Part 1: http://ift.tt/1PSiWdN 3. Lawyers Argue About the Facts Good lawyers always have long detailed initial meetings with their clients to understand the facts of what occurred. However, good lawyers also know from experience that the client's version of the facts is just that; the client's version of the facts. In almost all criminal cases, there are other different or even competing versions of the facts. It is always the case that there exists a truth about what actually occurred. However, it is obtaining that truth, and getting other people to accept that truth, that is often the problem. Sometimes people have different perceptions about what occurred. Also, some people lie about what happened. For example, it is often the case that physical force or deadly physical force is used to defend against the coordinated and threatening efforts of a group of people. In these cases, there are always at least two vastly different versions of events. Usually, there are several different versions of events. I routinely tell my clients not to be surprised when the person identified as the "victim" and all his or her friends have coordinated their versions of events to support an allegation of criminal conduct by my client. My clients are not usually surprised by this rather obvious prediction. When I start talking to the prosecutor in a criminal case, I always advocate for the best result for my client. This advocating normally focuses on my client's version of the facts. However, prosecutors routinely disagree with the facts as I present them. They almost always focus on the facts as related by the person identified as the "victim" or people associated with and friendly to the victim. As is always the case, the differing versions of the facts always lead to vastly different potential results for my client. We lawyers almost never argue about the law. If we have a disagreement about how the law applies, we can generally figure it out with a bit of legal research. Although you may invest lots of time learning about and studying the law, it is the facts we generally argue about; not the law. Indeed, this is the purpose of the jury. It is the jury that is charged with getting to the bottom of the facts of what occurred. They are given the law by the judge. I often advise clients that their case isn't about what actually happened. Their case is about what people will say happened as well as the physical evidence and reasonable inferences from that evidence. In many cases, the physical evidence does not resolve small but important or even conclusive details about what actually happened. It isn't enough to act consistently with the law. To be safe from prosecution, the evidence of what actually happened must also be clear to a police officer or a prosecutor. Remember, there is no doubt that innocent people actually get convicted in our justice system. In a dispute over the facts, most, if not all, prosecutors will afford the least credibility to the defendant. Remember, it is the defendant in a criminal case who usually has the most to lose and therefore the most invested in a particular version of events. As I stated previously, the person with the shiny badge is usually afforded the most credibility by the prosecutor and the jury. The "victim" of the alleged crime is usually the next most credible to these people. Whenever you think about pulling out your firearm, you need to consider both whether what you are doing will be considered reasonable by a random group of strangers as well as the real possibility that radically different versions of events may be presented to the police, the prosecutor and ultimately your jury. In keeping with the theme of this article, these reasons cut strongly in favor of being very conservative about pulling out your firearm. 4. Mandatory Minimum Sentences It used to be the case that sentencing judges had vast discretion in fashioning appropriate sentences based on the particular facts and circumstances of each case. This makes the most sense to me as judges are in a much better position than legislators are to fashion an appropriate sentence in a particular case with unique facts. In our ridiculously over-criminalized society, the trend over the past several decades has been to drastically diminish the judge's sentencing discretion in favor of more harsh, or even mandatory prison, "one size fits all" style sentences. Mandatory minimum sentences are generally those sentences where prison is required. In Arizona, all crimes involving the discharge, use or threatening exhibition of a firearm are mandatory prison offenses for those who are found guilty. As such, most gun related crimes carry the guarantee of prison time for those who are convicted; even for the first time offender. There is no possibility of probation for those who are found guilty. If you are ever prosecuted for a criminal charge resulting from a gun related incident, the odds are you are not going to trial. Regarding criminal cases generally, the vast majority are resolved with a plea bargain agreement rather than a jury trial. Depending on various factors, most estimates are over 95% of all criminal cases are resolved by plea instead of by jury trial. I strongly suspect the rate of plea-bargaining is even higher in cases involving mandatory minimum prison sentences. In short, because the risk of rolling the dice at trial is so incredibly high, the overwhelming vast majority of people will opt instead for the relative certainty of a plea bargain agreement. This vast majority of people undoubtedly includes people who may have ultimately been acquitted after a jury trial had they risked it. The bottom line here is that the risk of a long mandatory prison sentence upon a conviction often serves to coerce people out of their right to a jury trial. Prosecutors are well aware of this reality. I never officially offer any client better than 50% odds at trial. The truth is nobody can accurately predict what a jury will decide. Indeed, different juries sometimes