Legal Considerations for Armed Citizens

On November 7, 2015 I attended a seminar sponsored by the Buckeye Firearms Association in Columbus, Ohio. The featured speaker was Massad Ayoob, an internationally-known firearms and self-defense instructor and firearms law expert. He has authored numerous books and thousands of magazine articles on the topics of firearms, self-defense and the law. He has been the handgun editor of GUNS Magazine and the law enforcement editor of American Handgunner Magazine since the 1970’s. In 1998, he was named as the Outstanding American Handgunner of the Year. He has won several state and regional handgun shooting titles including being the first individual to achieve the Master rank in all five gun disciplines in the International Defensive Pistol Association (IDPA). He founded the Lethal Force Institute in 1981 and has served as the co-vice chair of the Forensic Evidence Committee of the National Association of Criminal Defense Lawyers. He is regularly seen on television on various firearms and self-defense related shows.

From this brief resume, I think you can understand why I and approximately 400 other motivated firearms enthusiasts were interested in hearing what Mas had to say. The venue where the seminar was held was probably the safest place in Ohio that day as virtually every attendee raised their hands when Mas asked who was carrying a firearm.

Topics covered during Mas’s presentation included:

• The basic rules for using lethal force for self-defense
• Tips for recognizing potential threats in the area
• Developing the proper mindset for self defense
• How to interact effectively with suspects and witnesses
• How to interact with responding law enforcement officers
• Dealing with the psychological aftermath of a lethal encounter
• Ways to minimize adverse legal repercussions

Mas started his talk by indicating that Ohio is the only state that has explicitly incorporated the concept of an “affirmative defense” into the law — all other states assume it applies. An affirmative defense shifts the burden of proof from the prosecutor to the defendant when claiming self defense as a justification for killing someone. If properly applied, it is the perfect defense. But, to properly apply it three things must be established beyond a reasonable doubt. These include: 1.) The assailant had the ability to threaten you (or someone you are defending) with serious bodily injury or death; 2.) The assailant had the opportunity to do it; and 3.) The threat was immediate and unavoidable — i.e. you (or someone else you were defending) were in jeopardy. All three conditions must be met before self-defense can be claimed!

A jury will be instructed to evaluate the case based on what a reasonable, prudent person would do in similar circumstances. To do this, they must determine what the defendant (i.e. you) knew. Mas then went through several examples of how the prosecuting attorney may try to “twist” your meaning by applying very explicit definitions to terms that you use to describe what occurred. As a result, it becomes very important for you to be able to document your knowledge about the abilities of individuals to threaten your life with guns, knives, clubs, etc. Since these are topics that are often covered in firearms training classes, he indicated that it was important for you to keep detailed notes from those classes and present them during the trial if necessary. You may also want to have the individuals that trained you testify to what you were trained on during the trial.

And yes, you will need to testify in your own defense at the trial if you are claiming self-defense!

Later, Mas discussed the very limited circumstances when you might have to leave the scene of the attack prior to the police arriving. By leaving, it makes it look like you were fleeing to avoid being prosecuted, so his advice was that if you must leave, head to the nearest police station. He also emphasized that when an event occurs you must be the first one to contact the police. Whoever contacts the police first is assumed to be the “victim” of the crime until the facts can be sorted out.

When the police do arrive at the scene, it is important for you to talk to them. You need to establish the “active dynamic” — i.e. what forced you to defend yourself. You need to indicate that you will sign a complaint, even if it is evident your assailant is dead. You need to point out the evidence of what happened at the scene, along with who the witnesses are. Finally, you need to indicate your willingness to cooperate after you have consulted with your attorney. In answering questions, especially at the scene, you should not give detailed descriptions because your memory at the time will be imperfect and any changes you make will be viewed suspiciously.

In these days of security cameras and smart phones with cameras and video recording capabilities, you should assume that your actions are being recorded.

Mas indicated that “awareness” and “preparedness” were the two most important things you can do. “Tactics” are the next priority, followed by “skill” in using your self-defense equipment (and hand-to-hand abilities). Finally comes choosing the appropriate equipment to carry. You will need to be able to articulate to the jury why you made all of the choices in equipment, etc. As a result, his recommendation is to not carry firearms (or ammunition) with controversial names — i.e. “killer”, “zombie”, etc. Likewise don’t decorate your firearm with controversial symbols — i.e. skulls, etc. He also indicated that it was important that you not deactivate or remove any safety devices that came from the factory on your self-defense firearm.

Other factors such as reducing trigger pull weights below factory specifications and using handloaded/reloaded ammunition can and probably will be exploited by the prosecutor to demonstrate your recklessness to the jury.

If you do get the opportunity, it would be well worth your time to attend one of Mas Ayoob’s seminars, especially if you carry a firearm for self defense. Let the Buckeye Firearms Association know if you’d like to see them bring him back again.

If you cannot fit it into your schedule, you might consider getting a copy of Mas’ latest book, Deadly Force—Understanding Your Right to Self Defense (©2014, F+W Media, Inc., Iola, WI). It covers much of the material he presented during the seminar, but without the ability to engage in Q&A with the author.

Gary Evens is a NRA-Certified Instructor and Range Safety Officer.