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I recently came across a 2011 self defense case in which the prosecution, the defense, and the judge all got the law completely backwards on the reading of a brief and rather straightforward self defense statute.


The result was that the defendant, who might well have been acquitted on the basis of self defense without this error, was instead convicted of second degree manslaughter and sentenced to 20 years in prison. Somehow, every expertly trained legal professional in the court room managed to make a mistake I wouldn’t have expected from a first year law student. And, of course, it was the defendant who paid the price.


Although this particular case is out of Kentucky, trust me, mistakes like this happen in every state, and far too often. All the more reason why it is essential that all armed citizens have at least a basic working competence in the self defense laws of their jurisdiction (or anywhere they might go). Just because you're paying your defense lawyer a lot of money doesn't mean he's not going to make a stupid mistake--and if he does, it's you who pays the price. Know the law.


If you're interested in more details on how something like this occurs, the case citation is Barker v. Commonwealth, 341 S.W.3d 112 (KY Supreme Court 2011). Alternatively, you can read my analysis/narrative about the case on my blog page at: KY When trial courts go stupid on self defense law . . . .


Andrew
 
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Andrew, Welcome from Memphis.
 

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Andrew, Welcome from Memphis.
Hey, thanks! Last time I was in Memphis I was doing a coast-to-coast-to-coast on my motorcycle, and a cute young thing on a cell phone nearly ran me clear over.

But the food was excellent! :)

Andrew
 

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That's a pretty serious expression on your avatar pic there Andy.

Smile Bubba....life's too short to be wearin' a frown all the time.:rolleyes:
 

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While knowing the law is always a plus it won't do much good if the judge says he is right..........
 

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That's a pretty serious expression on your avatar pic there Andy.

Smile Bubba....life's too short to be wearin' a frown all the time.:rolleyes:
Good heavens, you obviously don't know me--that's my HAPPY face. Seriously. :smile:

I was in the midst of a long motorcycle tour through the SE states, one of my favorite tours of all time (other than my coas-to-coast-to-coast, or the Netherlands-Belgium-France-Germany-Switzerland-Italy (and back) trip, or the disastrous winter Boston-to-Denver trip where I got trapped by ice in Oklahoma . . . ).

Anyway, that photo is taken of me standing in front of the poured-concrete welcome sign to the Barber Motorsports Museum in Alabama (the only place I've ever seen genuine reserved parking spots for MCs). What a fantastic place.

OK, I see this was all a strategy to get me off message. :yup: Sorry about that, folks.
 

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I recently came across a 2011 self defense case in which the prosecution, the defense, and the judge all got the law completely backwards on the reading of a brief and rather straightforward self defense statute.


The result was that the defendant, who might well have been acquitted on the basis of self defense without this error, was instead convicted of second degree manslaughter and sentenced to 20 years in prison. Somehow, every expertly trained legal professional in the court room managed to make a mistake I wouldn’t have expected from a first year law student. And, of course, it was the defendant who paid the price.


Although this particular case is out of Kentucky, trust me, mistakes like this happen in every state, and far too often. All the more reason why it is essential that all armed citizens have at least a basic working competence in the self defense laws of their jurisdiction (or anywhere they might go). Just because you're paying your defense lawyer a lot of money doesn't mean he's not going to make a stupid mistake--and if he does, it's you who pays the price. Know the law.


If you're interested in more details on how something like this occurs, the case citation is Barker v. Commonwealth, 341 S.W.3d 112 (KY Supreme Court 2011). Alternatively, you can read my analysis/narrative about the case on my blog page at: KY When trial courts go stupid on self defense law . . . .


Andrew

Andrew... just a recommendation, but you might let people know upfront. that you are posting on numerous gun forums, promoting your blog. I'm not saying there is anything wrong with that, nor anything bad about your blog at all. In fact, I have read different things you have written and like them, and you've made some good points. I think people might be interested that you do have a blog .... and if people are interested in reading the different things ..... could / should visit it.

Just my .02 cents.
 

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Nice post, Andrew, "ad" though it might be. Good info for each of us to consider, in our preparations for what might happen.

And welcome to DefensiveCarry. :wave:
 

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Good post Andrew. and welcome to DC. I hope to see more posts from you, assuming this wasn't just a one off ploy to get us to read your blog.
 

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...coulda sworn this is not your first post...I've read another from you...but I can't find it...the system CAN blow it...they're finding more and more...best to stay out of it...

I recently came across a 2011 self defense case in which the prosecution, the defense, and the judge all got the law completely backwards on the reading of a brief and rather straightforward self defense statute.


The result was that the defendant, who might well have been acquitted on the basis of self defense without this error, was instead convicted of second degree manslaughter and sentenced to 20 years in prison. Somehow, every expertly trained legal professional in the court room managed to make a mistake I wouldn’t have expected from a first year law student. And, of course, it was the defendant who paid the price.


Although this particular case is out of Kentucky, trust me, mistakes like this happen in every state, and far too often. All the more reason why it is essential that all armed citizens have at least a basic working competence in the self defense laws of their jurisdiction (or anywhere they might go). Just because you're paying your defense lawyer a lot of money doesn't mean he's not going to make a stupid mistake--and if he does, it's you who pays the price. Know the law.


