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Initial Aggressor: Losing the Right to Argue Self Defense
Pt. 2 of an Interview with Attorney Jim Fleming
Interview by Gila Hayes
In last month’s journal, we started a lesson with Network Advisory Board member and attorney Jim Fleming. With nearly 38 years of work as an attorney after a law enforcement career, Fleming is uniquely positioned to teach about initial aggressor legal issues. A law-abiding citizen, claiming he or she was using force in self defense, can find their self-defense decisions are overshadowed by foregoing events to the extent that the criminal justice system will not allow the accused to cite self defense as the reason for injuring or killing an attacker.
Last month we discussed the effect of verbal threats, regaining the right to use force in self defense by a good-faith communication of withdrawal from the fight, and the responsibilities of the jury in weighing all these concerns. If you missed that installment, please browse to https://armedcitizensnetwork.org/initial-aggressor, absorb the details Jim discusses there, then return to this page for the second installment.
eJournal: You’ve introduced us to the technicalities of defending self defense last month as you’ve done that often in the past, as well. This is an issue into which we put a lot of time and invest a lot of funding and effort to make sure members understand. How in the world do you, a skilled and experienced defense attorney, make sure the jury shares the same understanding?
Fleming: You’ve heard the catch phrase, “I deserve a jury of my peers.” Really? Well, let’s think about that for a minute or two. At 3 o’clock on a summer morning, you’re awakened by sounds coming through your screen window and you go outside and you find this guy who is going through your car. You confront this individual and he comes boiling out of the car with a tool. I specifically say “tool” because I don’t want people thinking about this in terms of weapons versus non-weapons, so let’s say that he comes up out of the back of your car with a Pepsi bottle. Don’t freeze up trying to figure out, “Is that a weapon or is it a Pepsi?” No, you should ask yourself, “Is it a tool?” Yes, it is a tool that can be used to fracture your skull and kill you.
by Marty Hayes, J.D
In looking back over this past month, and then further back into the past several months, I am reminded of the time when I worked graveyard patrol in a very small town. This was long before I even went to law school, long before the concept of the Network had entered my mind. I had started The Firearms Academy of Seattle by then, but it wasn’t making enough money to support us while continuing to build the academy. As a result, I took this job to supplement our income while we built the school. During this time, when one of the most challenging tasks on night patrol was simply keeping awake, I became a fan of Art Bell and his late night talk radio show, “Coast to Coast AM.” For those familiar with Art Bell and his show, you know he discussed some pretty strange stuff.
I will be the first to admit that I was skeptical about most of what was discussed on the Art Bell show, but since it was on the only radio station I could tune in where I was working, I grew to enjoy the mental process of deciding “Truth or Fiction.” One phenomenon he discussed on several occasions, was called “The Quickening,” and I believed it held a little more truth than fiction. As I understood this phenomenon, it meant an acceleration of activities to the point where so much is happening so quickly, one cannot keep up with it and is eventually overwhelmed.
Attorney Question of the Month
The source of this month’s discussion with our Network Affiliated Attorneys is Network members expressing concern about their best course of action if, despite their best efforts to avoid violence-ridden areas, they are caught in traffic during a riot and threatened while in their car. To help our members strategize and act in legally defensible ways, we greatly appreciated our Affiliated Attorneys’ comments on these questions–
What legal repercussions would result if an innocent motorist, threatened by a mob they see harming motorists pulled from cars or threatened directly by a violent attempt to break into their car while they are inside, drives deliberately through the area with flashers and horn active but hits and injures a person as they attempt to drive to safety?
How does the motorist’s responsibility change if the person hit is actively involved in the rioting or if it is another innocent person also attempting to get out of the danger area?
Does the motorist’s responsibility change if they hit a protestor blocking an onramp, offramp or city street who is not immediately threatening violence against them or other drivers? What, if any, role does fear of being blocked in and later harmed contribute to justifying a motorist endangering the lives of pedestrians blocking roads or freeway ramps during violent protests?
The Gun Digest Book of Combat Handgunnery - 7th Edition
by Massad Ayoob
$24.99 digital; $26.99 Paperback
Reviewed by Gila Hayes
With the release of the seventh edition of The Gun Digest Book of Combat Handgunnery, author Massad Ayoob recognizes the authors of previous editions of this classic compendium, starting with the first edition released in 1983, written by Jack Lewis. Ayoob authored the fifth and sixth edition of Combat Handgunnery, preceded by Chuck Taylor who wrote the fourth edition and Chuck Karwan, who authored the second and third editions. While the shoes to be filled are large, it is hard to imagine an author better qualified to fill them.
Ayoob introduces his topic by noting that human violence necessitating self defense is as old as humanity and little changed, so an updated seventh edition, he notes, focuses on new understanding of, “the physiology and psychology of shooting, particularly under extreme stress.”
by Emanuel Kapelsohn, Esq.
This month’s Attorney Question of the Month column starts by asking us to assume the reader has done “everything possible” to avoid becoming engulfed by the rioting, I’ll let other attorneys answer from there going forward, and will deal with the “Left of Bang” issues. From my experience as security director in charge of the 11-man protective team for a wealthy principal, if someone attacks the principal, putting aside whatever we then do in direct response to the attack, we must understand (later on, of course) that the fact that the attack is taking place means we have failed in our primary and most important job, which is to plan, manage, and conduct the operation in such a way that no attack occurs.
Too many bodyguards, security officers, and even some private individuals with CCW’s “think through their guns” meaning their thought process might be something like, “This is a dangerous route to take, but it will be okay because I have my gun.” A 3,000 pound car is just a larger deadly weapon than one’s gun. A big crowd, let alone a rioting mob, can quickly make it impossible to drive out of it to safety, even with flashers, horn, and willingness to hit one or two people who get in the way. And if you’ve hit someone while trying to drive to safety and you don’t succeed in getting away, you can be sure the mob will literally try to TEAR YOU APART, and that you may not have enough rounds in your gun to keep you safe. I’ve seen this happen.