Including...• Rifles for Self Defense: An Interview with John Farnam • Attorney's Viewpoint: Concealed Carry Issues (Part 1)
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The Role of Rifles in Self Defense
An interview with John Farnam by Gila Hayes
The Network is fortunate to have firearms instructor extraordinaire John Farnam as a member of our Foundation’s advisory board. Beyond his generous assistance in these formative times for the Network, Farnam is a rich source of information about most anything to do with guns and ammunition, and is particularly outspoken in his views about armed citizens and self defense. We spent a little time with Farnam in February, and he graciously agreed to sit down for an interview.
eJournal: I am eager to hear your views about rifles for private citizen’s self defense. We might think of a rifle as a military weapon, but I suspect you assign rifles a broader role.
Farnam: Absolutely! You’ve heard me say before, “We don’t carry pistols because they’re effective, we carry pistols because they’re convenient.” Pistols translate to the seat belt in a car; they’re for unexpected threats. Rifles are for expected threats. When we have an expected threat that is when we would want a rifle nearby. Personally, I travel with one all the time.
eJournal: What makes the rifle so important for the private citizen?
Farnam: The capability of the rifle is really threefold: first its increased power, which loosely translated, means by virtue of greater power, it ends fights quicker. Number two, it has range, and that is probably the most important. A handgun, for most of us is a 20 meter gun. Handgun bullets certainly go further than 20 meters, but hit probability drops off, especially on animated targets. And that’s for a good shooter; for most shooters it’s probably a ten meter gun on animated targets.
eJournal: How much more distance do we get from a rifle?
Farnam: 100 meters! eJournal: Even for a mediocre shooter? Farnam: Yes, we can train anybody to hit things at 100 meters.
eJournal: With iron sights or telescopic sights?
Farnam: It doesn’t make any difference at 100 meters and in. The reason is that 100 meters is about the limit at which you can reasonably identify a threat. In military training, in order for someone to get shot all they have to do is wear the wrong uniform! They don’t have to represent a threat, they don’t have to make a threatening move, they don’t have to point a gun at you! So, in a military scenario we can engage people at two, three, four and five hundred meters, and snipers take longer shots. We [private citizens] have a different set of rules of engagement in our world, at least as presently configured. In order for us to contemplate shooting someone, we have to have an articulable threat.
eJournal: From as far away as 100 yards?
Farnam: That’s about the maximum. In our rifle course most of what we do is from about 20 to 70 meters. And closer than 20, because there are times that a pistol might do better, but if I have a rifle in my hand, I’m not going to put it down and draw a pistol, so we practice at point-blank range with a rifle, too.
eJournal: Does your technique change at closer distances?
Farnam: Sure does! Your sighting device becomes very important outwards of 10 meters, but inwards of 10 meters, you probably don’t need to be on your sights and it is probably contra-indicated. With a body index, most people can get pretty good hits without using their sights from maybe 10 meters and in. Beyond that, you ought to use your sights.
Now, before I forget it, remember the rifle gives us increased power, increased distance, and the third leg of that stool is penetration: the ability to shoot through things.
eJournal: Of course, ammunition plays a role there. Compared to military circumstances, do private citizens need different performance from their ammunition? I sense, and correct me if I’m wrong, that you are not a big fan of the .223.
Farnam: It’s not so much what would be ideal as what is available. .223 is going to be the dominant caliber for the rest of our lifetimes. We’ve been saddled with this .223 for about 40 years; I’ve lived long enough to remember when it came into the system. I did all my training with an M14 but when I got to Viet Nam, I never saw an M14. They said, “Here’s your new rifle; if you have any questions, keep it to yourself!”
eJournal: Did the .223 work for you there?
Farnam: Yes and no. On unarmored targets, that is, if I didn’t have to shoot through anything, within about 150 meters, it worked fine.
eJournal: So, the .223 is OK in non-military functions?
Farnam: Yep! As a patrol rifle and for personal defense, I think a .223, if not ideal, is just fine.
As a military rifle, I think it is woefully inadequate, and we have generally conceded that now. It is inadequate in penetration and range. We need a 300-meter gun; we have a 150-meter gun. We need something to shoot through car doors; .223 hardball won’t shoot through car doors. We need something that shoots through cinder block; the .223 will not shoot through cinder block. But for personal defense, I think it’s fine, because it’s recoilless and it has a lot of ammunition.
eJournal: What do you like for .223 ammunition?
Farnam: We’ve got a DPX round now for the .223 and that will shoot through car doors—a 55-grain hardball round won’t, but that DPX will go through car doors. The DPX has really changed a lot of this stuff.
eJournal: How does that work?
Farnam: Because the DPX bullet is homogeneous, that is, it’s not a combination of lead and brass, where the metals separate. When that happens, it fragments and generally what comes out the other side is just pieces. That’s stuff that people like Pete Pi [of Cor•Bon] worry about; they look at graphs and charts and figure out how to make it. For us at the consumer end, that DPX has been a Godsend. It is so expensive that it is ridiculous, but it’s what I use.
eJournal: Well, I guess you buy what you believe is going to work!
Farnam: That’s right. We have tried to improve .223 every which way: make the bullet heavier, make it lighter. We have done everything we can. The best of the lot is the DPX, by far. But still, the .223 is what it is. Still, for personal defense, I recommend the .223. As a military weapon, we need to move on to something else. During our lifetime, we may see another cartridge. We may see it go back to .308. I would love to see the Soviet .30; I’d love to see us go to the 6.8. I think the 6.8 would be ideal. You know, back in the .30s, when John Garand was designing the Garand rifle, he designed around the .276 Pedersen (7x51) cartridge. And, he designed a nice, small, slim rifle around it. It was the medium cartridge of the day, similar to the 6.8; it was .27 or .28 caliber. It was a 300 meter gun.
And then came the meeting with Doug McArthur. And Garand was explaining all this, and Doug said, “No, no, no, no, no, no! This needs to be chambered for 30-06.” And Garand said, “Doug! It’ll be huge!” And McArthur said, “I don’t care how big it is! Just build it!” [Laughter] The rest is history! We got the biggest, heaviest rifle ever issued to infantrymen before or since! There has been nothing like it since; there was nothing like it before!
I own three of them! And in fact, they’re sitting in my safe. The gun that travels with me is a Robinson XCR.
eJournal: Are there any particular models or brands of rifles to which you are partial?
Farnam: In AR15s, the top brands are DSA, Rock River Arms, Sabre, LWRC, Smith & Wesson. The five I gave you are at the top of my list, but there may be some others in there that I don’t even know about that are just as good. I have lost count of people making AR15s!
eJournal: What choices do we have beyond AR15s?
Farnam: For FNs, no doubt the FAL is at the top of the list, but there is nothing wrong with an M14. As far as the FAL, DSA is pretty much the only game in town. Springfield Armory is probably the only game in town for the M14. There are several outfits that make Kalashnikovs, but Mark Krebs is at the top of the list. And, the only other rifle would be the Robinson XCR. That’s the new gun on the block.
And there are lots of people making .308s. Because of the pressure for a heavier caliber, the Pentagon is taking old M14s and either reissuing them or taking the gun out and dropping it into a new chassis that has rails and all of this other stuff on it. That’s what I was trained with, but when I got to Vietnam, I never saw an M14, but I saw a lot of M1 carbines.
In WWII, in the Pacific Theater, the M1 carbine actually garnered a pretty good reputation, and people liked it. But if we look at the circumstances, we were shooting Japanese soldiers who were genetically smaller than most Americans; they were all starving; they were skin and bones; and it was in the tropics, so they weren’t wearing anything. So against small, starving, mostly naked people who aren’t charging, it works fine. A few years later in Korea, shooting North Koreans in the winter, who had a one-inch fat layer because they were well-fed, and in addition to that, heavy winter clothing, it garnered a very poor reputation.
eJournal: In your experience were the M1 carbines effective?
Farnam: Sure! When people tell me, “I have a M1 carbine that I like,” I say, “Have you ever shot anyone with an M1 carbine? Well, I have. And they were really impressed! To the best of my recollection, I didn’t need to ever tell them they were hit!”
The .223 is kind of the same way: it works against an unarmored target, wearing normal clothing within 150 meters. But the problem is, at extended ranges, the bullet becomes so de-energized that it won’t be effective. For domestic defense, anything beyond 100 meters is probably wasted capability, which is why I think a .223 or an M1 carbine is actually an ideal patrol rifle and actually ideal in terms of foreseeable issues.
eJournal: I was under the impression that you favored the FAL. Is that right?
Farnam: Oh, yeah, it’s my favorite rifle in the world. But here’s what you have to know about it. I can get almost anyone into a .223; I’ve had 9 year olds shoot .223s. It is relatively recoilless, the blast wave is upsetting to some people, but still, I can get most people into a .223 and teach them that they can shoot it fairly well. I’d say fully 40 percent of my students are never going to shoot a .30 caliber rifle. The gun itself is too heavy; the recoil is sufficiently unpleasant that they cannot be persuaded to practice.
eJournal: Isn’t that offset by good technique?
Farnam: Technique is helpful, but there’re limits to that, too. And for some 120 pound gal, I can’t name a .30 caliber rifle that you’re going to like—M14, FAL, whatever. In between there is the 7.62x39. That’s the Soviet .30, it’s a shorter case and ballistically equivalent to a 30-30 rifle round. It’s .30 caliber—the .308 is 7.62x51, and the Soviet is 7.62x39.
eJournal: What type of rifle is commonly chambered for the Soviet .30?
Farnam: Mostly the Kalashnikovs, which are user hostile. The rifle works, it’s just not user friendly. More recently the Robinson Arms XCR came out, which is far more user friendly. It’s what I have with me right now. It’s a 300 meter gun that actually has pretty good penetration. Not good as a .308, but it will go through car doors, and with Soviet ammunition, it will go through cinder block.
eJournal: And you’re traveling with a Robinson XCR? How do you pack it?
Farnam: Get a folding or collapsible stock. Get a 32- inch hard case and put that in your suitcase. That’s what I do. I have three 30-round magazines for the rifle, they’re capped at both ends, so TSA is alright with that. If you have an AR 15, you might make a note of this. Look at the MagPul. The MagPul magazine comes with a cap on it. When you take the cap off, it snaps onto the bottom.
eJournal: What about optics?
Farnam: I’ve got a micro Aimpoint, forward mounted. When I don’t need it, I just ignore it. When I need a dot, I just look and there’s a dot. When I don’t, the dot disappears, and it’s not in my face.
A lot of my students are now in their 50s, 60s, and 70s–in the bifocal stage of life. They get to the point they can’t use iron sights any more. We plunk an Aimpoint on their rifle and they say, “I’ve got a whole new lease on life! Wow, I can really be effective out to 30 or 40 meters and do what I have to do.” I think that micro Aimpoint is just a Godsend for those people, so they have something they can use.
eJournal: Does a rifle give that kind of person a confidence that perhaps a handgun does not?
