A Houston case of ‘Stand Your Ground’
hiram alejandro rodriguez briceño | Wikimedia Commons
Let’s suppose for just a moment that you were in your house, having a few friends over, playing music, etc. You were minding your own business, though you may have been playing the music a little bit too loud, okay?
And a neighbor (who has a concealed-carry permit) knocks on your door, brandishing a video camera and a handgun, and orders you to turn the music down.
The question here is, in those circumstances, under the Castle Doctrine, or “Stand Your Ground,” would you be justified in shooting him?
This is not what happened in the case of Paul Rodriguez, however. Rodriguez was the neighbor who knocked on the door, armed with the gun, while telling a police dispatcher the he was not going to take that loud music any more.
And after the door was answered, and after the folks inside told him to go pound sand or cursed him or whatever, he fired his gun and killed one of his neighbor’s friends. His defense? “Stand Your Ground,” of course.
More on this story is here from The Associated Press.
Is this what this silly gun crap has come to, seriously? Has this nation gotten so bent on guns that we have decided that it’s okay to kill your neighbor over music that’s too loud, because the neighbor has the arrogance to NOT recoil when you knock on the door and point a pistol in his face?
“Ah,” but the gunners here will say. “You should not be writing about this, because ALL THE FACTS ARE NOT KNOWN!!!” To that one, I say, BS.
Here is the question I would ask them, and it’s a serious one: Do you believe that neighbor-victim in this case had the right to defend himself from Rodriguez sticking a gun in his face when he answered the door?
If the answer to that one is “Yes,” then how can you defend the actions of concealed-carry-permit-holder Rodriguez?
And if the answer is “No,” I would love to hear your defense of Rodriguez.
Just don’t bother with, “NOT ENOUGH FACTS ARE KNOWN!”
N
June 9, 2012 - 8:39 PM
The post’s baited question soliciting the whine and wail of the antis:
“Here is the question I would ask them, and it’s a serious one: Do you believe that neighbor-victim in this case had the right to defend himself from Rodriguez sticking a gun in his face when he answered the door?
Everything prefaced with: WE DON’T KNOW EVERYTHING AND WERE NOT THERE. LET DUE PROCESS WORK HERE, BUT…
Absolutely. The inconsiderate neighbor shouldn’t have been disturbing Rodriguez with blaring music, but THAT IN ITSELF doesn’t give Rodriguez the right to do what he did. Rodriguez coming to my door to complain would NOT have had that reaction from me. Rodriguez coming to my door armed would have had me on alert, but not alarm. Rodriguez coming to my door with weapon drawn would likely have resuled in me either not coming to the door, leaving out the back, or drawing/maybe shooting him depending on the ALL the circumstances.
“If the answer to that one is “Yes,” then how can you defend the actions of concealed-carry-permit-holder Rodriguez?”
I don’t. Again, what isn’t known from the post is at what point the gun came out and whatever else happened. If the gun were holstered when Rodriguez went to the door and things happened that caused him to draw, that would be especially helpful to know. This sounds, on its surface, to be very different from the Zimmerman case, but still more needs to known. At least in this case, there seems to be a video tape and witnesses (although presumably friends of one side).
I hope justice is done.
From a training standpoint, even though it doesn’t matter to the outcome, I hope if there is video, it shows the way in which the gun was handled. I’m curious to know if the gun was safely handled, but then used to harm OR if it was not safely handled which contributed to a possibly accidentally making the shot, i.e. holding the gun with finger on the trigger before committing to fire or covering the target when a low or high ready position would have been more approprite for the situation, etc.
@Dan Casey: “Do you believe that neighbor-victim in this case had the right to defend himself from Rodriguez sticking a gun in his face when he answered the door?”
I’d be interested in commenting, but could you please provide a reference for the part I bolded? I cannot seem to find it anywhere. There is obviously a huge difference between having a gun in a holster, or having it in your hand pointing it at someone.
Before I even begin to provide any type of opinion, at least that fact should be known.
If I did miss it in the article, I apologize. Please point me to the appropriate part.
im unfamiliar with this case… and unfamiliar with the details. but as someone who just spent the night with the stereo up loud watching Queen: Live in Montreal… if someone came to my door with a gun saying keep it down, i would have immediately closed the door and called the police, then i would have defended my house with my own gun because obviously the idiot outside is insane to bring a gun to a dispute over volume.
Stand my ground? hell yeah… just on the other side.
Don’t people let the police handle anything anymore?
A line is going to have to be drawn somewhere on the stand your ground laws. At least a better definition of the criteria for standing your ground.
I don’t think many people have a problem with a person defending themselves. If a burglar is entering your home, you’re being carjacked, robbed on the street, or coming to the aid of another victim. In those cases, and the many I haven’t mentioned, shoot them.
But, if you go onto someone’s private property then don’t be surprised if they stand “their” ground.
From the AP article Dan linked to:
“Look, I will defend myself, sir. … It’s about to get out of hand, sir. Please help me. Please help me, sir. My life is in danger now,” Rodriguez can be heard saying on the recording, which was played for jurors this week.
Well, he should be in fear of his life, he went onto another person’s private property with a gun.
How can I stand my ground in YOUR yard?
Turn around, go back home and let the police handle it.
And, before anyone starts comparing this event with the Zimmerman case, they are totally different circumstances. Zimmerman and Martin were on a public street. Rodriguez went onto private property. Big difference.
Newman, great line (“How can I stand my ground in YOUR yard?”)
I think exposure to endless gun threads could be considered a form of torture. It rates right up there with all- night blaring of Barry Manilow music.
al-Hashim: “I confess. I confess. Just shut if off!!!!!. No more Mandeeeee. No more gun threads!!!”
@scott: “…then i would have defended my house with my own gun because obviously the idiot outside is insane to bring a gun to a dispute over volume.”
Not necessarily… not if they carry it *everywhere* with them like many people do. I’ve shown up at my neighbor’s door with a gun to borrow a cup of sugar. Doesn’t mean they felt defensive or that they needed to shoot me. The gun, obviously, was in a holster.
@Newman: “Well, he should be in fear of his life, he went onto another person’s private property with a gun.”
I carry a gun on private property all the time, it doesn’t mean that someone is justified in shooting me. Again, even though Dan is not concerned with the facts, they are very important. In the eyes of the law, a gun in a holster is *not* an immediate threat.
@Newman: “How can I stand my ground in YOUR yard?”
Again, I’m not familiar with Texas law too much, but as far as Florida and Virginia go you may do so anywhere that you may lawfully be. It was not unlawful for this guy to be in his neighbor’s hard. Being in a neighbor’s yard, or on any other person’s private property does not, in and of itself, mean that you cannot “stand your ground” if necessary.
Again, I am NOT defending the actions of either party in this case. It would be really stupid to even try to say who was right or wrong here because we do not know whether the gun was in his hand or a holster when the door opened, and we do not know what happened between that time and the time of the shooting.
To most people, those should be important facts.
@Dan Casey: “Newman, great line (“How can I stand my ground in YOUR yard?”)”
Newman, if you came in my yard, and I took out a knife and tried to kill you, you would have a right to stand your ground… even in my yard. It was not illegal for you to be in my yard.
Really not a great question.
Jack, read the story carefully.
1) The shooter had a history of brandishing his firearm at neighbors.
2) A neighbor testified that prior to the shooting, the shooter was angry and agitated.
3) The guy shows up on his neighbor’s property with a gun. When another man there suggests he’s going to go in the house and get his own gun, that was all the shooter needed to hear. Those were the magic words. He tells the dispatcher, “I’m standing my ground here. Now these people are going to go try and kill me.”
4) “The shooter says on tape “‘Look I’m not losing to these people anymore.’ A loud cackling laugh is then heard before someone appears to reach for the camera and a gun goes off.”
It seems clear to me this is about a concealed-carry permit holder who has decided that others on someone else’s private property must bend to his will. Moreover, it seems that he believes his carrying a gun onto his neighbor’s property is not a provocative or aggressive act, but that fact that someone else says they might go get their gun suddenly puts him in fear of his life.
That dude could have retreated at ANY time prior to the shooting. He could have never gone over there in the first place. If he didn’t like the loud music, and it happened frequently, and there were no noise ordinances in the area in question, he could have moved.
Instead, he takes his gun over there, provokes an argument in which he’s the only one armed, claims ON THE PHONE to dispatch, “Uh, by way, it’s “Stand My Ground time!” and starts blasting away.
And because of that an elementary school gym teacher is now dead.
This guy’s acquittal will be a license for every a–hole with a gun to start bossing other people around instead of minding his own business — at least in Texas.
Read the first line in my post #4 above. Nobody wants to address that.
@ 8
If I have come into your yard in a threatening way, no. Have I drawn an “I dare you line in the dirt”?
If I’m standing in the street, yes. You should call the cops and watch me through the window.
You go to such great lengths to defend your right to carry a gun anywhere you choose. Fine, carry it. The common denominator in these self defense stories is that no matter who gets shot, the other guy is justified in doing it.
While we’re posing what if’s try this one on:
This is the rub, if I don’t know you and you ring my doorbell and I see through the window that you have a gun on, can I immediately stand my ground? I don’t know if you are going to shoot me when I answer the door, or not. You may rush into my home and murder me. I may be fearing for my life.
If I got my gun and came to the door holding it in my hand, would you shoot me? I might have been cleaning it, and just trotted on over to answer the door. Even so, I have the “right” to carry a gun in my own house, correct? Now, remember, you don’t know me either. Would you automatically assume that I am a peaceful guy. You might have rung the doorbell of a paranoid nutjob who sees your gun and comes out blazing.
Now, all of this is to make a point. If one of us gets killed on my front porch, the one that isn’t dead is gonna say he was in fear for his life, and had no choice.
I also have a right to “free speech”, but I’m done exercising it for today. But that doesn’t mean I have given it up. I am going to take the advice of wise person on another thread, I’m gonna go do some yard work.
Newman, I believe on an earlier thread Jack actually acknowledged that the question of “being in fear of one’s life” is up to the gun holder to decide, at least under Fla law. And that it doesn’t matter whether that fear is irrational or not.
That would seem to grant great latitude to gun-toting paranoid schizophrenics.
Actually Newman, this interpretation of the “stand your ground” garbage is a logical extension of the same being applied to Trayvon Martin’s shooting. The “logic” being…there are no bad shootings, just people stupid enough to be standing in front of a bullet. If picking a fight with someone on ground considered “public”, and shooting them dead in cold blood is deemed acceptable, it’s one click away from just showing up at their house, picking the same fight, then gunning them down. I see no difference, unless you’re implying that every time we set foot outside of our door we should consider ourselves fair game for every fat gun-toting mall Rent-A-Cop wannabe who happens to be wandering around with an itchy trigger finger.
But the gun people don’t see that. Because there are no bad shootings.
Whatever. It’s the fact that we have to waste time on this sort of inanity to justify the bloodthirst the permiates this country – along with debating made-up issues like “teaching” creationism to captive audiences of children and litigating the propagation of religious dogma in the town square – that keeps this country firmly on the short bus.
Universal healthcare? Hell no! Why work on that when we can dream up moronic rationales to go around murdering eachother in cold blood and dress it up as some “right”? We’re #1 in nothing any real country would care to excel at.
Unless we’re talking Hidden Spring, in which any number of people can be #1.
#1 & #7 So, Jack and John W, if you come to my door for whatever reason (business, I assume, but maybe you’re campaigning for something or you’re a neighbor — wearing your open carry gun (or if I know who ytou are and know you’re likely carrying a concealed one) and I tell you I don’t want guns on my property, what do you do? Jack, you’ve already declared that you don’t care if a private business has declared they don’t want you carrying on their property, you’re going to do it anyway.
#6 Just go away, suzie, and these threads won’t bother you in the least. You won’t even know they’re going on. That’s how the Internet works.
Man are you dumb about these IT things.
@Warren: “This is the rub, if I don’t know you and you ring my doorbell and I see through the window that you have a gun on, can I immediately stand my ground?”
If it is in a holster, no. If you want to go ahead and do it, go for it. I guess using the same justification you could murder a police officer knocking on your door.
Also, by the way, if I am having a conversation with a police officer, my gun does not justify him placing me in handcuffs “for his safety,” either.
“If I got my gun and came to the door holding it in my hand, would you shoot me? I might have been cleaning it, and just trotted on over to answer the door.”
@Warren: Would the shooting be justified? Yes. Even on your own property you are now allowed to “brandish” a firearm at someone. So, yes, I’m pretty sure the courts would see it as justified.
You’d be wholly irresponsible to answer the door like that. If it’s not in a holster (because you’re cleaning it or whatever), you should leave it on the table.
@gdad: “So, Jack and John W, if you come to my door for whatever reason (business, I assume, but maybe you’re campaigning for something or you’re a neighbor — wearing your open carry gun (or if I know who ytou are and know you’re likely carrying a concealed one) and I tell you I don’t want guns on my property, what do you do?”
I leave. Nothing I have to say to you is worth getting arrested for. It’s your property, and you have a right to ask me to leave.
@gdad: “Jack, you’ve already declared that you don’t care if a private business has declared they don’t want you carrying on their property, you’re going to do it anyway.”
Not necessarily. If they ask me, or tell me, or even show me a sign, I would certainly leave.
@Kristen: “…and shooting them dead in cold blood is deemed acceptable…”
Who said this?
CORRECTION: “Even on your own property you are now allowed to “brandish” a firearm at someone.”
SHOULD BE: “Even on your own property you are not allowed to “brandish” a firearm at someone.”
Sorry.
#11 But, officer, the guy was 6’5″ and looked really muscular. As a result, I was in fear for my life.
Who is Warren?
@Dan, gdad, Warren, Kristen:
Question…
If a person knocked on your door and you opened the door to find that person standing there, with a gun pointed directly at your head, finger on the trigger, and he says “I am going to murder you right now.”
He starts to pull the trigger….
In that instant, do you believe that you have the right to use deadly force to defend your life?
Newman,
warren’s a semi-regular poster here; liberal and smart (like most liberals). He hasn’t been around in awhile — maybe he got weary of the flotsam and jetsam from Suzie et al. I hope he’s OK.
@Jack
Yeah.
But what you’re suggesting is that the people having the party had the right to defend their lives from Rodriguez.
The trial that’s going on now is the other way around. He shot THEM.
Permit or no permit this guy was wrong (given stated facts). As already suggested he was trespassing. I would not worry that he will be acquitted. He will probably spend a nice long time behind bars, watching TV, lifting weights, reading Robert Frost and eating tofu (instead of making little rocks out of big rocks as he should)…
But hey… maybe he will be rehabilitated and again someday vote for the candidate of his choice… surely progressives believe there is as much hope for rehabilitation for an “a-hole with a gun” as there is for a drug dealer, rapist, pedophile (fill in the blank)?
My take, with given scenario, jail for life or E-chair (cheaper)(do we still do that?).
@Dan: “Yeah.”
Your fear was irrational, even though you felt that you should be allowed to defend your life. The gun was not loaded in the scenario I presented. You just murdered a man based on your irrational fear of a harmless gun that was incapable of shooting anyone.
@Newman: I meant Newman. Sorry.
BTW, Dan… in *my* opinion, your fear was justified. I’d be scared to death if a gun was pointed at me, too.
HOWEVER, in the end, your fear was not real as the gun was not loaded. In reality, though, you don’t know that ahead of time.
That’s what I’ve gotten at before about self-defense laws such as Stand Your Ground. It’s the same way in Virginia. You had a legitimate fear for your life, so you were justified in using deadly force. It is irrelevant, really, that the threat you feared did not, in fact, exist in hindsight.
Does it make a little more sense now?
Jack,
So what you are suggesting, when that person knocks on your door, points a gun at your head, and says, “I’m going to kill you right now,” is that you, the recipient of such neighborliness, has the obligation to ask if the gun is loaded.
Jack, I don’t think you’re thinking straight, buddy. . .
@Dan: “And that it doesn’t matter whether that fear is irrational or not.”
You’re the one who has claimed in the past that it is silly to be able to use deadly force when there is not a real threat.
I’d suggest an unloaded gun is not a real threat. THANKFULLY, the law is on your side, as it should be. You should not have to confirm if it is loaded or not.
I was making a point. I do believe that the shoot in the scenario I suggested was absolutely justified. I was just making the point that you shot, for all intents and purposes, a man who ended up being armed with nothing dangerous.
#20 First, I don’t open the door to somebody holding a gun. Second, if the person is already pulling the trigger, I’m probably too old now for me to react in time to beat him to the draw.
@gdad,
Nobody is that fast. I was just trying to illustrate a moment in which we could all, hopefully, agree that deadly force was 100% justified.
Also, I did almost post a little note about looking through the window or peep hole first. (smile)
I always look out the door first, too. The only time I’ve ever had someone show up at my door with a gun (in a holster) was the Secret Service once. No, it’s not what you guys think.
Jack, you’re making up beyond-foolish hypotheticals that we’re supposed to respond to.
How about this one? If someone knocks on my door and I’m too scared to open it without having a gun…I don’t open it! Easy peasy.
