A Dramatization

The story you’re about to read is false. The names have been completely made up.


State of New Jersey v. M. Shooter

Prosecution for Second Degree Murder

There are liberal enclaves in this country. Concealed carriers are unwelcome there; sometimes they are persecuted. The American Bar Association says that a prosecutor’s job is not to get a conviction, it’s to do justice. But expecting a prosecutor to play fair when he can score political points at your expense is like expecting a bee not to sting you because you don’t like honey.

A good criminal defense lawyer humanizes his client if he has to put his client on the stand (and in defending with the affirmative defense of justification or self-defense, the client must tell his story). So prior to cross examination we know Mr. Shooter is a nice guy, minding his own business, who was attacked by a guy with a knife while Mr. Shooter was on his way home from work.

Judges, however, are also subject to political winds. So we don’t know that Mr. Doe, the man who died, had four armed robbery convictions, had spent 6 of the last 7 years in state prison, had cocaine in his system at the time of the attack, was subject to an order of protection from his ex-wife, and had slashed another man fifteen minutes earlier when he stole that man’s wallet. The judge has determined that none of that is relevant because Mr. Shooter didn’t know any of that at the time he was forced to defend himself.

Keep in mind that people of similar beliefs (guns are bad) tend to elect people who hold those views (we should prosecute those who use guns, no matter what). So many of the people on the jury may in fact believe that anyone who owns and carries a gun is really just looking for trouble. To this end, what follows is not about the answers to the prosecutor’s questions, it’s about the message sent by the questions themselves. Think of the prosecutor working a marionette here, making it say what he wants it to say.

Judge: You may cross-examine Mr. Prosecutor

Prosecutor:    You’ve told us that you were in fear of your life, is that right?

Shooter:          Yes

P:         So scared, in fact, that you fired nine times, hitting Mr. Doe six times?

S:         I just kept pulling the trigger until he went down.

P:         So your intent was to kill him?

S:         No, my attempt was to stop a guy who was coming at me with a knife.

P:         It had a three inch blade, Mr. Shooter, were you aware of that?

S:         It looked like a machete to me.

P:         So, you’re a guy who weighs 220 pounds, you’re armed with a pistol, and you’re scared of a guy who is 150 pounds, armed with only a little pocket knife?

S:         He said he was going to slice me up. And it was a big knife to me.

P:         And you believed he was going to do that with the knife he cleans his fingernails with?

S:         That blade was sharp, and it was plenty long enough to cut my throat.

P:         (Holds up knife) This little thing was what a 220 pound man, an ex-marine, was scared of?

S:         You’re damned right!

P:         Isn’t it true that you were just itching to kill someone, and it didn’t matter who that might be?

S:         No.

P:         You’ve never said you’d kill anyone who’d threaten you?

S:         No.

P:         You’ve never said that you believed two bullets center of mass was all the justice any thug ever needed.

S:         I don’t think so.

P:        I’m showing you a Facebook post from 2011 where you said both those things.  This is Prosecution Exhibit 19.

S:         You’re not reading the whole quote.

P:         You’ve never said “Two to the chest, one to the pelvis, make sure the bastard is deader than Elvis?”

S:         That’s what we were taught at our defensive shooter class.  Sure, I’ve told people that.

P:         And you’ve repeated it often to your neighbors, haven’t you?

S:         Yeah, probably.

P:         You’ve said much worse, too Mr. Shooter. You’ve said that it’s best to shoot someone with a knife when they’re 20 feet away from you. You’ve said that?

S:         I don’t recall.

P:         Well, here, let me help you. This is your Facebook post from January 17, last year. It says “Best practice is to shoot someone at 20 feet if they have a knife.”

S:         Yeah, but you’re not reading –

P:         Answer my question, you said that.

S:         But that’s not in context.

P:         You said it.

S:         I said it in the context of knife attacks.

P:         You’re prone to giving advice to people on line aren’t you?

S:         I suppose.

P:         Like “if you shoot someone outside your house, drag them back in.” You wrote that on March 13 last year.

S:         I did.

P:         Is that what you did here?

S:         No.

P:         In June of this year you said on Facebook that you would have shot the Oklahoma man who was mentally ill.

S:         He was drowning his babies.

P:         You would have shot him though.

S:         Yes, to save a life.

P:         And the young man who shot to death three people in Oklahoma.  Like here, one of them was armed only with a knife.  Another was armed with brass knuckles. You said he was justified in shooting people armed with things that couldn’t kill him.

S:         I said I would have shot him too.  I stand by that.

P:         In fact, you said “If that had been me, the third guy would never have made it to the back yard, ‘cause I’d have gone for his head.”

S:         I didn’t mean it like you said it.

P:         But that’s what you wrote, right?

S:         That’s what I wrote, not what I meant.

P:         And you told Twitter User @beebopper23 that “the only pistol rounds worth using are Critical Defense because they create a larger wound channel.”

S:         In the context of –

P:         Just answer the question

S:         Yes, I said it.

P:         And if you create a larger wound channel, the only reason to do that would be to kill someone.

S:         No, the reason to do that would be –

P:         You’re not suggesting that Mr. Doe is not dead are you?

S:         Well, no.

P:         And you did use Critical Defense ammo, right?

S:         Yes.

P:         So your intent was to kill?

S:         No, my intent was to stop a knife attack.

P:         And you stopped that attack by firing ammunition that you said on Facebook on July 6 had “better terminal performance,” do you remember that?

S:         We were comparing ammunition.  Yes.

P:         Yes, you were. Now tell me, what is “better terminal performance?”

S:         It terminates a threat better.

P:         You’re aware, are you not Mr. Shooter, that terminate can mean kill, right?

S:         It can.

P:         So you selected ammunition that was better suited to killing?

S:         Better suited to stopping threats.

P:         By killing those threats.

S:         No, by causing trauma.

P:         Facebook, 2014, you said Michael Brown got what he deserved.

S:         I did.

P:         So you support killing unarmed people.

S:         Unarmed doesn’t mean not dangerous.

P:         Facebook, 2016, April, you said Philandro Castillo had it coming?

S:         No, what I said was that the shooting was justified because the man was armed with a handgun and was reaching for it.

P:         You just like seeing people shot, don’t you!”

S:         No.

P:         You’re like a local Murder Incorporated, aren’t you?

S:         No….


Now, if actual lawyers were defending this, there would be multiple objections, and each time there was one, the jury would have more time to think about the question, and maybe why it was that the defendant didn’t want to answer it. And, of course, on redirect examination, all of the explanations our hero here didn’t get to give to the prosecutor could be given to his own lawyer.

The problem is that lawyers always say “when you’re explaining something bad, you’re losing.”

So, lets go back in time. How do we prevent this awful cross examination?

First, move to pretty much any southern state or Texas where laws protect normal people, not criminals.  Stay out of the Acela Corridor.

Second, purge your Facebook, Twitter, Instagram, Linked In, and other social media platforms of anything that even remotely suggests you might want to kill someone if they broke into your house, or attacked you on the street.

Don’t wait. Do it today. Get rid of all those awful posts where you cheer on people who’ve defended their lives and property (like the fellow with the AR-15 in Oklahoma). Purge them.  And stop writing them.

The first thing that happens if the cops start looking at you for possible prosecution is that they look at your social media pages. They know that people say very stupid things, and that these very stupid things tend to get forgotten over time. But the internet never truly forgets anything. So they get a subpoena, get your information, and sift through the pictures of the dog and cat to find those places where you’ve said things you’ll now wish you could take back.

The second thing they do is they start talking to friends and neighbors. If you are dispensing the unhelpful and legally improper advice to drag bodies inside your house, they are apt to conclude that you are either not playing with a full deck, or that you intentionally acted to avoid the impact of the law.

From time to time neighbors ask me to tell them about conceal and carry. I tell them why I carry, but I never tell them what gun to buy, or give advice about defensive shooting. I tell them “take a course and get trained.” I also tell them that the qualification course they take is the first course they take, but not the last. I tell them that if they decide to conceal and carry, it means spending at least four hours at a range every month practicing shooting, drawing, moving to cover, and similar tactics. Training + Practice = Safety.

Training also minimizes the potential for hearing and acting on ridiculous information like “drag the body inside” or “a .45 caliber bullet will stop anything.” In short, training helps create someone that respects the firearm and respects the privilege to conceal and carry, and practice helps make sure that if the time ever comes to deploy your weapon, you won’t shoot your toes off.

All of this, however, comes down to one very central point.  If you’re on trial for murder, or assault, or manslaughter, or some other felony, you need to have a seasoned and skillful criminal defense attorney.  You need someone who has heard the music and learned the dance.  You need someone who knows criminal procedure, understands jury behavior, and most importantly, understands the law of the jurisdiction.  That’s not the guy in the one-room office above the hardware store who drafted Uncle Sid’s trust.

What this really illustrates is you need to look into conceal and carry insurance either from NRA (Carry Guard) or USCCA (Delta Defense).  You need to have protection available before there is an investigation.  You need an attorney present when questioned.  You need to have a card, like I have, that tells you the steps to take in the event you’re detained following a shooting.  You need to make sure that your continued freedom is not taken away by you acting to continue breathing.

I take no position on which insurance plan you should get, but I agree with the NRA’s Dana Loesch that carrying without insurance is foolhardy.

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