Farnam: There’s no doubt it does. Once you see what you can do with a rifle, you won’t want to be without one. That’s why I travel with rifles. People ask me, “What if it gets stolen?” I say, “So what? I’ll just get another one.” It is just a machine, it exists to serve me, I don’t care about it, and I’d have no complaints about throwing it away and getting another. That’s the attitude you have to have.
eJournal: Well, some people have invested pretty heavily in their rifles!
Farnam: If you spent $5,000 on your gun, you still won’t like it enough! Custom guns become a pursuit of whim. It reminds me of the Rogaine ads, “Is your thinning hair ruining your self confidence?” Well, if it is, you’re a JERK! If your self confidence is tied up in your hair, Bud, you’ve got more problems than a chemical can cure!
The rifle is exactly the same thing. Get over it! It is there to serve you. Your skills are there to serve you. Your heart is there to serve you. And together, who knows? You might actually hit something on purpose!
eJournal: I see we’re out of time, and that seems like the perfect ending, John! Thank you so much, this has beena fun interview and I know our members will enjoy reading what you have to say. I appreciate what you are doing for the Network. It really means a lot to us.
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.
Update on Larry Hickey
Many of you have asked what happened to Larry Hickey, the Tactical Response instructor who was set upon by three individuals and ended up in jail for shooting them. I understand he is out of jail finally, after his family raised enough money for bail, and he is awaiting trial, though there is no firm date set. The legal defense money that many people donated is available for him to use at trial for experts, and other defense costs. The defense is keeping closed-mouthed as to details (as they should), so I don’t have much more information. Depending on when the trial actually occurs, I might want to attend it, as many of the precepts we teach and espouse are a part of this case. In the best case, though, charges will be dismissed.
Lastly, I plan to see many of our members in a couple of weeks at the Tom Given’s Rangemaster Tactical Conference, in Tulsa, OK. I am anticipating the break, and look forward to renewing old friendships.
Membership Recruitment Update
As noted in previous eJournals, we are making great headway in growing the Network. This growth is due in large part to many Network members who take pride in recruiting other members. We are about to achieve one of our goals of having 1,000 members – that’s the FIRST 1,000 members, as we see the Network growing well beyond that number and eventually encompassing countless individuals within the legally-armed citizens’ community. Starting from scratch, just last year, we first had only three members, then 20, then 100, and then 250. We have been adding new members on a daily basis and haven’t looked back.
The gun press has noticed us and has published four articles about the Network. Heck, they know a good thing when they see it. The new-member DVDs are meeting their intended goal of putting crucial information about the use of deadly force in the hands of members. Activity on the members-only forum is escalating, with some posts providing forthright answers to interesting issues, and the list of affiliated attorneys is growing every month. Things are good and will only get better.
Past columns have mentioned the development of the State Representative Program; now is a good time for an update on this. As a reminder, the Network has an activity in place that allows members to volunteer to be appointed as a representative and to recruit members. These recruiters contact potential members at gun ranges, gun stores, gun clubs and gun shows. Of course, you can recruit new members without being a Network Representative, and many of you do; however, being formally appointed gives me a chance to monitor your activities, share information and make sure you have brochures in hand when needed.
Our current cadre of representatives report they are having success, and back at the home office, we see the results of that success in our growing membership numbers. For example, gun shows and gun stores are popular locations for our representatives to share Network brochures and to discuss the importance of membership. One representative, an attorney, has placed a story about the Network on his professional web site. He also lectures on the legal aspects of self defense and distributes Network brochures to the audience.
The Foundation is growing, too! As a reminder, the Armed Citizens’ Legal Defense Foundation is a separate non-profit organization established to provide legal review, expert witness assistance and financial support to Network members. We have several legal defense experts on the Foundation’s Advisory Board, including Massad Ayoob, John Farnam, Tom Givens and Dennis Tueller. They are including recommendations to their many students to join the Network. They are also the ones who would review your legal case, should that be necessary. Do you know of any other organization that can claim this type of direct assistance from these luminaries?
20% of your dues and 100% of corporate contributions go to the Foundation. Our Foundation bank account is nearing the $15,000 level and growing every day, just like the Network’s membership numbers. We know that the current amount would hardly address the need should a member require financial assistance in a legitimate case, but we are working to enhance the Foundation’s financial resources. We have solicited direct support for the Foundation from a number of the companies that Marty, Gila and I visited during the SHOT Show. Massad was particularly helpful in introducing me to his numerous contacts, which then gave me an opportunity to share information about the Network and the Foundation. Thanks again, Mas, for recognizing the importance of the Network and for your ongoing support.
It’s decision time for many Network members next month and for others later this year. Those who joined last May will soon receive our notice to renew their membership for another year. I hope you do. The original joiners last May saw a glimmer of hope in the Network. We have worked hard to fulfill your expectations. Your faith in the Network is appreciated. We are now ready to provide yet another great educational DVD with your renewal. The new DVD in production deals with pre-assaultive indicators. This will help you be able to articulate why you believed an attack was likely and why you had to draw your weapon. This is an area few people talk about. Renewal will provide you with the latest information on this topic.
This is what the Network is all about – education and support! The new DVD will be provided to all members who renew. AND – you can’t beat this – renewing members will also receive a hat with the Network logo. Wear it proudly!
