Editor Kathy Jackson—one of my advanced graduates, now part of my teaching staff and that of Firearms Academy of Seattle, and the accomplished author of The Cornered Cat and co-author of Lessons From Armed America with Mark Walters—asked me to write an article on the theme of Five Lessons From the Courtroom for Armed Citizens.
There are more than five, of course, but that’s all a short magazine article has room for.
Before we get to courtroom lessons, understand reality lessons. If you don’t survive the street, you won’t make it to the courtroom. Know the law and the Rules of Engagement. Be smooth, swift, and accurate in deploying your chosen defensive armament. Be mentally prepared to act decisively when you must, and to stay in the fight until the threat is no longer a threat. I would rather be the defendant than the dead thing known in court as “the decedent.”
Some of what you’re about to read is not something you want to hear. I sympathize. I didn’t like seeing it much either 31 years ago when I began speaking as an expert witness in cases such as these. But in the same sense that it’s better to listen to the “quit smoking” lecture from your family doctor now than to hear the oncologist give you the lung cancer diagnosis later, it’s better to learn of dangerous realities now, in this magazine, than to learn them from bitter and expensive experience in court, later.
It is what is called an affirmative defense: you are saying, in essence, “I did the act, but I was correct in doing so.”
Lesson One: “A Good Shoot Is A Good Shoot” – NOT!
It isn’t “a good shoot” or “a clean shooting” as such until it is officially ruled so. That ruling may take the form of “No True Bill” from the grand jury, or a finding of justifiable homicide by the prosecutor’s office … or it may come in the form of a petit jury’s verdict after an arduous trial. I’ve seen such trials cost the defendant six figures in legal fees. Shooting people is against the law. However, defenses to that crime include self-defense. It is what is called an affirmative defense: you are saying, in essence, “I did the act, but I was correct in doing so.” In most states, this shifts the burden of proof to the defendant. You are literally “guilty until proven innocent.” You’ll need to show to a preponderance of evidence standard (a greater than 50 percent likelihood) that you were correct in doing what you did. Don’t take my word for it; go to the reference section in your local library and look up “affirmative defense” in Black’s Legal Dictionary. Your opponent may have been the very Archetype of the Beast, but his surviving accomplices may lie under oath and say you shot him for no reason but to watch him die … and there may be no other witnesses. When his family sues you for wrongful death, the most outrageous falsehoods by plaintiff’s counsel will be dignified as “plaintiff’s theory of the case,” and treated as if they have the same weight as the truth that you and your side are telling. That means you’ll need many days in court, at several hundred dollars per hour attorney’s fees, and many days of preparation before that before you win… and there are only two states, Washington and Florida, where there’s a law in place for the government to pay back the legal fees when the defendant is acquitted.
You realize that you have just violated a cardinal socio-religious taboo: you have killed a human being!
Lesson Two: Don’t “Clam Up” at the Scene, but Avoid Verbal Diarrhea
After a self-defense shooting—a near-death experience, by definition—you can expect to be badly shaken. You realize that you have just violated a cardinal socio-religious taboo: you have killed a human being! You’ll feel a need to verbalize why, and can find yourself babbling to justify yourself, with your mouth quickly getting ahead of your brain. It’s colloquially known as diarrhea of the mouth, and it’s so common that psychologists have a name for it: logorrhea.
This is one reason so many lawyers tell you, “Say nothing after the shooting!” The other reason, of course, is that experience has taught defense lawyers that most of their clients are guilty as sin, and anything they say will either inculpate them, or be a provable lie that will inculpate them, sending them to prison either way. You are not that typical guilty SOB, and one thing I’ve learned is that when the Good Guy says nothing at all after the shooting, the cops not only automatically assume him guilty, but they don’t know where to look for the exculpatory evidence that will prove he fired in self defense!
That’s why, since the early 1980s, I have recommended a “five point check list” of things that need to be said by the righteous shooter as soon as police arrive on the shooting scene. It has since been pretty much adopted by USCCA. I haven’t seen anybody go down to a bad conviction or civil court judgment after using it. It goes like this.
