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The Disparity of Force Defense
An Interview with Massad Ayoob
by Gila Hayes
A lot of our members, now in their golden years, express concern about justification for using deadly force in self defense in light of their various disabilities. Finding themselves no longer able to run away or to duke it out, members often ask questions about defending decisions to use a gun to prevent injury at the hands of a younger, stronger person–even if that attacker is unarmed.
In their concerns, we recognize the elements of disparity of force, as first taught to me many years ago by master instructor Massad Ayoob. Thus, it seemed only appropriate to ask him to explain applying the doctrine of disparity of force when defending self defense. Let’s switch now to the interview format to preserve the clarity of Ayoob’s instruction, which he kicked off with a textbook definition of disparity of force.
eJournal: Massad, thank you for giving us this chance to learn more about defending self defense. Could we begin with a definition of disparity of force so we are clear on our terms?
Ayoob: Disparity of force is the element that comes in when a deadly weapon is used in self defense against the ostensibly unarmed attacker. The law has long recognized that there are certain situations where the attacker may not have a per se weapon, but within the totality of the circumstances the likelihood of his violent assault resulting in death or crippling injury–that is, grave bodily harm to the defender–is such that it becomes the equivalent of a deadly weapon and it warrants the defender’s recourse to a per se deadly weapon.
There are many forms of disparity of force. It can be force of numbers, male violently attacking female in most circumstances, and able-bodied attacking the handicapped, which is one of the elements we are touching on here.
Historically, age brings a degree of decrepitude: muscle mass fades, you have things like arthritis and osteoporosis, cumulative injuries over a lifetime of hard work, and things like that.
It is not so much young attacking old. The example I give my students is a 19-year old male violently attacking a 66 or 67-year old man who has previously had quad bypass heart surgery. Most people would say, sure, that is disparity of force. OK, let’s give you some more information. The 19-year old is a 130-pound anorexic meth head and the 67-year old I’ve just described is Arnold Schwarzenegger. The general public probably will not see Schwarzenegger as having been disadvantaged, so what we are looking at is not the age, but the infirmities that historically have come with age.
The average-sized, young adult male in prime of life attacking the elderly person who has limited range of movement, less muscle mass and probably less endurance, as a general rule will be creating a disparity of force situation, but these things are always taken by the courts within the totality of the circumstances. That means we have to detail what the defender knew and what the assailant knew or should have known.
eJournal: Can you estimate how frequently the courts weigh in on disparity of force cases?
Ayoob: I cannot. There is no empirical database nationwide that is gathering these kinds of things. The ones that never get into the newspapers just never surface at all, nor do the ones where the police look at it and say this was self defense, and the prosecutor’s office rubber stamps it as such. That is as it should be, and so those simply do not make it into any tracking database.
eJournal: Well, we’d certainly wish for that outcome, but it leaves me wondering how Network members can achieve that same understanding from their own prosecutor after pointing a gun at an aggressor perhaps a little sooner than would ordinarily be allowed to a more able-bodied person. Any advice?
Ayoob: One way is to make sure you have an attorney who is respected by the local district attorney’s office. The general public–and the shooting public in particular–do not realize how often these cases are dealt with simply by the defense attorney sitting down collegially with the prosecutor, and saying, “Look, we have worked in the same courthouses for a long time and I have got a lot of respect for you. I think you need to know my client’s side of the story. Here is what happened, here is what we are going to do in court and this is what we are going to be able to prove. I am not hiding anything from you.”
The great majority of prosecutors who are not politically motivated and who do understand that the prosecutorial function is as much about exoneration of the innocent as it is about the prosecution of the guilty, will say, “Thank you for bringing that to my attention. Upon review, this is a justifiable homicide.”
It may or may not go in front of a grand jury, depending on local law and local custom and practice. In some jurisdictions every homicide goes in front of the grand jury just in the name of transparency and justice, but very often those things are dealt with at the prosecutorial level so it does not make it into any national statistical database.
eJournal: In your many years as an expert witness, what has been your experience in helping judges and juries understand how disparity of force bears on justification?
Ayoob: The most recent case I had that went to trial was in the first quarter of last year in West Virginia. The defendant was an average-sized man who had been threatened by a man described as 6 feet 3 inches and 300 pounds of solid muscle and described to him also as someone not to be trifled with because he was so dangerous and so violent. That man had repeatedly threatened him, and when that man showed up at his front door and then attacked him, beginning with a sucker punch to the face that almost knocked him out and knocked his teeth loose, he realized this crazy person is going to get through this door and attack my wife and my kids and I won’t be able to stop him. He drew his .45 and shot the man to death.
The responding officers just could not get past the fact of an unarmed man shot seven times by an armed man. It happened in the dark and in the course of it, the defendant had been punched in the face, and I believe his eyes were probably closed when he fired, because the ammunition he used in this shooting was Remington 185 grain jacketed hollow point which has a pretty significant muzzle flash and he has no recollection of seeing the muzzle flashes.
He is firing as fast as he can, so those shots are probably fired in no more than a second and a half. He does not realize that after the first shot, the man has begun to turn away. The prosecutor’s office could not get past that and they took him to court with a premeditated murder charge. We were able to show the jury–shot by shot–how this was consistent with a sudden movement away that occurred faster than the defendant could process the change in events and stop shooting.
Ayoob: Yes, they said the premeditation occurred when he discovered the man who had threatened him was at the front door and he put his .45 in his waistband before he answered the door. We made the point in court that the arresting officer is sitting here carrying a .45 automatic and the bailiffs are sitting here carrying .40 caliber Glocks and they’re not premeditating harm to anyone; they are prepared for any predictable threat that could jeopardize anyone in this courtroom. That was what the defendant was doing and the jury got that.
Had he been convicted, that state required a mandatory penalty of life without parole. Instead the jury came to the correct conclusion and acquitted him of all charges. We had to clarify in court what disparity of force was and show them how many elements of disparity of force were in play here: we had the tremendous size and strength advantage of the attacker. We had the fact that he was reasonably known to the defendant as an extremely violent man. We had the fact that his sudden, violent unprovoked attack had almost brought on unconsciousness in and of itself and in that instant had created the additional disparity of force element of able bodied against the handicapped. We all have to remember that the able bodied vs. the handicapped encompasses any handicap that takes place even in the course of the instant assault.
eJournal: Earlier, you mentioned prior knowledge of the assailant’s propensity for violence. That concerns me because in urban environments, what is the chance that we will know any facts outside of the behavior of the assailant at the moment when we must decide upon our tactics?
