Supporting an Argument of Self Defense

 

Supporting an Argument of Self Defense

The thoughts we'd like to share this month started as a discussion about the various factors we've observed in cases that make the news. The most evocative reports actually contain elements of self-defence. Still, the armed citizen in question has lost the claim that they were the innocent party in the incident. Some fundamentals were necessary to preserving your right to argue self-defence can be accounted almost like a Letterman Top Ten List. First, let's outline the underlying and basic requirements for a legitimate claim of self-defence.

How to Spoil Your Self-Defense Case

by Art Joslin, J.D., Director of Legal Services

Laws across all jurisdictions generally have three things in common when claiming self-defence after using any level of force.

1. You can't be in the commission of a crime;
2. You must be in a place you have a legal right to be; and
3. You must have an honest and reasonable belief force is necessary to avoid being killed or crippled. Some states have worded these three elements differently, but the intent is the same.

So, how do people blow their self-defence case before they even start? Violating one of the above elements will do it for sure.

Several things need to be clarified in the aftermath of a justifiable shooting. I understand the advice of not talking to the police if you are so distraught, so emotionally out of control from adrenaline, that you can't make coherent statements. However, one of my mentors, Massad Ayoob, for many decades past, developed a five-point checklist of facts police need to be aware of that is widely regarded as sound advice, and I teach it to my students, as well.

1. Establish the active dynamic. The active dynamic is what the assailant did to you, not what you did to him. In a pool of blood, the assailant will look like the victim, and you need to establish what he did to you that caused you to use force.
2. Advise police you will sign the complaint. Don't say or do anything that makes the police think the roles of victim and assailant have reversed.
3. Point out the evidence. You and the first responders just walked on stage and entered a chaotic scene. Evidence can get lost, transferred, destroyed, misplaced, and carried away. Early on, be sure you point out where that evidence has landed. This will bolster your credibility both in the moment and after the fact.
4. Point out any witnesses. Before they leave the scene, point out any and all witnesses who saw what happened and those who may have heard what happened. Wouldn't it help your case if you could have police interview a witness who heard you declare multiple times, "I don't want to fight"? What about the witnesses who saw everything and can attest to you not being the initial aggressor? Wouldn't that be helpful, too?
5. Decline to answer any further questions without counsel. Other than identifying yourself to the police, politely decline to answer any additional questions until counsel can be retained. Always cooperate with the police. Let them know they will have your full cooperation once you have sought legal counsel. You should never decline to identify yourself to the police.

Violate the five-point checklist, and you might undoubtedly ruin your claim of self-defence. A few other ways you can destroy your claim of self-defence is to fail to do any of the following:

1. Cooperate with the police. I've experienced far too many people who turned out to be not guilty of the initial crime but received additional charges for fighting with police. If the officer says you're under arrest and are going to jail, don't fight or argue with them. Those words mean that you are going to jail no matter what you do or say. Don't be the one with added charges like resisting arrest or obstructing justice.
2. Give the police your real name. Yes, it happens all too often. Trying to conceal your identity will always come back to bite you. If you genuinely believe you are justified in using force, why would you lie about your identity?
3. Never lie to the police! Do I even have to bring this up? You will eventually get caught when witnesses are interviewed and evidence is presented. Here's the point: If you lie, the prosecution will use this against you at trial. "You lied then; why should we believe you are telling the truth now?" You've lost all credibility with the judge and especially with the jurors. Unless your defence attorney can legitimately show your "lie" was made under duress, this is not a good place to be.
4. Never conceal evidence. Concealing evidence will make police immediately believe you are guilty because you attempt to hide evidence. You can undoubtedly photograph evidence on a cellphone. Evidence such as where shell casings landed, witnesses in the immediate area, etc., could be helpful to your case.
5. Do not be the initial aggressor. Even if you must resort to legitimate self-defence, starting the fight can spoil most chances of winning your case. Being the initial aggressor (and some states have added the factor of "provocation") means you will be looked upon as the assailant. Most states allow you to regain your innocence by announcing in a loud, clear and concise manner that you do not want to fight, you're leaving the fight, and you are retreating from that place. If the other party chooses to continue the battle after your announcement, they have become the initial aggressor. This changes the dynamic of the encounter.
6. Do not provoke violence. If you are not the initial aggressor, do not invite the other party to use force. This is very akin to being the initial aggressor. You may not have started the fight, but choosing to stay in the fray and provoke your opponent can have similar repercussions. If you can safely retreat, why wouldn't you?
7. Do not use force too soon. Lawful firearm carriers often get into trouble because they go to the gun much too soon. Remember, deadly force can only be used against the threat of deadly force being used against you. That threat must be honest and reasonable. You cannot simply state you were in fear for your life without articulating what that threat was.
8. Do not use force after the threat has passed. Deadly force can only be used against the threat of deadly force being used against you immediately and unavoidably. We've all read about situations where a person exited the immediate vicinity of the fight, went away, got a gun, returned, and got into a shooting. Likewise, if the aggressor withdraws and no longer poses a deadly threat, you may not use force to drive home your point, no matter how frightened or upset you may be.
9. Don't discuss your case with anyone but your attorney. The urge to speak to family, friends, and others about what happened will be overwhelming. Do not make any statements to the media. Let your attorney do that if they choose. Even telling your closest friends what happened, simply to "get it off your chest," can prove disastrous. Remember, there is no lawful confidentiality accorded to statements you made to your best friend unless they happen to be your licensed counsellor or clergy. If you want to talk and get things out, do it with a professional.
10. No bravado. The prosecution will be looking for photos and statements on social media to attempt to use against you. That t-shirt you wore on a fishing trip that reads, "Kill 'em all, let God sort 'em out" will not benefit your case when you're at trial (or any other time). Remember, the government wants to portray you like a wild west, hair-trigger maniac who wants to go out and shoot up the town. Don't supply evidence that they might use against you.

