Including... • What Does Your Network Do For You? • Massad Ayoob on Traveling While Armed • Attorney Commentary on Oklahoma Murder Conviction • Network Affiliated Attorneys Explain Home Defense Laws
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What Does Your Network Do For You?
The following departs from our normal lead articles, which usually discuss topics of interest regarding the use of deadly force in self defense, and instead, this article summarizes the structure, programs and policies of the Armed Citizens’ Legal Defense Network, Inc. It is intended to educate and inform not only our current members but also prospective members about the Network and its mission. This article is comprised of contributions from all three directors of the Armed Citizens’ Legal Defense Network, Inc., who are Marty Hayes, President, J. Vincent Shuck, Vice President and Gila Hayes, Operations Manager. For ease of reading, we’ll switch now to writing as if we were simply talking with you, the reader.
Four years ago, we three met informally to explore an idea that Marty Hayes had developed during his final year of law school. A former police officer, court-recognized expert witness and law school graduate, he knew all too well how easily a legitimate act of self defense could be mistaken for a crime, dragging into court intended victims who fought back. What could be done so armed citizens wouldn’t have to choose between defending themselves or their families and financial hardship or ruin?
At the time, Vincent Shuck was due to retire from a career as an organization manager. At that meeting, we explored the idea of forming an organization for armed citizens, envisioning a membership group designed to help members protect their legal rights after a self-defense incident. If members were unmeritoriously prosecuted, the association we envisioned would assist in a variety of ways.
In January of 2008, we formed the Network and went to work to develop membership and resources. Since placing our names on the membership roll as the first three members, the Network has grown from what we thought was a good idea into a strong, vital organization of over 4,100 armed citizens (as of July 1, 2011). Our members are dedicated to protecting their rights and defending their lawful use of deadly force in self defense.
When we started the Network, we knew of only one self-defense insurance plan, the NRA endorsed plan by Lockton Risk. The insurance only reimbursed legal costs AFTER an acquittal. Unfortunately, in order to be acquitted once criminal charges are proffered, you need a good legal team, which costs thousands of dollars paid upfront. Most people are not in a position to raise $50,000 to $100,000 to pay for legal costs.
Recognizing this, we set dues at $85 per year, with 20% going into a separate Legal Defense Fund, to be held in savings in the case a member needed money for a legal fight. After 24 months of operation, we were convinced we could operate the Network on less money, so we increased that contribution to 25 percent of member dues, and as of this date, we have raised over $130,000, which is held in a separate bank account, waiting to be requested by a member or members. At our current rate of growth, we expect to exceed a quarter million dollars by the end of 2012.
From the beginning, we recognized that none of the Network’s principals or members wanted Network funds used to help defend criminal acts, so we added a layer of protection to the grant process. President Marty Hayes recruited several colleagues from firearms instruction– Massad Ayoob, John Farnam, Tom Givens and the late Jim Cirillo–asking if they would serve as the watchful eyes overseeing the fund. After Cirillo’s untimely death, Dennis Tueller graciously agreed to serve on this advisory board. Somewhat later, Minnesota attorney James Fleming accepted appointment to the board, assuaging our concern that the advisory board needed a practicing attorney lending his advice.
The Network’s advisory board includes some of the most prominent experts in the field of self defense law. They often serve as expert witnesses in self-defense cases and have a long and successful history of helping legally armed citizens defend their actions. The Network member’s attorney can call upon these individuals for input during the initial case review phase, trial preparation or during the trial, with the expense of using these experts borne as part of the financial support granted to the member by the Network’s Legal Defense Fund.
In 2008, we established a Washington state non-profit foundation to hold and manage the Legal Defense Fund while we sought non-profit charitable status through the IRS. After years of effort, in the spring of 2011 we determined it was impossible unless we opened access to grants from our foundation to non-members. We find this unacceptable, since Network members contribute to the Legal Defense Fund through their dues and so members should be the exclusive beneficiaries of the Fund’s grants. With a nonprofit foundation unworkable, we established a separate Legal Defense Fund bank account in its place. This step insures that we spend Legal Defense Fund money only in defense of Network members.
Here’s how it works: if a member is involved in a selfdefense shooting, they can request a grant of assistance to help defray these legal costs from the advisory board of the Legal Defense Fund. The Fund is established to help protect Network members since their money created the fund. To receive a grant from the Fund, the member’s attorney contacts Network President Marty Hayes, and provides the police reports, witness statements and any other discoverable evidence from the case for review by the advisory board. A funding decision will be made from this information.
Before a member’s case reaches this point, however, earlier protections would have been extended. After you have been forced to defend yourself, we know that it is critical to have legal representation just as fast as humanly possible. That is why we make available an immediate transfer of $5,000 to $10,000 (depending on the nature of the incident) from the Legal Defense Fund paid to the member’s attorney. The funds are forwarded as a deposit against attorney fees and are paid directly to the member’s attorney, not the member. The purpose of this initial deposit against fees is to get the attorney involved immediately, and so that attorney has funding to immediately initiate a separate investigation of the incident. This is absolutely critical, because witness accounts can vary widely and can change over time.
New in 2011: Benefits Extended to Non-Shooting Self Defense
In the beginning, we formed the Network to help members defend against unmeritorious prosecutions in use of deadly force cases. We concurrently recognized the many times people are prosecuted after they use other means to defend themselves. In 2011, we decided to extend our assistance to members in cases where deadly force was not used, but some lesser degree of force. This could include threatening to use deadly force but not pulling the trigger, along with use of pepper spray or some other intermediate force option.
The Network now extends assistance to members using a knife for self defense. Those who routinely carry knives need to be very cautious about this form of self defense, however. Network President Marty Hayes explains, “Most knife use training programs that I have seen or participated in are centered around killing blows, immediately disabling and inflicting lethal injuries. And, while this may be justified against someone equally armed (another guy with a knife) or superiorly armed (a gun), I can almost guarantee that if you use a knife in the manner under which most people train, that you will be arrested, prosecuted and likely convicted unless you were facing a clearly deadly threat.”
