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by Gila Hayes
The April and May 2010 editions of the eJournal featured articles and interviews focused on the physiological and psychological variables present when armed citizens use deadly force in self defense. In wrapping up this three-part series, we spoke at length with H. Anthony Semone, PhD, a forensic and police psychologist who has been practicing since 1968.
Dr. Semone has given extensive courtroom testimony throughout his long career, so he has firsthand knowledge about the pros and cons of introducing expert testimony when defending self-defense actions. In an interview he recently gave me, his experiences and information resoundingly emphasized that while understanding the physio-psychological aspects of self defense is important, presenting the science in court requires a certain degree of sophistication to avoid having it so severely twisted by opposing counsel that the defendant looks worse to the jury than he or she would have without the expert’s testimony.
Dr. Semone is an unusual member of the fraternity of mental health professionals, which he characterizes as generally leftist in their politics. How did he come to be such a strong personal defense advocate and practitioner? Semone answers, “You want to know how I got that way? It was because when I was a clinical psychologist in Pennsylvania, I had my life threatened.”
In 1989, not long after Pennsylvania’s shall-issue concealed carry licensing law had been enacted, a client left such an explicitly threatening message on Semone’s answering mahine that a police detective who was a friend told him. “I get those threats all the time. Unless you get them all the time, I’d take that threat very, very seriously, and if you’re not armed, you should be. There’s a great gun shop just up the street. Go up there and talk to the owner.”
Semone not only became an armed citizen, he pursued extensive training, and his résumé lists certificates, many of which are instructor credentials, from Massad Ayoob, Smith & Wesson Academy, the National Rifle Association, the Pennsylvania State Police, Chapman Academy, John Farnam, Chuck Taylor, Clint Smith, Marty Hayes, Baltimore County Police Department, Strategos International, Storm Mountain Training Center and Central Virginia Tactical. Make no mistake, when that client said he was stalking and intended to kill Dr. Semone, the good doctor did a lot more than just get a gun!
In the years that followed, Semone’s work involved more than 60 death penalty/criminal homicide defendants. When the stress of exposure to criminal defendants and the mayhem they created, became more than he wanted to deal with, he declined to carry on that work any longer.
Semone went on to do considerable expert witness work for survivors of deadly force incidents, explaining to the courts the experiences and actions of both police and private citizens who had used deadly force. It is from this experience that we draw the critically-important lessons with which we will conclude our three-part series.
As an example by which to illustrate important points about expert witness testimony at trial for a shooting, Dr. Semone related the details of a 2006 appellate case in which he testified about the defendant’s mental state immediately following a shooting.
In brief, on Jan. 13, 2003, Rodney Heemstra of Milo, IA shot and killed his neighbor, Tom Lyon, another farmer with whom he was involved in an ongoing dispute over farmland that Heemstra had purchased, but which Lyon continued to farm because he still held the lease. At trial, Heemstra described how he tried to avoid Lyon, who he believed was mentally unstable and prone to fits of out of control rage. Part of his strategy to avoid the man included leaving his home extremely early in the morning so he could drive past the Lyon farm unnoticed. One morning before day break he was doing just that, but found the road blocked by Lyon’s truck. With steep slopes on either side of the road, he was unable to drive around the blocking vehicle, so got out of his own truck, and was soon enmeshed in an argument with Lyon. The defendant said that when Lyon demonstrated that he intended to attack him, he pulled an old .22 LR rifle from behind the seat of his truck and shot Lyon in the right eye, killing him.
It is Dr. Semone’s belief that the shock and horror of the attack and shooting threw Heemstra into a dissociative state, and while thus affected, he moved Lyon’s body to an abandoned well or cistern and hid it there as dawn began to break. He started to drive away, but remembering that children sometimes played in the field, he returned and put bales of hay on top of the body, blocking off the well. He then drove into town and attended to his business “as if nothing ever happened,” according to Semone.
“So, how do you explain that to the jury?” Semone asks rhetorically. “A psychologist explains that to the jury on the basis of a phenomenon called dissociation,” he answers. “There are several possible responses to what a person perceives to be imminent bodily harm or death. The first is flight. People fight only if they believe they cannot flee. And if you can’t fight, another option is to freeze and act like, ‘I’ll freeze and maybe nobody’s going to notice me over here,’ and this is especially true for abused people.
“Freezing leads immediately to dissociation. Dissociation is a splitting off of consciousness such that, as viewed from the outside, you are acting normally [as if] there is nothing wrong with your state of mind. But from the perspective of the person, inside their own mind, they are literally numb and disconnected from their ongoing experience relative to the experiences that they just had.
“From a clinical perspective, all the people I’ve evaluated who’ve been involved in deadly force events, experience at the time of the occurrence that at least part of them was somewhere else.”
Heemstra was convicted of first-degree murder and jailed in 2004. He successfully appealed the conviction in 2006 on grounds of evidence excluded, and that time, was convicted of voluntary manslaughter. (For more details, see http://www.msnbc.msn.com/id/20466289// ) Semone was an expert witness in the 2006 appeal.
When physio-psychological phenomena, like Heemstra’s post-shooting dissociative state, are introduced in court, it opens the door to a number of attacks from opposing counsel, Dr. Semone explains. First, he emphasizes, he exercises considerable care to assure that he testifies only in defense of people who have used deadly force justifiably.
“There have been a couple of cases, in the initial discussion with the attorney, when I’m asking questions about ability and opportunity and jeopardy and preclusion and it doesn’t pass the smell test, where I said, ‘Look, you probably don’t need me to be involved in this.’ I won’t talk about psycho-physiological correlates of deadly force encounters if it is an excuse for a bad shooting,” he emphasizes. “I evaluate a defendant in a deadly force shooting like I’m a juror, essentially, applying the reasonable person standard. I like to think of myself as a reasonable person who happens also to be equipped with a hell of a lot of knowledge, but if the shooting is bad to begin with, talking about auditory exclusion, tunnel vision, tachypsychia, is not going to turn it into a good shooting,” he explains.
Beyond testifying only for innocent defendants, Dr. Semone uses his knowledge carefully when giving testimony to be sure that the facts he presents to educate the jury are not twisted by opposing counsel and cannot be used to impugn the defendant’s credibility.