reach different conclusions on the same facts. Trial is always a risk. However, imagine I could accurately offer a 90% chance of an acquittal after trial. In a mandatory prison case, that also means a 10% chance of a long mandatory prison sentence. When faced with a plea bargain offer to plead guilty to a lesser offense and receive a 100% guarantee of probation, I know from experience that most people will accept the plea offer; even with the hypothetical 90% chance of an acquittal at trial. Given this set of circumstances, few people will risk a trial in a gun-related case. Don't get me wrong. I enjoy trying cases, and it is generally my personal preference to go to trial. However, given that I don't have to personally suffer through the prison time if we lose, it isn't my decision. Some criminal defense attorneys would say that some prosecutors intentionally overcharge cases knowing the risk of trial will simply scare the defendant into accepting a plea offer. I have had many prosecutors cheerfully point out to me that the defendant's risk of a long prison sentence after a trial far exceeds the substantially lower risk contained in the pending plea offer. It is no secret that people who maintain their actual innocence sometimes plead guilty. Indeed, our United States Supreme Court specifically approved of the concept that there is no constitutional impediment to people who openly maintain their actual innocence from pleading guilty and accepting a plea offer for the purpose of limiting their risk. It happens in our criminal justice system. If you think you will simply explain this concept to a jury at trial, you would be wrong. The existence of a mandatory prison sentence upon conviction is a fact that is intentionally withheld from the jury at a trial. As an example, a jury may reasonably conclude that a 19-year-old kid with no prior convictions who sold $10.00 of marijuana (the amount he paid for it) on two occasions to his 19-year-old marijuana-smoking buddy would be looking at probation upon conviction. However, these facts require a mandatory prison sentence in Arizona. It is my experience that people give more thought to decisions they perceive to be very important than they do to routine less serious decisions. I suspect a jury would be much more concerned, and maybe even pay closer attention to the evidence or more rigidly hold the prosecutor to his or her burden of proof, if they knew the 19-year-old kid was guaranteed to go to prison upon conviction rather than get a slap on the wrist with counseling as they may otherwise reasonably conclude. If you are charged with a gun-related crime and plan to go to trial, you need to know the jury won't be told about the guaranteed prison sentence you will suffer if they find you guilty. Jury nullification was supposed to act as a final check on the government's power. Indeed, I would love to argue, with the right set of facts, that even though the peaceful homeowner was legally not permitted to discharge his or her firearm, the jury ought to acquit in any event as it was a close call and the home invader bad guy shouldn't be considered a victim. I suspect I could have success with that argument in the right case. However, the state of the law is that I am absolutely prohibited from asserting it. The case for being very conservative about pulling out your firearm is strong. The best way to avoid having to deal with the risk of a mandatory prison sentence is simply being smart enough to avoid doing the types of things which may give rise to criminal charges. Don't be an idiot with a gun! 5. What to Think About When You Are Thinking About Pulling it Out Given that self-defense is all about what's "reasonable," and that the facts of most criminal cases are almost always hotly contested, and keeping in mind that you will likely be facing a mandatory prison sentence if convicted, avoiding being charged with a gun crime ought to be of the utmost importance to gun owners. I'm sure you can see now why I advise people to be very conservative about pulling out their firearm. That said, there exists extraordinarily rare times when you must. Of course, my preference is that you call me in advance of pulling out your firearm. I expect I could be very helpful to you in determining whether pulling it out in your particular situation would likely be a violation of the law. I can offer you my best advice if you schedule some time to come into my law office and lay it all out for me in advance. I expect the appointment will likely need to be at least an hour and possibly longer. Even then, I'm likely to offer you an unsatisfying qualified answer to your question based upon some of the reasons I have already written about in this article. I would also mention to you that if you have time available to consult with me in advance of a decision to pull out your firearm, you absolutely shouldn't do it. The nature of an imminent threat is such that you simply don't have any time available to consult with anyone. It is a "right now" "right here" type of decision. If you are lucky, you may have a few seconds to think about it in advance. Fortunately, I believe you can do it with a simple analysis. I want you to imagine that if you decide to pull out your firearm, you will certainly be prosecuted for a serious felony gun crime. To truly understand this possibility, you must have already been arrested, charged and prosecuted for such a crime. Given that, if you have already been through such an ordeal, the odds are that you are now a prohibited possessor and can't possess firearms in any event. For those of you who haven't been through such an ordeal, I recommend you actually spend some time thinking about and actually visualizing what it would be like to be prosecuted for a serious gun crime. It usually starts with the arrest. The police will arrive and "escort you to the ground." I know it sounds good, but trust me on this one, you won't enjoy being escorted to the ground by the officer. Imagine the officer