Many years ago, my older brother stood his ground, before there was even a law. But he used his fists. After a rather loud verbal altercation with an old boy, my brother told him (in front of several people) that he was afraid of him and didn’t want any trouble (which I doubted from the start). The old boy persisted, and my brother relieved him of several teeth, and damaged some other body parts as well. The cops came but nobody was arrested. More beer was consumed.
Some time later, my brother received a summons; he was being sued for the cost of the other guys dental work. Both sides agreed to let the judge hear the case and make a decision. My brother was put on the stand and told the judge the story of how he told this guy he was afraid of him, and all, and didn’t want any trouble, but he had to defend himself.
The judge turns to the fellow missing the teeth and asks him if this is true. Did Mr. _____________ repeatedly ask you to leave him alone?
The guy said, with a lisp, “Yeth your honor, but….”
The judge stopped him in mid sentence and says, “Sir, it sounds to me like you don’t need new teeth, you need a hearing aid”.
Case dismissed.
I guess if this had happened today, my brother could’ve saved some bloody knuckles and just shot the guy, and probably never been charged with anything. My, how times have changed.
The “guilty” and the “not guilty” have long claimed the positive defense of “self-defense” — here in Virginia and many other stand-your-ground-States (SYG) as well as States w/o SYG statutes or common/case law. It doesn’t mean that each claim is valid. Nor should one assume that one is guilty if one makes the claim.
That’s want we have a legal/judicial system for — to sort it out.
Luckily, reporters, commentators, boogers, etc haven’t yet taken over the role of the role of the legal system. See: Carswell v. Borough of Homestead, 381 F.3d 235, 243 (3rd Cir. 2004) — What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.” The same can be said in many quite different situations. IMHO, that can be said all the more so for folk sitting safely at their computer key board and working with an incomplete knowledge of the facts or with an agenda warping their perceptions of the situation.
BTW, on other issues, some folk here endorse Blackstone’s formulation, “better that ten guilty persons escape than that one innocent suffer” — English jurist William Blackstone in his famous Commentaries on the Laws of England published in the 1760s. Why is it when it come to SYG many of those same folk seem to flip sides of the ratio?
As I have posed a number of times, please read http://tinyurl.com/7wfzadb
**
Defending the Self-Defense Case by Lisa J. Steele
A self-defense case is fundamentally different from most other criminal prosecutions. The essence of the defense is that the defendant is the victim of an attempted or completed violent felony such as assault, rape, or homicide which, but for the defendant’s lawful actions, would have resulted in the defendant’s death or in serious bodily harm. The complainant is, in fact, a violent aggressor who, but for the defendant’s lawful actions, would be the one standing trial. The defendant is the “good guy” and the victim is the “bad guy,” despite the prosecution’s efforts to portray the converse.
Many assumptions about trial tactics are inverted in a self-defense case. If the defendant presents some evidence on each of the elements of self-defense, then he or she is entitled to a jury instruction on the issue, which places the burden of proof squarely on the prosecutor to disprove self-defense beyond a reasonable doubt. If the prosecution fails to disprove self-defense, the client is acquitted. In practice, however, the defense attorney has a great deal of work to do in order to convince the jurors that the client’s conduct fell within the common law of self-defense or within applicable state statutes.
This article is a starting point for attorneys representing clients in a self-defense case. It is focused on the common law of self-defense, using Massachusetts as its primary example, but the general principles are applicable in any state. It also introduces attorneys to some of the research regarding use of force conducted by police and self-defense instructors.
SNIP
**
It is a great read and answers many of the questions regularly debated and misunderstood by folk here.
Some folk might also learn something by reading/watching:
http://tinyurl.com/6spqc5x
http://tinyurl.com/87zcd6e
http://tinyurl.com/7mrgy8t
—-
Again, as I have said, before; I wasn’t there, I don’t have all the relevant facts, I’m not going to jump to an uninformed judgement, nor I’m get in “what if” debates.
Let the legal/judicial system work it out.
Dan Casey-
“…Jack actually acknowledged that the question of “being in fear of one’s life” is up to the gun holder to decide, at least under Fla law.”
Here’s the relevant part of the statute: “He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony”
And though the exact wording may differ state to state, that’s pretty much the standard everywhere. Who else is supposed to determine it? If I’m being threatened, do I ask the assailant to wait until someone more authoritative arrives and judges whether or not I’m actually in fear for my life?
A jury/judge is the ultimate arbiter of whether or not the fear was reasonable. That is true whether Stand Your Ground law is in effect or not, and ultimately, I believe will be what sinks or saves George Zimmerman. SYG is meaningless if the jury doesn’t think his fear was reasonable.
If I shoot someone and tell the police that I was in fear for my life, but then a cell phone video turns up showing that I made the guy kneel and then executed him, my opinion was obviously not reasonable and I’m going to prison.
“And that it doesn’t matter whether that fear is irrational or not.”
That’s wrong. The jury will decide that.
“That would seem to grant great latitude to gun-toting paranoid schizophrenics.”
Of course it would Dan, except it’s not true and you apparently don’t understand the most fundamental aspects of self defense law.
@Dave Hicks: “Carswell v. Borough of Homestead, 381 F.3d 235, 243 (3rd Cir. 2004) — What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.”
Yes, which is EXACTLY why these laws say that, in hindsight, the threat need not have actually existed. Because when you are in a life or death situation, potentially, you cannot, for example, confirm that the assailant’s gun is loaded.
This prevents prosecutors, with the benefit of said hindsight, from paying Monday morning quarterback and saying “well, if you had [done this], you could have avoided having to kill that man”, etc.
Exactly as it should be. The thread does not have to be real, but you have to believe that it is at the time.
Newman:
“A line is going to have to be drawn somewhere on the stand your ground laws. At least a better definition of the criteria for standing your ground.”
Newman, on the surface, this isn’t even a “stand your ground” case. It is a story published to solicit support for an anti-gun rights agenda. This is more obvious than anything in the article.
“This is the rub, if I don’t know you and you ring my doorbell and I see through the window that you have a gun on, can I immediately stand my ground?”
So do you demand known cops to check out unknown “cops” from a distance before getting near them? I’ve had to say this too many times: criminals generally don’t open carry. Carrying unholstered in the hand is not “open carry” either. That is drawn. A smiling neighbor with a holstered gun IS NOT the same.
gdad:
“So, Jack and John W, if you come to my door for whatever reason….wearing your open carry gun (or if I know who ytou are and know you’re likely carrying a concealed one) and I tell you I don’t want guns on my property, what do you do?”
Well, if you unambiguously proclaim your gun carrier bigotry, I don’t want to be on your property. Of course, Jack and I aren’t the ones you need to worry about, but deep down you know that.
Newman, you will not find the stories of the gun carrier who saved lives in the grocery store in Utah last month here or the gun carriers who stopped the murderous rampage at the Appalachian School of Law here or any other pro-self defense write-ups. Casey’s Blog is interested only in stories that find the exceptions and bad apples to promote an anti-gun rights agenda.
As for fighting to protect yourself, I guess that’s okay, but I don’t want to get hurt or killed. I would rather not tangle and then if the assailant threatens me with greivous bodily harm, I might have to use my handgun to defend myself and hope he flees between the time I draw and squeeze the trigger.
And what constitutes a threat may seem quite different to a paranoid schizophrenic than it does to somebody who’s not mentally ill. As long as it’s subjective . . .
@John Wilburn: “Carrying unholstered in the hand is not “open carry” either.”
That is “brandishing,” and it is a crime. There are very few situations where you may have your gun out of the holster and in your hand in public. There are some, and some particular situations, but generally if it is in your hand that is criminal.
John John Wilburn,
If a trained, concealed-carry-permit-holding killer is asserting a “Stand Your Ground” as his defense for killing one person and shooting two, how can you say this isn’t a “Stand Your Ground” case?
I’m sorry, I don’t find the “Let out system of justice sort it out” theory acceptable in these situations. Regardless of what is “sorted out”, there’s a dead person. Those who insist on walking around with guns should feel there’s an absolute likelihood of imprisonment if they decide to use their guns. Surely if they’re ACTUALLY feeling their lives are threatened, the fear of prison would pale in comparison. On the other hand, if you’re 99% sure that if you kill a guy for whatever reason you’re going to do time, you’ll think twice about standing your ground, his ground, public ground…whoever’s ground.
The default position should be that the shooter has committed a crime. If it comes out in court that he didn’t, great. But this “When in doubt, shoot first because you’re likely going to walk scot free” philosphy is ridiculous. If you purposely take a life, you’ve taken on a huge responsiblity. I see no reason to dress it up as something prettier than it is.
If this shooter, this idiot father of six, gets off, it’s going to embolden all sorts of neighbors all over America. There’s a lot of anger out there, and plenty of grudges, and many busybodies who take offense that the grass next door is 3-1/2 inches tall, or that somneone’s car is broken down in the next-door driveway, or that junior practices the trumpet too fanatically.
There already are cases on the record of neighbors shooting each other over such petty disagreements.
@Kristen (from one side of her mouth): “The default position should be that the shooter has committed a crime. If it comes out in court that he didn’t, great.”
@Kristen (from the other side of her mouth): ” I don’t find the “Let out system of justice sort it out” theory acceptable in these situations.”
John Wilburn, where have you been?!!
I like the way you guys cherry pick my posts. So I will answer your answer with yet another question. What if a slick criminal open carried to make me think he was a cop. Also, nobody addressed the part about what if the guy in the house is a nut and nobody ever told him murderers don’t carry their pistol out in plain sight. What if the guy in the house hates cops, and he thinks you are one. What if . . . .
We can go on and on with this forever. But I won’t.
I am not trying to change your mind, I know that can’t be done. But, if my logic makes sense to some of the other folks on here, great. And, if your logic changes some minds, great.
My point with my brother’s story was that he knew if he had witnesses that heard him say he was afraid of the guy, he could beat the crap out of him and get by with it. He was never afraid at all. I guess he worked the system to his advantage. The same tactic could be used today with some of the stand your ground laws, only with deadly force.
Yes neighbor had right to defend himself, I can’t. Guy should be in JAIL.
Dan:
36.”And what constitutes a threat may seem quite different to a paranoid schizophrenic than it does to somebody who’s not mentally ill. As long as it’s subjective . . .”
And lawful gun carriers seem a threat to some of you when they aren’t a threat at all. Subjective indeed.
“If a trained, concealed-carry-permit-holding killer is asserting a “Stand Your Ground” as his defense for killing one person and shooting two, how can you say this isn’t a “Stand Your Ground” case?”
So any other qualified journalist who disagrees with you may invalidate your claims at the drop of a hat?
Kristen:
39.”I’m sorry, I don’t find the “Let out system of justice sort it out” theory acceptable in these situations. Regardless of what is “sorted out”, there’s a dead person. Those who insist on walking around with guns should feel there’s an absolute likelihood of imprisonment if they decide to use their guns.”
Kristen wants to be the judge, jury, and executioner from the comfort of her chair.
“The default position should be that the shooter has committed a crime.”
Kristen believes in guilt until proven innocent. If Zimmerman is exonerated, not even then. Her attitude toward the justice system is totally unreasonable.
Dan:
40.”If this shooter, this idiot father of six, gets off, it’s going to embolden all sorts of neighbors all over America.”
Then let’s have a trial by jury and not by journalist for God’s sake!
Newman:
“What if a slick criminal open carried to make me think he was a cop.”
Impersonating a police officer is already a crime in itself. If open carry by itself makes you think someone’s a cop, read up and learn….
“Also, nobody addressed the part about what if the guy in the house is a nut and nobody ever told him murderers don’t carry their pistol out in plain sight. What if the guy in the house hates cops, and he thinks you are one. What if . . . .”
….read up and learn again. Ignorance is not the go-to excuse. Yeah, I’d like to that defense work for him that he hates cops, so he tried to kill you and therefore it is okay. The fact that he got shot in defense of his blatant offense, well… ???
“But, if my logic makes sense to some of the other folks on here, great. And, if your logic changes some minds, great.”
Newman, you won’t change any minds here, but have a mostly anti-gun rights audience to back you up. I have caused a number of people to examine the reality of their rights, the responsibility of carry, and invaluable safety it can provide them and their family in time of need. If you want to choose to not have the responsibility and forfeit the benefits of carry, fine, you have every right NOT to carry. I accept the responsibility and want the extra level of protection for me and my family. To think this right should be stripped away from all because some are irresponsible is naive to the max and under that VERY same logic, we have to start taking cars away from the masses first.
Jack,I don’t think you understand the term “talking out the side of your mouth”. I’m definitely getting a SuzieQ and “irony” vibe.
How’s this for clarity if I was being too obtuse? Throw every shooter in jail. Let them prove at trial they’re not guilty of a crime. Without exception. If they genuinely shot in self-defense, it shouldn’t be a tough burden, and anyway…”Better tried by 12 than carried by 6″. It might give some trigger-happy adventurers second thoughts before pulling the trigger.
Before anyone wets themselves, I misused “prove”. I could say “let the prosecution make the case the shooting was bad”. But the implicit threat of imprisonment should be attendant to every shooting.
Dan Casey-
“If a trained, concealed-carry-permit-holding killer is asserting a “Stand Your Ground” as his defense for killing one person and shooting two, how can you say this isn’t a “Stand Your Ground” case?”
It’s the same as when you censor someone’s posts here and they cry, “1st Amendment!” They don’t understand what the 1st Amendment means, so whatever their claim, it’s not a 1st Amendment case. Similarly, just because some nitwit didn’t understand SYG doesn’t mean he gets to use it as a defense. And as I said before, SYG doesn’t even come into play unless the shooter had a reasonable fear for his life.
Kristen-
“The default position should be that the shooter has committed a crime. If it comes out in court that he didn’t, great.”
Well, we are innocent until proven guilty, but other than that, that’s how things already are. The police (assuming they are competent) will investigate the incident and if they find evidence contrary to the self-defender’s story, he can be charged.
@Kristen: “Throw every shooter in jail. Let them prove at trial they’re not guilty of a crime.”
Heard of “innocent until proven guilty?” Do you realize that our country has been to war with countries who do just what you are suggesting that we do?
Kristen:
“Throw every shooter in jail. Let them prove at trial they’re not guilty of a crime. Without exception.”
No Kristen, you were quite clear and this isn’t the first time you’ve suggested this immoral trash. Fairness is not one of your virtues.
@Jason: “The police (assuming they are competent) will investigate the incident and if they find evidence contrary to the self-defender’s story, he can be charged.”
This is the reason why so many are expecting Angela Corey will likely face some charges of her own with the Zimmerman/Martin thing comes to an end.
Despite what Kristen wants to believe, you cannot charge someone (at least not ethically) unless you believe you have evidence that will prove your case.
So sure, if you want to arrest a shooter and hold them for a couple of days, go for it. That is certainly allowed. But if you don’t have the evidence to support some charges, you’ll have to let him or her go.
Part of the reason Florida has the laws that they do now is because it used to favor the criminal, as Kristen suggests it should. They were changed specifically to not punish the innocent.
Kristen:
“But the implicit threat of imprisonment should be attendant to every shooting.”
Believe me, it already is!
If all men judged women the way you judge gun owners, the species would die out.
John Wilburn,
I’ll keep preachin’ to the choir, I guess.
That’s why I come here, I like the choir.
See above. I corrected myself.
Jason, true, my point was just that there seem to be occasions where deliberate shootings don’t automatically bring charges, as in the Zimmerman case where charges weren’t brought until public pressure was brought to bear. You shouldn’t be able to just sit there and tell your cop buddies..”I shot him dead because I was scared” and get a walk.
Jack, I can assure you that we have never declared war on a country over their treatment of putative criminals, ever. We’ve also been to war with countries where men wear pants. So what?
JohnW, you are as usual melodramatic and wrong. I guess to some people gunner users are exempt from accountability. There’s nothing immoral about wanting justice seen after a loss of life.
“Part of the reason Florida has the laws that they do now is because it used to favor the criminal, as Kristen suggests it should. They were changed specifically to not punish the innocent.”
No. I suggest the law should favor the victim, not the perp. Call me crazy. There are no “innocent” in our system of justice…just people not convicted.
I’m also taking the zany leap that the dead guy is the victim. Crazy!
@Kristen: “Jason, true, my point was just that there seem to be occasions where deliberate shootings don’t automatically bring charges,…”
I’d argue that every self-defense shooting is deliberate.
Also, Kristen, in Florida they have to have evidence that contradicts the shooter’s story BEFORE they can even make an arrest. That is their law. I believe that part is not the case in Virginia or Texas.
If a shooter in Florida claims self-defense at the scene, and the police do not find evidence that contradicts that claim, it is unlawful for them to make an arrest.
Your correction was unnecessary. We’ve heard you say the same thing before and we knew exactly what you meant.
Re: Comment by Dan Casey — June 11, 2012 @ 9:21 am
And what constitutes a threat may seem quite different to a paranoid schizophrenic than it does to somebody who’s not mentally ill. As long as it’s subjective . . .
———-
Dan,
That is why we have the “reasonable person” rule in nearly every State’s case law precedent.
Have you even bothered to read Defending the Self-Defense Case by Lisa J. Steele @ http://tinyurl.com/7wfzadb ?????
She focus “on the common law of self-defense, using Massachusetts as its primary example, but the general principles are applicable in any state. It also introduces attorneys to some of the research regarding use of force conducted by police and self-defense instructors.