Avoiding Courtroom Pitfalls
Suppose a prosecutor counters his testimony by asking, “Well, Doctor, let’s say for a moment that we agree to these psycho-physiological correlates, that they produce a state of consciousness like you testified to,” Semone suggests. “And if you’re in an altered state of consciousness, Doctor, isn’t it true that sometimes that could affect your judgment?” he would be asked.
“Yes, it could sometimes affect judgment,” Semone would answer.
“OK, then, let me ask you a question, Doctor. When exactly does fight or flight start in the sequence of a deadly force encounter?”
“Well, it starts at the moment the person perceives it to be such [a deadly force attack],” Semone would answer.
“Then it would certainly be reasonable that the defendant’s judgment was affected earlier in the sequence rather than later,” the prosecutor would continue. “In other words, isn’t it possible, Doctor, that he shot somebody just because he had bad judgment and he didn’t need to?”
Semone stresses, “That’s the problem, at least from my perspective, when you seek to introduce all of this stuff as an explanation for a shooting, because, I don’t know when the hell the fight or flight response starts, nor does anybody else, for that matter. Yet I was asked that precise question by a Federal judge in another use of force case.
“Why is that important?” he asks, “Because in my view, it goes to the issue of the defendant’s state of mind at the time of the use of force in general, and, more specifically, the degree to which his state of mind and his associated behavior at that time were affected by fight or flight.”
Defending Credibility Challenged
Another double-edged argument about which Semone worries played a role in the Heemstra case. When expert testimony is offered to explain the defendant’s actions, Semone expects that during cross-examination the prosecution will challenge both the veracity and applicability of the facts offered by the expert.
“This is a critical, critical, critical issue having to do with expert testimony,” Semone emphasizes. “They’ll ask, ‘You know, Dr. Semone, isn’t it true that the only information that you’ve got is the information provided to you by the defense?’ They think the defendant is bullshitting you,” he proposes.
“You could avoid that whole issue by testifying in general terms. The defense asks you to educate the jury in the psychological aspects of deadly force encounters and you can do that. Of course, then on cross examination, what you get is, ‘Well, Dr. Semone, that is all well and good, but you don’t know if that applies to the defendant, do you?’ Of course, he [opposing counsel] will set the stage, by asking, ‘Dr. Semone, isn’t it true that you never evaluated this individual?’”
If Semone answers, “Yes, that’s correct,” the prosecutor asks, “Isn’t it true that the defense asked you to come in here and just provide this information to the jury? And isn’t it true, that while what you may be saying is perfectly true generally speaking, you have NO idea that this is going to apply to this defendant, do you?” asks the prosecutor.
“If I never evaluated him, I can’t say I do know, so what can I say?” Semone comments.
“Now, the defense can posit for me in hypothetical, asking, ‘Just assume, Dr. Semone, that some person at 4 a.m. on a pitch black night is stopped on the road and can’t get past,’” he relates. “That gets us pretty close, but still there is a problem, and that comes when the prosecutor says, ‘Your hypothetical here relies also upon the veracity of the report of the individual. How do you know he is telling the truth, Doc? Did you give him a lie detector test?” Semone suggests. He would have to answer, “Uh, no, I didn’t.” “
So you don’t really know if he is just lying to you, because after all, nobody else was there, and the only other person who was there was killed by the defendant,” comes the prosecutor’s coup d’ grace. “Now you’re in a real pickle,” chuckles Semone.
“I have a response to that, so I say, ‘Well, that may be true, Mr. Prosecutor, but on the other hand, as difficult as it may be to understand why a person in this hypothetical case might say what he said, the ladies and gentlemen of the jury will recall from my direct testimony the factors that are operative in a deadly force encounter,” Dr. Semone continues.
“The more defensible position to adopt is actually to evaluate the defendant’s credibility.” he explains. “Since it is [true] in so many cases that the only version of the incident that we have is the version told by the defendant, then I, as a testifying expert, am vulnerable to the prosecutorial tactic on cross-examination that I ‘only have the defendant’s word for what took place.’ In the Heemstra case, I employed a protocol that permits me to evaluate the credibility of the defendant’s verbal reports with respect to his or her perceptions of the events of the shooting. That protocol involves the selection and use of standardized psychological tests, each with known error rates, one of which establishes a basis for an opinion as to whether or not the defendant was malingering.” In the Heemstra case, in addition to vouching for the credibility of the defendant’s version of events, Semone’s extensive testing indelibly illustrated the doctor’s pursuit of the truth, setting him apart in the eyes of the jury, from an expert witness who might just take money to say what the defense needed said.
“It makes all the difference because the jury really WANTS to know whether I, as an expert who is being paid all this damn money, did his homework,” Semone explained. “I felt really good about being able to do that.”
Heemstra also testified on his own behalf, Semone relates, “and so the jury was able to hear me say that I believed him to be credible based upon all these data. Apparently, they found him credible, too,” he added, noting that the appeal was successful and it reduced Heemstra’s conviction to one of voluntary manslaughter. Because of the time he’d served on the original murder conviction, Heemstra was out of prison within a couple of years.
Without the psychological explanations, Heemstra’s post-shooting actions seem indefensible. Lyon’s family won a civil suit and was awarded $11.5 million, the largest award to a plaintiff in Iowa history. The families involved continue to feud over availability of funds to pay the $11.5 million. In other words, the cascade of events that started for Rodney Heemstra before sunup one winter morning in 2003 will continue to impact his life for years and years. Seen as a cautionary tale, how can Network members avoid some of the misfortunes befalling Heemstra?
Preparation to Manage Threat to Life
Semone recalled a robbery that took place while he was at his neighborhood bank, comparing Heemstra’s dissociative incident with the incredible clarity of vision and hearing he experienced during his own encounter with deadly danger.
“In October of 2004, just as I was getting ready to open up my strength training studio where I’ve been doing clinical health psychology for physically impaired people, I went to the bank to get the last $1,000 I needed to pay the guys who were delivering the equipment,” he recalls.
As always, Semone was armed. He stepped into a small room just off the bank’s lobby to visit with a friend, and after a bit of conversation, heard a bank robber yelling threats and commands.
“Upon hearing that, it was automatic,” he remembers. “I was out of the chair that I was in, my weapon was in my hand, and I was ensconced on the floor. Above me was a window, about three feet high and five feet across which looked out on the teller area. [From it] I had indexed where I judged the guy’s head, neck, and upper torso would be if he came into that little room,” Semone relates.