Visit Network Leaders at NRA Convention Booth
If you load up the Internet page listing exhibitors for the NRA Annual Convention on May 15-17, 2009, you might see a familiar name in the first 30 exhibitors listed. That’s right, the Armed Citizens’ Legal Defense Network, LLC will be at booth number 1831 in the new Phoenix Convention Center in downtown Phoenix, AZ for the NRA meeting.
Both Network President Marty Hayes and Vice President Vincent Shuck will attend the convention, using this opportunity to spread the word about the Network’s mission, as well as hoping to meet many of our members. If you attend the NRA Annual Convention, please add a stop by the Network booth to your list of things to do and see. “The NRA meeting is a great place for NRA members to see the latest and greatest firearms and shooting accessories,” comments Vincent. “This year, Network members can also visit Marty and me in the Network’s booth. Help us recruit new members and stop by to say hello to your Network representatives,” he invites.
NRA member registration and information services will be open from 2 p.m. to 6 p.m. on Thursday, May 14th. The exhibition hall will be open from 10 a.m. to 6 p.m. on Friday, May 15th, from 9 a.m. to 6 p.m. on Saturday, May 16th, and 10 a.m. to 5 p.m. on Sunday, May 17th. In addition, every day includes a great variety of seminars and meetings, with topics ranging from hunting, game processing, methods of concealed carry, handloading ammunition, legal issues, grassroots activism and lots, lots more.
Visit the NRA’s Annual Meeting website at http: //www.nraam.org/default.asp and make plans now to attend this great event.
Attorney’s Viewpoint: Get A Carry License
by Debbe von Blumenstein
Mother Theresa said that sometimes all we have is our stories. The following are stories – legal cases – from the trenches. Benjamin Franklin said that there are two ways we can gain knowledge, either by buying it or borrowing it. Buying it is when you go through the hard knocks yourself (that’s a euphemism for life sometimes kicking your tush) to learn the lessons. Borrowing knowledge is when you learn from others who have gone before you and they took the hard knocks. I know I have bought my share of knowledge (i.e., life tush-thrashings) however, I strongly recommend learning from those who have gone before and borrowing their knowledge.
If You Qualify for One – Get One!
There is no down side to getting your Concealed Handgun License. Sure, depending on the State in which you live, you have to take a basic class, fill out the application, get references, pay for it and get fingerprinted and photographed. However, once you have it, then you can decide if you want to carry concealed and how. If you don’t have it then you do not have that choice. Choice is good. Also, you never know when you might be in a situation where you need to conceal a firearm. No matter how much of a good guy or gal you are, in any given situation, if you are not licensed to carry concealed and you have concealed a firearm, you more likely than not will be arrested and charged with a crime.
Wearing the White Hat Won’t Protect You
An employer takes his employees to a bar in Corvallis, Oregon so they can blow off some steam. He arranges to pick them up at a designated time so none of them will be driving after having some drinks. The employer has nothing to drink. At the designated time, the employer rolls up on the bar and sees some kind of ruckus happening. What he does not know is that his employees have hooked up with a guy who has decided to take on the Oregon State University football team with his alcohol-fueled mouth.
The employer tells his employees to hop in his rig and they will just leave the scene and get away from whatever trouble is brewing. The employees get in the truck and so does the guy creating the trouble. What the employer doesn’t know is that this guy has said to the bouncer before leaving, “I’m gonna go get my nine.”
The employer now knows he has a truck filled with testosterone imbued with intoxicants so he secures his firearm in his door panel pocket. He does not have a Concealed Handgun License (CHL) although he would qualify for one.
The police pull over the truck due to the threat about the “nine” and the employer cooperates and identifies his firearm and where it is located. He is charged with Unlawful Carry of a Concealed Weapon.
Thus far, the employer has been trying to do the right thing. He has not allowed his employees to drink and drive. He has tried to defuse a hostile situation by getting his employees out of the incident. He has secured his loaded firearm from the worked-up boys. But he legally could not conceal his weapon.
This case would have been perfect for a deferred sentence (a successful probationary period after which the charge is dismissed) and even the Deputy District Attorney (DDA) agreed, except he said, “In our county we never do that for a weapons charge.” The Defense files for a Motion to Suppress because the officer impermissibly stopped the car on the alleged, past threat about the “nine.” The Judge agrees. However, at the hearing the officer testifies that he also stopped the vehicle for a traffic violation of not signalling 100 feet before the turn. The Judge agrees and thus the stop becomes permissible.
The Defense files a Choice of Evils defense. The Choice of Evils defense allows a person to assert that although he was not following the law, between his two choices, his choice was the lesser of two evils of what could have happened had he followed the law. The DDA objects. A hearing is held and the Judge decides Choice of Evils is not appropriate and disallows it.
The employer’s affirmative defense is knocked out from underneath him. The only realistic choice now is to plead to the charge. The only good news comes when the Judge, now very familiar with the case, agrees that the employer was between a rock and a hard place; however, he also concedes that he must follow the law. The employer was concealing his firearm and he did not have a CHL and he is found guilty. The Judge gives him the minimum on sentencing, a fine. However, he now has a conviction for a weapons charge and now does not qualify for a CHL.
(1) If the employer had a CHL, he would have been protected.
(2) Being a good guy does not protect you.
(3) You never know when you will need to conceal your firearm.
(4) If you qualify for a CHL, get one!