Ayoob: Its pretty tough. We only have two states where we have state supreme court precedent that similar prior bad acts can be used if they are not known to the defendant.
If they are known to the defendant that is different, but in your urban hypothetical we don’t.
We have two very good precedents in Massachusetts: Commonwealth v. Adjutant and Commonwealth v. Pring-Wilson. In both of those cases, and in State of AZ v. Fish, the appeals court said the same.
Members should also be aware of the case the Network was so deeply involved in defending, AZ v. Hickey. Interestingly, the Fish precedent was raised in that case. Of the three unarmed assailants that Hickey was facing, one was a woman who was a student of Brazilian jiu-jitsu, who’d posted on Facebook, “I love to grapple.” That was kept out. The high skill level and macho inclinations of the male attacker, who was a buffed out, wanna-be SEAL, were kept out of evidence, even though the judge pro tempore had a very well-crafted motion to allow them in under the Fish precedent. So even when the state supreme court says it should be introduced, as we saw there, it can sometimes still successfully be kept out.
eJournal: It sets a very high bar for justifying what is done in self defense.
Ayoob: It does. What it goes to is, what were your reasonable perceptions at the time? What would a reasonable, prudent person have done in the same situation, knowing what the defendant knew? What we were able to establish in the WV case was what he knew beforehand, what he had been told from a reliable source about the danger level presented by the other man, supported by his vivid description at the scene that night to the arresting officer.
We were able to show that the defendant had been told by a very credible source how large, how strong and how dangerous this man was. That’s how we got it across. He was able to describe the huge size and bulk of this man looming over him.
He gave very sincere and very credible testimony in court about the devastating force of the blow that knocked his teeth loose and he thought he was going to pass out.
The man had said moments before, “I will beat the life out of you.” I explained in court that words mean things. “Beat the life out of you” is not a figure of speech. When “the life is out of you,” you are dead. This man has just told him he was going to beat him to death. We explained how ability, opportunity and jeopardy work, how disparity of force works, and the multiple elements of disparity of force that were present here. The jury got it; the jury understood.
eJournal: It’s clear that this defense did not hinge on one factor only. His defense was more than just, “He was bigger than me, so I was allowed to use a gun to stop him.” Instead, you corroborated that basic premise with a variety of additional factors.
Ayoob: Correct. We were able to show that he had no physical self defense training, had never been in a fight since high school and was a man of a physically peaceable nature.
eJournal: Going back to something you said earlier, you also had the supporting report that the assailant was “reliably” known to be a brawler. How do the courts define “reliable”?
Ayoob: In this case, it was the wife of the deceased who told the defendant that before hand and she testified in court.
eJournal: I’m sure that was powerful! Well, that story surely emphasizes how this and similar cases are a lot more complicated than arm-chair lawyers suggest.
Ayoob: [laughing] Uh huh! Gila, whenever I hear someone say, “A good shoot is a good shoot,” I want to say back to them, “Yeah, and next Easter a bunny is coming to your house to bring you eggs.”
eJournal: That’s a good reminder to form opinions only upon reliable information! That reminds me–I have been following with great interest the progress of your soon-to-be-released book about use of deadly force. For my whole time in this business, your old book In the Gravest Extreme has been the recognized authority on that subject. Do we now have a replacement? What can you tell us about your new book?
Ayoob: It is not a replacement; it is more a supplement. It will be out this December from F+W Media entitled Deadly Force: Understanding Your Right to Self Defense (Editor’s note: see http://www.amazon.com/Deadly-Force-Understanding-Right-Defense/dp/1440240612/ref=sr_1_fkmr0_2?s=books&ie=UTF8&qid=1408555036&sr=1-2-fkmr0&keywords=massad+ayoob+prerelease)
eJournal: In writing this book, did you find self defense law pretty much unchanged or had there been substantive changes in deadly force laws and the adjudication of use of force incidents in the courts in the nearly 35 years since you wrote In The Gravest Extreme?
Ayoob: Overall, it is pretty stable. Deadly force remains one of the most mature bodies of law, and unlike gun laws and carry laws per se which in this country is a 50-piece patchwork of laws with each piece constantly changing, the deadly force law is actually pretty stable.
What I did spend more time on in this book, are the so-called Stand Your Ground laws. Since their passage there has been tremendous media disinformation and anti-gun propaganda that has convinced, not only much of the general public, but God help us, some gun-carrying people, that Stand Your Ground is something that it is not. You have all these people out there campaigning and telling you that Stand Your Ground means that you can kill anyone you want to and just say, “I was in fear for my life.” That simply is not how it works at all.
So in this book I went into more detail about what Stand Your Ground actually means and how it is distinct from the Castle Doctrine, which a lot of people confuse.
eJournal: I look forward to reading the new book. You bring up Stand Your Ground, which is sometimes raised–as it was in George Zimmerman’s case–when disparity of force is actually the factor that is truly in play. In Zimmerman’s case, the disagreements seemed endless: was it a Stand Your Ground or was it not a Stand Your Ground case? No one seemed to know for sure!
Ayoob: Well, I know for sure! It was not a Stand Your Ground case! Stand Your Ground only applies if you had some reasonable chance to escape in complete safety to yourself and others. When you are down on your back having been physically overpowered by someone who is younger and stronger and your head is being beaten into the concrete, as they put it so aptly in the defense of Zimmerman, the sidewalk becomes the weapon. It doesn’t matter a whole lot whether I take a chunk of concrete and hit you in the head with it, or if I take your head and hit the concrete with it, the collision is the same and the damage is the same. Zimmerman was not in a position where he could safely escape, and then you have the element that the man has just reached for his gun with the obvious intent to use it.
eJournal: To clarify, you are one of the few to call Trayvon Martin a “man” not a child or a boy.
Ayoob: Yes, the “boy” who was 17-years old, old enough to enlist in the U.S. Marine Corps where within a year he would be given a machine gun to go overseas and fight for his country. Do I mean that kind of boy? Whose mother described him as being 6 feet 3 inches tall?
eJournal: How well do you think the Zimmerman defense team defined the disparity of force issues in that situation?
