2A Legal Issues

talkingguns.net-talking-guns-talkingguns-self-defense-shooting-home-protection-constitution.jpg

Magnus ErikssonApril 4, 20198min1340

By Magnus Eriksson

 

The intent with this column is to discuss general legal principles to make you aware of some commonly encountered realities and myths in regarding self-defense laws.  Before we get any further:  DO NOT FIRE WARNING SHOTS!!! You will be charged with (a) crime(s), potentially very serious ones.  Here in Arizona, a gun friendly state, you will GO TO PRISON if convicted of the LEAST serious crime you will have committed by firing warning shots.  It is called Disorderly Conduct with a Weapon, designated as a dangerous offense, which is committed simply by discharging a firearm within city limits.   You could potentially be charged with Aggravated Assault (referred to as battery in many states) with a Deadly Weapon-a dangerous offense with a prison sentence to the tune of half a decade to a decade and a half to follow upon conviction. Not to mention attempted murder, which will land you in prison for couple of decades or more.  I go to jails and prisons all the time to visit clients, but I am free to leave after the visit.  Believe me, you do not want to spend any time in any jail, detention center or prison for following bad advise in good faith.  Other states may treat warning shots somewhat differently, but I doubt that they are condoned anywhere in the US.

Secondly, please familiarize yourself with the self-defense and weapons laws in your state.  The devil is in the details as it were and even a well intended mistake or misunderstanding could result in a living and legal nightmare.  Here in Arizona, and I suspect in other states with similar requirements, perhaps the best way to learn the details of this part of the law is to take a Concealed Weapons class.  These classes offer more detail on this area of the law than most law school curriculums.  Of course, consulting an attorney familiar with the specific laws in your state is highly recommended.

Self-defense is an affirmative defense, meaning one admits to an action that normally would be a crime, but one did it out of necessity and therefore was justified in taking the otherwise illegal action.  The reasoning would sound something like this; “Yes officer, I shot the person, because if I hadn’t, he would have killed or seriously injured me with the gun he pointed at me.”  Generally, the law permits a victim of an attack to use “reasonable force” in order to protect herself by communicating the following general principles.

A victim of an attack, can use that amount of force, which a reasonable and prudent person would use, under the same circumstances up to and including deadly force in order to avoid imminent (serious) injury or death.

A person must be engaged in a lawful activity in order to be justified in the use of force.  For instance, a person who is packaging heroin for sale on the street is not justified in using deadly force when “the wholesaler” of that heroin comes to steal the drugs back at gunpoint. Many jurisdictions allow force to be used in the defense of a third person under the same reasonableness standard.  Here in Arizona, the law allows the use of deadly force in the defense of another who is being sexually assaulted; against an arsonist who is setting fire to an occupied structure, armed robbery, kidnapping, or any other scenario where the third party is threatened with imminent death or serious bodily injury.

Some states have a Retreat Requirement before self-defense can be successfully claimed.  Usually, this requirement applies unless it is not practicable to accomplish.   Keep in mind, some retreat requirement states require retreat if attacked, even in one’s own home.  The opposite of the Retreat Requirement is the Stand Your Ground principle.  Stand Your Ground laws simply get rid of any retreat requirement.  In one recent highly publicized case in a large south-eastern state, much was said about this principle.  Ironically, the principle was not invoked in that trial at all.  Contrary to some claims, the SYG laws do not legalize murder.  Remember the actions taken while using force must be reasonable.  Murder is not reasonable.

In many states the so-called Castle doctrine is law.  The Castle Doctrine presumes that ones’ home is ones’ castle and that if attacked there, there is no retreat requirement.  In some states use of force in this scenario is presumed justified. Please, note that this doctrine does not cover inviting someone over and upon tiring of their presence the invitees may legally be murdered.  That is not reasonable.  The doctrine only applies if a person threatens you with imminent deadly force in your home.  This doctrine extends to ones’ car in certain jurisdictions in cases of car jacking.  At the risk of sounding flippant, this is not a license to murder people who walk by your car minding their own business and posing no imminent threat to you or anyone else in the car.

The Disparity of Force doctrine allows use of up to deadly force in cases such as a wheel chair bound victim attacked by someone not physically challenged, a group of people attacking one lone person, a weak and sickly victim attacked by a master Mixed Martial Arts master etc.

