An Interview with Network President Marty Hayes, J.D.
If we were to identify one most frequently asked question, it would be, “How is the Network’s Legal Defense Fund managed and who decides when and how its resources are used to pay for the legal defense of a member after legitimate use of force in self defense?” We discuss these questions and others about the Network’s mission with its president and founder Marty Hayes in this month’s journal.
eJournal: Thank you for addressing questions by Network members and potential members about the Network’s payment of legal expenses on behalf of members after legitimate use of force in self defense.
Hayes: I am glad for the opportunity to answer these questions. To begin, I need to make it clear that what we are talking about is member benefits and in no way are we discussing insurance. We have made that fact clear since day one and I want to continue clarifying what members have access to, so I am happy to see these questions coming up.
eJournal: While we are frequently asked what we do for members, I think folks sometimes overlook the element of mutual participation between the Network and its members that begins long before a self-defense incident.
Hayes: Let’s take a minute to discuss the depth and breadth of our services to members. When a person signs up to become a member of the Network, one of the first things they get is a whole bunch of training material. Members get access to nine educational video lectures streamed on our website, and most of those are provided for the member’s own collection on DVD or a USB thumb drive. We also send a copy of Massad Ayoob’s book Deadly Force: Understanding Your Right to Self Defense.
It is vitally important that our members read the book, highlight material in the book, take notes, and that they also go through the video lectures just like they were taking a class. Take notes and document that you have viewed the lectures, because the courts universally allow evidence of prior training to be interjected into a self-defense case. A jury has the right to know what you knew at the time that you pulled the trigger. That principle also extends to non-deadly force.
If you review the educational material and make notes that you have seen it, then your attorney may be able to interject some of that material or a large portion of that training material into the trial. That will ultimately be a decision for the judge to make, but if that judge doesn’t make the right decision, if the verdict goes against you, he opens himself up for appeal.
Members need to understand that those training materials are vitally important. I want every member of the Network to make sure they’ve watched those videos and to review them once in a while to refresh their memory. We are not computers: we don’t have the ability to remember everything we have seen or heard. Please be sure you continue to review the member-education materials, that you understand them and that you document your reviews.
eJournal: What else does the Network contribute to a member’s advance preparation?
Hayes: The next thing is access to our affiliated attorney list on our website using username and passwords that we give to new members. This gives our members the ability to search for and contact attorneys ahead of time, and that’s advantageous because it helps if you have the name and number of an attorney in your back pocket, or these days in your cell phone, to be able to call if you need an attorney.
eJournal: While taking nothing away from the good men and women who are our Network affiliated attorneys, what if our member already has an attorney he or she prefers? Maybe their concealed carry license class was even taught by an attorney local to the area. Can they continue to use the attorneys they already know?
Hayes: Yes, of course. I’d only ask, why don’t you get your attorney involved in the Network as a Network affiliated attorney? That way they can help more people than just you.
eJournal: More frequently, the issue is not knowing an attorney you can call.
Hayes: If you’re a Network member and have had a self-defense incident but have not yet made contact with an attorney so you don’t know who to call, you also have access to the Boots on the Ground phone number. That number rings to my personal cell phone, and as a member you can call me 24/7/365 in the event of a self-defense incident. Thankfully, I don’t get that many phone calls. I do get a lot of butt-dials, but that is another topic. Then there are the times a member confuses the emergency number with the office phone number when they’re calling to renew their memberships, and I really don’t mind visiting a little with them. Just do it during business hours, and not in the middle of the night, please [laughing].
eJournal: Moving into what needs to happen in the immediate aftermath of a self-defense incident, you’ve talked about having contact information for a local attorney, and access to your personal phone number to get help if the member has traveled outside their home area. How quickly does a person need to connect with an attorney?
Hayes: The answer has two prongs. First, was it a minor altercation? How serious was the incident? Is there little to no chance of being arrested? For example, earlier this year we had a member who drew a gun in response to “presently threatened unlawful force” – that’s quoted from the Washington state statute, where this occurred. He called the police, and then he called me, and in fact the police showed up while he was talking to me. I told him to hang up and talk to the police and let them know what happened. He did that, and then he called me back about an hour later. He was not arrested and the police took their report and then told him there would not be any charges filed.