Ayoob: I might have done it a little bit differently, but the point is, they did it in a way that got it across to the jury. I thought the Zimmerman defense team did a splendid job and I thought the jury did well with a very difficult case. Anyone interested in my take can find the 20-part blog series I did on the verdict at www.backwoodshome.com. Just go down the left of the home page to where they list the blogs and click on my name. There was certainly disparity of force going there in the sense that Zimmerman was in a position of disadvantage where he could not have practically fled. Basically, within the totality of the circumstances, if the assault by the ostensibly unarmed man had continued, he would have been killed.
There is also the element of him reaching for your gun, Gila. It is as if there was one gun on the table right here. I create disparity of force if I reach for it, particularly if at the moment when I get that gun, you no longer have a gun to respond with. I believe Zimmerman was in the right; I believe the detectives who investigated it and came to that conclusion were correct all along. I believe Norman Wolfinger, the very highly respected State’s attorney who was chief prosecutor, handled it correctly. Not until it became a media-driven political football with a special prosecutor appointed, did it veer off the course of what justice should be.
eJournal: In your textbook definition of disparity of force at the beginning of our interview, you also mentioned that disparity can occur when a man attacks a woman. What is your history as an expert witness in the courts explaining male-on-female assault cases and what factors contribute to the disparity?
Ayoob: I have done that several times and the jury tends to get it. The male of our species is apt to be larger and stronger especially in upper body strength plus tends to be acculturated in physical violence. It is much more the little boy who is told by the parents, “Stand up to the bully and punch him in the nose,” than the little girl. Little boys play contact sports much more than little girls. There are a lot more little boys playing soldier than little girls. It simply is understood.
Generally, you will also be able to find some history – because very often it is the husband who is shot by the wife – you’ll very often have a history of domestic violence, as well. But the male v. female disparity is very well established in the literature.
eJournal: It makes me wonder why criminal charges are filed against a battered woman at all. What issues make this so?
Ayoob: When it is domestic, it is basically seen as mutual combat. People who have not been through what the public calls battered wife syndrome, and what psychologists called learned helplessness, say to themselves, “Well, if he WAS really beating her up, if I was her, I would have left,” but they really don’t understand what it is like to be born into a situation where it is as if you are a slave and the slave masters are abusing you. That is the norm until finally your instinct tells you to lash back.
We’ve had some like the Mary Hopkin case in Florida, where as the man came at her, she fired at him three times as fast as she could pull the trigger. One hit him in the front, one hit him in the side as he was reflexively turning away and one hit him in the back.
I think Janet Reno, who was Dade County prosecutor at that time, in the 1980s, saw it as “maybe the first shot was justified, but after that she shot him in the BACK? Now you are shooting for revenge.”
We had to go in to court and explain the action/reaction paradigm. The average adult male can turn 180-degrees in a half second and can turn 90 degrees in a quarter second. If my body is already edged a little toward you on one side as it commonly is in a physical assault, it takes only a quarter of a turn to present the back, that is anything behind the lateral midline to your gun.
It takes at least three quarters of second to react to this unanticipated stimulus–most people think of reaction time as reaction to anticipated stimulus, because that is so easy to measure–but here you have unanticipated stimulus. The mind has to cognitively realize things have totally changed from what I thought they were. How do I deal with this? I have observed, now I must orient, I must decide and I must react. By that time, when you are firing a double action revolver like Mary’s, at a rate of four shots per second, two or three more shots have been fired.
When the jury gets that it is not humanly possible to react to this change that fast, the light bulb goes on and they get it. Mary’s jury was out for two hours including dinner and came back with a verdict of not guilty. Mark Seiden, now a Network affiliated attorney, was Mary’s defense lawyer, and he did an exemplary job in destroying the case against her and winning her well-deserved acquittal.
So, that is where much of this comes from.
You have to remember that the old grey-headed folks who make the laws and judge the laws and sit on the bench grew up watching shows like the Lone Ranger where, heck, if the guy has a gun, you just shoot it out of his hand. Only a coward and a murderer would shoot an unarmed man. It takes education to get the jury past that cultural paradigm.
eJournal: Well, that explains why some of the disparity of force cases are filed. What else contributes?
Ayoob: You’ll also occasionally have the family of the deceased exerting power and influence with the prosecutor’s office and that can cause a prosecution to occur.
eJournal: We certainly saw that happen to George Zimmerman in Florida.
Ayoob: There, the family of the deceased reached out to the local equivalent of Johnny Cochran, a flamboyant, high profile plaintiff’s lawyer, who hooked up with a very well-connected public relations firm and got the media involved. It literally created the media meme of the innocent child–the 12 year old’s picture—skipping down the street with a box of Skittles® who was shot by a blood-lusting racist, every shred of which was torn apart in court in front of the jury. But people who did not watch the trial, people who just swallowed the Kool-Aid are now regurgitating that same Kool-Aid.
eJournal: I think we armed citizens have refabricated our worst-case nightmare around the Zimmerman
case, because we saw what can happen when a case goes public instead of simply being tried by a judge and jury–what we traditionally thought would happen.
As we become older or frailer, we ask ourselves if we can make a convincing disparity of force argument if called on to do so.
Ayoob: One thing I would recommend to my fellow aging cripples is this: if you have the egg-shell skull that they talk about in law school, the steel plate in your skull, the preexisting injury, the delicate heart that’s still recovering from quad bypass surgery, when you get the blow-hard or the guy in road rage who’s shaking his fist at you while he is approaching, my advice is yell, as loud as you can, “If you hurt me, I could die. I have a medical condition.”
If he still continues, it has been made clear to the witnesses and to everyone else. If he has a three digit IQ and a good survival instinct, it has been made clear to the perpetrator, that if he punches you, you could die. If he continues his assault, does not that create a reasonably construable intent to kill? It much better solidifies the defense if my aging, fellow cripple has to draw a gun and shoot to stop a young, testosterone monster from beating him to death.
eJournal: What a good strategy! If it entirely prevented the assault, so much the better for all involved! Thank you for all the good instruction today on disparity of force and for giving us preemptory steps to possibly derail a defense situation entirely!
[End of Article.
Please enjoy the next article.]
The Network v. The World!
by Marty Hayes, J.D.
