Massad Ayoob "Judicious Use Of Deadly Force"

okay let's talk about deadly force first the definition of deadly force or a lethal force the terms are interchangeable and will appear differently in the codes in the statute deadly force a lethal force is that degree of force that a reasonable person would consider capable of causing death or great bodily harm it is that degree of force which a reasonable and prudent person would consider capable of causing death or grave bodily harm why do we not fire warning shots well we can give you a list of reasons an arm long but one of them that no one seems to mention is it's an act of deadly force if you fire a gun somewhere in the direction of another human being is that not the degree of force a reasonable person we consider Kate bullet causing death or great bodily harm within the last year in Manchester New Hampshire we had a man who fired a warning shot fired it just like on TV elevate the gun slightly put it into the air it strikes a woman on the porch of an apartment building in Manchester the bullet enters her heart and she dies from that warning shot anybody want to speculate on what that old boy chances were in court okay people it was a case of a person possessing a power they did not know how to command and tragedy resulted from it okay is that degree of force that can cause death or grave bodily harm the statutes from the 50 states may describe grave bodily harm differently let me give you the layman's explanation that will cover you in all 50 crippling injury crippling injury at least one state says any broken bone is grave bodily harm does that mean if one of you comes up here accidentally steps on my foot and breaks my little toe I can blow your ass off according to that statute book it it that statute is poorly defined Alaine injury okay the use of deadly force means you don't fire unless you are authorized to kill that human being you do not fire the gun unless you're in a situation where you know you're on solid legal ground if you shoot and kill a person on the other end of the gun so let's begin here by defining the the levels of homicide if you will as they're seen through our law and through the the common law from which our law derives now first let me tell you I'm not an attorney if you want legal advice go see your attorney I don't give legal advice I'm not a law professor you want to learn the law go to law school what I am and what I'm certified to do is a leave a lethal force instructor and I teach lethal force I teach the rules of the road thus far every single attorney has been through the program told us at the end they learn more about deadly force at lfi than they did at law school and will ask the attorneys in this class if that was true this company by day I would like to believe that's because you know we're great instructors actually we're arrogant enough to believe that we are great instructors but it's mainly unfortunately the fact that in law school deadly force law is just a tiny drop in a great sea of tort law contract law and much more frequently applied criminal law the average attorney will never try a homicide case except perhaps in moot court in law school of those who do the criminal law practitioners the specialists in the field I've met a number who never defended medicine men who fired them self-defense in any given year I will accept and in many cases take to trial approximately 20 justifiable homicide cases which seem to split about 50/50 between armed citizens who fired in self-defense and police officers who fired in the line of duty and in my opinion are being wrongfully charged with some degree of homicide or wrongfully sued and a wrongful death action and generally based on the attorneys I've interacted with I've handled more self-defense case is done the great majority of the criminal defense bar and it's from that experience that we speak here I am a designated prosecutor with the Grantham Police Department because New Hampshire to the best of my knowledge is the one state that remains that allows a layman to be a trial advocate if he is a police officer and has had the special training to do so statewide the police prosecutors are prevailing and approximately 90 to 95 percent of their cases against the the fully empowered defense bar which grooves among other things something we launched suspected cops know more about law and lawyers but mainly it proves that if Wright is on your side and truth is on your side no matter how good the other guy is if you get that truth across to the Trier of the facts you are going to win and the truth will set you free I think you know me well enough by now to realize I am NOT Pollyanna so take it from me when I tell you this the truth will set you free never lie the saying in America is suck one [ __ ] you're a [ __ ] sucker forever you tell one lie in a trial you're a liar for ever and for that moment from that moment on your credibility is down the chute your life is down the chute that gurgling sound you hear is your freedom going down the toilet as every nickel of your state you have a wart for it for your children going into the pockets of some scumbag who the night he attacked you his only estate until that had been a buck knife and a heroin syringe you've got to know the ground you're walking on and a time you draw the gun you're walking on ice what we're going to try to do here is teach you to walk with the ices thick ok the levels of homicide will begin with the one that's approved justifiable homicide justifiable homicide when the ruling is a justifiable homicide the tires of the facts have said in essence you were right to kill him you were right to kill him they're all but saying you would have been wrong if you hadn't killed him now they'll never go that far the reason is an American law there was never a duty to kill at least for the private citizen that can be argued with law enforcement but with the private citizen there is never a duty to kill there may be a right but never if you see Charles Manson standing over Sharon Tate with a meat cleaver you say to yourself hey I have this 44 Magnum but I don't want to get involved no one can criminally charge you for that you'll have to spend the rest of your life every morning when you shave looking in the mirror and see in the face of the men who let an innocent person be slaughtered because they didn't have the courage to deal with it even though they had the means but you'll never go to trial the right to kill that is largely what this course is going to be about telling you when that right exists when is it right to kill a human being but for now the verdict justifiable homicide means you are correct and firing that gun of that human being the next level down is excusable homicide excusable homicide it is becoming an archaic concept at law an excusable homicide the Trier of the facts judge endure jury have said okay it probably shouldn't have killed them but under the circumstances anybody could have made the same mistake if you find it kind of hard to picture a situation like that now you know why it's becoming an archaic concept at law in the states that do have it we're seeing the excusable homicide verdict applied in a situation of an accidental discharge of a firearm an accidental shooting that could be traced to a malfunction in the weapon a mechanical malfunction say okay you were still an idiot to have allowed it to point at the guy but you couldn't have expected that it would go off when somebody bumped it so yeah excusable homicide okay next up the one you're most likely to face in a self-defense shooting where they don't believe it was self-defense is manslaughter manslaughter when the verdict is manslaughter the tires of the facts have said okay we know you didn't kill them intentionally we know you didn't have any evil intent but the fact is you acted with reckless wanton disregard for human life as a direct result of that someone died who should not have died that is manslaughter manslaughter means you have acted with a reckless and wanton disregard for human life you reasonably knew or reasonably should have known that your actions would endanger innocent human life you did it anyway and someone died it is manslaughter you guys get out of here at five o'clock tonight you go to the local gin mill you're sitting here tossing back to Johnny walkers he said I can't believe I paid all this money so that little a wrap could told me I can't shoot criminals and get away but he scoffed down about eight Johnny walkers and you head home going northbound in the southbound lane and you hit a station wagon full of guns it's manslaughter and you're going for it particularly in New Hampshire you are going for it that's manslaughter next stop is murder what distinguishes murder from manslaughter is the element of malice ma Li si e malice the death of a human plus malice equals murder by malice we mean simply evil intent or criminal intent there are many forms and many but not all states you will have murder in the first degree premeditated murder and premeditated murder that means you coldly planned the death of another a lower degree lifts a second degree murder might be okay you didn't plan to kill somebody but you were doing something evil you shouldn't have been doing and in your rage you shot and killed this human being sorry jack that's murder too when you coldly planned and premeditated the death of another society says anyone so cold-blooded that they could do that is a greater danger than society than the person who acted out of passion and therefore must be punished more highly must be sanctioned more rigidly in short must be put away for longer and some states murder two does not get you the death penalty and murder one does some but not all states have capital murder capital murder and that tends largely to be a function more of the victim than of the act they'll say okay it's capital murder if you killed a law enforcement officer or prison guard in the performance of his duties capital murder if you assassinated a political figure capital murder if you murdered the victim during an act of sexual assault or in the course of the kidnapping capital murder there is also felony murder felony murder means in essence you are committing a felony and someone died now when you went in you and your buddy went in a holdup that 7-eleven okay you had malicious intent so that means it wasn't manslaughter when the guy died it was murder but you are committing a felony and someone died felony murder my assistant and I decided cheese we're not getting enough money from this lfi class let's augment our salary let's knock over the 7-eleven on the way home we realized to our horror there was a trained man behind the 7-eleven counter who said screw Southland that says I can't carry a gun in here I'm exercising my priorities my prerogative as a man I'm going to carry a gun we say stick him up he goes BAM and smokes My partner and I go oh [ __ ] and drop my gun you know who's going for felony murder Wow I committed a felony someone died and I'm the one who falls for murder every now and then the justice system works folks let's go back to the one we're looking at here today justifiable homicide when it is when is it justifiable to use that weapon now before we begin understand because so many people don't the awesome power that you have as an armed citizen in this society read your statute books read your criminal codes your RSA is your penal code you possess a power that does not exist in this country and the highest arms of the judiciary and the highest arms of the practice of medicine or of the church you possess the power upon your own summary command and judge but without review to take the life of another citizen if these certain circumstances exist they create justifiable homicide now if someone were lying brain-dead in the hospital no one doctor makes that decision the family consults the attorneys of the family consult with the attorneys of the physicians and the attorneys of the hospital it goes before the hospital's Board of Regents may well as you've seen in the pit recent pass go up to the United States Supreme Court itself before finally that authority is given to pull the plug you've seen the most vile murderers in America the men who are the living arguments for the death penalty that I myself find controversial when they are sentenced when they are guilty beyond doubt of the most atrocious crimes against mankind there is an