Unfortunately, they did not arrest the people who threatened the member, but apparently there was just not enough evidence on either side to make an arrest. Although he and I talked about it and decided there was not any need to get an attorney involved right then, we left the door open in case something came up later.
eJournal: Your example underscores an important sequence of events: call the police first, and then call your attorney and then call Marty, in that order.
Hayes: Yes, for goodness’ sake, you do not want it to come out in court that you called your attorney before you called 9-1-1. Talk about a big red flashing neon sign saying, “Guilty! Guilty! Guilty!”
eJournal: I think people ideate immediately calling their attorney due to concern over what to say in a call to 9-1-1, as well as what to say to responding police officers.
Hayes: While on the phone with 9-1-1, you give your location, a very brief description of what happened: “I was attacked, I had to defend myself. Send an ambulance; send the police. I know that you want me to stay on the phone, but I’m going to put the phone down now so I can take care of the situation here.” Do not get into an argument with the dispatcher! Leave the phone connected, so they can hear what is happening, but put it down. That way, if something else happened and you had to get back in touch with them immediately, you can grab the phone and start talking again.
You do not want to blab about what you did – not to the dispatchers and not to the police when they show up. You do not want to spill your guts to either. Massad Ayoob teaches it best in his five point checklist (see https://armedcitizensnetwork.org/immediate-aftermath). You explain to the police that you are the person who was attacked. You want to explain what the person was doing that caused you to have to use force against him. Ayoob calls it the active dynamic; I just call it being a good witness. If someone else saw what happened, you would hope that they would tell the police what the guy was doing that made you need to defend yourself. Well, if there are no other witnesses, at least there is one witness – that is you. That is first.
Two, you should let them know that you will be a good witness and – depending on the local vernacular – you will sign the complaint or press charges.
Three, you also make sure police know what evidence there is to support your claim of self defense. That could include shell casings, or if someone shot at you and missed you, where the bullet struck. You might say, “Listen, against the brick wall, you are going to find where a bullet struck, and you might even find the bullet.” You need to point out any evidence that might back up your claim of self defense.
Fourth, you will also want to point out any witnesses. Police should be identifying witnesses when they show up, but maybe it is a small jurisdiction and there is only one cop. Make sure they know who else saw what happened so they could get ahold of them and keep them there, too.
Fifth, explain to police that you intend to cooperate fully. Tell them that you know how serious this is and you would like to have an attorney present before you discuss it in detail.
There are the five points: you were attacked, this is what the person was doing, here is evidence, here are witnesses, I want an attorney.
eJournal: In the incident you mentioned, I find the officers’ disinclination to arrest after defensive display of a firearm remarkable! I’m quite sure there are parts of the country where the outcome would be very different and then an attorney’s services would be entirely necessary.
Hayes: Yes, but sometimes things do work out well. I used to work in law enforcement in the jurisdiction in which this occurred. The political climate is conservative and everyone is pretty pro-gun there. That makes a difference. Now, if, conversely, it was a serious incident, and you pointed a gun at somebody and you are arrested for aggravated assault, or you shot at someone and you are arrested for attempted murder, or you shot someone and you are arrested for murder, then things are pretty serious. You need to have an attorney as quickly as possible.
We want you to have an attorney’s number in your cell phone, but I also want you to have the Network’s phone numbers in your cell phone so that if you can’t get ahold of your attorney, you can get ahold of me. The reason it is called the Boots on the Ground phone is because if we were unable to find you good legal representation by working the phones here in our Onalaska, WA office, I would get on an airplane and come to where you are and scour the countryside to find a good attorney and pay them to represent you.
Remember, though, it is always the member’s decision whether or not to hire any particular attorney. I would make a recommendation, so maybe I would say, “If it were me, I would hire this person,” but the member needs to talk to the attorney and make that decision for him- or herself.
eJournal: Returning to the topic of your priorities and getting an attorney to represent a member: what steps do you take when a member or his spouse or other representative calls and you learn a member needs an attorney?
Hayes: If it is the member making the call, then he or she is free to talk to me. For example, last summer we had the case where a member was at a police department being held for questioning after a shooting, and he called me from the holding cell. We arranged to have an attorney visit him there within a couple of hours and things went extremely well in that situation.
Readers do need to understand something: even when we get to work on a member’s case immediately, it still may take a few hours to get an attorney there for you. If it happens at night, the attorney is likely going to get there the next morning. If it happens on a weekend, it might be a couple of days. If that happens to you, you have got to steel yourself to the fact that you may be locked up for a little while. Don’t go nutso on us. Chill out and do not talk to anyone in the jail. Wait for the attorney to contact you. At some point you will be told that you have a visitor. It will be an attorney, and you guys will talk. You will decide whether or not you want to use him for your defense. If not, ask him to call and tell me that so I can find a different attorney, or you might choose to simply use them at the moment to get through a bail hearing or to get you released on your own recognizance, then you would go from there.
Once you have made a decision to hire a specific attorney, I will need to talk with that attorney to arrange his or her payment. If it is a Network affiliated attorney, most of them say, “Marty, just send me a check,” and that is something we do quite often. Occasionally, attorneys will have office procedures where they need payment upfront before they will start the representation, so we have done wire transfers, electronic transfers or online payments in those situations. We will do whatever we need to do to make sure that you have legal representation.
eJournal: What dollar amounts are we talking about here? Are you talking six figures, hundreds of thousands of dollars, or are you negotiating with the attorney and paying a little now and more later?
Hayes: That answer is very case specific. In the very beginning, we told members we would start their representation by forwarding $5,000 to their attorney, then that was raised to $10,000, and later to $25,000. With experience, we learned that how much money that attorney needs right away is a very individualized determination.
Maybe it is a very serious case for which the attorney needs to get their investigator on the scene to go talk to people, so in that example we are going to send more money than if it was simply an attorney who is going to go with you to a bail hearing the next day. It is really up to the attorney and me to decide how much is needed for initial representation.
Understand, also, that funding the initial representation is not the full decision about funding the case.
eJournal: OK, let’s say that you and the attorney have agreed on the initial fee, we have sent that money, then what happens?
Hayes: If you are being charged with a crime, then there are going to have to be charging documents presented to the court: a probable cause statement that you and your attorney will have access to, and since it is a court record, I also want to have access to the probable cause statement. I want to see what the police are claiming.
That gives me an initial sniff test for whether this is a reasonable case of self defense. Before we decide to back our member’s legal defense fully, I also want to see the police reports, the witness statements, and I also want to discuss with the attorney what you told them.
I do not want you discussing all of the details with me, because that is discoverable, with an exception to the hearsay rule if you make a statement against your own personal interests. Conversely, what you say to your attorney, is not subject to being exposed in court and what your attorney tells me is also not subject to exposure in court. I want you to tell your attorney what happened, and then I want your attorney to tell me what happened.
I need to know that information before we make a decision about funding beyond the initial fee. Understand, also, that if it turns out that you were committing one of the two or three grievous mistakes that turn your act of self defense into a crime then even the initial funding is likely not going to happen.
eJournal: If you are getting those details from the member’s attorney, haven’t you already sent him or her an initial fee deposit?
Hayes: Not necessarily. If, for example, the first that we hear about a member-involved incident is when we get a call from an attorney saying that our member has been involved in a self-defense incident and wants us to help fund the legal defense. If the attorney tells me that our member was committing X, Y or Z crime or their use of force was in fact a crime and not a legitimate act of self defense, then we will politely turn down the attorney’s request for funding.
eJournal: Let’s say the initial funding decision has been yes. The member is being held in custody. We want the member free to participate in building their legal defense and that is very hard to do while incarcerated. A very common question is whether the Network provides assistance with bail. It is an extraordinarily simplistic question about a surprisingly complex procedure. What can you tell us about posting bail and the Network’s part in obtaining a bail bond on behalf of a member?
Hayes: I am reminded of a claim that one of our competitors used to make. There was video of them saying, if you get arrested on Friday night, we will have you back at work on Monday morning. When I saw it, I called them a bad name, because you just can’t truthfully say that. There are way too many variables.
First off, you have to ask, is the offense even bondable? There are jurisdictions where you are not offered bail if you are arrested for murder. I have worked as an expert on a couple of cases – not for our members – where the people sat in jail for a year because they were denied bail. It was legitimate self defense! So, that is one of the issues.