Many people, mainly non-members but some members too, have been asking us for years for some type of comparison between what the Network offers its members, and how our benefits compare to the other companies offering either self-defense insurance or pre-paid legal services for armed citizens. Most of our competitors have charts that compare some of their attributes to the other companies, but the problem with those charts is that they only seem to mention things that the company does well in and fail to list other important services.
With that in mind, I didn’t do a chart, but instead wrote a painstaking discussion of the different types of post-incident support programs, how they work and then what the Network has to offer. The link to the stand alone article on our website is here http://armedcitizensnetwork.org/buyersguide. Network membership recruiters who are explaining our program to their customers and students, will want to print the article and make copies to give the prospective members or, at least have it available to discuss in class or over the gun counter.
Are you a nice guy or gal?
Do people like you or do they shun you? If you were on a list of people to invite to a party, would you be first, or last (or not at all)? You are probably wondering what the heck I am talking about, so let me explain.
I recently “unofficially” consulted on a murder case. I say “unofficially” because I was never hired by the defense (no money), but I still took a look at the discovery and discussed the case at length with the attorney.
Here, generally speaking, are the facts. The defendant shot and killed an individual with whom he was involved in the purchase and sale of drugs. Illegal drugs.
During the illegal transaction, it is purported that the deceased pulled a gun and threatened the defendant, who drew his own gun and shot and killed the deceased. It was a classic case of self-defense and the attorney believed the client and figured that he had an acquittal, due to the evidence and facts of the case.
The jury came back with a guilty verdict and the attorney and several others who knew the facts of the case were flabbergasted. When the attorney asked my opinion as to why, despite the evidence, his client was found guilty, I said that the jury simply didn’t like the defendant, and because he was a drug dealer, convicted felon and not a very sympathetic individual, the jury figured, “What the heck? Let’s put him away anyway, despite the actual evidence, and get him out of our community.”
How does that apply to you, not a drug dealer or a convicted felon? Well, to me it means that you should still be a likeable person, that’s what.
If the jury dislikes you personally, they will have a tough time believing you when you are on the witness stand. It is human nature. And, they NEED to believe you when you tell them you were afraid of great bodily injury or death. They NEED to believe you when you explain why you felt that way.
So, when you are dealing with someone who is placing your life in danger, or at least you reasonably believe they are doing so, then you need to respond to that threat in a way that will NOT make the jury dislike you. I have personally seen this issue in court, to the detriment of the defendant.
Not an Attorney Referral Service
The Network exists to help our members, but occasionally, a non-member will call after an incident, needing an attorney. Once I ascertain that they understand that they are not covered by any member benefits, and that any costs incurred are their sole responsibility, I will usually refer them to a Network affiliated attorney. I figure it cannot hurt to build good will, and I know that most attorneys are always looking for new business, so it is a win/win anyway. I did this a couple times today, so it is fresh on my mind and I figured I would mention it.
Following the Shaneen Allen Incident?
I must admit I am torn on this one. At first blush, Ms. Allen is the perfect poster child for responsible gun ownership. A single, black lady with two children, who has received training and possessed a valid Concealed Weapons Permit from her home town of Philadelphia. But, she didn’t know the laws of the state she was traveling in (New Jersey) and was arrested for unlawful possession of a firearm.
Today, I read that she is being represented by Evan Nappen, one of our Network affiliated attorneys, and they are running a public fundraiser to raise $25,000 for her defense.
A couple things strike me here. First, $25K for a gun possession charge? Yep. I believe Nappen has legitimately estimated the time he will spend on this case, a high profile case, and is charging accordingly.
But what if, instead of being pulled over for a traffic stop, she had killed someone in a rest area in New Jersey late at night? What would it cost to defend a murder charge? At least $100K.
That estimate drives me to work harder to build up the Network’s Legal Defense Fund (which has over $400,000 in it as of this month). Through the strength of our new and renewing members, we should reach a half a million within a year, assuming we don't have any big drains on the Fund in the coming year.
At one time, early on as we were building of the Network, I said my goal was to have a half a million in the Legal Defense Fund. I now formally revise that goal, and set a new one for the Network of ONE MILLION DOLLARS in the Legal Defense Fund. We have some work to do to get there, but the Educational Foundation is already in place, and that was the hard part. We will keep you posted on the progress.
No Guns Allowed…Seriously?
Recently, a member made an appointment to meet with one of our Network affiliated attorneys. The member called and reported that, upon showing up at the attorney’s office, he was greeted with a “no guns allowed” sign! Now, I understand that the attorney likely doesn’t make his living working with armed citizens, but if he or she is a member of the Network, the attorney should be able to make an effort to allow our armed citizen Network members the ability to meet in their office. Our member inquired and was told by a staff person that the sign was “for their safety.”
I have to ask: How does creating a self-defense free zone increase anyone’s safety, except for a person who might want to commit murder in the attorney’s office?
Our member complied with the sign and cancelled the appointment (as he should have).
Personally, I have a rule: I don’t go where I am not wanted, if I can do anything to avoid it. Since I routinely carry a gun, I don’t voluntarily go into “gun free” zones. (Exceptions are airports and courthouses).
In a related note, I recently testified at a trial in a rural county in Eastern Washington. I had voluntarily disarmed, of course, since most courthouses and by law, specifically courtrooms, do not allow people to carry guns inside. I surely was surprised, upon taking the stairs to the third floor, when I saw the metal detector pushed up against the wall, unused. I guess they bring the metal detector out only for special occasions!
The judge did have a notice on the courtroom door stating the policy of no guns in the courtroom. Interestingly, there was also no armed jail staff or armed bailiffs, since the accused had been released on bail. I expect the detective sitting at the prosecution table was armed, and that was all. Perhaps the judge had a .44 underneath his robe. I would hope so.
In any event, I found it positive that a law-abiding member of the community could conduct his or her business in the courthouse without needing to disarm, as long as he or she didn’t go into the courtroom.
Personally, I have a rule: I don’t go where I am not wanted, if I can do anything to avoid it. Since I routinely carry a gun, I don’t voluntarily go into “gun free” zones. (Exceptions are airports and courthouses).
I have to ask: How does creating a self-defense free zone increase anyone’s safety, except for a person who might want to commit murder? In the case of the member’s experience, would a paper sign prevent a murder in the attorney’s office if someone came into the office intending to kill? Our member complied with the sign and cancelled the appointment (as he should have).
Lawyers for Gun Control
It seems that recently the American Bar Association made it public that they are gun control advocates. Apparently at the last annual meeting, ABA President James R. Silkenat affirmed the ABA’s stance on the gun control issue (see http://legalinsurrection.com/?s=american+bar+association+gun+violence&;image.x=0&image.y=0) Also, the ABA website has the following link, which affords an inside look into what they believe http://www.americanbar.org/groups/committees/gun_violence.html If I were a member of the ABA, I would write a letter with my next check, saying that the cashing of the check constitutes a legally binding contract between the ABA and myself, which requires the ABA to drop its anti-gun stance if the organization in fact choose to cash the check. If they refused to drop their social activism, I would write, please return my check uncashed, and remove me from membership.
Self Defense Bar Association?
How about a few hundred of our Network affiliated attorneys starting a Self-Defense Bar Association? This could be a fairly informal association of attorneys committed to defending armed citizens who are being wrongfully charged with crimes after acts of self defense.
I could see representatives becoming the “go-to” commentators for CNN and FOX News, when an appropriate story is being hashed out. If someone wants to step up and offer to lead this effort, I will coordinate until it gets off the ground. Or, if not, it can die an honorable death.
Thoughts about Ferguson, MO
I thought I was hallucinating. There was Al Sharpton, Benjamin Crump and the main stream media discussing the shooting of a black unarmed teenager by a white guy, and the injustice of it all.
Then I watched a little more, and realized that the white guy was a six-year veteran police officer, but as in the George Zimmerman/Trayvon Martin case, the media had all but convicted the police officer (now identified as Darren Wilson), of cold-blooded murder. Even the Governor of Missouri, Jay Nixon, has called for a vigorous prosecution of Wilson.
If you thought that the George Zimmerman prosecution was an anomaly and that it couldn’t happen to you, you are sadly mistaken. Dear members, get your ducks in a row, and keep your membership in the Network current. ‘Nuff said…
[End of Article.
Please enjoy the next article.]
Attorney Question Of The Month
This month we asked our affiliated attorneys to share information about the procedures in their community for posting bail after a serious incident, and how that could be accomplished by an individual who does not have family members nearby to act on his or her behalf. The question arose because a Network member had asked a similar question of his attorney and that attorney shared the possible solutions with us (see the first response below). In posing the question to our other affiliated attorneys, we asked–
If a member is involved in a self-defense shooting and is arrested, what should he or she have done in advance to provide access to funds for bond if no family is available to assist? How does the state in which you practice handle bail for murder? For aggravated assault?
John P. Sharp
Sharp & Harmon Law Office
984 Clocktower Drive, Suite B, Springfield, IL 62704
A good friend and Network member recently asked me the question, “If I am involved in a self-defense shooting and get arrested, how do I get access to funds for bond if no family is available to assist me?”
I thought it was a question many of your members might have also. A lot of people who live alone or have no family available may feel a particular need to carry a firearm or keep one available in their home for ready protection.
I have suggested to my friend the following:
1. Have your most trusted friend or family member aware of where a spare key is located, or provide them a key, to access your home.
2. Make them aware of where in your home to look to find an envelope you have prepared in advance, in case of emergency, which would include the following:
a. A letter from you to your attorney outlining where your bank accounts are located, and/or your credit card is kept. The letter should give specific permission to either the relative, friend, or attorney to contact your bank to attempt to secure funds to be used for your bond, or should give specific instructions to allow the use of your credit card by them, acting on your behalf, for the same purpose.
b. The envelope should also contain documentation of bank account numbers.
3. You may, if you own your residence, wish to include information such as the approximate value of the real estate so that if necessary, you could explore the posting of a property bond to secure your release. Property bonds may often have to involve property worth twice the amount of the bond; no 10% rule would necessarily apply.
In Illinois, for example, if bond were set at $500,000.00, a person would normally be required to post 10%, or $50,000.00, to secure their release, unless the judge orders that no “10% rule” applies. If a property bond were posted, it would be necessary to post unencumbered property (no mortgages or liens) worth one million dollars.
4. If you live in a state where bail bondsmen are used, then leaving instructions in the above-mentioned envelope to contact such a bondsman would be a good idea. In Illinois, bail bondsmen are not an option.
Persons arrested, even in self-defense shootings, need to understand that the purpose of bond is to ensure a person appears in court on whatever charges may be filed against them, and is not to be punitive (designed to punish). The reality of the situation is that there are as many different approaches to what constitutes a “reasonable” bond as there are jurisdictions, prosecutors, and judges within the United States.
While one jurisdiction may set a low bond while law enforcement continues to investigate what appears to be a likely “justified shooting,” another jurisdiction may set a high bond as law enforcement investigates a potential “homicide.”
I would think your particular state’s and county’s position with respect to concealed carry may figure somewhat into how bond would be arrived at, possibly influencing whether the prosecutor and judge would look at the matter as a likely “justified” shooting, as more conservative states might be inclined to do, or as a potential “homicide,” as states more liberal and anti-gun might approach this issue.
People need to keep in mind, if they need to utilize a firearm and someone is killed, while bond may be set, the amount could potentially far exceed the average person’s ability to post that amount of money or property.
If bond is set and a person cannot post the amount, an attorney could file and argue a motion for bond reduction. Even if bond is reduced, however, it may not be reduced enough to allow the person to be able to have significant funds or property to post to secure their release.
The reality is that even if the shooting is ultimately determined by law enforcement to have been “justified,” a person could spend a significant period of time incarcerated awaiting either the conclusion of a police investigation or the jury’s verdict following trial.
James B. Fleming
Fleming Law Offices, P.A.
P O Box 1569, Monticello, MN 55362
There is no set formula for calculating the amount of bail that will be imposed in a particular case, at least in the many states with which I am familiar.
In deciding the bond amount, the trial court has broad discretion to “[i]mpose other conditions necessary to assure appearance as ordered.”
These conditions must be to assure the defendant’s presence at all pre-trial hearings and trial, and submits to the judgment of the court.
The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII; [State Constitutions also will contain a similar provision, such as Minn. Const. Art. I, § 5. This express protection against excessive bail provides the constitutional avenue for claims of the imposition of excessive bail.