If you're interested in more details on how something like this occurs, the case citation is Barker v. Commonwealth, 341 S.W.3d 112 (KY Supreme Court 2011). Alternatively, you can read my analysis/narrative about the case on my blog page at: KY When trial courts go stupid on self defense law . . . .


Andrew
 

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the guy was an idiot for going to slash the guys tires, he deserved what he got. I agree with the judge....sad that the guy who was being taken advantage of died.

in texas this is criminal mischief, and if it happened in the night time, it is consistent for the use of deadly force against the defendant. but this is in ky, don't know the laws there. It doesn't matter anyway, the wrong guy died.
 

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Discussion Starter #12
Good post Andrew. and welcome to DC. I hope to see more posts from you, assuming this wasn't just a one off ploy to get us to read your blog.
I typically write about several interesting self defense cases a week, although I'm probably less consistent about how often I might mention a particular blog post on a particular forum--probably more like once a week or so?

And no one is ever asked to buy anything in order to read any blog post. If someone is interested enough to want to buy the book, that's great--if not, just ignore the side post that offers the book, and that's fine, too.

Some forums appreciate my posts and legal analysis, others choose to hate me for having written a book. *shrug* I don't get it, nobody is required to buy a book in order to benefit from the legal analysis of interesting self defense cases, and I always include the court citation so that people can search for the case directly, if they prefer, and not go to my blog at all.

Regardless, I only tend to stay where I'm wanted. So, really, it's ultimately up to the particular forum and its members (and, of course, at the very top of the pyramid, the forum admins).

Andrew
 

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In SC, the self defense argument would not be available because he was in the act of an illegal crime AND he provoked the fight.

You can't go "poke" someone then shoot them when they fight back. He was in the act of destroying personal property.

Sorry, but I agree with the ruling. If the victim would've killed him, I don't think he would've had the self defense argument either, because the defendant want directly threatening him, just his property. He should've got a good description and called the cops. Insurance would've covered the tires and he would still be alive.

(Sent from my Galaxy Note 2 using Tapatalk 2)
 

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the guy was an idiot for going to slash the guys tires, he deserved what he got. I agree with the judge....sad that the guy who was being taken advantage of died.
I'm afraid you're missing the point. Of course the defendant was an idiot. We kind of expect punks to be idiots.

What we don't expect is that a room-full of professionally trained and experienced prosecutors, defense lawyers, judge and clerks will all badly misunderstand and misapply the law, resulting in the defendant being wrongfully convicted and sentenced to 20 years.

Even in Texas, I don't expect its lawful to chase, with the intent to use lethal force, someone who has COMPLETED criminal mischief (e.g., is no longer in the act) and who has FLED the scene (e.g., and so is not seeking a confrontation). Indeed, it is now the car owner who has become the aggressor. Killing someone for them having earlier slashed your car tires and who is now fleeing your pursuit is not typically viewed by any US jurisdiction as lawful self defense, or even defense of property.

But if you're aware of Texas law to the contrary, I'd be interested in seeing it. I learn new stuff every day. :)

Andrew
 
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Even in Texas, I don't expect its lawful to chase, with the intent to use lethal force, someone who has COMPLETED criminal mischief (e.g., is no longer in the act) and who has FLED the scene (e.g., and so is not seeking a confrontation). Indeed, it is now the car owner who has become the aggressor. Killing someone for them having earlier slashed your car tires and who is now fleeing your pursuit is not typically viewed by any US jurisdiction as lawful self defense, or even defense of property.
If the perp is still on your property, texas does not have a retreat law...feel free to shoot....like I said criminal mischief in the night time in texas is consistent with the use of deadly force.

Now if he has already fled the scene and is no longer on your property and is a ways down the road then logically it wouldn't be smart to continue after him. I'm sure the jurors wouldn't like that too much and it would be hard to justify after that point. It all depends who you have judging you, people say not to pursue people, or shoot them in back but joe horn was justified a good shoot.

YMMV, gl.
 

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In SC, the self defense argument would not be available because he was in the act of an illegal crime AND he provoked the fight.

You can't go "poke" someone then shoot them when they fight back. He was in the act of destroying personal property.
I don't think you read the facts of the case. The defendant was NOT "in the act" of destroying personal property. The act was over, not in process, and the defendant had already departed the scene.

When the victim confronted the defendant and deadly force came into play, the defendant was in the process of fleeing from the scene and it was the victim who was aggressively chasing him. If anything, the victim provoked the deadly conflict.

But that's all missing the point, as I've already indicated. The post was about the malpractice of the legal professionals in the case, not the fact that some punk did something stupid.

Andrew
 

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I'm afraid you're missing the point. Of course the defendant was an idiot. We kind of expect punks to be idiots.

What we don't expect is that a room-full of professionally trained and experienced prosecutors, defense lawyers, judge and clerks will all badly misunderstand and misapply the law, resulting in the defendant being wrongfully convicted and sentenced to 20 years.

Even in Texas, I don't expect its lawful to chase, with the intent to use lethal force, someone who has COMPLETED criminal mischief (e.g., is no longer in the act) and who has FLED the scene (e.g., and so is not seeking a confrontation). Indeed, it is now the car owner who has become the aggressor. Killing someone for them having earlier slashed your car tires and who is now fleeing your pursuit is not typically viewed by any US jurisdiction as lawful self defense, or even defense of property.

But if you're aware of Texas law to the contrary, I'd be interested in seeing it. I learn new stuff every day. :)

Andrew
So, by your standards, I can come into your house... hit your wife then run away. If you chase me with a gun, I can shoot you in self-defense?? If that's the case, your ideas of "self-defense" are seriously f'd up.

At least in SC... If I provoke you... I can not claim self-defense. Regardless of whether or not your shots were justified... regardless of whether or not I am still in the act... I still provoked you and am not able to claim self-defense.

If that were the case, I could go take a swing at everyone I don't like with a baseball bat and then run into my local Starbucks. When they come to extract revenge, I can shoot them in self-defense?? Sorry bud, not how that works.
 

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If the perp is still on your property, texas does not have a retreat law...feel free to shoot....like I said criminal mischief in the night time in texas is consistent with the use of deadly force.
I'm not sure what you mean by "is consistent with". It certainly wouldn't apply to this case. To understand why, it is helpful to look at the relevant Texas statute that refers to the use of deadly force in the context of criminal mischief in the night time: TX Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. .

It provides, in relevant part, that:

"A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) . . .
(2)
(A) to prevent the other's imminent commission of . . . criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing . . . during the nighttime from escaping with the property . . .


In this case, the defendant was not engaged in the "imminent commission of criminal mischief during the nighttime"--the act of criminal mischief was over, the damage had already been done, and the defendant had fled the scene. The victim wasn't preventing anything, so (2)(A) does not apply.

Nor was the defendant "escaping with property," so (2)(B) does not apply, either.

At least, that's how the statute reads to me.

Andrew



A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
 

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So, by your standards, I can come into your house... hit your wife then run away. If you chase me with a gun, I can shoot you in self-defense?? If that's the case, your ideas of "self-defense" are seriously f'd up.
Who is talking about my standards? I write about the law, not my personal standards. (Although I'd be happy to do that, as well, next time I'm in SC, first beer's on me. :) ).

In this case, the defendant never entered the victim's house, so that point is irrelevant.

Nor did he commit a violent act upon another person as provocation, so that point is irrelevant.

In any case, even had someone come into your house, punched your wife, then ran away such that he no longer presented any imminent threat, the law of self defense doesn't entitle you to chase them down and shoot them. You're supposed to call the police. What you're advocating might be great fun and stress relieving, but its not lawful. If you're aware of SC law to the contrary, I'd like to see it.

At least in SC... If I provoke you... I can not claim self-defense. Regardless of whether or not your shots were justified... regardless of whether or not I am still in the act... I still provoked you and am not able to claim self-defense.
As for your statement that one who provokes a difficulty cannot claim self defense, it seems that you've only been instructed on half of the law governing provocation in self defense. For the SC law on this, I refer you to the SC Supreme Court decision of State v. Bryant, 520 S.E.2d 319 (SC Supreme Court 1999), the full text of which can be found here: State v. Bryant, 520 S.E.2d 319 (SC Supreme Court 1999) .

In Bryant, the state Supreme Court held that "If . . . the aggressor withdraws in good faith from the conflict and announces in some way to his adversary his intention to retire, he is restored to his right of self defense," and "One's right to self-defense is restored after a withdrawal from the initial difficulty with the victim if that withdrawal is communicated to the victim by word or act." As an example of such communication by "act", the court cites leaving the scene of the initial conflict as being adequate.

Note that this is not "my opinion." It's the law. In South Carolina.

In the case I wrote about, the defendant had withdrawn, and communicated that withdrawal by act. Indeed, it was the victim who chose to arm himself, leave his home, and pursue the defendant down the street. This falls squarely under SC law allowing for the restoration of the defendant's right to self defense.

If that were the case, I could go take a swing at everyone I don't like with a baseball bat and then run into my local Starbucks. When they come to extract revenge, I can shoot them in self-defense?? Sorry bud, not how that works.
The law does not allow one person to "extract revenge" on another. Any such act to "extract revenge" would be the unlawful use of force, and you would be entirely within your rights to defend yourself against such an unlawful use of force against you. If the effort to "extract revenge" involved the imminent use of deadly force upon you, then certainly you could use deadly force to defend yourself.

Don't you think?
 

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Andrew, welcome. I have a feeling that you are going to be a source of stimulating conversation around here. Which brings me too..........

What we don't expect is that a room-full of professionally trained and experienced prosecutors, defense lawyers, judge and clerks will all badly misunderstand and misapply the law, resulting in the defendant being wrongfully convicted and sentenced to 20 years.
Au contraire, mon ami. Incompetence, malfeasance and nonfeasance are the lifeblood of the legal system and exactly what we should expect. How do you think the Innocence Project has found more than 300 people to on death row to exonerate?
 
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