“This man attacked me.” (Or whatever the active dynamic was that led to the shooting.) It helps establish that you are the victim/complainant Good Guy, and the guy on the ground was the crime-perpetrating Bad Guy.
“I will sign the complaint.” This confirms from the outset that you are the Good Guy, and the person you shot or captured at gunpoint was the Bad Guy.
Point out the evidence! Police investigators can’t be expected to find things they don’t know to look for, and evidence tends to quickly disappear at shooting scenes that are being trampled by fast-responding emergency services personnel.
Point out the witnesses! If you don’t, they may leave because they “don’t want to get involved,” and impartial witnesses who would have corroborated your truthful account of firing in self-defense will disappear.
“You will have my full cooperation after I’ve spoken with counsel.” This will prevent a logorrhea attack, and you’ll have to stick to it like “name, rank, and serial number when in enemy hands.” But it will show that you were cooperative, and in the most unlikely event that it becomes an issue in court, we can show that cops are taught something similar for when they are in shootings.
I’ve done a very few cases in 31 years where we won without putting the self-defense shooter on the stand …
Lesson Three: Expect To Testify
If a lawyer tells you after a shooting, “Don’t worry, you won’t even have to take the stand,” my advice would be, Fire him, now! He has just told you he has no clue how to handle an affirmative defense!
Who besides you can tell your story? Your lawyer sure can’t: his arguments and case strategy are limited to evidence he can introduce in court, and testimony he can elicit from witnesses on the stand. I’ve done a very few cases in 31 years where we won without putting the self-defense shooter on the stand—for instance, a battered woman accustomed to agreeing with any aggressive alpha male, who would have been eaten alive by the prosecutor on the witness stand, and a heart patient whose cardiologist told the defense lawyer that he wouldn’t survive the stress of testimony—but we were gratefully lucky to have done so.
You know the truth, but the jury doesn’t…
Lesson Four: Be Prepared for Monsters
Understand that if you shoot Rapist A to death and Rapist B flees and is arrested later, Rapist B is unlikely to testify, “Yes, everything our intended victim says is true! We were monsters who deserved to die!” He’s more likely to say, “Aw, my now-dead buddy told me she was a slut who was gonna give us both a sex sandwich, and then the crazy bitch started shooting!” You know the truth, but the jury doesn’t: to them it’s just “He said, she said.”
There is no crystal ball to show the jury what really happened, no time machine to bring them back to the darkened shooting scene where you had to fight for your life. When the other set of monsters, the ones who will fabricate a false case against you even when they KNOW they’re lying, present that false case against you in court, your defense team will have to reassemble the evidence, recreate the shooting as best as it can be done, and deconstruct the false case against you brick by brick if truth and justice are to be served.
Better judged by twelve than carried by six.
Lesson Five: Don’t Leave “Hooks” on Which A False Case Can Be Hung
Long ago, police departments learned that things like a trigger pull so light a lay juror could perceive it as a “hair trigger” could either lead to an accident, or allow a false accusation of same. (Why would opposing counsel falsely allege an accident? Because “self-defense” is a “perfect defense” in an intentional shooting, but there’s no such thing as a “justifiable accident” in criminal law. In civil court, the other side knows that you probably don’t have a million bucks they can get their claws on if they win the lawsuit, but the company that underwrote your homeowner’s liability insurance policy does. They know that homeowner’s liability insurance won’t cover an intentional shooting, because it’s an expressly exempted “willful tort,” but it will cover negligence, and that’s why they fabricate the “accidental shooting with a negligently-used hair trigger gun” theory.) The hair trigger is one example. Removing or deactivating a safety device on a lethal weapon can be construed as “plaintiff’s counsel’s guaranteed employment act.”
Think ahead. Know the law. Know how to fight in defense of yourself and your loved ones. Be able to show that everything you did was within what the court will call “the mainstream of common custom and practice” for dealing with the kind of life-threatening emergencies you carry a gun to cope with.
I’ve run out of space to write here. But you haven’t run out of time to prepare yourself.
“Better judged by twelve than carried by six” is fine as far as it goes. But you want to stay out of prison and bankruptcy as surely as you want to stay out of a premature grave.