Secondly, for serious offense – a felony – bail is set by a judge. For example, if you were arrested for a DUI, there is a preset bail amount that you can post, so that you can get out of jail that night. On the other hand, if it is a serious felony – assault, attempted murder, manslaughter, or murder – bail is not even going to be offered until you get to a bail hearing in front of the presiding judge. During the ensuing days, your attorney needs to get to work making a good argument for the judge about why you should be released on your own recognizance, or if that is not done in your jurisdiction, a good argument for a low bail amount. That is one big reason why it is so important to get an attorney early.
Now, there are really three types of bail situations. If the bail is low, no collateral may be needed, regardless of whether or not you post a cash bond or use a bondsman. Your promise (signature) will suffice, along with, of course, the payment, but if the bail is a high amount, let’s say one quarter million dollars and you don’t have a quarter million lying around in your savings account to post bail or to offer to a bail bondsman as collateral, then you are going to have to put up something else like your house or maybe your mother’s house as collateral, something that the bail bondsman could go after in case you decide to go to Guam instead of appearing for trial. Let’s say bail is one quarter million dollars, the bail bondsman would want 10 percent or $25,000. The Network would pay the $25,000, but you are going to have to put up some collateral.
eJournal: Is that because the bail agent doesn’t think you are good for the quarter million or does the court impose the requirement for the person being bailed out to put up their own collateral?
Hayes: That is the bondsman’s requirement, and they are probably not going to relax it. However, some jurisdictions will require a cash bond, meaning that there is no bail bondsman allowed. That was the situation with the Larry Hickey case in Pima County, AZ (https://armedcitizensnetwork.org/images/stories/Hickey_Booklet.pdf). The judge set the conditions of his release to include a $100,000 cash bond. Larry spent two or three weeks, I believe, in jail trying to scrape up one hundred grand to give to the court clerk so he could get out. I first learned about Larry’s case during the fundraising to post his bail.
If a member faces a similar bail situation, the Network will work with them on an individual basis, to see if there is any way that we can help with the cash. This will have to be decided on a case-by-case basis, and we will probably want the member to have some skin in the game, too.
eJournal: Would the court impose any restrictions on whether the defendant was pledging his or her own assets to guarantee appearing at trial?
Hayes: No, it has been my experience that the court just wants to see the money.
eJournal: Moving forward, let’s say bail wasn’t required, was minimal, or working cooperatively with the member, we’ve raised the amount required and the member is freed. What is the next part that we can help with?
Hayes: We have got to determine if we can pay for the member’s defense from the Legal Defense Fund. Understand, it is my priority to assist our members in any way possible, but in order to do that, I am going to have to know some key facts.
Number one, was the member committing another crime? I remember one instance of a new member who had not been with us for very long, who entered his ex-wife’s house through an unlocked garage door and caught his ex-wife in bed with her current lover. As you would suspect, that escalated rather quickly into a fight. Thankfully, he didn’t shoot anybody, but he was arrested for aggravated assault. He called me to ask if we could help out, but when I found out what had happened, I had to say, “I am very sorry, friend, but we can’t help you. You were committing either criminal trespass or burglary, depending on the facts of the case, and because of that, we cannot help you.”
He said, “Yeah, I understand.” We have had a couple of calls like that over our 13 years. They know in these situations that reaching out to me is a “Hail Mary” attempt, to use a metaphor.
The second big question I am going to have to ask is, “Was our member the initial aggressor? Did he or she start the fight?” If you have done that, you are not going to be afforded the luxury of a self-defense defense. You are not going to get a self-defense jury instruction if you are the one that started this whole thing. When we face those circumstances, we try to make you understand that this is not going to go well at trial. We are going to let your attorney try to arrange the best possible outcome for you – a plea bargain, maybe a deferred prosecution, something like that. We are not going to fund a legal defense that we know is not going to work because you started the fight. Remember, part of our name is “Legal Defense.”
eJournal: In saying that we are going to let the member’s attorney negotiate a plea, do you mean that even knowing that the client started the fight, you are providing further funding beyond the initial fee deposit?
Hayes: We would have already paid the attorney an initial fee for representation, and out of that fee I would expect the attorney to be able to work to help our member. In fact, I remember one of our earlier cases involved an altercation and it turned out to be just this sort of a case. We paid an attorney $10,000 on a felony aggravated assault case. After looking at all of the police reports, I talked with the attorney again, and he said, “Marty, self defense just is not there. I can’t get her a self-defense acquittal, because she was doing this, and this, and this.”
