allowing for reaction time that Tueller wrote about into – you guessed it – a rule.
Tueller explained, “The term ‘21-foot Rule’ was not one I used. In the article, I talked about recognizing the danger zone, and about using cover or at least obstacles to slow an attacker.” He added, “I still think the ‘21-foot rule’ is a poor use of terminology. Why not call it a ‘rule?’ Because words have meaning in the context in which we use them. What do you think of when you hear the word ‘rule?’ ‘Follow the rules...’ ‘Don’t break the rules...’ ‘That is a violation of the rules...’ ” His words are still true today! The attitudes and philosophy Tueller shared a decade ago at https://armedcitizensnetwork.org/44-our-journal/86-the-tueller-drill-revisited has guided us in building a flexible, member-focused Network as it has grown and matured over the past 13 years.
As you’ve likely intuited from our lead article, people often ask the Network exactly how much money we’ll pay to fight criminal charges, or other post-incident worries they’ve read about or heard discussed at shooting school or the gun store. A promise of limits gives the same false comfort as did the mistaken “21-foot Rule” about how close is too close that evolved from misunderstanding Tueller’s proximity principle.
Last month, attorney Rob Keating gave an educational interview on another effect of changing rules (https://armedcitizensnetwork.org/beyond-black-letter-law). A couple of weeks after publication, Rob sent a follow up note:
In the “big coincidence” file, the Texas Court of Criminal Appeals (CCA) published an opinion on March 3rd that really talks about a LOT of what we discussed in the interview. I wish it had come out before we spoke.
It was a case in which certain evidence had not been turned over to the defense despite their requests and was then used in the punishment phase of the trial. The law covering that issue (Code of Criminal Procedure article 39.15) has changed several times in recent years (2017, 2015, 2014, 2009, 2005, and 1999). There was a lot of disagreement in the trial court and the intermediate appeals court about whether the prior case law applied or if the changes in the law had rendered it moot. (The main issue in the case law was that the statute talked about “evidence material to any matter involved” and we fought about what “material” actually means.)
It also had the intermediate court of appeals saying that it would have ruled differently but it had to follow precedent. The CCA opinion notes that, “According to the court of appeals, it would have construed ‘material to any matter involved in the action’ as including any evidence that the State intends to use as an exhibit to prove its case to the factfinder in both the guilt and punishment phases at trial, but it was required to apply this Court’s precedent.”
The CCA acknowledged that the case law was a mess and it made a clear new holding. (They provided a clear definition of “material” when used in the context of this particular statute, which now means that any relevant evidence that is not disclosed in response to a timely request by the defense cannot be used at any stage of the trial.)
As for how fast these things make a difference? A friend of mine picked a jury yesterday (five days after the opinion was published!) in a case that has the exact same issue (the State is trying to use prior convictions to enhance punishment, but didn’t provide the defense with copies of the evidence they intend to use to prove the prior convictions). If the jury finds the defendant guilty, then he will use the new case to prevent the state from using the old convictions to enhance the punishment. That will happen today or tomorrow – less than a week from that new case law being written until it is used at trial!
Thanks, Rob, for the update, and if nothing else, folks, it shows us how the trial courts adapt and change to modifications in the rules. We need to remain flexible, too.
To read more of this month's journal, please click here.