She cites two often cited cases which destroy your assumption:
– A “highly active imagination” does not create a reasonable apprehension of imminent physical harm. Com. v. Alebord, 49 Mass. App. Ct. 915, 916, 733 A.2d 169 (2000).
– “If the client was intoxicated, this does not lower the standard for reasonable belief.” Com. v. Ramirez, 44 Mass. App. Ct. 799, 801, 694 N.E.2d 46 (1998).
—–
BTW, do you know what the The AOJ Triad is?
I have to agree with scott in #3…I’m not reading the rest of the comments so if I repeat anything, sorry.
Based on the snippet provided here and what I read, the guy who knocked on the door was in the wrong, maybe 90%…the other 10% the noisy neighbor. Sane people don’t resolve a loud neighbor issue by shooting someone. Now, whether or not the guy’s sanity is in question, well, that’s an issue too. But had I been inside that house and someone outside was holding a drawn firearm, the door would not have been opened, the guests would have been moved away from the door or any area where a shot could be fired, and police would have been called…while simultaneously loading/arming my own firearm in case it was needed.
But any time I’ve ever had to deal with a neighbor’s loud music or party, I’ve waited until after 11pm to say anything, and then i just go over, knock and politely ask them to turn it down since I have to work in the morning…it’s true, and it has worked all but 1 time. That time I did wind up calling police on the non-emergency line because the party was still going strong after 2am, after a previous request to turn things down.
Violence was/is not the answer.
As for Stand Your Ground, this is most clearly not a case where it could/should be invoked. The guy who shot and killed the friend has absolutely no justification for the shooting.
It’s best to assume everyone is armed until you know they are not. Even if it was a law that no person could carry a gun it’s still smart to assume everyone is armed. People do stupid things when they think they’re right, like stopping their car in a road rage incident and approaching another driver sitting in his car and threatening him. If you can’t see the person’s hands, that’s a good way to get shot. Even if you are right, you’re still shot.
A lot of people are armed. If a person is wearing more clothes than you think necessary for the weather, it might be because he’s covering a weapon. If the person is wearing a shirt with long tails, same thing. There are things to watch, even a pistol in a pocket will make most people adjust their walk a bit or it will cause their clothes to sag a little. But, you can’t always tell, that’s why it’s best not to get into road rage incidents or argue with people over loud music.
“I’d argue that every self-defense shooting is deliberate.”
Since I’ve been assured that weapons don’t fire themselves, I’d say that’s nonsense. I’d also argue that in many cases “self-defense” isn’t an issue, unless you’re willing to take up for the guy who knocks on his neighbor’s door and shoots his guest dead.
But as we all know…there are no bad shootings. Just victims stupid enough to be in front of the shooter, unarmed.
“But, you can’t always tell, that’s why it’s best not to get into road rage incidents or argue with people over loud music.”
So…we’re supposed to kowtow to the neighbor knocking on our door to complain about our music because he might decide to shoot us down if we don’t?
Nice world you guys live in. I’ll take my own comfortably and happily unarmed one.
JACK: “Part of the reason Florida has the laws that they do now is because it used to favor the criminal, as Kristen suggests it should. They were changed specifically to not punish the innocent.”
KRISTEN: “No. I suggest the law should favor the victim, not the perp. Call me crazy. There are no “innocent” in our system of justice…just people not convicted.”
The problem, Kristen, is that the pro-carry crowd regard THEMSELVES as the most worthy of all victims. They carry because they perceive themselves to be potential victims, and hate that sinking, sitting-duck feeling they have when they are unarmed in so-called gun-free “danger zones.”
And on some of the occasions when they use those guns (as in this case) they claim victimhood once again in order to justify what seem like unjustifiable actions. Even when there is no “perp.”
I find it hard to criticize a store employee (or customer) who reacts to an armed robbery by shooting the robber dead. I just wish the pro-gun crowd found it hard NOT to criticize idiots in circumstances such as these (and I note OJ and Michael Howdyshell already have).
For those who note I “should not convict” the shooter until the whole thing has run through the legal system, you seem to be suggesting I should shut up until the Supreme Court has turned down his appeal.
That’s BS and you know it. I am not “convicting” the guy of anything. I’m criticizing him. They’re not at all the same thing.
But perhaps some gunners don’t perceive a difference between criticism and the loss of freedom (the likely result of a conviction).
That is their problem.
Kristen:
“There’s nothing immoral about wanting justice seen after a loss of life.”
No, but that’s not what you want. You want to throw anyone that uses a gun in jail without due process. it affirms what I said about you earlier; you only want justice for what Kristen believes in.
Other John, you’re right. This likely isn’t stand-your-ground related, but it is being sold to the public as such by our anti-gun media. Nothing like lies and misrepresentation to sell newspapers and trash our system of due process along the way.
#44 John Wilburn: “Newman, you won’t change any minds here, but have a mostly anti-gun rights audience to back you up.”
First, I want to make something clear. I am not anti-gun. I own guns. But it seems that anyone who doesn’t agree with you 100% is anti-gun rights.
I do have issues with some of the gun laws. Does that make me 100% anti-gun? No.
Do you believe someone can disagree with on some of your ideas and not be anti-gun.
I would bet that some of the folks you have labeled anti-gun on this blog actually own a gun. And if there are, please chime in because I personally know quite a few liberals that hunt for sport, skeet shoot, protect their families, and even have concealed carry permits.
Look! Another one of these threads! Woohoo!
Okay, I read the article. More evidence of the absolute dumbing down of American society. There is clearly a history of this gun weilding bad tempered guy in the neighborhood. I’m sure there is also a history of completely inconsiderate playing the music too loud dude as well. But the fact that the police were not allowed to handle it and that it ever involved a gun, is just STUPID. What happened to good ole fashioned brawling?
The guy on the phone, for 20 friggin minutes, video taping the altercation with his gun on his person needs to go to jail for manslaughter. The end.
I agree that it is true that there are plenty of cases where deliberate shootings don’t automatically bring charges. However, given the way our justice system is set up and our ideals of what actually constitutes justice, I would submit that there is NO mere physical act that should AUTOMATICALLY bring charges regardless of circumstances. In fact, I would go so far as to say there is NO act for which charges should be brought without at least some evidence that a crime was committed. The fact that someone died in an encounter may most certainly indicate a tragedy has occured, but that alone doesn’t mean a crime has occurred.
And if anyone here can make a reasonable argument why someone who had 20 MINUTES to walk away from an escalating situation could ever be considered to be “in fear for their lives”, please do so. You cannot be in fear for your life if you are the INSTIGATOR of a confrontation (like here, and like Zimmerman). That is just illogical.
VRWC, you’re right, but part of what I teach is how to reduce one’s “tells” when they’re carrying concealed as it no one else’s business.
Dan:
“And on some of the occasions when they use those guns (as in this case) they claim victimhood once again in order to justify what seem like unjustifiable actions. Even when there is no “perp.””
Dan, to read this, you are all but accusing Jack and I making claims we didn’t. The fact that you want to influence public opinion to believe no due process, jury, gathering of all facts, or anything else is necessary for you to cast completely reasoned judgment is the[re] problem.
I am curious to how the antis here would pick apart the defensive handgun use in Utah in the grocery store…. oh, that’s right, it was posted here, but overlooked. It didn’t go with the theme here.
John Wilburn,
I wasn’t accusing you and Jack. The concealed-carry permit holder who shot and killed the elementary school teacher is the one claiming he’s the victim. And he most definitely is using a “Stand Your Ground” defense.
Re: Comment by Kristen — June 11, 2012 @ 11:07 am
Let them prove at trial they’re not guilty of a crime. Without exception.
and
Re: Comment by Kristen — June 11, 2012 @ 12:25 pm
“…there seem to be occasions where deliberate shootings don’t automatically bring charges…” [emphasis added]
———–
Kristen,
So you would do away with all LEO and prosecutorial discretion? You would agree that every battered women who defends herself should be thrown in jail? You would agree that every woman who stops a rapist with deadly force should be thrown in jail? That the States Attorney must bring to trial every case including those he/she know were justified?
—–
As to your second comment cited above, self defense and SYG incidents are by definition deliberate shootings.
Please read Defending the Self-Defense Case by Lisa J. Steele @ http://tinyurl.com/7wfzadb
**
SNIP
Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.
In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use. Thus, it is not a self-defense case if:
* Counsel cannot present some minimal evidence on all of the self-defense factors.
* The client denies responsibility for the crime or claims it was an accident. (This is especially important if the client has given the police a statement in which he or she tries to minimize the offense by agreeing with the interrogator that it was an accident or denies responsibility for the crime.)
* The client was the initial aggressor (the first to use force). If the client has unlawfully invaded the complaint’s home or is committing an armed robbery, the client is, in effect, an initial aggressor, and he must attempt to withdraw before he can use force to defend himself.
* The client and the complainant were engaged in mutual combat upon agreed-to terms. If, however, the aggressor escalates an agreed-to fistfight by drawing a deadly weapon, then the mutual combat preclusion for self-defense may no longer apply, although the client is still required to retreat where possible if the state so requires.
* The client continued to use force after the aggressor fell unconscious, surrendered, or began to flee. Self-defense has to cover every wound inflicted on the deceased.
SNIP
**
Newman:
“First, I want to make something clear. I am not anti-gun. I own guns.”
Newman, you’re a Randy Mays. There are a lot of people who don’t support our rights in the way they MUST be supported to preserve them. Not everyone agrees, but as I’ve said before, offering up the things that this person or that person think are unnecessary or unreasonable is how the government chips away at our rights and why we have lost so much ground over the last 100 years, but the grassroots activists like Dave Hicks and I have helped regain ground in the last 15 or 20.
Sorry, but the weak, belong to the NRA and blindly vote Republican thing does not work to preserve our rights. What I’m doing does.
Newman, since I just pulled her pin, Sandi will detonate here shortly. She’s a peach.
Miriam:
“You cannot be in fear for your life if you are the INSTIGATOR of a confrontation (like here, and like Zimmerman). That is just illogical.”
Miriam, the problem is that sometimes the original instigator backs off and the other person becomes the aggressor. This often happens with road rage incidents. Our law recognizes this and therefore differentiates between “justifiable” and “excusable” defensive shootings. And by the way, this case is NOT that much like Zimmerman. I can see some very big differences. That’s why I think Ziimerman will walk (yet still be persecuted forever) and this guy Rodriguez has less in his favor from the sound of things.
Miriam:
“But the fact that the police were not allowed to handle it and that it ever involved a gun, is just STUPID.”
The media will declare a gun is “involved” merely by being present. My gun is present everywhere I am, but it isn’t involved. This distinction gets lost in every story.
“What happened to good ole fashioned brawling?”
Miriam, if I need to tell my neighbor to turn down the music being the nice guy that am instead of calling the cops and getting them a citation, my gun will be with me because it always is. If he decides to hurt me, I am not going to get hurt fighting this guy. If he doesn’t hurt me, I don’t hurt him, the cops don’t get called, and we work it out.
“The guy on the phone, for 20 friggin minutes, video taping the altercation with his gun on his person needs to go to jail for manslaughter. The end.”
Not because the gun was simply “on his person”.
So this raises the question: if the two got in a fistfight and the gun carrier beat the living crap out of him and put the neighbor in the hospital, would the discovery that he had a gun on his person, despite not using it, come into play later for the purpose of making negative assumptions about his character. You can bet your sweet ___ it would.
JohnW, I NEVER said they shouldn’t have a trial. If the prosecution can’t make a case at trial, they walk. Considering where the burden of proof lies, that’s a pretty low threshold to pass for the shooter. But a Zimmerman-esque “Oh I was scared and decided I had no other choice but to kill the guy” followed by a pat on the head and being sent home to mommy…No. You take a life, prepare to back it up.
Miriam, to our resident gun advocates, you’re completely free to walk up to an unarmed citizen, harrass them at will for no reason, and when they attempt to retaliate shoot them down in cold blood and label it “self-defense”, and walk free of any expectation of being (shudder) QUESTIONED. Or god forbid, investigated.
It’s ludicrous BS.
Dan, we’ll wait and see, from the story we have, he is wrong, but the Zimmerman story sure developed greatly from the initial release and this one may as well. If it makes you feel any better, I am leaning the other way on this one. We’ll see what happens.
And Jack, I’m still waiting to hear how shooting someone in self-defense isn’t “deliberate”. It sure isn’t accidental, and presumeably the gun didn’t make the call independently. So, barring some confusion over the definition of the word “Deliberate”…what’s the rationale?
I’d totally adore to hear how Zimmerman’s slaughter of Trayvon Martin wasn’t “deliberate”.
Newman, I am NOT one of those folks like Suzie who thinks that to be “liberal” one must be anti-gun or that conservatives default to being “pro-gun” either. Yes, there are a lot of liberals with a CHP, including a few like Dan for the purpose of writing a piece against the online education the state started accepting for one. I’ve had many liberals in my class and as a non-religious, proponent of drug decriminalization, that advocates against censorship and various forms of religious bigotry, and other things unpopular in the red states, it’s not like the true conservaties are claiming me.
@Kristen: “There are no “innocent” in our system of justice…just people not convicted.”
Wrong again.
http://definitions.uslegal.com/i/innocent/
@Kristen: “Since I’ve been assured that weapons don’t fire themselves, I’d say that’s nonsense.”
I said I would argue that they are deliberate. THEY ARE! Can you not read today?
Even if you didn’t want to shoot the person threatening your life, you make a decision to to save your own life, but you did, intentionally, pull the trigger! YES! IT WAS DELIBERATE.
The gun did not pull the trigger itself!
@Dan: “I find it hard to criticize a store employee (or customer) who reacts to an armed robbery by shooting the robber dead.”
So, in this case, who would be the crime victim? I’d venture to guess teh store employee or customer… but I’m sure Kristen would claim it is the one who ended up dead that was the poor victim.
73.”JohnW, I NEVER said they shouldn’t have a trial. If the prosecution can’t make a case at trial, they walk.”
You’re right Jack, she does talk out of both sides of her mouth.
As for “deliberate”, there should be some consideration given to a trigger squeezed under duress and extreme stress and fear of one’s life or grievous bodily harm and one which is pressed out of just wanting to kill someone. A government sniper, a person acting in legitimate self defense, the mentally ill, and a murderer will all have a different mindset before sending the round. That distinction also gets lost.
John Wilburn, if I was playing my music too loudly and you came over and asked me to turn it down – Fine. If you came over with your holstered gun displayed for me to see, I would consider that threatening…I would consider that instigating. If I couldn’t see it, it would not affect anything that was said between us. If it was displayed, I would assume it to be displayed for a reason. Heck, if you came over to talk to me and were simply videotaping it, I would consider that pretty crazy and threatening.
If we remove the gun from the scenerio, and the guy shows up: already on the phone with the police, videotaping the incident…I consider that instigating an event that is a bit larger than simply asking a neighbor to turn the music down. There is something really WRONG going on even if you subtract the gun. Don’t you think?
Dan Casey packs heat?
@Miriam: “You cannot be in fear for your life if you are the INSTIGATOR of a confrontation (like here, and like Zimmerman).”
You can, and the self-defense laws account for that. If you are the instigator, and you somehow end up in fear for your life, you have a duty to retreat. If you have exhausted all options of retreat, you may use deadly force if necessary.
Your case for self-defense changes quite a bit in that circumstance, but just because you are an a**hole doesn’t mean you can’t defend your life if you have to.
@Dan Casey: “I wasn’t accusing you and Jack. The concealed-carry permit holder who shot and killed the elementary school teacher is the one claiming he’s the victim. And he most definitely is using a “Stand Your Ground” defense.”
And he most certainly can use that defense. Doesn’t mean it is the case. I’d guess that many guilty people plead “not guilty,” but the facts of the case will be presented and the case will move forward.
I don’t know the facts, so I can’t say who is right or wrong here. Seems this guy made some pretty crappy decisions, though, and is going to have a tough case to present either way.
Re: Comment by Kristen — June 11, 2012 @ 1:52 pm
It’s ludicrous BS.
———–
What is ludicrous is the nonsense being spouted by many of the more-restrictions-on-the-RKBA crowd when they haven’t read up on the actual law practices.
Read Defending the Self-Defense Case by Lisa J. Steele @ http://tinyurl.com/7wfzadb to see how ludicrous some of the nonsense being spouted is.
Are there miscarriages of justice? Absolutely, IMHO! Because of incompetence? Likely, IMHO. Because of prejudices? Again very likely, IMHO.
However, let’s not throw out the baby with the bath water.
Earlier the press claimed that there were around 200 SYG cases in the last few years, yet some folk seem to think that one case (or five cases) fully define the issue of self-defense and/or SYG.
FWIIW, see:
http://tinyurl.com/7m3dojm
**
June 11, 2012
US Commission on Civil Rights to review ‘stand your ground’ laws
Will gather data from states, interview prosecutors and police; Florida task
force will hold hearings as well
By Yamiche Alcindor
USA TODAY
WASHINGTON — Federal and state officials are taking a closer look at
stand-your-ground laws following the national uproar over the death of
Florida teen Trayvon Martin.
The U.S. Commission on Civil Rights is investigating how race affects the
enforcement of stand-your-ground laws across the nation.
We need to make sure claims of justifiable homicide are not being granted or
denied because of the color of someone’s skin,” said Michael Yaki, a member
of the Commission on Civil Rights.
SNIP
[Emphasis added]
**
Re: Comment by Kristen — June 11, 2012 @ 1:54 pm
———-
See: Comment by Dave Hicks — June 11, 2012 @ 1:38 pm
Here is another link regarding actual innocence.
http://www.law.cornell.edu/wex/actual_innocence
From Dan, “…The concealed-carry permit holder who shot and killed the elementary school teacher is the one claiming he’s the victim…”
Statements written this way are disingenuous and deflect attention away from the actual issue at hand.
The concealed carry permit that the shooter had did not cause him to shoot the victim. The shooter did not shoot the victim because he was an elementary school teacher. The fact that the shooter had a permit, and the fact that the victim was a teacher, have nothing to do with the incident. Neither of those facts caused or contributed to the incident.
A person who lawfully follows the rules of having a concealed carry permit wouldn’t shoot a neighbor like the shooter in this story did. Obviously, the shooter had no regard for the law when he decided to knock on the door with a weapon. At that point, any concern for whether or not the shooter had a concealed carry permit, and whether or not the permit contributed to the events in question, are out the window.
If you truly blame the concealed carry permit, then does that mean that the shooter’s punishment is to take away his permit and send him home? I mean, if the permit is at fault, and then the permit is taken away, then there should be no more possibility of a problem, right?
Re: Comment by Kristen — June 11, 2012 @ 11:07 am
How’s this for clarity if I was being too obtuse? Throw every shooter in jail. Let them prove at trial they’re not guilty of a crime. Without exception.
———
Kristen,
Does your dictum only apply to “firearms” or all cases of “deadly force”?
If only firearms? Were one to pull a knife would prosecutorial discretion be OK, but not OK with a firearm? Why?
If all “deadly force” you would throw the father in the following story in jail? Let him exhaust his resource while unemployed in jail in order to prove at trial he is not guilty of a crime? BTW, did you know that many justifiable-homicide defenses cost in the six figures?
http://tinyurl.com/7f47uon
**
Sheriff: Father kills man sexually abusing his daughter
By Jack Maddox, CNN
updated 12:22 PM EDT, Mon June 11, 2012
(CNN) — A Texas father caught a man sexually assaulting his 4-year-old daughter and punched him in the head repeatedly, killing him, authorities said.
SNIP
Asked whether they would press charges against the father, the sheriff responded, “You have a right to defend your daughter. He acted in defense of his third person. Once the investigation is completed we will submit it to the district attorney who then submits it to the grand jury, who will decide if they will indict him.”
SNIP
**
Assuming, arguendo, that the facts support the father’s account would you deny prosecutorial discretion in this case? Would you deny the grand jury discretion? Must, in this case, the man “prove at trial” that he is not guilty of a crime.
IMHO, your “Without exception” dictum of no prosecutorial discretion is a classic slippery slope fallacy of “So, if we don’t want Z to occur, A must not be allowed to occur either.”
“John Wilburn, if I was playing my music too loudly and you came over and asked me to turn it down – Fine. If you came over with your holstered gun displayed for me to see, I would consider that threatening.”
Unfortunately, Miriam, you’re not allowed to find that threatening, or, if you do, the law says, too damn bad. It seems to me the law now has a bias toward the people with guns. THE gunners get to determine if something’s threatening, in which case they may kill.
Dan Casey has a concealed carry permit.
@Miriam: “If you came over with your holstered gun displayed for me to see, I would consider that threatening…I would consider that instigating.”
I ordered three Loco Tacos at the Bell yesterday and I guess the reason the girl gave them to me for free was because she was threatened by my holstered gun and thought I was going to rob the place.
Oh, I’m sorry… that’s not what happened. She charged me for the Tacos and then asked what she would have to do if she wanted to be able to carry a gun and it turned into an educational moment.
Sorry. I got all mixed up.
Anyway, Miriam, thankfully the law doesn’t consider a gun in a holster to be a threat to anyone.
@Dan Casey: “Unfortunately, Miriam, you’re not allowed to find that threatening, or, if you do, the law says, too damn bad.”
Not “too damn bad.” In her scenario, she could certainly ask that person to leave her property. That could be for the gun, or the video camera or whatever.
In public, though, you can’t just sick the police on anyone you find threatening just because you want to. Miriam could certainly call the police if she feels threatened by someone with a gun in a holster, but that person does not need to speak with the police, identify themselves, explain themselves, or even return a “hello.”
I’ve never had an experience like that, personally.
John Wilburn, count myself and my wife, and her dad, and several others we know, as people who are either outright liberal, or somewhat liberal (at least on certain issues…I trend more Libertarian than anything) who hold valid/current CHP’s in this Commonwealth, who also happen to own firearms. We’re also NRA members, though I disagree with much of their political posturing…I support their efforts to keep gun rights and the 2nd Amendment strong, though I do occasionally disagree with some of the legislation they support.
hokie24,
The terms were used as identifiers, and identifiers only. I could have written “shooter” and “dead person” but that would have been less interesting.
The entire article is linked to in the blog post.
By the way, there are other articles elsewhere in which the prosecutor alleges the shooter learned the precise terminology he used on the phone with the dispatcher in his concealed-carry class.
@Dan Casey: “…but that would have been less interesting.”
BAZINGA!
Jack, I should have added that they were factual identifiers.
Jack, when you hear of a jury coming back and declaring an accused “innocent” let me know.
Obviously, “actual innocence” exists, as in “I personally am innocent of the 9/11 hijackings”. Your link doesn’t support your premise that we’re always innocent until proven guilty though…under some circumstances it appears “innocence” needs to be proven, as your link points out.
“In public, though, you can’t just sick the police on anyone you find threatening just because you want to.”
Seriously? But you’re free to shoot them under the same conditions. It just gets weirder and weirder.
@Jack, just to clarify: If I saw you ordering tacos in Taco Bell with a hosltered gun, I would not find that threatening. If you showed up at the door of my house, pissed off (to whatever degree) about my music and had a gun in view…that would worry me. It is: gun + at my door + mad at me enough to walk over, etc.
Big difference.
“Anyway, Miriam, thankfully the law doesn’t consider a gun in a holster to be a threat to anyone.”
No, no…gosh, no. Not scary like, say…Skittles.
Dan,
Factual identifiers with the primary purposes of eliciting emotion.
Listen, I’m not going to try to defend this guy in Texas. We don’t know the facts, but to me it seems a bit like he made some pretty terrible decisions that day/night/whatever time it was. I don’t think I would make the same ones.
If it turns out he is not guilty of *something*, I’ll be surprised.
But this “one size fits” all notion that anyone who kills someone else, without regards to the circumstances, should be tossed away for a couple of years, awaiting a trial, going broke, missing their kids growing up is just ridiculous.
Even if they’re found not guilty they’ll spend more time in jail than many criminals.
If you have evidence to contradict their story of self-defense, go for it… but if you don’t, then you have to go on the “innocent until proven guilty” notion that our justice system was built on.
Is our system of justice perfect? Hell no… sorry… HELL NO. But there are rules, and both sides have to play by them.
This story about the bank robber in Aurora, CO a week or so ago is the perfect example. I think the bank robber should walk. No, not because I don’t think he did anything wrong or that criminals should walk, but because the police egregiously violated the Fourth Amendment rights of dozens of people systematically until they found the man they were looking for.
The worst lawyer on the planet will get all of the evidence tossed and he should.
If the police don’t play by the rules, they’re as bad as the criminals.
We don’t always like it, but it is true that ten criminals should go free before one innocent person is put in jail.
@Other John: “We’re also NRA members, though I disagree with much of their political posturing…I support their efforts to keep gun rights and the 2nd Amendment strong, though I do occasionally disagree with some of the legislation they support.”
+1, except I’m not a member.
“You have a right to defend your daughter. He acted in defense of his third person. Once the investigation is completed we will submit it to the district attorney who then submits it to the grand jury, who will decide if they will indict him.”
DaveHicks, this seems to me a completely reasonable answer, and I bet the guy goes free. Defense of your life or that of another person’s life (in the face of genuine threat) is among those cases where deadly force is allowed, isn’t it? (even though the father didn’t know it would end up deadly).It would be hard to argue that the rape of a 4 year old didn’t pose a threat to her life. It would be hard to argue that a guy behind the counter of a 7-11 – when confronted with an armed robber – who pulls out a gun and defends himself isn’t justified either. There would be a dead guy on the floor with a gun, and probably tape to confirm the clerk’s story.
These stories bear no resemblance to the clown who shot the teacher in the house with the loud music. No one’s debating stories like that.
But the clerk’s story needs to be asked, the guy who beats the perv to death needs to tell his as well. And if the girl shows no sign of molestation, and the guy in the 7-11 has no gun, their stories wouldn’t hold up.
@Kristen: “Jack, when you hear of a jury coming back and declaring an accused “innocent” let me know.”
Juries do not have that option.
@Kristen: “Seriously? But you’re free to shoot them under the same conditions. It just gets weirder and weirder.”
Please pardon me while I step away and give my self a lobotomy so that I can understand things from your perspective…
Miriam,
I would never walk up to your door to start some kind of confrontation with my gun. Wouldn’t happen. In fact, if I had a gun and you came to me to start a confrontation I would do everything I could to avoid it.
Just my personal opinion, but I do see how you would potentially feel threatened by that behavior, so if I were so inclined to walk up to your door to complain about something I would probably leave my gun somewhere else. I know for certain that I would never let my emotions get the best of me and turn into a cold-blooded killer.. I know this. But I wouldn’t want to put you in a situation where you are paying more attention to my gun than you are to me trying to work out some differences with you.
I would leave it at home.
I’ve never had an issue with a neighbor, though, so it’s never actually happened with me.
I’m not the complete asshat that people around here portray me to be.
Jack @23 posted, “if she feels threatened by someone with a gun in a holster, but that person does not need to speak with the police, identify themselves, explain themselves, or even return a “hello.”
Jack that is incorrect information. If police are investigating a complaint, and you have been indicated as the person of whom that individual felt threatened, police have every right to question you. You can choose not to answer, but that will not normally go well for you…
for more info:
As of 2008, 24 states had stop-and-identify laws. Regardless of your state’s law, keep in mind that police can never compel you to identify yourself without reasonable suspicion to believe you’re involved in criminal activity.
But how can you tell if an officer asking you to identify yourself has reasonable suspicion? Remember, police need reasonable suspicion to detain you. One way to tell if they have reasonable suspicion is to determine if you’re free to go. You could do this by saying “Excuse me officer. Are you detaining me, or am I free to go?” If the officer says you’re free to go, leave immediately and refrain from answering any additional questions.
If you’re detained, you’ll have to decide whether withholding your identity is worth the possibility of arrest or a prolonged detention. In cases of mistaken identity, revealing who you are might help to resolve the situation quickly. http://www.flexyourrights.org/faq
Just trying to save you from yourself…
“We’re also NRA members, though I disagree with much of their political posturing…I support their efforts to keep gun rights and the 2nd Amendment strong, though I do occasionally disagree with some of the legislation they support.”
I probably disagree with most of the legislation the NRA backs. But that is far from the chief bone I would pick with them. By far the worst thing they’ve done is make Wayne LaPierre their national spokesman, and allow him to go around the country fomenting bat-hit conspiracy theories about how Obama’s going to disarm everyone during his second term, and the plain proof of that, which anyone ought to be able to see, is that the president HASN’T gone after ANYONE’S guns since his inarguration. Charleton Heston was much better, and that applies to after his dementia set in, too. Which I’m not making fun of.
Re: Comment by John Wilburn — June 11, 2012 @ 1:59 pm
Maybe some folk might want to read:
http://harpers.org/archive/2010/08/0083063
**
Happiness is a worn gun:
My concealed weapon and me
By Dan Baum
Or
http://tinyurl.com/6p9jdmg
**
The cover story of the August 2010 issue of Harper’s Magazine is titled “Happiness is a Worn Gun: My Concealed Weapon and Me,” by Dan Baum. It’s unusual.
It’s certainly not the kind of cover story that Harper’s would have run under the editorship of Lewis Lapham, whose trademark leftist rants became too frequent and too detached from reality for me to continue purchasing the magazine.
SNIP
The article itself lives up to my hopes. Baum is a lifelong gun owner and the article is free of contempt for those who hunt or own guns for defensive purposes. He gives a fair appraisal of the state of concealed and open carry in the United States, why and how people choose to do it, and what the societal effects have been and might be in the future.
SNIP
**
OR
http://tinyurl.com/8yftx7z
**
A Liberal Case for Gun Rights Sways Judiciary
By ADAM LIPTAK
Published: May 6, 2007
In March, for the first time in the nation’s history, a federal appeals court struck down a gun control law on Second Amendment grounds. Only a few decades ago, the decision would have been unimaginable.
There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.
SNIP
**
Or
http://tinyurl.com/6suaplm
**
Gun Rally
Feb 25, 2010 7:00 PM EST
Liberals and the NRA have found common cause in a pending supreme court case.
When the constitutional accountability Center launched in 2008, it looked like just another liberal legal-advocacy group, dedicated to “fulfilling the progressive promise of our Constitution’s text and history.” The causes it has backed run the standard liberal gamut: among other things, the group supports California’s efforts to regulate carbon emissions and pushes for “robust due-process protections for immigrant criminal defendants.” So if you were told that the CAC had filed an amicus brief in McDonald v. Chicago, a case about gun control to be argued before the Supreme Court this week, you might think it was siding with Chicago, whose restrictions on gun ownership are being challenged.
You would be wrong. For decades, liberals have opposed gun rights on the grounds that the Second Amendment is limited to the establishment of state militias. But some liberal dissenters from this view now say that is too narrow a reading of the Constitution. They contend that it fails to take into account the historical record and contradicts liberals’ own reading of the Constitution’s protection of individual rights.
SNIP
This is still far from the standard liberal view. But Kendall does have allies. Some sharp liberal legal minds are part of his campaign to reverse and embrace the right to gun ownership. “I believe in an individual right to bear arms, consistent with a living Constitution,” says Adam Winkler, a professor of law at UCLA and a frequent participant in the American Constitution Society, the liberal answer to the Federalist Society. Winkler was one of eight scholars, including other prominent liberals, who signed the CAC’s brief in the McDonald case.
SNIP
**
should be Jack @93…
Yeah, Dan…I’m no real fan of LaPierre either. We actually switched our magazine subscriptions away from the general NRA rag to American Rifleman and American Hunter…not so much because we hunt (because we don’t), but just to help reduce some of the political stuff that came though…though some articles are common to all 3 publications.
Dan Casey has a concealed carry permit. I read the linked column. Thanks for the info, Dan. I was actually considering taking a one day class for about $75, but the online one is waaay cheaper. And I get to stay at home.
Jack, I just read further back at the deliberate/non deliberate confusion on my part, and I was only distinguishing between that and someone firing off a gun while cleaning it or in gun safety class.
You did say that self-defense shootings were deliberate and I misinterpreted.
Since some here support the NRA while still finding them disgusting, may I suggest the Second Amendment Foundation? In the last few years, it is they, not the NRA, who have been winning all of the major court victories across the country. The NRA has even tried to take credit for some of what the SAF has accomplished.
“…but that would have been less interesting.”
That’s basically what I was getting at.
I’ve got no doubt that the shooter was a nut bag. Shooting someone just over loud music says that you’ve probably got other issues going on. I also have no doubt that some folks (not all) who go through the process of getting a concealed carry permit view themselves as somewhat of a “protector” or “enforcer” for those of us who don’t see a need to constantly carry a weapon.
I just don’t think that the concealed carry permit had anything to do with this shooting. And if the shooter was showing off the fact that he had a gun on him, then it’s not exactly concealed anymore.
There’s also no way in hell that this should be considered “standing your ground,” at least not with the details that are given here and in the AP article that you linked. It really looks to me like the shooter was looking for a problem.
Jack, with regard to Kristen saying juries don’t declare anyone innocent, Kristen’s thinking is this:
Juries find a defendant guilty, not guilty, or they are unable to reach a decision.
Because everyone is innocent (under the law) until proven guilty, you’re correct that a not-guilty finding can be regarded as a declaration of innocence. But there’s no formal declaration of innocence.
The Associated Press stylebook at one time instructed journalists to write “not guilty” verdicts like this: The jury found so-and-so innocent.
This was to prevent the word “not” getting inadvertently dropped in the text (something that has been known to happen). On occasion, that has been a costly dropped world for some newspapers.
@Hillary: “Jack that is incorrect information. If police are investigating a complaint, and you have been indicated as the person of whom that individual felt threatened, police have every right to question you. You can choose not to answer, but that will not normally go well for you.”
You mean like this guy, in Blacksburg? http://www.youtube.com/watch?v=1n1BHJs5V5c
Went just fine for him after someone called the cops on him carrying a gun.
Newman,
Bonus! You can drink beer while you’re taking the online concealed-carry course.
But if you’re seriously considering carrying, I would suggest John Wilburn’s course instead. You will learn more there.
I wrote a third column, the first time I went shooting, the October after the column you read ran. And that hands-on instruction, particularly concerning firing a semi-auto, was invaluable. Btw, I was a good shot, too!
Re: Comment by Dan Casey — June 11, 2012 @ 4:47 pm
I have long wished that we had the Scots legal system’s unique three possible verdicts for a criminal trial: “guilty”, “not guilty” and “not proven”. Both “not guilty” and “not proven” result in an acquittal with no possibility of retrial.
Decided to do something novel… I read the law… does not apply in this case (with the facts put forth)…
Great conversation piece though…
@Kristen: “You did say that self-defense shootings were deliberate and I misinterpreted.”
No problem. It’s easy to misunderstand something on here, especially when there is no easy way to follow the conversation.
Yes, negligent discharges would certainly not be deliberate, even if you hti someone when it happened. Of course, if you’re following the simple rules of gun safety, it shouldn’t happen. Finger off the trigger, don’t point it at anything you don’t intend (or wouldn’t mind) shooting.
@Dan Casey: “And that hands-on instruction, particularly concerning firing a semi-auto, was invaluable.”
They are definitely more complex than a revolver, but both have their advantages and disadvantages over the other.
@Dan Casey: “Juries find a defendant guilty, not guilty, or they are unable to reach a decision.”
http://en.wikipedia.org/wiki/Actual_innocence
Dan, that’s what I meant. There is no jury finding of “innocent”…just that the prosecution didn’t make it’s case. Civil court is totally different…all they need is a majority to find for the plaintiff, but jail time is rarely at issue there.
Guns are thought of a little differently in Texas too, if we’re all being honest. Just being nosy, but did the victim also have a concealed carry permit?
@Kristen at 12:31pm: “There are no “innocent” in our system of justice…just people not convicted.”
Dan — I’m not sure how to post it here. I just emailed you, though, the form for submitting a Petition for a Writ of Actual Innocence to the Virginia Supreme Court.
In certain circumstances, judges will actually rule a person actually innocent. Despite Kristen’s claims, though difficult, our justice system does declare some defendants to be innocent.
As we have the question of liberals running, would one consider Playboy as being liberal?
Did anyone buy the June issue (for the articles, of course)?
Did you notice the underlying note of an article in which open carry is presented as the extreme alternative to the “righteous” activity of carrying concealed?
Think about it.
Although we may not have, yet, accomplished the goal of normalizing open carry in every state, we may well have moved the bar a long way toward making concealed carry the new normal.
We might be winning the culture war, if folk with a track record of supporting desegregation, 1A, etc, accept concealed carry.
Miriam:
81.”John Wilburn, if I was playing my music too loudly and you came over and asked me to turn it down – Fine.”
If it’s “fine”, that’s the end of it anyway.
“If you came over with your holstered gun displayed for me to see, I would consider that threatening…I would consider that instigating.”
If a black guy came to your door and you felt threatened, you’d be the scourge of the earth. Socially, you aren’t allowed to feel threatened by certain things, and responsible, proper, holstered carry should be one of them.
“If I couldn’t see it, it would not affect anything that was said between us.”
I thought you said you were just going to turn the music down, now you DON’T want to because of the benign holstered handgun?
“If it was displayed, I would assume it to be displayed for a reason.”
ass u me.
“Heck, if you came over to talk to me and were simply videotaping it, I would consider that pretty crazy and threatening.”
Yeah, I would personally think that was wierd and choose not to talk with you as you can choose not to talk with me. The difference is that I initiated the dialogue because of YOUR noise violation.
“If we remove the gun from the scenerio, and the guy shows up: already on the phone with the police, videotaping the incident…I consider that instigating an event that is a bit larger than simply asking a neighbor to turn the music down.”
If the cops are already called, let’s quit worrying about it and wait for them to show up.
“There is something really WRONG going on even if you subtract the gun. Don’t you think?”
Yes, it’s not normal neighborly interaction any way you slice it. I wouldn’t mind having lunch with you at Taco Bell; that sounds pretty good actually. Must be getting close to dinner time…
Other John , while I use the NRA’s certifications to teach since they are so widely accepted, they do not speak for me. The NRA is the NRA. I am much more aligned with the VCDL, but neither I speak for them or they for me.
Kristen, for what it’s worth, I know a guy who worked at 7-11, had a thief walk in and demand money, got the money, THEN shot him in the face. Somehow, he lived.
Dan:
“But if you’re seriously considering carrying, I would suggest John Wilburn’s course instead. You will learn more there.”
Thanks for the plug, Dan. Yes, if you want to actually carry, a course like mine is much more valuable, we cover rights, laws, multi-state travel, traffic stops, practical daily carry, proper holstering, loading/unloading drills, jam/malfunction clearing, range time, cleaning, and more. Your $75 includes everything and we have a good time too! Classes are usually about once a month.
http://chpclass.com
Dan:
“Btw, I was a good shot, too!”
I find that a lot of rookies can do quite well just purposefully following our lead step-by-step and by not bringing bad habits to class with them. The results often surprise the more experienced shooters.
Jack:
“They [semi-autos] are definitely more complex than a revolver, but both have their advantages and disadvantages over the other.”
FWIW, we learn, shoot, and clean both in my class. Despite 100+ year old technologies, both kinds are very viable self-defense pieces today.
Re: Comment by Kristen — June 11, 2012 @ 4:06 pm
DaveHicks, this seems to me a completely reasonable answer, and I bet the guy goes free. Defense of your life or that of another person’s life (in the face of genuine threat) is among those cases where deadly force is allowed, isn’t it?
SNIP
These stories bear no resemblance to the clown who shot the teacher in the house with the loud music. No one’s debating stories like that.
But the clerk’s story needs to be asked, the guy who beats the perv to death needs to tell his as well. And if the girl shows no sign of molestation, and the guy in the 7-11 has no gun, their stories wouldn’t hold up.
——————
Kristen,
Is that a retraction of your comment @ 11:07 am
“How’s this for clarity if I was being too obtuse? Throw every shooter in jail. Let them prove at trial they’re not guilty of a crime. Without exception. If they genuinely shot in self-defense, it shouldn’t be a tough burden, and anyway…”Better tried by 12 than carried by 6″. It might give some trigger-happy adventurers second thoughts before pulling the trigger.”
If it is, thank you.
—–
Now, as to “their stories wouldn’t hold up”, are you also agreeing that there is a place in our legal system for LEO and prosecutorial discretion? I hope so. I’d hate to think this father would need to be put through a trail, if police confirm the story.
—–
FWIIW, yes you are right. Most States do allow the use of deadly force under such circumstances which create a reasonable apprehension of great/grievous/serious/etc (different terms in different States.) bodily harm to oneself or to another innocent person.
—–
FWIIW2, one of the problems with Dan picking case and using “[f]actual identifiers with the primary purposes of eliciting emotion” is that folk tend to focus too much on those cases and not the underlying principles and broader applications.
I hope we have come to some level of a common understanding.
Re: Comment by Jack — June 11, 2012 @ 4:09 pm
I would never walk up to your door to start some kind of confrontation with my gun. Wouldn’t happen. In fact, if I had a gun and you came to me to start a confrontation I would do everything I could to avoid it.
———
Jack,
That has been my experience, also. I know a good number of CHP holders who report the same.
Re: Comment by Dan Casey — June 11, 2012 @ 4:12 pm
Dan,
You might be surprised as to how much emotional debate that issue creates on a number of Pro-RKBA forums, blogs, etc.
Jack @116 – not the same scenario you presented in your other post. If some one calls a complaint that they are fearful of an individual on their property [actually with or without a holstered gun] – when the police show up, and you are there they have the absolute right to question you. “Who are you and why are you there?” “Were you asked to leave by the property owner?” etc. Again, you have the right not to answer their questions, but why not? Saves a lot of time…
Jack, the guy in that video was an absolute putz (not really at all what I want to call him)! Pathetic! How exactly is a police officer or the general public supposed to tell the difference in a person just taking the air with their protection and a lunatic walking to his intended targets? Gun rights people like that make me angry and more determined to make it as hard as I can for them not to carry, so what the hell good does that serve? None.
Respect is a two way street. I think people have a right to be suspicious of an unknown person walking around armed and the police should have every right to walk up and be able to ascertain if you are high, angry, out of your mind or just exercising your legal right to pull people’s chain.
Just like the religious right, don’t be surprised when you have pushed too far and you start to lose ground.
John or Jack,
Is the Va. concealed permit good in the national forest? I know in years past you didn’t want to be caught with a loaded gun in the national forest outside of hunting season.
We like to hike and I would like to carry a pistol, but am not sure if I can legally? Any advice would be appreciated.
@Sandi: “How exactly is a police officer or the general public supposed to tell the difference in a person just taking the air with their protection and a lunatic walking to his intended targets?”
ESP, I guess. In any case, if the police officer asks you to stop, even for twenty seconds, he has seized you under the Fourth Amendment and will have to be able to articulate his reasonable suspicion or probable cause when it goes to court of if the person he stopped sues him.
This has been thoroughly covered in the courts.
@Sandi: “Gun rights people like that make me angry and more determined to make it as hard as I can for them not to carry, so what the hell good does that serve? None.”
That damn 5th Amendment right. Doesn’t it piss you off when people exercise their rights?
We’ve gone from Sandi being upset about law-abiding folks exercising the Second Amendment and can now include the Fourth and Fifth as well.
@Sandi: “Respect is a two way street.”
Not in the case of the video. I personally wouldn’t have remained completely silent, but would have been cordial… however, the LAW requires the officer respect this person’s (I don’t know the guy in the video) Fourth Amendment rights. The law does not require that this guy give the officer any respect.
Again… how I would have reacted in this situation, differently. But… you can’t fault the guy for doing what the law requires him to do. The fact that he even stopped walking was more than the law required.
Maybe this is one of those guys that just opens his mouth too much and doesn’t know when to stop. In that case, he did himself a favor by saying nothing.
@Sandi: “I think people have a right to be suspicious of an unknown person walking around armed and the police should have every right to walk up and be able to ascertain if you are high, angry, out of your mind or just exercising your legal right to pull people’s chain.”
Your thoughts are, unfortunately for you, but fortunately for me, completely contradictory to the Fourth Amendment.
@Sandi: “Just like the religious right, don’t be surprised when you have pushed too far and you start to lose ground.”
So far it is going the opposite direction.
@Newman: “Is the Va. concealed permit good in the national forest?”
Yes, in fact, just recently became valid in National Parks, too. John Wilburn may correct me if I am wrong, but State Parks, State Forests and National Forests are all good.
Most of the buildings in the National Parks or National Forests would be off-limits, though.
Check handgunlaw.us
@Hillary: “not the same scenario you presented in your other post. If some one calls a complaint that they are fearful of an individual on their property [actually with or without a holstered gun] – when the police show up, and you are there they have the absolute right to question you.”
You’re right. Completely different scenario and what you say is 100% correct whether a gun is involved, or not, holstered, or not.
I believe in that situation, the police officer’s RAS is that you are in the process of trespassing, which is a crime. A Terry Stop would definitely be warranted.
Dave Hicks-
“That has been my experience, also. I know a good number of CHP holders who report the same.”
If anything, carrying a gun puts a greater emphasis on avoiding conflict, at least for emotionally stable non-idiots. Taking a life, even when justified, can be devastating emotionally, financially, and even socially. Five years ago, a man here in Cleveland shot and killed one of two teenagers who were robbing him at gunpoint. Even though he was cleared and was obviously justified in his actions, his life was ripped apart:
“But he still had to deal with backlash from residents in the community.
Wells, his girlfriend and her mother abandoned their home after he received threats from Buford’s friends. Someone shattered the windows at the home. A street shrine to honor Buford’s memory was placed near where he was shot. Police provided protection at the property after the incident. A community group repaired it and his girlfriend’s mother moved back in. But Wells said neither she nor his girlfriend live there now.
…
“I’m devastated about what happened to me,” Wells said. “I had to move around and I didn’t have a stable place to live for two years. He said he should have stayed home that night.
Wells lives in Greater Cleveland, but he keeps a low profile. He doesn’t tell those outside of his circle of friends and family where he works or resides. He was very reluctant to talk at all with The Plain Dealer.
…
Wells said he didn’t know how old the robbers were. He just knew his life was threatened by someone who had a gun.
“Any time a little kid dies it’s (expletive) up,” Wells said. “But if he was 15 or 25 I would do the same thing. I don’t care how old you are when you come at me with a gun.”
…
Wells said he supports gun rights laws and still has the weapon he used to defend himself that night. But he said the laws are not designed for everyone.
“I really don’t even want to carry a gun anymore. The laws aren’t for me. They’re for rich folks who live in the suburbs.”
——————————————-
Me again. Doesn’t sound much like the popular perception of concealed carriers, does it? No macho posturing, no racial elements (all involved were black), and no one glad that he “blew away” a bad guy. Just a normal man forced to do something horrible to save his own life. This story is far more representative of these types of incidents, but isn’t as sexy the nutballs from a journalist’s perspective.
Re: Comment by Sandi Saunders — June 11, 2012 @ 7:28 pm
Would you apply that same judgement to someone who was not armed?
Check out: http://tinyurl.com/a33p7g
Re: Comment by Newman — June 11, 2012 @ 7:34 pm
See: http://tinyurl.com/7c9ulvw
**
4VAC15-40-60. Hunting with dogs or possession of weapons in certain locations during closed season
SNIP
G. The provisions of this section shall not prohibit the possession, transport and use of loaded firearms by employees of the Department of Game and Inland Fisheries while engaged in the performance of their authorized and official duties, nor shall it prohibit possession and transport of loaded concealed handguns where the individual possesses a concealed handgun permit as defined in § 18.2-308 of the Code of Virginia.
SNIP
[emphasis added]
**
Sandi:
“Gun rights people like that make me angry and more determined to make it as hard as I can for them not to carry, so what the hell good does that serve?”
Everything makes you angry. Attitudes like your make it hard for people to not want to carry, I’ll second that.
Newman:
“Is the Va. concealed permit good in the national forest?”
Open carry is prohibited except where hunting is allowed. Lawful concealed carry is OK.
http://leg1.state.va.us/cgi-bin/legp504.exe?000+reg+4VAC15-40-60
National Parks are okay to carry if okay in the state they’re in. By the way, a “national park” doesn’t have to look like a park, it is any “park” that comes under the National Park Service, e.g. the naval museum at Norfolk.
I would add to the discussion that in many of the shootings, whether death or injury occurs, when the criminal trial is ended [if there is a trial] some states prohibit a civil case against the shooter, [FL for example in SYG cases] but not all states do. Not losing your liberty is one thing, but that does not shield one from civil liability and loss of all that you worked for over a lifetime. And because the burden of proof in Criminal and Civil cases is different, one may not face criminal penalties, but may very well face civil penalties – usually monetary judgements.
Sometimes things don’t end well for anyone…
What does the 5th Amendment have to do with acting like an ass? Refusing to answer questions under oath, or under police questioning in relation to an incident is not the same as walking through a neighborhood armed and mute. That is a totally unfair comparison IMO.
John Wilburn, it is patently untrue that “Everything” makes me angry. I disagree with quite a few comments made in this thread, I picked only the most egregious and offensive to speak to. Don’t pretend it is folks like me that make you afraid and need to carry a weapon. The man was a jerk and that makes NO ONE respect him or his gun rights. The arrogance, anger and defiance instead of bridge building here is far from only on one side. “I’ll second that.”
John Wilburn, Dave Hicks, are you saying that if a person, or a police officer came up to you while you were open carrying you would stand there mute and ignore their question or stand there mute and film their response? DO YOU think that was appropriate, educational of instructional of anything other than arrogance?
Does it matter if the gun was in their hand? What if he had been on his way to shoot someone, how could anyone tell anything about his “agenda” without asking? How can we understand the point if it is never shared?
Sandi Saunders-
“Gun rights people like that make me angry and more determined to make it as hard as I can for them not to carry, so what the hell good does that serve? None.”
Do you think about *anything* you say before you type it? So if either side of any debate pisses off the other side, they are doing something wrong? Can you name a single issue that *doesn’t* anger people on both sides?
“Hey homphobes, you make me angry, what good is that doing?”
“Hey gay rights people, you make me angry, what good is that doing?”
“Hey pro-life people, you make me angry, what good is that doing?”
“Hey pro-choice people, you make me angry, what good is that doing?”
If the best you can do is use Princess Leia’s, “The more you tighten your grip Tarkin, the more star systems will slip through your fingers,” argument, just give up.
Newman-
It’s been mentioned here before, but here’s some good gun trivia:
1) What President signed the ban on carrying in National Parks?
2) What President signed the legislation that lifted the ban?
Kristen #62 wrote, “So…we’re supposed to kowtow to the neighbor knocking on our door to complain about our music because he might decide to shoot us down if we don’t?”
No, you don’t have to kowtow to an angry person holding a gun in their hand. It would be prudent to turn down the music, but you could go for legend status and do the “shoot me MFer, I don’t care, I ain’t scared to die, I’m going to play my music as loud as I want to!” If you aren’t shot people will talk about how you dared an armed person to shoot you, if you end up disabled or dead, they’ll still talk about you. Win-win for you huh?
Sandi:
145.”John Wilburn, it is patently untrue that “Everything” makes me angry. I disagree with quite a few comments made in this thread, I picked only the most egregious and offensive to speak to.”
Wow, I’d like to see what doesn’t make the cut.
“Don’t pretend it is folks like me that make you afraid and need to carry a weapon.”
No, it’s folks like you that remind me how little some people respect our rights and afraid not to keep my nose to the grindstone defending them.
“The man was a jerk…”
No, he was just quiet. Personally, I would have been a bit friendlier, but he wasn’t rude.
“The arrogance, anger and defiance instead of bridge building here is far from only on one side”
With law enforcement telling people “anything you say can and will be used against you”, I hardly call that bridge building. Keep trying to build that bridge from reality to utopia over the Bill of Rights.
146.”John Wilburn, Dave Hicks, are you saying that if a person, or a police officer came up to you while you were open carrying you would stand there mute and ignore their question or stand there mute and film their response? DO YOU think that was appropriate, educational of instructional of anything other than arrogance?”
He is not required to educate the cops and neither am I, but I will. it was not arrogant to keep from getting into an unnecessary exchange with the officer. Getting into a dialogue with the officer in that case offered nothing to gain and everything to lose for the carrier.
“Does it matter if the gun was in their hand?”
It would to me. That may or may not make a difference. At a gun show, it wouldn’t be out of place. If I were a cop, I would question that.
“What if he had been on his way to shoot someone, how could anyone tell anything about his “agenda” without asking? How can we understand the point if it is never shared?”
He doesn’t need any “point” that you think is a good enough reason to be in public. How can anyone tell anything about YOUR “agenda” Sandi?! How do we know when you are walking to your car, that you aren’t going to drive through a playground and kill a bunch of school children? Give me a break. You are the ultimate nanny-authoritarian.
Re: Comment by Sandi Saunders — June 11, 2012 @ 9:44 pm
Refusing to answer questions under oath, or under police questioning in relation to an incident is not the same as walking through a neighborhood armed and mute. That is a totally unfair comparison IMO.
———-
As to “under oath” did you watch the video? If not, you might want to.
As to “under police questioning” what do you think the LEO was doing in the Blacksburg clip? Passing the time of day?
How does doing something that is perfectly legal, such as walking through a neighborhood armed and mute, change anything?
FWIIW, see: Jackson v. Commonwealth, 41 Va. App. 211, 231, 583 S.E.2d 780, 790 (2003) (en banc), rev’d on other grounds, 267 Va. 666, 594 S.E.2d 595 (2004): “Absent some disqualifying status (being a felon, juvenile, or drug possessor) or situs (being in a place where weapons are forbidden), it is not a crime to possess a weapon. [emphasis added]”
Were you walking through a neighborhood pushing a baby carriage should the police be able to detain you for questioning? What reasonable, articulable suspicion to detain exist in either case?
Folk might want to read: ANTONIO LEWIS GOODMAN v. COMMONWEALTH OF VIRGINIA; Record No. 1971-06-1; OCTOBER 16, 2007; MEMORANDUM OPINION* BY JUDGE LARRY G. ELDER @ http://www.courts.state.va.us/opinions/opncavwp/1971061.pdf
—–
For the record, I always ID my self.
After that (as Hillary posted @ 4:12 pm), I ask “Excuse me officer. Are you detaining me, or am I free to go?” If the officer says I’m free to go, I say “Thank you officer” and leave immediately.
Beyond that, I exercise 4A & 5A. Under no circumstances am I going to answer any questions.
@Hillary: “I would add to the discussion that in many of the shootings, whether death or injury occurs, when the criminal trial is ended [if there is a trial] some states prohibit a civil case against the shooter, [FL for example in SYG cases] but not all states do.”
Yes, this is one of the reasons that the VCDL wants a proper Castle Doctrine in Virginia. We had some *decent* ones introduced this year, but they would have inadvertently served to reduce your protections *outside* the home, but would have added the civil protections.
It wasn’t worth the loss of the “outside the home” protections, so many of us opted to fight against the introduced Castle Doctrine bills.
Hopefully the correct one can come along in the next year or two.
@Sandi Saunders: “What does the 5th Amendment have to do with acting like an ass? Refusing to answer questions under oath, or under police questioning in relation to an incident is not the same as walking through a neighborhood armed and mute. That is a totally unfair comparison IMO.”
Then you clearly don’t understand the Fifth Amendment. The guy in the video exercised it quite appropriately. You do not have to wait until you are detained or arrested to refuse to answer questions.
Officer: Excuse me, sir, may I speak with you a moment?
Citizen: I refuse to answer any questions.
That is a fine example of a properly exercised Fifth Amendment right. It applies immediately.
“Does it matter if the gun was in their hand?”
If you’re referring to the guy walking up the street? Hell yes that makes a huge difference. If it were in his hand then he is breaking the law. There is your RAS.
@Dave Hicks: “Beyond that, I exercise 4A & 5A. Under no circumstances am I going to answer any questions.”
Nor should you. If they say you are free to go, they do not have RAS. If they do have it, you’ll not be free to go.
If you are free, and you continue to talk, their goal will be to find RAS, at which point you will no longer be free to go.
That police officer did not come up to you to talk because the flowers look pretty today or because he likes your baseball cap. He came for a reason and he is authorized by law to start a consensual encounter with you. However, it must remain consensual as long as he lacks RAS or PC. And, being consensual, you yourself may choose to end it at any time.
It’s not rude, it is just smart. There are ways to do it rudely, arguably like the guy in the video, and there are ways to do it and be much more polite about it. I’d likely choose the latter.
I’m not a jerk, but I’m also not going to talk my way into the back of a police car.
You do not need to be under oath or have had a Miranda Warning read to you before you may exercise your Fifth Amendment right to remain silent.
I’ll be offline most of the day today and I’ll try to catch up tonight. Hope you folks all have a blessed day.
Oh, and by the way, the reason the Miranda Warning says “anything you say can and will be used against you” is because that is the only way it can be used.
If you say anything exculpatory in nature, it will be considered hearsay and inadmissible.
@140 Dave Hicks,
G. The provisions of this section shall not prohibit the possession . . . .
So, if I have a concealed permit, sections A thru F don’t apply providing my gun is holstered?
Thanks Jack, John and Dave.
Much appreciated. I am still fuzzy on the difference (if there is any) between a National Park and a National Forest. Same rules for both?
“If you say anything exculpatory in nature, it will be considered hearsay and inadmissible.”
Lost you here, Jack. . .
Thanks, Jason…I’ll look into that group and give it a thorough review.
I would still recommend anyone seeking a CHP take the full-day class since there is a lot of hands-on instruction, an immense amount of safety instruction, and a live-fire portion (at least in the NRA class we took). I would also prefer to see such classes as the minimum requirement to obtain a CHP…instead of a 1-hour online webinar with M/C quiz at the end.
No, VRWC, the jerk has no business being at my house with the gun. Let’s not lose sight of who’s at fault in this situation. I don’t give gun owners a pass for being bullying ass(*(*^ just because they’re holding guns.
I said above, I prefer the unarmed world of me and the people I hang out with.
As for the “talking to the cops” thing, I lean to the “say as little as possible” side, not that I’ve ever been questioned about anything.
I think what VRWC is describing is known as the “Reverse Dirty Harry Gambit” — when you don’t have a gun and you challenge the guy who does to shoot you.
Usually you see it in screen comedies and it’s followed by a quick, hard kick to the gunner’s family jewels.
@Dan: http://tinyurl.com/a33p7g
Watch the video. It is long, yes, but worth every minute.
If you tell the police something that hurts your case, they will use it against you in court. If what you say helps you, the testimony by the officer is inadmissible as hearsay.
For example:
Defense Lawyer: “Officer, did my client tell you [whatever it is that helps the defendant's case]?”
Prosecutor: “Objection, hearsay.”
Judge: “Sustained.”
@Kristen: “As for the “talking to the cops” thing, I lean to the “say as little as possible” side, not that I’ve ever been questioned about anything.”
Neither have I. I have asked an officer for directions before, while open carrying, but I’ve never been questioned by them about anything, other than the traditional traffic ticket. But heck, I haven’t even been stopped for a traffic violation since I got my first CHP.
My only experience has been one sobriety checkpoint and one driver’s license checkpoint.
@105 Jack, I don’t think you are an asshat. You always respond in a reasonable way (at least to me). Just as a side note, I wouldn’t care if you were carrying a concealed gun since I would never know it was there. It is the displaying of a gun in that scenerio that would bother me…sort of like in nature when peacocks show their tails, roosters puff their chests, etc. I mean, there really is NO DIFFERENCE in that particular setting. The ONLY reason to *display* a holstered gun in a situation where you are confronting another person, is to make damn sure that person knows you have it. Otherwise, your point about it being a distraction from the conversation is absolutely the critical point.
#160 Kristen, I agree that the armed guy has no business being at your house, but if he is holding a gun it would be best to turn the music down. Having a confrontation then isn’t worth being killed or injured. There will be another time and another place when the guy doesn’t have a gun in his hand that would be better for a confrontation.
#161 Dan, that scenario happens fairly often, usually between a drunk and a person who has no intention of shooting anyone. Both people are stupid in that situation. One is at the mercy of the other, the one holding the gun is doing probably the dumbest thing (using a gun as a threat with no intention of using it) anyone who owns a gun can do.
#162 Jack, those videos have been around for awhile and they are excellent. I know some police officers who watched the videos and then had their kids watch them.
@Miriam: “Just as a side note, I wouldn’t care if you were carrying a concealed gun since I would never know it was there. It is the displaying of a gun in that scenerio that would bother me.”
Miriam, I give my mother grief for the same thing… admitting that what you don’t know won’t hurt you.
Sometimes it is impractical to carry the gun concealed. When was the last time you saw a police officer, in full uniform, carrying his handgun concealed? Never… why not? Well, probably one of the reasons is it is just not practical.
In any case, I’ve been around a lot of people with a lot of guns and most of the time you know it… they are good people and not the ones you really need to fear.
If I had the opportunity to sit down with you at lunch one day and prove it to you, I’d be honored to do that. It would be a privilege.
@VRWC: “#162 Jack, those videos have been around for awhile and they are excellent. I know some police officers who watched the videos and then had their kids watch them.”
Yes, you should never talk to the police. Nothing good can come of it at all. There is zero upside and virtually an unlimited downside.
If you’re reporting a crime, or are a witness to something, that is quite different, though.
I love the part in the video where they explain why a police officer who pulls you over for speeding always asks you how fast you think you were going.
If the speed limit is 40, and you’re going 55, and you say, “Uh, 45?” thinking you’re minimizing your guilt, you are wrong. Instead you’ve just admitted you’re guilty. Then they can testify you admitted you were speeding, if it comes to that in court.
That’s why I always say I don’t know, plus “how fast do you think I was going?”
That may have been what got me off Memorial Day weekend in Salem, when the police radar had me doing 52 in a 35. Then again, it simply could have been a nice cop who decided to cut me a break because I was polite.
As a matter of fact Jason, yes, “if either side of any debate pisses off the other side, they are doing something wrong”. In an issue as heavy and hard as gun rights and guns in public in a town that had an historic mass shooting, hell yeah, it matters even more.
Yes, whether you like it or not I do think about what I say before I say it as I am not the one hiding in anonymity to do so. DUH!
A debate or discussion and ergo respect for any point, position or right cannot be successfully argued after you have made someone angry. A stunt like that one is designed to make people angry, uncomfortable and cause a sensation. Why the hell else put it on “the inner tubes”?
It does absolutely no good to talk to any “homphobe” after they make you angry with their bigotry and crudity.
It does absolutely no good to try and reason with “gay rights people” after they have insulted, belittled or angered you.
It does absolutely no good to talk with “pro-life people” after they have called you a baby killer, or an evil monster.
It does absolutely no good to talk with “pro-choice people” after they have called you a meddling nanny dictator.
That is part of the problem with every contentious issue in this world. The “in your face” jerks who make it all worse.
Would it kill you to stay in one realm at a time?
Last time I got pulled over was a couple of years ago on Brandon. The cop asked me what I thought the speed limit was, and I answered honestly that I had no idea. Which was great until he went back to his car and ran a check on my license and my son pointed out that there was a sign not 10 feet in front of where I’d pulled over.
@Jack, but you have already fundamentally agreed with me by saying that if you were to cross into my yard to discuss something that was a subject of conflict, you would not carry your gun. So, you already understand the threat, intended or not, implied or not, of having a gun in that situation…if I read your prior post correctly.
No proof is necessary, btw. I would not be threatened or concerned about your gun at a restaurant. Honestly, if I was at another table and saw you, I would assume you were a police officer or detective or something. Cause I’m a dork.
#169 Arghhh.
John Wilburn whines, “Wow, I’d like to see what doesn’t make the cut“. Comments 1 thru 115 ring any bells? I commented on ONE post on this thread and predictably, all of you gunners jumped all over me for it.
That freaking clip of the jerk with a gun had nothing to do with any “respect” for rights. How the hell is anyone supposed to know a crazed gunman from that kind of “statement making” jerk? Wait till he starts shooting? How does his being mute help anyone respect him or his “right”?
That any of you can see so little wrong with what he did is very telling. Not flattering, but certainly telling.
How the hell a simple, common courtesy statement would or could have been “used against him” is pretty hard to imagine. Again, you all want us to wait until the crime happens to even ask a question or express interest. Which only works out well for the one holding the gun.
Your excuses are just BS. I did not say he needed any “point”, I said he should have shown some common courtesy to the officer and explained what he was doing. Just as you do when they pull you over for whatever they have to “share”. Rights to be mute and refuse to explain anything make you look like a problem not a solution.
I did not say he should not have been walking the neighborhood armed. I did not say he should have offered ID or any explanation beyond simply acknowledging he was carrying because he can and intended nothing more. He made himself look like a jerk. I am sure it was as easy for him as it is for you.
@Kristen,
Ouch. Your son rocks, though. I believe city-wide speed limit, unless otherwise posted, is probably 35. That’s always a safe bet for a guess.
In either case, just give him the information he asks for, and say nothing more.
If you violated a traffic law, that is PC so you are required, in that case, to comply with his demands for identification, etc.
@Sandi Saunders: “In an issue as heavy and hard as gun rights and guns in public in a town that had an historic mass shooting, hell yeah, it matters even more.”
In Blacksburg, Open Carry is as legal as it is in any other city. In fact, it is legal on Virgina Tech’s campus, too. Additionally, the Fourth Amendment applies the same in Blacksburg, too, regardless of its history.
Out of all of you, I thought perhaps Dave Hicks would have the decency to admit the guy was a jerk and did nothing for the gun rights argument. I see I was wrong to think so.
Do you think it was just a coincidence that police officers showed up as he strolled with his gun on? IN BLACKSBURG? No. And that was not “under police questioning” anymore than when they stop you for a broken tail light you are not aware of, or greet you if they pass you on the street. Even if you grant it was some kind of “interrogation”, what the hell was going to happen as he was filming and had done nothing “criminal”?
How does doing something that is perfectly legal, turn into something that is not?
I never said, nor implied it was a damn “crime” to be there, to be mute, or to be strolling in a neighborhood where people have obviously called the cops, NO WHERE did I say or imply any of that.
If I was “walking through a neighborhood pushing a baby carriage” and an officer walked up to me and inquired what I was up to, I would show him my baby and say I was walking. Being a rude jerk is what makes a person look suspicious and agenda driven.
In neither case, would anyone be doing anything that should lead to “detain you for questioning” and it did not happen in fact. Why do you need to make up things that did not happen or bear witness of being involved?
“For the record, I always ID my self“. Too damn little and too damn late. No one needed ID, common courtesy was all that was remotely required. For people who want others to respect your rights so badly, it sure seems like that would have been evident.
Jack, both my boys were with me at the time and were treated to my full “Go for the warning not the ticket!” routine…which involves sniffling a little, lots of shaky hands, woeful looks of regret and despair, mutterings that my man’s gonna beat me if I come home with a ticket (ok made that part up).
It worked like a charm but they were completely disgusted and still make fun of me for it.On the other hand, #1 got caught New Years Eve with an expired registration and had to fork out about $65… I asked…Who’s laughing now, pal?
Sandi Saunders-
“As a matter of fact Jason, yes, “if either side of any debate pisses off the other side, they are doing something wrong”. In an issue as heavy and hard as gun rights and guns in public in a town that had an historic mass shooting, hell yeah, it matters even more.”
On an emotional issue how can you disagree without angering the other side? Take abortion. The pro-life side believes that abortion is the *murder* of a child. How can you disagree with them without angering them? Conversely, the pro-choice side believes that restricting abortion rights threatens the lives of women and is an attempt to more or less enslave them by restricting their reproductive rights. How can you enact legislation that doesn’t piss them off?
Do you think blacks in the South during the 60′s shouldn’t have been angry?
“Yes, whether you like it or not I do think about what I say before I say it as I am not the one hiding in anonymity to do so. DUH!”
I challenge anyone on this blog to make that make sense. Seriously. She might as well have said, “I do think about what I say before I say it, and I’ve got RED HAIR!!! And a grown woman used, “DUH”. Marvelous.
You keep acting like we should give you a medal because you post your name. Suzie’s clownboat musings wouldn’t become any more credible if she gave her full name. Yours don’t either.
And for the record, I have given my name here before.
“A debate or discussion and ergo respect for any point, position or right cannot be successfully argued after you have made someone angry.”