has already firmly concluded you are guilty of a serious gun crime. You will be treated accordingly as your new bracelets are harshly installed on your wrists. Hopefully, you will remember my advice and resist the strong urge to tell your version of events to the officer. After a miserable ride to the horribly overcrowded jail, you are booked in as the newest member of the highest incarcerated population on Earth. You should expect the judge, who has already read the officer's version of the case, the same officer who just cuffed and stuffed you, will set a very high bond to be posted in exchange for your release. As is now common, you may even be subjected to a cash only bond; making it much more difficult to actually post the bond and thereby secure your release. You will soon learn who your real friends are as they hopefully scramble to secure your release as well as a good criminal defense attorney. Although you are assured you are absolutely presumed innocent, you truly aren't feeling it as you choke down the disgusting slop served to you for dinner with your new friends at the jail. Even if you can secure your release from jail, you recall points #2, #3, and #4 above as a lawyer explains the serious felony charges now brought against you. Although I will be happy to zealously defend you against the criminal charges, I try not to work for free. In any event, any payment to any private lawyer is more than you wanted to spend. After possibly a year of misery, constantly wondering whether your life is ruined, you will face the difficult choices described above in the section on mandatory minimum sentences. Expect to be charged with a crime carrying a long mandatory prison sentence; probably 5-15 years assuming nobody died. Although you will feel strongly you withdrew your firearm consistently with the law, odds are you will eventually accept a plea offer; even if your lawyer enthusiastically wants to try the case before a jury. You won't likely accept the substantial risks associated with a trial when you are offered the certainty of a much more lenient plea bargain. As a final parting gift resulting from your unplanned interaction with the state, you are now a prohibited possessor; possibly forever. I realize I have intentionally presented, far from a worst case, but a very bad scenario for you to consider. Be advised, this general example is not far fetched at all. It happens all the time. My example is common. However, I also acknowledge that not all firearm brandishings or discharges are prosecuted. Indeed, not all people who pull out their firearm are even arrested. In my experience, I have witnessed good judgment by both the police and prosecutors. Sometimes, they are able to quickly sort out the good guys from the bad guys. That said, I want you to envision my exact example when you are thinking about pulling it out. If you are not willing to endure the rigors of being prosecuted as I have described it, my opinion is that the situation you face is not serious enough to warrant pulling out your firearm. Said another way, if what is about to imminently happen if you fail to pull out your firearm is worse than being prosecuted as I have described it, then I advise you to pull it out and act defensively. However, if being prosecuted as I have described it is worse than what happens if you fail to pull it out, I advise you not to pull it out. I will offer you some examples of the "Marc J. Victor Analysis" applied to some real life situations: Example #1 - If you fail to pull out your firearm right now, you are likely going to be dead. It seems to me that being dead is worse than being prosecuted. Therefore, I advise pulling out your firearm. Example #2 - If you fail to pull out your firearm right now, someone you love, or like a lot, will likely be dead. Again, I'd prefer to be prosecuted, so I advise pulling out the firearm. Example #3 - If you fail to pull out your firearm right now, you will likely be punched in the face. Although this is a tad bit more difficult, I'd prefer to be punched in the face rather than be prosecuted, so I advise not pulling out the firearm. Example #4 - If you fail to pull out your firearm right now, you are certainly going to be disrespected. It is important to note that this particular example is actually from a potential client who came to my law firm to consult with me about his aggravated assault felony criminal charge. He was facing a mandatory minimum sentence of 5-15 years in prison. When I asked him why he pulled his firearm out, he informed me he was disrespected by another person. I don't know about you, but I'd strongly prefer to be horribly disrespected on a regular basis than to be prosecuted. As such, I advise not pulling out the firearm in response to or even to prevent being disrespected. Dumb! I believe you can honestly and effectively perform the "Marc J. Victor Analysis" in a few seconds if you simply invest a little time thinking about being prosecuted as I have described it. I do not apologize for offering very conservative advice about pulling out your firearm. It is important to note that the law may actually allow you to pull out your firearm for situations far less serious than I recommend. For example, Arizona law allows a person to display a firearm defensively in response to an imminent threat of ordinary physical force. See, A.R.S. SS 13-421. I concede this law suggests a different conclusion for my example #3 above. Additionally, there are many other situations in which a person could arguably legally pull out a firearm than the "Marc J. Victor Analysis" would conclude. That notwithstanding, I firmly stand by my advice. There is always a risk of being prosecuted when you pull out your firearm. Ignoring that risk and assuming a police officer or a prosecutor will conclude your conduct fits nicely into a statute permitting you to use your firearm in the way the witnesses say you did, is foolish. Assuming the giant risk of being prosecuted only makes sense if what is going to