The Canadian case I wrote up in MSW in  November 2021 (HERE) is now back in trial again. As expected, the case drew the interest of Canadian legal writers. See, for example, HERE and HERE.

Khill was acquitted in the first trial; the high court ordered a retrial. He is testifying as I write. So far, it isn’t pretty, see HERE and HERE. Those with law enforcement or military training — pay particular attention. Training in the CAN (mindset, recognizing hostile intent/ability, use of firearms) isn’t universal, it’s mission specific.

I expect the judge will allow the Crown wide latitude of incident framing and related argument. And, as directed by the high court, will firmly instruct the jury on how to consider the defendant’s role in causing the unintended result, including his opportunities to do things other than to unnecessarily go armed outside in the dark to confront a thief. I think the result the second time around is likely to be a guilty verdict.

What happens in Canada isn’t staying in Canada. I have observed several cases in the last year (in Florida and other states) where a “self-defense” incident has been too broadly framed (as to time and/or defendant’s behavior) and as a result, pretrial immunity was wrongly denied or a defendant suffered an undeserved conviction. To me those cases  are a harbinger of a wrong turn in self-defense law in the states.

For lawyers: I have written about incident framing and Florida law. See HERE, p.7.

“Life turns on small choices.”

William Carmichael

The federal “hate crimes” prosecution resulted in convictions all around, and life or essentially life sentences (on top of similar result for their Georgia convictions). No surprises. None at all. The U.S. Department of Justice view is HERE. Worth a read, whether entirely correct or not. I think the “three guys” will do their life sentence time “initially” in the prison system of Georgia. It would be fair to say they will most likely die in some prison.

One life needlessly taken and three lives horrifically altered because of poor decision-making. When they weren’t even “under the gun” to act. Families with lost or gone forever loved ones. Bad thinking on the MAY element of my deadly force paradigm. Worse on the SHOULD. Deadly force decision-making is far more a thinking person’s endeavor than it is a confirmation of equipment selection or a test of marksmanship. It should never be made foolishly by spur-of-the-moment lark, whether individually or in tandem with other bad thinkers. A possible universal mantra: Don’t open the door; don’t go outside.  See HERE.

We live in perilous and strange times. Deeper thought is imperative, as I suggested in 2020, HERE. Your neighbor’s property? Check your state law. You might have no privilege to use any force to protect it. Brandishing and gunpointing should never be taken lightly. See HERE and HERE.

Screw it up? Don’t compound it by saying dumb things to police (or letting others assert them) which aren’t so (like “citizen’s arrest” see HERE). A Florida guy named Michael Drejka made a similar mistake, see HERE. Resist the urge to chase, see HERE.

Aristotle had a lot to say about tragedy. He would surely agree that the tragedies that befall others provide the rest of us with a unique opportunity to reflect on our own mindset and values.

Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.

Some truth about the defense of justification (“self-defense”). Submitted for your consideration relative to the SHOULD of my deadly force paradigm, with a hat tip to The Tactical Professor‘s take on it.  (HERE). Contrary to media assertions that “Stand Your Ground” laws routinely exonerate the “guilty” — that is extraordinarily rare, if it happens at all. The prosecutor is about a 4:1 favorite. Almost always.

The “playing field” isn’t level; obtaining a complete acquittal is difficult, always an uphill battle, with some luck needed. It isn’t that difficult for the State to disprove (beyond a reasonable doubt, its burden of proof) a self-defense prerequisite (subjective or objective reasonableness, necessity, imminence), or to prove an unfavorable condition to put on the defendant (failure to attempt required retreat, aggressor status, excessive force). The State usually has more than one applicable criminal charge, and also backups, what are known as lesser included offenses. And then, in a multi-defendant case, there is a charge of conspiracy available, with all of its stand alone and complex body of law. And unpredictable jury verdicts. Defendants often feel compelled to testify to obtain the desired acquittal. That often backfires and provides the jury with reason(s) to convict. Continue reading →

It is as well known a case as was George Zimmerman’s. (I posted on his case shortly after his 2013 deserved acquittal, HERE). Court filings in the pending Georgia case can be found HERE. The trial will be carried live online and on TV channels. It is scheduled to start in October. Regardless of the outcome, the defendants’ tango with the criminal law will not be finished. They will also have to answer to a waiting federal “hate crime” and kidnapping indictment. (HERE). I expect noteworthy case events before October.

Some believe the Georgia case is an ill-conceived prosecution. Some believe the verdict the jury renders will turn on whether the victim was in fresh flight from the commission of a felony burglary.  Many following the proceedings believe the case turns on the legality of the defendants’ purported citizen’s arrest. (My MSW post on citizen’s arrest is HERE). Some have opined that the state is pursuing novel criminal law theories. I’m a doubter of all of that. I will grant them only that the Georgia case is factually unusual, and only appears more complex legally than Zimmerman’s. Continue reading →

The murder conviction of former Dallas police officer Amber Guyger was recently affirmed. In all respects. By an unpublished opinion of a Texas intermediate appellate court. It was no surprise at all to me and others who invested the time and effort to study the evidence and the applicable Texas law, and viewed the entirety of the trial and appellate argument, and read all available trial and appeal filings. Her legal arguments had little merit, and sadly, she, her post incident statements, trial testimony, and the indisputable facts evoked no favorable emotion for her self-made predicament. Continue reading →

[For the pre-2020 explanation and analysis of the MAY and SHOULD elements of my deadly force paradigm, go HERE and HERE].

There’s little doubt 2020 (yikes, it’s not over as I write this) has been the most unsettled year in several decades. For the LEO, and for nonsworn toters of less lethal or firearms. The year’s noteworthy occurrences (anarchist riots causing property damage and death and injury to innocents, foolish and criminal confrontations between ideologues (fake and real), stupid/criminal authority challenges to and attacks on LEOs, millions of new gun owners with limited ammunition and skills) are courtesy of a deeply divided citizenry and political uncertainty. And of course, add — just because criminals, mental illness, and an imported virus “lockdown.”

I spend about three hours daily reading reports of use of force incidents by LEOs and the nonsworn, and statutes and cases, from all over the country. The MAY has taken a strange turn in many places, compelling a rethink of the SHOULD.  LEOs, homeowners, victims on the streets, and Good Samaritans are being criminally charged for conduct in engaging in criminal intervention, effecting arrests, or defending property, their own lives, or the lives of others. Others, clearly criminal actors, are often not even arrested.  Some arrested are let go with an attaboy or apology.  Charges regularly appear political, or “social justice” inspired, not a good-faith misread or arguable interpretation of the law.  Obvious exculpatory facts and the prosecution’s burden to affirmatively disprove the defense of justification are ignored. I have noted striking ignorance/confusion by supposed law enforcers (LEOs, prosecutors, and trial judges) about the MAY.  The centuries old Grand Jury process is also frequently misstated or misunderstood. One can easily conclude that in 2020, judges and prosecutors are hardly expert on the applicable laws, and are not immune to absurd media and public pressure. The MAY has been missed altogether or rethought by them and thus isn’t necessarily what the statutes and case precedent demand. “De-escalation” is the new use of force g-d, regardless of whether it’s legally required or tactically sound. Or actually serves and protects the public.

Revisit your “self-defense insurance” decision, recheck your public attitude and actions, and risk tolerance. For those of you who already decided to bypass the SHOULD analysis and universally just apply the MUST (HERE), you’re probably already good to go. (Except when tactically, you’re not). As usual, it isn’t for me to tell you the parameters of your execution of the SHOULD (HERE). But, you might consider the mantras I propose when I  lecture: DBAD (don’t be a dick); MYOB (mind your own business); FSYG (forget Stand Your Ground); SP (speak politely); SYP (swallow your pride). For the sworn: Be creative, innovative, and adapt. Don’t lose sight of the noble mission and the oath you swore.

The MAY is being inexorably altered by ignorance and bad judgment. When you rethink your SHOULD, tweak your CAN (mindset, equipment, tactics). First up, consider carrying less lethal; maybe two forms. I recently replaced my decades old 10-pound ABC fire extinguishers.  One is now on the floor by the front door, hidden from view.

As for 2021? Expect much worse. Buckle up. If you think there’s a light at the end of the tunnel, remember, it may just be that of an oncoming train.  (Hat tip: R. Lowell).

Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.

Det. Harry Callahan:

‘You’ve got to ask yourself one question. Do I feel lucky?”

The power and process of arrest should never be taken lightly. By the person making the arrest, the person being arrested, and by the rest of us, in whose name someone’s liberty is abruptly taken away. The U.S. Supreme Court and many other courts have noted that an arrest is serious, traumatic, and never forgotten; even when no charges are brought, or an arrested person is acquitted.  The handcuffs of a cop killed in the line-of-duty may be carried (with lights/siren activated) to the scene where the killer has been apprehended. They are ceremoniously ratcheted down on the murderer to confirm the arrest — in the name of the fallen officer. Even though the cop killer is being transported to the morgue.

I have argued in court (unsuccessfully) that a looming arrest serves no purpose and should be judicially preempted. I have surrendered clients for arrest and been granted unusual courtesy, being allowed to; confirm the cuffs are “loose,” remain during the “booking” process, and accompany the client into a holding cell. I have pleaded with prosecutors and LEOs (successfully) to “undo” the arrest of a client (sworn and nonsworn). I have accompanied cops as a civilian observer, and then, and otherwise, observed many dozens of arrests. I have assisted cops in several arrests, while armed myself.  An arrest is of symbolic importance; it suggests that the law is irrefrangible.

The inspiration for this post is the recent homicide (resulting from two men fighting over a shotgun) which put the Georgia “citizen’s arrest” law into the spotlight on the self-defense stage for the nonsworn. “Citizen’s arrest” in this country derives from English common law more than 700 years old. When I last studied the subject, it was lawful in all or almost all states. Either by default to the common law (with or without nuances imposed by a state’s modern case law), or by statute. For this post, the term means the warrantles taking of another into physical custody and detaining the person against his or her will under threat of force, until custody can be transferred to sworn law enforcement personnel. (Discussion of aiding an LEO is the subject of a 2014 MSW post of mine,  – HERE – ). Since the threat or use of force is intrinsic to every “citizen’s arrest,” the topic lends itself to analysis using my paradigm (the principal related MSW post is linked to open in a new browser page):   CAN  –  MAY  –  SHOULD  –  MUST  Continue reading →

Charlaine Harris:

“Don’t go looking for trouble; it’s already looking for you.”

Don’t open the door.  Don’t go outside.  Both (usually acts of “tactical” stupidity and foolish bravado) are almost never a MUST; are contraindicated by most of the SHOULD considerations; likely affect the MAY negatively, and; almost certainly make the CAN more difficult and dangerous. So, just don’t. It’s really that simple.

A scenario I find quite often in my daily scan of nationwide use of force incidents is one which involves a resident (“defender”) who goes from inside to outside the castle. To investigate or otherwise respond to a noise or event, or to confront a suspected or actual burglar, vandal, trespasser, or personal property thief. The scenario often concludes with the defender’s use of deadly force. The defender claims resort to deadly force was necessary because of the malefactor’s response when discovered/confronted. The defender may or may not have brandished a firearm as a warning and/or gunpointed the malefactor, before using deadly force. The attendant dynamics and legal principles for this common scenario are often misunderstood and incorrectly analyzed. By drive-by lawyers (real and “keyboard”), “social justice” activists, and of course, journalists. Continue reading →

Alexander Pope: “A little learning is a dangerous thing.”

The video of the shooting of Markeis McGlockton by Michael Drejka:

The video of the defendant’s (eagerly and foolishly given) lengthy interview (a/k/a his confession negating the legal defense of justification) by sheriff’s deputies is HERE and HERE. Definitely worth your time and study.

After appropriate prosecutorial review, Michael Drejka was (not unexpectedly) charged with manslaughter. Trial (streamed lived, I watched it start to finish) lasted one week. The unanimous (6-0) verdict, GUILTY.  Although there were ample cringe-worthy and chuckle moments provided by the lawyers and experts, the defendant received his guaranteed “day in court” and a “fair trial.” (Some educated observers might say maybe not. I do not share here my thoughts on defense counsel effectiveness, erroneous rulings by the trial judge, jury instruction errors, or improper prosecutor argument points I made mental note of for an appeal).

While Mr. Drejka might not have expected it, this was the verdict I expected. But, I thought the jury would have more difficulty than it apparently did. (At the time of this writing, I have not seen any comment by a juror who deliberated). Drejka, who was free on bond, was routinely remanded immediately after the verdict was published (at about 10:45 p.m. Friday, August 23, 2019). Sentencing is in October. It is a safe speculation that he now expects to spend 15 or more years in prison.

I offer some somber “lessons learned” imparted courtesy of Michael Drejka, in no particular order:

• When speaking of or using deadly force understand it is the taking of human life, half the power of G-d. Speak of it and treat it for what it suggests and represents, for it is reserved for when “in the gravest extreme.”
• There is no one size fits all or most, automatic response, universal menu, or script for the lawful use of defensive force.
• A legal mistake in the use of force, the paradigm element MAY (HERE), is not a defense. Don’t seek or accept legal advice from unqualified sources.
• A mistake in using deadly force, vis-a-vis the paradigm element MUST (HERE), can result in a criminal charge.
• While display or actual gun pointing may be lawful (as nondeadly force), it doesn’t mean that discharging a firearm and shooting someone (deadly force) must follow, or will therefore be lawful.
• “With great power there must also come great responsibility” is not just some comic book theme. Don’t be a dick; swallow your pride; mind your own business; speak politely in public; forget “stand your ground.”
• Michael Drejka’s case is not like George Zimmerman’s. But there were lessons to be learned from his ordeal as well. (HERE)
• Don’t reveal the contents of your head or heart other than to your attorney, or give an interview or do recreations or demonstrations to investigators without counsel’s advice and presence.
• Don’t speak to cops in their jargon. You’ll probably get it wrong. In any event, what you say won’t likely be relevant or helpful.
• Understand the critical concepts of imminence (HERE) and necessity and the requirement for their presence in the use of defensive force.
• Know the law of your state; what is nondeadly force (HERE) and what is deadly force (HERE).
• “Less lethal” (HERE) is always a good force option in “confrontations” that do not have criminal act predicates. Avoidance of such incidents is even better.
• If you carry half the power of G-d on your hip, study and give deep consideration to the paradigm element SHOULD (HERE).
• The so-called “21-foot rule,” your resort to the supposed “force continuum,” the allegation of “disparity of force,” and most any other concealed carry or shooting class lingo, no matter how brainy or tactical it sounds, will not justify the stupid, unnecessary, or excessive use of force.
• Learning how to shoot is not learning when you lawfully may.
• Though it may not be legally “required,” communication (a verbal warning) is nevertheless often a very good idea before using deadly force.

“Win” or “lose,” the courtroom is a sad, mostly unforgiving place. Even for those who “just work there.” Lawyers and judges labor hard and long to appear in court with all they can muster with their head and heart. But only the criminal defendant may have to leave the courtroom in restraints from a special door which leads to the lockup. Never forget that.

Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.

The lawfully justified use of force usually requires reasonableness, necessity, and imminence. While those words may be understood as they are commonly used, they also have a “legalistic” definition. This post discusses what is meant by imminent in the context of the defense of justification. Imminence is similarly applicable to the use of non-deadly or deadly force.

A classic dictionary definition of imminent might be: about to happen or happening very soon. Something that will happen in the very near future is often characterized as imminent. Is it something that is happening now with more of the same or similar likely to come? Yes.  Is it something that will happen in a matter of a few seconds? Yes.  Could it be something that will occur in a minute? Maybe. Is it a deadly danger that is inevitable, but which will occur some unknown time in the future? No.  (The concept of imminence may be relaxed in a “battered spouse” case — that legal aberration is beyond the scope of this post).

Attorneys might demand a definition in “legalese.” They would (correctly) define imminent in the context of self-defense as — an apparent immediate danger;  what must be instantly met with a response, because it cannot be effectively repelled by calling for or depending on the assistance of others or the response of law enforcement.

Continue reading →

[An attorney consulted me about his “self-defense” case.  His client had wielded a large, heavy shovel, shattering his “assailant’s” radius and ulna. Permanent disfigurement (surgical scars) and minimal function loss resulted. The defense was to be “I used lawful non-deadly force against unlawful non-deadly force.” . . . . . . Good luck with that I told him.]

State-specific definitions and peculiarities aside (including, if any, role of actor’s intent), ask someone what is deadly force, and you will likely hear the correct answer: force that is likely to cause death.  As an afterthought or, upon prompting, the person may add (correctly): or great/grave/serious bodily injury/harm.  I write here about that aspect of deadly force. Great/grave/serious bodily harm or injury is often loosely described as that which is significant or substantial physical injury; an injury that will likely be greater than minor or moderate harm. For “likely,” think probably, something having a chance of happening greater than 50-50.

State statute and case law may define deadly force only with a bare-bones sentence, and define great/grave/serious bodily harm generally or specifically.  Let’s look at some examples (taken from a cursory review of statutes, appellate court cases, or court-approved jury instructions): Continue reading →

Long ago (more than 25 years), I got a call from a stranger, an on-duty cop. He said his name, where he was calling from (a locale not a quick drive), and who had recommended he call me (a DUSM I knew; I found out later he was standing nearby). The caller then said this: “I just shot someone in the line of duty. . . . . . . . . .” I was able to conduct about a 30-minute “interview” (today I would call this a “debrief”) of the client (attorney-client relationship can be established without formal engagement agreement or fee payment; the cop understood he was speaking with a licensed attorney in confidence for the purpose of obtaining legal advice). He was not within earshot of anybody on the scene; however, I assumed others could see him.

I “found” my notes from that conversation. With some minor rewording and formatting punctuation, here are the questions I put to the client (answers and some of the follow up inspired by his answers have been omitted to protect the innocent): Continue reading →