The Top Three Errors Armed Citizens Make In Self Defense
An Interview with Marty Hayes, J.D.
by Gila Hayes
Marty Hayes brings 30 years of expert witness work to his role as Network President. In those years, he has worked on cases needing an expert to untangle facts that could exonerate the client or explain the evidence so a jury can understand what happened. Through his work, Hayes has observed the criminal justice system–prosecutors, attorneys, juries and judges, as well as the defendants and the actions that landed them in court. In an effort to help Network members avoid some of the difficulty that befell those men and women, we’ve asked Marty to synopsize the most prominent lessons he’s learned that can keep armed citizens out of court.
eJournal: As you think about clients you’ve helped defend, can you identify the leading issues that make gun owners harder to defend in courts?
Hayes: A lot of times I get consulted on cases where the person is drunk, and I am not just talking about having had a beer or two, I am talking about getting hammered. They are carrying a gun and their drunkenness leads to poor decision making which leads to them committing a crime. For example, I just turned down a case that started when three people went out drinking. Two of them lived in the house where the shooting occurred. They invited the third to continue drinking with them in their home after the bar closed.
Now, at that point, nobody had any weapons on them and everything was good. The lady went to bed and the two guys stayed up for a while longer. An altercation ensued. There was some pushing and some shoving and a punch or two and the defendant in the case decided he was going to go get his shotgun. He went and got his shotgun and he came back down and for whatever reason, he shot their visitor dead.
Now, he claims it is self defense. He claimed that he was afraid for his life and the guy had an object in his hand that he thought was a gun so he shot him. Well, if he hadn’t have been drunk, I am positive that this would not have taken place. That is the number one problem that I see, and I see it a lot. I get a lot of cases where the individual had been drinking.
eJournal: Have you had cases where you thought what the armed citizen did would have been considered lawful without the complication of his or her intoxication?
Hayes: First, you have got to understand: Cops hate drunks! They deal with drunks all the time so if the cops show up on the scene and somebody has been drinking, even if everything he did was acceptable, there is a huge aspersion cast upon that individual. He is going to have to be injured or there are going to have to be witnesses to show that he had no other choice, because the cops are going to think that he is lying, because drunks lie all the time. That is a problem!
eJournal: What about once the case passes from the hands of the police? A district attorney or prosecutor has to make a charging decision, presumably based on the evidence.
Hayes: The prosecutor is going to take the word of the cops, and if the cops believe there is probable cause to arrest, based upon the injury or death of the “victim,” the prosecutor is going to go with it.
While there may have been a self-defense claim made at the time of arrest or the attorney claims a few days later, “Hey, my client was acting in self defense,” I can see the cops rolling their eyes and the prosecutor rolling his/her eyes and saying, “Oh, yeah, right.” A lot of criminals claim self defense because there is no other possible thing to claim, even when it is not self defense.
It is like the drinking case I talked about first: the guy is claiming self defense, but as I told the attorney, there is nothing there I can work with. I have no doubt the guy is going to be convicted of second-degree murder if not first-degree murder.
eJournal: But how much is too much? Drivers are subject to gradations of drunkenness that determine if a crime is charged. Are there similarities when an impaired person uses deadly force?
Hayes: Well, you’ve got to draw the line between being drunk and having had a drink or two. It is a lot easier to justify a drink or two. A lot of it depends on how the armed citizen reacts after the incident in the interactions with police.
An individual who has had some alcohol and has used a gun for self defense does not always get convicted. It is a lot like that idea of driving a car after you’ve had a drink or two. If a cop smells alcohol on you, the cop is going to ask you about it and if the smell is strong enough, the cop is going to yank you out of the car and have you do a field sobriety test or a portable Breathalyzer®. If you haven’t had a lot to drink, then there is not going to be a problem. I think the same holds true for the armed citizen. I am not saying you can’t have a drink or two with a gun on your hip, but I think that the armed citizen would be very, very wise to take the same approach that they would in driving: don’t drink more while armed than you would if you were going to be driving a car.
eJournal: Some state laws, MI, NV, LA come to mind as just a few, make it illegal for you to carry your gun once your intoxication level exceeds a certain limit.