automatic appellate process that will cost an average of 1.5 million dollars apiece before society says alright pull the switch on Ted Bundy and Ted Bundy when considerably beyond the 1.5 you possess the power to say no I don't have time for peer review I don't have time to take this before the Board of Regents I will shoot and kill this human being and my society will hold me harmless because I acted within the law and with that enormous power gentlemen comes an enormous commensurate responsibility I remember this always in society with a gun or any other icon of power power and responsibility are commensurate power and responsibility must always be in a dead equal balance when one prevails over the other we see injustice and we see tragedy why are you here all of you had guns to protect yourself and your others before you came here you didn't come here for me to make the decision for you you realized that it was your responsibility to protect yourself and your loved ones from what might be the lethal assault of armed violent homicidal criminals you realize that enormous responsibility could not be answered without the power to exercise countervailing Dudley for Yourself unarmed men do not fare well against armed home invaders we do not need rocket scientists to figure that out this is why we have an armed police in America so if we'll fill that responsibility you needed the requisite level of power but with that power comes with it now another awesome responsibility that balances it brings the responsibility to you not to allow that weapon to fall edge one authorized hands how many times do we read in the newspaper child playing with father's service revolver slays sister slaves playmate the majority of guns used by criminals in this society are stolen I hate to say it but a large number of them are stolen from people like you you did not keep them under lock and key in societies from Great Britain to South Africa when you are gone is stolen it is presumptive evidence of criminal negligence on your part and you are required to prove that they went to great lengths to steal that gun including peeling open or blowing your safe they say what do you mean you left you left a revolver just laying in a drawer and left the house unattended with just a wimpy little bloody lock on the door it's criminal negligence for allowing that to be stolen in this country that does not prevail although it is beginning to attain in states like Florida I have mixed feelings about that if if some very determined delinquent child is going to break through all the locks in the house and get that gun I don't think you should go to jail for it if you left a loaded gun in the drawer with a babysitter and her boyfriend could find it and they started playing with it an eight-year-old child is shot in the neck and left quadriplegic for life because the idiot boyfriend the daddy knew was going into that house and daddy had told the babysitter don't take in never occurs to Daddy fire the goddamn babysitter I did that case in Illinois eight years ago they sued the manufacturer of the gun because you see what had happened the boyfriend is going through the parents drawers to see what's worth stealing he finds a little Sterling Arms 3-8 pulls out the magazine and the eight-year-old boy the one responsible person in the house says that's my daddy's gun put it back I mean as we moved the magazine there was a live 380 in the chamber and which the boy says it's empty see and pulls the trigger they sued the gun company because you know this is America nobody nobody can ever possibly be responsible for awful things that happened to them the gun company Sterling Arms wound up going under as a result of the settlement in that lawsuit that struck me is a strange alignment of priorities and of justice how many of you think the father is the man who's going to have to look at that child and know who was really responsible for them that is the kind of awesome responsibility that comes with the gun there are I've been caught in the middle of this whole polarized gun issue because the people on the left call me a crypto-fascist they tell women yes if you are attacked by a rapist you have the absolute right to shoot him down like a dog that is one of your options I've got people on the right who consider me a crypto communist but I don't know as a matter of fact the Second Amendment does not mean you have a god-given right to carry a loaded gun in a shopping mall where my children and you guys children are the backstop anyone who carries a gun in public does so for one reason he has the anticipation however remote that one day he may have to draw that gun and fire it in public I want that person to know when they can and when they can't I want them to know their limitations when they have to fire and my kid is over here in the shopping mall I want them to have proven to someone that their bullet will fly true I will not strike my child over there your right to own a gun is an absolute right if you're not a convicted felon or in that case to carry in public where your family and mine is the backstop by God is a privilege that is the level of responsibility that we're talking about here you will live forever after with the knowledge that you entered a human life you know we have our propaganda just like the service has theirs how many of you all ever been on the service and a war time did you notice the first thing depersonalized the enemy the enemy is subhuman they're not Japanese they're Japs then I'll Vietnamese they're gooks their targets kill them all make them die nothing are the more if you can you kill the more will reward you with promotions an hour an hour and Tokyo and medals and all that okay so we ever do that we find ourselves we weren't referring to scumbags and scrotes and perks they're human beings at the moment of the attack he might be the lowest scumbag that ever crawled out from under a rock after he's dead you'll find they've all got a mother remember Ted Bundy's mother's last words to him you'll always be my precious son how many of you could have pulled the switch on Ted Bundy how many of us could have done it in front of his mother ask yourselves this it is the poem of the gun and the firing of the shot does not end there this is one of the myths that you get from what I call the warrior Prince mentality that you know we are the forces of good we are the white knights out there against the evil hordes of barbarians and boy we're going to just face them down at high noon in the desert and to walked in and one walked out pistols for two coffee for one that's [ __ ] this is America it's the death of a citizen and it is so treated by the society it is so treated by these courts you damn well better know what now if you want to live the other way I suggest you get yourself a castle in the desert and declare your own principality and live there because your laws ain't going to fly no place else power and responsibility let's examine the power and responsibilities of a police officer Vesuvius citizen and the use of the gun there is one critical difference actually the use of course one critical difference the standard for the police officer is necessary force necessary force have been any notes the police may use necessary force to fulfill and acquit their duties the civilian may use only equal force for civilians it is equal force I'll give you an example this coming Saturday you go out driving through Grantham New Hampshire you see the 35 mile an hour speed limit signs you say that's cool I've got my fuzz buster that's not for me as you're going through at 75 miles an hour the blue lights come on behind you I wearing a somewhat different costume than I am wearing today come up to the left door of your car and we have a discussion and I discuss with you that you are about to be summons for speed and you get out of the car and start doing things like this to my body and explaining to me that you pay my salary now even before I say to you really if you pay my salary you're the [ __ ] and you talk to about a rates even before we do this you are going to experience some new feelings that will begin in this probing finger and if you decide you're going to take a swing out knee with your bare hand the little funny shaped baton and the belt is going to come right out of the ring you have just volunteered for PR 24 Pathan practice your arm will enjoy a new relationship to your shoulder socket that it is not previously experienced and your mind and if you say excessive force the courts will hold that I used my lawfully issued tool of arrest with which I am appropriately trained and certified to overcome your resistance because that was the necessary force to do the job that I was out there to do as a sworn police officer remember power and responsibility the officer can use more power than the civilian because he has a greater responsibility if I were a civilian careless I am out of state were my police apart powers do not apply unless I'm serving a warrant or locally deputized and there's a fender-bender accident until the other guy come on pal can even share his papers google you that starts doing one of these I grab that self same PR 24 baton put him in the running arm lot was aggravated assault I physically assaulted a man with what those statutes call a deadly weapon to wit a bludgeon even though I didn't him with it and that could be seven years at the expense of that other state why necessary versus equal power versus responsibility as a police officer the badge goes on my shirt my responsibility is to seek out and find the malefactor to chase him down to physically lay hands on him and place him in custody and overcome his resistance and handcuff him and search him and transport him to a detention center all of which you find out the first time you do it to someone who doesn't want it done is a hell of a lot more difficult than just convincing and not to give you a hard time as a civilian you have no such obligation you have one very simple one keep yourself and your family from being unlawfully hurt if you can just say hey get out of here pal or I'll hit you with a PR twenty-four baton you can do that well I shouldn't say oh well if that's your attitude never mind we'll forget the ticket just if you leave we won't hurt each other okay the badge grows wings I go for dereliction of duty and cowardice that after that that I okay so we understand what we're talking about the power and responsibility the greater responsibility of the officer authorizes some greater power in a deadly force situation there's not a hell of a lot of difference you will see it to some degree in the use of deadly force on fleeing felons under the prevailing case law of garner versus Tennessee we'll discuss that later the California Supreme Court has held that the US Supreme Court decision in Garner does not apply to private citizens I think once that gets a little higher the people in Washington that we call the Supremes are going to say California always was weird of course it applies dickweed but we'll discuss that later okay when can you use deadly force I'm going to give you assert that you know every state words it differently I'm going to give you one that will cover you in all 50 states we'll cover you in any country that adheres to the English common law we'll cover you in any country that here's to the Dutch Roman concept and we'll probably cover you in the Soviet Union and that is this I want you to put every word of this in your mind and not just than you know I want it in caps I want it in your forehead like a woodcut and want to appear like a digital readout in front of your eyes every time you even think about drawing a gun on another human being and this or any other society the circumstance that justifies homicide is this immediate otherwise unavoidable danger of death of grave bodily harm to the innocent immediate and otherwise unavoidable danger of death or grave bodily harm to the innocent immediate otherwise unavoidable danger of death or grave bodily harm to the innocent is the one circumstance that justifies homicide that justifies the use of deadly force they've all got to be there that's not an five out of six components ain't bad that doctrine don't fly for us all of them have got to be there the danger must be immediate if I say to you you dare to come to my class wearing a Jeff Cooper belt buckle if you're back here tomorrow I'll kill you well explore your legal