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What if they approach while you are holding them at gunpoint?

Discussion in 'Carry Issues' started by poodleshooter1, Aug 24, 2011.


  1. poodleshooter1

    poodleshooter1
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    First of all, the police don't start "prosecution", the prosecutor does. If you are really an attorney, you should know that.


    You're wrong, and biased. It is foolish to give the advice that you have to convince the police at the scene that you are innocent as DeafSmith stated. Again, if you are really an attorney, you should know better. The police merely arrest people for crimes. It is the responsibility of the prosecution to convince a jury that you committed it. It is up to your attorney, to convince the jury that you didn't. The jury decideds guilt. NOT the police. The scene of the crime is not a court room. Maybe in your brand of LE the cops are judge, jury and executioner.

    More people have been sent to prison or wrongly convicted because of the idiotic advice of convincing the police at the scene that you are innocent. It's because of idiotic advice like that that most arrests turn into convictions. Most people are not attorneys and not in a position to adequately represent themselves. Furthermore, again, Cops are not a jury, judge, or attorneys, they have neither the education nor the credentials to decide on legal matters. The best advice is to let counsel who has spent years in law school, passed the bar exam, and has decades of experience under their belt to represent you in such a case. But go ahead, keep telling Joe Bob Farmer to represent himself in front of your fantasy court held by the police at the scene. I'm really starting to doubt that you are really an attorney....or is it that you are also a Cop and enjoy baiting people?
     

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    #141 poodleshooter1, Aug 27, 2011
    Last edited: Aug 27, 2011
  2. Deaf Smith

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    It is best to give the cops the dynamics of the situation. That is, 'Sir, I am the one attacked, and these are the ones that attacked me." Then point out any evidence, such as weapons, cuts, bruises, witnesses, etc..., BEFORE they get lost or just walk away. Then tell the cops you will give them 100 percent cooperation but... you need to speak to an attorney first and give yourself time to collect your thoughts.

    To not do that and clam up is to spend several days in jail before you even get a chance to talk to a lawyer, and to maybe see some of that evidence walk off.

    While yes it's prosecutors (and a grand jury) that do the indictment and prosecution, it's the cop that throws you in jail to begin with, AND COLLECT THE EVIDENCE.

    Deaf
     

    #142 Deaf Smith, Aug 27, 2011
    Last edited: Aug 27, 2011
  3. Bren

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    Actually, in the real world, (a) everything starts with the police and (b) Kentucky law, KRS 503.085, the statute I mentioned that prohibits the police from arresting you for a self-defense shooting - the same one I teach classes on to several different law enforcement agencies - says: "As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant."

    So yes, I'm really an attorney and you're really not.


    You really have no idea what you are talking about. To simplify for anyone who may be mislead by the complete nonsense you wrote here:

    A self-defense shooting means you intentionally shot someone and either injured or killed them.

    Intentionally shooting someone and either injuring or killing them is also the definition of murder, or a couple of degrees of felony assault here (different titles in different states).

    Under Kentucky law, (and some other recent "castle doctrine" adopting states), "A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 (self defense, defense of another and defense of property) is justified in using such force and is immune from criminal prosecution and civil action for the use of such force...." (that includes immunity from arrest - see above)

    The difference between using force "as permitted in KRS 503.050, 503.055, 503.070, and 503.080" and illegally using force to commit murder or assault is your own subjective belief that you were in danger of death, serious physical injury, etc. That means, if you don't say it, the police don't know it.

    If you don't state your subjective reason for shooting, it is up to the discretion of the police whether to charge you with a crime and put you in jail. No attorneys are involved at that point (no they don't have to wait for yours to show up and no, they don't necessarily care what you have to say after they put you in jail).

    If the police arest you, the next step may be the grand jury - the prosecutor can take it there (usually) or if he doesn't, the police or even a private citizen can present the case. You have no right to appear or speak to the grand jury and if you do appear, at your request, it is with no attorney. The prosecutor is the only lawyer they speak to and they decide whether to send you to the circuit court. Normally, only the police appear to indict you and, if you gave them a reason for the shooting, they will tell the grand jury - that's the only way they are going to hear your defense unless the prosecutor decides to allow you to appear.