“And this is all simultaneous. All of the sounds in the bank became hyper magnified. I lay there and I could tell the difference in the sounds of the drawers as the guy was rifling through them pilfering the money, as he was saying to people, ‘I’m going to kill you all if you don’t do what I say; I have a big gun,’ etcetera, etcetera. As I was waiting for him, I had no increase in heart rate that was at all detectable, and I had enormous clarity. I was a cool as a freakin’ cucumber.”
Although Semone is a USMC veteran, he was not in combat during his time in the service. He had, however, done extensive scenario-based training with Ken Good’s Strategos International, although during that training, he points out, he was anything but calm!
Mindset is Critical
Perhaps even more important than training, however, is acknowledging the possibility that one may need to use deadly force in self defense, Semone adds. “I think whether one does or does not dissociate and the extent [of dissociation] is dependent upon one’s prior training. But training is not necessarily a sufficient condition to not dissociate. I think there are a number of factors that contribute to an altered state of consciousness. In the Iowa case, this guy had no prior combat experience that would allow him to address the situation any differently than he did.”
Like Dr. Semone in the bank, Heemstra also faced a situation in which he was trapped with no escape. In addition, it is unlikely that the farmer ever considered the potential for being in a deadly force incident, unlike Semone, who had prepared extensively. Heemstra shot his assailant with a rusty, old .22 LR rifle pulled from behind his truck seat. As folks from agrarian backgrounds know, it is not unusual to stow away a small caliber gun to dispatch pests like gophers, so it is extremely unlikely that Heemstra possessed that rifle for self defense. Semone points out that when Heemstra pulled out the rifle, he inexpertly grasped it by the barrel, and was not at all certain it would even fire, not having shot it for many years.
Semone describes Heemstra as, “Utterly powerless in that circumstance. Powerless! There is nothing he can do. When you get into an altered state of consciousness that is based upon the perception of imminent death, all the hormones in your body are going ape and if you have not thought about and are not prepared to defend yourself, now you are left figuring out, what the hell am I going to do now?
“In the presence of that powerlessness and in the absence of skill and in never having thought about what you’re going to do if the shit hits the fan, you don’t have much left. When you can’t flee, you’re going to go numb, you’re going to go on autopilot, and you’re going to end up disconnecting from the horrendous scene. From a clinical psychologist’s perspective, the only way you can keep from flooding your system – physiological overload – is by subconsciously calming everything down. The price you pay is that you dissociate.”
By comparison, Semone’s reality-based training kicked in during the bank robbery, and he protected himself by consciously choosing a good position, while determining what would be necessary to survive if the robber came into the room in which he was. “If you’ve had enough training, you can manage it because your default, subconscious response is to act as a reasonable person would act, and, in my view, you only do that if you’ve had scenario-based training. Ultimately, you’ve got to get the force-on-force training,” he concludes.
When the Attack is Over
“So that is number one: you have got to manage the immediate shooting,” Dr. Semone emphasizes. “The second is you absolutely have to manage the immediate aftermath of it.” The trained individual faces another post-shooting concern, Semone continued. Citing research at Kent State by Seymour Epstein (www. psychosomaticmedicine.org/cgi/reprint/29/5/514.pdf), he suggests that the danger of heart problems or blood pressure spikes from the anxiety following a critical incident merit more consideration than they usually receive. When dealing with responding law enforcement, Semone recommends asking to be taken to the emergency room after identifying yourself as the victim of the crime.
In addition to Epstein’s findings that people skilled at a risky task experienced greater anxiety after the event when they thought about everything that could go wrong, Semone cites research by the Heart Math Institute (http:// www.heartmath.org/) studying anxiety, heart rate and related factors in police officers put through a variety of duty scenarios. Predictably, a role play about domestic violence created the most stress, proven by heart rate and blood pressure readings, but surprisingly, the experienced officers in the test group remained calm during the scenario, and only after it was over, did their blood pressure soar and heart rate increase, as they began to envision all the possible negative outcomes.
In both studies, people who were trained and experienced at the activity involved in the testing kept their cool, just as Dr. Semone did in the bank robbery, but afterwards, the anxiety and related physiological symptoms hit hard. The time in which anxiety symptoms peaked for the study participants equates to the same time after a self-defense shooting during which the survivor must deal with law enforcement response to the incident. In these circumstances, Semone strongly advocates seeking medical care without delay.
With so many potential missteps in managing the immediate aftermath, Semone agrees that only the critical facts establishing you as the victim of the crime should be reported to responding law enforcement. He notes that in police-involved shootings, a delay of up to several days is common before officers are required to make a full, official statement. Why shouldn’t the armed citizen invoke the same sensible protocol?
“It is all about the aftermath,” Dr. Semone stresses. He compliments the Network’s first three educational DVDs, giving special attention to the second in the series, in which Massad Ayoob outlines specific priorities in reporting events before, during and after a deadly force incident.
“The aftermath is where it is at,” Semone exclaims. “If you don’t get those ducks lined up in a row, it will take an otherwise justifiable shooting and send it right down the hole.”
Expert Testimony Is Not a Silver Bullet
A little training is sometimes dangerous. How often have we heard a new gun owner, fresh out of their first gun class, start a sentence with, “If I get in a shooting, I will just…”? In something as complex as a life and death emergency, it is foolish to plan to implement what seems a simple solution or to take any actions you could add behind the word “just.” Likewise, defending self-defense actions and decisions in front of a judge and jury is no time for simplistic solutions. If a defense team decides to introduce expert testimony about physio-psychological aspects of going through a deadly force incident, that information must be presented with great care to avoid casting unwarranted suspicions on the defendant.
“There often are real psychological variables involved [in and following a deadly force incident],” Semone acknowledges. “But if you’re going to have an expert testify, then it’s got to be because the psychologist sat down across the table from the defendant and said, ‘OK, walk me through what happened,’ and then did an independent appraisal,” he warns. “You’ve got to really be careful about the extent to which you employ psychology experts, and under no circumstances should you expect them to do your work for you. If the armed citizen has become his or her own expert, then he or she is then never in the position of having expert testimony precluded, because the latter is held by the judge to invade the province of the jury,” Dr. Semone concludes.