I told him, “Go ahead and do the best that you can do for our member.” I did not ask for any of the fee deposit back.
eJournal: In determining who started a fight, I wonder how far back the clock runs? There are neighbors who exchange verbal threats for years, then one day one of them pushes the other one or knocks him down and kicks him. Who is the initial aggressor? It’s really complex.
Hayes: That answer is actually the third question that I want to discuss. Is there evidence leading to the belief that there was an ongoing issue with the person against whom you used force? In other words, maybe you have been arguing with a neighbor for years over the fence line between your property and you know it is coming to a head. Maybe he tore your fence down and you decide you have had enough. You hear about the Network, and you think, “Well, I am going to join the Network, and then I will have free legal help after I go to confront my neighbor.”
Well, if that is the situation, you are not going to get your legal expenses paid. If you have a long-running dispute with somebody, you need to resolve that dispute first before you even join the Network. That same concern extends to a marital dispute. There’s a kind of famous case where a woman signed up with a competitor at the same time as buying a gun, and within days she went and shot and killed her estranged husband. If you do that, you are likely not going to have your legal fees paid.
eJournal: The bottom line is that armed citizens have got to solve their interpersonal problems before it ever approaches a place where use of force is on the table.
Hayes: Right.
eJournal: Who decides whether someone should have solved their problems differently?
Hayes: At the Network, there is a group of people who is involved in making that kind of a decision – our advisory board. The process starts with me. When we get a case, I will do the initial screening and find out what went on. Typically, I will do an Internet search on the name and see if the incident has hit the news. I want to at least see what is being reported, even if I don’t necessarily believe everything that is being reported, I still need to find out.
eJournal: Let’s say the news reports that the police have been to that house to stop fights five times in the past month. Do you ask the member what was going on?
Hayes: No, at that point I am asking those questions of their attorney because what the member tells me may be admissible in court, possibly. What the attorney tells me is not admissible, so I want the attorney to tell me what really happened. If what I am told makes me concerned that it was not self defense, I will gather all the information I can and take it to the advisory board and I will ask for their opinions. I want to know whether they concur with me. I remember one case where I had doubts, but they said, “No, we think we should fund this,” and I said, “Well, OK,” and we did. That is what the advisory board is for. Other times, they have said, “No, that is not self defense,” and I went back to the member’s attorney and asked him or her to talk to the member and get the best outcome possible without going to trial, because we cannot in good conscience fund this defense.
eJournal: Your responsibility is to be a good steward of the Network’s Legal Defense Fund. Your duty is not only to the single member you are interacting with at that moment; your duty extends to 19,250 other men and women who are relying on you not to fritter away the Legal Defense Fund defending something they would never dream of doing.
Hayes: All the other Network members have trusted me to keep the Legal Defense Fund healthy, so that there is money in the Fund for their legal defense, if needed. I have to be very judicious in handing that money out.
eJournal: Members often give voice to our shared concern and interest in building the strongest possible Legal Defense Fund. Some have asked why we don’t insure the Fund against the expenses of defending members. Other times people ask us to arrange liability insurance they can buy, and of course, there are simply the potential members who call and ask to buy insurance, not understanding the difference.
Please explain how the Legal Defense Fund, and its purpose – paying for the legal defense of members after legitimate use of force in self defense – is different from having insurance that purports to pay someone’s legal expenses. Why not just follow the rest of the world and have insurance for this problem?
Hayes: There are several reasons. When we first started the Network, I researched what was available for self-defense insurance. At that time, there was only one company offering a policy and it said, “If you are acquitted, then we will pay you back for your legal fees.” I thought, “That won’t work, because how can you be acquitted if you don’t have the money to pay for your legal defense?”
Insurance denotes a set of circumstances where the insurance company will reimburse after the claim has been made. That means that you foot the expense upfront, then you get reimbursed if you are acquitted or the charges are dropped. Other companies give you some help immediately and if you decide that you want this kind of a policy, for goodness sake, read the fine print! I have read as many of them as I can get my hands on, and most of them contain provisions that require you to pay back the money that they paid for your defense if you are found guilty of a crime.
The next reason that I did not want to sell insurance is that if you are sued in civil court that insurance company basically has all rights to decide your case. Realize that if you are found culpable, it will be their money that they are paying out for a wrongful tort, that being an intentional act that causes harm to another person.
eJournal: With civil liability coverage, doesn’t the insurance company assign lawyers from their own legal department to the case, leaving you with no say in how they defend you, or whether they decide to settle?
Hayes: Absolutely, and that is the primary reason that I personally do not want an insurance company involved if I have to go to court to defend my self-defense actions. I want to choose my own lawyer and have a say in how the case is argued. I do not want to give up my right to have my own legal team, a team that is looking out for me, not for the insurance company.
There is one other reason that I did not want insurance for self-defense issues. Have you heard the old adage, “insurance invites lawsuits?” After all of the details about your self-defense incident come out in your criminal trial – whether or not you are found guilty or innocent – a plaintiff’s attorney is going to be scrutinizing the whole case on behalf of the individual against whom you used force. The plaintiff’s attorney will be looking at four issues.
One: is there sufficient evidence to suggest that they would likely win a lawsuit against you? Remember that the standard of proof in a civil case is only to a preponderance of the evidence. Is it 51percent likely that you did wrong? If so, then you lose and they can collect against you. They can use evidence from the police report and from the criminal trial against you to try to show that you did wrong.
The second question a plaintiff’s attorney is going to ask is, “Are there assets to go after if we win?” Do you drive a nice car or live in a fancy house or have vacation property? If you are renting a low budget efficiency apartment in one of the poor parts of town and you ride the bus to get around, there’s not going to be much for them to go after if they can get a judgment against you. You are pretty much lawsuit proof. Sure, they might win the lawsuit, but they are not going to collect anything from you.
That raises the next question the plaintiff’s attorney has to ask, “Does the person I am thinking about suing have any insurance?” If you have insurance, then you may have a civil lawsuit filed against you trying to get the liability limits of your policy. How is the plaintiff’s attorney ever going to find out that you had insurance? Well, you are probably going to carry an insurance card in your wallet, and when the police arrest you, that gets photographed along with everything else and entered into evidence. The plaintiff’s attorney has access to that evidence and they are going to find out if you have insurance.
It doesn’t cost a plaintiff’s attorney much to file a lawsuit, and pretty soon they find out that there is an insurance company representing you. To me, if the insurance company settles, that is not so bad. Settling may go against your moral fiber, and I remember that when Larry Hickey’s homeowner’s insurance settled the claim against him in his case, he really had a hard time with that, but he did not have to pay any money out of pocket because they settled within the limits of the policy.
That worked out, but what if a jury in a wrongful death case decides to award the plaintiffs $5 million in damages and your policy limit is only $1 million? Who pays that other $4 million? Well, you do, so by having insurance you opened yourself up to being sued by a plaintiff trying to get into the insurance company’s pockets.
With self defense, we are talking about potentially killing people, and there’s no one out there who would claim their life was only worth $1 million. I don’t want an insurance policy that suggests someone’s life is only worth $1 million.
eJournal: Looking at it from a different angle, though, without liability insurance, don’t you stand to lose your retirement or pension, or the home you own if someone decides to sue you?
Hayes: Well, the nice thing for Network members is that we will fund their defense against a lawsuit and the plaintiff’s attorney will understand that our member’s legal costs to defend against the suit are paid by the Network. So, they are now suing someone who gets all of their legal fees paid for. The person they’re suing does not have to pay for it themselves but there is no liability coverage money to go after.
eJournal: Doesn’t a plaintiff’s attorney earn a percentage of the damages the judgment awards? Without a judgment in their client’s favor, how do the lawyers get paid?
Hayes: The plaintiff’s attorney is not billing their work on an hourly basis; they are working on a contingency fee. That is usually 33 percent of the amount awarded. They are investing a whole lot of time and energy into suing someone who does not have very much in the way of assets and who is not paying his own legal expenses.
There is one last point. I told you there were four points, and that means there is one more. That final point is that insurance is costly. It is expensive. A person buying insurance is looking at between $300-$500 for a policy. I did not want to charge people that kind of money so they could have some good, competent legal assistance after a self-defense incident. It was not our vision 13 years ago when we started the Network to do it so that we could make a whole bunch of money. It was our vision to make sure that the armed citizen could fight back against unmeritorious prosecution or civil suit. While we have kept our dues rates low, we still have been able to amass the Legal Defense Fund that allows us to fulfill that goal without a lot of money going to make some insurance executive rich, as we would have if we had sold insurance policies.