    If you get a preliminary hearing before the grand jury meets, that may be a chance for your lawyer to help you, but it also doesn't necessarily stop the prosecution if the judge at the preliminary hearing dismisses your charge - the prosecutor, cops or others can still go to the grand jury. If the grand jury meets first, you don't get a hearing.

    At that point, you have already spent plenty of money and, unless you can make a very high bond, you've been in jail for a few weeks and may be unemployed, etc.

    From there you go to circuit court, where you are a criminal defendant and the prosecutor may ffer to let you plead to a lesser felony, if he's busy, but why? It costs him nothing to prosecute you - just gets him more publicity for the next election. That's not the best time to realize maybe you should have told the police why you shot.

    How does this work in the real world? Louisville Metro Police officer McKenzie Mattingly shot and killed a criminal who tried to rob him during an undercover operation. The shooting looked questionable, even though the guy was armed, and Mattingly decided not to make a statement until he spoke to his lawyer. Mattingly lost his job, home, retirement, and everything he had before finally being found not guilty, based on self-defense, at trial. Unfortunately, some police tend to believe that crap advice they get about not making a statement until they talk to a lawyer too. In the same city, many more questionable shootings have been cleared by a grand jury - but in each one the officers cooperated at the scene of the shooting.
    Here's an article about it, there are many more.

    He did not get his job or money back when he was found "not guilty."

    I know from reading your crazy rant that you won't get it, but this is for others who will. This is what I mean when I say "don't talk to the police" in a justified shooting case is bad advice.

    In an unjustified shooting? May as well not talk to the police and good luck.
     
    #143 Bren, Aug 27, 2011
    Last edited: Aug 27, 2011
  4. SCmasterblaster

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    Amen!
     
  5. TDC20

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    "Under Kentucky law, (and some other recent "castle doctrine" adopting states), "A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 (self defense, defense of another and defense of property) is justified in using such force and is immune from criminal prosecution and civil action for the use of such force...." (that includes immunity from arrest - see above)"

    Bren, what does it take to qualify under this statute to be immune from criminal prosecution? Because, the way I read it, all I would have to do is to claim self-defense ("He was going to kill me, I didn't have any choice but to shoot him to save my own life.") and that's it. Do I have to convince the police that it was self defense, so it's up to their judgement as to whether my story qualifies as truly self defense? Does it require me to give a second-by-second account with every detail? That's what I'm afraid of. Actually, if they would allow me to sit down with a computer or even a pen and paper and put together a written account of what happened, I would feel better about that. I wouldn't want to be on video, under duress and nervous, and be seen making a mistake and then have to correct myself. When something like that is presented to a jury, the prosecution will use it to show that I was making up a story, even if I am trying to recount the facts as honestly and accurately as I can. That is certainly not going to help my case.

    This is a tough situation. If you decide not to shoot and reholster and square up with the guy, you might end up dead, especially if this guy is an ex-con with 5 or 10 years of prison weightlifting in his recent past. If you shoot him "unarmed", you have an extremely weak case if the SA decides to prosecute you. I'm not a lawyer licensed to practice in 50 states, so I'm sure there are both subtle and wide differences among the states for what the law says about the aftermath of a SD shooting. This Kentucky law sounds good for people defending themselves, but how many people would actually know this? Hopefully anyone who CCW's in Kentucky, but it's not like that here. My CCW class instructor (Missouri) advised me not to say anything to the police until I had an attorney present.

    I'm sure LEO's loathe the perp who won't talk until he "lawyers up" after the fact. I'm sure it happens quite often, and their lawyer comes up with some kind of creative defense or gets critical evidence suppressed, and because the perp didn't offer anything that the prosecutor can use against him, he walks. I understand the frustration there. On the other hand, why should someone provide the prosecution with evidence to be used against them? It's a tricky situation there that could work for you or against you, but when my life is at risk, I would rather play it safe.

    I still think the right response in the OP's scenario is to carry an OC spray. That way, I hit the "unarmed" guy in the face with that and make a clean getaway with my unfired sidearm. No shots fired, no night in jail, no prosecution and no lawyers. If pepper spraying someone who is unarmed turns out to be an unlawful act for some reason, it's not going to land me in any "serious" trouble. It won't make the front page of the paper and it won't help the SA's political career. I'm researching pepper sprays now and it will always be on my person when I'm carrying just for this reason.