Sub-Lesson: Against the advice of counsel, the employer testified at the hearing and based on that testimony, the Judge ruled against him using Choice of Evils defense. You pay your attorney good money for a reason – to receive her or his advice – you may want to follow it.
The Case of Possession
The husband has qualified for a CHL. He carries concealed upon his person in a holster; The wife does not have a CHL. The husband and wife are in their vehicle, running errands, and stop at the courthouse to pay a fine. The husband puts the firearm in the glove box while he goes into the courthouse. He returns to the car, drives off and is stopped for a minor traffic violation. The husband hands the officer his driver’s license, registration, proof of insurance and CHL. The officer asks if there are any weapons in the vehicle and upon an affirmative response from the husband, asks to see it. The husband complies and his wife is arrested for Unlawful Possession of a Concealed Weapon.
Under the law, possession is defined as access and knowledge. The weapon, while in the glove box and no longer on the husband’s person, is accessible to the wife. She knows it is there. She has access and knowledge and no CHL. Under the law, she is now in possession of a concealed weapon.
(1) If you qualify for a CHL, get one!
(2) If you have a CHL, it does not cover your passengers.
(3) If you have a passenger in your vehicle and they have access to and knowledge of a concealed firearm, they can be arrested.
(4) If you secure the firearm so that there is no access–on your person or in a locked container–and the passenger cannot access it, they ought to be protected.
(5) If the passenger has access to the gun, but no knowledge of it, they ought to be protected. However, there is also constructive knowledge, meaning that you do not have actual knowledge but you should have known of its existence. For example, the passenger knows you carry firearms in your vehicle, they could reasonably infer that you would have one in the vehicle, so they can be held to actual knowledge of it.
And remember, the officer does not need proof beyond a reasonable doubt to arrest you – only probable cause. An officer may proceed with the arrest under probable cause and let you fight it out in Court.
Possession with Constructive Knowledge
Two juveniles are hanging out. They decide to sit out in a car that belongs to one’s dad but doesn’t run. A police officer shows up and asks what they are doing. He looks down at the floorboard of the vehicle and with his flashlight sees what he believes is a weapon. The officer finds a rifle under the driver’s seat. Both youths are arrested for Unlawful Possession of a Concealed Weapon.
The youth in the passenger seat denies knowledge of the rifle. The DDA asserts that since the two youths hang out there a lot and the passenger has been in the vehicle more than one time, that he has constructive knowledge of the rifle.
The Case is eventually dismissed but only after the parents hire a defense attorney for the youth. They still have to go through the legal process and pay the costs. The arrest is still on the juvenile’s record until he has it expunged.
(1) Lack of actual knowledge may not protect you.
(2) If you are in a car that anyone else has been in, you do not know what is in that vehicle but you may be arrested for what is in it.
How Concealed is Concealed?
A man is employed by a company that repossesses cars. He is following a person in a vehicle he intends to lawfully repossess. In an attempt to lose the repo man, the debtor-driver leads the repo man on a ride through Portland and into a parking lot of a facility where the driver is employed. The driver stops his vehicle and gets out and threatens the repo man, who stays in his vehicle and calls 911. The police show up. The parking lot turns out to be an employee-only restricted area of the airport. The police ask the repo man if he has any weapons and he cooperates, pointing out his firearm on the front seat of his vehicle. The repo man does not have a CHL, although he qualifies for one. The muzzle of the firearm is one-third secured into the seat. The officer will later testify that it was two-thirds into the seat. The repo man is arrested for Trespass and Unlawful Carry of a Concealed Weapon.
The case goes to a jury trial. Concealed is not defined by statute. The jurors go into a second day of deliberations and sends a note to the Judge asking, what is the legal definition of concealed? There is no answer.
The jury comes back: Hung Jury. The case is dismissed. However, the repo man has to go through a two-day trial and pay for an attorney.
Of note, the Judge actually says on the record that “this was a case that should never had seen the light of day.” However, that did not prevent the police officer from making the arrest or the DDA from prosecuting the case. In fact, the DDA still wanted the weapon kept and destroyed; she lost that fight, too, but it had to be fought on the legal battle field.
The Lesson? If I said it once (or twice or thrice), I’ll say it again: If you qualify for a CHL, get one! •
About the author: Network Affiliated Attorney Debbe von Blumenstein, J.D., is a trial attorney who has practiced in courtrooms throughout Oregon since 1997 covering twelve different counties and a multitude of municipalities. Her practice has an emphasis in self defense cases and weapon charges. She is a graduate of the Lethal Force Institute and other defense training local to her area. She has also been a legal instructor for the Oregon Police Corps, a paramilitary law enforcement academy in Portland, Oregon, and helps present the moot court segment of the Lethal Force Institute’s Use of Deadly Force Instructor program at the Firearms Academy of Seattle, Inc. Outside of her law practice, Ms. von Blumenstein has created and presented workshops and seminars throughout the United States, including “Legal Lessons 101: Knowing Your Rights–Learning From the Mistakes of Others.” For more about Ms. von Blumenstein, visit http: //www.debbevonblumenstein.com/
Our Readers Responses
Our last editorial “Cowardly or Wise” (see March 2009 eJournal at this link) generated some comments from readers—both Network members and non-members. Because I believe gun owners must continue to seek constructive ways to overwrite the stigma so many uninformed people attach to gun ownership, I am pleased to share the thoughts, ideas and strategies of our readers on this important topic.
--Editor Gila Hayes
To the editor: In the past two issues of the newsletter you have brought to the fore a topic for discussion that is long overdue. What do we have to hide?