All of the points above are not meant nor intended to be legal advice. However, each issue is practical advice I would include in any firearm training class. I highly recommend getting the advice of competent legal counsel in your jurisdiction on these enumerated points as soon as you can. Remember, in the aftermath of a defensive encounter, you will have so much more to think and worry about. In a justifiable shooting, don't be the one who accidentally or even purposely gives the other side ammunition to prosecute you with. Be safe and be well.

__________

At Joslin, J.D, D.M.A. is the Network's new Director of Legal Services. Contact him with your questions and comments at ajoslin@armedcitizensnetwork.org.

 

To read more of this month's journal, please click here.

Our Supreme Court elections mean more than your think!

 

The murder of 62 million children since Roe v Wade leaves a mark on our Nation that, if not remedied, will cost the very soul of America dearly. If the US Supreme Court decides to reverse Roe v Wade this summer, do we want Trey Allen to decide on abortion law in the NC Supreme Court or a solid conservative like April Wood? Elections are important and have consequences far beyond the current issues, such as the Marxist infiltration of our house of representatives, the destruction of our southern culture in the name of equality, or who will pay the tax (the price) for the blatant invasion of our southern border. All of the above cultural issues will end in a court of law at some point in time or peacefully by-elections.

If not in court or elections, then other methods of social constructs and societies making changes are unthinkable. Still, if the people's will is continually stiff-armed, the result is returning the French mobs of the Jacobins and Sans-Culottes. Again, an unimaginable place to be in the modern world. I'm sure some who completely disagree are chuckling at the thought of American society going into chaos - So did the Sun King's son and his court lackeys after the tennis court oath. (1789) What tipped the Revolution was something as simple as the third estate(lower class) having to remove hats when the King entered the court. Why? Try thousand years under the whip of the aristocracy. After many generations of blood droplets, the droplets finally became a river of blood, purging the tyranny of the First and Second Estates. Our founding fathers agreed a court system needed to be a cold but objective machine - which all men, great and small, would have excess to the legal system and settle their differences. - not with street violence.

Can't happen here? Many social problems are coming to a head in the next few years. Including the stagnation of wages since the 1970s, mothers not having any baby formula, massive debt among our young people, supply chain down, an invasion from the south, nuclear war on the horizon, and finally, elected officials who do not love their country. After many decades of universities producing neo-Marxist who hate America first, we now have leaders who go to Raleigh or Washington only to show their values or adapt to the majority worldview as they never had the moral courage from the beginning. Facing all this, our vote for April Wood is critical moving forward. We must NOT vote for an attorney who is not only a product of a liberal Madrasas but stayed and taught in the Madrasas, which appears to be the summation of Trey Allen's career - April Wood's opponent and the system's darling.

Very few elections occur where the voting has the opportunity to right so many wrongs, and the candidacy of April Wood is one of these elections as the US Supreme Court continues to eliminate the Federal government's mandates and turn these critical decisions back to states. It wouldn't be a shame to see a creature of the liberal madrasas making these critical cultural decisions when NC voters had the opportunity to place a solid conservative constructivist in the high office of our State's supreme court and give the court a 4-3 conservative majority. VOTE APRIL WOOD!

The Forgotten American, some call it treason, some call it a poor man's fight.

                                                            

 It is tempting to look at the Civil War through the eyes of the 21st century. But what was life like in 1850? Imagine yourself living in the 3 miles per hour world, where you lived and died within a 15 to 20-mile radius of where you were born. Conventional 19th-century wisdom held that a man on horseback could cover about 20 miles a day without harming his mount. Such was a typical life before the automobile, as noted by Henry Ford. A world such as this one has limited information sources. If you could read, newspapers and local institutions such as churches controlled much of your perspective. The wise old man of the village could offer some advice if passing something along to you could be justified by his social class (the planter class). West Point trained local Militia Officers. Again, the officers might release a nugget or two of information during weekend muster if it was their self-interest. Such was the world of the Southern States. Where filtered information was the norm. It remained this way from the end of the American Revolution until the Spanish-American War. Even longer in more insular communities such as Northeastern North Carolina. In simpler terms, you were a captive audience member in the Old South as far as new ideas and information were concerned.

