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    Law of Self Defense: How to Turn An “Accidental” Shooting into Negligent Homicide

    Law of Self Defense: How to Turn An “Accidental” Shooting into Negligent Homicide

    Tampering with evidence is conduct inconsistent with self-defense or accident

    This case of the week involves a Montana man who reportedly shot his hunting partner just as they returned from a hunt to their cars in a K-Mart parking lot, according to this ABC Fox news report.

    The shooter is said to be an NRA Instructor in handgun and rifle. The victim was struck in the chest by a rifle round and died a short time later at a local hospital.

    Hunting “Accidental Shooting” or “Negligent Homicide”?

    I haven’t hunted in many years, but while I was active, it was my experience that it was rather common for hunting-related shooting deaths to be treated as accidents that resulted in no criminal charges for the shooter. I have always thought this to be rather inexcusable.

    If you’re hunting with a firearm, you have an obligation to know what the heck you are shooting at, and to ensure that what you are hoping might be a game animal is not in fact a human being. Failure to do that is, in my mind, outright negligence. The death ought to be charged as a negligent homicide.

    In addition, any time you’re handling a modern firearm, it can only discharge if the trigger is depressed. It’s on you to prevent that from happening unintentionally. This obligation ought to be particularly understood by a certified NRA Instructor, which the shooter in this case apparently was.

    That said, even the traditional “accidental shooting” could still result in criminal charges if there were some aggravating factor present. A good example might be if the shooter was intoxicated. Another might be if it turned out there was some pre-existing animus between the shooter and victim.

    Consciousness of Guilt Evidence, Inconsistent with Innocence

    This particular case presents a classic means by which a shooting death that might not been pursued by authorities suddenly becomes an extremely attractive case for prosecution: the presence of consciousness of guilt evidence.

    Consciousness of guilt evidence has to do with the recognition that the behavior and conduct of someone who believes they’ve done something wrong often differs in observable ways from the behavior and conduct of someone who doesn’t believe they’ve done something wrong. Such “guilty behavior” might include things like lying to the police, flight from the scene for purposes other than safety, or tampering with evidence.

    Such conduct suggests that not only does the prosecutor think the defendant is guilty of a criminal offense, apparently the defendant thinks the defendant is guilty of a criminal offense. Otherwise, why lie to the police, flee the scene, or tamper with the evidence?

    Don’t Do This: “If You Shoot Someone Outside Your House …”

    One timeless and dangerous piece of self-defense advice is that if you shoot someone outside your house, make sure you drag them inside the house before you call the police. Why? To make the scene appear to be a more favorable self-defense scenario than was actually the case.

    I can assure you that when the cops show up and find a big blood smear from the sidewalk up through your front door to the body, it’s not going to require CSI to figure out that the scene has been tampered with in a manner to make it appear more favorable to the shooter.

    That kind of tampering with evidence is utterly classic consciousness of guilt evidence—why do it, except that you don’t believe the scene as it actually was, was consistent with a lawful use of force?

    Did Tampering Lead to Negligent Homicide Charge?

    In this particular case, the shooter has been charged with negligent homicide and tampering with evidence, which is a separate felony charge. I expect it’s highly likely that the negligent homicide charge came about because of the presence of the tampering evidence—that is, the consciousness of guilt evidence—and that absent the tampering evidence there likely would have been no criminal charge at all.

    Indeed, it is noteworthy that the criminal complaint charging the shooter with both felonies (embedded below) was sworn on November 26, 2018, more than five weeks after the shooting on October 21.

    This suggests that the shooting wasn’t perceived as a negligent homicide on its own merits at the time it occurred. This perception changed after further evidence came to light. The complaint does not specify the precise nature of the alleged tampering, but the summons on negligent homicide and tampering was issued the same date the complaint was sworn.

    Destructive Consciousness of Guilt Jury Instruction

    Not only can consciousness of guilt evidence encourage a criminal prosecution, it can also result in a consciousness of guilt jury instruction. Essentially the jury is told that the prosecution has claimed that the defendant lied to the police, fled the scene, tampered with evidence, etc. If the jury believes the prosecution have proven this beyond a reasonable doubt they are permitted to infer from that conduct that the defendant is guilty. That’s going to leave a mark.

    Bottom line: Don’t do things that will appear as conduct inconsistent with innocence to the police, prosecutors, judge and jury that are going to be determining the lawfulness—or not—of your use of force.


    Attorney Andrew F. Branca
    Law of Self Defense LLC

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    P.S. Here’s that embedded criminal complaint and summons:

    [Featured image via YouTube]


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    Phil: “I’m making the argument that having a loaded gun in your home is only inviting problems.”

    Again, situational dependent. Kids living at home? Then no. Otherwise. revolver is loaded, 9mm loaded but round not chambered.

    It seems counterintuitive, but keeping an “unloaded” gun in the home sets up the subconscious assumption that routinely ends with “but officer, I was certain the gun wasn’t loaded”.

    People tend to get sloppy and careless when they assume their weapon is always unloaded.

    I find it’s better to err in the other direction – always treat the weapon as loaded. And setting up subconscious assumptions that it’s really “unloaded” will work against you.

    Again, your choice may vary depending on situation and level of expertise. But my personal preference is to keep them loaded.

    texansamurai | November 30, 2018 at 1:37 pm

    we keep a couple of defenders handy–both 12ga with 2 #4s and the rest 00–neither have rounds in the chamber–they have such a distinctive sound when racking one that most folks are going to know what they’re hearing and pause a moment–we have other handguns available, loaded but sans a round in the chamber–they’re available if needed but for indoors prefer a shotgun–one other thing–if an intruder breaks into your home don’t go looking for them–let them come to you if possible–don’t give away your position

    Richard Grant | November 30, 2018 at 7:25 pm

    After reading all this “Gun Talk”, I am so glad I did extensive research and knew how to locate, and identify, a “Safe Neighborhood”… is really easy, one you figure it out…..THEN, make sure your “safe neighborhood” is as far away from the “NOT Safe” ones by having as much distance from the Non Safe ones…..Now, I will tell you how to identify “Safe” from “non-Safe” ……it is so easy you can do it 2 ways: Drive through the neighborhoods, and/or find the local High School and wait till the kids come out…you’re welcome.

      Mac45 in reply to Richard Grant. | November 30, 2018 at 10:29 pm

      There is no such thing as a “safe” neighborhood. Why, you ask? Because human beings live there.

      Some neighborhoods may be safer than others. But, murders, home invasions, rapes and simple burglaries occur everywhere. And people are targeted for a variety of reasons; they look wealthy, weak or the predators involved are too lazy or stupid to accurately assess a threat. So, tough you might live in a neighborhood for years without any troubles what-so-ever, that can change at anytime. Are you ready for it?

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