Frank said:
And and I reject as "grievous error" the assertion by Armed that what he calls a "burst presentation" is not:
...Brandishing and/or a Defensive Display of a firearm...
As he, himself, described it, it is undoubtedly displaying a gun in a threatening manner (emphasis added):
...It is designed to show someone who is unarmed, but who you believe intends to inflict grave bodily harm or death, that you possess superior firepower, and that you will use it if they don’t comply with your demands...
His stated purpose in executing a "burst presentation" is to cause the person to whom the act is directed to fear that the actor will use the gun against him.
And the assertion that a "burst presentation" is somehow not:
...Brandishing and/or a Defensive Display of a firearm...
can not stand in light of the discussion of the Common Law definition of assault and both FS 790.10 and FS 776.12.
So considering that background, and considering the avowed intent behind the so called "burst presentation", i. e., to strike fear in the heart of a possible assailant that you will shoot him if he doesn't withdraw, how can a "burst presentation" be anything other than a threat. That is not fairly debatable.
So if one performs a "burst presentation" under circumstances in which he would not be justified to threaten lethal force, he will be subject to prosecution for assault, or menacing, or brandishing, as the case may be in the jurisdiction. But if one performs the "burst presentation" under circumstances in which he would be justified to threaten lethal force in self defense, his defense against prosecution for assault, or menacing, or brandishing, as the case may be in the jurisdiction, will be justification.
Threatening someone with a gun is prima facie a crime, no matter how you do it. Justified self defense is a defense to that crime.
I come before all of you seeking forgiveness, for I am only simple man with no legal background who can only speak in the plain language.
Please take special note of the prosecutions own words, where he says that I,
“undoubtedly displayed a gun in a threatening manner.”
He then sets before your eyes my written admission and bellows these are undisputed facts that cannot be called into question.
...It is designed to show someone who is unarmed, but who you believe intends to inflict grave bodily harm or death, that you possess superior firepower, and that you will use it if they don’t comply with your demands…
I ask that you examine my admission and take note of the prosecutors wordplay through his selective emphasis, which reads:
“…show someone that you possess superior firepower, and that you will use it if they don’t comply…”
YES. If these are the only words that you must consider then lock me up and let me rot. But now YOU MUST rely on ALL THE EVIDENCE IN ITS ENTIRETY, and not what is spoon fed to you by the prosecution as the most desirable.
A true and complete reading of my admission with (emphasis added):
...It is designed to show someone who is unarmed, but who you believe intends to inflict grave bodily harm or death, that you possess superior firepower, and that you will use it if they don’t comply[/B] with your demands…
The prosecution has told you this
“can not stand in light of the discussion of the Common Law definition of assault and both FS 790.10 and FS 776.12.”
Let’s turn our attention to these common laws, that the prosecutor implies that I seek to hide in the shadows of, and let me stand before all of you in its reflected glory:
776.012 Use or threatened use of force in defense of person.—
(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
The wording is plain and simple, I am justified in in threatening to use deadly force if I REASONABLY believe it’s necessary to prevent death or great bodily.
BURSTING is consistent with threatening behavior which would cause a person of ordinary sensibilities to fear death.
Ladies and Gentleman please note that I did not gloss over that my justification had to be REASONABLE - and you are the the only ones who may judge that.
The Reasonable Standard Instruction is that you must consider my "state of mind" and "perceptions" under the circumstances at the time. You must recognize that my surrounding events are relevant when assessing if Bursting was reasonable and necessary to prevent harm or death.
The facts in evidence have been stipulated to:
I am 5 feet 9 inches tall and weigh only 155 pounds
In the video, the assailant is 6 feet 1 inches tall and weighs 230 lbs.
He was facing me and there was no eye contact. It was as like his mind was elsewhere. It appeared to me that he was looking for an escape route or psyching himself up to act. Like he was mentally processing the situation. He appeared extremely agitated.
He was pacing, bouncing up and down, and rocking back and forth like in the ring, when boxers are warming up right before the fight. He just appeared to have that adrenaline pump going.
I was looking at him, not staring, hoping for that subtle unconscious friendly glance of acknowledgement, but it was the opposite. He was not only not making eye contact but consciously making an effort not to look at me by hiding his face with facial wipes, and slicking back his hair, and looking up into the air.
Every so often, when he stopped moving, he dropped into a boxers stance. To me that was a solid indicator of trouble, because that’s a fundamental defensive shooting position all conceal carriers are taught when drawing and shooting their guns during training. It’s in preparation for a defensive gunfight. He was doing the same thing; feet positioned shoulder-width apart, knees bent slightly, a "nose over toes" lean indicating preparation to launch.
He was clenching fists, popping knuckles, and rubbing and wringing his hands together. It was just so obvious to me that he was warming up, loosening his muscles and tendons, getting ready for a fight.
And then there was that thousand yard stare. Unnerving by itself, but in totality of everything else that was going on, well, it just made all my bells and whistles ring. He was looking right through me, never at me. It was that "faraway look”, like he had put himself in that "angry place". I could sense he was dehumanizing me.
And then he hovered like a linebacker. My conscious mind shut down and my gut instinct told me he was just a second away from hitting the launch button. That's when I yelled:
“STOP STAY BACK STAY BACK STOP DON’T COME ANY CLOSER”.
I wanted to gain distance immediately. He was about 25 feet from me. I dare not take eyes off him by turning around and running. I’m not fast, and I didn’t want him to sense fear. So I walked backwards - slowly - for fear of tripping. For a second I had to turn to get my bearings.
THAT’S WHEN I SAW IT.
He sprinted forward. I retreated about 10 feet but he was much closer now -about 20 feet between us.
May I approach the jury your Honor?
Pax: You may.
Ladies and Gentleman, of what I’m about to say, I stand before each and everyone of you so that you may look into the window’s of my soul. At that very moment I was in fear of imminent death or great bodily harm - and it was logical - and it was rational - and it was sound - and I will prove it was REASONABLE.
[Tick Tock Tick Tock Tick Tock Tick Tock Tick Tock Tick TockTick Tock Tick Tock]
Frank: Objection Your Honor! How long will the defendant stand silently before the jury.
Pax: armed?
Yes your honor.
Pax: Can you please turn from the jury and face me?
No your honor.
Pax: May I ask why?
They are still searching my soul
Frank: OBJECTION YOUR HONOR.
Pax: armed, please step away from the jury box and proceed with your case.
Yes - I’m sorry your Honor.
Ladies and Gentleman before turning your attention to FS 790.10, let me introduce what the prosecutor himself has described as the “Tueller data”:
Dennis Tueller (a Salt Lake City police officer) developed the exercise to test at what distances an assailant with a contact weapon could be a credible threat. But folks seem perversely want not to understand the real meaning of the Tueller data (and it is not a "rule").
The point Tueller was trying to make with his exercises is that an assailant 21(+/-) feet away with a contact weapon needs to be taken seriously as a threat. You need to take him seriously as a threat because (1) he can cover the distance between you and him in a short time; and (2) it will take you a roughly comparable amount of time to draw and fire your gun.
Your Honor, may we break for dinner?
Pax: Frank?
Frank: That’s fine your Honor.
Pax: Let’s convene in two hours.