For justifiable self-defense actions, however, the Network will not differentiate between various types of lawful use of force, be the weapon a gun or a knife. “If you are looking into other programs out there, and this area is a concern, be sure to find out if knife defense is addressed by the other program.” Hayes urges.
Often armed citizens face difficulties finding an attorney who recognizes that defending self defense is substantially different than a crime involving use of force. The Network is affiliated with nearly 200 practicing attorneys who are also full Network members. These professionals have agreed to assist our members in the aftermath of a self-defense incident. The Network is affiliated with attorneys licensed to practice in 44 of the 50 states plus D.C., and we are continuously working to expand this list to cover all states.
At the same time, we realize that some states are quite large, and a Network affiliated attorney may be located an unrealistic distance from some of our members. That’s why on March 1, 2010, we were so pleased to announce our Boots on the Ground program. As soon as reasonable after receiving a call for assistance notifying us that a member has been involved in a self-defense incident, Network President Marty Hayes or a Network representative he designates will travel to the member’s location to get the member’s legal representation arranged. Efforts include contacting and hiring a local attorney on behalf of the member and making sure an independent investigation is initiated.
To instigate a Boots on the Ground response, Network members are provided a private emergency telephone number that rings directly to Network President Marty Hayes. They are instructed that it is for use only in an after office hours emergency, and receive the assurance that the phone is constantly on and with Hayes at all times. The emergency phone is for use by members who do not have an attorney they can call or who have traveled away from their home area and thus don’t have access to their attorney. Members are strongly urged to have an attorney they can call, since their communications to their attorney enjoy attorney-client privilege. Implementing the Boots on the Ground protections is not the preferred post-incident action, but it provides fallback assurance to members for whom calling their own attorney after acting in self defense is, for whatever reason, impractical.
Network members ARE NOT ALONE. This is one of the biggest benefits of being a Network member. To date, we have not needed to implement the Boots on the Ground program, but the Boots on the Ground phone is constantly on and with President Marty Hayes at all times. Help is simply a phone call away. A long-term goal is having affiliated attorneys within reasonable driving distance of every member in the United States, eventually making the Boots on the Ground phone unnecessary.
We know that gun owners who have the right education often avoid legal trouble in the first place. To date, the Network has produced five educational DVDs and published two booklets teaching about the legalities of use of deadly force in self defense, along with dealing with the aftermath of use of deadly force. We are currently working on our sixth DVD, and plan to produce a seventh by the end of the year. The educational DVDs are provided to Network members only, with three core-concept DVDs sent to members during their first year of membership, and an additional DVD sent each year that they renew. Members buying multi-year memberships receive all of the DVDs produced to date as well as new DVDs as they are completed.
The Network’s booklets are made publicly available. One is an online publication detailing the defense of a self defense case in Arizona, and the second, a printed booklet we’ll talk about next.
From small acorns do great oaks grow – and that has been the case with the Network’s printed booklet What Every Gun Owner Needs to Know about Self Defense Law by Marty Hayes. First published as a 16-page booklet, and now up to 24 pages, it has turned into one of our most compelling educational outreaches.
The booklets are provided to armed citizens all across our nation by both our Network Affiliated Instructors, and our Network Affiliated Gun Shops and are available for individual order at https://armedcitizensnetwork.org/request-free-booklet. If you’d like some booklets to give away at your local gun club, please call, email or use the online form. This booklet educates armed citizens while providing exposure to the Network and is one of the primary reasons for the exponential growth of the Network. In addition, Network members have done a wonderful job of telling their shooting buddies, family members and other gun owners about the Network, sometimes even giving them a copy of the booklet to help them understand what the Network is all about.
What the Network is Not: We Are Not Insurance
So far we’ve discussed what the Network is and what we do. We hope this has been helpful. But, it is also important for the reader to know what the Network does NOT do.
We are not an insurance company, nor are we otherwise connected to an insurance company, and, finally, we have no intention of becoming a source for insurance. The use of deadly force for self defense is an intentional act, which insurance doesn’t cover. Just as you could not intentionally burn your house down, and then collect insurance money, the insurance industry cannot provide insurance coverage against an action you willingly undertake, as in using force to defend yourself. Further, the Network does not insure itself against claims from our members who request financial assistance from us after defending a self-defense court action.
We do not offer any such “coverage,” for several strongly-held reasons. First, if you are sued for wrongful death and there is a jury award, it is very likely that the award will greatly exceed the limits of the insurance policy. “While I have yet to see a million dollar self-defense insurance policy, wrongful death awards often well exceed that amount,” explains Marty Hayes. “So, what good is the insurance anyway?” he asks.
Next, having insurance will likely result in a law suit being filed to collect against the insurance policy, because of the accurate perception that the insurance company has deep pockets, something the private individual doesn’t. We don’t want to open our members up to that potential outcome, so we have avoided the insurance option. The Network further recognizes that others might have honest differences of opinion regarding this issue, and we will keep an open mind, and work with any insurance carrier for the benefit of the member, if shown that it is a safe and reasonable option that is indeed in the best interest of Network members.
We Are Not a Charity
The Network is NOT a charity. If you are not a member, then we will not use the funds in the member-generated Legal Defense Fund to assist you. This is one of the most painful aspects of what we do, because we get many requests for assistance from people who are in desperate need of legal assistance. Our hearts go out to them, but there is really nothing we can do for them while honoring our commitments to our Network members. The firearms and self defense industry has great need for such a program, but the Network is not that program.
We Do Not Make Attorney Referrals
We are also NOT an attorney referral service. We get phone calls and emails from many non-members wanting the name of a pro-gun attorney “just in case.” Responds Marty Hayes, “Well folks, sign up for the Network, let us educate you, and then you can also have access to our Network Affiliated Attorney list.” We have occasionally referred a caller to an attorney if they had a specific legal issue and we had an attorney close by who could help, but those referrals are primarily for the attorney’s benefit, because we appreciate our affiliated attorneys’ role in the Network and we want to see them prosper.
Finally, the Network is NOT everything to everybody, and it cannot solve everyone’s problems. We are exactly what we claim to be, nothing more: a selfhelp membership organization for armed citizens, focused on educating members about the use of deadly force in self-defense, along with providing a way for each member to contribute to a large fund, so if any of our members find themselves in legal jeopardy after a self-defense incident, they have access to some resources to help fight that.