remedies later but I suggest you not come back here tomorrow because you knew you were liable to create or be involved at least in a killing situation and you went in there anyway and the ancients built laws against dueling the ancient laws that finally banned the code duello should when two men agree to enter lethal combat whichever one survives is culpable he ain't the winner he's a different kind of loser one goes on the ground one goes into jail that's the way it goes must be unavoidable it must be unavoidable I say hey one day I'm going to blow your ass one yes I sound like Pro action time to me you can't do it that's not the danger may have been there but it was not immediate to be a clear and present danger it's got to be otherwise unavoidable otherwise unavoidable okay unavoidable how many of you are from Massachusetts okay you may recall in the literature that prior to the early 1980s there was case law from the Massachusetts Supreme Court on the books and the Baystate that said we don't care about the English common law doctrine that your home is your castle even when you are attacked in your home you are expected to try to crawl out a window to get away before we issue self defense that's not what it actually said let me tell you what happened there the case was Commonwealth versus Lynn Schaefer Lynn Schaefer was in a common-law marriage with an abusive son of a [ __ ] it was a classic spouse abuse situation the man was a karate jock you know had constantly been beating Lynn Lynn unfortunately apparently was something a common commonly see in that situation your second-generation victim because she had grown up believing women are second-class citizens women exist to serve men mom he's beating me again oh honey that's just the way it is try to be try to placate him that I thought that I on this particular day the husband the common-law husband who happens to own the house said Lynn I've had it with you this is my house I want you and your [ __ ] kids out of here when I get home and if you hear I'll kill every [ __ ] one yeah she never called the police she called mom mom said Oh Lynn you know how he is just getting calm down that I've been up that up and when he got home he looks at when he goes okay [ __ ] I told you what it was going to be and the assault begins and when realizes Mother of God he means it she managed to marshal the kids downstairs under the playroom she struggled against them got the door locked behind her he breaks down the door and in the playroom she grabs his 22 rifle off the wall and performed what I consider to be the indicated response shot him down Lynn apparently was not effectively defended in court Lynn Shafer was found guilty of manslaughter and it was the avoid ability factor and unfortunately in the wording of the courts when it went all the way up they said look she could have done this she could have done that they mentioned in passing she could have climbed out the window of the playroom that I thought that God they had to put that in there because now it's it's seen at least as case law whether or not it truly reflects the principle involved and Lynne was found guilty of manslaughter now the governor at that time in his first term was Michael Dukakis we shall haunt a try to restrain ourselves from Michael Dukakis jokes we shall just be grateful that he was not elected president who we might all of drank rubbing alcohol but I digress and he at that time was married to a woman who'd done and now I believed was you know the most salvageable part of the duo I always thought Kitty Dukakis had class I always thought she was a bright woman a strong woman and if she had run instead of a president or instead of her husband I might have voted for and the reason she drank the rubbing alcohol is let us pause briefly could any of you live with a dweeb like Michael Dukakis and not abused substances to survive alright we don't know this for sure but the word is that Kitty Dukakis sat down with her husband said Michael you know this this Lynn Shaffer case the mother who shot and killed the abuser who was going to murder her and her children Michael you do politics for a living right and you'd like in the next election at least one or two women in the Commonwealth to vote where if you let her go for this I may reconsider voting for you and all we know is that Michael Dukakis on the day of her incarceration at MCI Walpole Massachusetts Correctional Institute orchestrated a brilliant press conference in which he commuted her sentence to win the votes of the feminists and the Massachusetts gun owners and gun owners Action League said Lynn this is very important but the appeal we still need the appeal and when Shafer who had been through an exhausting process made a decision no one in the world can blame her for she said I can't do it anymore I can't carry the if you need an appeal do it yourself we all can't do an appeal without in the Pelham's Kenya it remained on the books until in a brief transitory flash of lucidity the Massachusetts electorate elected John King as governor who said this is [ __ ] and pass through the Massachusetts legislature the castle doctrine which in the early 1980s said screw dukakis's Courtney it's maybe Massachusetts but it's still America if you're attacked with lethal intent in your home we have a right to be you absolutely have a right to defend yourself there and attacked in your home you need not retreat and Massachusetts would now come back in a line with the other 50 states and with every common law country from ours to Canada to Britain and that remains attacked in your home where you have a lawful right to be you need not retreat but bear in mind what was the core of the Lindh Shaffer case it had nothing to do with her climbing out the window it had to do with her having at least 12 hours notice that there could be a killing situation never calling the authorities never going to the shelter and never getting the kids the hell out of there what the judge was saying was Lynne yeah could have avoided this and you learned from Lynne shavers mistake it's got to be unavoidable it's got to be danger of death or grave bodily harm not danger of a boo-boo I say my god you're a pink peach color shirt offends me take it off or I'll slap your nasty fate he can't reach for the gun and blow me away it's not a threat of deadly force got to be immediate otherwise unavoidable danger of death or great bodily harm to the innocent some of the statutes leave that out the statutes can leave that out let's assume that the gun fired a couple years ago on Cole Boothe New Hampshire with Christopher Wilder the serial murderer went to ground and was killed in a struggle with state trooper Leo Jellison it turned out a little bit let's assume jealous owners partner were behind their car let's assume Jellison had not had the enormous courage that he did he knew who this was he knew this was probably Christopher Wilder he had every right to draw his issue two-and-a-half-inch model 66 on that guy went for his Python shoot him down like a dog and he also knew if this man dies many families will never know what happened to their children that man with his compassion and with his courage risked his life and Dan near died with a bullet in the liver trying to capture that son of a [ __ ] alive but let's assume he had cared a little more for himself than he did for those victim and had taken a felony stop position at the car you're on the gun and Christopher Wilder start shooting with a six-inch 357 and you drive up and say my god those state troopers have that poor lone gunfighter outnumbered and they're going to kill it why I'll come to his assistance and shoot down those nasty unfair state troopers well in fact the man you acted to protect wasn't immediate otherwise unavoidable danger of death or great bodily harm but he wasn't innocent how would any of you have shot the troopers to protect Christopher Christopher is where he belongs now okay and the tragedy is we don't know where the bodies are buried okay so it's got to be danger of death or great bodily harm for the innocent why do we bring that up we see again and again mistaken identity shootings he had the case in New York City of a good old NRA member life member a good old Gunny like us went to jail because he didn't quite figure out how that work how many of you on here I paused briefly or NRA members okay so um I'm the life number y'all get the American right from the magazine right tell me the truth how many of you read the armed citizens callin before anything else and that's what the editors filed out in their polls all the members - unfortunately there are a few people out there whose life fantasy is to one day shoot themselves right in of the armed citizens column the soul boys driving through New York City consciously committing knowing full well he's committing the felony of the violation of the Sullivan Act he's going to school 45 Auto with him in the front seat of his truck he's a long-haul trucker that he's driving down the street he sees the scruffy looking guy and a GI jacket and a 4-day beard wrestling with this beautiful young woman who was screaming help rape he's trying to rape me guy goes this is it here is my chance you know Charlie Brown saving the little red-haired girl from the dragon right whipsawed is 45 and comes to find out he just threw down on a by scott who was in the act of arresting a hooker you see the way it works is when vice cops arrest hookers they don't the hookers don't say ah you got me fair and square they yell rape the guy went to jail for that because he didn't know who was who and you're driving along and you see a big guy beating this crap out of a little guy who's on the ground what's your first gut reaction for me first day in the schoolyard bad bully beating up the innocent victim and only at the end do you find out he wound up shooting the man his size who was the unarmed victim of the man my size who was trying to stick a knife in him while he was punching him in the face okay if there is the slightest doubt don't shoot gentlemen remember this it's not when in doubt shoot it out it's if there is the slightest doubt hold that weapon silent immediate otherwise unavoidable danger of death or grave bodily harm to the innocent are we clear that is the circumstance that justifies homicide there are essentially three criteria that will create that situation and again they must all be there it's not a two out of three deal those criteria are these easy way to remember them is the acronym a o J a Oh J it's coincidentally enough stands for administration of justice but in this case stands for ability opportunity and jeopardy by the way I was not being facetious in that previous comment the reason I think that they went to those particular terms that began with those particular letters remember until o fi deadly force training was reserved for the police academy police officers are used to courses titled administration of justice 101 aoj 202 aoj 303 it was a convenient acronym for the officers to memorize you know instead of means method equipment you know that a oj ability opportunity jeopardy let's define ability means the opponent possesses the power of deadly force he possesses the power to kill it a [ __ ] the opponent possesses the power to kill or to [ __ ] a power can take many forms there can be a weapon okay mechanical means does it work if I attack this lovely young lady here with this knife do I have the ability you darn betcha I don't have the knife but I have this dirty Harry signature model 44 Magnum that's accurate do I have the ability suppose I have neither when I violently attack her do I have the ability yeah are you ever allowed to kill unarmed people and you have a kill an unarmed man a self-defense yeah the concept is this disparity of force and it's recognized in the law disparity D is PA RIT wide disparity of course this is the doctrine a little-known doctrine that permits the use of deadly force against an ostensibly unarmed aggressor D is P AR ity disparity of force now obviously it does not exist by itself where she would have shot me down when she walked in but when the opportunity and the Jeopardy factors key in disparity of force can be the final the final ingredient in the formula the a of ability it can appear in several ways one of them is force of numbers okay I'm minding my own business walking down the street and across the street or four guys wearing Aryan