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The Jury on Your Shoulder

Without a doubt, the single most common reason an armed self-defense claim loses in court is what the defendant did leading up to the event. One of the long-standing common-law requirements of a legitimate self-defense claim is that the defendant did not in any way initiate, aggravate or otherwise escalate the confrontation in which he or she found himself or herself.

I have investigated and sat in court on numerous cases in which the legally armed citizen made such huge mistakes in judgment. In almost every instance, the defendant should have known better. Probably the most obvious example of bad judgment is road rage.

Seriously, why anyone, especially someone who is legally carrying a firearm, would let himself or herself get sucked into such a confrontation is hard enough to understand, but to actually provoke the conflict by engaging in behaviors such as flipping off another driver is simply the height of stupidity. Yet time and again, we see it happen.

In the classic John Belushi comedy Animal House, one of the characters is shown with a good angel and a bad angel on his two shoulders. Naturally, the bad angel urges him to do something he knows he should not do. Just as predictably, the good angel acts as his conscience, advising him to “do the right thing.”

In my own carry classes, I sometimes use this humorous example, telling students to imagine that they have a kind of “jury angel” sitting on their shoulders. Then, whenever they are about to do something that just might not be such a good idea, they can ask themselves, “What would a potential jury think of what I am about to do, especially if it leads up to my having to use lethal force?”

Think of all the behaviors preceding a confrontation that could be used against you. Suppose you are walking in the city with a friend, minding your own business, and a couple of individuals ask you for money. When you say, “No thanks,” they make a clear threat, again demanding that you give them money “if you know what’s good for you” while getting up close and personal. You put your left hand up while reaching for your gun with the other, saying, “Back off!” The assailants run off.

Being well-trained, you immediately call 911 and report the brief encounter, perhaps even giving a description of the offenders and which way they went. However, your attackers have also called the police and reported how, while “innocently panhandling,” you threatened them with your gun.

Hopefully, with the corroborating testimony of your friend and the likelihood that the men had some history with the law, nothing much will come of it. But what if surveillance cameras (or the increasingly ubiquitous smartphone cameras) catch you just a few minutes before the altercation? And what if the video seems to show you engaging in an aggressive verbal confrontation with some other individual, ending with you flipping off the other party?

As we have seen in numerous recent cases, such videos can have an enormous effect. Suddenly, the story told by the failed muggers might appear to have some truth to it since your apparently angry demeanor in the video tends to support their description of your behavior toward them.

Bottom line: Pay attention to the “jury angel” on your shoulder. It might just keep you from doing something stupid or even legally problematic.

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