“Preclusion”- The legal concept you must understand

Discussion in 'Training' started by lklawson, Mar 17, 2015.

  1. lklawson

    lklawson Staff Member

    From: http://www.buckeyefirearms.org/“preclusion”-legal-concept-you-must-understand

    Part I

    “Preclusion”- The legal concept you must understand
    by Greg Ellifritz
    7:00am Tuesday, March 17, 2015

    The news articles linked below describe the actions of a retired firefighter with a concealed carry permit who shot and killed an elementary school teacher after a confrontation about a loud party. The entire confrontation (22 minutes long) and the shooting was videotaped by the shooter. He was charged with murder, convicted and was sentenced to 40 years in prison.

    Go to the first link and watch the confrontation unfold. Think about what you would have done if you were faced with a similar situation.

    Self defense or murder? Retired firefighter on trial for teacher’s death

    Family emotional after retired firefighter found guilty in teacher’s killing

    Clearly, this shooting shouldn’t have happened. But I predict we will have many more similar events due to the passage of the various “Castle Doctrine” laws that have been recently enacted in many states. I don’t have any problem with the Castle Doctrine per se, but I think it is one of the more difficult concepts for the average gun owner to understand. Let’s take a look at some of the issues….

    Please forgive my generalities. I’m attempting to give you a law school semester’s worth of legal information in an understandable fashion and within the confines of a 1500- word article. The ideas I present will be legally valid in the USA, but the wording I use may not be exactly the same in your jurisdiction.

    Although the exact wording of each state’s law is slightly different, legal requirements in the use of deadly force are relatively consistent throughout the United States. In general, before being legally allowed to shoot someone in self defense, the victim must have a “reasonable belief” that he or another (innocent) person is likely to be seriously injured or killed by the attacker.

    So what information does a victim use to determine if he has a “reasonable belief” that he will be seriously hurt or killed? Most self defense trainers and legal scholars use a three-prong test: Ability, Opportunity, and Jeopardy.

    Ability- Can the attacker physically do enough damage to rise to the level of serious injury or death? An unarmed four-year old would not likely have the ability to kill you, therefore it would be unreasonable to shoot the little kid in self defense. Often the term “ability” in the context of a self defense situation means “Is the attacker armed with a deadly weapon?” or “Is the attacker capable of seriously injuring me with just his hands or feet?” If the answer to those questions is no, then it is unreasonable to shoot. If the answer is yes, you move on to the next criterion.

    Opportunity- Does the attacker have the opportunity to seriously injure or kill me? This is often focused on proximity. If a person is threatening you with a knife from 50 feet away, he has the ability to kill you; but not the opportunity. He’s out of range. Obviously, opportunity depends on the weapon being used against you and your immediate environment. If the attacker has the ability (is armed) and the opportunity (is within range to use the weapon effectively) to kill you, then we move on to the next prong of the decision tree.

    Jeopardy- Just because a person is armed and has an opportunity to kill you doesn’t mean that you are in any true danger. Take the example of a uniformed police officer walking past you on a sidewalk. The officer has the ability (a gun) and opportunity (is within range) to kill you, but unless you present a threat to the officer, you are in no jeopardy. He isn’t going to shoot you even though he is capable of doing so.

    Another way to look at jeopardy is by defining it as “intent”. Does the attacker intend to seriously hurt or kill you? If not, it isn’t reasonable to shoot. All three criteria must be met in order to legally establish that it was “objectively reasonable” to use deadly force.​
  2. lklawson

    lklawson Staff Member

    Part II

    All of the issues above are fairly basic. Here’s where it gets a little hazy…

    Many states have now passed legislation called “Castle Doctrine” or “Stand Your Ground” laws. Every state has slightly different requirements, but the general idea behind most of these laws is that they place the burden of proof establishing reasonableness on the attacking criminal rather than the victim. The laws state that when a person is feloniously attacked in his or her own home, car, or place of business, it is by law objectively reasonable to respond with deadly force. In essence, the criminal would be required to prove that he DIDN’T present a deadly threat rather than the homeowner being required to prove that he DID present a danger.