Member dues are only $85 per year and even less for threeyear, ten-year and family memberships. That is 23 cents a day. And, for that meager price, we believe the Network is an excellent value and one that we are proud to make available to armed citizens.
Network facts at a glance…
The Network offers members several distinct advantages. These include:
• Successful management team with experience in the shooting and training industry, legal community and organizational management and membership benefits arenas
• Low annual membership expense
• Innovative mission focusing on the legitimate acts of the armed citizen
• Advisory board composed of prominent experts available to assist members
• Immediate help should a member require financial or legal assistance
• Benefits and assistance to cover non-shooting use of deadly force
• Attorney list composed of lawyers all across the nation who are also gun owners and members of the Network • Representatives who can travel to a member’s location to offer hands-on advice, family support and assistance
• Educational component designed to keep members out of legal jeopardy
• Affiliated instructor and gun shop cooperation
• Special member discounts on training and educational products
• Publications and services focusing on selfdefense issues
The Armed Traveler
At long last, summer is here, and Network members all across the country are traveling on vacations and summer trips to enjoy the scenery, history and recreational activities Americans enjoy all across our wonderful land. Accustomed to access to their firearms for protection of self and family, when armed citizens travel, they face concerns beyond how much gasoline is going to cost or whether their flight will arrive on time.
Our Network Advisory Board member Massad Ayoob travels more than anyone we know, so we sought his advice on traveling for the armed citizen. We caught up with Ayoob right after he had returned from giving expert testimony in a court case in New York City and he generously took time off to talk with us about the vicissitudes of traveling armed.
We switch now to an interview format to preserve the flavor of the conversation with this experienced traveler.
eJournal: When you travel by air, what precautions do you exercise to help the trip go smoothly?
Ayoob: The main thing is get to the airport at least an hour earlier than you would have without the gun in regular checked baggage. It is rare, but every now and then you’ll find somebody behind the counter who gets nervous and doesn’t know the rules and you have to wait for a supervisor to come and sort it all out. Things have gotten better under TSA.
eJournal: Do you really think with the TSA things are actually better now, better than before the TSA?
Ayoob: Yes, because before it was such a mish mash of security. Each airline had different regs. Some would allow seven pounds of ammo, others 11. Today, the 11 pounds of ammunition is pretty much universal; their agents tend to be better informed. Still, always be able to quote Federal Air Regulation 108.11. [Editor’s note: See also CFR Title 49, Volume 8, Sec. 1544.203 (f) if research on 108.11 fails to yield text of the regulation.)
eJournal: Do you carry a copy of the regulations with you, or do you just know that by memory?
Ayoob: I just burned it into my brain! If I get somebody at a little shuttle airport that thinks the [firearms] tag has to go on the outside of the bag, I just tell them that regulation. If you argue with them, they may send your luggage to Timbuktu, so I’ll say, “Well, gee, I used to think that, too, until your airline invoked Federal Air Regulation 108.11 which says the tag has to go on the inside. You and I and your airline are all liable if that bag is identified for theft because the tag was on the outside and it is stolen and somebody gets killed with it.” And that usually settles the argument right there. Always be polite with them!
I use a locking gun box with small padlocks on the inside of the handle. If you use a hard-sided suitcase locked on the outside, my reading is that you don’t have to lock the gun case, but I save the argument and just lock the gun case anyway.
eJournal: If the TSA wants to inspect it, how does the locked case work?
Ayoob: If TSA needs to inspect inside the locked case, they will call you. Usually, though, the gun is checked at the counter. When you put the tag in, put the tag in the box with the guns.
The airline personnel at the counter do have the option of checking to confirm the gun is unloaded. In the old days it was varied—half would check and half would not. Today, few will do it, but they do still have the option. If that happens, turn the suitcase, around so its blocked from public view, keep the muzzle down so no one gets crossed, as that absolutely freaks them, and just show empty chamber, empty magazine, and then it goes with the tag inside the case, and then lock the cases. I then wrap tape around each end of it mainly to tamper proof the keyholes because if you don’t have a combo lock, one Samsonite key will work in any Samsonite suitcase.
Also, haven’t you seen some poor bastard’s suitcase that sprung open and all his stuff is spread up and down the luggage carousel? The taping is one more thing to prevent that. The other reason I do it is that it looks so shabby, that I figure that if I get separated from my bag and it is laying out in the open somewhere, people are going to figure that someone so poor that they have to tape their suitcase together is not going to have anything worth stealing.
eJournal: Do you tape it shut at the check in counter, or after TSA inspects your bags?
Ayoob: That depends on the airport. Usually, I’ll ask to have it done after TSA checks it. For example, if you’re flying out of Portland, OR, you’re standing right there while TSA checks, just ask them to do it. In some of the smaller airports, they’ll take the bag at the counter and TSA will look at it later, so I tell them that my cell phone number is on the tag and TSA can call to get my keys anytime.
eJournal: Do you think TSA actually inspects inside the bags and cases these days?
Ayoob: Yes, I’m seeing that nearly every trip.
eJournal: When you arrive at your destination, how do you cope with the mishmash of laws regarding possessing and carrying firearms in what ever locale you end up in?
Ayoob: The best resource is www.handgunlaw.us. It is a good idea if going on a long drive to visit that website and check on every state you plan on passing through, read their State Statutes pages [found on the reciprocity page for each state] and download and print those for every state you’ll go through. Put the pages in a folder and keep that with the guns. As you guys well know, from the time as you spent as cops yourselves, unlike lawyers who have a legal library in their office, cops don’t have a legal library in their office, which is a patrol car. If you are able to show an officer a copy of their law, it saves them an hour’s hassle and having to call a supervisor.
eJournal: So you check the laws out before you ever leave home?
Ayoob: Yes! Now, there are also some places you should avoid. Avoid New York. For example, today, I flew out of La Guardia airport, so it is fresh in my mind. If I wasn’t a cop, I would have been busted. They call the Port Authority cops when you ask to check a handgun [in your luggage] and if you don’t have a New York permit to carry or some way to show that you’ve been to an NRA shooting match or training course, they can arrest, and in some airports, they are arresting.
eJournal: Even if you know the law and are in compliance, once at your destination, there may still be places where you cannot legally take that gun with you. What do you do to secure a gun?