Hayes: Many concealed carry laws contain provisions written into the statutes that you can’t be intoxicated or drinking and carrying a gun. I do not have a problem with those statutes. I pretty much hate all gun laws except those prohibiting violent felons from possessing guns, but the fact of the matter is I cannot see a real downside to laws against carrying a gun while drunk.
eJournal: I’m not sure if this is hypothetical or if you have a case on point, but that comment makes me wonder about the armed citizen who goes home and only then imbibes. Someone breaks in and the homeowner goes to where they store the guns and they shoot a home invader. Is that just as messy as a shooting in a bar parking lot?
Hayes: I do have a case on point. Several years ago a student of the Firearms Academy of Seattle had been living at his parents’ home. They had a barbecue going on and the student had two or three drinks. He still had his pistol on him. Believe it or not, a couple of magazine salesmen showed up and started to convince the parents that they needed to buy their magazine subscriptions.
The son felt like his parents were being taken advantage of and he confronted the magazine salesmen at gunpoint. I don’t think he pointed the gun at anybody, but he did brandish the gun because they were being belligerent. He convinced them to leave. Of course the magazine salesmen called the police. The police show up and they arrest the son and they confiscated his gun.
We worked very hard to get that case dismissed. We did get a deferred prosecution in WA State where the prosecutor offered, “OK, if you stay clean for the next year, we will drop any charges and you can move on with your life.” I thought that was a pretty good resolution.
Really, the number one problem I see is alcohol and firearms.
eJournal: What is second most common?
Hayes: Lying to the police, whether intentionally telling a lie, stretching the truth a little bit or just simply being inaccurate. The last one comes from telling the cops too much, from sitting down to a formal interview, giving a taped statement, without a lawyer. You are crazy if you do it.
Or maybe you embellish just a little bit and then all of a sudden a witness shows up and says that you weren’t punched three times, just shoved once. After that, you are a liar and the train starts going down the railroad tracks headed for prosecution and conviction ultimately.
eJournal: Have you worked on cases where you knew the client flat-out lied to the cops? What does the defense team do in that situation?
Hayes: The defense attorney tries to plea bargain. The attorney would say to the prosecutor, “OK, we know that we have a strong case here, but we also acknowledge that the individual lied.”
eJournal: Have you advised on such a case?
Hayes: A case out of Colorado that I worked on comes to mind. The man had justifiably shot three individuals. He was being attacked inside a home where he had a right to be and he shot three people.
Everything was OK right up to the point that he answered a question by saying that no, he does not take drugs. A blood test was done for some reason and the guy turns up having used cocaine within a few hours of this incident. The guy was a recreational cocaine user, but there was no reason to believe that what he did was affected by it.
I did not see anything in the case that showed me that the guy was impaired, but he had to take the stand and he had to discuss it or he was not going to get off at all well. The jury heard that he lied about it. Half of the jury would have acquitted him, but half of the jury chose not to believe a lot of what he said because he lied about the drugs.
This case ended in a hung jury. Of course, there was not any more money for another fight. The prosecutor offered him an unspecified felony, credit for time served and he took it so he didn’t risk going to prison. He had already been in jail for about a year.
So, lying to the police is an issue, but also there’s what you say in any statements to police after you have had your Miranda warnings read to you. That can go against you a lot of times. The police are not your friends.
eJournal: That’s one reason the Network puts such emphasis on getting funding to attorneys to represent members as quickly as possible after the incident.
Hayes: But there’s also the issue of how to initially show the police that you were the victim of a crime. That is the great paradox of what we do. We don’t want to be discussing the incident with the police but the police have to know the criminal act the person was doing that caused you to shoot him, brandish your gun, or whatever you had to do to stop the criminal act. With a lot of good luck, there will be two or three witnesses that can say what happened without you having to give any statements to responding officers.
eJournal: The things you say in the 9-1-1 call also need to match up with what you say later.
Hayes: But you do have to call 9-1-1 if you are the only one around and you can’t call and just say, “I’m at 123 ABC Drive, send the police” and hang up. That’s going to sound pretty stupid playing in front of a jury. You have to tell the police that you were the victim of a crime, but you don’t give them anything to hang you with.
