This month’s Attorney Question of the Month comes from a Network member who is an attorney practicing civil law with a background in insurance. As a state-approved instructor for the TX license to carry, he asked us a very interesting question, which we quickly passed up to our affiliated attorneys. Their comments will run in the next several issues of this journal. Our member asked–
If a gun owner carries a handgun into a prohibited area (designated by statute or signage) and is involved in a self-defense shooting, would the fact the gun owner violated the law by carrying the gun into a prohibited area be admissible as to the mens rea of the shooter?

For example, a gun owner in Texas (with a license to carry and carrying a concealed firearm) knowingly passes a clearly displayed sign prohibiting guns, which meets the statutory requirements. At this point, the gun owner has committed a Class C misdemeanor.

Now suppose that same gun owner uses the gun in self defense. Is the fact the gun owner violated the armed trespass law admissible to the finder of fact in determining an element to murder or manslaughter?

Daniel P. Finley
Finley Law Firm
300 N. Main St., Ste. 6, Chelsea, MI 48118
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The Class C Misdemeanor would not be a prior conviction at that point, it would be a concurrent charge pending with the murder charge, if the prosecutor decided to bring that charge. Proof of knowledge and intent would be necessary by the prosecutor on both charges. The assumption of the question is that there exists some evidence or proof that the concealed carry licensee had knowledge that he was in a gun free zone, if it was private property or a business that posted signage, as opposed to the statutory pistol free zones. If, however, it was a pistol free zone then the licensee is required to know where the gun free zones are and knowledge is assumed as a matter of law.

The analysis then is whether the evidence of the violation of the pistol free zone law is admissible to prove the mens rea element of murder. In looking at the Texas Rules of Evidence, Michigan and Texas Rule 43 appear virtually the same and are no doubt taken from the model rules or federal rules of evidence.

It may be excluded under “Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.” The most likely reason a licensee violates the pistol free zone rule is because they make a decision that their moral right to defend their life is worth risking a class C felony, or in our state, Michigan, it is only a civil infraction (like a parking ticket). On its face, absent more facts, it would be a stretch for the prosecutor to argue successfully that the mere decision to disobey the pistol free zone translates into an intent to kill or murder. Although relevant, it may be unfairly prejudicial and therefore excludable. Research of the annotations under rule 403, including any cases on point dealing with the same fact pattern would be helpful. If the judge rules it admissible, the argument that would likely sway the jury and make more sense is that the licensee, like many concealed carry licensees, made a conscious decision to violate the pistol free zones, for the same reason the licensee decided to carry, to protect his or her life.

Jon Gutmacher
Florida Firearms Law Consulting
1861 S. Patrick Dr., Box 194,
Indian Harbour Beach, FL 32937

You ask if a violation of law in the form of disobeying a “no firearms” sign would be admissible in a self-defense case, and my response as far as Florida law goes would be that currently it “should” not, as it would not ordinarily be considered a “trespass,” although there is no case law on it.

On the other hand, if it were a trespass, or other violation of law, then it would be an open question as Florida law would then certainly impose the “retreat rule” under the 2014 changes to C.776. The next issue would be whether F.S. 90.803 would bar admissibility, or otherwise modify the way it was admitted, and any jury instructions on the duty to retreat, or whether it is really a “prior bad act” or simply too easily confused by the jury as an attack on character. In other words–at least in Florida–the legal issues are extremely complicated.

Shawn A. Kollie
DeKalb & Associates
40 NW Greenwood Ave. Suite 100, Bend, OR 97703

Oregon has a prohibition against carrying a firearm on private property if the signage (prohibiting that possession of a firearm) is conspicuously marked. If someone is trespassing onto the property they risk being charged with a Class A Misdemeanor - Trespass with a Firearm. Although it wouldn’t look great, this would in no way outweigh someone’s right to defend themselves. I also think that any evidence that this was a “trespass” would be irrelevant to the individual’s right to defend themselves if it were to proceed to trial.

John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04112-0168
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The question may depend on whether Rule 403 of the Rules of Evidence (see below) applies, which in turn would depend on appropriate pretrial motions trial objections. If there was preexisting “bad blood” between shooter and “shootee,” and shooter knew he was there and went into the place despite that, his “knowingly being armed and then proceeding anyway” would be a problem.