Ayoob: [Chuckling] That’s another reason I carry something like a Glock that would be easy to replace! If you have to leave the gun behind in a hotel room, make sure that you’re in a hotel that has an individual safe in the room.
eJournal: What if we’re not flying or driving? Do you know if you can carry on trains or busses?
Ayoob: It is my understanding that carrying is totally illegal on Amtrak, even if you are legal to carry in that jurisdiction. You can have it in checked baggage; you have got to declare it.
Busses are kind of nebulous, I’m honestly not sure.
eJournal: Me neither; haven’t been on a Trailways or Greyhound bus since my youth. For long visits have you ever shipped a gun to the end location?
Ayoob: Well, you certainly can do that.
eJournal: How can someone without a Federal Firearms License ship a gun to their destination?
Ayoob: Without a FFL, you can only ship it to yourself. Be sure to tell the person receiving it for you, do NOT open this!
eJournal: Massad, this discussion has been very helpful. What other details should travelers be aware of that you and I have not discussed yet?
Ayoob: If checking ammunition when you fly, stay well under the 11-pound limit. It has to be in factory packaging where each individual cartridge is separated and the primer is separated. The bulk pack like the Winchester white box is a no-go and if they find any lose rounds rolling around, that is a big no-no.
Also, you don’t want to fly with a gun that you cannot afford to lose. In all these years, I’ve only had one suitcase stolen, but I’ve had a couple that were lost for several days and in 2005, one of my suitcases was not heard from for weeks when it was lost in that 10,000-bag screw up in Philadelphia by US Air.
I sweated that one because I was bringing some collectible guns down from New Hampshire to Florida. Usually I travel with something like a standard Glock, an M & P or something that doesn’t have sentimental value and that I can replace!
Finally, the old bullshit telling you to disassemble your gun and put different parts in separate suitcases is a crock, because the frame is the gun. They will find it under current routine x-ray of everything that goes through as checked baggage and you will be totally screwed.
eJournal: There’s so much bad advice out there!
Ayoob: [Laughing] Yes, there is! eJournal: Massad, thank you very much for sharing your knowledge and experiences with us on this topic, and thank you for your support of the Network!
Director of the Massad Ayoob Group, Ayoob frequently serves as an expert witness in trials where use of force or self-defense concerns are being argued. He has served as a part-time police officer in three departments and currently holds the rank of Captain in the Grantham, NH police department.
• Commercial airliner passengers are allowed under Federal Air Regulation 108.11 to transport unloaded firearms in checked luggage.
• The traveler tells the airlines counter clerk they are declaring an unloaded firearm in their checked luggage, and are given a small form (tag) to sign attesting that the firearm is unloaded.
• The signed form must by regulation be placed inside the case. See Ayoob’s additional suggestions for security inside checked luggage, for transporting ammunition and more.
Shipping Guns to Oneself
See the ATF’s website FAQs page at http://www.atf.gov/firearms/faq/unlicensed-persons.html#shipping-firearmsadditional
“Q: May a nonlicensee ship firearms interstate for his or her use in hunting or other lawful activity?
A:Yes. A person may ship a firearm to himself or herself in care of another person in the State where he or she intends to hunt or engage in any other lawful activity. The package should be addressed to the owner. Persons other than the owner should not open the package and take possession of the firearm".
Affiliated Attorney Question of the Month
Thanks to the generous help of our Network Affiliated Attorneys, in this column we introduce our members to our affiliated attorneys while demystifying aspects of the legal system for our readers. This month, a member asked for our attorneys’ thoughts on Castle Doctrine-type laws that define how far an armed citizen may go in defending against an intruder in the home. We received so many detailed answers that this question will run in both July and August journals. Now, here is the question we asked our attorney affiliates–
In the state/states in which you practice law, what latitude is granted the armed citizen defending against attack inside his/her own home? Can the citizen use defensive deadly force inside their home without retreating? Against an intruder who is not actively attacking (perhaps has broken in but is not compliant when the homeowner orders them to leave)? How about shooting without issuing a warning (maybe the intruder is about to enter a child’s room)? Can the citizen successfully make the claim that an attached garage was part of their domicile if they use deadly force against an intruder there? What about out buildings or unattached garages or on properties like the lawn or back yard? Where is the line drawn?
Laurence Erickson Walker
Gordon & Rees LLP
121 SW Morrison St., Ste. 1575, Portland, OR 97204
As many know, and as will be repeated many times throughout the Attorney Question of the Month column, the Castle Doctrine is essentially the concept that there is no duty to retreat when faced with deadly force in one’s own home. As part and parcel of any discussion on this subject in Oregon, the reader should be aware of the two main Oregon Revised Statues on the books that consider this concept:
161.209 Use of physical force in defense of a person. Except as provided in ORS 161.215 and 161.219, a person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose.
161.219 Limitations on use of deadly physical force in defense of a person. Notwithstanding the provisions of ORS 161.209, a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is: (1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or (2) Committing or attempting to commit a burglary in a dwelling; or, (3) Using or about to use unlawful deadly physical force against a person.
The Castle Doctrine has had a varied history. Many states of course had the law that one must continue to retreat until they no longer had any other choice, even in their own home. Other states went the reverse with a caveat, and said if you are within the confines of your legitimate home, one could use deadly force, but only in response to what was deadly force as well. Then, some states, like Florida and Texas, went even further and passed laws that stated a person has simply no duty at all to retreat.
Oregon however has no formal Castle Doctrine, despite many bills introduced in the State Legislature seeking to make it a formal law. Regardless, the Oregon Supreme Court has made the point moot with its March 29, 2007, ruling in State of Oregon v. Sandoval. The case is worth reading for anyone who really wants to get a feel for what the court considered. However, for our immediate discussion, the facts were quite simple (bear with my paired down version). Mr. Sandoval and Mr. Whitcraft were contentious residents of the same community in Josephine County, OR. In the fall of 2001, they both were at a “Lil Pantry” and they fought. Whitcraft won that physical altercation. Later on, Sandoval was driving and crossed paths with Whitcraft again. At a certain point, Sandoval picked up a scoped hunting rifle and shot Whitcraft in the head.
At the criminal trial, the prosecutor asked the judge to provide to the jury the following jury instruction:
“The danger justifying the use of deadly force must be absolute, imminent and unavoidable, and a necessity of taking human life must be actual, present, urgent and absolutely or apparently absolutely necessary. There must be no reasonable opportunity to escape to avoid the affray and there must be no other means of avoiding or declining the combat.”
The judge allowed the instruction, and the jury took little time to find Sandoval guilty. Upon appeal of the life sentence, the Oregon Court of Appeals agreed with the jury instruction and found no fault with the verdict. However, when taken to the Oregon Supreme Court, both verdicts were reversed, for one very simple reason. The Supreme Court correctly noted that Oregon law contains no requirement to retreat from an attacker and that previous rulings to the contrary were simply not correct. The Court stated that, “On a purely textual level, ORS 161.219 contains no specific reference to ‘retreat,’ ‘escape,’ or ‘other means of avoiding’ a deadly confrontation. Neither, in our view, does it contain any other wording that would suggest a duty of that kind.” Even more notable, and arguably even more telling, the Court went on to state that, “We conclude, in short, that the legislature’s intent is clear on the face of ORS 161.219: The legislature did not intend to require a person to retreat before using deadly force to defend against the imminent use of deadly physical force by another.”
In closing, it appears then that while Oregon may not have a per se Castle Doctrine on the books, in effect it does. However, as Marty and Gila will repeatedly tell you, the devil is always in the details, and the facts of any one case are almost impossible to qualify perfectly. However, a few notable points can be made. If there is an objective belief that deadly force is about to be used, a citizen does not have to warn (intruder is about to crash through the children’s bedroom door) though one should always warn, if possible and practical, does not have to retreat, and can use corresponding deadly force. However, if the intruder himself retreats, or if the citizen follows him out to the yard and shoots him there, the waters get very murky and the perceived “retributive shooting” will be haunting that citizen for some time. Likewise, to follow up with the secondary question, any structure attached to the home, or within a reasonable distance that makes it apparent that it is part of the home (say a mother-in-law quarters above the garage which itself is only steps away) will fall under Oregon’s interpretation of no duty to retreat. However, a homeowner, from his upstairs window, with an AR, yelling and watching an intruder break in to his barn, which is 100 yards away, will have a delicate time defending his actions at trial.
There is no perfect answer or scenario with which to comfort oneself in consideration of these sorts of issues. However, staying as calm, cool, and collected as possible, is the best defense. If you, or your family, are faced with deadly force, while in your home, you have no duty to retreat and you can take that next step.
The Terry Ryan Law Firm, LLC
125 S. Howes St., Ste. 910, Ft Collins, CO 80521
As I understand the law in Colorado, if a person breaks into your home and you have a reasonable belief that the intruder is about to commit another crime, you are privileged to shoot. The second crime could well be a theft or assault and if someone breaks in I think it’s safe to assume it wasn’t just to practice breaking in. He intends to do more and maybe worse. So shoot.
Franklin B. Joyner, Jr.
170 Second Street, PO Box 1434, Cheraw, SC 29520
South Carolina’s Castle Act is the Protection of Persons and Property Act, S.C. Code Ann. 16-11-420. The seminal case explaining this Act recently came down from the Supreme Court in May, 2011 and is cited as State v. Duncan, Opinion No. 26974.
A person can use deadly force in the home and on the curtilage of their property. Below are three cases that are foundational law in South Carolina.
A man who attempts to force himself into another’s dwelling or who, being in the dwelling by invitation or license, refuses to leave when the owner makes that demand is a trespasser, and the law permits the owner to use as much force, even to the taking of his life, as may be necessary to prevent the obtrusion or to accomplish the expulsion. State v. Bradley, 126 SC 528, 533, 120 SE 240 (1923).
If the entry is made in a reckless, riotous or violent manner or is effected by overcoming the physical or verbal opposition of the occupant or is made under such circumstances as manifestly evidence a purpose to endanger the life or limb of any inmate or to commit a felony on them, no request to depart or laying on of hands need precede the act of ejectment by such force as is necessary, even to the killing of the assailant. State v. Jackson, 227 SC 271, 277, 87 SE2d 681 (1955).
The right to use such force, even to the taking of life, as is necessary to eject a trespasser applies to the habitation, and perhaps to the curtilage, but not to other parts of the premises. As to the latter, the rights of the occupant are limited to immunity to the law of retreat in case he slays or wounds the trespasser and enters the plea of self defense. State v. Faulkner, 151 SC 379, 382, 149 SE 108 (1929).
Jon H. Gutmacher, Esq.
Jon H. Gutmacher, P.A.
200 N Thornton Ave., Orlando, FL
In Florida there is no “retreat” rule. That was eliminated in 2009. There is an absolute presumption in C. 776.013 of the statutes that a person has a reasonable fear of imminent death or great bodily harm – and thus may use deadly force – against an individual who they reasonably believe has entered or is attempting to enter a dwelling, residence, or occupied vehicle “unlawfully” and with “force.”
Force can be slight: thus opening a window requires “force,” but walking through an open door does not. Certain exceptions apply: no presumption where the person attempting to enter or entering is law enforcement, an owner, lessor, titleholder, or is trying to remove a child or grandchild. No presumption [exists] if the person is one with lawful custody, a parent, grandparent, or lawful guardian.
Likewise, on your question about an attached garage: an attached garage will always qualify as part of the dwelling, but an open carport will normally lack the “entry or attempt to enter by force” predicate, and thus, [there is] no presumption normally for an open carport. Also, once the culprit exits, the presumption vanishes. At that point the use of force becomes one of whether such was reasonable to stop or prevent imminent death or great bodily harm, or the imminent commission of a forcible felony.
Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Avenue, Phoenix, AZ 85003
This issue seems to cause more confusion among my clients and CCW students than all others combined. Many people presume that the Castle Doctrine gives a carte blanche hunting license to shoot anyone who dares to stick their nose across a homeowner’s threshold. Such is, thankfully, just not the case. A ten year old Girl Scout who accidentally opens your unlatched door when she knocks to offer you some (delicious, by the way) Thin Mint Cookies, then steps into your foyer, calling out to be sure you haven’t fallen and broken your hip, cannot be met with “hot lead” simply because she dared to violate the Castle Doctrine.
What the “doctrine” really means is if there is an intruder in your home (or, more and more often, your vehicle) who, for whatever reason would place a “reasonable person” (I’m still waiting to meet one besides me) in fear for their life or the life of another, that intruder can be met with lethal force without the legal requirement to first exhaust all reasonable means of retreat.
Frankly, except for the notion that it may invalidate the requirement to “exhaust all reasonable means of retreat” (which we do not have in the first place in the state in which I primarily practice—Ari-by God-zona), the Castle Doctrine does not really change the legality of the use of lethal force. And let’s not forget, especially with people who have built a “Safe” or “Alamo” Room into their home defense plan, it is likely that a tactical retreat may well be the absolute safest avenue when faced with such an intruder.
In Arizona, I tell people that it is rare for a homeowner to be arrested for using lethal force against an intruder, armed or not, who has forced entrance into a home–especially at night or into an obviously occupied home. Such home invasion burglaries (not to be confused with typical daytime burglaries upon what are logically believed to be un-occupied homes–a crime typically committed by cowards who pose little physical threat) are usually quite violent and few will blame (or prosecute) a homeowner who acts upon such an intruder to prevent such violence.
As long as you believe that mysterious “Reasonable Person” in your place would also be in fear for his/her life, err on the side of waking up tomorrow. I do not see any difference in my answer if the intruder is in my garage, or on my patio than if he is in my living room–my analysis should begin and end with “am I in fear for my life?” If so, do what you must to minimize the risk of death to you/yours. I know of no screen doors or double thickness gypsum walls that will make me safe from gunfire from my porch or garage.
This month’s topic on laws bearing on home defense received many great responses from our Network Affiliated Attorneys. The topic continues in our August edition of the eJournal and we hope you’ll come back next month to continue learning from the responses of our affiliates. We appreciate the contributions our affiliated attorneys make to the Network, including their interesting answers to questions in this column. Contact information for our Network affiliated attorneys is linked at www.armedcitizensnetwork.org. Member log in required.
Self-Defense Law Book Author Comments on OK Murder Conviction
by Mitch Vilos Author of Self-Defense Laws of all 50 States and criminal defense lawyer, Salt Lake City, UT
Recently I’ve read about fairly welleducated people being convicted of murder or attempted murder after what they thought was a justifiable defensive incident. These convictions show that despite an advanced degree, the law of self-defense can be tricky and can lead to personal and financial disaster when defenders are not fully aware of all of the hidden legal traps of the various state laws of self defense.
The most recent high-profile case involved a pharmacist in Oklahoma who shot and killed a 16-year-old boy who, together with an armed accomplice, was undeniably trying to rob the pharmacy. The event was largely caught on security video. How could an educated pharmacist, defending himself and his female co-worker during a violent armed robbery be convicted of first-degree murder?
Let’s analyze the results in that case using the principles we recently exposed in our new book, Self-Defense Laws of All 50 States.
The Facts (As they appeared on security video)
Reportedly around closing time, the robbery suspect and his accomplice rushed into the pharmacy. The accomplice pointed a handgun at the panicked pharmacy assistant while demanding valuables. The 16-year-old robbery suspect wearing a backpack began to approach the area flinching and then quickly running out the door. The robbery suspect drops out of the picture. Apparently, the defendant pharmacist in this case had shot at the accomplice and then shot the robbery suspect in the head. The pharmacist then followed the accomplice outside of the store in an attempt to apprehend him. Then the video shows the pharmacist walk back into the store, replace the first handgun with another, walk over to the robbery suspect lying on the floor and reportedly fire five more shots into the 16-year-old’s abdomen, killing him.
As we explained in our self-defense law book, Oklahoma has an archaic (old) statute, 21 Okl.St.Ann. § 733, that has been gutted by the Oklahoma courts. The statute plainly says a defender can commit a homicide (kill another human being) “when resisting any attempt to commit any felony upon him.” The Oklahoma courts have whittled away at the statute to the point where now a jury instruction is given in homicide cases stating, in essence, one may only use deadly force against another if the defender believes he is in imminent danger of death or great bodily harm (OUJI-CR 8-46 [Translation: Oklahoma Uniform Jury Instructions, criminal, 8-46]). Another jury instruction, OUJI-CR 8-15A, allows the defender to “meet force with force” and use of deadly force if “necessary . . . to prevent the commission of a forcible felony.” In other words, the jury instructions are much less protective of the defender than the old Oklahoma self-defense statute. It would be interesting to know if the defendant pharmacist had read and relied upon the old statute. If so, his lawyers may have tried using the argument that the state is estopped (prevented) from using jury instructions other than those quoting the state statute verbatim. As far as we know, this argument has never been tried before.
The Legal Issues
Clearly, the defendant had the right to shoot his first bullet at the robbery suspect, which apparently hit him in the head and knocked him unconscious. He was shooting to prevent the commission of a forcible felony, a robbery. But after the boy was down, unarmed and unconscious, the teen certainly was not a continuing threat of death or serious injury (at least by media accounts). The pharmacist left his co-worker with the downed teen, apparently not concerned that he was capable of inflicting any injury upon her while he chased the accomplice who had run from the pharmacy. Notice that the jury instructions contain the word “necessary.” There was a strong argument that shooting the unconscious felon five times was not necessary to prevent the further commission of the robbery. The jury of eight women and four men convicted the defendant of first degree murder and recommended a life sentence. Gun rights advocates expressed outrage at the verdict and the law has since been amended to add businesses to Oklahoma’s extremely strong home defense statute, which is patterned after Florida’s. Florida’s home defense statute eliminates the concept of necessity. Opponents of the law argue this creates a veritable death chamber for those who trespass. Had the new law been in force at the time of this shooting, the defendant’s attorneys would have had a much easier case. Arguably, the new statute may have taken away the prosecutor’s argument that the use of deadly force was “not necessary” because the boy was unconscious. But don’t forget, the Oklahoma courts have gutted the strong language of Oklahoma’s general self-defense statute. They could certainly read the concept of necessity into the home and business defense statute if they choose to continue to stretch the law beyond the bounds that the Oklahoma State Legislature has intended.
In Chapter 7 of our new book Self-Defense Laws of All 50 States, we identified factors that seemed to sway police to arrest, prosecutors to prosecute and jurors to convict. These factors were not necessarily written into any law, but seemed to tip the scales of justice against defendants claiming self defense.
❶ Armed Defender/Unarmed Suspect - We found that where a defendant is armed and his assailant isn’t, this almost always leads police to arrest and prosecutors to prosecute. It also increases the chances of conviction. In this case the accomplice was armed, but the 16-year-old robbery suspect was not. As we point out in Chapter 4 of our book, the U.S. Supreme Court has held that obviously unarmed, non-threatening citizens have a Fourth Amendment right not to be shot by police officers. Tennessee v. Garner, 471 U.S. 1, 11 (1985). Although Garner was a civil rights case, states such as California and Nevada have begun to incorporate the analysis of this concept into criminal cases. It is a possible legal precedent prosecutors and courts could potentially use in weakening state laws, such as in Florida, Michigan and now in Oklahoma, laws arguably allow defenders to use more force than is necessary in defending their homes and possibly their businesses.
❷ Defendant’s Statements to Police Contradict Video and Physical Evidence - Most criminal defense attorneys counsel against giving any details about a defensive shooting until the defendant has the opportunity to review what the physical evidence or surveillance videos show. During the adrenaline rush, a defendant may not accurately perceive or recall all of the events as they unfolded. There were some media reports that during the initial interview with police (presumably outside the presence of his attorneys) the defendant’s story was significantly different from what is shown on the surveillance video and that this proved the defendant knew he had committed a crime.
❸ Child Suspect - In our book, we reveal that a public outcry about the shooting of a child during an alleged self-defense incident can result in an arrest or conviction even though the shooting was arguably justified. This is true even in states with very strong self-defense laws like Florida and Texas. Unfortunately, “kids” in their early teens with deadly weapons can kill a defender just as efficiently as an adult during a violent robbery or home invasion.
❹ Myths - There is a myth perpetuated in the gun world, “If you’re going to shoot someone in self defense, make sure they are dead! Dead men tell no lies!” This unfortunately leads to executions of assailants who have been injured to the point of helplessness. Once the deadly threat has been neutralized, there is no longer legal justification for the use of deadly force. An apparent execution of a helpless assailant will almost always get you prosecuted for murder or at least manslaughter.
❺ Afterthoughts - At common law (back in Jolly Ol’ England), citizens were allowed to use deadly force against those committing “heinous” felonies such as rape, robbery and attempted murder. The theory was that such crimes were worthy of the death penalty, hence the defender, in killing his or her assailant, was simply hastening the inevitable. We have come a long ways (maybe in the wrong direction) since then. England has not only abandoned the death penalty, but has weakened its self-defense law so drastically that British citizens can be prosecuted and convicted of murder for defending themselves in their own homes with deadly force against violent home invaders. Hopefully, more US states will follow Florida in making selfdefense laws more protective of the innocent and less protective of criminals rather than follow Great Britain into self-defense hell.
Choke: What the Secrets of the Brain Reveal About Getting It Right When You Have To
By Sian Beilock
Free Press, 304 pages, ISBN: 97-1416596172
Clutch: Why Some People Excel Under Pressure and Others Don’t
By Paul Sullivan
Portfolio Hardcover, 256 pages, ISBN: 978-1591843504
Reviewed by Gila Hayes
Recently, I’ve been reading about human performance under pressure, a topic in which armed citizens should have an avid interest. I began by reading Choke: What the Secrets of the Brain Reveal About Getting It Right When You Have To by University of Chicago psychology professor Sian Beilock. After all, a book of that title seemed certain to contain information applicable to defense.
Both authors draw on professional sports, politics, business and other current events for examples, but Professor Beilock also details results of laboratory tests and the findings of imaging (Functional Magnetic Resonance Imaging–-FMRI) of human brains tasked with solving stressful problems or performing demanding tasks.
Shooters will be interested in Beilock’s definition of “procedural memory,” and how it differs from “explicit memory.” The former is implicit and largely unconscious, and is drawn on in the execution of complex and linked actions. When one has developed a high level of skill in executing a task – for our purposes, say drawing and firing a pistol – the steps are stored in procedural memory and often the skilled person would be hard-pressed to give a detailed explanation of how they performed the feat.
Explicit memory, on the other hand, gives the kind of recollection that would allow the shooter to detail every tiny step of the draw and fire routine. A beginner learning the steps of the skill works out of explicit memory, and only by repetition does the knowledge move into procedural memory. When skilled practitioners choke under pressure, they are often trying to think through the steps of a skill during its performance, instead of allowing procedural memory to guide them as they “just do it.” They choke, Beilock postulates, because procedural memory is “largely housed in different parts of the brain” than explicit memories.
When stress makes your mind race, your heart rate rises and adrenaline reaction kicks in, you often try to control performance and force an optimal outcome. Unfortunately, this increased control can backfire, especially when attempting well-learned skills. When you bring conscious awareness to skills that once operated outside your working memory, prefrontal cortex can disrupt them, the author explains. This is how we choke under pressure.
What is the cure? Training under stress, practicing simulated stress performances, and “just doing it,” performing well-learned and practiced skills outside of conscious mental control. The more your practice inoculates you against the stress of the unexpected, the better you can expect to do in times of crisis, Dr. Beilock concludes.
At the core of Beilock’s anti-choke advice is, “Just get used to the stress.” The author cites a study from police training to illustrate preparation to work under stress. Force on force training, high-pressure drills on the live fire range, and regular stress practice can help us prepare for a defense emergency, as this book’s principles confirm. While there is no way to simulate the stress of a real attack, the professor is convinced that practice with mild stressors prevents choking when real pressure occurs.