Brotherhood t-shirts it's a you a red a red we go kill you why's there across the street no problem I'm leaving now well thank you for the warning gentleman I'm out of here okay but once the assault is year and unescapable is for them and one of me can I use the gun about you if there's three of them and me can I use the gun no question two of them and me we're getting arguable here we're starting to get to the level where air I've gotta prove in court that they were two really good really confident guys one of them and me probably not probably not okay so force of numbers is one now one thing I've got to remember that with that comes one of the so-called Warren doctrines Warren it comes from Warren on homicide Warren on homicide is the Bible if you will of homicide law it is about the size of an unedited King James Bible it is so I can that most people who are not criminal law practitioners even though they may be law school graduates don't even know it exists they just kept walking by it in the law library one of the water and doctrines which explains disparity of force is that against a gang here's good news and bad news okay there's a lynch mob of Aryan Brotherhood guys outside who decided they're going to lynch little a rat okay for having a slightly different skin color okay when I start shooting the Warren doctrines say any member of the mob shares the responsibility for the fear of the mob has caused and therefore shares the general jeopardy of the lawful defensive response in other words you don't need all the wording look here's that's in your textbook anyway here's the deal twenty of them attack me I aim at the one in the front and I miss and I get the one in the back life is rough for him as an intentional member of the mob he was one of the things that caused my fear cause my reasonable response and for causing that reasonable fear he now shares the general jeopardy that accrues to the criminal of their unlawful assault that triggered the lawful defense yeah that's the goodness let's say this for it I draw my six-shot revolver and I'm having a really good day today bang plop it's three of them you guys already decided as my jury I'm still legal bow now there's two or arguable but how what the hell they're big they're meaning they're ugly now there's one can I shoot the last survivor the Warren doctrine says no the Warren doctrine says that at the moment the last of us can Patriots fell force of numbers creating disparity of force no longer existed and I was now Manoa now no and no longer justified are we defensible we are defensible but we ain't ironclad let me give you my definition of those ironclad means we're totally in the right we are totally on the side of the Angels that means maybe a 90% chance of acquittal because in my experience there is always at least a 10% disaster factor that somebody from Aryan Brotherhood is sitting on the jury if somebody hates my attorney okay that my attorney looks like him and somebody on the jury was frightened by Ernest Hemingway when they were a child okay something that is going to send me down the chute okay that's ironclad defensible means flip of a coin you might prevail and you might not okay bottom line now what is your defense we invoke Mr Justice Holmes who said detached reflection is not demanded in the presence of an upraised knife I was firing so fast I didn't realize they were all down when the last one went one or two was still twitching what the hell what you don't say is my model 29 went full automatic using credible defense okay so force of numbers can be one form of disparity of force what's another able-bodied against the disabled I've got one aggressive young male who is viciously attacking me and I just get back my knee surgery that is scheduled in December by the way for the video we are doing the state August what was the date August 6 1990 now you're credible with this image okay and I'm sitting here in my wheelchair and I can't escape I got no mobility and I can't fight this guy who's my size and my strength is beating the crap out of me and I can't even roll with the punches because I'm in a wheelchair all of a sudden the defensibility starts to open if I reach for fluffy the pet revolver okay so the disabled against the able body but again all these assume that the other factors are their opportunity and particularly jeopardy it is a violent obviously aggressive assault okay male against female that's another one why when I was unarmed if I violently attacked her was she allowed to take me down the case law has held and the case law has recognized because by God whether you like it or not ours is the best justice system and I find out that's it's fair the system knows what it's doing it recognizes first the greater size and weight of the average male versus the average female now let's assume she were bigger okay let's assume she she just got off the the US Olympic female weightlifting theme which I obviously wouldn't qualify for even with the sex change okay and I violently assault her they say wait a minute she can benchpress the little guy never mind the law knows that males generally have greater upper body strength and all that but the big factor is what we call cultural predisposition cultural predisposition ECU l tu RAL predisposition expelled like it sounds p re d is POS IT io and ing i means simply this boys are thought to be you know was a fraudulent snails and puppy-dog tails rough and tough girls or sugar and spice and everything nice if you don't believe me ask her when she grew up when her brother was a pushy arrogant son of a [ __ ] dad said way to go you're aggressive you're a wet a kid yeah you'll be team captain and when she tried to be reasonably aggressive lasat my idea no one likes a pushy Erica [ __ ] okay that's wife in America okay the court pulls in short that men are culturally predisposition in the society to advise an aggression females are not and given that history of that pre positioning toward violence when all the other factors are there Woody Allen attacks the six-foot tall Olympic lady tough [ __ ] for woody she's got it we pause just briefly on that we pause just briefly X number of people asked can I use a gun and self defense against rape because you've got all these people that say you know rape is assault with a friendly weapon hohoho Kenya sure you can sure you can't because raping sex rape is violence if it was sex they would have known enough about it to have someone of the opposite sex who wanted to be with them and they wouldn't need to commit rape would they sex violence not sex is the element in rape now we pause briefly what justifies homicide immediate otherwise unavoidable danger of death or grave bodily harm to the innocent and in the history of rape when has any victim male or female ever submitted unless the rapist gave them the alternative of that or immediate otherwise unavoidable death or grave bodily harm these concepts mesh rather neatly we pause briefly according to the US Department of Justice in the average year out of all the rapes that I reported which unfortunately are only the tip of the iceberg most of them are not done with the old boy with a you know black hood over his head and a 44 magnum in his hand in a given year 79% of the rapists will be unarmed 79 percent of the men who succeed in committing the act of rape will not be armed with a purse a weapon they will be armed with greater physical strength with ferocious aggression with threat with force of numbers and given disparity of force and she has a gun you don't need Nick the Greek to tell you she's got better odds than she thought so long as she is armed about 14% of those rapists will be armed with what we call a contact weapon the knife the club the belt or nylon stocking wrapped around the throat like a ligature to throttle them in a compliant a contact weapon versus a gun we all familiar with a certain tacky ethnic joke about people dumb enough to bring knives to gun fights so now that's another fourteen percent with the armed woman again it'll need a PhD from Caltech to figure out what the odds are right at seven percent of the time the rapist will have a gun well the old saying was God made man and Colonel Colt made him equal the new saying among feminists is you know God made women equal and Smith & Wesson keeps them that way but given a man who believes hey I am in charge here and I need not focus on intimidation I need to focus on sexual gratification against someone who is waiting for that gun to be set down for just one second and she is better trained than he again what kind of odds is Nick the Greek gonna give is she equal or better than equal at that moment better than equal the anatomist and physiologist Ashley Montagu argued and has treatise the natural superiority of women that they in fact are naturally superior for a number of reasons you know it's kind of hard to argue well I don't know how you fellas feel about whether women are superior but put it this way what would you pay to live on the average seven years longer and be naturally multi-orgasmic okay I digress but if we got the worst-case scenario as 7% of the time it's an [ __ ] with a gun who ain't expecting a response and you have a trained woman who understands control of her own destiny or maybe 14% [ __ ] with knives and clubs and Garrett's and she's got a piece or 79 percent of men who physically abused women and figure all they need is their present I kind of like my wife carrying a gun my daughters are already learning the concepts and nothing will make you a feminist like having daughters I kind of like that so I digress male against female yes disparity of force physical size and strength okay nobody ever actually wrote down a chart at least one that was accepted by the court that quantifies okay when is the other guy enough bigger and stronger that that qualifies as a deadly weapon and you can draw them the closest that's come to that was and as yet unpublished work by Justi David Meyers j ust I'm sorry j ust II David Meyers common spelling son both it appears in the book called defensive tactics with flashlights by John Peters defensive tactics with flashlights by John Peters now first if you all have a kill light type flashlight in your car with some of you two are using it for self-defense pay the ten bucks and get that book anyway it teaches you how to do it not go to jail for bashing somebody said it more to the point even if you don't own a flashlight even if you see in the dark like in ninja buy this book so you can document that you read that one page by just the David Meyers because what it says is a woman her size against a man his size as what they characterize as a mini versus a monster and they give her only a ten percent chance of surviving without severe injury and a hand-to-hand confrontation is that something we can conceivably work with for mindset yeah by the book and read it in fact the courts themselves have not yet created any such comparative chart some people feel that's a nebulous standard I prefer to think it's a realistic one each situation needs to be taken on its merits by the Trier of the facts the system works I'll accept that it is benevolently nebulous but you've got to be able to document you know be able to show the juries share the truth get that truth across to the Trier of the fact okay from for men my size I am little and weak you guys are big and strong I don't see anybody in here big enough larger than me that I could justify in a fist to fist situation going for this pistol unless I were to become disabled you just kicked me in the bad knee I'm down now I see the shod foot coming down like this and in many states the shod foot so applied is a deadly weapon in the statutes itself I realize that okay a kick in the stomach while I'm free standing even a kick in the groin while free standing does not usually result in a permanent injury but when one is down or against a wall and cannot roll with the impact it is known to me that the crushing force they're in now creates lethal and crippling injury and before this day is over at least before this week is over I'll show you the corpses of people who died that way at that point now the gun is justified in that fast breaking situation other than that if it's just both of us standing up okay King Kong Bundy yeah 500 pound professional wrestler yeah I can take it I'll never mind that he's a professional wrestler if he's not a professional wrestler and I still shoot King Kong Bundy if he's going to assault me he is 500 pounds he is three of me and change I don't care that he does for a living if those hands get on my furry little body it is gonzo and if all the other elements are there we can do it but he is a professional wrestler now this is another factor in disparity of force if the other man is known to you as highly trained and the destructive arts if he's known to you as a professional boxer a black belt in karate a trained Navy SEAL or ex-ranger who was taught to kill armed sentries with his bare hands if he's an unarmed combat instructor and it's known to you if he violently attacks and the other elements of opportunity in jeopardy our present is yours and you can take it what's the trick you got to know it's got to be known to you it's one of the exclusionary rules you can't drop this old boy to find out afterwards oh thank god he was a black belt I'm safe no you're not you didn't know at the time the judge will say we're sorry counsel but we're not wetting the jury notice you see your man doesn't know it Roy your man knew he was shooting down the Deacon of the church okay we're judging him for what he did and the decision that he made with what he had to make it with and it could have been the deacon and it might be the Deacon next time Council so if he didn't know it the jury ain't going to know what tool after the verdict everybody says in a wall gee how do we tell if they really are a martial artist what secret stance do we look for well I don't if I see the guy come up to me and go you know what that says one of two things he's watched the Karate Kid too many times because nobody ever taught Ralph Macchio to fight I mean we cringe we watch those movie okay or he's so smart he realizes I have some small background in the martial arts and as soon as I see him do this I will collapse and hysterical laughter and be unable to defend myself one of the other you want to know how they're probably going to stand if they know what they're doing or stand like this okay one of some of our people use the Jack Benny position because how does it look to the witnesses concerned I'm concerned of many things I'm concerned that this hand can block and grapple and concerned that this hand can block and grapple I am concerned that people are clear if that I wasn't the guy who started the fight I like the Gary clue coup its position which says please don't hurt me please let's become my open hands and I don't want to have to fight and block and grapple and do that twist takedown to screw up your entire body but you don't know how the guy is going to stand how do you find out if he's a black belt it's really tough I was probably too simple for you let's do this guy's fiction to fight you next up actor you know what's he going to say no risk probably gonna say yeah and what do you said no but that's too simple for you you'll probably never do it why did you put a gun on that unarmed man he was a black belt how did you know we were already told me Toby to easy disparity of course that or the mechanical weapon creates the factor of ability okay we've discussed the ability factor next up is opportunity now ability meant he possessed the power to kill it a [ __ ] with opportunity we're saying he is capable of immediately employing that power he's capable of immediately employing that power I've got the four guys marry and Brotherhood across the street they're saying we're going to stop you little a rat backside into the ground they certainly have the ability but they don't as yet have the opportunity they cannot do so from a distance okay with the gun the gun is a remote control weapon almost any distance in line-of-sight if he has the gun all the other factors of the air he's threatening it's clear he's going to attempt to shoot you or shoot at you take it okay range is not normally a factor with the remote control weapon okay we're going to find opportunity being the the factor when you go to trial is going to be with the contact weapon the knife the club you know the the item that's picked up and bludgeoned or clubbed and we say to club something that means to pick it up and swing with it okay that video camera over there is not a weapon guy picks it up and tries to crush my skull with it it is a club to video camera it's a weapon and we shall perform the indicated response okay the opportunity factor generally will be a component of two things distance and obstacles distance and obstacles now one of the big attacks that you're going to get in court particularly in what the street survival caliber press people call a knife culture where more than ever you're likely to face a man with a knife will say ladies and gentlemen of the jury our London was not in fact in danger he had Metz himself and the ballistics test proved that the deceased was 10 feet away and only had a knife that is a standard phrase play here only had a knife once more in court I'm going to barf they're going to have to give me courtroom barf bags I'll say ladies and gentlemen of the jury he says he was a deadly danger but you'll notice he sits there fat and happy and unmarked and you've already seen the photographs of my client laying with the giant holes and his body covered with blood on a stainless steel autopsy table were out London put him carefully arrange to hide the prison tattoos but they never show those photos from jury okay and they will by the way see two photos of the deceased they will see his high school graduation picture where he looks like a choirboy they'll see the body laid out here arranged to hide the prison tattoos and they'll see you sitting here fat and happy and that is a visual contradiction of the deadly danger that you're saying you face that you're saying warranted your justifiable use of deadly force it'll probably pick up the knife and say ladies and gentlemen of the jury I am the stated ten feet away from the defendant and I hold the alleged knife of the deceased and look I can't hurt him with it ladies and gentlemen of the jury he's not in danger is he that's all he faced and you know he's saying his 45 automatic his army horse pistol was the same level of deadly dose of the knife how many of you ever cut yourself with a knife how many of you ever done you're still here aren't you how many of you ever got shot with a 45 automatic I'm not surprised ladies and gentlemen of the jury I'll tell you exactly what happened he was a coward he wanted to take the life of another human being that he perceived as a lower class citizen and instead of paying the money to a safari master and a professional Hunter and shooting an animal in the jungle that might actually have hurt him he said well here is a lower socioeconomic life-form that I can shoot down for my sport and I'll just pay the money to my attorney because yes see he wasn't in danger the opportunity factor and if you don't explain that that is not within the common knowledge now the common knowledge means what would the average person know with their common sense if it's not within the common knowledge the term is beyond the Ken of the jury beyond the Ken of the jury of the average layperson does the average layperson believe but if I'm 20 feet away from you with this knife I can kill you it's going to require expert testimony to clear that up you can't always count on expert testimony some states like Louisiana have given the judges so much discretion an expert testimony that we're just not seeing it apply there the judges are saying look we've seen so many experts that work Wars there were prostitutes that said whatever they were paid to say I'm not letting them in a my quantity I'll tell you as someone who has appeared very often as an expert witness against the others I'm here to tell you a lot of the expert witnesses are in fact prostitutes why are so many experts prostitutes because so many lawyers are pimps but I digress I know and I say that seriously because what you've got let's say your average expert on deadly force it's probably going to be an ex-cop he retired from the police department making let's say a salary of 35 $40,000 a year and all of a sudden he finds out you can make up to $2,000 a day and once he starts doing it maybe he only takes the good cases but this is America when your income expands your outgo expands to fill it and soon you've got to pay the upkeep of the Mercedes soon you've got to pay the watchmaker to fix your Rolex soon you need another $2,000 suit for court and the lawyer says no no the truth no I don't want the truth I want you to say that my guys right or I won't give you no money just like the pimp says no Susie it can't live at home and watch the Disney Channel you've got to go out and spread your legs for my customers won't give you no money so I say that advisedly the attorneys the pimp and the experts the prostitute and if one accepts that frankly there are one or two out there that are Mustang Ranch all by themselves and if I'm one I must have a heart of gold because I think it's a god they many free cases but I enjoyed it so I do it for love okay bye girl you may not be able to have in the expert testimony there's one person you know will be there to testify the more you know the more you can defend yourself I'm going to commend us your material witness and I get run over by a truck the day before trial you're still not out of luck you got these videos for backup but you got you to say in your own words this is what I knew in the old days we used to believe the guy had to be right on top of you with a knife or a club before you could fire I will refer you and in this class you will do something called the tool ER drill the man's name was Dennis tular Tue ller was one of the great things that came out of survival training in the last decade tu e ll er - ler is a sergeant with the Salt Lake City Utah Police Department and is also a staff instructor at Jeff Cooper's excellent pistol craft Academy gun site now one of your graduation drills at gun site is you'll start facing a target seven yards away the old standard FBI close contact distance 21 raise your hands will be shoulder high you'll have an exposed holster not a police security holster and not a concealed weapon a exposed quick-draw holster and on the signal they'll give you 1.5 seconds to draw and hit that target twice which I'll tell you frankly is a reasonably good test of pistol craft skill I'll tell you also based on our studies with the police security holster or a concealment holster carry truly concealed it's going to go closer to two seconds when you factor in the reaction time and Dennis being a street cop instead of just the weekend pistolero okay I wonder if this whole boy was coming at me with a butcher knife I wonder how far he would get before my - 45 slugs magically vaporized him because it's the magic bullet which frankly he doesn't believe either so he took one ranch one class of students on the ranch and he said okay gentlemen we're going to flip-flop put your guns in your holsters take this knife stand on the 7-yard line when I give you the signal you run forward and stabbed that target we're going to see how long it takes and it took on the average 1.5 second now it's 1.5 here and 1.5 there again you probably don't need a pocket calculator to figure out we are now in the land of the Pyrrhic victories at the end of 1.5 seconds he's got four inches of his steel in your chest and you've got two rounds from your gun in his and the best you can hope at that point is to take him with you that is not my book of rules okay I ain't here take him with me my job is to send him on ahead the best of all possible worlds Oh we'll control it so no one has to go so he realizes what am i doing putting this knife against a gun but if anybody goes he goes I stay we learned from that we found also that 1.5 seconds was slow and here's why human factors something we often miss on the shooting ranges human factors the men in the original tular study which was published in 1983 and swat magazine and an article titled how close is too close of course we're starting on the line and on the beep they'd run forward stem there was now an artificial reaction time involved on the street the other man doesn't have to react to a signal you have to react to his self-initiated assault second these men had no vicious homicidal intent when you get a knife in your hand and you're running up to something your instinct is you come running up to you and that ain't Street folks that ain't real real life this guy's going to come up and he's going to take you like grant took Richmond he's going to hit you like a steamroller we found here not using you no cops or anything like that using ordinary citizens some of them septuagenarians we found right at one point one point four we have found a number people who could close 21 feet and deliver the thrust in one second flat or less we had elderly people who qualify for Social Security do it in two seconds flat we had one man with a broken leg in a walking cast in two seconds flat this tells you something so opportunity factor you must know the reality not the common knowledge because the common knowledge is good enough only for common people who don't carry guns and don't bear the higher standard of care when you bear the higher standard of care it carries with it the higher standard of expert knowledge you know what they do not but when they sit in judgment of you you must be able to share that with them that's why it's called a trial of facts that don't happen by itself let me emphasize remember before I said the truth is critical to the truth allows laymen to defeat trained attorneys when it's on their side it doesn't do it by itself there's two things you must have the truth on your side you must get the truth across to the jury I give you this analogy you are gun people many of you have seen on ESPN or read an American handgun er magazines about men like Rob Latham I've been privileged to shoot against the best in the world Mickey Fowler and his prime I've shot against Robbie Latham who has not yet reached the height of his powers and I absolutely believe he is the fastest and the most accurate pistol shooter who has ever lived he is beyond the old videotapes of Fitzgerald and men like that when you watch him on the slow-motion replay on ESPN he's still faster than us at full speed okay but i postulate this to you you have got to shoot and a man on man one time steel challenge match against Robby Latham and the winner takes the other man's estate and everything he ever worked for for his family in his life and it's the style to you like not good is the sound to you like snowball in hell time and can any of you relate to the layman going before the jury for the first time in his life he's never been in court and he's on the other side guys tour of and now up in front of him in battle and that's just what it is because trial law is the last true bloodsport comes a professional trial attorney who is skilled and what is called destructive cross-examination and he gets to ask the questions and you don't get to ask back while you get to do his answer is that a little like you right now going out and shooting for your entire estate against Robby Latham is that's just what's at stake in the civil lawsuit that follows the shooting okay let's say okay we hope that old age and treachery do equal youth and skill let's assume that when you go out there against Robby Latham we can arrange that you have live ammo and he has blanks does that sound better that's not a whole lot better and when you've got to get up on that witness stand and you're up against the equivalent of Robby Latham a master trial attorney and master cross examiner but you have the truth and all he has is a fabric of lies and prostitute experience that's just what you got you got the live ammo and he's got the blanks but it don't do it by itself okay it's not an article of faith if you get out on that ranch and you say hey I got live ammo he's got blanks okay lose this [ __ ] you know you know the closed eyes scream pull trigger method okay you spray the area and Robby goes back - here we go downrange and the judges find it's an equal score you've both got zero when it goes to the second stage of judgments who wins on Form and if you sit here in court armored and your self-righteousness you say I'm on the side of the Angels I cannot possibly lose and the other side presents an artfully woven fabric of lies and you never bring the truth up you're going to fail the other man will win on form and you will be one of those and there's more than one who went to prison even though you're innocent and I say this to you as a prosecutor I say in my experience I absolutely believe about 97% of the accused or either guilty as charged or guilty of some lesser included offense and the frightening thing through politics through malicious prosecution through lies by the witnesses sometimes through incompetence sometimes to incompetence of counsel or investigation and sometimes because the innocent guy didn't know how to handle it three out of a hundred innocent accused people adds up to a hell of a lot and this one person is going to be there to get you out and that is you okay so the opportunity factor the man must be capable of closing that distance now dr. Covey in the back is about 21 feet for me is he going to reach me now in 1.5 seconds he has an addition to distance obstacles he's going to climb over several of you so if who may be trying to restrain him so who may be saying hey go for it kill him I don't care but he's got to climb over them okay so that will slow him down the opportunity factor how would a reasonable and prudent person who knows what you know and who shares your training assume that you were an immediate danger from this man if so now the second criterion is fulfilled the knife in his hand was the ability his ability to reach me with it now creates the opportunity factor and it brings us to the third and final factor that must be present jeopardy the single most misspelled word on the exams by the way je o P AR dy and the guy from Los Angeles Times took the course he misspelled jeopardy je o P AR dy and jeopardy means this Japanese he is acting in such a manner a reasonable person would assume he intended to kill or [ __ ] not assume would conclude a reasonable and prudent person would assume he intended to kill or [ __ ] jeopardy will typically be the factor when the opponent has guns as opposed to contact weapons knives and clubs it seems to come down to opportunity the guys we live in an armed society you can't shoot everybody who's got a gun or none of us would have made it here I was standing in front of you with a gun I've got the ability Smith & Wesson 44 Magnum I have the opportunity factor you are all within range beyond up why have none of you shot me to death yet one or two of you it's because you figure you haven't got your tuition worth yet and you may be able to restructure the class and still salvage something but most of you that's because I have not done anything that placed you in jeopardy jeopardy means he's acting in such a manner the reasonable and prudent person would assume he intended to kill or to [ __ ] and when all of those three are there when all those factors are there the Triad is complete the triangle ability opportunity jeopardy closes together like an arrowhead it is pointed at you with otherwise unescapable deadly force and when those three are present we have the situation of immediate otherwise unavoidable danger of death or great bodily harm from the innocent to the innocent and now homicide is justified now your judicious use of deadly force is justifiable before the courts questions or comments so far jeopardy means the opponent is acting in such a manner a reasonable and prudent person would conclude that he intended to kill or to [ __ ] so they've all got to be their ability he possesses the power to kill a crippled opportunity he's capable of immediately now employing that ability to kill a [ __ ] and jeopardy it is clear beyond doubt the son of a [ __ ] is going to do it when all three of those are there the pull of the trigger is now warranted question say under disparity of course you have three guys and they have you corner and they're closing on you if you wait till they begin their assault on my experience you know once you get me on the circle things are gone away no well let us discuss that that's a very good one for point they're coming toward him he's got the gunner I'll tell you what let's take the two friends away I don't have this I don't have this and you've drawn the gun you found me in your house and you drew that gun which you had a right to do because you didn't know if I came in with a gun you don't know if now I've taken the kitchen knife out of your drawer he draw that gun and you said get out of my house what you got a right to do cops get fired for that you got a right recognize what the luxury this is I say no I'm going to take that gun and I'm going to shove it up your ass I start coming forward what have we got here am I an unarmed man or in real world is this a contact weapon assault I'm going for his gun once I touch him just as if I had touched him with the club just as if I had touched him with the knife when I touched that gun action beats reaction I'm going for a weapon if this revolver were loaded and was laying there I said you son of a [ __ ] I'll kill you I started going for the gun does he have to wait for my aunt to get on the gun if this gun is in his hand at the same distance I look at that gun and I see a son of a [ __ ] I'm going to kill you what changed we fall back to the reasonable and prudent man now this will sound a contradiction to what's in the book let me tell you now about this course this is not 40 hours on the book and the gravest extreme it is 39 hours beyond it okay there are things I could not put in that book I can control who comes to this class all of you had to show me the concealed carry permit a letter from the DA's office the letter from the chief something that showed me you're a certified card-carrying good guy who passed a criminal record and character background check I cannot control who sees a videotape or who reads a book which is why some of the videos including what you're listening to here will probably never be offered commercially I will not create the formula for someone to commit murder and use our skills to escape by making it look like a justifiable homicide in the book we quoted from what the judges told us if he's going for your gun you gotta wait till he's in control of the gun but unfortunately once he's in control of the gun you no longer have anything to shoot him with we ran us through Westlaw and Lexus Westlaw is the case law computer data bank out of Case Western Reserve School of Law we said give us the cases there were none now certainly West law and Lexus are not entirely complete they touch the high point the follow-up research also found none we know they're happening what does this tell us they're not going to court there being no build at the jury level grand jury left when the grand jury returns no true bill the grand jury is saying your honor mr. prosecutor no crime has been committed here and in fact they've ruled justifiable homicide okay here's the deal when the man that you've confronted in your home and drawn the gun on charges you with the gun he has an advantage over you you don't know who he is he could be a putz with a two-digit IQ who couldn't fight his way out of a sandwich bag with brass knuckles okay he could be a trained mercenary you know who kills sentries and it's the offseason so he's doing burglaries this year look we don't know but he has the advantage he knows who both of you are I know who you are you're a homeowner who's got a right to own that gun who's going to right to point that gun at me to defend yourself against my felonious intrusion and I Know Who I am and when I come with it toward him I'm telling him something that can reasonably imprudently be interpreted in only one way does a reasonable and prudent person assume that I'm an itinerant Smith & Wesson armored I come to check his weapon give me a franz bettmann what you've got to assume which I have no choice but to assume is that I believe that I have the skills to disarm you and turn that weapon against you I have whatever reason to believe that and if it's good enough for me it's good enough for you and I would suggest that you take it I've said that in front of the senior attorneys general of the state of California there was no argument I've said that in discussions on TV and radio and of all the people who could have called in from judges and lawyers no one argued and the reason is it is true glad you brought that up let's touch on another point here that I think is critical for you to understand and that concept is this what we're talking about in justifiable homicide we're talking about something called an affirmative defense have that in your notes we are speaking here to one affirmative defense AFF IR ma tive affirmative defense interesting concept now I remember high school civics 101 they told you the burden of proof is on the state they must prove you not guilty beyond a reasonable doubt all you got to do is sit there anybody recall that anybody have that [ __ ] or it go off even then okay there are two reasons that was BS and what I'm going to say is going to contradict your high school civics teacher and one of them is I've been to a hell of a lot more homicide trials than during their high school civics teacher but mainly the concept of affirmative defense to see we're not using your typical criminal defense here okay I say you killed it what's your plead you say not guilty well usually you get the Saudi or Totti defense the Saudi defense of Saudi di has some other dude done it with Toddie defense somewhat more specific that other dude then it you ain't going to say that you shot a man who attacked your spouse with a knife was going to kill them if you hadn't fired you're going to say well I didn't do that a one-armed man did it and ran off into the night lieutenant Gerard it wasn't me oh it's an affirmative defense and it's this you're saying I've done it I've done the actor accusing the other but I'm justified ladies and gentlemen of the jury I'm that rare person who was allowed to kill human beings on the streets of America I'm the one person allowed to carry out the death of a citizen because I did it in self defense and it's a justifiable homicide and your honor tell them that tell them it is justifiable here's the good news we have another two edged sword here the two edges of the affirmative action or strike that the affirmative defense sort are these the up side the strong side for us it is a perfect defense an affirmative defense is what is called a perfect defense by that I mean this and a perfect defense we have a situation where the judge tells the jury if you believe what the defendant said you must find the defendant not guilty not you can not you might not as one of your options you must find the defendant not guilty you realize what you're asking for you're asking the judge to come this close to a directed verdict on a principle of law and what the judge is saying through you as he unsheathed the sword and shows you the other side is this okay you're asking me to invade the province of the jury and tell the jury that if they buy your [ __ ] you you must be found not guilty you're asking me to virtually direct the verdict I can do that son but we charge a high place in here and the price we charge is this affirmative defense shifts the burden of proof an affirmative defense shifts the burden of proof you're saying yeah I did it I undertook with these hands the death of a citizen but I'm allowed it can't just sit back and say go ahead state do your best I don't have to say nothing you've got to prove it beyond a reasonable doubt the burden of proof now de-facto is upon you to show that it was justifiable to show that the criteria of the law the immediate otherwise unavoidable danger of death or great bodily harm to yourself or others who are authorized to protect was in fact there so those are the two edges of the affirmative defense it is a perfect defense and that's why the other side hates it the other side hates this is why you'll seldom be charged with murder in a self-defense shooting okay if you are involved in a self-defense shooting in a community with a district attorney is on the national board if he had gun control incorporated he wants to make an example of you ain't gonna charge you with murder okay he's going to charge you with manslaughter one reckless wanton disregard for human life there are no justifiable accidents have this in your notes team justifiability is a defense reserved for intentional acts justifiability is a defense reserved for intentional acts there are no justifiable accidents in action at that best is excusable and not always that and it shifts the burden of proof what is this telling you you shot a man and self-defense you've been routinely arrested as you can expect to be after all the cops don't know you're the good guy all we know is we have a dead citizen and you're standing there holding the smoking gun with the hell did you think was going to happen and the attorney they get you says shut up they can't prove a thing don't say a goddamn word they can't prove a thing and I'm going to tell them it was an action in any way fire the son-of-a-bitch now that man has just given you the verbal warning he's going to send you to prison because he doesn't know how to defend innocent men by his ass now your best analogy when you share this with others the the most commonly understood affirmative defense in America today is seen in libel and slander cases because we're celebrity conscious society the celebs are always suing People magazine and National Enquirer for libel that I thought I thought I okay libel is a good example the the perfect defense against a charge of libel is one truth absent malice it was true I didn't lie about him it was true and I didn't say adjuster heard him there was a reason I felt people had a right to know truth absent malice is a perfect defense and the judge will tell the jury if he told the truth you believe it was absent malice Hamas fight and not guilty I was sued for that I was sued for hundred thousand dollars for lot David Zucker V Masada you they said Ayub is guilty of libel because he promulgated a document in which it stated that I D hooker was a liar and a thief attorney told me that we had once to be a problem in the case he said I don't think you're going to be able to keep a straight face in a witness stand what Eric okay but we prevailed why do we prevail the judge in that federal court case it is apparent that au was not lying and he didn't say it out of malice he was warning other people that this man who was attempting to you know steal their services in his opinion was a liar and a thief I kill T now we just walk into there get a prove it you had no I had to show the documentation he is where he stole and he is where Eli and I want and zucker be Ayub a you won and in the counterclaim Ayub fees hooker the court found again for you and I have an order of the federal court signed by Judge Arthur Garrity the famous judge who did the Boston busing decision if I can ever find that lying thief David Zucker with $21,000 it ain't up his nose yet the court says it's mine dispute David okay so affirmative defense it's a perfect defense but it shifts the burden of proof and anytime anybody tells you they're going to handle you like your typical criminal defendant who was a guilty son of a [ __ ] just sit back and we'll snipe at the the prosecution witnesses and we'll show they can't prove beyond a reasonable doubt nature is telling you fire this son of a [ __ ] he does not know how to defend innocent man questions or comments now to this point okay another concept that I think will be critical for you is the concept of doctrine of competing harms it needs to be understood I sincerely hope I never have to use it as a defense for you or your attorneys don't have to but it's it's critical to understand just how it works in society how is it that a private citizen can be authorized to do with the justice system itself cannot to kill another human being another American citizen upon their own Judgment the concept is doctrine of competing harms har ms the doctrine of competing harms that is the term used by the English common law and in almost half of the states that is the phrasing that will appear in the legal guides themselves other states will refer to it as doctrine of necessity NEC is s ity I didn't smell that NEC e SS ity thank you they mean the same thing doctrine of necessity and doctrine of competing arms and what this benevolent demonstration of the wisdom of the law holds is this you're allowed to break the law in the rare circumstance who are following the law would cause more human injury than breaking it you are allowed to break the law in the rare circumstance where following the law would cause more human injury than breaking it you're allowed to break the law in the rare circumstance where following the law would cause more human injury than breaking it that is the doctrine of competing arms the doctrine of necessity now first and foremost putting things together that we're learning quickly this morning does that sound like an affirmative defense to y'all damn straight the arguments that I would use is this whenever I have to explain this in court let me give you a word of advice if you ever have to do it and none of us are there to help you when you're talking to a jury of laymen never discuss guns and karate and police radio codes people don't relate with that those are different worlds the average person doesn't really give an example from something common to the human experience now the jury is selected for a reason there's a reason the other side is allowed to weed out the gun buff just as there's a reason our side if you're smart enough to remember to do it is allowed to weed out the founding members of handgun control incorporated from a self-defense shooting jury the jury should be impartial the jury should be objective the jury should not have predetermined biases and prejudices the jury is to be a clean slate upon which the presented evidence will be written upon which their collective mind as reasonable and prudent citizens will determine the balance and determine the guilt of the innocent the ultimate question that none of us who speak for you can ever address guilt or innocence by the way will never be found innocent you ever notice that no court ever finds you innocent the best you can hold for is not guilty okay okay here's the deal doctrine of competing harms the argument I'll the analogies I like to use are based on something happening on the highway the reason is this is America we are a motorized Society in automotive society maybe nobody on that jury owns a gun or ever did but everybody on that jury drove a car to the courthouse parking lot to get there sometime in their life they had an emergency and they know that automobile is a deadly weapon and properly applied they've had an emergen on the highway with a truck swerved into there lay and the the telephone pole fell off the truck ahead of them and they had one split second to decide to react and to let people die or to keep people from dying that is something by god that they can relate with the analogy I give you is this you're you've got your whole family in a station wagon and you're in the northbound lane of a winding Mountain Road okay with the sheer precipice on either side no road shoulder that's a two-lane road and there's a big double yellow line down the middle and great big signs that say no lane change that's pretty clear to you and everybody else in that car the law says stay in this lane or you're a violator right they driving along going northbound the only car in your lane and now the only vehicle in the southbound lane they go pickup truck that turns out to have a drunk at the wheel swerves into your lane on a collision course you've got about a second or two if that decide what you're going to do you have just been given a choice you can obey the laws that were put there in consultation with the highway engineers with law enforcement and so passed by the legislature that said thou shalt drive at a certain speed and thou shalt stay within this Lane because not doing so reasonably and predictably creates some threat to human life you can obey that law and you realize that the consequence of that is in 1 or 2 seconds all of you including the instigator are going to die a fiery Cataclysm well you can say to yourself something is happening here that the highway engineers and the police consultants and the legislators did not anticipate if I obey this law it is reasonable for me to predict that all of us will die and what is every damn one of you going to do you're going to swerve you're going to change lanes and if somewhere up behind a billboard up ahead you had a motorcycle cop wanted to pull you over and take it you for the lane change that man is in for the most humiliating defeat of his law enforcement career because the judge is going to explain some [ __ ] to him the judge is going to say you're allowed to break the law in the rare circumstance we're following the law would cause more human injury than breaking it captain au where you're not aware your first day in the police academy that was that doctrine of competing harms that permitted you to play with your lights and siren and run code three to emergencies but even with your lights and siren going as warning devices to the public your police cruiser at high speed created a reasonable predictable danger to the motoring public and that danger could over only be overwritten by a greater danger a greater competing harm that said if you do not arrive at the scene innocent people will die not might nebulously be hurt but you know now there's non robbery in progress a shooting in progress a car crash bi personal injury people hemorrhaging a debt they are now that require your skills to stabilize them Tullio any ones can get there that is what permits you captain the drive eighty a hundred miles an hour lights or siren or no and you didn't figure that worked for citizens to the doctrine of competing arms the doctrine of necessity I've talked to attorneys where they didn't even address that in their law school experience that's frightening how would it apply to you okay let me give you just a hypothetical case not really hypothetical the case is real the the defense is hypothetical how many of you followed the the case in the trial of Bernard Goetz what you had here is you all recall this poor kid if you followed the case you know I say kid he's my age but do any of you think of Bernie Goetz was a grown up okay this kid in the late 70s early 80s undergoes of savage mugging on the streets of New York he's knocked up against the door the glass door is broken he now can't roll with the punches he got stomped and his ribs are kicked in and from that date of this Bernard Goetz if he followed the testimony and the medical witnesses who proved it is in permanent pain from the permanent injuries of that mugging and it was his perception that the muggers were out of the door before he was out of the emergency room I says to himself this is not good and this was happening a lot in my city because I live here and it's known to me that this I think that I will exercise my rights as a private citizen and go down a one Police Plaza police headquarters and I will apply for a gun permit that goes on any applies how many of y'all from New York City when you walk in off the street and say hi there I'd like to apply for a gun permit they take your non-refundable money yeah sure kid go ahead pull this crap oh do you realize you don't get the money backing up okay and you generally get back an application stamped denied insufficient cause okay that's welcome to life in a big city Bernie Goetz didn't understand that all he knew was he had attempted to go through the channels to get the permit to carry a gun but he reasonably perceived he might need and the voice of the city said no you're not authorized and in effect bernard goetz said to himself they told me I don't need the gun I believe that they are wrong I believe and this pain and my ribs makes me believe that the day may come when I face bio an assault that only a gun can ward off and Bernard gets made the conscious decision to commit the willful civil disobedience of violating the felony statute of the Sullivan Act and carrying the gun and we all know what happened that night in the early 80s all four of those little scumbags including Daryl KB when he finally emerged from his coma at some point admitted okay okay we weren't asking to borrow money it was a robbery all right we know that and what did that say to the jury about the decision-making process that they at one Police Plaza who was right and who was wrong about whether Bernie Goetz truly needed a gun to defend himself what did the jury say about that when they thought of not guilty of aggravated assault and nobody even dared to make the jury try to discuss attempted murder Bernie Goetz was right we knew from the beginning that no jury in New York was going to convict that kid for Ag assault which carried up to seven our time we also knew that he was prime of facie guilty of the violation of the Sullivan Act couldn't even claim ignorance he had done the press conferences the same press conferences that after and actually I thought very fair and somewhat sympathetic DA's office under Robert Morgenthau had not really pushed the issue in the grand jury had no build and he ran his mouth sufficiently that Morgenthau had no choice but to come back do it again and do it right and bring him up you know under indictment if that kid had surrendered to me I would have stapled his tongue to the roof of his mouth because the kid literally hung himself with his own tongue I digress he was guilty of that he done it his defense attorney he made a mistake that many of you are making cops are the biggest committers of that mistake he went to a guilty man's lawyer he went to a lawyer was famous beginning guilty men off as you recall his trial was postponed while his attorney Barry slotnick continued the defense of mobster John Gotti and managed to keep the jury from hearing certain incriminating conversations in which Don Gotti allegedly ordered the deaths of human beings I don't blame me if John Gotti said screw to kid be at light while I too would have said your honor postponed gets got to do guy my god thing ok but the point of it was you don't get a guilty man's lawyer from the beginning it's apparent that slotnick wrote off the Sullivan okay hey we'll go to the Sullivan what the heck you know sacrifice upon early in the chess game just like when you're defending a guilty man okay let's cop to something light so we don't fall to nothing happy we knew from the beginning he was going to go on the Sullivan unless someone gave him a defense we know that generally you don't have mugging victims on a jury of somebody who shot four muggers right you had two or three crime victims on the guest case why was that well maybe in Manhattan you can't get 12 people who I don't know okay the gets case and the doctrine of competing harms we know now that during all those dragging days of the deliberation the aggravated assault charge the core of the case against Bernard Goetz was decided in the early hours of the first a deliberation by the jury we know that there was only one reason the jury stayed out all the rest of that time they were arguing the gun charge now what's to argue PC 265 says it's a felony to carry a piece when you ain't licensed to do it the kids said he'd done it what's to argue does anybody in here doubt that what they were arguing was look there's got to be some what we can let the kid off on this for the hook had he used it would have been council Barry slotnick used to the doctrine of competing harms there was no excuse we wrote them after Breslin put his thing in saying hey trust us gets game to New Hampshire to surrender to au Concord police denied it they look the kid if he wanted me could have found me okay before he was arrested they already knew who he was you know the neighbors had given him up his girlfriend that he trusted you know with the telephone calls was taping him so she could sell the article for $30,000 to New York magazine and she gave him up in a shot okay in his apartment they had found a copy of combat handguns magazine marked open to one of my articles but that's not the same as being a student here the same magazine had an ad for lfi with my phone number in it we know from those conversations that his girlfriend taped or his friend who happened to be female was not a romantic relationship that he was cruising around in New Hampshire he had come here because when he vacationed here he felt there were people who had a sense of values that he could share they said look I'm tired I'm going to head in toward the capital city which turns out to be conquered if I see a cop I'm going to flag him down and give myself up otherwise I'll just go to the police station in the capital city that is what I'm talking please confirmed no he didn't come in to surrender to me okay the the point of all this is look the kid had said I carried the peace I was guilty all this that I thought I thought I I thought what I called slotnick to find out look do your office know something I don't it gets tell you we can't surrender to me they said no and I said okay thank God by the way while we got you are you going to use doctrine of competing harms you know what slot next associate said to me the matter is another to man for the defense what's doctrine of competing harms okay so it's not very slotnick a memo an outline for him never got the courtesy of reply it was never addressed very slotnick gave it up from the get-go you know pawn takes pawn with the hack a year in jail because for most of his clients a year in jail is good talk to a member of criminal defense bar they don't call them criminal defense lawyers for nothing what do they defend criminals they get half the referrals from in prison the layman says my god if I was in prison some other prisoner said to me hey use my lawyer he's great I'd say Riddick god damn it he got you here but the other guy said oh yeah but I should have got life this guy only got me a year he's great and that's the way the referrals actually go inland okay he gave the kid up I'll suppose that jury that we know now spent all that time deliberating wondering what look is there to let him on suppose Barry slotnick had explained to them had read to them had had blown up on an easel and put in front of a jury from that New York Penal Code itself the explanation of the doctrine of necessity and said here's what happened only it wasn't a station wagon on a two-lane road this kid said I think I need it and YPD said no you don't he said i'm right and he carried the gun and we know now ladies and gentlemen from what we believe will be a verdict of not guilty you know he was right and then YPD was wrong and as you read Penal Code 265 when they shouldn't when they shouldn't by their own lights within their own standards of what they require the five thousand a week to clear criminal background etc the kid passed and he should have got the Pinet who committed a crime who violated the statute with greater responsibility the layman who knew what you now know strives that the facts was true or the people with a higher standard of care who should have known that under law he was entitled to the permit he tried to follow the law in the New York City Police Department violated it you gotta send him to jail because the cost yeah it's there in the statute the doctrine of competing arms how many of you believe we might have had the hook that would have allowed the jury to let that man walk free instead of spending the better part of a year at Rikers Island and that's why I share with you the concept of the doctrine of competing arms yeah questions or comments to this point remember those basics immediate otherwise unavoidable danger of death of grave bodily harm to the innocent of the circumstances that justify the use of deadly force the justify homicide it's determined by three criteria ability opportunity jeopardy ability he possesses the power to kill opportunity he's capable of employing that power jeopardy it's obvious that he's going to employ the power all judged by the yardstick of the doctrine of the reasonable man what would a reasonable and prudent person have done in that same situation knowing what the defendant knew if you carry away just that you probably will not end up in prison we're going to go a little bit beyond does the programs contain us okay well now shut down the videotape and throw it open to questions or comments you

Channel: MrMuscleBilly

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Keywords: Shotgun, Ammunition, zombies, Bullets, 9mm, Weapons, ak47, ar-15, sigs, SHTF, ak-47, shotgun, firearms, guns, gear, bug, out, ammo, ballistic's, body, armor, tactical, survival, shooting, tactic's, training, self, defense, police, law, enforcement, military, Glock, Colt, Kimber, 1911, Remington, Taurus, Sig, Sauer, Springfield, Armory, Beretta, Ruger, 12, ga, .22, rimfire, 7.62x39mm, 5.56mm, .380, auto, .40s&w, 10mm, .45acp, .44, magnum, concealed, carry, Machine, Gun, Range, Hunting, M16, Airsoft, Shoots, Shooting Sport (Sport), Massad Ayoob (Author)

Id: -j4PS_8R5IE

Length: 109min 57sec (6597 seconds)

Published: Wed May 13 2015