But when dealing with people like you, who will not respond with rational discourse, what can I say that won’t piss you off? You get mad when you are shown to be wrong, not because someone pulled your ponytail or insulted your mother.
“A stunt like that one is designed to make people angry, uncomfortable and cause a sensation. Why the hell else put it on “the inner tubes”?”
I missed something, I don’t even know what you are referring to here.
“It does absolutely no good to talk to any “homphobe” after they make you angry with their bigotry and crudity.”
So we don’t discuss the issue? How do I disagree with someone who thinks that homosexuals should be killed/jailed/denied basic human rights without angering them? Are you talking about politeness? Because being polite is easy, it’s superficial.
“Would it kill you to stay in one realm at a time?”
Hmm, again, not sure what you are saying here. Little help?
AGAIN Jack, I am not arguing that he did anything “illegal”. His rudeness and arrogance hurt ‘the cause’, not the fact that he carried a gun and filmed the police. Although, people filming the police doing something wrong have certainly not fared well.
http://www.newhavenindependent.org/index.php/archives/entry/sgt._probed_after_arresting_video-taker/
“The police chief Monday ordered an internal investigation opened into a sergeant who allegedly had a woman arrested and a cell phone camera snatched from her bra after she recorded him beating a handcuffed suspect.“
If a kid got caught for the usual New Year’s Eve driving offense, he needs a lot more than a ticket.
Well if an anonymous “grown” man can make stupid fantasy movie references, I guess I can say “Duh”!
I said nothing about either side “being” angry. I said if you deliberately piss off the person you are supposedly wanting to discuss or debate with, it goes south. You and I are perfect examples of that paradigm.
I did not say using my name makes me “credible”, only accountable. I have no safety net unlike some.
I am more than capable of responding “with rational discourse”. I have even done so on a gun thread. You attack and then whine about rational? No, not gonna happen.
@Miriam: “@Jack, but you have already fundamentally agreed with me by saying that if you were to cross into my yard to discuss something that was a subject of conflict, you would not carry your gun. So, you already understand the threat, intended or not, implied or not, of having a gun in that situation…if I read your prior post correctly.”
I do not. I understand that you may *perceive* it as a threat, especially if I am coming over there because I need to settle a disagreement with you.
If I were coming over to borrow a cup of sugar, I would not feel the same way.
I will NEVER begin a confrontation with anyone while my gun is carried openly. I will do everything I can do to avoid such a confrontation.
@Miriam: “No proof is necessary, btw. I would not be threatened or concerned about your gun at a restaurant. Honestly, if I was at another table and saw you, I would assume you were a police officer or detective or something. Cause I’m a dork.”
Offer still stands if you’re ever interested.
@Sandi: “How the hell is anyone supposed to know a crazed gunman from that kind of “statement making” jerk? Wait till he starts shooting?”
If you can present a solution, I’m all ears, and I probably speak for everyone when I say that. The only stipulation, and this one is very important, is that you must respect is Fourth Amendment rights in the process. That is not optional.
@Sandi: “I said he should have shown some common courtesy to the officer and explained what he was doing.”
He did show common courtesy. Three things he WAS NOT required to do, that he did:
- Said hello.
- Stopped walking.
- Told the officer to have a nice day.
He was not required to do a single one of those things. He could have continued walking as if he didn’t even hear the officer speaking to him. I bet that would have had your blood boiling for sure.
@Sandi: “Do you think it was just a coincidence that police officers showed up as he strolled with his gun on? IN BLACKSBURG? No.”
No, I’m sure they had a call from a concerned citizen, but oh well. That concerned citizen is irrelevant, though, as it would be no different than if I called the police and said “hey, there is a guy walking down the street with his dog!” That is no reason for the police to question the guy, it is not a crime. Dog, gun.. neither is illegal nor is either probable cause to stop an individual under Terr v. Ohio. Look that up.
@Sandi: “And that was not “under police questioning” anymore than when they stop you for a broken tail light you are not aware of,…”
Actually, if you have a broken tail light that is probable cause for them to stop you, and is completely different.
@Sandi: “If I was “walking through a neighborhood pushing a baby carriage” and an officer walked up to me and inquired what I was up to, I would show him my baby and say I was walking.”
You’re welcome to do that. That is why it is referred to as a consensual encounter. Either party may choose not to play.
To each his (or her) own, though. I just choose not to play. But, I am cordial. I just don’t want my name in a police report if I didn’t do anything wrong. And yes, every call and interaction based on the call is logged somewhere. I just prefer not to be a part of it.
Correction: “Terry v. Ohio”, not “Terr”
Damn keyboard today.
Jason, your post at 4:17 pm was a slice of awesome. I honestly spit my drink out a little bit when I read, “I challenge anyone on this blog to make that make sense.”
Jack, I wish I could post a pic I took at the bar at the Patrick Henry hotel last winter of a couple of guns sitting on the barstool next to us, while their urban cowboy-looking owner was yucking it up on the other side. Is this considered good gun-owner etiquette? What would the guy think if I, say, dropped two tampons on the chair between us?
Not that I did, because it didn’t occur to me at the time, dammit.
And I’ll take take Jason’s challenge. I believe Sandi was trying to say that she gives her posts thought before posting because, with her real name attached to them, she could well be held accountable for them in the real world. That’s just my interpretation.
#178 He got ticketed for an expired registration, suzie, Can’t you read?
gdad, reading isn’t her strong suit. Perhaps in her neck of the woods, teens drive drunk on a more regular basis. She does have nephews, so she might have some experience in this.
@Kristen: “Is this considered good gun-owner etiquette? What would the guy think if I, say, dropped two tampons on the chair between us?”
I’d laugh about the tampons. About the guns… whether illegal or not, very unwise thing to do. I don’t think that leaving them unattended like that in public should be legal. Whether it is or not, I’m not sure.
@Sandi: “AGAIN Jack, I am not arguing that he did anything “illegal”.”
Well, if he didn’t, and wasn’t suspected of doing anything illegal, then he has no obligation to speak with the officer.
Jack…
Im not certain you understand
the meaning of hearsay.
Anything uttered by a defendant
would not be considered heresay
if it involved his actions…
Please elaborate.
#186 I’m sure you’re right about the drunk driving, Kristen. I know that at her favorite high school drugs are generally more available and common than elsewhere.
@Kristen-
Ok, I think you’re attempt to decipher Sandi is probably as good an explanation as I’m going to get. It’s still ridiculous, but at least I understand the intent.
Also, you were in a public place where some guy put his guns out on a bar stool? Holy crap, unacceptable. What was the context? I mean, why did he do that?
Miriam, I encourage you to think of the good people on this blog that carry and to keep an open mind. I sincerely invite you to come by the Salem VCDL picnic in July. It will be a good experience and you will get to know what real life everyday gun carriers are like first-hand. I’m wasting my breath with Sandi and Kristen, but I think you would give us the opportunity to make a good impression and I would very much like to meet you.
I lost a thoughtful post about Blacksburg, but in short, it seems that Sandi is needlessly concerning herself with lawful open carry in Blacksburg, which I did today as well (and lots of other days), and no one cared. I can’t put any stock in your suggestions to help the diplomacy of our side, when nothing will help your closed mind accept our rights. Ambassadors like Jack, Dave Hicks, and I ARE changing minds and helping rational perceptions of open carry. Sandi, your pitch might be fine, but your position is a loser. No amount of barking fixes that.
Kristen:
“What would the guy think if I, say, dropped two tampons on the chair between us?”
He might ask if he could help you with those.
Re: Comment by Jack — June 12, 2012 @ 2:53 pm
In any case, I’ve been around a lot of people with a lot of guns and most of the time you know it… they are good people and not the ones you really need to fear.
If I had the opportunity to sit down with you at lunch one day and prove it to you, I’d be honored to do that. It would be a privilege.
———–
Miriam, Jack, et al
See: Comment by Dave Hicks — June 11, 2012 @ 9:32 pm @ http://tinyurl.com/7n3juo4 for a good chance to sit down with a lot of people with a lot of guns.
If you can’t make that one and Dan will let me I be happy to post notices of other picnics and meal meetings in the Roanoke Valley and NRV.
Re: Comment by Sandi Saunders — June 12, 2012 @ 4:03 pm
And that was not “under police questioning” anymore than when they stop you for a broken tail light you are not aware of, or greet you if they pass you on the street.
———-
Sandi,
You really need to watch the video. Yes, a polite greeting on the street is not “police questioning.” Duh. No question asked.
When “they stop you for a broken tail light you are not aware of” any question asked and answered plus anything else you might say can be used against you — and that is “police questioning”, whether in “consensual conversation” or a “temporary investigative detention” a.k.a., Terry Stop.
As I said, I would not have handled it that way. But He was fully within his right to do what he did.
BTW, as to helping restore the rights we have lost by not using them, I fully agree that Open Carry (OC) has its place. One benefit is that it is educational.
Back before we could Concealed Carry (CC) in a restaurant that served alcohol, here in Virginia; I regularly OC in local ones. On a couple of occasions, there was a MWG call made, by another customer. The LEOs showed up. Greeted me. Explained to the caller the law. End of story — except for one case where the caller ended up charged — but that is another story.
Any right lost for fear of public reaction is a right lost. Think of the the arts. Think of folk trying to close down exhibits/show/ban book/etc because they were offended.
See my comment about Playboy @ 5:36 pm
Again, notice the underlying note of the Playboy article in which open carry is presented as the extreme alternative to the “righteous” activity of carrying concealed?
Think about it. Exposure to law abiding carry, OC or CC, is educational.
Although we may not have, yet, accomplished the goal of normalizing open carry in every State, we may well have moved the bar a long way toward making concealed carry the new normal.
We might be winning the culture war.
“Also, you were in a public place where some guy put his guns out on a bar stool?”
By the way, I agree that it is generally unacceptable to unholster your gun in public. But, a way to help minimize this is to support our efforts to allow carry in more places, so we don’t have to unholster to go in the post office, courthouse, or airport. That’s a start.
“Ambassadors” do not defend jerks who make gun owners look bad. No way that guy on that video did anything but. Keep digging.
Dave Hicks, I did watch that video and I still maintain that this was a matter of common decency and nothing extraneous you want to drag into it can change that.
I am well aware that “When “they stop you for a broken tail light you are not aware of” any question asked and answered plus anything else you might say can be used against you…” I have not advised anyone in any situation to say anything more or go beyond common courtesy. Nor would I.
This is not simply and completely a situation of “fully within his right”. Whether you like it or acknowledge it or not, every gun owner’s actions have bearing on what people think and how they perceive gun owner’s as a whole. Every butt sets you back IMO.
LOL, “Open Carry (OC)” cannot be “educational” when it is delivered like that. I happen to be a proponent of open carry, for that very educational and PR benefit. He did it the wrong way and no amount of lobs will change my mind.
Again, without the common courtesy of a comment, the LEO has to assume that you are a perfectly normal person just exercising your right and not some angry jerk on your way to the OK Corral but what if you are?
The danger for a “right lost”, is if you act like a jerk and add to the “fear” in “public reaction”. You KNOW that.
You will not “win the culture war” with jerks like that.
RE: Comment by joe — June 12, 2012 @ 7:12 pm
Federal Rules of Evidence 801(d)(2)(a).
Federal Rules of Evidence
ARTICLE VIII
Hearsay
Rule 801. Definitions
The following definitions apply under this article:
…
(d) Statements which are not hearsay.
A statement is not hearsay if–
…
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or…
—–
Hope this clears it up.
““Ambassadors” do not defend jerks who make gun owners look bad. No way that guy on that video did anything but. Keep digging.”
Can somebody post the link to that video again? I think I might have missed it. . .
“A statement is not hearsay if–
…
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or…”
Jack,
The passage you quoted is incomplete. Are you offering it in support of an argument that a statement from a suspect is NOT hearsay if it IS incriminatory, but it IS hearsay if it’s exculpatory?
195.“Ambassadors” do not defend jerks who make gun owners look bad. No way that guy on that video did anything but. Keep digging.”
NOTHING that man did or said would give Sandi a better impression of gun owners because her mind was made up long, long ago.
I don’t care what you think.
@Sandi Saunders: “I happen to be a proponent of open carry [as long as you are willing to waive your Fourth Amendment rights while doing so], for that very educational and PR benefit. He did it the wrong way and no amount of lobs will change my mind.”
@Dan Casey: Here you go… http://www.youtube.com/watch?v=1n1BHJs5V5c
Here is another one from Wyoming the other day. Apparently this guy has a lawsuit pending for Fourth Amendment violations: http://www.youtube.com/watch?v=xXwW2nrV0bY
Of course, he was detained for a while. Glad he was recording it.
@Dan Casey,
I was trying to make it easier to see the relevant part. Here is the full deal if you want to read it: http://expertpages.com/federal/a8.htm
Sandi:
“Every butt sets you back IMO.”
Sandi’s “IMO” is promoted like the gospel at a tent revival.
See # 116 Dan: http://www.youtube.com/watch?v=1n1BHJs5V5c
“How to Remain Silent when Questioned by the Police – Open Carry”
“An encounter with the local LEOs while on a walk around town open carrying (CZ 75 P-01 in thigh holster with retention strap). Blacksburg, VA. See FAQ’s below.“
Re:
Comment by Dan Casey — June 12, 2012 @ 10:53 pm
Can somebody post the link to that video again? I think I might have missed it. . .
———-
Dan,
See: Comment by Jack — June 11, 2012 @ 4:51 pm
http://www.courts.state.nh.us/rules/evid/evid-801.htm
Dan,
I believe it is also referred to as a “Declaration Against Interest.”
http://definitions.uslegal.com/d/declarations-against-interest/
Nevermind my last… that is for unavailable witnesses. Review the link I provided at 11:03.
Re: Comment by Sandi Saunders — June 12, 2012 @ 10:32 pm
I did watch that video and I still maintain that…
————–
Sandi,
We may be talking about different videos. If so, I apologize for having been vague.
I was referring to http://tinyurl.com/a33p7g , which both Jack and I have posted and have commented on.
It’s a classic.
Dan, please feel free to delete my two comments at 11:16 and 11:23. They are irrelevant and would be confusing.
Here is what I believe the rationale is for this particular rule of evidence…
If you are arrested for a crime, for example, you’ll likely be interviewed by the police. In that case, especially if you are actually guilty, you have no reason to provide incriminating evidence and all of the incentive to say things that could help your case. The former tending to be more believable and considered to be truthful since it hurts you and you had no incentive whatsoever to say it.
So, you’ve said things that hurt you, and you’ve said things that help you during the interview.
Now, the prosecution in court calls this officer to testify. He does so. On cross-examination, your attorney then asks the officer questions about what you said that could help you.
*IF* he were allowed to testify to this, and you were very smart about what you said to him in the interview, and your attorney is very smart about what he asks (again, *IF* it were allowed at all), you would effectively be providing your side of the story, your testimony, by proxy, since the officer has to answer truthfully every question asked of him.
He would effectively be telling the court your side of the story.
Now, you could refuse to take the stand yourself and you have, for all intents and purposes, presented your testimony to the court without their having the benefit of cross-examining you for even a second.
I’m not a lawyer, and this is just my own trying to figure out why the rule is the way it is and only allows statements that are offered against yourself as opposed to those offered for you.
The way these things are written it is very confusing and I’m simply taking another lawyer’s word for it and pointing you to the particular rule of evidence that is said to be the relevant one.
But, after reading it, and reading some stuff about it, this is the best conclusion I can come to as to why it is the way it is.
I hope it makes sense.
Jack,
What doesn’t make sense to me (and I am no lawyer either) is that statements against interest to an LEO would be admissible when statements in favor of interest to an LEO would NOT be admissible. It doesn’t make sense to me that one form of hearsay would be admissible but another would not.
I’ll never forget what Anne Arundel County (Md) Police Chief Robert Lindsey told me once, when I was a young cub reporter. It was off the record but he’s dead now so I don’t feel bound by that promise anymore.
“The minute I find out one of my detectives can’t lie convincingly on the witness stand is the minute he goes back on patrol.”
I kid you not. That was chilling to me back then and it still is.
I would like to hear from VRWC on the question you raise.
Dan, do watch this video: http://www.youtube.com/watch?v=6wXkI4t7nuc&t=9m19s
If the link doesn’t go to the right place for some reason, go to 9 minutes, 19 seconds into the video.
John Wilburn whines, “I don’t care what you think.” You big baby, I don’t care what you think either, big whoop.
“Sandi’s “IMO” is promoted like the gospel at a tent revival” he whines again. And your one issue bleating is so much better? Not on your life.
“And your one issue bleating is so much better? Not on your life.”
If only we could all be brilliant Jefferson-esqe polymaths like Sandi Saunders who are all-knowing about every friggin’ thing.
Why don’t you start a religion? Seriously.
213
When Sandi can’t get along with either conservatives OR other liberals, maybe the problem isn’t with them.
Why don’t you and Suzie quit whining? You made your beds. Seriously.
Dan Casey-
““The minute I find out one of my detectives can’t lie convincingly on the witness stand is the minute he goes back on patrol.”
I kid you not. That was chilling to me back then and it still is.”