I was particularly interested in Beilock’s explanation of “paralysis by analysis,” overthinking problems that require a rapid response. When the prefrontal cortex, which works to uphold expectations about a situation, takes over it inhibits sensory and motor brain functions that help us respond and adapt quickly to the unexpected. That’s why it is important to have practiced defensive routines, like those described by John Farnam in his April 2010 interview in this journal when he discussed force on force training.
Additional topics focus on inoculation against choking under stress, the dangers of negativity, psychological interventions after a failure to prevent future incidents of choking, and techniques to get into and stay in the flow, controlling or avoiding mental interference, and more.
From Science to Stories
Clutch: Why Some People Excel Under Pressure and Others Don’t makes a good companion piece to Dr. Beilock’s Choke. After the descriptions of scientific testing and often rambling presentation of Choke, it was enjoyable to read the stories of “clutch” successes as told by New York Times columnist Paul Sullivan. In researching who folds under pressure and who flourishes, Sullivan interviewed athletes, attorneys, coaches, military commanders, business titans, a war hero and a psychiatrist. As with Choke, sometimes the stories wander a bit, but Sullivan ties the stories to his thesis. His interviews identify five key traits of clutch performers: focus, discipline, adaptability, being truly present and having the desire to win. These attributes apply to the many situations in which people have to make quick, sure decisions under extreme pressure.
War hero Sgt. Willie Copeland III, awarded the Navy Cross for courageously extracting his team from an ambush in Iraq’s Sunni Triangle and saving his wounded commanding officer, exhibited all five “clutch” characteristics. His story describes a man who was not among the most athletic or most driven in his unit, but who adapted and led brilliantly while under fire by insurgents.
The ambush required decision-making under extreme pressure, Sullivan writes. While Copeland led an aggressive counterassault from the front, he kept his team tightly bunched behind him. While countering the insurgents, he also focused on saving his commanding officer’s life, tending to his captain’s wounds, while ordering his men to seek protective cover. When a Humvee took the captain to safety, Copeland stayed with his men and leading the withdrawal and lobbing grenades to cover his men’s retreat.
Copeland maintained presence of mind, observes Sullivan. You couldn’t term his state as “calm,” he continues, adding that Copeland was operating at maximum alertness, without letting the stress of the situation overwhelm him. During this incident, he performed a variety of acts – evacuation, running, attacking, shooting, throwing, ordering his men, tending to his CO, and leading the team. He adapted under the pressure of a life and death situation by keeping his focus outward – on the team and on the task – not on himself or his emotions.
Before deployment, Copeland underwent extreme conditions training, earning a reputation with commanders as one who would gut it out. In the field, he was the goto guy when something wasn’t working, because he could usually figure out how to get it fixed. This adaptability is a key element in succeeding in the clutch, Sullivan notes.
Sullivan defines adaptability that gets the most out of a plan but is not paralyzed when the unexpected renders the plan obsolete. People who are good in a clutch know when to adapt, and do so by keeping the goal in mind. He interviews a West Point commander who explains the necessity of knowing when to trash the plan. From Copeland’s story, the West Point commander’s explanation and several other stories from the battlefield, Sullivan draws the lesson, “Don’t fight the plan, fight the fight.”
Additional chapters use sports to illustrate other clutch principles, but the discerning reader can adapt the information to training for and surviving a life-threatening incident. Sullivan uses athletes’ trials and triumphs to encourage hard work to build skill and physical condition, and how practice under simulated stress is vital to success at clutch time.
Both Clutch and Choke wander a lot into story and background detail. Having said that, both books would have been a lot of fun to read had I been on vacation instead of on deadline. I notice that Amazon has Beilock’s book available used for around $4 and Paul Sullivan’s Clutch marked down to a $2.99 bargain price. The value of the time spent reading the books will exceed the cost. If you are dedicated to making yourself a better prepared armed citizen, to building your shooting skills and honing your ability to make clutch-time decisions, you will find applicable lessons in both books that you can immediately put to work to focus your training and practice in ways that will leave you better prepared.
In a few days, we’ll celebrate the anniversary of the United States of America’s 1776 Declaration of Independence from British domination. While many call this holiday the Fourth of July or July 4th or even just the Fourth, I’ve always been partial to the term Independence Day. This holiday is so much more than a number on a calendar; it is the day on which we celebrate the founding fathers’ passionate determination that Americans should govern their own fate.
When Americans take Independence Day off work, gather with friends and family in a day of fun, often culminating in a celebratory fireworks display, the day needs to be a reminder of where the grand venture we know as the United States of America originated, what tribulations and burdens were borne to carry it through, as Thomas Paine described, “the times that try men’s souls,” into calm, prosperous times and again into troubled days.
What culminated on July 4, 1776 with the Declaration of Independence was nothing less than a people’s determination to govern themselves, throwing off the yoke of the English, once and for all. Read the impassioned speeches given as the American colonists struggled with the decision to go to war with England. Patrick Henry’s words are particularly stirring: “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”
Having negotiated with the British for nearly a decade prior to this point, many colonists could not agree whether an armed revolution was the best course of action. Great Britain clamped down on the rebellious colonists, and less than a month after Patrick Henry entreated his fellows to fight, the British military governor of Massachusetts sent soldiers to Concord to destroy the colonists’ weapons depot. The colonists responded and on April 19, 1775, with the “shot heard ‘round the world” fired on the Lexington Green, the war for American independence was underway.
The decision to fight had to be wrenching. In fomenting revolution and composing and signing the Declaration of Independence, the founding fathers committed treason, no small crime. Imagine the conflict and soul-searching as those early patriots disassociated themselves from England, and embarked on the task of creating the United States! Some did not survive the revolution; others sacrificed family, wealth and much that they held dear.
A lot of good and a lot of bad has gone by since then. I suppose whether or not you think America is a better place 235 years after the Declaration of Independence indicates to some degree whether you are by nature optimistic or pessimistic. Whether you think America is in precipitous decline or if you believe that America still possesses its passion for independence, on July 4, 2011, don’t forget to think about what was sacrificed for American independence. And if you dare, ask yourself what you can do to assure that a free United States of America endures.
As Abraham Lincoln said in the Gettysburg Address, given a mere 86 years after the Declaration of Independence was signed: “It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”