I, too, have dealt with side-stepping the issue of armed self defense. It is a razor’s edge we walk. I value my privacy and security of my home when I am not there and believe it is never prudent to “advertise,” but on the flip side we cannot win over the hearts and minds of people if we are always avoiding chances to discuss the legitimate subject of our right to self defense.
This mindset is not for everyone. To carry the means of armed defense is a huge responsibility and even many in the gun culture look at us askance... “Why do you need to carry a gun?”... “You must be paranoid”... “When do you think you will ever need to use a gun to defend your self?”... and these are comments from gun owners!!! It takes a great deal of thoughtful patient discussion to work through the concept and explain to folks the “why” of our very personal decision to carry a firearm for self defense. A key point I have found to be quite powerful is to explain that I would never want to be in a situation where I needed a gun to defend myself and yet was not armed at that crucial moment. Sometimes that is the one statement that rings a bell in the mind of the person challenging your decision.
While I applaud those folks in the open carry movement for raising the level of awareness about guns, gun rights, and personal defense, it is not my cup of tea from a tactical perspective and as a personal choice of not wanting to be forced to deal with the negative stigma and even possible entanglements with law enforcement officers. This is also a very personal decision. To each his own.
Keep up the good work. This is a subject that needs to be aired to pro-gun and anti-gun folks alike. The right to self defense is our first right. With out it we have no others!
To the editor:
The reason we carry is to defend ourselves and our loved ones. Period. Nothing we do or say will help in that endeavour other than training and preparation. Anything else brings hardship and headaches. We don’t need to profess in order to do what we need to do. Convincing law enforcement, the courts, the anti Second Amendment folks, our neighbors etc... is more often than not an exercise in futility. We’re the minority. I suspect we’ll be the minority for some time.
Here’s what I do. I train. When engaged in second amendments conversations I use the Founders’ wisdom, reason and statistics to support my position. If that fails, I shut up because at that point it’s a no win. I’m careful about with whom I discuss my position, my habits, my hardware, etc...for all the reasons you mentioned. I stay on top of legislation and I write my representatives so they know exactly where I stand. I support pro Second Amendment groups with my time and money (I’ll be at the million gun owner march and other such rallies). I educate my sons. I train and I pray I never need to execute.
Like all things, this is cyclical. There were times through out history when this was a no brainer. No one questioned the practice or the need. Now just isn’t one of those times.
To the editor:
Though not a member of your organization as yet, I did just find your web site and did a bit of investigating through which I found your February 2009 article.
I believe that you have found the “rusty wheel” most certainly. I hope that your article and its stance finds its way into the mainstream as it is an issue vital toward the unneeded (for we practitioners) but very necessary (for the social) legitimization of armed self defense.
Thank you for a short, very clear and precisely ontarget article.
Meditations on Violence
by Sgt. Rory Miller
YMAA Publications Center, 800-669-8892 ymaa@aolcom www.ymaa.com
Reviewed by Gila Hayes
Several months ago I was on the phone with Marc MacYoung, when he observed that not only is the financial recession spawning more property crime, but that we should also expect a rise in crimes of violence attributable to the stress of those affected by economic conditions. Get ready, he warned.
One impediment to personal safety is failing to recognize precursors to violence. For me, Marc has been a dependable resource for that kind of information, so I paid attention when he endorsed a book by corrections sergeant and martial artist Rory Miller.
“Meditations on Violence: A Comparison of Martial Arts Training & Real World Violence” is not a title I would have picked up on my own, but having read it, I find myself recommending it to people who will never study traditional martial arts, because they consider the gun their self defense method. Miller’s grasp of criminal violence–avoiding it, recognizing when it is about to happen, and studies into what successfully counters it and what does not – is worth far more than the book’s $18.95 cover price.
Miller’s knowledge comes from experience: 14 years as a corrections officer who started at the bottom and has worked up to the rank of sergeant with responsibility for training other officers. Along the way, he has amassed considerable experience about how people use violence.
Early in the book, Miller suggests that few people clearly understand criminal violence, having been misled by a number of sources, including, sometimes, their training. Beliefs about violence are drawn from experience, reason, tradition, entertainment and recreation, Miller writes. Asked to choose the best source of information, we’d probably answer, “experience.” With violence, though, Miller explains, one or two true experiences in a lifetime are unusual. He further notes that his experiences with violence will differ from that of the reader, stressing, “Violence is extremely idiosyncratic.”
There are core principles, however, and Miller explains that violence is always contextual and can be categorized by “time,” “place,” and “people.”
“Place” echoes the basic awareness training we’ve long employed to avoid danger. In discussing “time,” Miller explains that if facing violence, actually having time to act is gift, compared to the more common surprise like a “crack over the back of your head.” Addressing the “people” element, he explains the seemingly random attacks on strangers in public places, comparing them to primate dominance rituals. If the crime is not clearly resource related, the assailant might be posturing to prove dominance – over you or to establish his dominance in the hierarchy of his peers.
Regardless of context, predatory behavior has identifiable characteristics, and Miller recommends becoming familiar with how predators look and act by studying people in crowds. It’s common advice, but with a twist. While people watching, ask yourself who would you attack if you were starving and needed money? Who would be easiest and the least risky? How would you do it? Where? Try to see with the eyes of the predator.
Next, look for the non-victims in the crowd. Even if you were starving, who would you avoid attacking? Approached intellectually, your findings will be too simplistic; instead, look with your instincts, Miller urges. Who appears experienced, committed, even crazy? Learn how these people stand, how they position themselves in the room or area, how they use their eyes, their hands and their walk, how they speak and how they listen.
