What My Lawyer Should Know: Translating the Legalese

Different states have different requirements for self-defense, and those requirements may change depending on whether one is at home or in public.

Different states have different requirements for self-defense, and those requirements may change depending on whether one is at home or in public.

»THERE ARE ODD NOOKS and crannies of the law known only to the most intrepid explorers. These nooks and crannies can change without warning. A federal prison guard was convicted in New York State for carrying a concealed weapon. New York law allowed prison guards to carry concealed, but the New York Court ruled in a 3-2 decision that this only applied to state prison guards and not federal guards. The guard asked that the decision apply only to future cases because he could not be expected to know an interpretation that divided the court. His request was denied. He was expected to know the law even when the court was divided on the question.1

Legal matters are notoriously high stress. Arrests are higher stress, surviving a criminal attack is more so, and taking a human life is the worst. Everyone I have represented who killed in self-defense has suffered from Post-Traumatic Stress Disorder (PTSD) to a greater or lesser extent. Under extreme stress the body and mind go through changes and people perceive things differently, often inaccurately. They say and do things they would not normally say or do. These actions are often taken as vicious or vindictive; they are a normal reaction to abnormal situations.

The lawyer must understand the basic elements of self-defense; he almost certainly did not learn them in law school.

Few lawyers have made a study of gunfights, but most are familiar with high stress situations. The Force Science Institute has a large body of research on the human reaction to high stress, especially gunfights.2 This research was acquired in defense of police officers and thus has a higher degree of public acceptance. These studies may bring a lawyer up to speed on some of the peculiarities of gunfights.

A bullet in the back is classic evidence of murder. However, the Force Science Institute has proven that such things are complicated. A police officer can have legal cause to shoot an assailant. The assailant will then turn. By the time the officer’s eye has transmitted this information to the brain, the brain has processed this change, made a decision, and sent a new command to the trigger finger—it is too late. This involves actions in microseconds and is counter-intuitive. It is one of the factors counsel needs to know and understand in order to develop a strategy and explain it to the jury.

The lawyer must understand the basic elements of self-defense; he almost certainly did not learn them in law school. Marty Hayes, founder and President of the Armed Citizens’ Legal Defense Network, reviewed his three years of law school and determined that at most 90 minutes touched on self-defense.3 I think his estimate is high.

Different states have different requirements for self-defense, and those requirements may change depending on whether one is at home or in public. The presumptions favor the person who is at home. The NRA summarizes these principles with the acronym JAM: Jeopardy, Ability, and Means.

Jeopardy is a threat, either verbal or physical. Ability is being within range to carry out the threat.4 Means refers to a weapon capable of carrying out the threat. Many instructors have different terms for these elements, but they add up to the same thing and must be explained in the defendant’s first statement to the police.

The average person’s knowledge of gunfights comes from movies and TV, which means that everything they know is wrong.

The disparate force of an opponent who is larger, stronger, younger, a skilled fighter, or more numerous can be a substitute weapon. Such disparity of force cases can be difficult to win, and women have been more successful with the defense than have men.

The average gunfight is at a range of 21 feet or less—less than the width of a residential street. Tests prove that an attacker can cover 21 feet in as little as one second from a standing start and plunge a butcher knife into an opponent’s chest.5 Things happen very quickly in a gunfight at very close range, with many things happening at once. The average person’s knowledge of gunfights comes from movies and TV, which means that everything they know is wrong.

Modern firearms have an ammunition capacity of seven, 10, 15 and more cartridges because that is what is necessary. Legendary Texas Ranger Frank Hamer did not normally carry reloads for his revolver,6 but he was an intimidating figure and notoriously hard to kill. On occasion he carried extra guns and rode with friends who had extra guns, and on one occasion his wife provided covering fire. When he led the ambush on Bonnie and Clyde, he used a Remington Model 8F semi-automatic in .35 Remington with a 20-round magazine.7

Today the most common police handgun is some model of Glock with 15 or more rounds on board. Because of drugs, psychosis, and seemingly pure evil, some criminals have absorbed multiple bullets of significant caliber and remained mobile, active, and hostile. The record is an armed robber in Chicago hit 33 times in the chest and head with 9mm and twice with a 12-gauge before going down.8

Modern handguns can be fired four to six times a second, although not always with accuracy. This may result in a fatal wound being joined by panicky follow-up shots. The unfortunate Mr. Diallo was shot at 43 times at point-blank range by three New York detectives, but hit only 19 times before finally collapsing.

Cartridges loaded with hollow-point projectiles are standard police duty ammunition. They are not issued because they are better ballistically in gunfights (although they are); they are used because they are less likely9 to go completely through people or things and injure innocent persons. New York City was the last major department to adopt hollow points after paying judgments for wounding innocent persons when round-nosed bullets went through criminals.10

The rules for defending others are the same as for self-defense. One must beware of intruding into other people’s problems. Without knowing the cast of characters, one may shoot a plain-clothes officer or even a victim. Clients often ask what action they should take if their children are being kidnapped. My advice has always been, “Don’t forget to reload.”

A firearms lawyer must be aware of any guns or ammunition that are illegal in their jurisdiction as well as registration requirements.

Exposing a weapon, even by accident, is a crime in some states. Even states that do not ban open carry will have cities with ordinances against open carry.

Brandishing a weapon is typically a felony. This is usually defined as pointing a weapon at a person or holding a weapon while making threats. This charge is peculiarly susceptible to the paranoia and prejudices of hoplophobes who believe that there is no other purpose for a gun except to attack them personally.11 Self-defense is a defense to a charge of brandishing.

A firearms lawyer must be aware of any guns or ammunition that are illegal in their jurisdiction as well as registration requirements. Bernhard Goetz was acquitted of shooting four assailants in a New York subway, but was then sentenced to a year in jail for illegal possession of his instrument of self-defense. One cannot rely on common sense. A Florida lawyer wrote an excellent book on Florida firearms law after finding that his reasoned logical reactions to firearms questions were simply not the law.12

A businessman was recently convicted in Washington D.C. for attempted illegal possession of ammunition because he had a Minié ball bullet for a Civil War-era musket. He had no powder or percussion caps, which is why it was “attempted” possession. Replica Civil War muskets are not illegal in our nation’s Capitol, but God forbid there be ammunition for them.

An attorney should be able to advise clients on what to say to the police and media when asked. The short answer is absolutely nothing. However, in the aftermath of a self-defense incident a flood of comments and circumstances will carry the guest of honor toward jail and ruin. A small statement may serve as a cofferdam to direct the flood into a better direction, but a statement could also direct the flood into a worse direction.13 Any statement must be short and limited. Statements to the media must be equally limited as indictments have been inspired by politically incorrect or poorly thought out statements reported in the media.

An attorney need not be an expert—he need only know when one is needed and what questions to ask.

Knowledge of forensics is important. Blood spatter is a science unto itself. Entry wounds are typically smaller than exit wounds (but there are exceptions). Knowledge of how guns and ammunition work and the evidence available from them is valuable but alarmingly rare. A case from the Eastern District of Missouri found that guns could be carried for self-defense so long as they are not loaded.14 (It cannot be too strongly stated that guns do not work without ammunition; how this fact escaped the judicial notice of the Eastern District Court of Appeals is unknown.) An attorney need not be an expert—he need only know when one is needed and what questions to ask.

Few attorneys will have a grasp of all of these subjects. Some will know nothing about them at all. So long as the attorney knows his ignorance, and is willing to learn, he has possibilities.15

Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense.

Please send questions to Kevin L. Jamison
2614 NE 56th Ter Gladstone Missouri 64119-2311

KLJamisonLaw@earthlink.net

Individual answers are not usually possible but may be addressed in future columns. This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney.

 

  1. See People v Marrero, 422 N.Y.S.2d 384 (N.Y.A.D. 1 Dept. 1979) and 515 N.Y.S.2d 212 507 N.E. 2d 1068 (N.Y. 1987).
  2. www.forcescience.org “Studying the Science & Human Dynamics Behind Deadly Force Encounters.”
  3. Regrettably he never took the bar exam and does not practice. He provides expert testimony in self-defense cases. Armed Citizens’ Legal Defense Network PO Box 400, Onalaska,Washington 98570 (360) 978-5200 or www.armedcitizensnetwork.com.
  4. Which is weapon dependent.
  5. The average is 1.45 seconds.
  6. Frost & Jenkins I’m Frank Hamer, State House Press Austin Texas 1993 at 79.
  7. Frost I’m Frank Hamer supra at 232.
  8. His autopsy photo makes him look polkadotted. See Adams et al Street Survival, Calibre Press Northbrook ILL 1980 at 215.
  9. I said less likely.
  10. Safir, Howard Security, Thomas Dunne Books St. Martin’s Press N.Y. 2003 at 161-2. Mr. Safir was the New York City Police Commissioner when hollowpoint bullets were adopted.
  11. The book Every Handgun is Aimed at You is a perfect example.
  12. Gutmacher, Florida Firearms Law, Use & Ownership, Warlord Publishing1997 at xi.
  13. The nature of this statement has been frequently discussed in these pages.
  14. City of Cape Girardeau v Joyce, 884 S.W.2d 33 (Mo.App. E.D. Southern Division 1994)
  15. I am writing a primer for the legal profession on how guns and ammunition work, but getting them to read it will be the real problem.

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