happen otherwise is worse than being prosecuted. These circumstances are extremely rare. Just because the law may technically allow you to pull your firearm out doesn't mean you should. Whatever you are protecting with your firearm ought to be worth being prosecuted for. Random Thoughts To say I am pro-gun is truly not accurate. I am no more pro-gun than I am pro-hammer. They are both tools. I am pro-peaceful, responsible, competent adult with the option to own and carry guns. I am anti-idiot with guns. If you are short on common sense, you probably aren't someone who ought to have a gun. If you are hot tempered, quick to anger and act impulsively, I suspect you, and everyone else is better off if you don't own a gun. Owning a firearm is a serious undertaking. It comes with great responsibility. If you aren't up to it, don't own a gun as I suspect you are more likely to get in trouble with the gun than you are to actually need it for self-defense. I suggest you perform an honest self-evaluation before owning a firearm. I have been representing people charged with gun-related felonies for well over twenty years. I have noticed some patterns of conduct that seem to emerge regularly in these types of cases. I wanted to leave you with some random tips for preserving your freedom as a peaceful and responsible gun owner. Don't even think about mixing alcohol, marijuana or any other mind-altering drug with guns. If you are carrying your gun, you must be alert and have a clear head at all times. If this advice isn't obvious to you, I suggest you pass on owning a firearm. Secure your firearm carefully in your home at all times. Do not take any chances an unsupervised minor could get to your gun. You could be charged with the crime of felony child endangerment if you accidentally leave your gun sitting around while kids are present. People who pull guns out while they are driving down the road usually get charged with felonies. Prosecutors generally don't buy that the other vehicle was trying to run you off the road. If you find yourself involved in a road rage incident with another car, don't pull out your gun. Use your head and find another solution. I realize there may be actual tactical reasons to the contrary, but I recommend you do not carry your firearm with a round in the chamber. I have represented countless good people on accidental discharge cases. A purely accidental discharge in the city limits is generally a felony offense that carries mandatory prison. You should consider sacrificing whatever tactical advantage exists for not having to chamber a round in exchange for the much lower likelihood of an accidental discharge. Never use more force than is reasonably necessary to repel the threat. If merely displaying your firearm will suffice then do not point it. Always seek to use the least amount of force necessary. If a prosecutor sees you as a person just itching to use deadly force, doubts may be resolved against you in charging decisions. I urge you to act like a responsible adult at all times while carrying a firearm. If you plan to goof off, don't bring your gun. Although the law in Arizona does not require you to retreat, you should retreat if you can do so safely without risk to you or a loved one. Things can be replaced. People can't. The good guys don't always win. I strongly advise you to de-escalate a situation and even retreat if necessary to avoid a conflict. No, you don't get to shoot someone just because that person is trespassing in your home. Although I admit a shooting may be more likely to be justified because it occurs in your home, your actions must still be reasonable under the circumstances. Although there are indeed times when it is necessary, don't be in a hurry or too enthusiastic about shooting another human being. Conclusion As I said at the beginning, I do not intend this article to act as a substitute for carefully studying the law relating to firearms. However, I do intend this article to serve as a framework for better understanding the application of those laws in our criminal justice system. I hope you will be conservative about pulling out your firearm, and do so only in extreme and very serious circumstances. You would also be well served to actually become and stay familiar and competent with whatever firearm you choose. Having a firearm is close to worthless unless you can competently use it if necessary. There are countless people who regularly carry firearms safely and responsibly. Most of them will never have any problems at all relating to those firearms. Carrying a firearm ought to be boring. You should be comfortable with the fact that you will never likely have to pull it out. Like flood insurance, we hope to never need it. However, it is important to have in the event you actually need to use it. If you are carrying a firearm because you want some action, or you are constantly looking for reasons to pull it out, I suspect you will need my services someday. As I previously said, there are few ways to ruin the rest of your life more quickly than by misusing a firearm. I have seen it time and time again. I hope you will learn from the mistakes of others currently sitting in prison serving long sentences. Don't be an idiot with a gun! Marc J. Victor send him mail ] is an Arizona State bar certified specialist in criminal law who has been zealously representing clients in serious state and federal criminal law matters for well over twenty years. As a long time freedom activist, Mr. Victor is regularly invited to speak to audiences across Arizona on a variety of issues including ending the drug war, the rights of gun owners, the free market, criminal justice issues as well as a variety of other criminal law related issues. He has twice debated Maricopa County Attorney Bill http://ift.tt/1mxXXC8

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5 Things Every Reasonable Gun Owner Ought To Know - PART 2 By Marc J. Victor February 13, 2016

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