To avoid looking like an easy resource, Miller recommends projecting confidence and self-value so predators decide attacking you is not worth it. In Miller’s words, behave like “someone who would make an attacker pay.”
Miller concludes, “Very, very few martial artists have a realistic idea of a predatory attack in their training assumptions.” Do armed citizens? The author details an inmate fight he investigated, in which the attacker was so focused on the goal that he was oblivious to a painful injury until hours later. “Do you believe there is a level of pain alone that will stop a dedicated attacker?” Miller asks.
Four Truths About Violence
Violent attacks usually come (1) from close in, (2) very fast, (3) more suddenly than expected, and (4) they hit hard, Miller teaches. Training should prepare for those realities, he says, and defense preparation must drop the idea of fighting fairly: “the very concept of ‘fairness’ has no place in the discussion of predatory assault,” he writes.
Do your defense plans fit with Miller’s four truths?
(1) Closer: Miller writes that a predator will choose the time and range when he can strike without any opportunity for victim reaction. “Often the ambush place will be an area that hampers the victim’s movements...Will your favorite move still work without the room to turn or step?” the author wonders.
(2) Faster: The attacker has it all planned in advance. “The speed of this flurry, the constant rain of blows, can be mind numbing,” Miller relates.
(3) More suddenly: If the criminal can’t surprise you, he often won’t act, Miller explains. “The unexpectedness of an attack can negate nearly any skill. You psych up for training, for competition. You have time to use breathing techniques to adjust your adrenaline balance in class, but an assault happens while you are in your 9 to 5 mind.”
(4) More power: Finally, most personal defense training simply cannot prepare the student for how hard an assailant hits. Miller notes that a lot of martial artists and ring fighters, facing a real attack, “often freeze for a second because the attack doesn’t feel like training.”
Training cannot induce production of the hormones the body makes under extreme stress, but “when this affect hits, your body and mind change. The mind you train with will not be the one you have when attacked,” Miller explains. “Do not let yourself believe that if you train hard your body won’t have natural physiological reactions.”
In addition to diminished physical capabilities, lifethreatening danger changes mental processes. Behavioral looping is a common mental mistake, the author explains. If verbal commands or a physical technique fails to stop the attack, the defender desperately tries it over and over again. He also reports the intrusion of odd, irrelevant thoughts, distractions that lead to bad decisions and, “In some instances, amount to a break with reality.”
Many shooters are taught defensive responses in the context of the OODA loop as defined by John Boyd (http:// tinyurl.com/5w6vq). Miller states that the middle two steps – orient and decide – are where most people will freeze into inaction, or react too slowly. The fatal flaw is in trying to gather too much information, instead of detecting the assailant’s vulnerabilities and attacking them. There is no reason to get hung
Can you go from “observe” directly to “act?” Miller suggests that you can. This reminded me of Jeff Cooper’s commentary on setting the mental trigger in Condition Orange, as you decide, “If the goblin does ‘X,’ I will …” and thus not pausing to think when you should be acting.
Miller has other valuable advice for surviving ambushtype attacks, and though the book of full of other good information, that alone is worth the price. “The people I know who do well in ambushes have often beaten the maxim that action beats reaction,” he writes. “They have a group of techniques that form the core of their strategy that they do not see as separate techniques.”
Anticipate what is coming when you can, the author advises, “rather than wait for it to happen.” When Miller advises a pre-emptive counterattack by “responding to intent,” the actions range from creating distance to any other number of acts to thwart the attack. “Move, scream, run or fight, but do something,” Miller writes. “I’ve had excellent success with a sudden scream,” he recommends.
Miller’s thesis is succinctly summed up when he writes, “The essence of self defense is breaking out of the frozen mindset you have been shocked in to. If you can access the predator mindset a few seconds into the attack, you can turn the attack into something else,” he predicts. “Self defense is largely about dealing with surprise and fear and pain,” he adds. “Self defense is much concerned about recovery – getting control back after a surprise attack, after possibly being injured, and overcoming the frozen-in-place response of genuine surprise,” Miller concludes.
I learned a lot from Miller’s book. If there is anything to criticize about “Meditations on Violence,” it is Miller’s occasional abbreviations, for example, simply writing DT after spelling out the term “disposable terrorist” a couple of times. “Meditations” outlines a number of invaluable strategies, so when you stumble over an abbreviation, take a minute to figure it out, reread the paragraph and learn the lesson. It might be one that will save your life!
Most of all, don’t wait to buy and learn from this book.
As armed citizens, we own guns for a myriad of reasons, but at the foundation, the primary reason we fight so hard for our gun rights, the reason we take classes to learn to shoot better, and the reason we study tactics all stems from concern for personal safety and the safety of our families. Rory Miller’s analysis of violent crime and methods with which intended victims fight back is fresh, new and in my opinion, what he knows from experience gives an essential urgency to any self defense training.
Brace for Impact!
Guns, knives, force of superior numbers, insanity, sheer boldness or desperation – if crime has not brought you into contact with these and other dangers, get ready, brace yourself. After several decades of falling crime accompanied by the relative prosperity of the time, the tension and difficulties of a society unaccustomed to hardship and despair are just beginning to boil up. Lulled by a decade-long drop in crime, few are ready to adjust to the new reality, but the influence of hard times is beginning to show, whether we are ready or not!
