This month we asked our Network Affiliated Attorneys an open-ended question, inviting them to tell us a bit about defending clients who had used force in self defense. To guide the discussion, we asked whether the case went to trial or if the matter was resolved without a trial and how that came about. Additionally, we asked–
What factors in the situation made defending the use of force difficult and what elements turned out to be your strongest arguments supporting a claim of self defense?
The responses we’ve received to date follow, and we hope for additional reports from our affiliated attorneys.
Terry A. Nelson
Nelson & Lawless, Law Offices
43537 Ridge Park Dr, Temecula, CA 92590
My example is of a recent client charged with a crime for defending himself with a weapon other than a gun. He was a 20s-something young man in his front yard, leaving the house with his girlfriend, when her angry and hostile ex drove up, exited his car with a pool cue in hand, sought to attack the girl friend and when deflected, attacked my client “before he knew what was going on,” as the saying goes, actually injuring and bloodying my client. My client was able to fend off more blows, gained control of the pool cue and attempted to use it to defend himself from further continuing attack, but never struck the original attacker with it.
Unfortunately, my client did manage to hit the attacker’s car and damaged it. The client was arrested and charged with vandalism, which as pled carried significant jail time if convicted. The attacker was charged with assault with a deadly weapon. Police apparently choose to let the district attorney sort it out and decide whom to pursue more vigorously.
My client had legal defense insurance coverage. He contacted me for help after checking my profile and picture on line. My request for the client’s coverage from his insurance carrier required more discussion regarding the circumstances than a straight-forward attack and defense with a gun case. We had to demonstrate that the deadly weapon used against my client in the assault was the same deadly weapon he used in self defense. The issue was whether once the pool cue was taken from the attacker, was there still an imminent threat to my client. Also, was the damage to the vehicle a consequence of my client’s self defense actions. Good questions. It was resolved by agreeing that the question and the defense claim was an issue for the jury, and the client should not be denied coverage by the carrier usurping the jury’s role.
Settlement vs. Trial
Once the client was arraigned and proceeded toward a preliminary hearing, then a felony panel district attorney was assigned, to either settle or take the case to trial. Prior to that assignment, the general courtroom district attorneys at the required trial settlement conferences could not be convinced or persuaded to either dismiss the case in the interests of justice, or offer a reasonable plea deal. My client was willing to plead to some minor misdemeanor, with no jail time, in order to avoid trial and the risk of conviction, but no such offer was forthcoming at that time.
As experienced criminal defense attorneys know, juries are frequently unpredictable despite the best analysis and voir dire examination, and can not be trusted to understand the case or do the right thing, even in the best prepared and defensible cases. An ethical attorney thoroughly explains that risk before he allows the client to dictate the case be tried to prove his innocence, as some want to do. The client in this case did understand and agree to seek settlement. As the defense attorney being paid by his insurance carrier, it would be in my financial interest to take the case to trial, without argument, when demanded by the client, but it would not be in the client’s best interests.
The strongest argument for defense - Innocence.
That risk analysis discussion with the trial district attorney involved the fact that my client was a young service veteran with no criminal record, standing on his own property, defending himself from a violent, unprovoked attack, versus the attacker, who we learned through discovery was a repeat offender of violence and theft crimes, and was out on bail at the time of the incident and had failure to appear warrants outstanding. By the time of our plea discussion, he was serving time on one or more prior charges. Sometimes facts DO matter. With that evidence, we obtained a plea bargain in line with our original request for a minor non-violent offense similar to disturbing the peace. The peace was in fact disturbed by the fight. That conviction will be the subject of a motion for expungement of conviction, which in CA is almost always granted on minor crimes, misdemeanors, and even many felonies.
The moral of the story, the take away should be: avoid if at all possible situations where violence can occur. Withdraw when possible. Even in the best factual case, self-defense explanations and claims can not be guaranteed to succeed in avoiding arrest, or getting charges dismissed once filed. If you carry a firearm, or any recognizable weapon for defense use, think seriously about obtaining legal defense protection for yourself, otherwise you risk financial ruin when involved in legal disputes, whether criminal or civil.
Laura A. Fine
Law Office of Laura A. Fine, P.C.
PO Box 1240, Veneta, OR 97487
My client was walking his dogs on the wide shoulder of a country road. A large truck coming towards him left the road and headed straight at him on the shoulder. My client had a concealed weapons permit and a handgun in a holster under his coat. He immediately pulled the gun and pointed at the truck which was coming perilously close. The truck stopped and three angry young men got out, circled my client and yelled at him.
The police arrived and arrested my client for pointing a firearm at another. I obtained my client’s release from jail, conducted investigation into the backgrounds of the three men, provided the information to the prosecutor and all charges were dismissed against my client.
Michael Whisonant, Jr.
Jaffe, Hanle, Whisonant & Knight, P.C.
The Alexander House
2320 Arlington Ave. S., Birmingham, AL 35205
I had a client that was able to hire me with the help of the Armed Citizens’ Legal Defense Network for a simple assault (misdemeanor) case. He was already charged with the crime and had bonded out by the time I got involved.
The key to many self-defense cases including this one was a quality investigation done with the help of a private investigator. At my coordination the private investigator was able to interview witnesses, get witness statements, review phone records, help us obtain banking records and more.
Law enforcement usually takes very little interest in misdemeanor cases and they had placed their entire trust in the word of the complainant. With a thorough investigation we were able to convince the District Attorney to dismiss all charges against my client.
Randy L. Robinson
Attorney at Law
P. O. Box 682, Augusta, ME 04332
I had an interesting case involving a man, a Vietnam vet and part-time gun salesman, who has a testy relationship with the state and local police. A few years ago, a fuel delivery driver came onto his property and my client’s dog sniffed him. The man kicked him, then did it again. The dog got angry and charged and the driver choked the Jack Russell terrier.
My client interceded and HE got attacked. After landing a punch, he saw the guy take off – and try to hit the dog with his truck on the way. Anyway, my client was somehow charged with assault, turned down the plea deal, and we took the case to trial.
I argued self defense at the trial, because he only hit the driver after being attacked. The judge declined to rule on the issue of self defense, but did find him not guilty based on defense to chattels – he was defending his dog. Odd case.
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we hope to have more responses to this question. If not, we’ll have a new question for our affiliated attorneys for you to read about.