Carry guns and modification.

[Frank Ettin]

The weapon doesn't make or break justification. Perhaps you, with all of your legal wisdom, fail to see, understand, or admit that fact.

Exactly where did anyone say that the weapon will make or break justification? No one has in fact said anything of the sort. It can, however, be a factor.

The use of JHP ammunition did not make or break Harold Fish's defense. It was, however, established to have been a factor in at least one juror's decision to vote "guilty."

 

[849ACSO]

In a perfect world where everything is cut and dry the weapon should not matter. In a world where a prosecutor is trying to figure out state of mind, where a juror is trying to pick between expert testimony and weigh the limited conflicting testimony the weapon may matter. Justified or not is not always obvious

Agreed, but the facts are still the same. Deadly force is deadly force, regardless of how, or what it is applied with, and MUST meet justification.

 

[Frank Ettin]

....Deadly force is deadly force, regardless of how, or what it is applied with, and MUST meet justification.

That sentence makes no sense. Deadly force is, indeed, deadly force, regardless of how or what it is applied with. Whether or not that deadly force was justified is another question entirely.

The "must" comes in only insofar as if you hope to avoid criminal and/or civil liability for you use of deadly force, the "system" must conclude that your use of force was justified (or otherwise excusable). You're not off the hook until that question has been decided in your favor. And in the process of deciding whether your use of deadly force was justified (or otherwise excusable) the "system" will consider all the circumstances -- which can include how and with what you applied that deadly force.

 

[849ACSO]

You keep complicating such simple things..........You keep adding things that are already built into the statement, and then act as though your thinking is superior because you can add more words.

If you want to post something else referring to the SAME THING I said, I will concede to give you the last word..............

 

[Frank Ettin]

You keep complicating such simple things..........You keep adding things that are already built into the statement,...

No, they are not built into the statement.

A major problem communicating complex ideas is often making assumptions about all the meaning that a particular word or phrase encompasses. Folks are continually assuming something was said when it actually was not, or missing a point because the writer assumed it was understood, but it was not understood because it was not explicitly stated.

We are dealing with legal concepts, and in legal writing and discourse we have learned that things can not be assumed. We must always be explicit and precise.

Clarity of communication requires clarity of thought and not making assumptions about how something will be understood.

 

[Glenn E. Meyer]

I might suggest that folks interested in what happens when your 'good shoot' goes to trial might read two reference books on jury processes:

Klein, D., & Mitchell, D. (Eds.). (2010). The psychology of judicial decision making. New York, NY: Oxford University Press.

Devine, D. J. (2012). Jury decision making: the state of the science. New York, NY: NYU Press.

 

[849ACSO]

Originally Posted by 849ACSO
....Deadly force is deadly force, regardless of how, or what it is applied with, and MUST meet justification.

We are dealing with legal concepts, and in legal writing and discourse we have learned that things can not be assumed. We must always be explicit and precise.

What's not precise about that statement. DEADLY FORCE MUST MEET JUSTIFICATION REGARDLESS OF HOW THE FORCE IS APPLIED OR WHAT TOOL IS USED TO APPLY IT................ What's not to understand Frank? That doesn't imply that justification and force are the same. In fact, it makes it pretty clear that justification is something that must be met by deadly force in order to have the best chances of not being jailed or sued. The statement in and of itself makes it clear that justification is a different matter than the force. Sheesh.

 

[Frank Ettin]

What's not precise about that statement. DEADLY FORCE MUST MEET JUSTIFICATION REGARDLESS OF HOW THE FORCE IS APPLIED OR WHAT TOOL IS USED TO APPLY IT................ What's not to understand Frank? That doesn't imply that justification and force are the same. In fact, it makes it pretty clear that justification is something that must be met by deadly force in order to have the best chances of not being jailed or sued. The statement in and of itself makes it clear that justification is a different matter than the force. Sheesh....

The reality is that what you think you are saying is not actually what you are saying. You know what you want to communicate, but you lack the facility with language to do so clearly, precisely and unambiguously. So you assume that everyone will understand what you write the way you want them to understand what you write.

But this is not the place to teach English composition.

What you have written and what I have written are posted for all to read. Those who read what you have written and what I have written will understand what they understand. There's no reason to continue this.

If you have anything further to communicate to me, send me a PM.

Any further posts of yours continuing this discussion will be deleted.

 

[Spats McGee]

At the risk of stepping in somewhere I'm not wanted . . .

849ACSO, here's the key statement that I think started us down this road:

. . . . Justified is justified. . . .

That's very much like the line we see fairly often: "A good shoot is a good shoot." Both statements ("justified" and "good shoot") are technically true. However, both also very much oversimplify the matter.

In the criminal context, both statements overlook the possibility that the entity charged with making the decision on justification, whether it be judge, jury, or prosecutor, could (for example) take the firearm, modifications, or ammunition into account and that could color that entity's view on the shooter's state of mind. State of mind can be very important in criminal law.

In the civil context, those same items could be considered by the judge or jury to determine whether the shooter was negligent. Again, these things introduce another variable (weapon modifications) into an already-complex calculus.

Whether something is "justified," or "a good shoot" is the conclusion that a shooter hopes to get to if he or she ever has to shoot someone. It's not the starting point, after which all other factors are considered.

 

[Frank Ettin]

At the risk of stepping in somewhere I'm not wanted . . .

849ACSO, here's the key statement that I think started us down this road:

. . . . Justified is justified. . . .

That's very much like the line we see fairly often: "A good shoot is a good shoot." Both statements ("justified" and "good shoot") are technically true. However, both also very much oversimplify the matter.

In the criminal context, both statements overlook the possibility that the entity charged with making the decision on justification, whether it be judge, jury, or prosecutor, could (for example) take the firearm, modifications, or ammunition into account and that could color that entity's view on the shooter's state of mind....

Thank you. It's often helpful to have a second pair of eyes look at something.

 

[Glenn E. Meyer]

Well said, Spats!

 

[zincwarrior]

To support your claim that you reasonably believed your life to be in imminent danger you testify about what happened. You explain on the witness stand what happened -- what you saw and why you believed you were at risk of immediate, lethal injury. One way in which the prosecutor will try to overcome your claim of justified self defense will be to attempt to discredit your testimony and challenge the reasonableness of you perception that you were in imminent jeopardy. Is there any evidence which might help the prosecutor to do that -- any evidence which might cause a juror to perhaps doubt the reasonableness of your claimed perceptions?

It would be unlikely defense counsel would advise you taking the stand in the first place, which makes scenario even murkier (and your argument stronger as a result).

 

[849ACSO]

At the risk of stepping in somewhere I'm not wanted . . .

849ACSO, here's the key statement that I think started us down this road:

Quote:
. . . . Justified is justified. . . .

That's very much like the line we see fairly often: "A good shoot is a good shoot." Both statements ("justified" and "good shoot") are technically true. However, both also very much oversimplify the matter.

In the criminal context, both statements overlook the possibility that the entity charged with making the decision on justification, whether it be judge, jury, or prosecutor, could (for example) take the firearm, modifications, or ammunition into account and that could color that entity's view on the shooter's state of mind. State of mind can be very important in criminal law.

In the civil context, those same items could be considered by the judge or jury to determine whether the shooter was negligent. Again, these things introduce another variable (weapon modifications) into an already-complex calculus.

Whether something is "justified," or "a good shoot" is the conclusion that a shooter hopes to get to if he or she ever has to shoot someone. It's not the starting point, after which all other factors are considered.

Spats McGee -

You are entirely correct, and the context in which you put that is EXACTLY the way it was meant in my "less wordy" version. Once it is found justified, it is just that, regardless of the weapon/bullet/method it is applied. To reach the conclusion of being justified, all of those things have already been weighed/considered. I don't see where that's such a hard concept to understand from the statement I made.

I applaud you for "stepping in", as your version did not use the words "ridiculous" or "nonsense", and was not the least bit antagonistic, unlike Mr. Ettin's version. It seems some folks just have to constantly appear "superior" to others, which I find both insulting and annoying.

 

[OldMarksman]

Once it is found justified, it is just that, regardless of the weapon/bullet/method it is applied.

If that is what you were trying to say, you are on point.

But do not let that lead anyone to believe that the "weapon/bullet/method...applied" would not have the potential to strongly influence (1) whether "it" will be "found justified", or (2) whenever it is determined to have been the result of negligence.

That is what this discussion has been about.

Spats just said the same thing in a different way, but it bears repeating.

 

[Sharkbite]

I guess my non-lawyer mind is struggling to wrap itself around this thread.

I was a LEO and have been a use of force trainer for longer then i care to admit so i do have a basic understanding of the subject. The actual Lawyers here seem to be saying that somehow my statement to the court that...

1. I shot that guy
2. I had to shoot that guy, because X,Y,Z
3. I absolutely MEANT to shoot that guy

Somehow there can be doubt cast upon those basic statements?

I guess my understanding of the "castle doctrine" and the "Stand your ground" laws lead me to beleive that a positive defense to the shooting (assuming it WAS justified) would protect the defender from this silliness.

The have the opposing councel claim i did NOT mean to shoot the guy that i have stated under oath that i fully intended to shoot reaks of STUPIDITY.

It sounds like a childs game of "yes, i did"..."No, you didnt".

 

[Glenn E. Meyer]

1. I shot that guy
2. I had to shoot that guy, because X,Y,Z
3. I absolutely MEANT to shoot that guy

I fail to understand why folks don't get your story may not believed based on the circumstances.

Why don't folks fail to see that your analysis may not be that of a jury of your peers and that they might think your cognitive and emotional processes led you to act in a what that is not justified? Why don't folks understand that various appearance and attitudinal factors will suggest that your mental processes were incorrect and you acted incorrectly?

This is an endless and sadly useless conversation as some people are unable to take the mental position of others in to account and continue to insist what they do must be seen as correct.

 

[849ACSO]

If that is what you were trying to say, you are on point.

But do not let that lead anyone to believe that the "weapon/bullet/method...applied" would not have the potential to strongly influence (1) whether "it" will be "found justified", or (2) whenever it is determined to have been the result of negligence.

That is what this discussion has been about.

Spats just said the same thing in a different way, but it bears repeating.

OldMarksman,

First, thanks for taking part.

That's what every statement I've made has said.

From my very first statement I have used the word "justified". The word in and of itself is past tense, indicating the process of justification has already taken place.

In another post, I plainly stated that I'm certainly not advocating modifying a pistol used for SD in such a way that it's UNSAFE, meaning could go off if bumped, dropped, etc., however, REASONABLE modifications made to make it easier to use efficiently by the end user shouldn't be considered "damning" in deciding whether or not to make your pistol more efficient/easier to use.

It's also worth mentioning, that like making the decision to use deadly force, the method/weapon/etc. used to apply it is the actors burden to bear through the justification process. So the modifications you make to your gun are your burden to bear. No one else's. That said, if the action of using deadly force is justified, the method becomes (or at least SHOULD become) irrelevant. I fully understand there have been cases where the weapon/method was assessed to lend to justification, or lack thereof, of the act.

A perfect example is a "string gun" when I sleep. If I set up a gun on a string pointed at my front door and it gets a Burglar while I sleep, I'm likely getting charged. Why? Same dead Burglar, same gun, same everything except the method. Justification is likely gone in that instance, even though it would have likely been justified had I been awakened by the burglar and pulled the same trigger with my own finger. Don't misunderstand, I'm not advocating using string guns, in fact the opposite. Deadly Force must not be applied without a human being's evaluation as to need, said evaluation being made AT THE TIME the force is applied.

Just so we're clear, and there's no confusion about what's "reasonable", I completely understand that reasonableness will ultimately (if it goes this far)be determined by a jury of your peers. It will likely be with the aid of the state, the defendant and expert witnesses injecting experience, opinion and technical information into the equation.

Anyway.............. I was saying the same thing as everyone else, just in fewer words.

 

[Frank Ettin]

It would be unlikely defense counsel would advise you taking the stand in the first place, which makes scenario even murkier (and your argument stronger as a result).

Actually, if the defendant is claiming self defense he will often need to testify.

As Lisa Steele wrote in her article for lawyers on handling a self defense case (see post 81 for links to her article):

...Often, the defendant will need to testify in order to establish his subjective belief about the threat and need to respond defensively....

...I was a LEO and have been a use of force trainer for longer then i care to admit so i do have a basic understanding of the subject. The actual Lawyers here seem to be saying that somehow my statement to the court that...

1. I shot that guy
2. I had to shoot that guy, because X,Y,Z
3. I absolutely MEANT to shoot that guy

Somehow there can be doubt cast upon those basic statements?...

Yes, doubt can absolutely be cast on such testimony -- if there is a good evidentiary basis for doing so.

In the context of a plea of self defense, that would be self serving testimony on the part of the defendant to support his attempt to avoid being held criminally (or civilly) liable. A prosecutor (or plaintiff) will always try to challenge a defendant's exculpatory testimony in whatever way the evidence might support.

 

[849ACSO]

Yes, doubt can absolutely be cast on such testimony -- if there is a good evidentiary basis for doing so.

In the context of a plea of self defense, that would be self serving testimony on the part of the defendant to support his attempt to avoid being held criminally (or civilly) liable. A prosecutor (or plaintiff) will always try to challenge a defendant's exculpatory testimony in whatever way the evidence might support.

I've seen this first hand in criminal cases. Actually, the lack of the other party (the one you shot) complicates things more than one would think, especially if there are no other eyewitnesses or camera footage (in the case of a police officer). When there's only one side to the story, folks look at it with a degree of "natural suspicion" to start with.

 

[Frank Ettin]

...From my very first statement I have used the word "justified". The word in and of itself is past tense, indicating the process of justification has already taken place....

No.

When used as a verb, the word "justified" is the past tense. But as you used it in post 62:

..and it is justified under the law...

it is an adjective. As an adjective it has no tense. "Justified" as an adjective means:

adjective acceptable, reasonable, understandable, justifiable, natural, normal, legitimate, logical, to be expected In my opinion, the decision was wholly justified.