    David, you are an honest person with a lot of integrity. I used to be that way, actually, I still am when dealing with people on a personal level. But when it comes to placing my life in the hands of 12 jurors, a judge, and a couple of lawyers, the situation changes. I'm jaded, I admit it. I watched the President of the United States, a licensed lawyer at the time, argue about what the definition of "is" is, how "she was having sex with me but I wasn't having sex with her". He perjured himself before a grand jury, and suborned the perjury of others to the grand jury. He was eventually disbarred and impeached, but he never spent a day in jail or lost one day of his Presidency. Most politicians don't, unless they were former governors of Illinois. Look at the people that President pardoned...lol. Then I watched OJ walk in a ridiculous sham of a trial. There are so many high profile cases like that they're too numerous to list. It's like what Denzel Washington told his young rookie trainee in "Training Day", "It's not about what you know. It's about what you can prove." Like SteveK said, we assume that all jurors will be reasonable, rational, and intelligent. This is rarely true, and sometimes the attorneys purposely try to get jurors who are not so they can work them into a favorable verdict. In that sense, a trial is a game where your life hangs in the balance. Deceive the court? As long as it's legal and it gets me off the hook, you betcha! I served on a jury once and the judge's instructions were so bounded that she did everything but tell us directly that we had to find in favor of the defendant. It was silly to even have the trial. I wish I had those 2 days of my life back.

    Anyway, back on topic. My answer to the OP's scenario is to carry pepper spray that I can quickly deploy with the weak hand. Could save my life and livelihood.
     
    #145 TDC20, Aug 28, 2011
    Last edited: Aug 28, 2011
  6. Tilley

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  7. Bren

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    #147 Bren, Aug 28, 2011
    Last edited: Aug 28, 2011
  8. badge315

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    So is a statement by the shooter the only thing that police look at when investigating a homicide? You make it sound as if incomplete, incompetent investigation and malicious prosecution is SOP in Kentucky.
     
    #148 badge315, Aug 28, 2011
    Last edited: Aug 28, 2011
  9. David Armstrong

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    I think what some are not understanding is that the advice of "don't talk to the police" does not mean "don't say anything at all to the police." Bren is right, at the scene you want to make sure they understand you are the victim. Standing mute tends to make people think you are hiding something.

    Deaf and I often disagree on issues, but go back and read his post #142. You don't want to allow the police to interrogate you without having your attorney present, and youdon't want to talk about the details of the shooting for reasons already mentioned. But you are probably ahead of the game if you do tell them that you were attacked, who witnesses are, where evidence is, and so on. If you don't then they pretty much have to assume you are a BG and treat you as such
     
  10. David Armstrong

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    Exactly. That is why "I was scared of the bad man" isn't much justification. You need to be able to expalin why you were scared, what you were scared of, and why responding with lethal force was the reasonble response to that.
    I don't. I assume they are emotional and irrational, which is why you need to be able to convence them that shooting an unarmed man who was doing nothing more threatening to you than walking slowly toward you was the right thing to do.
    Again, if your plan is to decieve the court I would suggest you know yourself that what you are doing really doesn't look that good, otherwise you wouldn't see a need to change the picture.
     
  11. Bren

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    I explained that in some detail, so whether it's intentional or not, you're ignoring most of what I wrote on the suject.

    Obviously the police look at more in the investigation, but literally the ONLY difference between murder and a justified shooting (assuming it is one that can be justified) is what the shooter thinks. If a guy points a gun at you and you shoot and kill him, unde rour law and that of most states it isn't him pointing a gun at you that makes it justified, it is the fact that you believed you were in imminent danger of death. Being in danger isn't a legal justification, if you don't think it. Thinking you are in danger can be a legal justification, if if you aren't in danger. Works the same way you could, for example, commit attempted murder by putting sugar in somebody's coffee, if YOU believed the sugar was poison - the requirement of the crime or defense is in your mind, not the actual danger.

    So, in summary, all of the police investigation can ONLY support your claim that you acted in self defense - it can't establish the necessary element of your subjective belief - without that, prosecutorial discretion my say the case isn't worth pursuing, but you CANNOT actually establish justification.

    This is pretty basic stuff I could have told you when I was a police officer; it hardly takes a law degree.