At some point, the probative value of this technical violation would be swallowed up by the prejudicial effect. This might well be the case where the shooter was a patron of a bank/convenience store and a robbery happened that the shooter had no reason to suspect.

The relevant tort case law suggests that for an intentional shooting, the illegal possession might well be irrelevant even in a civil case Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Marc S. Russo
Attorney at Law
25 Plaza St. W. #1-K, Brooklyn, NY 11217
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In my mind it should not be admissible if it’s a straight, unprovoked, self-defense situation. However, it gets a bit messier if the person carrying the gun starts some sort of provocative (even if nonviolent) interaction to goad another person into a fight. Then it could be said that he may have been trying to set up a situation where he could kill–and get away with it. This fact pattern could also be relevant in assessing whether or not (if not self defense) there was premeditation and if the homicide is therefore manslaughter or murder.

Gary True
Summers Compton Wells LLC
8909 Ladue Rd., St. Louis, MO 63124
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The assumption in the question is that the gun owner used the gun in self defense, which if assumed, answers the question. The shooting would be justified and the fact of trespass would not defeat it. Trespass by violating the “no guns” sign would likely be admissible if the State challenges the self-defense claim, depending on the State’s theory. If the State challenges the self-defense claim on the theory that the gun owner went to the location intending to provoke a confrontation and did in fact provoke the confrontation with the person he killed, which would require other evidence and could defeat a claim to self defense if proved, the fact that the gun owner took the gun to the prohibited area would be admitted as part of the proof of intent, a plan to commit to kill the other person, and could result in murder conviction. This would also be the case if the State could show that a gun owner took a gun to a place it was legal to carry with a plan to use it to kill a person, but the fact that the gun owner violated the law might add credibility to the State’s claim. In some states, taking the gun to a prohibited place would impose a duty to retreat on the gun owner because he was not in a place he was legally entitled to be. If the gun owner could have safely retreated and did not, his self-defense claim might fail.

Terrence R. Rudes
Attorney at Law
216 Adams St., Port Clinton, OH 43452
419 732-3000

Assuming that the shooting was proven to be self defense, a big if. The carrying of the gun could be explained, depending on the circumstances as:
1. I didn’t see the sign;
2. I saw the sign, but I was alerted to possible danger by–whatever lead to the shooting of the attacker–or
3. I reasonably fear being in a gun free zone as evil-doing people chose such areas to prey on the unarmed.
There are probably more that fruitful minds can come up with.

But, how did carrying the gun constitute a mens rea to commit a murder? I think it leads to a circular argument. If he did not have the gun, he and/or others would likely have been murdered. The attacker (I’ll make an assumption) was armed when he pursued his attack that gave the armed citizen to fear for his life. If armed with a gun, he also was likely violating the gun free zone and since he was the aggressor was exactly the kind of person who the defendant feared. Had the bad guy not attacked, the violation by the good guy would have lead to no adverse consequences except a violation of a statute.

If gun haters are in the prosecutor’s office or on the jury, they would get hung up on the fact that the concealed license holder violated a law. Because he had a gun while violating the law, he deserved to be killed by the criminal and since he wasn’t, the legal system should do him in.

Peter Taussig
Attorney at Law (licensed to practice only in CA)
1 Jefferson Parkway, Apt. 230, Lake Oswego, OR 97035-8816

My gut reaction–without having done any research necessary to reach a legal conclusion as to the applicable law in any jurisdiction–is that carrying a handgun into a prohibited area should be inadmissible as irrelevant in any criminal or civil case about whether the defensive use of the firearm in such an area was appropriate and justified. However, if the shooter were to be convicted on the misdemeanor carrying charge (either in a trial or on a guilty plea), there is a further question of whether such a conviction could be used to impeach his testimony (to call his credibility into question) in any subsequent legal proceeding, and the answer to that question would depend on whether in a given jurisdiction, a misdemeanor conviction can be used for that purpose.
A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month when we ask our Network Affiliated Attorneys a new question on a very interesting topic.

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