This article first appeared in the Network's April 2009 journal.
by Marty Hayes, J.D.
Recently, a Network member asked a question on our members-only internet forum, inquiring about the likelihood of a “righteous shooting” going to trial. Instead of answering him on the forum, I thought I would answer the question in the public format of our eJournal, because I would like my comments to reach to more than just the members who visit our forum. In addition, this gives eJournal readers a taste of the type of discussions we have on our members-only forum.
This member had just finished viewing the Network’s three educational DVDs, and asked this question:
“After having listened to the three tapes, and planning on a second viewing next week, I have several questions and observations. Let’s say you are involved in a self-defense shooting where there is no chance of retreat, the case meets the “reasonable man” standard, fear of death or serious bodily harm, you are a citizen in good standing, and the incident meets the standards of Ability, Opportunity and Jeopardy. You give the appropriate information to responding police and then contact your attorney. What are the chances of the DA saying there is no case against the defender (you) here and stopping the case there? Can your attorney, who knows something about you and your training, interact with the DA at this point and suggest there is little chance of a successful prosecution and argue for dismissal at this point?”
Isn’t this a great question? Now you know why I wanted to answer this publicly.
First, the answer to this question will be somewhat dependent upon whether you live in a grand jury state, or whether in your jurisdiction the prosecutor makes the decision to charge you with a crime. If all shootings automatically go in front of a grand jury, then it is up to the grand jury to decide to have you prosecuted. Depending on the local court rules and customs, you may or may not get to testify, and you likely will not have an attorney by your side if you do testify. So, you make the decision as to how much you want to tell the grand jury, and then they decide if there is a preponderance of evidence to believe that you committed a crime, or acted in genuine self defense. On the other hand, if it is up to only the prosecutor to decide to prosecute, then what you say and what your attorney does can certainly affect whether or not you get prosecuted.
However, the real problem lies in who decides whether or not the shooting was righteous. Sure, YOU know all the facts, and YOU know what you perceived, and YOU know how you felt. But, assuming you live in a state where the prosecutor makes the charging decisions, how can he or she come to understand what you knew, felt and perceived?
In a perfect world, there will be smart, sober and uninvolved witnesses to tell the police detectives that you were reacting to a viable deadly threat against you, and that you had no other choice but to shoot. But, what if your case mirrors that of Harold Fish, a retired school teacher who was hiking alone on May 11th, 2004 in a remote part of Arizona, when he was set upon by two aggressive dogs and one larger and younger mentally ill individual, who (according to Fish) was running towards him and threatening to kill him? Many reading this will be familiar with the Harold Fish incident, and those of you who are not would be well advised to spend some time at www.haroldfishdefense.org, to see a real-life example of what can happen to good people after they use deadly force in self defense.
If your name is Harold Fish, your chances of being prosecuted are 100%, because that is what occurred, and he was found guilty of second degree murder. His conviction has been appealed, and I believe will be overturned, but nonetheless, he is still in jail for what is arguably a perfectly justified shooting.
And, while the Fish case is an anomaly, what if you happened to get a prosecutor like the one on Fish’s case, who yielded to public pressure to prosecute, and upon prosecution, demonized the type of pistol you were carrying like he did with the 10mm Kimber pistol Fish had on him? Or, you get the type of prosecutor who makes a big point that you were using super-duper killer bullet (Federal Hydra-Shocks), like Fish was. Or, you get the type of prosecutor who will make a big argument that you should have fired a warning shot first because you fired a warning shot when the dogs were running at you, even though when you shot the individual, he was only 10 feet away?
On the other hand, it has been my experience in dealing with, and researching these matters, that normally the system works. But, we don’t train and carry guns for the norm, do we? Of course not, and we cannot approach the likelihood of being prosecuted for a “righteous shooting” based on the percentages of wrongful prosecutions.
It was my involvement as an expert witness in several court proceedings that led me to believe that an organization like the Armed Citizens’ Legal Defense Network, LLC was necessary. I have been involved in several cases where the majority of the evidence pointed to legitimate use of force in self defense, but the person was prosecuted anyway. One such case was a 4th degree assault case, where a correctional officer was charged by the city police for assault, because he had to slam an unruly inmate against the jail door to get him under control! There was no injury to the inmate, and at the time the other inmates in the jail said they thought the use of force was reasonable, but the officer was prosecuted anyway, because, in my opinion, he was a troublemaker and unliked by his supervisors. We were able to get that case dismissed and get the officer’s job back, and he has since gone on to bigger and better things.
Consequently, while in law school I started working on the way to structure this organization, to allow its members peace of mind, knowing that in the event their case becomes the anomaly, and THEY become the one singled out for prosecution for a righteous shooting, they will have the power of the Network behind them. But, having said that, our members need to do their part, too. They need to research their own state’s case law, so they are up to speed about what conditions allow them to justifiably use deadly force. They need to train, so if they are faced with a split second decision as to whether or not to shoot, they can make that decision based on their training, instead of making the decision because of blind fear. They need to be polite to everyone they meet, so they will never be accused of being overly aggressive, or, even worse, the initial aggressor in a confrontation. And, they need to have the attorney that they plan to call who understands how a self-defense case works, who will spend the time necessary to understand the nuances of self defense, and take the time with the client. When all this is in place, I believe you have a reasonable chance to avoid prosecution, but there are no guarantees, of course, which is why the Network exists.
My thanks go to the member who posted this question on our member’s only forum, and giving me such a great topic to write about this month.
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