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Lethal Force.

Reason and prudence exist in the minds, the values, and the standards of the triers of facts. In a bench trial, the representative of justice is the judge. In a jury trial, there are six people plus alternates) in civil lawsuits, or in non-capital criminal cases in Florida, or 12 people in a case punishable by death in Florida or by prison elsewhere in the United States.

The jurors are supposed to be the defendant's peers. It may seem at first that this has been lost in the self-defense shooting case, the peers of the accused would be 12 innocent victims who fought back against the lethal threat of an attacker. As you've doubtlessly noticed, no one with such experience is empanelled to sit on the jury of a citizen (or, for that matter, a police officer) who is accused of the misuse of deadly force.

The fact that gun owners, crime victims, friends and relatives of cops, and NRA members are routinely excluded from juries by the lawyers (and believe me, they are excluded as a general rule), does not mean that the system is automatically against the citizen who used a gun to defend himself. It merely shows that the law understands the jury to be a clean slate, a body of citizens free from bias or prejudice toward either side of the case.

Upon that slate will be written the facts in evidence. The jury, free of bias from either side, will use their common sense to determine who was right and who was wrong, who was guilty and who was not, who was the lawless aggressor and who was the intended victim.

At the beginning of a trial, the judge will say to the jury, "If you believe that a reasonable and prudent person would have fired a shot, knowing what the defendant knew and in the same situation he was in, you should find him Not Guilty' of murder. If, however, you believe that a reasonable and prudent person in that situation with that knowledge would not have fired the fatal shot, then you should find him guilty." The Line Between Fear And Terror

The judge's explanation of the law to the jury may well include the difference between bare fear and reasonable fear. Reasonable fear within this doctrine is the assumption that a reasonable and prudent man or woman would fear death or grave bodily harm if they did not pull the trigger.

Bare fear, on the other hand, is mindless terror, naked panic. In a state of blind terror, by definition, reason can no longer dominate. If your customer was terrified out of their mind" they'll have a hell of a time convincing a jury that firing the gun you sold them was a reasonable and prudent act. Reasonable fear, on the other hand, is always defensible.

Indeed, reasonable fear is a necessary ingredient for self defense! If there was no fear that an attacker would do something life threatening, why did your customer shoot him? If they were so calm before they fired the gun, were they not in control of the situation, making gunfire, by definition, unnecessary'? Was it on the advice of the salesperson that this gun owner took the life of another citizen?

Opposing counsel will try to trickbag your customer on this. In 1984, a highly skilled prosecutor cross-examining me in a manslaughter trial defined reasonable fear out of my own book, and then said, "Mr. Ayoob, if the defendant looked up now in this courtroom and believed the roof was falling in, he might genuinely believe that, but it wouldn't be a reasonable fear, would it?"

Counselor," I replied, "in this particular case, the officer looked up and saw the roof coming in on him."

The jury burst out in sympathetic laughter, the prosecutor turned an angry shade of red, and one more seed was sown for the jury's ultimate verdict, which was Not Guilty.

In another police trial cross-examination, the prosecutor said, "Mr. Ayoob, the officer might sincerely have believed that there were Martians on the other side of the wall and fired through the wall, but that wouldn't make it justifiable, would it?"

I answered, "Sir, the deceased in this case died with a loaded revolver in his hand. In essence, we found a dead Martian on the other side of the wall and that justifies the judgment of the defendant." Verdict: Not Guilty.

The decision to shoot must be reasonable. Sometimes, of course, the most reasonable decision is not to shoot, but to get away. Remember, the law considers deadly force justifiable only when it is otherwise unavoidable. This brings us to the issue my colleague John Farnam calls preclusion, and we'll discuss it next month.
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Title Annotation:part 8
Author:Ayoob, Massad
Publication:Shooting Industry
Date:Jan 1, 1992
Previous Article:The inside scoop.
Next Article:Ruger's first .45.

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