On the other hand, if you are someone who has considerable assets that you want to protect, you may want to go ahead and buy into an insurance policy. We have no problem when our members have chosen to be insured, in addition to being part of the Network, if they want an insurance policy to protect their assets against the civil side of the problem. We will help out if the insurance company wants some help defending their case; we will jump in and assist.
eJournal: I know a good number of our members are on fixed incomes and frankly, they struggle to set aside the $95 for the yearly dues when they have to pull it out of their Social Security check. Some are budgeting several months out when they know the renewal is coming up. I cannot imagine putting together a program that is too expensive for many of those men and women.
Hayes: …or they have to pull it out of their military disability check, I know.
eJournal: If we had to charge enough to also pay an insurance company to indemnify them, some of our less-wealthy members would have to make a hard decision to go it alone instead of being a participating member in a big organization made up of like-minded people who are dedicated to looking out for one another.
There is one other facet of the Network’s assistance that people ask us about, so before we go, please explain appeals if, despite our funding, things go badly for a member in a criminal case or lawsuit in civil court.
Hayes: First, please understand that while you can appeal any conviction, in order for the appeal to be successful you have to have a legitimate reason for the appellate court to overturn the judge’s ruling. It might be that your attorney did not do his or her due diligence and you can make a legitimate claim for ineffective assistance of counsel, although that is a very sketchy claim that likely will not work. Judges understand that your legal strategy at trial is something that your attorney controls. If, for example, your attorney decides not to put you on the stand, and at the time you agree, but later on you decide, “I really should have had the right to testify,” a judge is not likely to change that. On the other hand, you have a right to testify if you adamantly want to testify. If your attorney didn’t let you testify, that could result in a legitimate ineffective assistance of counsel claim if you argued to the appellate court that your attorney went against your wishes.
Another point which would have a much higher degree of success with an appeals court would be the judge allowing introduction of evidence that he should not have allowed. Perhaps a judge allowed hearsay information when your attorney objected, but the judge wanted to let it in anyway. If you were convicted, that would be a pretty good point for appeal.
The same would work for exclusion of evidence and I have seen several appeals where a judge did not allow evidence of prior training or prior knowledge that the defendant possessed to be used in court. The appellate court said, “No, the jury gets to understand what the defendant was thinking at the time of the incident.”
If the Network, along with you and your attorney – probably your new attorney – determines that this is a reasonable appeal, then we would likely fund it. If the issue is a civil case and you lose a civil case, then there may be an appeal for excessive award of damages, or perhaps the admission of evidence issues. The bottom line on appeals is that the Network’s funding is not automatic. There has got to be some merit or some likelihood that you will be successful on appeal. There has got to be evidence of a potential error at the initial trial.
eJournal: What does the Network do if an appellate court finds in our member’s favor?
Hayes: We push the “reset” button and we will start over and fund the member’s defense in the retrial. As with all the other issues we have talked about, please understand that this funding decision is not automatic. We still have to operate under the premise that you made a voluntary, intentional choice to use force in self defense based upon your reasonable perception that you were in danger.
eJournal: We’ve covered a variety of topics. What do you want members and potential members to remember from what you told us today?
Hayes: We have covered what members can expect us to do. We have explained that funding decisions are not automatic. We have to be convinced that it is a legitimate case of self defense. I do not want to be in a position of providing funding for people who have gone out and committed crimes. Remember, I was a cop for most of my life. I abhor criminals, but I also abhor the prosecution of innocent, law-abiding citizens who had to use force in self defense or be killed themselves. That is the yin and the yang of the issue.
After reading this, if a person decides they are no longer comfortable being part of the Network, I will say, “Good for you for thinking about this! Go and pay triple or quadruple for some insurance if that is what makes you comfortable,” but here is the dirty little secret: The insurance companies are also making decisions about whether to fund your legal defense. If you are an insurance policy holder, the insurance company is going to screen your case, too. If they think that you went out and committed murder, they are not going to fund you. This is the kicker: the people the insurance company has making that decision likely do not have the education and experience that our advisory board has, but if you still want to have insurance, go for it with my blessing.
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