Predators Are Predators

February 6th, 2019 Tags: ,

This article crossed my Twitter feed the other day and it struck me as a great example of the mindset required to defend yourself against predators, whether it is a cougar or a human.

This particular quote from the article jumped out at me:

The runner did everything he could to save his life. In the event of a lion attack you need to do anything in your power to fight back just as this gentleman did,” Mark Leslie, Colorado Parks and Wildlife Northeast Region manager, told KKTV.

When faced with a wild animal, nobody thinks twice that this runner did everything he could do survive to the point of choking this cougar to death.

Think about that? This guy, probably already injured and bloody, managed to subdue a cougar to the point that he could choke the life out of it.

Cougar (Public Domain)
Cougars can weigh up to 220 lbs.

Let’s not mince words: he choked the life out of it. Now, I don’t know what his mindset was prior to going on a run that day. I don’t know if ever considered he could be attacked by a wild animal. Maybe he did, or maybe he had to turn on that “switch” after he was attacked. You need to know that switch is there, and that you are capable of turning it on before you need it. This is the mindset you have cultivate in your training: the will to live, the will to do what it takes, the will to fight until you cannot anymore (and then find more).

This is a universal mindset in regards to your personal safety. The species of the predator is irrelevant. When it has decided that you are its next meal, you need to be able to turn on the survival switch.

Self-Defense and State of Mind

If you have done any training (certainly if you have done any training with Just Defense™), you may have been taught how important state of mind is in determining intent. It is why you educate yourself on a whole host of aspects about self-defense. Not just “the law,” but also biomechanics, psychological, and physiological aspects are all important to know and understand so you can explain your actions in the split-second you had to make a decision while under extreme stress.

Recall of course that reasonableness is a subjective/objective test in the law. The subjective part is whether the defendant had a bona fide belief his life was in danger. The objective test is whether a reasonable person would believe the defendant’s life was in danger. In making that objective determination, the jury get to “know what you knew at the time” of the incident. This is why continued training and education on firearms and self-defense is so important if you carry a firearm for self-protection. The more you know, the more the jury gets to know. At the same time, the jury can sometimes also learn about your “less than best” moments, even though an off-color or controversial remark may not be representative of your personality. Remember: Lawyers try to find any avenue they can to objectively show state of mind since intent is an entirely internal mental process. It is also why the law allows intent to be shown through circumstantial evidence.

A recent case provides a very clear example of a prosecutor trying to show intent through a prior “statement.” Officer Philip Brailsford of the Mesa, Arizona SWAT team shot Daniel Shaver five times with his AR-15. Shaver was unarmed, and on his hands and knees on the ground begging “Please don’t shoot me” when Officer Brailsford shot him. His hands, or at least one of them, could not be seen by the half-dozen officers who surrounded him. Shaver made a movement towards his waistband and Officer Brailsford opened fire and shot Shaver 5 times killing him. Last year, the prosecutor’s office charged Officer Brailsford with murder and his case is set for trial in October

Controversial dust cover on Brailsford’s AR-15

Officer Brailsford, against his department’s regulations, had the inscription “You’re Fucked!” on the inside of the dust cover of his personal AR-15, which had been approved for duty use by Mesa PD. The inscription has caused additional complication for him throughout the pre-trial process because state attorney’s argued the inscription was a “testament to [Officer] Brailsford’s mindset.” In order for such evidence to be admitted, the proponent of the evidence has to show first that it is relevant, and second that it’s probative value does not outweigh it’s prejudicial effect on the jury. In Pennsylvania, these well worn evidentiary rules are found in Rule 402 and Rule 403 of the Pennsylvania Rules of Evidence.  Rule 402 is a permissive rule permitting any relevant evidence to be admissible in a trial. This hurdle is generally fairly easy to overcome, and in this case, the inscription is easily argued to go to a defendant’s mindset prior to the shooting. Rule 403 is a little trickier, but requires the trial judge to weigh whether the probative value of the evidence is outweighed by its prejudicial effect. The probative/prejudicial standard is a balancing test and provides a trial judge with wide latitude based on his or her own view of the evidence. While one judge may let the evidence in, another may not. Unfortunately, the standard for an appellate court reversing a trial judge based on an evidentiary error is very deferential. In other words, if it happens, it doesn’t happen very often. Thus, it is hard to win such an issue with the appellate courts.

Fortunately for Officer Brailsford, the trial judge found the inscription “overly prejudicial” (compared to its probative value) and excluded it from trial. In my view, this was the right call. Officer Brailsford’s attorney, Michael Piccarreta, clearly understands self-defense law and convinced the court that the focus is to “ensure that only evidence [is admitted] that’s relevant to that split-second decision to use deadly force when the deceased made a move identical to a draw stroke in a gun investigation.”

The key point to take from Officer Brailsford’s situation is to be very careful of how you customize firearms or even the types of ammunition and other accessories you use (recall the “Black Talon” controversy in the early 1990s). I won’t say you should completely avoid customizing your firearm with inscriptions if you want to. However, there is a vast difference between a “You’re fucked!” inscription and one that says “Support Our Troops.” One will absolutely be used by the prosecution to show mindset, the other they will likely avoid in the event it plays on the sympathies of the jury. As always, the important thing to remember is if you customize a firearm, whether it is cosmetic, functional or both, always be able to articulate a legitimate reason for doing so.

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