You may still think that all this is clear as mud!  Not to worry, the whole concept is complex because it is highly dependent on all the specific facts of a situation.  Unfortunately, politics to a greater or lesser degree is always a factor in who gets charged and why and strange things happen as a result sometimes.  The best advice is to speak softly, carry a big stick be courteous and alert and aware of the surroundings.  If you are attacked and can get away without fighting, do it even it the law doesn’t require it (tactically sound but perhaps philosophically un-American).  If you can’t get away, fight to live and never quit!!!  If you are then charged with a crime or sued wrongly, continue to fight and never give in.


talkingguns.net-talking-guns-talkingguns-kate-krueger-scotus-supreme-court-1280x853.jpg

Kate KruegerApril 11, 20174min650

On February 13, 2016 the Supreme Court and the United States lost a great American. On that day Justice Antonin Scalia died and with it one of the strongest defenders in the Supreme Court of the US Constitution.

Yesterday a new defender was selected. Yesterday a man of character officially become the 113th Justice to the Supreme Court. He has be chosen to fill this very important seat and bring back the balance to the Court.


Justice Neil Gorsuch has had a sterling record throughout his life. He and his siblings had a strong christian upbringing, he is beyond highly educated and even met his wife while they were in school at Oxford and he has a love of the law. His mother Anne Gorsuch Burford (1942-2004) was a Colorado Representative who was appointed by President Ronald Reagan to be the first female Administrator of the EPA in 1981. He comes from tough stock.

He believes in the Constitution and does not believe that a judge should make law, only uphold the law. For that alone I’m thrilled to see this man appointed to the Supreme Court. We may not ALWAYS agree with his rulings but we know by all his prior judgments that color, creed, gender, wealth or background do not matter to him… only the law.

Yesterday, not only was Justice Gorsuch sworn in by Justice Kennedy but that swearing in was historic in the sense that Justice Gorsuch once served as Justice Kennedy’s law clerk. This is the first time in Supreme Court history that a former law clerk and Justice have gone on to serve on the Supreme Court together.

This is a great day for America because the Supreme Court is back to a full court. There are a number of 2nd Amendment cases that will be addressed along with some religious freedom cases and with all probability a few immigration cases as well. So now it’s time for the SCOTUS to roll up their sleeves and get to work on clearing up the backlog.

Congratulations and God bless to Justice Neil Gorsuch!! May his journey be a long one.


talkingguns.net-talking-guns-talkingguns-jonathan-gilliam-sheep-no-more-seal.jpg

Jonathan GilliamOctober 31, 20164min550

By Jonathan T Gilliam

The Constitution of the United States of America.

Do most Americans know what it actually is? I don’t think they do!

Do most Americans understand why the Constitution even exists? Or how important it is to sustain their free way of life? I don’t think they do!

Does the Constitution live and breathe as so many liberals believe it does?

Or is it a finite tool of governance, created by men with real world historical reasons for each and every word they included?

Does the Constitution ensure equal social happiness and financial status?

Does it allow the few to control the many, even if it means infringing on the rights of the many?

This is the truth: The Constitution of the United States does NOT ensure social happiness or financial equality.

It is not a tool of portion equality among the citizenry, but it is the very foundation that ensures your equal opportunity to get the biggest portion you strive to acquire.

It does NOT give the few a more powerful voice than the many, but it does ensure an equal voice amongst all.

And it does NOT conform because of pressures brought down by special interests, loud mouth journalists or power hungry politicians.

No matter what your political affiliation, financial status, sexuality, skin color or gender, the Constitution exists as the foundation of your freedom and your opportunity in life to be what you want to be.

Simply put, the Constitution of the United States was created to establish the foundation of limited governance, and to ensure the rights granted to all of us by God. Rights that ensure freedom.

Freedom to fail and freedom to succeed. Freedom to speak and freedom to refrain from speaking. Freedom to be secure in your home, your things, your self, and the freedom to protect YOURSELF and the citizenry from a tyrannical government.

The Constitution does not protect you from being punched in the mouth when you utilize your free speech to insult someone.

However, it does give you the freedom to use your speech in constructive, sometimes critical ways, to change the rolling tide of government. Without the fear of being punched back by that government.

Motivations to alter amendments such as the Second Amendment, are largely based upon the opinions and interpretations of small groups of individuals with naïve, elitist attitudes, or masses of misguided citizens uneducated in the truth of our rights.

These Ego driven interpretations of the Constitution, and a failure to understand the experiences of our founding fathers, are the factors most responsible for the deterioration, of the constitutional foundation of this country.

Bottom line, the Constitution of the United States is in fact one single finite document, that represent individual freedoms.

However those individual freedoms are dependent upon the cooperation of the entire citizenry, functioning as an individual collection, of We The People.

My name is Jonathan Gilliam and for over 15 years I officially swore an oath to uphold the Constitution of the United States as a Navy SEAL, Federal Air Marshal, Security Contractor and FBI Special Agent.

That, is my interpretation of the Constitution of this great country.

That is the truth!