    This doesn’t mean that the lawful homeowner can ignore the three concepts above, it just means that absent some type of contrary indicator, it is reasonable to assume that if you are attacked while in your home, that attack could be considered a serious threat. An example of an indicator to the contrary would be a situation when a criminal breaks into your house, steals your TV and is running out your front door. He feloniously entered your house, but he was not a threat to you in any way. In most states, it would be illegal to shoot the criminal, even under “Castle Doctrine”.

    One other legal element to consider is the idea of “preclusion”. It isn’t often taught, but it is an absolutely critical concept to understand. Preclusion means “what other options could you have exercised instead of shooting?” Many self defense court cases (including the one linked above) come down to this concept. No reasonable person wants to shoot someone if there are other safe options available. Can you retreat? Can you seek cover? Can you use a less lethal weapon? Can you wait for the police?

    All of these options will be considered by the jury if you are criminally or civilly charged in a shooting incident. If you shot, you should have a rational explanation for why you couldn’t safely perform any of those alternate actions. The law recognizes that self defense situations occur rapidly and there isn’t much time for a lengthy deliberation. It doesn’t require a perfect decision, only a reasonable one. If your state has a Castle Doctrine law, you may not have to prove preclusion in some instances, but the jury is likely to still consider the idea while deliberating your fate. Every member of the jury will be thinking “What would I have done in that situation?” If there was an easy solution to the problem that doesn’t involve shooting someone, the jury is going to wonder why you chose to shoot instead.

    With this new knowledge, let’s take a look at the shooting I linked to above…

    Ask yourself if the shooting was reasonable given the four parameters I just explained. What do you think?

    Ability?- The shooter was being threatened by a group of unarmed individuals. Multiple attackers (even if unarmed) present a more serious danger than a single attacker. The attackers were also younger and more physically fit. I think it would be reasonable to assume that the attackers had the ability to cause serious injury. Let’s move on to the next parameter.

    Opportunity?- The attackers were fairly close to the shooter and were closing the distance when the shots was fired. They had the opportunity to cause serious injury. On to the next one.

    Jeopardy?- Was the shooter really in danger? It’s tough to tell. The prosecution is going to make the case that the person shot was an elementary school teacher and had no criminal record, therefore he wasn’t a legitimate threat. The defense is going to claim that the attackers were drunk, making verbal threats, and advancing on the shooter. The defense will also note that the shooter could not have known the victim’s occupation or past criminal history, so those issues aren’t relevant.

    My guess is that if the group had physically attacked, the jury would have decided that the shooter was in jeopardy. If we assume that the shooter met the burden of proof in the ability, opportunity, jeopardy legal triad, then why did he get convicted?

    It all comes down to preclusion. Why didn’t the shooter just go back inside and wait for the police? That’s what most reasonable people would do. If he had done that, he likely would not have needed to shoot.

    The defense argued that there was no need to prove preclusion because of the “Stand Your Ground” law. They asserted that the shooter mentioned that he was in fear for his life and that he was “standing his ground”. Those verbal statements are really irrelevant. Just because you tell someone that you are in fear for your life doesn’t mean that your fear is legally reasonable. Don’t say stupid things like that. Despite what your CCW instructor might have told you, those statements are useless.

    Look at the case above as a prime example. The defendant stated that he was in fear for his life. Both the victim and the jury completely disregarded that assertion. It just wasn’t an objectively reasonable belief, therefore the statement meant nothing. The decision here came down to preclusion. The state law says that a shooter doesn’t have to retreat or prove that he could have done something else if he is in his own house, place of business, or on his own property. The shooter in this case wasn’t in any of those locations, therefore he had to prove that he couldn’t do anything else but shoot. Despite his statements, he couldn’t meet the burden of proof and was convicted.

    So, what can we learn from a case like this?

    It is my advice that you completely ignore any Castle Doctrine laws in your decision-making process before shooting. The presence of those laws may make it easier to win a court case in the aftermath, but the laws really shouldn’t change the way you evaluate a threat. If the attackers have the ability and opportunity, if you are in true jeopardy, and you can’t safely exercise any alternate options, then you should shoot. If you can do something else besides shooting, you should do it. You may be legally justified in shooting under slightly less restrictive conditions, but if you follow those guidelines, you will generally be making a good decision.

    Even if your state law says you are justified to shoot, there are some situations that are better resolved by not firing your gun. If you have other options, use them. Don’t let your ego and need for “justice” put you in a bad legal position. I bet the CCW permit holder in this case is wishing that he hadn’t “stood his ground” right about now.

    You can find more details about these concepts in Andrew Branca’s excellent book The Law of Self Defense. A slightly less thorough, but more readable summary of use of force laws is Mas Ayoob’s book Deadly Force. Both are great books. You owe it to yourself to read them so you don’t end up in prison like the retired firefighter in this case.

    Greg Ellifritz is the full time firearms and defensive tactics training officer for a central Ohio police department. He holds instructor or master instructor certifications in more than 75 different weapon systems, defensive tactics programs and police specialty areas. Greg has a master's degree in Public Policy and Management and is an instructor for both the Ohio Peace Officer's Training Academy and the Tactical Defense Institute.

    For more information or to contact Greg, visit his training site at Active Response Training.​

    Peace favor your sword,

  3. Bull

    Bull Just a Man Supporting Member

    Thanks Kirk!
  4. SWAGA

    SWAGA No longer broke... Lifetime Supporter

    Based on the first video I would have acquitted him.
    It looked like he was jumped.
    But then again, I didn't sit through the whole court case.
  5. Bamaboy

    Bamaboy Member

    More knowledge always welcomed!
  6. the video is tough to tell.

    he warned them multiple times, to stay away from him. and at first they backed up. But of course the gun shot is when its to dark to see if they are charging him or not.

    If they are charging him, innocent. If they are still standing back then illegal.

    for his sake, i wish he would have stayed in his yard. moving down the street makes it seem like he was going to them. and looking to be confrontational.
  7. Irishfanatik

    Irishfanatik Supporting Member

    Thanks Kirk,
    I think most people on this forum would have voted to acquit. I don't know the entire situation. It seemed like he could have attempted more of a retreat, but if he felt surrounded maybe it wasn't possible. After so many warnings, the fact that the three younger men were still advancing on him, in my opinion, should have swayed the jury in his favor.
  8. SWAGA

    SWAGA No longer broke... Lifetime Supporter

    I find it curious he was found guilty, hopefully he appeals.
    But we're obviously missing information here.
  9. Think1st

    Think1st Supporting Member

    The indication that I got from the video was that the shooter, Mr. Rodriguez, had he not been armed, would have only found himself vulnerable to some shoves and would have been physically driven from the location. The group that he confronted clearly was trying to intimidate him and was annoyed at his demands, while he was clearly incensed that they would not listen to his demands for the music to be turned down.

    Nevertheless, he put himself in a situation in which he initiated a confrontation and then escalated it. Self defense laws are designed to allow people to protect themselves when unwillingly confronted with dangerous hostility. They are not designed to allow someone to tilt the odds in his own favor so that he can hold his ground if the confrontation that he initiates doesn't go the way he wants it to.

    He had the ability to leave the area. It appeared to me that he would not have been pursued, and, therefore, his ability to safely leave the area precluded any need to shoot the partiers. It appears that the shooter held his ground because he was angry that they wouldn't listen to him, and his sense of principle would not allow him to back down.

