When someone is attacked and forced to defend themselves it isn’t always presumed that they are the innocent party. The trial argument of self-defense relies upon the accused being the innocent party.
What does it mean to be the innocent party?
It means that you did not start or escalate the attack. For example, if someone makes a verbal threat you are the innocent party. If you respond to that verbal threat by some form of physical contact such as striking or shoving the person, you have escalated the attack and lost your status of innocent party.
That seems simple enough. However, the prosecutor looks at more than the actual event. If there is a pattern of verbal confrontations between you and your attacker, no matter how far in the past, you may not be perceived as the innocent party. The prosecutor may get the jury to believe you were the instigator just looking for your opportunity to strike out.
If you are party to a conflict, you know, the let’s take this outside invitation, you are not an innocent party. Rather you are a mutual combatant. Your status changes if you clearly withdraw from the conflict and the other party continues the attack. At that point you become the innocent party. Once again, this puts you in a risky territory since your status is dependent upon what the jury believes.
In The Law of Self Devenses Principles, Andrew Branca offers a nuanced example where a person comes out of the darkness violently charging towards another person. The intended victim attempts a punch that misses but trips the attacker. The attacker jumps up and charges again. The intended victim connected with a glancing blow after the attacker threw a punch that missed. The intended victim delivers a knee to the groin, ending the attack.
Who is the innocent party in this exchange?
It may seem obvious on the surface. The man who charged out of the darkness was the aggressor, right? But, who was punched first?
The prosecutor could very well present the presumed attacker on the stand. He can claim he is the innocent victim that was merely defending himself against an attacker that punched him before kneeing him in the groin.
The jury will be told that the only person who made contact was the one accused unfairly. The future looks bleak for the guy who was just walking down the street.
A good defense attorney will present a different picture. Since the guy charging out of the darkness was the aggressor, he cannot claim self-defense.
There is another aspect to this type of scenario. In the above scenario the aggressor and defender are using the same amount of force. Remember you can lose the ability to claim self-defense if you are not the innocent party or escalate the conflict.
If, in the scenario above, the defender presented a weapon in response to the charging attacker that could risk his innocent party status. I say could because there are other factors. If there is a disparity of force a defender may use a greater degree of response than being presented by the attacker.
An example might be an elderly woman who uses a firearm to defend herself against multiple young attackers who have not presented a weapon. There is a disparity of force in the younger, multiple attackers. She does not lose her innocent party status.
Escalating responses can flip the innocent party status back and forth. Who the innocent part is at any given moment can be complicated. Some areas may consider your language to indicate aggressive behavior and negate the innocent party status.
My best advice is to be careful what you say to everyone, avoid conflict where ever possible and rely on sound legal counsel.
In my training I emphasize our desire to keep our students out of prison. This can be translated to mean, hard to convict. To be hard to convict we must operate within the law. To operate within the law, we must know the law. This is where the challenge comes it.
We shouldn’t have to be lawyers to protect ourselves, our families and others who are under the threat of death or great/grave bodily harm. However, I just threw in a legal concept we must understand; threat of death or great/grave bodily harm. This concept is one of five elements that must all be met for a use of deadly force to be considered justifiable.
Now that I have started talking about legal concepts, I need to make the following statement: I am not a lawyer and therefore cannot give legal advice. I am familiar with use of force law, but if you are facing prison you don’t want to get advice from someone who is familiar. You want a lawyer with a deep working knowledge of the law and courtroom procedures.
Over the next period of time, I am going to post articles addressing these five concepts:
Like most of you, I am, relying upon the wisdom and knowledge of others who can be considered experts on the subject. The text I use for my concealed carry training both in Illinois and Utah is the USCCA book Concealed Carry and Home Defense Fundamentals by Michael Martin. I have taken several online and DVD e-Learning courses. Another resource is The Law of Self Defense Principles by Andrew F. Branca. He is endorsed by Massad Ayoob in the forward of that book. Mr. Branca is a lawyer as well as a certified firearms instructor, Mr. Ayoob is one of the premier self-defense instructors in the nation and has an extensive background in law enforcement training and was a prosecutor for the police department.
By learning the materials these sources present we don’t have to be a lawyer to make ourselves hard to convict. If the situation arises where we have used deadly force we need to rely upon a very critical resource, a lawyer. We must not rely upon ourselves and the knowledge we have gained for our defense. The knowledge we have gained, especially that which comes from such noteworthy sources, should be used to ensure we are acting within the use of force guidelines. At that point we should rely upon our lawyer’s knowledge and experience.
I am going to address general principles of the use of force. While this is a good foundation it cannot be considered the whole picture. Each state, and sometimes municipalities, have unique laws governing the use of force withing their boundaries. For example, in most states it is not legal to use deadly force to defend property. In Texas it is wise to not mess with someone’s truck or dog. Deadly for is authorized to protect property in Texas. When we travel armed it is critical that we know the laws of the lands we travel through. If I were from Texas and traveling in Wyoming, I need to know that Wyoming prohibits the use of deadly force to protect property.
This example is another reason we need a lawyer for our defense. Your lawyer should be fully intimate with the laws of the land where you had to use deadly force. Your actions up to and during the incident should help the lawyer in your defense. Your complete compliance with his advice will solidify your defense.
In the next posting I will address what it means to be the innocent party. It is not as obvious as it seems.
Carrying a firearm concealed takes some accommodations. Often wardrobe changes are needed to fit an IWB holster or prevent printing. That is only one aspect of changes a new concealed carrier may experience.
Another aspect is that it takes getting used to. That is one reason for the title.
If you intend to carry concealed, do it! Do it every day in everywhere it is legal. By carrying all the time, you will get used to the extra bulk and weight. You will get over the need to pat your gun. A pickpocket watches their mark for the pat that tells them where the valuables are. The pat will only draw attention to where you have something valuable or remove any doubt that the bulk is a firearm.
Carrying every day will condition you to the point where it becomes natural. It will get to the point where when you don’t carry you will feel if something is missing. At that point it will have become comfortable. Well, mostly.
When you are carrying regularly you will experience what all of us do, what do I do when…
This list starts with the inevitable “I need to go to the bathroom.” We have seen multiple news reports of a gun found in a bathroom stall. We need to make that aspect of carrying in public something we don’t have to think about, we just do what we need to and maintain control of our firearm at all times. There are many others we will come across.
I always check event venues for any restrictions. One time I did my due diligence and was confident I could carry. Even though the venue did not have a restriction (by my states law they couldn’t) the event put up metal detectors. All we had to do was put all the metal we had in our hands as we went through. While I can legally carry into the venue this put me in a situation where I would be disclosing that I was carrying, or I would be brandishing.
You need to have a plan for how you will handle these situations. While a mental exercise can get you thinking about options, facing the situation will give you experience.
There is another, with more serious ramifications. We carry and get training, so we are hard to kill. We know the law, so we are hard to convict. If you only carry occasionally, when you feel you are going somewhere less safe, you are inadvertently giving ammunition to the prosecutor.
Imagine the scenario where the prosecutor says; “You went in there armed just looking for trouble, didn’t you?” By concealed carry being a regular part of your day-to-day life you totally negate that argument.
When you hear those words, you have entered an interaction with some level of law enforcement after what that officer perceives is a crime you have committed. Even being completely innocent you are in a significant amount of financial peril, not to mention facing imprisonment.
At this point there are two things that are critical to keeping yourself out of prison, not talking and a good lawyer.
The Miranda statement is very clear in that “Anything you say may be used against you in a court of law.” [Emphasis is mine] For some people this is not a prohibition about making statements that support their defense. Here is the issue. The prosecution cannot and will not entertain any evidence that supports your defense. Their focus is on prosecuting a crime and it could be considered malfeasance if they presented evidence in your defense. That is the job of your attorney.
We have all played the telephone game. You know, the one where a message is passed around the room and comes out unrecognizable at the end. While we call it a game, it is deadly serious when something said at the time of arrest or later to a family member or friend seals your fate in court. It is absolutely critical that you speak about what happened to no one except your lawyer. You don’t want the prosecutor to have the ammunition to say “were you lying then or are you lying now?” when a contradictory statement is presented.
When faced with the need to defend against a self-defense incident you are going to need a good attorney, and they cost lots of money. Ask Kyle Rittenhouse. His successful legal battle cost him more than $200,000! His battle is not over, he is now facing the civil suits. That adds more legal fees.
Defending yourself is not cheap. It takes a team of lawyers and investigators. It can take months and over those months the fees add up. As a hedge against these fees, it is prudent to have insurance. We insure our homes but do not plan on having a house fire. We insure our cars but do not plan on crashing into something. Yes, I realize that lenders and laws require insurance, but we all know someone who didn’t have it when an event happened.
If you carry a firearm, you should have some form of self-defense insurance. As a USCCA instructor and partner I fully endorse USCCA membership, which comes with a very good insurance program and dedicated emergency response team that includes lawyers. Membership also includes online training, lots of it!
was in the auto service section of a big chain store. It was late and my vehicle made in under the wire before the service department closed. I was grateful that I got in. As I sat in the empty waiting area I notice an automotive product on the shelf that seemed interesting. I picked it up to read the package as I was waiting.
My back was to the rest of the store. The service department was off my right shoulder. I was engrossed in reading the package and fully entrenched in condition white. I was not paying attention to much. The late hour (for the service department) meant it had no activity, not even an employee at the counter.
As I was reading, I heard someone shout something. I glanced up momentarily and saw a man standing near the counter. As I looked back at the box I heard “are you open” shouted very loudly. I again looked up and saw that the man was now facing and looking directly at me. He then said “I’m tired of being disrespected! Are you open?” At that point I realized that he had been shouting at me all along. I let him know that I didn’t work there. That only made him angrier. He went on about being disrespected and not taking it anymore. The more he went on the more agitated he became. He screamed that it was time for people to start taking responsibility for a litany of attacks on people of color. I told him that I had nothing to do with those attacks.
By this time, he had moved directly in front of me. He was standing their shouting with clenched fists. I stayed sitting with an open posture as he was screaming at me. In my head I was contemplating the need to call the USCCA emergency response line, if I was even going to make it home that night and why oh why is my gun locked in the box in my truck and not on my hip? I took mental stock of what I had available. In my left pocket a tactical pen. In my right pocket a tactical knife. I also compared his youth and muscular build that indicated either time in a gym or regular physical labor to my significantly more mature and round build of an office worker. The disparity of force was definitely on his side.
As this went on the store manager, a rather diminutive man, had come to the scene and engaged the man. I applaud his bravery! Before the situation was resolved the man had accosted other store patrons as the manager tried to diffuse the situation. Eventually law enforcement was called. It took a pepper spray and a taser to get the guy under control and arrest him.
The backstory is the guy had lost his job and was very drunk. As I told the manager that came by I thought he was just having a bad day. Unfortunately, his day got worse after he couldn’t get the service department to make another key for him.
My lesson, do not let your guard down, ever! Had I acknowledged him the first time he asked if I was open he may not have gotten so angry. He may not have lost control the way he did. My lack of awareness put me in danger. I was formulating an action plan because I was not paying attention to my surroundings.
Always be in condition yellow or above. Stay vigilant, stay safe!
I recently got a story in one of my message subscriptions about a man who accidently shot himself in the butt. The man was experienced and had been carrying concealed for over 10 years.
What led to the incident (as indicated in the message) was that he had recently changed from his regular carry holster to a new one. The material in the old and new holsters were different but are not relevant to this discussion.
I tried to find the original report but didn’t find it. I found lots of other ‘accidental’ (translated to negligent in my mind) self-inflicted gunshot wounds.
Back to the original story. The man felt comfortable with his new concealed carry holster and wore it while he was running some errands. On his last stop (he kinda got diverted) he heard a loud bang when getting into his truck. When investigating the sound, he discovered a hole in his pants. Further investigation revealed a through and through in his buttocks. He made his pistol safe and unloaded before going to the hospital for treatment.
After going back home he thoroughly inspected the pistol, looking for any clue to the discharge. Not finding any he felt the answer was clothing getting caught in the trigger.
In my classes I teach that each day you carry you need to (with no ammunition in your gun or area) practice drawing with whatever it is you are wearing. Getting dressed and arming up without this practice could very well set you up for failure.
For example, if you have a garment that impedes deploying your firearm you need to know that before you are faced with a threat and need to deploy it. By practicing with your firearm beforehand you will identify the issue and be mentally prepared to mitigate it and have practiced that mitigation. That simple habit can save your life!
Another thing to look for is any part of your clothing that may get caught up in the trigger guard. This is especially critical if you have a firearm that does not have a manual safety. Had the subject of the report done this there may not have been an issue.
We all (at least I hope we do) train regularly with our firearms. This training comes in the form of dry fire and live fire on a shooting range. This is necessary and helps us be proficient with our tools.
We also need to train with our concealed carry solution. We need to practice presenting and placing our firearm back into the holster. We need to know our equipment without having to think about it. We should get to the state of training where drawing and presenting are natural to us. It is equally important to practice returning to the holster.
If you have a carry solution that does not facilitate either of these actions you should reconsider your choice. Most of us have a box of holsters we have tried over the years. Each one was “the” one when we made the purchase. After putting them to use we find something that leads us to the next purchase.
For example, I purchased a minimal holster that was essentially a clip that went over my trigger guard and belt. A holster that covers the trigger and adds little to no bulk? Sign me for that! After trying it for a while I didn’t like the fact that once I deploy, I must remove the holster from my belt, attach it to my firearm, then clip it back to my belt. I tried to rationalize it because I thought it was so cool. This one is now used for demo in my gear and gadget module.
I could go on and on about the holsters in my box (gear and gadgets bag) but you are smart enough to get the idea.
Getting to know your gear is critical and your holster is part of that gear. One could even say the clothing we wear to conceal our firearm is also part of our gear. Knowing their limitations must be part of our decision-making process as we choose a carry solution. Once we have that solution we need to be proficient with it. Practice, practice, practice…
I was walking through one of my favorite sporting goods stores and wandered into the holster isle. My goal was to get a Level II holster that used a latch instead of a strap over the firearm. I found a fairly inexpensive Blackhawk Serpa holster, marked for clearance. I bought it.
It is an OWB holster, not my desired configuration. It did have a latch that must be activated to remove the pistol from the holster. For all intents and purposes, I had achieved my goal. I did carry with it a few times but prefer an IWB carry solution.
I showed the holster in a couple of my classes. Then, I saw a very strong warning from an instructor to not bring that holster to his classes. I did some research and found he is well founded in refusing that holster on his range.
The problem is the retention latch release is positioned directly above the trigger guard. When drawing the firearm, the finger is positioned to rapidly engage the trigger rather than indexed. That means it is extremely easy to have an inadvertent discharge while drawing.
This holster was issued by the U.S. Army. It has been replaced due to the safety issues. Active Response Training posted an article (https://www.activeresponsetraining.net/the-serpa-compendium) that gives some rather graphic evidence against the Serpa.
The basic problem is the involuntary hand clenching of the fingers when trying to draw quickly. This involuntary clinch is the root of the “Keep your finger off the trigger until ready to fire.” safety rule. The placement of the release puts the user’s finger directly over the trigger well while drawing the firearm.
With enough training this risk can be greatly reduced. However, the risk will still be a danger, especially at the start of the training. After extensive training the risk will still be there. Very few training programs will stress you as much as a lethal threat that must be engaged quickly.
I use the holster to emphasize having extra retention protection when open carrying. I don’t recommend open carrying in my classes but address it because my students may elect that configuration. When your firearm is exposed, having a level II or III holster adds a margin of safety when a threat may try to take the firearm.
Having a release lever to engage brings some extra considerations. While the Blackhawk Serpa is the holster I have been talking about, it is not the only one that has this configuration. It is my strong recommendation that you avoid any holster that has the release over the trigger well. The Serpa does have some knockoffs. Other holsters have the release button along the frame or on the back. These are much safer to use.
Having a retention release mechanism brings another aspect to your carry considerations. The release is a mechanical device. As we all know mechanical devises can and do fail. A retention release can be jammed by foreign objects. These objects may be introduced if, in your response to a threat, end up on the ground. Debris kicked up can work its way into the holster.
