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Massad Ayoob on Guns

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Archive for the ‘Legal Issues’ Category

Massad Ayoob

KAPELSOHN ON CASTILE

Monday, September 4th, 2017

I have known Manny Kapelsohn for decades.  We have appeared together on numerous panels at national and international training seminars. We serve together on the advisory board of the Armed Citizens Legal Defense Network.  I consider him one of the top authorities on armed defense on the planet.  He is a very experienced expert witness, and successfully served in that capacity in the recent trial of Officer Jeronimo Yanez for the shooting death of armed citizen Philandro Castile.

In the August/September issue of Concealed Carry magazine, Manny presents a letter explaining why he profoundly disagrees with those who feel the officer panicked or overreacted, as so many have come to believe.

First, he points out, Castile never told the cop he had a license to carry, only that he had a firearm. Kapelsohn notes that Yanez calmly told Castile, “OK, don’t reach for it then.” When Castile disobeyed, Yanez shouted “Don’t pull it out! Don’t pull it out!”  Only when this total of three explicit commands was disobeyed did the officer open fire.

Manny writes, “Yanez described the item Castile was pulling out as dark in color and thicker than a wallet. Officer Yanez said he believes it was a gun. In fact, Castile had a full-sized 9mm pistol in his front right shorts pocket. Castile’s brightly colored wallet with wide stripes of orange and white, did not look like a gun.

Manny also disputed allegations that the officer’s gunfire recklessly endangered the woman and child who were in the car with Castile. He says, “When Officer Yanez fired, he didn’t back away from the car or use its B-pillar for protection; instead, he endangered himself by remaining in the opening of the car’s window so he could fire downward into Castile with as little danger as possible to Castile’s girlfriend in the front passenger seat, the child in the back seat and his fellow officer on the passenger side of the car. Yanez fired seven shots in a total elapsed time from first shot to last of about two seconds and ceased firing when he saw Castile’s hand being raised with the gun in it.

Some who criticized the officer claimed he should have waited until the gun was out of Castile’s pocket. Disputes Kapelsohn, “An electronic timing test I video-recorded and testified about at trial showed that, while wearing the same style of shorts and starting with the same model of handgun just becoming visible from the front right shorts pocket, I could draw the gun and fire a shot out the car window in a time that averaged 0.28 seconds (slightly less than three tenths of a second). An officer cannot react to defend himself in that time span.

Finally, Manny points out that the record shows that in training to get his carry permit, “…applicants were taught that they should keep their hands on the steering wheel, tell the officer they had a concealed carry permit (before telling the officer they were carrying a gun), make no sudden moves and follow the officer’s directions. Unfortunately, Mr. Castile did none of those things.

I would like to thank Emanuel Kapelsohn for his testimony in the interest of justice (Yanez was acquitted), and thank Concealed Carry magazine for publicizing these important facts.

For background, see also here and here.

Massad Ayoob

ANOTHER VICTORY FOR SELF-DEFENSE

Thursday, July 27th, 2017

I love good news.

The District of Columbia was recently found to be out of line in requiring special reasons to fear crime as suitable grounds for issuing a concealed carry permit.  Read the decision here.

Civil rights advocates will recall when the Supreme Court of the United States ruled, in Heller v. District of Columbia, that DC was out of line in prohibiting its residents from owning handguns for self-defense. Thus began a long and fascinating chain of litigation; I expect you’re all familiar with that, and I won’t bore you by recounting it here.

As I and others predicted, DC put up enough red tape to constitute a concertina wire to keep its citizens from carrying guns to protect themselves. One element of that was the District’s requirement for the applicant for a carry permit to show that they had already been violently attacked, or at least, were more likely than the average person to suffer such a thing.

The states break down into “may issue” (translation: we can give you a permit if we feel like it) and “shall issue” (we have to give you the permit or show just cause why not, just cause being that we have sound reason to believe you’re a criminal, you’re nuts, or you otherwise would be even more of a danger to society if you were armed.)

Logic cringes at the thought.  You have to have already been attacked by someone trying to unlawfully kill you, before you can have a permit to protect yourself from that? Um, duh, how do you survive that first attempt long enough to apply for the permit in hopes of warding it off the second time?

Those who know me, know that for decades I’ve pointed out the fact that the defensive firearm is a direct analog to a fire extinguisher.  Each of those items is an emergency safety/rescue tool, whose purpose is to allow the ordinary citizen who becomes the first responder to ward off death or great bodily harm until the designated public safety professionals can get there to help. The gun doesn’t make you a cop and doesn’t mean you don’t need cops.  The fire extinguisher doesn’t make you a trained firefighter and doesn’t mean you no longer need firefighters.  “Emergency safety/rescue tool…first responder…the one there on the ground when the conflagration breaks out, and the one right now positioned to be the best candidate to stop something horrible from happening.”

Duh.

How would the American public react if they were told they could only have a fire extinguisher in their home or car if they had already gone through the horror of a full-blown house fire?  That’s what the Bloombergs of the world are asking for when they demand “special reason” to carry a firearm in self-defense.  Just a different type of life-threatening danger, is all.  But with one stark and important difference:  No fire ever stopped by itself because the victim picked up an extinguisher, but a HUGE number of violent attacks are broken off by the criminal as soon as he realizes he has met armed resistance, without a shot being fired.

Thanks to Alan Gura, the rock star of pro-armed-citizen litigation these days…and to the Second Amendment Foundation, which hired him to bring this case to its currently successful conclusion.

And, by the way, thanks again to all here who voted for a President who put one more pro-gun, pro-self defense Justice on the Supreme Court.

I’ve been on the Board of Trustees of the Second Amendment Foundation for many years. I’ve been proud of that.  I’ve never been prouder than now.

Massad Ayoob

WHAT TO SAY AFTER A SELF-DEFENSE SHOOTING

Friday, July 14th, 2017

Conventional wisdom has long held that after a self-defense shooting, the shooter should say nothing to police except, “I want a lawyer.”  The problem with that is, it’s exactly what genuine bad guys say to the police and is highly likely to lead to an arrest, which sets the tone for how the criminal justice system is going to handle things thereafter.

Veteran street cop Greg Ellifritz is, in my opinion, one of the sharpest of today’s trainers, and he takes a more practical approach, as I do.  See it here in his excellent blog, which I think should be regular reading for anyone serious about self-defense.

The commentary from his readers is interesting. Some is on point and some, I think, not.

Here, I’m interested in YOUR thoughts on the topic.

Massad Ayoob

SCOTUS DENIES CERT IN PERUTA

Tuesday, June 27th, 2017

Well, damn.

We’d all had hopes that the current Supreme Court of the United States would review and overturn the Peruta decision, in which the Ninth Circuit had upheld the right of California authorities to issue concealed carry permits at will, rather than the growing modern norm of “shall issue.”  I for one was surprised when SCOTUS denied cert.  The brilliant dissent of Justice Clarence Thomas is here: https://www.supremecourt.gov/opinions/16pdf/16-894_p86b.pdf.  A tip of the hat to TN_Man, a regular commenter on this blog, who was the first to post it here.

Dave Workman is an old friend and a keen observer and analyst of 2A issues.  His take on the matter is here: http://libertyparkpress.com/disfavored-right-scotus-denies-california-carry-case/.

Another long-time fighter for gun owners’ civil rights, David Hardy, weighs in here: http://armsandthelaw.com/archives/2017/06/thoughts_on_the_16.php.

There is no more outspoken advocate for 2A rights than David Codrea, who comments here: https://www.ammoland.com/2017/06/scotus-keeps-door-open-on-travel-ban-slams-it-in-faces-of-gun-carriers/#axzz4lCAyagBU.

My own take?  In too many jurisdictions, “may issue” – still the California standard – has become a synonym for “We’ll grant you the permit if you’re white, male, rich and politically connected.”  In Northern California, several elected sheriffs have gone with a de facto Shall Issue policy, and as has happened everywhere else, predictions of blood running in the streets have been proven wrong.

Under “may issue,” there are generally two standards commonly cited for granting the permit.  One is “the applicant carries large amounts of money or other valuables and is at higher risk for armed robbery.”  That’s certainly a good reason, but a tenet of American law is that life is of much greater value than “mere property” including cash.  The reason we are allowed to use deadly force against armed robbers is the accompanying threat to the victim’s life, not the cash in their pocket or bank deposit bag.  We live in a world where people are robbed and murdered for their running shoes, for God’s sake.

The other most commonly cited reason for granting the permit in May Issue states is credible death threats to the applicant.  Waiting for the death threat misses entirely the point of carrying a defensive firearm.  You don’t wait to buy a fire extinguisher for your car until the first wisps of smoke drift up from under the dashboard; it’s too late.  In the same vein, waiting to apply for a permit to carry a gun to protect yourself and your loved one is likely to leave you unarmed and helpless when the danger first strikes.

Shall Issue, now the prevailing norm, should be the universal norm, and there are good reasons why more than a dozen states now have gone a step farther and dispensed with the permit, allowing permitless carry (a/k/a Constitutional Carry) for all law-abiding citizens.

It is sad that SCOTUS turned down this opportunity to rectify this very real public safety concern.

Massad Ayoob

JUSTICE

Sunday, June 4th, 2017

It is good to read a letter from a prosecutor to the defense lawyer that says, “Since meeting with you and your client I have personally undertaken a thorough review of this matter and am dismissing the charges against your client…Please find enclosed the Nolle Prosequi.”

Last month, about four cases cleared from my personal expert witness docket without having to go to trial.  This one, in the Southeast, involved a murder charge against a woman whose estranged husband had pounced her from the back seat of the car and was strangling her from behind when she drew the handgun she was licensed to carry and fired over her shoulder, ending the assault. The charges had been brought by a senior prosecutor infamous for her obvious dislike of armed citizens. That prosecutor lost the last election.  A highly competent defense lawyer sat down with the prosecutor from the new administration, who took her role as minister of justice seriously.  Kudos to the defense lawyer and prosecutor alike.

Out West, an idiot show-off bully wielded a gun to intimidate a professional rival. He claimed it “went off accidentally” and that he had never fired it before. The bullet inflicted a grievous, personal injury. I was retained by the plaintiff.  The defendant’s insurance company caved and settled for the max of the policy, a couple million dollars. Case closed.

In the heartland, a burglar attacked an armed homeowner who caught him in the act. Bad move: the armed citizen shot and killed him. His survivors sued.  For much less than cost of trial, the case was settled. How much? I figure after the plaintiff’s lawyers take their cut, their clients will get enough money to buy a nice lawnmower.  Full trial might have gone over $100,000; my fee as expert witness for the homeowner’s side would have been among the least of that.

Not far from that one, a manslaughter charge against a homeowner who’d killed a burglar was dropped in return for a plea to a misdemeanor, again saving the ordeal and six-figure expense of trial.  The respected defense lawyer who had retained me had shown all his cards to a respected prosecutor, and the latter had made a decision both sides were happy with.

There’s an analogy between gunfights and court fights.  History shows that when a stalwart, competent cop or civilian alike point a gun at a violent criminal and make it clear that if the assault continues, the criminal will die, the criminal generally surrenders or flees.  When a stalwart, competent legal defense team faces an unmeritorious allegation with facts, the lawyers on the other side often have the same epiphany: realizing they can’t win, they either offer an acceptable compromise or drop the matter entirely.

For the most part, the system works.  Thus the old saying among lawyers: “In the halls of justice, most of the justice is in the halls.”

 
 
 
 
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