We are indebted to mental health professionals James Strickland, Art Mize and Dr. Semone, who are also Network members, for hours and hours of help with interviews and reviewing the articles that have made up this three-part series on the effect of physiological and psychological phenomena associated with deadly force incidents and the subsequent aftermath.
What a difference a year makes! While Vincent Shuck, our Vice President, will discuss the NRA annual meeting in his column, I just wanted to take a minute and comment how much better the Network is known to people in the gun industry than it was one short year ago. It was evident that much of the success stems from my work with the United States Concealed Carry Association, and my writing for their publication, Concealed Carry Magazine. While Vincent and I worked the booth, many people came up to us, said they had heard about us in CCM and took our literature. Many others signed up on the spot, some for more than one year! I want to say thank-you to Tim Schmidt and Kathy Jackson (Publisher and Editor respectively of CCM) for allowing us the flexibility to get our message out into the world.
Filming for our fifth DVD project has been completed, and we are already making plans for the next two. The raw footage for the fi fth in our DVD series is currently at the production company being edited and made to look pretty, but I will give you a heads up as to its content. While it didn’t start out this way, the program ended up being a real good introduction to the Advisory Board of the Foundation, because ALL the advisory board members plus Gila appear on this DVD.
In this DVD, Dennis Tueller discusses his groundbreaking work with the question of how close is too close, now commonly known as the Tueller Drill. In another segment, Massad Ayoob answers questions about furtive movement shootings and how to defend one in court. Tom Givens speaks about the success of his students when they have needed to use a gun for self defense, and in closing, John Farnam describes what he calls the Stealth Lifestyle. As before, I serve primarily as the interviewer in the segments featuring these gentlemen, as well as participating in a discussion with Gila and Vincent regarding the Network’s Boots on the Ground Program.
Good News from Arizona
It is also with great pleasure that I am at last able to announce that Larry Hickey, the man who was forced to use deadly force in defense of himself and his family, and then was prosecuted twice for that act, has finally been relieved of the burden of being prosecuted. Just last week, the Pima County Prosecutor’s Office, located in Tucson, AZ, moved to dismiss the charges against him, and Judge Theresa Godoy agreed. The charges were dismissed after Hickey and his family endured two jury trials, in which the prosecution could convince only 7 out of the two trials’ total of 24 jurors that Hickey was guilty of a crime.
I had the pleasure to work with two outstanding advocates for the defense, attorneys Matthew Messmer and Michael Rosenbluth. These two guys put their lives on hold and worked as hard as possible to help the witnesses bring out the truth of what actually happened. And they are public defenders! If you live in Pima County, AZ, be assured that if you need to rely upon a public defender for a court defense, you will likely get good representation.
Speaking of the attorneys, we are making some nice headway on adding more attorneys to the Network’s listing of affi liates, too. We now have affiliated attorneys in over half the states, which I feel is making some real progress. Of course, the attorney issue is still a hot button, and I am not going to give up on my goal of attorneys in every state of the union, each major metropolitan area of the country, and each local county bar association. Lately, we have had some referrals from some of our members that immediately returned a positive response, but it is also frustrating that some attorneys just can’t be bothered to even respond with a “yes” or “no.”
The Network has placed a booth at the last two NRA annual meetings, the most recent held last month in Charlotte, N.C. To get to this meeting, Marty and I started out in Portland and Seattle, respectively, which identifies our cross-country travel obligation. We met in Chicago for the last leg of our journey and arrived in Charlotte together; except our checked bags didn’t arrive with us. We were assured that the delayed bags would arrive “on the next flight.” At 1:00 a.m., we got a call from the front desk that our bags and items had arrived from the airport. What did I learn here? Not much, but I know for sure that I probably will never travel with, declare and check my most favorite, off-the-wall, engraved 1911-style family heirloom. Frankly, I’ve done a lot of U.S. and international travel and I’ve had few lost or delayed baggage episodes. But when it happens, it attracts your attention. I should point out that my return flight via Chicago O’Hare was uneventful, on-time and all my checked bags were on the baggage claim carousel at my destination.
Charlotte, North Carolina is bigger than many might realize - the 18th largest U.S. city - with tall buildings in its city center and the newly opened NASCAR Hall of Fame across the street from the convention center. Marty and I saw a couple signs declaring “no weapons allowed” at a few buildings, but everyone we encountered displayed the expected southern hospitality. I was approached by just one individual asking for a handout, compared to the dozen or so that might be experienced during the same sidewalk time in other large cities.
The day before the NRA meeting we attended Para USA’s Day at the Range, which gave us a chance to shoot Para’s 1911s and the Tactical Target Rifle. As you may know, the company moved from Toronto to the Charlotte area last year and has consolidated its operations in Pineville, a suburb of Charlotte. The range event was held at the Charlotte Rifle & Pistol Club located in the rolling hills south of the city. Para staff went all-out to make this an enjoyable experience. I spent most of my time getting to know the various 1911 models in .45 ACP and 9mm – single stack, double stack, full-size, mid-size, compact, single-action, and light double action (LDA). Para staff kept passing filled magazines and we kept shooting. Being a 1911 fan, I compared the various sizes and found I liked just about everything, including the double stack, which, as you might expect, has a fairly wide grip. The double stack might not become my favorite carry gun, but I could see using one for a day at the range or in a class – holding 14 rounds, it would certainly reduce the need to refill magazines during a class. The light double action (LDA) trigger has a smooth, consistent stroke that makes it possible to prep the trigger before the sight picture is finalized, much like a revolver. After the range time, we toured the production facility and headquarters.
The NRA meeting started on Friday with good traffic and friendly NRA members visiting our booth throughout the weekend. We had a few Network members stop by to say hello; it’s always nice to put a face with a name on a roster. New member recruitment went well and we also picked up a few attorneys and instructors to add to the Network’s affiliate lists. I’m sure some who picked up the Network literature will review it after they return home, visit the web site and decide to join.
We were busy in the booth, which is what we wanted. Some visitors asked about the Network, listened to our summary and signed up; a few gave us blank stares. Obviously, those with the blank stares have yet to understand the Network’s role of supporting the legally armed citizen. Marty conducted two interviews, one with Tom Gresham for his live broadcast (http://www.guntalk.com/site. php?pageID=15&newsID=127 ) and one with NRA News, the NRA-sponsored news broadcast presented on the Internet and satellite radio each evening via Cam & Company.
I visited a number of booths and the contacts to discuss corporate support for the Foundation went well. We met some old friends and began relationships with several new companies.
Always in the planning mode, while still in Charlotte, we began looking ahead to the 2011 NRA meeting in Pittsburg. Because we have a symbiotic relationship with the US Concealed Carry Association, we have agreed to create a joint booth at the NRA meeting next year. For those of you in or near Pittsburg, please put April 29-May 1 on your 2011 calendar and attend the meeting.
The first item for the 2010 auction, mentioned last month in this column, will be posted on GunBroker.com in a few days. We’ll send an announcement to Network members so they get first chance at this great item. Please watch for the announcement email.
We are delighted that, with the support of our affiliated attorney members, we can continue this column designed to introduce our members to our affiliated attorneys. Our goal with this column is to demystify aspects of the legal system for our readers.
Many Network members have reported having trouble finding an attorney with whom to consult in preparation against the possibility of having to use a gun in self defense.
Attorneys who are not affiliated with the Network seem puzzled that anyone would want to discuss matters like the law and what to expect from police and the courts in advance, and they say things like, “What? Are you planning to shoot someone?” or they decline to meet with the gun owner because they are busy with more pressing cases.
Hoping that practicing attorneys could give us some insight into this frustrating problem, we posed the question below to the Network Affiliated Attorneys and immediately received so many answers that this column is a continuation from our May journal.
How can our members go about finding and developing a relationship with a good lawyer in areas where the Network does not yet have an affiliated attorney?
Jon H. Gutmacher, Esq.
200 N Thornton Ave., Orlando, FL
407-650-0770 – http://www.floridafirearmslaw.com/
As an attorney who gets many such inquiries, let me say that it IS unusual to have someone call you beforehand. As an attorney, you are busy with “actual cases,” not possible ones and these type calls are generally a bother and waste of time for the attorney. You can’t quote a fee. You don’t know if you will have other commitments. And, to instruct someone on the law for possible future events is akin to pure stupidity unless you’re giving a seminar. The best a citizen can expect in such a situation is that the attorney will be polite, and tell you that if anything does happen, call them.
I think the best way of finding an attorney is asking another attorney for a referral in the specific area, asking at your local gun store or range if they know someone or know an attorney who is a shooter, or as a last resort, calling the NRA-ILA for a name. That doesn’t guarantee the attorney will really know their stuff, but at least they’re a gun owner, and have shown enough interest to be listed. Never, ever, under any circumstance hire someone who isn’t themselves a gun owner, in a self-defense situation. They cannot do the same job as someone who is.
Law Offices of Anthony J. Fabian, PC
510 Wilcox St., Suite C, Castle Rock, CO 80104
Here’s what I recommend:
(Full disclosure: I’m president of the Colorado State Shooting Association, the official state association of the NRA). That said, I recommend they call their official NRA state association. These groups deal with these types of questions frequently and are usually in a position to identify pro-gun lawyers. NRA-ILA EVCs (election volunteer coordinator) are pretty knowledgeable about pro-gun advocates in their districts and could be a possible source.
Talk to friends, family, etc. who are shooters/gun owners and see if they have ever used a criminal defense attorney and if they liked the one they used. That’s the best lead for a good attorney. I would specifically concentrate on my local gun club. I’m sure they can find someone who can recommend a good lawyer.
If that doesn’t work, try your local gun store. I’m not talking about “big-box” stores, but the traditional, local gun shop and/or gunsmith. I bet they have good leads on gunfriendly lawyers. Dealers at gun shows should also be a good source. If you are still coming up short, do an Internet search specifically looking for lawyers who defend gun/ weapons crimes.
Laurence Erickson Walker
Gordon & Rees LLP
601 SW 2nd Ave., Ste 2300, Portland, OR 97204
I can both empathize and sympathize with the frustration. Furthermore, it is indeed a real problem. I took a tactical handgun class this past weekend, and two of the students who are Network members both expressed to me their desire to reach out and find an attorney they could establish a relationship with to answer such questions. As the Portland, Oregon Network attorney, I gave both students my business card and told them to call me anytime. I told them both that I would be happy to answer their questions, or direct them to attorneys in their geographic area who might better be able.
The tough part of it is that we as attorneys sometimes miss the trees for the forest. By that I mean, in my role with Gordon & Rees, I bill in six-minute increments. So, calls and questions from my own mother often don’t get answered! If there is not an immediate emergency or need, we as attorneys (in general) often just don’t have the time to sit down and discuss these matters in the normal course of the day.
That being said, I understand the fear and uncertainty that exists in the minds of many of the members who have legit questions, and as such I want to be a resource. Given that, I think there may be a few options. First, the legal world is far smaller then one would think. For instance, I can immediately think of a whole slew of attorneys who would be in a position to lend their thoughts on these matters, but that is because I know them, not because there is a clearinghouse of named attorneys out there who are knowledgeable on these issues. With that in mind, if a member has a question, they should feel free to call any of the Network attorneys, and get some possible referrals.
Second, it might be useful to have an even more expanded monthly question and answer session on the Network website to answer more immediate or pressing questions. Third, both Oregon and Washington’s bar websites have referral sections that can be used to find certain attorneys (www.osbar.org, www.wsba.org).
Again, keep in mind that non-Network associated attorneys often just do not have the time to field phone calls from curious and concerned members. Keep in mind as well, that those attorneys with the most inherent knowledge of these issues are felony prosecutors and pretty darn experienced criminal defense folks, both of whom see things in a very different light.
All this being said, as a Network attorney, I am happy to talk to folks and field questions, and I think the other Network attorneys would agree. Though it does not solve the inherent problem, letting members know that we are a resource and are available is perhaps the first step.
Penny S. Dean
Attorney and Counselor at Law
59 Warren Street, Concord, NH 03301-3951
Simple–ask around at the gun club and gun organizations for an attorney. I can tell you, I belong to four shooting clubs and the guys later laughed when they were spending forever looking for a pro-gun attorney (thinking, why give money to someone who didn’t believe as they did) and finally someone said, “Hey, Penny’s an attorney,” as, after all, they think of me as just a fellow shooter. Tell these people to ask friends, family, ask other lawyers and (in NH and elsewhere) other lawyers will tell you, “Call Penny.”
M. Reed Martz
Freeland Shull, PLLC
405 Galleria Lane, Ste C,
P O Box 2249, Oxford, MS 38655-2249
I am honored and encouraged when armed citizens seek me out before any services are needed. I try to make myself known and available to citizens through posting on state-specific gun forums and active involvement on local issues. I also attend as many gun club shoots and meetings, as well as take as many gun courses, as my schedule and marketing budget allows.
Furthermore, I am, of course, an Affiliated Attorney with the ACLDN and other niche organizations. If a citizen were interested in locating an attorney who shares our common interest, I would recommend he start with these resources and ask for referrals from other gun owners and club members. There are certainly enough attorneys with suffi cient marketing prowess to recognize a potential client and referral source when he sees one, that he would not put off an interested citizen.
Patrick Buckley, Esq.
Law Offices of J. Patrick Buckley III
1342 Colonial Blvd., Ste 60, Ft. Myers, FL
239-278-7700 – http://www.BuckleyEsq.com
If someone is looking for a gun-friendly lawyer, or an attorney versed in self-defense and fi rearms law, I recommend the Internet. There are many Internet forums that focus on concealed carry, self defense and fi rearms. In some cases these forums are state specifi c. The people on these forums are very helpful and willing to share their experiences, insights, and referrals.
A lawyer is one of the most trusted and valuable advisors a person can have, and fi nding one that meets someone’s personal and professional requirements can be time consuming. A referral from another forum member can assist in narrowing the fi eld of prospects, and can come with fi rst hand testimonials of what that lawyer had done well for someone.
Also available on the Internet is The Shooters’ Bar. Located at www.theshootersbar.org, this website can serve as a great starting point for someone looking for a lawyer. The information is available by state.
Debbe von Blumenstein
Attorney at Law
154 SW Oak Street, Dallas, OR 97338
Tough question especially since cloning has not yet been perfected!
I would start by contacting trainers and ask if any of them know attorneys who have also taken firearms training. Now, with that said, there are attorneys who do take training but may not practice in criminal defense. In that case, I think such an attorney might meet with them and be able to be ready to initially represent them in the worstcase scenario while they try to secure a criminal defense trial attorney. Also, such an attorney may know other attorneys who would have the skill and background to represent the person and be able to make a referral. A referral may smooth the way for the awkward initial phone call of trying to explain why one wants to meet the attorney before something bad has happened.
Next, would be to set an appointment with a very good trial attorney (usually known by representation in one’s community and/or watching news reports) who would be able to get up to speed on fi rearms issues because of their experience. You defi nitely want a fi ghter who does lots of trials.
We appreciate the contributions our affi liated attorneys make to the Network, including their interesting responses to questions posed in this column. Contact information for our Network affi liated attorneys is linked at the Members page at www.armedcitizensnetwork.org.
One of the Network’s great strengths is its affiliation with firearms instructors and attorneys. With the goal of introducing more of these professionals to Network members, in this edition, we are delighted to continue the Question of the Month feature with this question:
As an instructor, what do you do to keep your skills and your knowledge sharp and current and how does your own study, training, practice and professional development efforts reflect in the classes that you teach?
2611 S. Mendenhall Rd., Memphis, TN
901-370-5600 - www.Rangemaster.com
I believe it is absolutely critical for instructors to take training as a student on an on-going basis. Too many schools/programs become stale and “in-bred” by only being exposed to “the way we’ve always done it here.” For this reason, all my staff and I take as many training opportunities each year as our schedules will allow.
For example, in 2006 I took the five-day NRA Law Enforcement Tactical Shooting School, and in 2009 I retook the five-day NRA Law Enforcement Handgun/Shotgun Instructor School. I had last taken the NRA LE Instructor School in 1986, and wanted to see how it had evolved (quite a bit). In addition, earlier this year I audited Todd Green’s Aim Fast, Hit Fast course, and in 2009 I took Claude Werner’s excellent Snub Revolver Skills Course. I picked up something of value in every single one of these courses.
I attend the National Tactical Invitational (NTI) in Harrisburg, PA, about two out of every three years. This is a great learning and self-testing event, and I always pick up some new tricks there. I also host Rangemaster’s annual Tactical Conference, which was conducted in Tulsa, OK, this year at the United States Shooting Academy. At the Tactical Conference, we had twenty of the best trainers in the U.S., including Massad Ayoob, Marty Hayes, Rob Pincus, and many others. In addition to sitting in on other instructors’ training segments, we had a dinner for the trainers one night of the event. After dinner, all twenty trainers engaged in a stimulating discussion, which allowed for scholarly debate among active professional trainers, something we all benefit from.
If you are involved in training, either as an instructor or a student, I urge you to seek a broader range of exposure and experience. There are many of us in the defensive training business that have pieces of the puzzle, but no one has ALL the pieces.
Gun For Hire, LLC
Anthony P. Colandro
75 Rutgers St., 2nd Fl., Belleville, NJ
888-486-3674 – http://www.gunforhire.com
As a professional full time instructor I sometimes realize that it has been weeks since I last fired my handgun. I find that I must force myself to go to the range and hone my own skills. While my favorite caliber is the .45 ACP, when I teach I use a 9mm for cost and recoil reasons. The 9mm is also a great excuse for me to shoot with my student while instructing, which in turn allows me to get more quality range time in for myself.
When I set up a new course of fire for my urban tactical courses, I will personally shoot the course of fire (alone) at slow speed and then at full speed and make notes accordingly so that I can relate to my students the trials and tribulations of each course of fire.
One other important aspect is to keep reading everything available on the subject of firearms as well as keeping abreast of all of the new models that are now available. If I had my way I would only teach from the perspective of a cocked and locked 1911 and a J-framed snubby. Unfortunately for me, my students usually have more “modern” firearms and I need to be on my game regarding their equipment choices.
801 Dellwood St., Box 171, Bryan, TX
I do all of the following:
1) Attend at least one course taught by another instructor every year, typically on a topic or technique that I consider a weakness. For example this spring I took a twoday course on snub-nosed revolver shooting from Claude Werner.
2) Attend the Polite Society conference. This gives me a chance to learn from multiple instructors.
3) Compete in at least one regional, state or national level match. After many years of IPSC and Steel Challenge competition, the last few years I have been shooting the Sportsman’s Team Challenge, which requires sporting clays shotgun skill, precision rifle skill, and action pistol skill. That provided incentive to spend time developing traditional rifle and shotgun skills.