This is because when “an explicit textual source of constitutional protection” exists against a specific government action, the courts must analyze that action under the specific constitutional provision and not on more generalized grounds, such as substantive due process. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 1714 (1998); State v. Wiseman, 816 N.W.2d 689, 693 (Minn. App. 2012), review denied (Minn. Sept. 25, 2012).
In all jurisdictions, a person arrested for a crime must be “released on personal recognizance or an unsecured appearance bond unless a court determines that release will endanger the public safety or will not reasonably assure the defendant's appearance.” State Criminal Procedural Rules such as Minn. Rule Crim. P. 6.02, subd. 1.
See, for example, State v. Martin 743 N.W.2d 261, 265 (Minn. 2008) “The amount of bail to be fixed in a particular case rests within the discretion of the trial court and its determination will not be reversed unless there is a clear abuse of that discretion.” Convincing an appellate court there has been an “abuse of discretion” by a trial judge is a very difficult thing to do.
I have seen a wide variance in the amount of bail imposed in any number of violent felonies, from $2 million on down. The defendant has the obligation, in most cases to post 10% of the bail imposed. That is usually done through a surety such as a bail bonding company.
That bondsman is going to require the posting of security for the amount they advance, typically in the form of cash, or collateral such as real estate, vehicles, or other property that can, in the event necessary, be easily liquidated to repay the bonding company for their loss (the whole amount of the imposed bail) if the defendant skips bail and it is revoked and forfeited.
Do not expect the bail bondsman to be impressed with the fact that you are a card carrying member of the 2A Advocacy Club. They do not care about your case, or your defense, or your claims of self defense. These things are not relevant to their decision to advance bail money. They make money if you secure their outlay of cash, show up for all your hearings and trial, and bail is refunded at the conclusion of the case. The court will keep 10%, and the bail bondsman will also keep a percentage that may vary depending upon the case involved. They have a certain percentage of defendants that skip out on bail, or otherwise cause the bail to be forfeited, each year. They tend to be extremely pragmatic about this process and are not easily impressed.
In the immediate aftermath of a deadly force incident involving death or severe injuries, emotions will be running high and it is not unusual for bail to be set in a very high amount. Quite often, after things have cooled down, and the case is not the flavor of the month for the prosecuting agency, the courts may be willing to reduce bail to a more reasonable amount. The fact that the defendant cannot make the imposed bail, is almost never a good enough reason for the trial judge to lower bail.
Since, in the absence of posted bail, the defendant is going to be held in custody, it is advisable that the Network member identify someone who can act as their agent, or “attorney in fact” to negotiate with a bail bonding company to secure bail.
This would involve the execution of a power of attorney, and creation of a specific set of instructions to the attorney in fact relating to the execution of documents, how to locate other documents necessary to conduct business with the bonding company, and
other tasks necessary to secure the bail bond and pay it in to the court so that the defendant may be released. You need to seek the advice of a competent attorney in the creation of the document necessary to appoint an attorney in fact. It is not a job for gifted amateurs.
Jon H. Gutmacher, Esq.
Attorney at Law
1861 South Patrick Drive, Box 194, Indian Harbour Beach, FL 32937
In Florida there is a standard bond premium paid to a bondsman of ten per cent of the total bond–the balance is secured by collateral. Likewise, there normally is a standard “bond schedule” in each county that sets the upper and lower limits of the bond in all but murder cases. Of course, the State Attorney can ask for a higher bond where the circumstances require, and a defense attorney can always ask for a lower bond. The normal amount for “aggravated assault” (the most common self-defense charge) runs between five to ten thousand dollars.
You can see the bond schedules by just doing a Google search under “bond schedule” for your county. Collateral is normally secured by the pledge of a home, boat, stock, or newer vehicle. If you’re stuck in jail with nobody to help on the outside–there will be the opportunity to speak to a bondsman while there. If you have the cash to cover the entire bond in the bank, or own a home who’s unencumbered value exceeds the bond amount–you should have no problem getting out. You want to get out ASAP–as there is a bond hearing within 24 hours of your arrest–and it is possible for the judge to set the bond over the bond schedule amount if the circumstances seem to call for it, or the State Attorney asks.
A big “Thank you!” to these Network affiliated attorneys for their helpful responses to this question. Readers, please come back next month for discussion of a new topic with our valued affiliated attorneys.
In the Name of Self-Defense: What It Costs, When It’s Worth It
By Marc MacYoung
Kindle Edition File Size: 936 KB
Print Length: 603 pages
Publisher: No Nonsense Self-Defense; 1st edition July 2, 2014
Sold by Amazon Digital Services, Inc.
Reviewed by Gila Hayes
Marc MacYoung’s latest book challenges a lot of our preconceived notions about violence and self defense. It calls on the reader to honestly analyze his or her emotional response to threats. If you are willing to do just that, I urge you to set aside the time to study In the Name of Self-Defense. It will teach you strategies to avoid the rituals of violence and to short circuit predatory attacks, as well as managing the aftermath.
Now, that’s a huge assignment, but MacYoung’s book is long and detailed, and does a surprisingly thorough job of covering a complex subject. It’s not a quick read and I spent much of August’s study time mulling through its many, multi-faceted chapters.
“This book will help keep you from making the biggest mistake people make. That is: Claiming self defense when it wasn’t,” MacYoung writes by way of introduction, explaining a bit later, “When it comes to self defense, what you believe does not matter. What matters is what you actually did, especially if you were involved in the creation and escalation of the incident–whether you meant for violence to happen or not.”
He puts considerable effort into defining human reactions and where they come from: the emotion-driven, egotistic “monkey” brain, the purely survival-concerned “lizard” brain and the reasoning “human brain.”
MacYoung’s many examples make it hard to deny that most knee-jerk responses come out of our emotional monkey brain, and are status and position driven, even when we try to cloak the motives by saying, “I was just defending myself! He started it.”
In fact, both the offender and the target play ego-games to protect perceived status, MacYoung shows, concurrently demonstrating how failing to respond predictably to games to elicit an emotional response aborts most attempts to stir up trouble. This is crime-prevention taken to a real-life, working level, not the namby-pamby, “stay out of dark alleys” stuff peddled at community safety rallies. This instruction is different: it requires the intended victim to disengage on an emotional level as well as physically. Failing to truly disengage–for example, yelling a final insult while walking away from a brewing fight–will change force you use in the ensuing melee into unjustifiable mutual combat, he asserts.
MacYoung explains that subconscious “monkey” behavior happens on both sides of the fight, and often goes unrecognized. “Consciously knowing what is normally subconscious and how it affects your behavior lets you see the basis for reactions in others and yourself…It allows you to remain in conscious control of your actions–instead of just reacting to what these other parts of your brain scream at you to do.”
“The reason most people get arrested for ‘defending themselves’ is because they weren’t,” MacYoung asserts. Successfully arguing self defense as justification for using force requires not being, in any way, responsible for the events leading to it “going physical.” He cites the many ways people create and escalate conflict in social settings, resulting in mutual combat, identifying four common use of force errors: “The threat isn’t physical; the threat isn’t immediate; they cross into excessive force; they participate in the creation and escalation of the situation.”
Self-defense trainers bear some of the blame when a martial artist or armed citizen steps outside the boundaries of self defense, MacYoung writes. Teaching a final stomp to the neck of an opponent already on the ground or shooting “him to the ground” are two examples MacYoung gives of continuing to apply force where it is no longer justified, or in his words “outside the self-defense square.” Any application of force beyond that strictly necessary to stop the physical assault is not justifiable, he stresses.
The balance between applying only the necessary force to stop the attack is offset by the need to respond forcefully enough that the attacker–if not incapacitated–will chose to break off. This is the other half of the problem, and MacYoung explains the difficulties in achieving incapacitation without going overboard, as happens with ineffective techniques. “The technical term for lots and lots of ineffective force is fighting, this is excessive force, if not outright assault,” he comments, going on to define the “quantifiable differences between insufficient power, minimum force, reasonable actions, and excessive. But they are all built upon effective delivery of force,” he notes. “At best, minimum force is a sliding scale.” He later adds, “All I can do is show you how to assess the danger, scale the extent of your response to the circumstances, and then articulate why it was a good use-of-force decision.” The topic of scaling force to specific situations is a big one, and not within the scope of this book, so he points the reader to Scaling Force by Rory Miller and Lawrence Kane (see review at http://www.armedcitizensnetwork.org/our-journal/277-november-2012?start=10).
Other experts quoted range from Carl Jung to Massad Ayoob, as well as a number of Network participants including President Marty Hayes, Affiliated Attorney Adam Weitzel, and Affiliated Instructors Kathy Jackson and Jeff Meek, to name only a few subject matter experts to whom MacYoung turns for quotations to emphasize points in different words.
I’ll add parenthetically that sometimes MacYoung’s imagery and language is a little rough. This may not be the book to give your great-auntie as an introduction to the self-defense mindset. You DO want to get this book for yourself, then share copies with your instructors and your peers at the dojo and the shooting range who already know that evil exists and are seeking ways to counter it without going to jail.
Readers accustomed to turning to MacYoung for information on how to identify and avoid danger will still find it in this book, but the instruction is subtler than in one of my favorites, Safe in the City. He dislikes the term “situational awareness” exclaiming, “People say, “Be aware!’ I say, ‘Of what?’ If you don’t know what to look for being aware isn’t much help. This book is filled with what you need to look for in situations,” he writes. Additionally, MacYoung emphasizes that although most violence is done within social settings, we train to defend against muggers, robbers, serial rapists, and murderers but are unprepared if we offend someone who fights back. “It came out of nowhere,” we exclaim. Really?
“A situation found in a fair number of cases I’ve worked on involves getting into a dispute with a neighbor,” MacYoung writes. “Sure, you’ve lived next to that person for a while, but what do you really know about him? Add to that mix the fact people get strongly territorial when it comes to ‘my property.’ If something doesn’t go their way, they can become very verbally aggressive. If things go way wrong, the situation goes physical. I’ve seen a lot of situations where two neighbors start swinging over a property dispute.” MacYoung goes on to explain how both parties in a fight contribute to it. “Huge parts of avoiding violence are knowing what causes it, why it happens, where it happens, and who’s most likely to be involved,” he writes. “Then either staying out of those situations or following the rules will give you a giant head start over most people.”
In that chapter, he hammers the “emotional, prideful, self-righteous and aggressive” reactions we feel when confronted with someone whom we believe is doing wrong.
Later he adds, “Large sections of this book are about behavior that led to–and reasons for–social violence. Social conflict–and yes, violence–are so ingrained, we don’t notice what we’re really doing even when we are in the middle of carrying it out. We’re so wrapped up in our emotions about the situation we fail to see the details. Particulars that can–and often do–cause the situation to escalate to physical violence.” He lists reasons people who think they are practicing situational awareness fail, including assuming “everyone does it the way you do things back home” and not understanding that customs differ from one locale to another.
Self-induced blindness is also present in an assailant who will make a convincing statement that he was only “trying to __(fill in the blank)__,” MacYoung adds. “Because such people honestly believe they weren’t being violent, they’ll be convincing when telling others how it’s completely your fault.” This is one reason the many details this book offers about how violent crimes are set up and executed are so valuable. The author identifies actions you must watch for in advance as well as facts you must articulate in the aftermath to sustain your claim of genuinely necessary self defense.
MacYoung mixes in a lot of strategy for derailing a criminal’s attack plan. “Crime is a process,” he stresses. “It’s not only knowable, but predictable. The closer it gets to its goal, the more predictable it becomes.” He defines five stages of violent crime: intent, interview, positioning, attack and reaction, then coaches readers in early recognition, correct diagnosis and effective and legal responses. This element of the book is too detailed for the limitations of a book review, so I hope you will study it on your own to absorb the lessons, which include varied pre-attack indicators as applied to accomplish different goals.
MacYoung illustrates that violence is like driving on a freeway. Often there are easy off ramps that can be negotiated before the incident is going too fast and hard to stop. “The farther you go, the fewer off ramps there are and the harder it is to get off without blood being spilled,” he writes, noting that when you are speeding at 100 MPH it is impossible to negotiate the corner of a 20 MPH ramp safely. In describing these different phases, he also slips in “all kinds of information, tools, and tricks you can use to get the situation off what I call ‘the road of violence.’”