Government and social engineers are talking out of both sides of their mouths as fast as they can to convince us that all will be well, while reality indicates that social services, police budgets and other safety nets are being severely reduced. Watching the danger build since late last fall, I’ve been torn between trying to refute the lies of news commentators and officials and a nearly-overwhelming urge to hole up in the hills and not come out again.
For several months, the news has been full of experts theorizing that crime isn’t necessarily linked to economics, and while they acknowledge that theft rises during a recession, most have gone to great pains to suggest that murder rates simply cannot be linked to the economy. I would beg to differ. In the wake of several particularly atrocious mass killings, how can we fail to acknowledge a crime wave far worse than an increase in theft? And, while I’m thinking of it, let us be suspicious of the overworked phrase “mere property crime,” since the more desperate people become, the less likely they are to worry about harming the owner to get the property.
David M. Kennedy, a professor at John Jay College of Criminal Justice in Manhattan, quoted back in October on the New York Times web site, suggested that most violent crime is not committed for economic gain. For example, he said, drug crimes are bred in a street culture in which people are obsessed with establishing and maintaining a reputation, a quest in which they readily employ violence.
An online ABC News report explained, “When people get desperate–particularly young, low-income people–they are more likely to turn to drugs, alcohol and crime, some experts say. ‘It may give rise to a growth and demand for drugs as self-medication for the stress of unemployment,’ Alfred Blumstein, a criminologist at Carnegie Mellon University, said. ‘All of the horrors ... from illegal drug markets can follow.’”
An article on the Scientific American’s web site suggested that murder rates climb when people succumb to hopelessness. They quote Rick Rosenfeld, a criminologist at the University of Missouri–St. Louis, “’When we’re trying to understand criminal behavior, we’re trying to understand the behavior of people,’ he says, ‘so it’s preferable to use subjective indicators as well as objective indicators.’ He and Robert Fornango of Arizona State University traced murder rates against the Consumer Sentiment Index—a survey of how people view their current financial situation and how hopeful they are about the future. They found that lower index scores strongly correlate with higher murder rates.”
There, in a nutshell, we have the explanation for the tragedies like recent events in Binghamton, NY’s immigrant center, at the Carthage, NC nursing home, the Samson, AL murders, and the father who killed his five children in Graham, WA. In the last case, there is no argument that domestic violence is linked to economics. Last fall, a Massachusetts police lieutenant quoted in an article on www.boston.com explained, “People are facing foreclosures so they’re having money issues and some people have to cut back on their lifestyles. They’re fighting and they drink and it escalates into somebody assaulting the other.”
Not too many public officials are willing to correlate rising crime with police budget cuts, either, but the latter is an undeniable reality. Reuters web site reported on a survey conducted in late December and early January, that found that 63 percent of the departments queried were making plans for overall cuts in their funding for the next fiscal year.
Internationally, our cousins across the pond began to plan and detect the trend as early as last fall, when a leaked document from the Home Office to the Prime Minister revealed British government concerns estimating that “violent crime is set to grow at a rate of 19 per cent while theft and burglaries could rise by up to seven percent this year [that was in 2008] and two percent in 2009,” as reported at www.timesonline.co.uk.
And there’s little comfort for that supposedly “gun free” society. Not surprisingly, knife attacks loom large in the British crime picture. A January report at the Telegraph.co.uk web site quoted, “Separate figures showed the number of fatal stabbings has hit a record high with 270 victims in 2007/08.” In the same article, shadow home secretary Chris Grayling opined, “It is particularly alarming that robberies involving knives have soared and that fatal stabbings are at an all-time high. The Government’s complacency in this area is proving fatal.”
The true error, of course, is in expecting much of anything helpful from government—whether that’s the government of England or the U.S., as underscored by the recent judicial finding that the New York subway employees had no responsibility to step in and stop a rape they witnessed in 2005, as well as more cases than we can keep track of. The individual is responsible for their own safety.
It is time to go beyond complaining about gun-free victimization zones to actively boycotting them; to go beyond agreeing that individuals must be prepared to fight for their own lives to assuring our preparation by both supplying ourselves and training ourselves for the ever-increasing eventuality that the new crime wave will impact us.
That means going to the relative inconvenience of carrying a gun for self defense whenever and where ever legal; that means having that talk with your family about the family strategies for a home invasion or home intruder, whether or not it scares the kiddies; that means considering people with whom we come in contact daily as potential assailants, instead of feeling secure because no one who looks like our stereotype of the “bogeyman” is in view. Preparation is a state of readiness that is a continual practice, not something we keep on the shelf in case “things really get bad.”
Things really are getting rougher. Are you ready?
National Parks Carry Victory Short-Lived
Department of the Interior rules enacted in January that allowed licensed citizens to carry concealed handguns in National Parks suffered a set back last month when a Federal District Court judge granted a preliminary injunction to the Brady Campaign to Prevent Gun Violence, the National Parks Conservation Association and the Coalition of National Park Service Retirees, who sought to block the rule change.
The judge, Colleen Kollar-Kotelly (appointed by President Clinton in May of 1997), announced her decision last month to block the rule change because there was no environmental analysis performed and therefore Congress “ignored (without sufficient explanation) substantial information in the administrative record concerning environmental impacts” of the rule.
We’d reported in earlier editions of the eJournal that citizens could visit National Parks this summer without surrendering their right to the defense of themselves and their families, but that is no longer the case. Once again, legally armed Americans must unload, dismantle and put away their guns before entering National Park lands.