Safe Direction®/True Way Tactics
P O Box 1249, Addison, IL
877-357-4570 – www.safedirection.com
I compete at local IPSC and IDPA matches as my schedule allows. Nothing compares to “trigger time” on the clock with others watching. I use “tactics,” 360 degree scans, etc. Yes, it frustrates the range officers and safety officers, but I’m there to improve my survival skills, not to have the best score. I constantly have people come up to me to “give me tips” on how I could go faster if I would only expose myself more, etc., etc. That’s not my goal!
I put a personal emphasis on tactics and precision. Yes, I usually finish in the top 20 percent and am usually the one with the fewest points down. Matches also offer a good opportunity to try out new gear. Sometimes, it’s hard to put my ego aside and not “game it,” but those are the exceptions, not the rule. Matches offer scenarios (even though a number of them are really dumb) not set up by me and I run them “cold” (no walk through). I also watch the other competitors for gear preferences and training trends that may have some practical usefulness to everyday defensive training and use.
The above plus the timer and witnesses offer a different level of stress that is not easily reproduced training on your own. Yes, concessions have to be made to participate (cold range, etc.), but I try to get the most from the experience from a training point of view. So I use matches as best I can and how I want to use them.
Staying in contact with my colleagues in law enforcement and those that are full-time trainers is very beneficial.
I attended the 2010 Polite Society in Tulsa, OK as well as seminars at ITOA and ILEETA as time permitted. I attend and participate in a number of law enforcement based trade conferences. I also try to read a number of the major industry (LE and non-LE) publications and log on to several web-based forums.
Also, training with and setting up training programs with local police departments several times a year gets you instant feedback from the officers that are actually on the street.
In my opinion, if your training program stays the same for three or four years, you need to get out and train with others as you are probably stagnate and need to get your personal and professional “map” updated.
Every time I instruct, I learn something new, even if it’s how not to do something. It’s important to maintain an open mind when working with each student’s unique skill set. Additionally, I try to be a student as often as I can under others in our field. Professional development and improvement is a process and it happens best in a partnership. __________
This question generated so many responses that we will continue the topic into the July edition of this journal. We appreciate the contributions of our affiliated instructors of which this shared wisdom is only one part. We hope our members will contact these professionals when they need training, and refer friends and family members to them, as well.
Massad Ayoob’s Greatest Handguns of the World
286 8 1/2x 11 pages, color, illustrated $27.99 -
ISBN 978-1-4402-0825-6 Published by Gun Digest Books, 700 E. State St., Iola, WI 54990 800-258-0929 – www.gundigestbooks.com
Reviewed by Gila Hayes
In a society that is obsessed with the immediate, it is refreshing to read a book that gives us historic perspective on one aspect of being an armed citizen – a perspective on the development of the handguns we use and have used in times past. Who better to infuse this history with interesting vignettes of personal experience and tidbits of little-known fact than Massad Ayoob?
Greatest Handguns of the World, published by the Gun Digest folks, came out at the first of this year, and since I’ve been enjoying browsing through its pages, I thought our readers might like a short review of this interesting book, as well. Some of the chapters are reworked from articles originally distributed in the now defunct periodical The Accurate Rifle, and the folks at Gun Digest have done their usual artistic best. The result is a coffee table book that is full of beautiful and interesting photos.
I knew I was in for a good read when page 12 sent me to the dictionary to figure out what kind of hand would be called “Brobdingnagian.” (Hint: think Jonathan Swift) Ayoob is at his best in this book: blending his encyclopedic knowledge with quips, the thoughts of some of the great handgunners of our time and before, and his own colorful observations.
Chapter one starts with–what else? The 1911. In it, the author defines ergonomic factors including the “angle of barrel to grip” and low bore axis that make a 1911 feel so right in the hand. It is illustrated with 1911s of all sorts, showing flat and arched main spring housings, short triggers, long triggers and even some with extended sight rails that put one in mind of the narwhal’s tusk. A photo of the ill-fated Colt Double Eagle joins a gallery of pictures of beautiful engraved Government models, and curiosities like Cylinder & Slide’s Pocket Model.
In an educational section, the author defines what happened to the 1911’s “legendary reliability” and how to bring the old warhorse back in line. Full length guide rods, spring weight, magazines, ammunition profile, lubrication, grips and their role in reliability are all part of this chapter, as are suggestions for improving accuracy.
Other notable Colts occupy the following pages– Colt’s Lightweight Commander, their National Match pistol, the Detective Special (a sad tale, chronicling the waning of a great American gun maker), and the Woodsman give plenty more opportunities to learn from Ayoob’s knowledge and memories about each model. Each chapter is packed with detail, but I’ll desist, because you’ll want to read and savor it for yourself.
After 100 pages of charming reading about the Colt’s legacy, the author arrives at 1984, and we are propelled from a cocoon of satiny blued steel into a world of polymer. “The Glock pistol has profoundly changed the handgun industry,” Ayoob writes by way of introduction. How the ATF’s decision to categorize the Glock auto pistol as double action only is an interesting vignette and gives a glimpse into handgun selection by major police departments, one factor responsible for the gun’s incredible popularity.
From Glocks, we continue on down the polymer path with a chapter about Heckler and Koch, with a few detours into the arms maker’s history and the unique P7 series. The author moves back in time for the next chapter, an informative article about a beloved Hi-Standard revolver. Interestingly, in the 1960s, this pistol indulged in a short-lived flirtation with colored frames, during which it was available in gold, turquoise and pink finishes about which Ayoob has a few amusing comments. We continue back in time yet again in Chapter 11, with a gun that while no great joy to shoot, certainly has and continues to influence handgun design, the Luger pistol.
Appropriately, the topic of the next chapter, the Ruger .22 auto pistol, mimics some of the contours of the famous Luger. In this chapter, as in earlier ones, the reader marvels at reports of guns priced to sell at $37.50 in the 1950s.
On more practical realities, Ayoob offers techniques to overcome two of the common complaints about the Ruger .22s, loading the magazine and efficiently using the butt heel magazine release. Unfortunately, he does not have the same slick advice for the more predominant complaint – you just can’t get the damned things back together if you field strip them for cleaning and maintenance! The center fire Rugers get the next chapter, and then the rest of the book tells the story of Smith & Wesson.