    On another note, I think that the city government and its law enforcement apparatus, while not legally responsible for what happened, contributed to it. The city probably has a noise ordinance, and the shooter was on the phone with police for a long time. Nevertheless, no authorities arrived to address the situation. I don't know what the history was between Mr. Rodriguez and his late neighbor, but ongoing issues like this that don't receive any attention from authorities can very well create enough desperation and frustration that people can believe themselves to have no options other than to take matters into their own hands.

    Enforcing nuisance laws can go a long way toward keeping these kinds of incidents from occurring.
  10. SWAGA

    SWAGA No longer broke... Lifetime Supporter

    I agree with most of your reasoning but asking your neighbor to turn it down is 'looking for a fight'?
    They did threaten him.
    Anyway is stand by my earlier conclusion, I don't really have enough info here.
  11. A person MUST be in absolute fear of losing his/her life before taking another's in a free society.Theres no ifs ands or buts.After all your options run out,seconds matter,and there's no going back.County prosecutors are voted into office.I'm always grateful for mine.
  12. SWAGA

    SWAGA No longer broke... Lifetime Supporter

    So you are being wronged by people breaking city noise ordinances, you go there to try and reason with them verbally and you get threatened by three drunks who try to assault you......?

    Daaayuuum , I should have been an attorney.....
  13. I live in a mixed neighborhood of every race available.We all get along and play our music loud at one time or another.We also buy from each other locally and have a very small school district that we all support. I live in what some would say is the 'low end' of town.
    I'll tell ya what,if and when the SHTF ever hit the fan,we'd all support each other the best we could.
    Noise ordinances are important.But not all that in the top of the list.
  14. SWAGA

    SWAGA No longer broke... Lifetime Supporter

    I know that but looking for a fight is still a very broad concept.
  15. undeRGRound

    undeRGRound ROLL wif Da MOLE! Supporting Member

    Watched both vids and the only real question remaining is was Rodriguez actually attacked before shooting? He did not appear to be cornered, or prevented from retreating. The CCW seminar I attended stressed removal from a situation if possible, actually avoidance prior to that. An SD shooting is a true last resort. Confronting drunk neighbors is a bad idea, on many levels. I sleep with a fan to mask outdoor noises ;)
  16. Think1st

    Think1st Supporting Member

    I don't think that he was looking for a fight when he confronted his neighbors. The situation, instead, escalated because of a combination of their drunkenness and his lack of interpersonal communication skills.

    I politely ask my neighbors to reduce the volume if they are blasting me out of my own living room, but I am prepared to walk away and seek legal or available administrative recourses if necessary. Continuing to engage with belligerent drunks is asking for trouble.

    Like underground said, they didn't appear to be preventing him from leaving.
  17. Outlaw

    Outlaw Supporting Member

    "preclusion" in this case could have been interpreted as "get back in the house dummy". I hate to say it, but he should have just gone back in his house and kept calling the police. His walking out there carrying a gun when there was no "clear and present danger" wasn't smart. I'm sure the jury convicted him on his lack of good decision making skills. I strongly feel some folks just should not have concealed weapons permits even though they pass the checks. I have known a few that I would never issue a permit to and truly hope they never get one. When it comes to a choice to use a deadly weapon, if you can just walk away and end it, dammit "just walk away". He didn't take that choice and is now paying for it. Sad :(

    P.S. I could see Manslaughter at best, but probably would have acquitted.
    On that same note: An elementary school teacher drunk in public???? Daaaammmn!
  18. I wish we all had more patience.But it can get can get us killed for sure.
  19. Think1st

    Think1st Supporting Member

    You nailed it, Outlaw. And as far as his being a teacher goes, I'm not convinced that today's teachers are all the upstanding, straight-laced citizens that they used to be.
  20. undeRGRound

    undeRGRound ROLL wif Da MOLE! Supporting Member

    ...and Driving, to boot!

    An added note, it appeared that the shooter was moving right to left due to his camera movements, and the truck approached on his right also. Maybe he was blocked from returning home, but I'm not sure. He did not seem to try and go around them. He also said they were armed but I did not see guns on camera. :confused: