This month’s Attorney Question of the Month comes from a Network member who is an attorney practicing civil law with a background in insurance. As a state-approved instructor for the TX license to carry, he asked us a very interesting question, which we quickly passed up to our affiliated attorneys. Their comments will run in the next several issues of this journal. Our member asked–
If a gun owner carries a handgun into a prohibited area (designated by statute or signage) and is involved in a self-defense shooting, would the fact the gun owner violated the law by carrying the gun into a prohibited area be admissible as to the mens rea of the shooter?

For example, a gun owner in Texas (with a license to carry and carrying a concealed firearm) knowingly passes a clearly displayed sign prohibiting guns, which meets the statutory requirements. At this point, the gun owner has committed a Class C misdemeanor.

Now suppose that same gun owner uses the gun in self defense. Is the fact the gun owner violated the armed trespass law admissible to the finder of fact in determining an element to murder or manslaughter?

James B. Fleming
Fleming Law Offices, P.A.
PO Box 1569, Monticello, MN 55362
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Mens rea today is a concept largely talked about in legal texts and seldom discussed in courtrooms. It focuses on the mental state of the accused, and its definition and scope will vary depending entirely upon the elements of the crime charged.

Capital murder requires evidence of malice aforethought, or in modern terms, premeditation. By the time you drift down to manslaughter that mental state might be articulated as reckless disregard. You did not intend to harm the victim, but you disregarded a clearly evident risk that they might be harmed by your actions. How would evidence that the accused had committed a misdemeanor crime of carrying a firearm into a gun free zone be relevant to the question of whether the elements of the charged crime have been proven? Might depend upon a number of intangibles.

In MN for example, if I carry a firearm into an area posted as a “No guns allowed” zone, I commit no crime, unless the person controlling that area, such as a home owner, or business person requests that I leave or disarm.

So, I’m at Fuddruckers, which is posted “No guns allowed” and I am carrying a pistol. Freddie the Felon storms in shooting into the ceiling and wildly pointing his gun at people, including my wife. I pull my own gun and shoot Freddie in the head, cancelling his ticket forever. No charges for having the gun.

But, did I hold a reasonable apprehension of immediate death or great bodily harm to myself, or my wife? If so, was it reasonable for me to use deadly force? If so, was it reasonable for me to blow a hole in Freddie’s skull? Those are the only relevant questions and evidence that I disobeyed a “NO guns” sign is irrelevant to the inquiry. In those jurisdictions where carrying into a posted GFZ is a crime, is that crime an element of the crime charged against me for the same shooting of Freddie? Very doubtful. Therefore, again, is it relevant? Will the prosecutor want to get it in? Of course. Will the judge allow it? Who knows? Might it prejudice the jury? Of course, that is why the prosecutor wants it in, and why the defense attorney wants it kept out.

But does it have anything to do with the state of mind of the accused? Too many intangibles to predict. What if I have no gun, and when Freddie points his pistol at my wife, I suddenly grab a sharp steak knife and ram it through the side of his temple, killing him instantly. I guess the point of all of this is that often times, people want certainty in their dealings with the law and the legal process is not a place where you go to find certainty. So as is often the case, the answer is, “It depends.”

Thomas Cena, Jr.
Attorney at Law
3929 Bridgeport Way W., Ste. 304, Tacoma, WA 98466
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I think the answer to this question requires an “it depends” kind of response. The facts of the situation, the concept of prosecutorial discretion, and the motions made to the trial court in limine are all important factors.

Assume the situation involves the person claiming self defense, who does commit a Class C misdemeanor. If the prosecutor clearly sees that the situation involves the shooter defending herself, she may not charge a homicide at all. The prosecutor may or may not charge the misdemeanor. If the prosecutor sees a homicide, he may well seek to have the jury hear facts regarding the unauthorized possession of the firearm, and may even charge the misdemeanor as a separate count in the information/indictment. If the prosecutor believes the shooter deliberately targeted the person shot (the alleged “bad guy”), she may seek to introduce carrying the gun into the prohibited area as a part of the “mens rea” of the crime to show premeditation.

So it depends on how the situation looks. Then depending on those facts, the defendant may (and in many situations should) ask the trial judge in limine to order the prosecutor to refrain from mentioning the facts, which would constitute only the misdemeanor.

Kenneth D. Willis
Cherry Hills Village, CO 8011 and Jackson, WY 83001
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Assuming the self-defense claim was not accepted by the prosecutor and the person is charged in the shooting and the misdemeanor in the same trial it would be part of the evidence in the case, but I don’t think it’s relevant to the person’s state of mind in the shooting. The defendant could keep it out by pleading guilty to the class C misdemeanor before trial of the shooting case. A prosecutor might then try to get it in as part of the res gestae. I believe most judges would keep it out as not being helpful to the jury’s understanding of the context in which the shooting took place.

Even if the defendant testified in the shooting trial it’s only a misdemeanor so could not be used for impeachment purposes.

Change the facts just a little and assume the person whom the defendant claims attacked him was previously known to him and there had been previous arguments between them. That would change everything.

If the person one claims to have shot in self defense happens to be someone they know that alone will likely change the nature of the investigation, and if the detectives find previous disputes between the shooter and the one who was shot it will raise suspicion even more. But it doesn’t necessarily mean that it wasn’t self defense, just that the detectives will want to look into that aspect a little closer. If they come to believe that the person was willing to ignore the no gun signs because he was intent on settling a score with somebody that happened to be on those premises, then the firearm trespass will indeed be relevant to the mens rea element, or state of mind of the shooter at the time. But it still seems minor and of little importance compared to what the rest of the evidence will likely show if in fact it was not self defense.

John R. Monroe
Attorney at Law
9640 Coleman Rd., Roswell, GA 30075
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In my state (GA), the carrying in an unauthorized location would not be admissible. In fact, if the person lawfully defended himself, he is immune from prosecution for the illegal carrying. If you do not lawfully use self defense, then you do not have immunity from prosecution for the unlawful carry so the fact that you were carrying illegally could be introduced.

Eric W. Schaffer
Attorney at Law
Schaffer, Black & Flores P.C.
129 W. Patrick St., #5, Frederick, MD 21701

Perhaps because of how hard it is to get a permit to carry in this state, MD does not have any statute that permits private property owners to bar concealed carriers from entry onto their property. MD does have some areas (public schools, governmental buildings, correctional facilities, etc.) that are barred by statute. If you carried in one of these places and had to use your gun in self defense you would almost certainly be charged with wearing, carrying or transporting a handgun illegally (a three year misdemeanor in MD).

Maybe this charge would be relevant to the finder of fact in determining an element to murder or manslaughter if the victim of the shooting was known to the gun owner beforehand. A prosecutor could make an argument that the fact that the gun owner willfully violated the law indicates his shooting of the victim was premeditated.

However, in the larger scheme of things this would be irrelevant. Either the gun owner had the four required elements of self defense in MD or they did not. The fact that they might have been carrying illegally would not prevent lawful self defense from being a complete defense to murder or manslaughter. What it may do as a practical matter is make the prosecutor less likely to dismiss the case pre-trial as a lawful shoot and make it more likely that the gun owner would have to go the full distance with a jury trial in proving self-defense.

A big “Thank you!” to all of the Network Affiliated Attorneys who responded to this question. Please return next month when we share the rest of our Affiliated Attorneys’ comments on this interesting topic.

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