Appropriately the pages about Smith & Wesson begin with a history lesson about some of the most beloved revolvers ever. In it, we trace the classics from Springfield, Mass., starting with the year 1899 and the Hand Ejector Model, moving on to World War I and II and on to revolvers that earned their place in the holsters of foreign and domestic police forces, as well as garnering a loyal following among civilian shooting enthusiasts. And Ayoob is dropping names: Askins, Jordan, Keith, Gaylord, Cooper, McGivern, Miculek, and their likes and dislikes all play a role in fleshing out the history.
Though we think of Ayoob as a defense shooting expert, he includes a good number of .22 caliber handguns in this book, including a chapter on Smith & Wesson K-22 revolvers. Next, he pays homage to my favorite among the Smith wheelguns, the Chiefs Specials, mentioning many variants including Bodyguards, Centennials, and Airweights. He gives a good run down on options and modifications for the Chiefs, including grips, plus outlining different ammunition choices and how certain models enhance a strong grip for speed shooting with high performance ammunition.
Another favorite revolver, the Combat Magnum takes the stage in the next chapter. In it, the author cites both the praise of famous personages from the shooting world, as well as concerns the smaller framed magnum created. He quotes a 1960 statement by fast draw champion Chic Gaylord, who wrote, “The current trend toward reducing the weight and barrel length of magnums seems to me ill-advised. A light gun of heavy caliber has far too much recoil for accuracy…” What would that legendary shooter think of the super-light weight alloy framed revolvers of today? Later Ayoob explains, “The sharp recoil of the Combat Mag was all that Gaylord warned about, but modern shooting techniques make the gun manageable even with Magnum loads.” Ever the instructor, he describes techniques to control recoil, as well as grip and other modifications that overcome recoil’s distractions.
The following chapters detail the lives and times of several more Smith & Wesson .357s, the Models 27 and 28. While telling the guns’ stories in the words and histories of the men who made them famous, the author adds details about the .357 Magnum cartridge, too.
A chapter lauding the big S&W .44 Magnum appropriately rounds out the author’s review of unforgettable Smith & Wesson revolvers. Whether used by big game hunters, IPSC champions, famous instructors, or actors, the Model 29 is the epitome of the big bore revolver. Technique to control this powerful handgun is discussed, and in classic Ayoob prose, the lesson begins with a quote from Charlie Askins’ book, Unrepentant Sinner, which describes what is thought to be the first killing done with a .44 Magnum, occurring when Askins was ambushed by an armed guerrilla in Vietnam. Steps to smooth sharp edges, grip replacement suggestions, and more wisdom will help .44 Magnum fans enjoy shooting their own .44s better.
The book closes with the history of the ground breaking Smith & Wesson Model 39, and while that model was never a great favorite of mine, its place in history is assured. Early on, the light alloy frame and compact lines set it apart from heavier bulkier semi-automatic pistols common at the time of its genesis. When it went high capacity, becoming the Model 59, it represented Smith & Wesson’s first-ever gun fed by a double column magazine. Its influence would continue all the way through what we called the 3rd Generation Smith & Wessons, though on these, the graceful curves gave way to sharp angles.
No doubt other collectors and historians might choose slightly different pistols if composing their own list of greatest handguns. Whether or not these are really the “greatest handguns of the world,” Ayoob has brought together an interesting collection of facts and histories, replete with excellent illustrations. Anyone who loves handguns and has an interest in how great products get started will enjoy this Gun Digest book.
Not So Funny
Have you heard the joke about the Asian, the Mexican and the woman who are drinking in a Texas bar? This morning I deleted three email versions of that joke I received from three different senders who emailed it to me over the weekend. Let me add that I could not delete it from my inbox quickly enough, and no, unlike the admonition at the end of one of those emails, I will not be forwarding it to someone who needs a smile!
Over the past few years, I’ve been on the receiving end of what I consider an alarming trend. At first, I didn’t think much of it, and may have even cracked a grimly ironic smile now and then when receiving forwarded emails making a denigrating comparison or joking about the fictitious demise of a particularly abhorrent political figure, or smirked at a recycled joke about how to reduce the numbers of illegal immigrants, journalists, racial minorities, sex offenders, agents of the government, animal rights activists, homosexuals, the poor, the rich, feminists, rednecks, child abusers, people from the Middle East, meth-addicts and pot-heads, the police, atheists, liberals, Bible-thumpers, anti-war protesters, the French, environmentalists, gun ban advocates or any other unpopular population. Usually, I just hit “delete” and get back to work.
No doubt about it, doing business or even maintaining private email correspondence in the age of the Internet is a time-consuming proposition. Instead of writing or calling to say, “Are you doing OK? I haven’t heard from you for a while,” friends and acquaintances forward jokes and email essays about the imminent fall of civilization and such topics. Slowing that trend is beyond my powers, but how I participate in it is within my control.
“Come on, Gila, what’s the harm in forwarding jokes? Don’t you want to know how much illegal immigration harms America?” some will ask. And really, my protests are not likely to stem the flood of forwarded messages. Still, I think we need to exercise great caution in the kinds of jokes we tell our friends, the sorts of email humor we forward, the ideas we endorse, and even the titles of books and magazines we have on our bookshelves. “Hey! What I do in private is my own business!” comes the aggrieved retort, “What about the 4th Amendment?”
You may hope that your private communications will remain private, but don’t you think your expectation of privacy may be substantially diminished by investigations mounted by police and private investigators following a self-defense use of force? If you are so unfortunate as to be violently attacked by a member of one of those classes of people your latest lunch room joke or email distribution impugned, have you any doubt that the opposite of the race card – racist card – will figure prominently in attempts to paint you as hate-filled and violent? Don’t you think the suggestion that you found the idea of killing an illegal immigrant amusing could damage your reputation, if, heaven forbid, you were attacked and had to defend yourself against someone who was not legally in the U.S.?
It is hard to guess to what extreme our politics and prejudices might be exaggerated in an attempt to misrepresent a last-resort defensive shooting as result of a hatefilled agenda. In these matters, the pessimist, expecting to be abused takes the safer route, while the optimist may well discover that their sunny outlook blinded them to the extremes to which a prosecutor or plaintiff’s attorney might go to misrepresent them. I’ll err on the side of caution.