Socially, if you were a yeoman farmer, your farm typically had no slaves, just family, a few labourers and a lot of hard work from sun up to sunset. Such people had little time to reflect on the more significant issues of the day as life was hard scrabbling in the swamps of Northeastern North Carolina. Travelling to town was a big event each month. Attending church 3 times a week and making muster with the local Militia were significant social and cultural events in the South. These institutions fed a person a 72-year inter-generational diet of God, Country, and State rights. The founding of the nation was still fresh on everyone's mind. People understood that the government was founded on secession from England, and the Declaration of Independence was the document that outlined their separation from England. The institutions taught Citizens that the new federal government was the glue that held the states together and that state secession was the ultimate check to keep the federal government from tyranny.
After 72 years or longer, North Carolina was confronted with secession and "state's rights" after an incubation period. North Carolina was reluctant to leave the Union and, at best, lukewarm to the idea of joining the Confederacy. Many of its citizens were yeoman farmers and middle-class craftsmen, all of whom paid a living wage to labourers living on their property. Labourers were free to come and go as they pleased and free to leave and obtain a higher salary if there was one available. Do not dismiss the Quaker influence in North Carolina, specifically in Northeastern North Carolina. We should be proud that this area was a stronghold for the Underground Railroad, which couldn't have happened without cooperation from many of its people. These "opposing tensions"- loyalty to the State of North Carolina and making a cooperative independent living- shaped the 1861 decision to leave the Union. South Carolina was first to secede, and then Virginia. North Carolina was in the middle. However, once Governor Ellis and our legislature decided to leave the Union, the rank and file men of the local Militias mustered for service without question as they had been "classically conditioned" to do. Many of their ancestors had mistakenly fought on the bogs of Culloden for the "pretender" to the Scottish throne, Bonnie Prince Charles. Loyalty and fidelity are just in the "DNA" of some cultures.
We must conclude these yeoman farmers and craftsmen thoroughly inculcated the idea of States Rights based on even the slightest glance at this period of history. Yes, State's Rights. Some dare call the political philosophy treason from the manufactured synthetic-pop-culture morality of today. If this theory is treason, why were West Point Cadets taught State's Rights in Constitutional History before 1861? West Point, a federally owned educational institution, was funded by the United States Government. Adding further evidence, the United States recognized State Rights as a legitimate right of governance. Why would the government train the military otherwise? If the philosophy of State's rights was or is treason, then evidence indicates it was State-sponsored before 1860. For the purpose of this article, I will not touch on the Magna Carta, which turned 800 years old in 2015. Nor the Scottish Enlightenment nor the Glorious English Revolution of 1688 gave the Englishman their bill of rights and set the social and political course of the American Civil War. I will not include a discussion of the Mayflower Compact or the American Bill of Rights, which included (or implied) state Rights political theory of Nullification. Daniel Webster or each colony considered itself separate and independent at the signing of the Declaration of Independence. And finally, I will not touch on the Morrill Act, which taxed 20% of the South's wealth and paid the fee directly to Northern manufacturers who created regional mass inflation to purchase finished products for the Southern. Southern's paid 12 times more for finished goods than their Northern friends. The lower Southern States exercised State's rights and forged a free trade zone in response to the Morrill Act. Think about it in a modern context, how would such a  gross economic disparity go over while drinking morning coffee if your wife in Charleston paid 12 times more for a pair of shoes than her counterpart in Boston?


No, I only want to reference the rank and file soldiers whose wives, children, and grandchildren wanted to honour these men's service and memory with a simple monument on the public square. How important was it for the post-war Southern Culture to recognize the rank and file soldiers of the Confederate Army? Many families could only give their hometown monument committee 15 cents per year or less. These nominal amounts of money represented an entire year's worth of disposable income in most cases because the South was living under the military occupation and economic despotism of reconstruction. The Elizabeth City monument was erected in 1911, the memories still fresh of the war and the occupation in many a person's minds.
This article has attempted to create a synopsis of the many conversations I overheard as a child of these Confederate Veterans' children and grandchildren. I wanted their voices to be heard and, in some small way, enter the current social conversation modern America is having over the Confederacy. It's hard for a modern reader to understand North Carolina's reluctance. And how an intermediate state could have given so many soldiers and lost 40,275 lives to a cause from which most wouldn't benefit from its outcome either way.



Most Confederate Veterans who were lucky enough to survive and rebuild had one lesson to pass on to their children and families: "It was a rich man's war and poor man's fight." These monuments all over the South represent the memories and honour of that "Poor Man's fight."