In identifying the mental states leading up to conflict, the difficulty of remaining rational while being attacked, and the aftermath challenges of articulating what happened and why you responded as you did, MacYoung weaves together a treatise explaining why self-defense claims fail and how ordinarily law-abiding citizens end up in jail. He calls the book, “A first of its kind…in that I’m showing you the connection between your pre-incident actions and the legal aftermath.”
“I’m explaining the common mistakes people make that involve them in illegal aggression and how those errors can be turned against you,” he continues. “I’m giving you a way to communicate to your lawyer why he is defending someone who acted within the law. I’m providing critical information you can pass on to your attorney to keep you from being convicted of a crime you did not commit. But most of all, I’m helping keep YOU from committing that crime in the first place,” he explains. In addition, Mac Young addresses emotional and social results, explaining that violence changes you in the immediate aftermath and for the rest of your life.
I could keep writing about MacYoung’s ideas for many more pages, but that would be a synopsis not book review! There is so much more in Marc MacYoung’s new book In the Name of Self Defense that armed citizens need to understand, I hope you will get it and read it.
[End of Article.
Please enjoy the next article.]
by Brady Wright
As we begin September, the hint of fall heralds the change of seasons and, here at the Network, change is in the air, as well.
Before talking about personal changes, however, I enjoyed feedback from our affiliates and Facebook friends about Marty’s recent analysis of the various post self defense support products in the marketplace (http://www.armedcitizensnetwork.org/buyersguide). The calls I fielded expressed a desire for more of the same since this is a valuable topic we need to share with other armed citizens outside the Network website and Facebook page. Please share the above link with other armed citizens online through your own websites, emails, and social media.
The majority of communications I share with Network members comes from affiliated gun shops and affiliated instructors. I pass along what I’m told, so the folks who get mentioned in this column are the ones who regularly supply us with news of their goings on. I’ve noticed that people are a bit reluctant to promote themselves, mistaking it for bragging. Let me assure you that we WANT you to brag! Affiliates, please tell us what you are doing so we can share it with Network members.
Talking about including affiliate news in this column leads me back to the changes I mentioned earlier. In addition to my long association with the Network, I also have another job as the Community Outreach Specialist for an organization called Senior Services of Seattle. In that capacity, I spend time talking with groups and individuals about the many support programs available to seniors and their families throughout the greater Seattle area, concentrating on transportation options.
My job there grew out of my own experience providing primary care for my aging parents during their last years of life. What I learned from that experience convinced me that my career skills in advertising, marketing and promotion could be well used educating people about programs for senior citizens. Senior Services has not done much promotion in previous years, so I am happy to say that my part time position has now become full time. I am excited about taking on the new responsibilities at Senior Services, although it means I will need to cut back the time I spend on Network projects.
Affiliates’ orders for Network booklets and brochures will now ship out of the main Network office, too, so instead of contacting me, please let the office know what you need so your shipments of Network materials can continue to come to you uninterrupted. Still, I will continue to be involved in the Network, so rest assured this is not the last you will hear from me!
Since Gila will be overseeing the projects I’ve been coordinating, it makes sense to hand over the topic to her at this point. Let me say in closing, that I’ll stay in touch as time allows, and that I have enjoyed working with all of our affiliates for these past few years. Instead of good bye, let’s just say, to be…
by Gila Hayes
Heraclitus is supposed to have said, “The only thing constant is change,” and if that obscure Greek philosopher was right, it’s best not to get too attached to any particular way of doing things! This attitude applies especially well to our affiliates’ shipments of the Foundation’s complimentary booklet What Every Gun Owner Needs to Know About Self-Defense Law since our special projects coordinator Brady Wright can no longer fill booklet orders, having accepted a full-time position with his other employer, as noted on the previous page.
Last Friday, getting an early start on handling Brady’s duties, I shipped out 36 boxes of booklets to various Network affiliated instructors and affiliated gun shops. Some were Brady’s “regulars,” but many were going out to affiliated members who answered my email asking if they were still distributing the booklets and recommending Network membership to their clientele. A big “Thank you!” goes to each affiliate who answered my email. Let me add a gentle reminder to the rest to check your supplies of booklets and let me know what you need.
Needing to manage booklet shipments as efficiently as possible, I am asking affiliates to estimate how many booklets they can give out to students and gun shop customers in the coming six months, as it not only saves packaging time but also reduces our postage costs if I can mail larger quantities of booklets less frequently. You, our affiliates, will get what you need; you just don’t have to ask for it so often.
On a related topic, each month I reach out to a sampling of affiliates from whom we have not had a booklet order for a long time, starting with a courtesy email and following up where necessary by first class letter. I get worried when the email either bounces or goes unanswered and grow especially concerned when a first class letter sent to an affiliate is returned undeliverable. I know instructors and gun shops juggle many, many tasks–I’m on the ops team of two successful small businesses, so yes, I do know the work loads involved–
but please, please tell me when you change your email or mailing address.
Now and then we entirely lose contact with an affiliate and after sending emails and first class mail, unless we receive a response, we have to conclude that the relationship is over. When that happens, the affiliate is removed from active membership in the Network and no longer has access to Network member benefits. That’s a step I always regret taking, and it can all be avoided by helping me keep your contact information current!
Apparently Heraclitus axiom “had legs” because there are a lot of variations on the theme of continual change, growth and advancement, even in pop culture! The reality of certain change is evident in our day to day growth at the Network. Every day at the Network is an adventure and I’m looking forward to coordinating more closely with our valued Network affiliates.
[End of September 2014 eJournal.
Please return next month for our October edition.]
About the Network’s Online Journal
The eJournal of the Armed Citizens’ Legal Defense Network, Inc. is published monthly on the Network’s website at http://www.armedcitizensnetwork.org. Content is copyrighted by the Armed Citizens’ Legal Defense Network, Inc.
Do not mistake information presented in this online publication for legal advice; it is not. The Network strives to assure that information published in this journal is both accurate and useful. Reader, it is your responsibility to consult your own attorney to receive professional assurance that this information and your interpretation or understanding of it is accurate, complete and appropriate with respect to your particular situation.
In addition, material presented in our opinion columns is entirely the opinion of the bylined author, and is intended to provoke thought and discussion among readers.
The Armed Citizens’ Legal Defense Network, Inc. receives its direction from these corporate officers:
Marty Hayes, President
J. Vincent Shuck, Vice President
Gila Hayes, Operations Manager
We welcome your questions and comments about the Network.