The jurors are responsible citizens of the community and they are going to judge you by the standard of what they would do under the same circumstances. You know that they would call the police and let them know what is going on. They would be a good witness. That gets back to the first problem: you are a heck of a lot better witness if you have not been drinking.
That pretty much wraps up the second biggest problem I see: lying to the police or giving details to the police when there really is no need to.
eJournal: I’m glad you brought out the aspect of initially giving way too much detail, because when you mentioned lying to police originally, I just couldn’t get my mind around why anyone would do that, knowing how the investigation’s going to turn up discrepancies. My goodness! How many times will you have to tell the story you exaggerated or fabricated? How do you think you can maintain the integrity of that fabrication under repeated questioning?
Hayes: People don’t understand that a good shooting incident reconstructionist can do a pretty good job of figuring out what happened, assuming there is sufficient physical evidence, bullet trajectories, blood spatter, stippling, ejection pattern of shell casings. You take all that and you can piece together what happened and you can certainly say, “Well, what the guy is saying did not happened.”
eJournal: Have you been the expert on cases where the physical evidence did not match up with the accused’s statements?
Hayes: Yeah, a lot of times. A lot of times when I get called in on a case it is because the defense needs to reconstruct the shooting incident. I am working on one right now, so I can’t give the details, but we went to the shooting scene and we discovered evidence that the police had overlooked. I collected that evidence months after the incident because I knew what to look for and where it would likely be.
eJournal: What is the third most common reason armed citizens end up in court with cases that are hard to win?
Hayes: Excessive use of force. There are two issues here. The first is when someone pulls a gun too soon. I see a lot or cases where because someone was afraid, they pull and point the gun at the person or persons who are causing the fear. But, they cannot articulate exactly why they felt fearful, nor can they articulate the immediate threat to them. They just yank that Roscoe out and start waving it around. There are laws against such behavior and if you do that in public you will likely get arrested and prosecuted for aggravated assault. Most of the time, these people have no training to revert back to under the circumstances, or if in a state where they must get training to get a carry permit, that training is inadequate. The more good training one has, the more confident they should be in their ability to handle a confrontation, and the less likely they pull the gun too soon.
eJournal: So, what is the second issue?
Hayes: The second issue is when they actually start firing the gun. Many people fire way too many shots, for a number of reasons. When that occurs, the individual starts reacting to being shot, they twist, turn and fall down. And, they are reacting to the first couple of shots, but it is shot number three or four that end up hitting him in the side or back. Were all those shots necessary? That’s unknown, but if the person had taken the time to actually aim the first one or two shots, instead of pointing the gun and yanking on the trigger, they might have just seen the person change their behavior and stop the attack. Shots in the back will very likely result in prosecution.
eJournal: Well, many drills and exercises literally train us for speed shooting. That is the part of most school standards.
Hayes: Yes, and I pull my hair out when I hear garbage like, “You have to get your shot to shot times down to two-tenth of a second splits.” Give me a break! This isn’t a darned IPSC match, you know, and you are not Rob Leatham. You don’t need sub-point-two-second splits. Every time you pull the trigger, it needs to be a purposeful act, not an ingrained habit.
eJournal: That’s worth the price of admission. Please say that again.
Hayes: Every time you pull the trigger, it needs to be a purposeful act, not an ingrained habit. Let me explain what I’m talking about. For many, many decades it was in vogue to teach, “If you have to shoot once, you have to shoot twice,” and the term “double tap” came about, and the term “controlled pair” came about, and the term “hammer” came about, as a result. That’s all good, and in fact there had been a whole shooting sport centered around two shots fired at each target. The general sport of practical shooting is that way and the individual disciplines of USPSA and IDPA shooting pretty much center around requiring two hits on each target all the time.
Well, I tell you, I run an IDPA club and most of the time in a given match, we have specified perhaps one shot required or maybe two shots or three shots, but we never have a match where it is always two shots required. Having said that, when I put a stage out where we are requiring three shots, so many times, I see people fire two and start to move to the next target, then they think, “Oh, yeah, I had to shoot a third time so they come back and shoot a third time. Or if only one shot is fired, they go ahead and fire two and sometimes they even pick up a time penalty because you are only supposed to shoot one shot. It has become an ingrained habit, when it really should not be.
Part of the problem–and I am going to get all kinds of hate mail on this but I don’t care–is that the people are shooting 9mms and because of their ease of being able to shoot that gun, they are going to shoot it a half a dozen times. I have personally gone away from using a 9mm. At one point I carried one on duty as a cop, but then the .40 caliber came out and I started carrying a .40 and recently, I switched over to a 10mm because if I have to shoot someone, I want to purposefully shoot him once maybe twice in the center of the chest or head and stop shooting. Here’s the deal—if two shots didn’t work, then three shots probably aren’t going to work, either. I will go ahead and stop and I am training myself to do that all the time. So, one shot, maybe two, but they are going to have to be purposeful acts.
eJournal: You’ve said a lot about the excessive force problem being linked to a high number of shots. I wonder if the problem doesn’t sometimes start before that, where you certainly have an assaultive individual,
but will the trier of fact think that shooting was necessary? Have you been part of trial teams where shots were fired when perhaps brandishing was appropriate, but not shooting?
Hayes: Great question and I’ll get to it but before addressing that, I’d like to go back to firing too many shots. In the Colorado case I talked about earlier, there were three individuals involved in his beating. They had him on the ground and they were kicking his head before he was able to get to his gun and start shooting. He fired eight shots in just a brief period of time, maybe three or four seconds, and I believe he fired eight shots and he hit four times, the details are a little fuzzy after all this time, and it was very interesting. The prosecutor, in the middle of their case, when they realized that they are not going to be able to get him for attempted murder or murder, switched to the concept of manslaughter, saying that he was reckless in firing so many shots so fast because 50% of them missed. Well, that argument didn’t work out too good and didn’t do them any good.
Another case I worked on–I’m not going to say there were too many shots fired–but four shots were fired and four shots hit and the last shot hit the guy in the back and then he fell down and he died. If the individual had fired three, there was probably a pretty good chance he would not have been prosecuted. The D.A. saw that shot in the back and he said, “There is no way we are going to let our citizens be shot in the back and not have the shooter prosecuted!”
eJournal: So as not to lose our earlier question, is it time to return to whether shooting was the right response?
Hayes: I can’t think of any cases that fall into that category.
eJournal: Is that because your expertise is more focused on guns and shooting, instead of physical force?
Hayes: Yes, I think so.
eJournal: Well, that wraps up the top three. Briefly, what other factors get people in trouble after self defense gun use?
Hayes: Failure to document training or not being trained to begin with. Here’s the deal: the jury gets to view the evidence that is presented through the eyes of the defendant, but the defendant has to be able to explain to the jury what he or she was feeling, seeing and perceiving. If they don’t have specific training to rely on to be able to say, “Because of this training I perceived this was about to occur,” if they just say, “I had a bad feeling,” that is not going to be enough.
The foundational work is the concept of pre-attack indicators. Members of the Network have all had training on pre-attack indicators in the video with Marc MacYoung. This is why we felt that training program was so important for every member to view, and why we put it out so early on in our educational lecture series. Of course, the knife defense, the Tueller drill concept is an important part of it, too, if you are dealing with a contact weapon. The ability to articulate why that individual was a documentable threat to you is huge. You have got to be able to explain to the jury and fall back on your training to let the jury know why you felt that your life was in danger or about to be placed in danger.
eJournal: Anything else?
Hayes: Yeah. Don’t be a jerk.
eJournal: Words to live by!
Hayes: When the police show up, they don’t know what is going on. If you cop an attitude with the police because of some stupid stuff you’ve been reading on the Internet about how all cops are out to hang you, it is not going to go well for you. You need to be Mr. Politeness or Ms. Politeness after an incident. You need to be saying, “Yes, sir,” or “Yes, ma’am, I’m sorry, I want to cooperate fully just as soon as I have counsel here.” Don’t be a jerk! Yes, the quote that an armed society is a polite society are words to live by and you need to hold up your end of the bargain and be polite!
eJournal: That makes a great closing thought. We do need to be unerringly polite and maybe that will prevent even needing to act in self defense.
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