    Here's an example - Kentucky's self defense statute:

    Notice that all the evidence that you were in danger of death, serious phsyical injury, etc., doesn't matter, because the use of physical/deadly physical force is NOT justifed when "such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person" - instead it is justified "when the defendant believes that such force is necessary."

    I've been involved in a case of a justified shooting where a guy was shot when he took his cell phone off his belt - but if the guy had taken a gun off his belt and pointed it at the shooter, but the shooter said "no I didn't think I was in danger, I just wanted to kill him" the shooter would have committed murder, without justification, in Ky.
     
    #151 Bren, Aug 28, 2011
    Last edited: Aug 29, 2011
  12. Sam Spade

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    Bren, I think you may be projecting KY law a bit too much on other places. (Or maybe I don't understand nuances of other places.)

    The places that I've looked at don't excessively care what the defendant believes. For example, AZ says:

    13-405 A person is justified in threatening or using deadly physical force against another(...)when and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.

    So, Counsellor, my question: Which matters more for most places and most people? The reasonable man's standards or the particular defendant's standards?
     
  13. SCmasterblaster

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    I'd spray the SOB with my OC Spray. That would stop him/her.
     
    #153 SCmasterblaster, Aug 28, 2011
    Last edited: Aug 28, 2011
  14. poodleshooter1

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    It's a waste of time trying to reason with someone who thinks the police are prosecutors, judges, and jury all in one. In Brenville, you have to have your trial right there at the scene and convince the police who often have only a HS diploma and have a very rudimentary understanding of the law that you are innocent.

    In Brenville, it's in your best interest to open up to the police and say the wrong things while you are trying to convince them that you, Joe Bob who works at the Dollar Store was innocent. God forbid you have an attorney who spent 7 years of study to obtain a Juris Doctorate (including undergrad) and does this for a living handle the convincing...:upeyes:
     
    #154 poodleshooter1, Aug 28, 2011
    Last edited: Aug 28, 2011
  15. Tilley

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  16. Tilley

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    #156 Tilley, Aug 28, 2011
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  17. Sam Spade

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    Anything?
     
  18. Tilley

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    Sam mentioned it and I agree. There are two standards in which we are scrutinized:

    What a reasonable police officer believes.

    What a reasonable person believes.

    As police officers, we all have an "imaginary line" that if a suspect crosses that line, we use elevated force.

    Using a theoretical suspect here, it's midnight in a dark alley in the bad side of town, you see a man facing away from you with a gun in his hand. He is wearing clothing common to that of a gang-member. You identify yourself and order him in a loud voice not to turn around and drop the weapon on the ground. Several things can happen here:

    Guy turns around quickly and the cop shoots him.

    Guy turns around quickly raising up his gun, and the cop shoots him.

    Guys turns around quickly raising up his gun, the cop does nothing and the cop gets shot.

    Not all police officers react in the same way. That imaginary line mentioned above is different for each of us based on our training and other psychological factors unique to us as individuals.

    If we are judged by a jury of our peers (fellow police officers), we can be judged by the standard of what a reasonable officer thinks. But instead, we are judged by everyday citizens, not trained or having experience as police officers. People who see LL Cool J shoot the gun out of the suspect's hand, or Steven Seagal judo-chop the suspect, then flip him on his-ass.

    "The suspect was only 12 years old...his momma said he was a good boy...why didn't the cop shoot him in the leg...he didn't understand english"...whatever.

    The point is, as long as we are going to be Monday-morning quarterbacked on everything we do, we need someone there with the legal knowledge we don't possess to give us advise.
     
  19. barstoolguru

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    While I enjoy reading what he says, he says it in a very vague way as to stay safe and not lead someone in a direction that can come back to him which is very understandable. With that in mind we can say it for him….. “That every situation needs to be evaluated by them self’s and the defender needs to use his/hers better judgment as every situation is different and no two can be put into the same template”
    As said before it the person was a treat and had a weapon, dropped it but still advances the threat is still there, you can’t tell if they have another weapon. What my chl teacher says “my objective is not to kill but to stop all movement, neutralize and control the situation” and if that means to shoot so be it
     
  20. David Armstrong

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    You know, if that is what you got from Bren's posts, it is rather clear that you really don't understand what he has said.:dunno: