The Myth of the Zealous Prosecutor

I've come across a lot of gun forums in which individuals somehow think that *any* use of a firearm results in prosecution.

For example:

Or

Then you have this nugget from a famous gun writer:

So you have an expert witness who makes money from being hired as a witness telling everyone that shoots will always result in prosecution.

HOWEVER: Any first year law student who's half paying attention knows of the justification of self-defense. My question is, why is the myth of the overzealous prosecutor so abundant? Indeed, why do many gun owners feel like the whole world is against them?

Take for example, the first quote. You can kill a legitimate threat with a 40mm grenade if you wanted. So long as the killing was (a) objectively reasonable (b) honestly believed and (c) proportional (in the sense that lethal force is met with lethal force, not in the sense of .22LR vs. 40mm M203.).

People always cite the Harold Fish case as if the gun really mattered--but what they fail to do is give enough weight to the fact that Fish shot an unarmed man who did not pose a credible threat (yelling and running). If the man had a large stick, that would have justified the shooting (no objectively reasonable fear of serious bodily injury).

On the other hand, I've read *MANY* cases of self-defense shootings with no prosecutorial action.

Anyway, what are your thoughts on overzealous prosecutors? Do you think it's an internet myth? Or do you think that it happens often?

 

Why? Because lawyers are assholes. I mean, hell... I wanted to be one.

You can say it's a myth, but I've seen the business end of it before (up close and very personal) and for every good guy there are two bad guys that would love to take your gun and throw you in jail on some overblown charge simply because you dared to possess a firearm for self defense.

Law is what you can get other people to believe is on paper. I mean, just look at all the legal mumbo jumbo related to firearms.

Progun lawyers? They are the minority.

 

I don't know that it's strictly an internet myth. I think that the myth has been in the works for a few decades.

It's in best interest of the pro-gun movement to perpetuate the myth. It perpetuates a, for lack of a better term, bunker mentality and folks loosely associated with the movement will be drawn farther into it by the rhetoric. It's a great way for the NRA to build a membership base and increase dues.

Like all myths, there's some basis in fact, and I don't doubt that there are some folks who are prosecuted here and there, but, as you quoted above, KirStang, it's not like reality supports the concept that shooters face automatic prosecution every time they defend themselves. They face investigation, but I don't see that as being a particularly onerous thing considering that it's consistent with what police have to go through as well. As proof, I point to the fact that homeowners insurance premiums are not significantly higher for gun owners unless there are high valued guns being insured - but that's explained by the increased risk of theft, not any liabilities. Folks that conceal or open carry don't need special insurance and aren't forced into pools or nonstandard coverage.

 

I think we can see examples of overzealous prosecution in every town, city and rural suburb in America. It isn't just a thought process that goes through the heads of gun holders. When a DA is an elected official, naturally the temptation for convictions and over zealous acts are constantly in place. Mike Nifong anyone?

Anyone who is scared of prosecutors and gun laws should move to TexASS. They have some crazy laws.. including you are allowed to chase a person down for days and shoot him with lethal force in the event of a robbery etc.

 

I agree that in general the 'zealous prosecutor' myth is somewhat overblown. Even here on the liberal side of WA most self defense shootings go unprosecuted. That being said there was a very interesting case that happened here a few years ago. I'll give you the cliff notes version and then you can read the links yourself.

Basically this guy noticed his detached garage had been broken into during the daytime. He called the cops and an officer came out and agreed it looked like it was broken into and furthermore that some of the things that were still in his garage had been staged so that whoever broke in could easily remove them when they came back. So this guy camped out in his garage overnight with a .22 rifle and a shotgun. Later that night he sees some headlights and then flashlights pull up to the garage. He shoots at the flashlights and kills a man, the other flashlight belonged to the intruder's wife and she escaped. Later she was caught and charged with attempted burglary since they found bolt cutters, pry bars etc in their truck. She had also was facing unrelated methamphetamine and drug paraphernalia charges. Basically her and her dead husband weren't model citizens. When the cops investigated the shooting they thought it was self defense. A few months later however the prosecutors decided to charge the resident. He was convicted of manslaughter and is now appealing.

http://www.thenewstribune.com/2010/10/13/1380833/onalaska-man-who-shot-intruder.html

http://www.kirotv.com/news/23206043/detail.html

http://tdn.com/news/local/article_47212870-f820-11df-aab6-001cc4c002e0.html

http://tdn.com/news/local/article_a682a33a-a37d-11e0-a887-001cc4c03286.html

I find it very interesting that the police thought the shooting was justified but the prosecutors didn't. The prosecutions case was that seeing flashlights in your driveway isn't necessarily a good reason to start opening fire. In all likelihood if the resident had simply waited for the burglars to enter the garage I think he probably would not have been prosecuted.

So yes, while I do believe the zealous prosecutor myth might be somewhat over-hyped, I think it might be useful to keep gun owners aware they still need to follow certain rules.

 

Agreed on the case ChrisJericho mentioned, regarding the gun owner's fault.

It's not like there's a good possibility someone was driving on his road, found out he/she took a wrong turn and decided to turn around by quickly driving a bit into a random person's driveway, reverse and be gone in usually <10 seconds, is there?

Surely he has magic powers, can see through the garage door and predict an attempted burglary from the sounds of the engine and the weird light those particular flashlights give off.

*sarcasm disclaimer*

EDIT: I just noticed I got part of the case summary wrong, so ignore what I wrote above.

 

Actually, I don't see the Washington case as necessarily being over-zealous (which is really what we're talking about here). There are two ways to view his actions: either he was defending his property or he actively constructed an ambush and intended to kill whoever showed up. I don't know which version is closer to the truth, but it seems to me that this specific case isn't exactly a prime example of prosecution run amuck. And I doubt that most reasonable folks are going to accept that the latter version is ok at all.

ChrisJericho, your last line strikes me as odd:

Drivers have to follow certain rules. So do pedestrians. So do supermarket shoppers. We all have rules that we have to follow. Gun ownership simply imposes a new set of rules on the owner, some for his own safety (don't look down the barrel when the gun doesn't go off because of the risk of a hangfire) and some for the safety of others (you can't shoot your gun in the air in celebration). Some of those rules are laws, some common sense but regardless they didn't apply to the owner before the gun showed up.

I don't know if Mr. Brady is actually guilty of manslaughter (although based on what I've ready, I tend to agree that he is), but I get why the prosecutor decided to try him. It's a stretch to call this self-defense.

 

I don't see it as being over-zealous either. Ideally the resident should have just waited in the house which was some distance away from the detached garage, and called the police when the burglars came. I was spotlighting this case because generally in this area, when a resident kills an intruder/burglar, the resident is not prosecuted.

The rules I was referring to are being able to identify your target and actually being in fear for your life. The resident from what I can tell merely saw headlights/flashlights outside of his garage so how could he actually determine if he was in fear for his life and therefore open fire? If these rules strike you as "odd" I could expand on them further.

With all that being said, if I was on the jury I would have a hard time convicting him of manslaughter.

 

See, I wouldn't have a hard time convicting him if he just saw folks walking up his driveway with flashlights. He had no reason to believe that they were armed or his live was in danger. He couldn't identify his target, nor could he reasonably think his life was in danger. He didn't act like a responsible gun owner - he acted like a vigilante. And vigilantes go to jail because they break the law.

 

Eh.. I'm of the mindset that says "shoot first, ask questions later". If you're walking up to my door or garage after midnight with flashlights, you better be wearing a badge. If not, I'm either gonna pump you with the mossberg 500 or the XDM 9mm (if the dogs don't take you down first). If you walk up to a person's house after certain hours in a sneaky manner, chances are you're up to no good.

I'm in total disagreement with you on this one Jazz. I just cannot subscribe to a theory that a man protecting his house is any sort of vigilante criminal. When the police can barely protect themselves these days, I'm damn sure going to protect me and mine if it seems like there is a threat to any of us. I'm sorry but approaching my house in the dead of night with flashlights and sneaking around is an imminent threat no matter how you slice it.

While it's not necessarily overzealousness on the prosecutions side in this particular case, I still believe that there are plenty of over zealous prosecutors in Amurika and they'll do anything to make sure they get re-elected.

 

Glory's Sun, I get your point. But that's not what happened. I'd be much more forgiving if these two folks had been in the garage. They were walking up the driveway with flashlights in hand. There's no way to know that they're a threat at that point. If they'd circled the house a few times or exhibited more suspcisious behavior, I'd agree with you, but that's not in the article.

I'm sorry, but it's just not reasonable to shoot two people on your property after your garage has been broken into unless they're threatening you with physical harm. It doesn't seem that either of these two were armed. If they hadn't been the two that broke in earlier, it would have been murder.

 

I see that point and I follow it, but, let's face it.. what are the chances of something good happening when people are walking up to your garage in a stealthy manner with flashlights after dark?

 

Golly-gee, Mr. Wilson.

All this masturbatory conjecture is fun. Turns out there is a ton of precedence out there for nearly every self-defense scenario you could imagine.

Protip: In order to kill someone in self defense, you have to be able to articulate that they had the means, opportunity and motivation to kill you.

 

If they hired me as a defense attorney, I'd argue that the couple was on the curtilage, thus, basically committing burglary at the time of the shooting and is thus protected under the castle doctrine (if the state had a castle doctrine).

The problem with that shooting is you're basically shooting a non-threat, outside your home, who could have been anybody (like a neighbor asking for a cup of sugar, or, a cable/phone repairman.) It's always these questionable shoots which are cited in gun-blogs, but, on balance....to an objectively reasonable person, shooting at a flashlight in the dark, outside of your home, isn't justified.

 

I was under the impression that many areas don't consider the curtilage (garage, shed, etc.) an area you can defend with lethal force if in your home.

Example: Ye Olde Urban Legend of shooting a dude in the yard and dragging him back into the house.

 

Yeah Yeah ..

I know I'm a bit overboard in my comments. I get it. However, any neighbors of mine would certainly call first if they needed sugar after midnight or they'd just wait till morning. And I wouldn't have to worry about a cable/phone repair man.. they aren't going to work past 8pm unless it's a corporate acct.

Sure it's a tad unreasonable to be shooting at random flashlights, and I would certainly identify before actually firing a weapon, but the case still stands that I'm going to use any force necessary to protect my domain. It's not a masturbatory idea... it's a necessity. I'm actually more of the type of person who would lead up the alpha dog, grab the XD and sneak around behind and see what was going on before just randomly shooting. So, get off mah dick.

So tell me, if I were successful in sneaking around these people and found them actually breaking and entering my domain, am I justified in discharging a firearm at them? Or am I supposed to let the dog handle the situation and wait 30 minutes for the cops to show up?

 

Where I come from, you can't shoot someone for breaking into your house. Texas? Eh.

You are only allowed to defend yourself against a perceived threat against your life.

Why are you even going outside, Slick? Criminals tend to operate in 2-3 man groups.

Going outside is asking to get into a confrontation where you are outnumbered.

 

Because I'm a moron who acts first and thinks second.

I have no qualms admitting it. There was only one time when I was certain we were getting broken into, during that experience, I snuck out of bed, unlocked the gun, pointed to the GSD and had him go in front around the house. After finding no alerts or alarms in the house we then moved outside. I'm an idiot. I get it. It's that whole brazen "get him before he gets me" bullshit that will end up doing more harm than good, but it's hard to rewire that. (I guess)

 

Curtilage:

US v. Dunn

*Generally* Burglarly, Arson, Rape, Robbery and Kidnapping (the acronym "BARRK") are considered crimes presumptively dangerous to the person. Hence, if someone is burglarizing your home (the breaking and entering in the night-time of a dwelling house of another with the intent to commit a felony therein), you can use lethal force against them. They don't even have to threaten you. It's a much easier case if they do threaten you, though.

*THIS IS NOT LEGAL ADVICE*
--- merged: Sep 30, 2011 2:15 PM ---
Interestingly Glory, US v. Dunn--and a plethora of other 4th amendment involved just that, *Police Officers* *legally* snooping around your yard. Would you really want to zap a popo if he was legally on your property?

 

Like I said: You can't shoot somebody for standing in your driveway or breaking into an unattached garage to steal your car.