So, to answer the question of training aid or consumer warning, I say both. I will still use the Serpa, but only in class. I will not carry a loaded firearm in it. I will show that this design has some serious shortfalls.
What equipment you carry is your decision. My aim here is not to bash the Serpa, only to point out safety considerations with that configuration. If you choose to use a holster in this configuration you should be aware of the safety considerations.
Is a retention device necessary? Again, that is up to you. If you open carry I strongly suggest you have a Level II or III holster, specifically one without a release over the trigger guard.
When I bought my wife her first handgun, I asked her if I put it loaded on her side of the bed and an intruder came in, would she use it. When she said she didn’t know I told her I wouldn’t put it beside the bed. I explained that if she wasn’t certain she would use it then the intruder might take it from her and use it against her.
In my classes I pose the same question. “Can you point a loaded handgun at another human and press the trigger?” It is a thought exercise. It is an exercise that anyone who carries a firearm should be doing.
Lt. Col. Dave Grossman has written books on the subject. One, On Killing, looks at the challenge the military has in getting soldiers to shoot at people. This challenge has arisen from the societal shift away from families who raised and butchered livestock and supplemented that protein source with wild game they also slaughtered themselves.
Today we get our meat from grocery stores, butcher shops and big box retailers. We no longer have the task of ending the animal's life and carving it up of our dinner. This was graphically illustrated by Ted Nugent’s Surviving Nugent reality show. One episode required the participants to cook a chicken for a meal. Unfortunately for those in the show, the chicken was alive. In explaining the challenge, Ted illustrated the task. He grabbed a chicken, slammed it’s head on a rock then ripped the breast out with his bare hands. Several of the participants were very repulsed. Ted said: “You have to kill it before you grill it.” The participants were all very hungry. Many of them could not carry out the task.
Today we have a world where the snowflakes complain that hunters shouldn’t be killing animals. They should get their meat from stores where no animals are harmed. They have no idea…
In the Civil War it was not uncommon for a soldier to be deemed unfit for combat due to teeth that were missing. It was required to have front teeth to be able to bite open the cartridges when loading. Many of these missing teeth were intentionally knocked out to avoid going to war. The reluctance to go to war was not fear of getting killed, it was the repulsion over killing another person.
The actual fire rates have increased from war to war due to conditioning. After WWI the military started using silhouette targets. During the Viet Nam war the soldiers were conditioned using pop-up targets and timing. The target would pop up and the time between then and firing at was used to qualify. The silhouettes were to condition the soldier to shoot at a human shape. The pop up targets were to build neural pathway conditioning to shoot quickly to overcome the hesitation of shooting a person.
It is not natural for a normal person to kill another person. That is why we lock up people who commit murder. The only type of person who can kill without psychological affects is the psychopath. Some soldiers meet the criteria for psychopathy. Most do not. That is why they must be conditioned.
In normal society we have the same issue. There are some psychopaths. We know them as serial killers, mass shooters, murderers. They are out there with us. Our legal system does society a disservice when jails have a revolving door for violent criminals. That is why we carry and train.
As we train, we should be using the same techniques the military uses to condition it’s citizen-soldiers to move past the revulsion over shooting another human. If we hesitate, the psychopath is just as likely take our firearm and use it against us or other innocent people.
As we train, we should also remember that, as Lt. Col. Grossman says in On Killing, the military has 10% of it’s highly trained soldiers who still don’t fire at people. In Viet Nam it was not uncommon for a soldier to shoot his ammunition above the intended target.
We may have the attitude we need to carry a loaded firearm with the intention of using it (as the last resort) to defend ourselves or others. If we do, our lives will change forever. It is very likely the fight or flight response will cause the blood our sphincters need to retain our bladder and bowel contents will be diverted elsewhere.
Many police officers who have a line of duty incident that ends up with a threat perishing, leave the force. Many who get into a defensive gun use cannot tolerate firearms after the incident.
We must train regularly. We need to get a variety of training from a variety of instructors. This is how we get as close as we can to being able to engage and stop a threat. When the fight or flight response occurs, our neural pathways will take over. If we are training properly, we are much more likely to be in the 90% group of people who will engage the threat.
Let me start with a disclaimer - I am not a lawyer and cannot give legal advice. What I am saying is my opinion and my opinion alone. You should seek legal advice from an attorney to get defensible advice.
I am often asked about the use of deadly force to defend a family pet. This is a very tough situation, especially for those that consider their beloved pet a member of the family, as most of us do.
My answer has been a consistent probably not. If the deadly force is employed in a manner that eliminates a threat to a person, then it is a clear no. Sorry...
If the use of deadly force is employed when the threat to the pet is also a threat to a human, then it is probably defensible.
This subject was addressed in a presentation by The Law of Self Defense. they have regular presentations and post them on several platforms.
The specific presentation was discussing an Arizona case of a suspect threatening a K-9 that was assisting LEO action to apprehend the suspect. The subject was engaged by a SWAT officer and subsequently perished.
The question being addressed was weather this was a good shoot. The teaser for the presentation indicated the answer was a no. Their determination (they are lawyers) is that pets are property. In 49 states the only legal force against a human in defense of property is non-deadly. This includes a K-9 in performance of law enforcement duties.
In Texas, however, one would be ill advised to mess with a man’s truck or his dog.
If you want to see their presentation it is available on YoutTube. https://www.youtube.com/watch?v=26HAo9X-OtU
As always get legal advice from an attorney in your area for the best answer.
On March 15th, a shoplifter a Family Dollar in Phoenix was confronted by the store clerk. The shoplifter struck the clerk who responded with a semi-automatic pistol shooting until the magazine was empty. He struck the shoplifter 10 times and was reported to have continued to shoot after the shoplifter was down. At least that is how it was reported.
Many times, a shooting incident is tried in the court of public onion before the fact are known. This is an unfortunate reality in the days of short attention spans and news cycles. Many times, the facts are irrelevant when compared to the emotionally charged first reports.
My interest in this story has only a marginal connection to the shooting. Rather it is what happened afterwards.
In our training we don’t just cover firearms handling and the concealed carry laws. We also cover the personal defense event and aftermath, with emphasis on interacting with law enforcement. The store clerk would have benefitted from the training.
The incident occurred just before 8PM. The shoplifter was known to the clerk to be a serial shoplifter. He confronted the shoplifter and directed him to leave the store. That is when the altercation occurred.
The clerk was young, only 24 years old. The news article does not indicate the age or physical characteristics of the shoplifter. I bring that up to consider a possible disparity of force. If the shoplifter was a larger, stronger, man the force employed may have been easily justifiable. I am not saying it wasn’t, only adding another dimension to the event.
The clerk made two mistakes after the shooting that handed the conviction to the prosecutor. We should all know that statements made before the Miranda rights have been read are deemed spontaneous utterances and admissible in court.
What did the article report that he said that was incriminating? “[the clerk] explained he was struck and decided to shoot but looking back, he realized it was egregious.”*
When looking at the flight or fight response characteristics the clerk was functioning with diminished mental faculties. His body was pumped full of endorphins and adrenalin. His perceptions were altered. He should not have been making any statements to the police.
I don’t know if a prosecutor would have taken the case without that statement. It is possible that the shooting until the magazine was empty (an assumption since the firearm was not identified) alone would have justified charges. Admitting that it was a mistake most certainly severely weakened his defense case.
You might say that shooting so many times should have been enough to justify charges. However, I offer that this young man was not aware of how many times he fired. Many police officers also report less rounds than fired. This is the result of the fight or flight response. It is this fact that led the police union to not allow interviews before 72 hours have passed. Perceptions and memory are altered by the body’s fight or flight response.
The clerk could be said to be in a state of shock during and after the event. In this state of shock, the ability to make judgements is replaced but a conditioned response. Then we have to consider the training the clerk had. I suspect it was little to none, considering the shoplifter was still alive and in the hospital. A good defense attorney might still be able to successfully defend the clerk.
The moral of the story: get training and keep training. With training you will know when you are justified in using deadly force. With training you will know what happens to your body in a defensive shooting incident. With training you will know how your actions after the incident can help your defense or solidify the prosecutor’s case.
*https://www.fox10phoenix.com/news/family-dollar-employee-shooting-west-phoenix - March 23, 2023