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by Timothy A. Forshey

If, God forbid, any of us are ever called upon to draw, or, even more seriously, use, our firearm in the defense of human life, and we know, unequivocally, we were justified in so doing, how can it possibly be we will be questioned and investigated, let alone actually prosecuted?

The answer lies in the inherent uncertainty of humanity, and, by extension, the United States criminal justice system. Don’t forget—we have the worst criminal justice system in the world—except for all of the others.

When a client asks, usually in the opening days of their ordeal, “how can this happen to me?” I am often forced to explain there are two truths in this case–the truth only you and God know to be true, and the truth we can prove in Court. Unfortunately, these are often two different truths.

Unless the entire incident is actually captured on videotape (and frankly, sometimes even then), we will need to use scientific facts and witness testimony to prove (to a prosecutor and/or jury), to the criminal standard of “beyond a reasonable doubt,” that you were reasonably justified in using (or threatening to use) lethal force to protect human life.

But wait a minute—doesn’t the Constitution state we are all considered innocent until we are actually proven guilty beyond a reasonable doubt? It sure does, but that innocence is-and has been for a few centuries-subject to interpretation by the Courts. There are many people in this country who can’t afford to post bond, who have been in jail for months simply awaiting trial to determine their guilt. While they are waiting, they often lose their reputation, job, home, marriage, family and friends.

Technically, the state does have to prove your guilt. But, in self-defense cases, it is really up to the defense to give the state the evidence needed to agree with the conclusion that you acted justifiably in defense of human life.

The now-infamous George Zimmerman case is a good example. However misguided Zimmerman’s actions with Trayvon Martin were, the initial Florida prosecutor who examined the facts came to the quick (and appropriate) conclusion that Zimmerman had reasonably been in fear for his life when the much larger and stronger Martin began bashing Zimmerman’s head against a sidewalk. No prosecution was sought–initially.

Politics and racial motivations then came into play and led to the appointment of a special prosecutor. This prosecutor filed an indictment against Zimmerman, leading to a huge media circus and trial by public opinion, which effectively ruined Zimmerman’s life. Despite squandering millions of tax dollars to seek his conviction, a jury swiftly agreed with the original prosecutor that Mr. Zimmerman was in fear for his life and he was acquitted. How was that fair? Unfortunately, as is true in much of life, “fairness” rarely factors into these types of situations.

Notice that the word “innocent” also never comes into play. In our criminal justice system, you are either “guilty” or “not guilty.” There is no “innocent” verdict available. As well it should be—I’m not sure I’ve ever met an “innocent” person.

I personally know people who, in my opinion, did everything “perfectly” in accordance with common sense, good training and superior judgment, who were still convicted. I also know people who did something unbelievably wrong and were never charged. The system is far from perfect. A good, seasoned lawyer can likely predict, with a fair degree of accuracy, where your actions will be judged “on the bell curve” of that jurisdiction’s range of punishment. But anyone who promises a definitive outcome is strictly guessing. There is simply no-telling the outcome.

Don’t let this uncertainty discourage you. Train and study to avoid situations where you would need to use lethal force knowing that if your plan fails and you are ever forced to do so, you will be far less likely to be prosecuted than the other guy who hasn’t given these situations considerable thought.

But, be aware of the simple fact that being the “good guy” does not bestow upon you a cloak of justification with which society, and prosecutors, are bound to agree. You may well still, unfortunately, have a costly and emotional nightmare ahead as you attempt to persuade twelve strangers they would have done the same thing as you.


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