That is horrifying. It reminds me of the documentary The Thin Blue Line, a film that was partly responsible for getting an innocent man off of death row. In it, they said that the Dallas Prosecutor’s office had a saying: “Any lawyer can convict a guilty man, it takes a great lawyer to convict an innocent man.”
Dan, re: your comment about detectives lying on the stand “convincingly”…Kids spend their early years being preached and indoctinated that the “police are your friends” and if you’re out and in trouble or scared they should “look for a police officer” or whatever.
I assume most of them are good folk, but as kids – and mostly boys – grow up and get older I think a slightly different approach is needed. A cop I knew and liked a lot in NJ told me once when my boys were small…”Kristen, when something goes down the cops are out there to make a collar. Right one, wrong one…whatever. If your kids are ever questioned by one over something, tell them to ask for you then shut up”.
Most people’s default position is that if a cop asks them something they’re obligated to answer.
Jason,
There was a “great lawyer” in the Anne Arundel County, Md., prosecutor’s office. His name was Ron Naditch. Naditch was known for being able to pick up a dog of a case at the last minute, because the assigned prosecutor had left the State’s Attorney’s Office, and win a conviction. He did this with two murder cases that I know of.
In one, a 1973 trial for a 1971 robbery-murder, there was only one eyewitness. The jury deliberated for 15 minutes and found the suspect guilty. He served 14 years in prison. And then in 1987 I discovered that the “eyewitness” could not have been at the scene that night. Because she was locked up in the Anne Arundel County detention center. The conviction was overturned and the guy was freed.
In a 1989 case Naditch tried, he got a conviction in another robbery murder. In that case, the suspect, who had been arrested in Florida, gave a “confession” to the Fla. sheriff’s deputies who picked him up on a Maryland warrant. The problem was, the confession was wrong in terms of time, date, town and whether the stabbing took place inside or outside, and some other very key details. Not a problem for Naditch. I later proved, through date-stamped Florida court records, telephone records and other evidence, that the suspect was in Florida at the time of the murder in Maryland. He got a new trial and was acquitted, but by then he had served 5 years.
Wow… all of a sudden I see people have a different position about talking to the police.
There is never an upside. Never.
@Dan: “I later proved, through date-stamped Florida court records, telephone records and other evidence, that the suspect was in Florida at the time of the murder in Maryland. He got a new trial and was acquitted, but by then he had served 5 years.”
That really sucks, Dan, but good for you. I cannot imagine anything worse than being locked up innocently.
Great work.
There are a lot of innocent “guilty” people. The justice system is mislabeled at best and hopelessly unfair at worst. BUT, it is also another prime example of the people who legislate (the government) and write the laws the lobbyists (lawyers and police) want, being to blame for the way the government then “works”. People need to learn to connect the dots, but they seldom do so.
I do not blame the jerk in the Blacksburg video for not wanting to “engage” the police, nor for filming the encounter (that is the instrument we should ALL be carrying), but again, his response should have been simply, “I am walking and carrying openly, as is my right, am I free to go?” or words to that effect. Simply acting like a mute made him look like an ass or mentally unstable as that is not normal behavior. I have no clue if he was walking in his own neighborhood, where presumably he would have been known, but the concern was understandable and he was quite obviously prepared for it.
I do NOT “have a different position about talking to the police”. This was not about talking to the police. Do you not get that a different badd butt officer might have shot him and called him unstable, said he felt threatened or words to that effect? Look at the Rodney King beating? A video is not a defense when it is you against a LEO. Common sense and common decency says that the mute act just makes you look unstable and possibly like you are trying to hide something. If the neighbors had called, no one knows how this guy was portrayed to the officers before they even arrive on the scene. It was a stupid stunt, handled badly, that could have resulted in real harm, and it has nothing to do with not talking to the police or incriminating yourself.
Jack,
In that case, the fact that the suspect (his name was Bernie Ward) talked to the cops in Florida was one of the things that did him in. Even though his taped “confession” got key details wrong (date, time, town, whether the murder was inside or outside) there were some details that were right in the “confession.”
How could that be? Well, not so coincidentally, the detail Ward got right were the same details that the Maryland cops had told the Fla cops who picked Ward up.
Here’s the most interesting part. The Anne Arundel County police HQ is in Millersville. Because of that, the Fla. cops later testified, they assumed the murder had occurred in Millersville. But it had occurred in Glen Burnie.
Not coincidentally, the “confession” named Millersville as the town where the murder took place.
But Naditch, the prosecutor, was indeed a “great” trial lawyer. He was able to brush that (and other conflicting details in the confession) aside as insignificant discrepancies, and spin the rest of the statement to make it look much more guilty than it was.
And the defense attorney was an absolute basket case. He didn’t bother even trying to exploit the bad facts in the confession. Nor did he bother trying to develop the other evidence that I did — the court records, telephone records or other stuff.
Bernie Ward got a new trial because another young-and-hungry lawyer, working for free, asked that the first verdict be overturned because War’s first lawyer was incompetent because he had overlooked all that stuff.
And a judge ultimately agreed, ruling that the defense in the first was the most incompetent defense he could imagine, based on the record.
After a week-long second trial, a jury found Ward non guilty.
There is no doubt in my mind that the fact Ward talked to the Fla cops after his arrest on the Maryland warrant really hurt him.
That’s a great story, Dan… and it really is great what you did to help the fellow.
I know you and I hardly ever see eye to eye on anything, but I do consider it a privilege to call you a friend.
I can’t imagine that being a defense attorney is a job anyone could love, with clients who are most often actually guilty, but the mitigating factors and evidence ignored when an attorney does not do their due diligence is often the difference in decades for a guilty person and in a conviction or not guilty verdict for the innocent. The discrepancy (and the difference in what money can buy) in defense attorneys is startling. “Justice” is not cheap.
Dan, it has to be gratifying to play a role in exonerating an innocent person. Good on you for going that extra mile!
The sad truth is that people in this country have no real idea how the law, law enforcement or prosecution of suspects actually works. People are naive and think that all that matters is if you are innocent and that is so very very far from the truth. Prisons, the rolls of convicted felons and the sex offender registry are full of people who made a mistake or did not have the wherewithal to fight the system and nothing more. It always bothers me to see people defend such a corrupt, inept and weighted system as “justice”.
In the case of Bernie Ward, the system broke down because of a series of hand-offs.
The Maryland cops handed off to the Fla. cops the task of interviewing Ward after he was picked up.
The Fla. cops handed him and a bad “confession” off to Maryland cops, who then handed the whole “solved” thing off to a talented prosecutor who picked up the case at the last minute, and didn’t do his homework on it. He tried it by the seat of his pants. And there were mistakes made, and a lack of any real scrutiny, all along the way. Nobody was really asking the question, “Have we got the right guy?” There was just an assumption they did.
Bernie Ward made some horrible mistakes, too. 1) He talked to the cops in Florida after his arrest. 2) He hired probably the worst attorney in Maryland to defend him — the attorney was disbarred for an unrelated matter after Ward’s trial. 3) And finally, near the end of the trial, seeing what an abysmal job his attorney had done, and fearing that he would be sentenced to life without parole, Ward pleaded guilty. Right after the trial, one his closest pal, Jim Scott, told me “Bernie pleaded innocent, and got the whole thing over with, and he’ll have a chance to get out on parole someday and see his [baby] son.”
“What do you mean, he pleaded innocent?” I asked Scott.
“It’s an Alford plea. He gets to maintain his innocence,” Scott said.
“Jim, that’s a guilty plea,” I said.
“It is?” he said.
“You’re damn right,” I said.
Through his own stupidity, and a justice system that didn’t seem to care whether he had done it or not, and because he hired the worst lawyer in the world, the guy ended up getting convicted of murder and got a life sentence.
It was a crazy case. All of us want to believe that police and prosecutors are always acting in the interests of justice. And this one truly makes you wonder if they are.
@Sandi Saunders: “I can’t imagine that being a defense attorney is a job anyone could love, with clients who are most often actually guilty,…”
I agree. I’d like to think that most of them don’t do it to help guilty people go free, but do it because they believe in the system.
Everyone deserves an adequate defense, even the guilty. That is what makes the system work and keeps everyone honest.
This is second hand, but a friend told me that he was in a class where a prosecutor was speaking. My friend said the prosecutor told the class that when the case gets to the courtroom, guilt or innocence is not important, he said it is him versus the other attorney. They both want to win.
Dan, what that police chief told you about his detectives is scary. Any person who would lie or cover up evidence to put someone in jail would have to be a cold, uncaring, POS. I don’t like the death penalty, but for people who would lie to put an innocent person in jail, I wouldn’t be opposed to it.
“I don’t like the death penalty, but for people who would lie to put an innocent person in jail, I wouldn’t be opposed to it.”
VRWC, there’s a lot of lying that goes on in criminal trials. Most of it isn’t by the police or prosecutors. A lot of it comes from defendants. And a bunch more comes from inmates who testify about “jailhouse confessions” by others who are on trial.
The commonwealth better axe me from any jury that might hear a jailhouse confession like that, because I’ll muster every bit of skepticism I can for that.
Those who lie to put an innocent person in jail, should be sentenced to serve the amount of time that the innocent person received.
Dan #231 I agree about the jailhouse confessions. They are usually suspicious. It seems like it is the same inmates over and over that people suddenly confess to…
From what I have seen, guilt or innocence never enters the equation until trial. Police arrive on a scene to determine how to end the situation and who can be charged with what. It is what they do. There is no attempt to get at all the pertinent facts, no effort at exculpatory research and little effort to determine “which came first” (which matters!). Then the prosecutors decide what and how many charges can be made to “stick” and what evidence they need to do so. The ONLY time innocence, the real truth, all facts and mitigating circumstances come into play is when you are with your defense counsel and in an actual trial (occasionally in a plea bargain). ANYONE who thinks the police investigate to determine anything more than what you can be charged with is a fool. No one decides more winners and losers than a police officer.
We talked about this in Sunday School this week. In terms of living a “just” life: Speaking of one of the Ten Commandments, ever notice how often ANYONE is actually charged with perjury? In many, many cases, somebody has lied. Yet how often is it EVER even charged, much less adjudicated or proved? Zimmerman’s wife lied about money to a judge and that got their attention, but at trials, every single day in this nation, somebody lies and gets away with it, and we all know it.
VRWC, I don’t see how our system of justice could function any other way. By the time an indictment is brought, absent hiding any exculpatory evidence, it’s up to the prosecutor to go in with the full assumption that the defendent is guilty and make that case. It’s equally incumbent upon to the defense attorney to not care either way but to force the prosecution to make their case “beyond a reasonable doubt”.
I no more think defense attorneys are there to get the guilty off than I do prosecutors are there to imprison the innocent. I actually think defense attorneys are (or should be) the bedrock of our justice system. And if a guilty person goes free, it’s just because the defense did their job better than the prosecutor did, and I have no problem with that either. The alternative is unacceptable.
Dan-
Nice work on your part, that’s great to hear, and I wish more journalists put time into this issue. It also points to the desperate need to end capital punishment. It’s bad enough when innocent people are executed due to mistakes made in good faith, but we know for a fact that police and prosecutors are often negligent and/or malicious.
Re: Comment by VRWC — June 13, 2012 @ 11:18 am
This is second hand, but a friend told me that he was in a class where a prosecutor was speaking. My friend said the prosecutor told the class that when the case gets to the courtroom, guilt or innocence is not important, he said it is him versus the other attorney. They both want to win.
———-
Yup. Their job is to win — however within the rules and the standards of ethical conduct.
One of the causes of disbarment is not providing the defense with exculpatory evidence another is having a witness lie.
http://tinyurl.com/7sno6rr
**
RULE 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, subject to Rule 1.6;
(3) fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
**
VRWC,
Can you comment on the hearsay thing? Specifically what was mentioned earlier regarding 801(d)(2)(a).
I assume from Dan being interested in your take that you must be an attorney?
Honest mistakes are one thing, but prosecutors/defense lawyers too lazy or uncaring to do their job properly should be severely punished. You hear a lot about innocent people being freed from prison, but you never hear about those in charge being punished.
#238, Jack, I’m not an attorney. After reading the discussion between you and Dan I thought about that question and I don’t know the answer.
Hear is one good discussion on “hearsay”. No clue if it applies in all states.
An LEO can “testify about statements made by others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted, but is instead used to show the investigative steps taken by the officer leading to the defendant’s arrest.”
http://www.jmls.edu/directory/profiles/oneill-timothy/pdfs/oneill_column_0105.shtml
Just asked the wife about the issue. She’s not a criminal defense attorney, but she said that Jack is correct. The officer can testify to incriminating things that the accused said because they fall under the statement against penal interest hearsay exception.
Anything the accused said to the cop in his own favor is hearsay because it can’t be offered to prove the truth of what the statement asserts.
Oops, should read, “She’s a lawyer though not in criminal defense…”
It sounds to me like the only thing anyone should ever say to a police officer is, “I want a lawyer.”
@Dan-
Pretty much.
I have had several interactions with police officers, two for speeding violations, several for teens in some sort of “trouble” and IMO, they are not always looking to arrest anyone, but will not, under any circumstances, suffer a fool or be swayed from what they believe has happened or should happen. It is not the act of talking, it is what people are just that gol-darned stupid enough to say. Give ‘em enough rope…
So Dan, the next time you are pulled over you are gonna say “I want a lawyer”? Good luck with that.
Jason, did your wife happen to mention or venture an opinion on why such a stupid, but oh so convenient to the prosecution, thing is true?
Sandi,
I won’t say that if I’m pulled over for speeding or some other minor traffic infraction. That’s “hello officer! why did you stop me?” time.
@Dan: “It sounds to me like the only thing anyone should ever say to a police officer is, “I want a lawyer.””
You are exactly right. Also, the Supreme Court has ruled that in order to exercise your Fifth Amendment right to remain silent, you must do so verbally.
That’s one of those stupid facepalm things, since you could merely remain silent and exercise it that way.
@Sandi Saunders: “So Dan, the next time you are pulled over you are gonna say “I want a lawyer”? Good luck with that.”
Maybe not, but he could invoke his right to remain silent without counsel of an attorney. You are being accused by the officer of breaking the law. Fifth Amendment applies and Dan can opt to say nothing more than is required to identify himself and show that he may operate the vehicle (license, registration, insurance, etc).
@Sandi: “Jason, did your wife happen to mention or venture an opinion on why such a stupid, but oh so convenient to the prosecution, thing is true?”
Because if you said something that is incriminating, it is assumed to be true because you had no incentive to say it and it hurt you. You have incentive to say untrue things to the police when those things help you.
It’s actually not a stupid rule. It prevents you from testifying by proxy, which would actually restrict the prosecution from being able to cross-examine you. See: Comment by Jack — June 12, 2012 @ 11:39 pm
Citizen Maggots…
Respect my authority.
http://1130thetiger.com/police-officer-busted-by-citizen-for-not-wearing-seat-belt-video/
Comment by Jack — June 13, 2012 @ 5:42 pm
.
Jack,
Are you talking about Mary Berghuis, Warden, Petitioner v. Van Chester Thompkins http://tinyurl.com/c6wlbn5 and http://tinyurl.com/cn89mgk
**
08-1470 BERGHUIS V. THOMPKINS
DECISION BELOW: 547 F.3d 572
CERT. GRANTED 9/30/2009
QUESTION PRESENTED:
I. Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from
attempting to non-coercively persuade a defendant to cooperate where the officer
informed the defendant of his rights, the defendant acknowledged that he understood
them, and the defendant did not invoke them but did not waive them.
II. Whether the Court of Appeals failed to afford the State court the deference it was
entitled to under 28 U.S.C. §2254(d), when it granted habeas relief with respect to an
ineffective assistance of counsel claim where the substantial evidence of Thompkin’s
guilt allowed the State court to reasonably reject the claim.
**
If so, my reading is not quite the same as yours — i.e., until you invoke 5A they can keep asking questions (whether you answer or not) as the “discussion” is considered “consensual conversation.”
IMHO, SCOTUS held that until the suspect actually stated that he/she was relying on 5A, voluntary (a.k.a consensual) statements were admissible.
In Berghuis v. Thompkins, he was silent for almost 3 hours then made a self-incriminating statement.
Had he invoke 5A, the three hours of questioning would have to stop.
For those who assume that the press has it right and that SYG is an automatic Get-Out-of-Jail card:
.
http://tinyurl.com/bn9ad2a
**
Texas jury convicts man in stand your ground case
By JUAN A. LOZANO, Associated Press – 32 minutes ago
HOUSTON (AP) — A Houston jury convicted a man Wednesday of murdering his neighbor during a confrontation outside the neighbor’s home two years ago, rejecting his claim that he was within his rights to fatally shoot the man under Texas’ version of a stand-your-ground law.
SNIP
**
Sounds like a good verdict.
Re: Comment by Jack — June 13, 2012 @ 10:15 pm
As I have said repeatedly in these cases, I wasn’t there / I don’t know the details / etc.
However, from what I have seen I agree that it looks like a good verdict. FWIIW, we are having a discussion on a pro-RKBA forum and every one agrees.
———————————————–
Sandi,
If you want to talk about Paul Rodriguez being an idiot giving RKBA a bad rep, I agree with you.
Minor correction:
It is Raul Rodriguez in the AP, et al stories.