Reasonableness and Stopping the threat

“While [Appellant’s] belief may have been real to him, it was not reasonable and therefore the use of force used by [Appellant] was not justified.”

That distinction is lost on many people, to their legal peril. Just because someone thinks they’re in danger of serious bodily injury or death doesn’t mean the court is going to accept that state of mind. State of mind has to be reasonable. “In fear for my life,” a subjective test, has become something of a mantra but in the absence of other objective factors, it may be unreasonable.

“The evidence offered at trial illustrated that the volume of shots fired and the intended aim of the shots inflicted on the victim were above and beyond self-defense.”

This is not the first time we’ve seen this defense fail. Shooting rapidly to ‘stop the threat,’ i.e., using a pistol as if it were a shotgun, won’t always hold up in court. The ability to think while shooting is an important skill.

Also to be noted are that the Trial Court limited the testimony of one expert witness to certain areas and completely excluded another expert’s testimony. The Appeals Court upheld both the limitation and exclusion. Just because your attorney wants to have someone testify on your behalf doesn’t mean the Court will allow it.

The circumstances of the incident from the perspective of both parties are worth reading and considering.

Original story about the conviction.

Original story about the incident.

A related issue that came up today is pertinent.

“Annoyed, he decided to confront him.”

And then the drama began.

Every encounter carries an element of risk, as John Hall of the FBI Firearms Training Unit observed. While the victim survived this incident, being shot six to eight times will most likely result in problems for life.

I am not a lawyer and nothing in this post constitutes legal advice. I just prefer to think ahead and stay out of prison for avoidable circumstances.

 

7 responses

  1. Koefod Richard G. | Reply

    As a retired litigator, I can’t tell you how often I advised defendants wanting their “day in Court” that even though the facts and law were in their favor, there were no guarantees in trials. Why? Judges and juries all view facts through the prism of their backgrounds, education, experience and prejudices. The same case tried 10 times in different courts, even with the same law, facts, parties and lawyers, can often have different results. The reasonable man standard often depends upon who is making that determination. So, even though I support the 2nd A, and prepare for my defense, I’m a firm believer that the best gun fight is one that never happens. As a lawyer who used to teach this stuff, I advocated the best defense, in many cases, involves the following:prevent, avoid, de-escalate and escape the problem. It’s a lot better than spending about $50K on a lawyer and a gamble in court.

    1. “prevent, avoid, de-escalate and escape the problem. It’s a lot better than spending about $50K on a lawyer and a gamble in court.”

      That’s my take on it, too.

    2. Well said . I’m not being the moral police here . It’s a good idea to leave married women alone . Especially when you are married .

    3. Absolutely.

      Earlier this year I participated in the “Deadly Force Instructor” class put on by Massad Ayoob and Marty Hayes. A highlight of the 40-hour course is a mock trial. For this, first a movie is played that sets the stage. Then students are assigned roles (maybe you get to play an expert witness, maybe you’re one of the police officers from the movie, maybe you’re one of the jury). Then the mock trial plays out. Our class? Hung jury. My understanding is every DFI class to date? Some convict, others acquit. It’s the same movie, the same basic premise, but of course the actors (students) add variables.

      And the kicker? It’s always a room of “in the know” people. Yet even amongst the cognoscenti, there was no clear guarantee of outcome.

  2. Comrade Obama | Reply

    In other words the judge will decide what is the truth, what is acceptable, what the jury may hear. Justice, fairness and the law doesn’t enter into it.

    Summary, if you are going to shoot, make sure you kill the bastard because you may as well go to prison for something you did than wind up dead for something you didn’t do. Also it helps to make sure you live in a jurisdiction where progressives do not dominate, so reasonable people will accept the fact that an 20 something pounding your head on concrete for no reason makes you fear for your life rather than some man dressed in a dress saying you had no reason to fear because said judge was on duty, somewhere, behind his police protection.

    So you decide when that choirboy is pounding your skull into the street, should you empty six into him or just five? I say all six cause you just never know.

    1. Please remember that everything you post on the Internet is forever and is probably discoverable in court. The judge will most likely allow it.

      1. Well said . I’ve never understood when people post on their Facebook or other social media . Tough guy stuff and other bravado. As you say that bode well in court .

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: