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Old 08-28-2011, 15:41   #151
Bren
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Originally Posted by badge315 View Post
So is a statement by the shooter the only thing that police look at when investigating a homicide? You make it sound as if incomplete, incompetent investigation and malicious prosecution is SOP in Kentucky.
I explained that in some detail, so whether it's intentional or not, you're ignoring most of what I wrote on the suject.

Obviously the police look at more in the investigation, but literally the ONLY difference between murder and a justified shooting (assuming it is one that can be justified) is what the shooter thinks. If a guy points a gun at you and you shoot and kill him, unde rour law and that of most states it isn't him pointing a gun at you that makes it justified, it is the fact that you believed you were in imminent danger of death. Being in danger isn't a legal justification, if you don't think it. Thinking you are in danger can be a legal justification, if if you aren't in danger. Works the same way you could, for example, commit attempted murder by putting sugar in somebody's coffee, if YOU believed the sugar was poison - the requirement of the crime or defense is in your mind, not the actual danger.

So, in summary, all of the police investigation can ONLY support your claim that you acted in self defense - it can't establish the necessary element of your subjective belief - without that, prosecutorial discretion my say the case isn't worth pursuing, but you CANNOT actually establish justification.

This is pretty basic stuff I could have told you when I was a police officer; it hardly takes a law degree.

Here's an example - Kentucky's self defense statute:

Quote:
503.050 Use of physical force in self-protection -- Admissibility of evidence of prior acts of domestic violence and abuse.
(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.
(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.
(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.
(4) A person does not have a duty to retreat prior to the use of deadly physical force.
Notice that all the evidence that you were in danger of death, serious phsyical injury, etc., doesn't matter, because the use of physical/deadly physical force is NOT justifed when "such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person" - instead it is justified "when the defendant believes that such force is necessary."

I've been involved in a case of a justified shooting where a guy was shot when he took his cell phone off his belt - but if the guy had taken a gun off his belt and pointed it at the shooter, but the shooter said "no I didn't think I was in danger, I just wanted to kill him" the shooter would have committed murder, without justification, in Ky.
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Old 08-28-2011, 16:31   #152
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Bren, I think you may be projecting KY law a bit too much on other places. (Or maybe I don't understand nuances of other places.)

The places that I've looked at don't excessively care what the defendant believes. For example, AZ says:

13-405 A person is justified in threatening or using deadly physical force against another(...)when and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.

So, Counsellor, my question: Which matters more for most places and most people? The reasonable man's standards or the particular defendant's standards?
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Old 08-28-2011, 16:42   #153
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I'd spray the SOB with my OC Spray. That would stop him/her.
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Old 08-28-2011, 17:20   #154
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Originally Posted by Tilley
So, according to you, because Mattingly didn't speak to investigators prior to seeking legal counsel he screwed himself? Had he spoken it investigators, none of this would have happened? Pleeease...



The prevailing attitudes towards us is rarely positive, and we are protected against self-incrimination as anyone else. You do not represent police officers, that is clear. You can have your opinions, but I seriously doubt any police officer would take what you just said as responsible.Your legal advice and a buck won't even buy me a donut.
It's a waste of time trying to reason with someone who thinks the police are prosecutors, judges, and jury all in one. In Brenville, you have to have your trial right there at the scene and convince the police who often have only a HS diploma and have a very rudimentary understanding of the law that you are innocent.

In Brenville, it's in your best interest to open up to the police and say the wrong things while you are trying to convince them that you, Joe Bob who works at the Dollar Store was innocent. God forbid you have an attorney who spent 7 years of study to obtain a Juris Doctorate (including undergrad) and does this for a living handle the convincing...

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Old 08-28-2011, 21:39   #155
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[QUOTE=Bren;17838531]
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Originally Posted by Tilley View Post
In fact, I'd probably enjoy a thread more about you shooting somebody and being charged, than just about you shooting somebody.
In California, most FOP attorneys are on scene long before the coroner. Perhaps in Kentucky the legal system is archaic.
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Old 08-28-2011, 21:43   #156
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Originally Posted by Bren View Post
Just because you guys saw "never (always)talk to the police" on somebody's(my) web site, doesn't make it good advice that you have to defend to the death.
Hope you don't mind if I fixed this up for you...

Last edited by Tilley; 08-29-2011 at 09:09..
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Old 08-29-2011, 06:17   #157
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While I think this is a great thread (not really), it's clear no one here really knows anything about the legal aspect of this subject. I'm going to ask this in the GATE forum for Ayoob to comment on.
Anything?
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Old 08-29-2011, 09:01   #158
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Sam mentioned it and I agree. There are two standards in which we are scrutinized:

What a reasonable police officer believes.

What a reasonable person believes.

As police officers, we all have an "imaginary line" that if a suspect crosses that line, we use elevated force.

Using a theoretical suspect here, it's midnight in a dark alley in the bad side of town, you see a man facing away from you with a gun in his hand. He is wearing clothing common to that of a gang-member. You identify yourself and order him in a loud voice not to turn around and drop the weapon on the ground. Several things can happen here:

Guy turns around quickly and the cop shoots him.

Guy turns around quickly raising up his gun, and the cop shoots him.

Guys turns around quickly raising up his gun, the cop does nothing and the cop gets shot.

Not all police officers react in the same way. That imaginary line mentioned above is different for each of us based on our training and other psychological factors unique to us as individuals.

If we are judged by a jury of our peers (fellow police officers), we can be judged by the standard of what a reasonable officer thinks. But instead, we are judged by everyday citizens, not trained or having experience as police officers. People who see LL Cool J shoot the gun out of the suspect's hand, or Steven Seagal judo-chop the suspect, then flip him on his-ass.

"The suspect was only 12 years old...his momma said he was a good boy...why didn't the cop shoot him in the leg...he didn't understand english"...whatever.

The point is, as long as we are going to be Monday-morning quarterbacked on everything we do, we need someone there with the legal knowledge we don't possess to give us advise.
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Old 08-29-2011, 10:07   #159
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Originally Posted by poodleshooter1 View Post
While I think this is a great thread (not really), it's clear no one here really knows anything about the legal aspect of this subject. I'm going to ask this in the GATE forum for Ayoob to comment on.
While I enjoy reading what he says, he says it in a very vague way as to stay safe and not lead someone in a direction that can come back to him which is very understandable. With that in mind we can say it for him….. “That every situation needs to be evaluated by them self’s and the defender needs to use his/hers better judgment as every situation is different and no two can be put into the same template”
As said before it the person was a treat and had a weapon, dropped it but still advances the threat is still there, you can’t tell if they have another weapon. What my chl teacher says “my objective is not to kill but to stop all movement, neutralize and control the situation” and if that means to shoot so be it
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Old 08-29-2011, 12:37   #160
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It's a waste of time trying to reason with someone who thinks the police are prosecutors, judges, and jury all in one. In Brenville, you have to have your trial right there at the scene and convince the police who often have only a HS diploma and have a very rudimentary understanding of the law that you are innocent.

In Brenville, it's in your best interest to open up to the police and say the wrong things while you are trying to convince them that you, Joe Bob who works at the Dollar Store was innocent. God forbid you have an attorney who spent 7 years of study to obtain a Juris Doctorate (including undergrad) and does this for a living handle the convincing...
You know, if that is what you got from Bren's posts, it is rather clear that you really don't understand what he has said.
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Old 08-29-2011, 15:39   #161
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Bren, I think you may be projecting KY law a bit too much on other places. (Or maybe I don't understand nuances of other places.)

The places that I've looked at don't excessively care what the defendant believes. For example, AZ says:

13-405 A person is justified in threatening or using deadly physical force against another(...)when and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.

So, Counsellor, my question: Which matters more for most places and most people? The reasonable man's standards or the particular defendant's standards?
You are right that Kentucky does not use the "reasonable person" standard other states do - that is discussed in some of the commentary from when we adopted the statute in 1974 - here there is no "reasonableness" requirement, you only have to convince the factfinder that you "believed" it, although there are some exceptions if they find your belief was reckless or wanton.

We adopted it from a model penal code in 1974 and it is the same in some states, but I haven't researched to find out how many.

As for projecting Kentucky law on other place - I made the point using Kentucky law as an example in my first post, which s where the discussion came from - people disputing what I said about Kentucky law. I'm not projecting Kentucky law, just responding to what people have said about my original opinion on Kentucky law.
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Old 08-29-2011, 15:44   #162
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[QUOTE=Tilley;17842699]
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Hope you don't mind if I fixed this up for you...
You should have read the thread first - I also said talking to the police is a bad idea if your shooting is not justified, just like talking to them is a good idea if your shooting is justified. That, obviously to most, doesn't add up to "always" talk to the police, although it should, assuming we are all law abiding CCWers with a basic knowledge of legal justifications (most of what KY teaches to CCw applicants in class).

I could add a third group: If you don't know whether your shooting is justified, you should have figured it out before you left home with a gun, so I have little sympathy.
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Old 08-29-2011, 15:47   #163
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In Brenville, it's in your best interest to open up to the police and say the wrong things while you are trying to convince them that you, Joe Bob who works at the Dollar Store was innocent. God forbid you have an attorney who spent 7 years of study to obtain a Juris Doctorate (including undergrad) and does this for a living handle the convincing...
But unlike most people you know, I both defend people in court in shooting cases and I always win.
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Old 08-29-2011, 15:48   #164
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I'd spray the SOB with my OC Spray. That would stop him/her.
Maybe. It is very possible to fight through OC spray.
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Old 08-29-2011, 16:06   #165
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[QUOTE=Bren;17845370]
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Originally Posted by Tilley View Post

You should have read the thread first - I also said talking to the police is a bad idea if your shooting is not justified, just like talking to them is a good idea if your shooting is justified. That, obviously to most, doesn't add up to "always" talk to the police, although it should, assuming we are all law abiding CCWers with a basic knowledge of legal justifications (most of what KY teaches to CCw applicants in class).

I could add a third group: If you don't know whether your shooting is justified, you should have figured it out before you left home with a gun, so I have little sympathy.
Whatever dude. What a police officer thinks is justified and what your average citizen thinks are two different animals. LAPD's Stacey Koons thought his use of force was justified...a lot of good that did him.

If you can't differentiate those two concepts, there is little point for me to continue on here.

Good luck on your illustrious career counsellor.
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Old 08-29-2011, 16:45   #166
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EXACTLY!! That is what needs to be understood here. What you thought matters very little once you get into the courtroom. The prosecutor will try to paint a picture, the lawyer for the BGs family in the civil case will try to paint a picture, and so on. Jurors, most of whom won't have much if any training in firearms and self defense will be painting their own pictures based on what each side is telling them. And if you can't show the jury why your picture is prettier than the others, doom on you.
While I understand what you are trying to accomplish in this thread, I hope it doesn't cost a "good guy" his/her life. No, I'm not in the "it's better to be judged by 12 than carried by 6" camp. It sounds neat, but it's a logical fallacy as a general statement. I also understand that there could be times when a recently disarmed person (after being held at gunpoint) advances toward you with the possible intent to take your weapon. What I can convince a jury of is only part of what interests me at that point. What do I do if I'm certain he's going to kill me, but I also know there's a decent chance I'll go to jail for it?


ETA: I replaced the last "certain" with "decent chance" because if I'm certain I'm going to jail for it, odds are not good that it was justified....

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Old 08-29-2011, 16:57   #167
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I'd spray the SOB with my OC Spray. That would stop him/her.
Maybe he's wearing glasses and no OC hits his eyes.

Maybe he's been sprayed before and it merely annoys him.

Maybe it will just demonstrate that you were bluffing about shooting him.

Maybe you shouldn't point a gun at someone unless you are willing to use it.

Maybe.

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Old 08-29-2011, 17:04   #168
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Maybe he's wearing glasses and no OC hits his eyes.

Maybe he's been sprayed before and it merely annoys him.

Maybe it will just demonstrate that you were bluffing about shooting him.

Maybe you shouldn't point a gun at someone unless you are willing to use it.

Maybe.

If I ever feel the need to bring out my G17, it will result in one or more people getting ventilated by my +p+ 115gr JHPs.
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Old 08-29-2011, 17:06   #169
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Maybe. It is very possible to fight through OC spray.
And it would show his lethal intent. Then I would shoot him to the ground.
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Old 08-29-2011, 17:07   #170
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I was just thinking: I've actually conducted murder investigations and arrests as a police officer, taught use of force to police and corrections officers in academies, after a few years as a police firearms instructor, represented police in shooting cases in state and federal courts, etc.

Those who are dead sure I'm wrong and you should never talk to the police: what do you base that on? Education, experience with actual cases? Some trusted source? What?
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Old 08-29-2011, 17:41   #171
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What do I do if I'm certain he's going to kill me, but I also know there's a decent chance I'll go to jail for it?


ETA: I replaced the last "certain" with "decent chance" because if I'm certain I'm going to jail for it, odds are not good that it was justified....
When you're more afraid of the guy approaching you than you are of spending the next 15 years being everyone's slutty date at the prison prom, the answer is clear. Sounds trite and funny, but those are the stakes after all.

You want to avoid the grey. Shoot when you must, not when you can. Shooting when you think you can turns out badly when you are mistaken.

Randy

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Old 08-29-2011, 18:29   #172
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Texas... Castle Doctrine... Drop 'em.
Seems to me a couple of years ago we discussed on this very forum a situation in Texas that started as a road rage incident and progressed to an older gent being chased around his own car by a younger, larger and intoxicated individual who was promising to award the gent with all kinds of unpleasant things in a short order.

The older guy pulled a gun and screamed his intent to protect himself. Which apparently didn't deter the assailant who chased the older guy for a few more laps before catching up. At which point he got shot and killed. And the older guy went to jail.

Personally, I sign up to the theory that if you have a doubt as to whether you should shoot you probably shouldn’t.
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Old 08-29-2011, 18:43   #173
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I say warn them, if threat continues, then you have no choice but to defend yourself.
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Old 08-29-2011, 19:40   #174
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... It is seriously foolish to give someone the advice to not talk to the police in a self-defense shooting, since the sole difference between going home and a murder charge can be your own statement as to your subjective reasonm from shooting. If you don't think an arrest can snowball all the way to a conviction, once you are a murder defendant in the county jail, you don't know much about the legal system.

I agree that sometimes what happens in the first few minutes of the first officer arriving on the scene goes a very long way in establishing the direction of the rest of the incident. And in at least some locations in some circumstances talking to the police can go a long way to minimize problems.
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Old 08-30-2011, 12:04   #175
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While I understand what you are trying to accomplish in this thread, I hope it doesn't cost a "good guy" his/her life. No, I'm not in the "it's better to be judged by 12 than carried by 6" camp. It sounds neat, but it's a logical fallacy as a general statement. I also understand that there could be times when a recently disarmed person (after being held at gunpoint) advances toward you with the possible intent to take your weapon. What I can convince a jury of is only part of what interests me at that point. What do I do if I'm certain he's going to kill me, but I also know there's a decent chance I'll go to jail for it?


ETA: I replaced the last "certain" with "decent chance" because if I'm certain I'm going to jail for it, odds are not good that it was justified....
No real disagreement from me on that. If the choice is "die or go to jail" then let's go to jail is my normal default. My point is that way too many here seem to think that "I was scared" IS a justification in and of itself. It is not. If you are certain he is going to kill you then you should be able to justify that to others, and are probably OK. If it is possible he is going to kill you then it is less likely to be OK. If we are down to "I thought that it was possible that he maybe might could have killed me" I think you are not OK at all.

See Steve's Post #171.

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