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Thread: OTish:Kelso Longview Daily News- When does the law justify shootings?

  1. #1
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    OTish:Kelso Longview Daily News- When does the law justify shootings?

    Well, saw this in my local paper... I don't know if the Clark County Chief Prosecutor is right or not in this instance, but I had assume that the Stand Your ground law specifically stated that we have the right to defend our lives, our family's lives, and our personal property, not to mention coming to the aid of another in a time a perp is committing a felony.


    "When is a shooting justified by Washington law?

    That question was raised after the fatal shooting of an apparent car prowler in La Center early Tuesday morning. So far, no arrests have been made and the investigation is continuing.

    Generally in those cases, officers forward reports to the Clark County Prosecutor's Office, which makes the decision whether to file charges or rule it a justified shooting.

    Chief Deputy Prosecutor John Fairgrieve has not seen reports on the La Center case, but spoke in general terms about self-defense cases. He said the law favors the homeowner in that use of force can be used if there's "reasonable belief" his life or the lives of others are imminent danger. In Washington, homeowners don't have a duty to flee first before shooting in those cases.

    The key phrase is "reasonable belief," Fairgrieve said.

    "If someone shoves you, you can't respond by shooting them," he said.

    And it doesn't mean you "get a free pass if someone breaks into your home," Fairgrieve said. The act of burglarizing or prowling a car doesn't justify the shooting — the belief of risk does, he said.

    The surrounding circumstances of these type of crimes usually determine whether a shooting is justified or not, like if the perpetrator is armed or coming toward you or issuing threats, he said.

    "It's really a fact-specific situation," Fairgrieve said. "It depends on the exact facts of the case."

    If a burglar is outside your house or is running away, "in that situation, deadly force would generally not be appropriate," he said."

    Read more: http://tdn.com/news/state-and-region...#ixzz1kQRWVtkk

  2. #2
    Opt-Out Members BigDave's Avatar
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    I do not see an issue with the interpretation he presented according to State Law.

    RCW 9A.16.050 Homicide — By other person — When justifiable.

    Homicide is also justifiable when committed either:

    (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

    (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.

    Pattern Jury Instructions

    Part IV. Defenses
    WPIC CHAPTER 16. Justifiable Homicide

    WPIC 16.02 Justifiable Homicide—Defense of Self and Others

    It is a defense to a charge of [murder] [manslaughter] that the homicide was justifiable as defined in this instruction.
    Homicide is justifiable when committed in the lawful defense of [the slayer] [the slayer's [husband] [wife] [registered domestic partner] [parent] [child] [brother] [sister]] [any person in the slayer's presence or company] when:

    1) the slayer reasonably believed that the person slain [or others whom the defendant reasonably believed were acting in concert with the person slain] intended [to commit a felony] [to inflict death or great personal injury];
    2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
    3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to [him] [her], at the time of [and prior to] the incident.

    The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
    • Being prepared is to prepare, this is our responsibility.
    • I am not your Mommy or Daddy and do not sugar coat it but I will tell you simply as how I see it, it is up to you on how you will or will not use it.
    • IANAL, all information I present is for your review, do your own homework.

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    Regular Member hermannr's Avatar
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    First you must remember, the DCP, or even the Chief of Police, in general, do not want regular citizens to protect themselves...it makes their job less valuable and the community less dependent on them. It also exposes them if they make a mistake.

    There are some things there I would agree with..like is a burgler is fleeing, does not have a weapon (therefore is not a specific danger to society) and has none of your property...let him go, and let the police take care of him.

    However, a few months ago, there was a thread on a burgler that was armed (knife) was fleeing a botched home invasion, and tried to carjack a car that had stopped in front of the house the burgler had tried to invade, at knife point...he was obviously a continued danger to society as shown by his subsiquent actions...BTW: The owner of the car shot him. No charges filed, in Seattle of all places.

    However, in the case of a home invasion, that imminent danger is assumed, in the law. Someone breaks into your house, you can confront them in any way you deem necessary, no matter what this CDP seems to want to say. You do not have to stop that home invader and say, oh, BTW, are you armed? behore you shoot them.

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    Regular Member Vitaeus's Avatar
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    Sorry for the wall of text, but I have to disagree with Big Dave, residential burglary is a felony and then the other two RCWs follow from that.

    RCW 9A.52.025
    Residential burglary.

    (1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.

    (2) Residential burglary is a class B felony. In establishing sentencing guidelines and disposition standards, residential burglary is to be considered a more serious offense than second degree burglary.


    [2011 1st sp.s. c 40 § 38; 1989 2nd ex.s. c 1 § 1; 1989 c 412 § 1.]

    Notes:
    Application -- Recalculation of community custody terms -- 2011 1st sp.s. c 40: See note following RCW 9.94A.501.
    Effective date -- 1989 2nd ex.s. c 1: "This act shall take effect July 1, 1990." [1989 2nd ex.s. c 1 § 4; 1989 c 412 § 4.]

    RCW 9A.16.050
    Homicide — By other person — When justifiable.

    Homicide is also justifiable when committed either:

    (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

    (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is.


    [2011 c 336 § 354; 1975 1st ex.s. c 260 § 9A.16.050.]





    RCW 9A.16.110
    Defending against violent crime — Reimbursement.

    (1) No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030.

    (2) When a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense. This reimbursement is not an independent cause of action. To award these reasonable costs the trier of fact must find that the defendant's claim of self-defense was sustained by a preponderance of the evidence. If the trier of fact makes a determination of self-defense, the judge shall determine the amount of the award.

    (3) Notwithstanding a finding that a defendant's actions were justified by self-defense, if the trier of fact also determines that the defendant was engaged in criminal conduct substantially related to the events giving rise to the charges filed against the defendant the judge may deny or reduce the amount of the award. In determining the amount of the award, the judge shall also consider the seriousness of the initial criminal conduct.

    Nothing in this section precludes the legislature from using the sundry claims process to grant an award where none was granted under this section or to grant a higher award than one granted under this section.

    (4) Whenever the issue of self-defense under this section is decided by a judge, the judge shall consider the same questions as must be answered in the special verdict under subsection (4) [(5)] of this section.

    (5) Whenever the issue of self-defense under this section has been submitted to a jury, and the jury has found the defendant not guilty, the court shall instruct the jury to return a special verdict in substantially the following form:


    answer yes or no
    1. Was the finding of not guilty based upon self-defense? . . . . .
    2. If your answer to question 1 is no, do not answer the remaining question.
    3. If your answer to question 1 is yes, was the defendant:
    a. Protecting himself or herself? . . . . .
    b. Protecting his or her family? . . . . .
    c. Protecting his or her property? . . . . .
    d. Coming to the aid of another who was in imminent danger of a heinous crime? . . . . .
    e. Coming to the aid of another who was the victim of a heinous crime? . . . . .
    f. Engaged in criminal conduct substantially related to the events giving rise to the crime with which the defendant is charged? . . . . .

    [1995 c 44 § 1; 1989 c 94 § 1; 1977 ex.s. c 206 § 8. Formerly RCW 9.01.200.]

  5. #5
    Opt-Out Members BigDave's Avatar
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    Vitaeus, do you remember the incident in Onalaska about a year and a half ago? homeowner shot and killed someone in the commission of a felony and was charged and found guility?

    Ron Brady faces five years in prison now that a jury has found him guilty of second-degree manslaughter in the April 19, 2010, shooting death of an intruder at his Onalaska-area home.

    The verdict proves that Brady's actions, which he justified as self-defense, "were not reasonable," Lewis County Prosecutor Jonathan Meyer said Monday.

    "You always run a risk when you take the law into your own hands. Mr. Brady's actions, I felt, were not reasonable," Meyer said.

    Brady, 60, was charged with first-degree murder in the shooting death of Thomas McKenzie, 56, formerly of Morton. Jurors also had the options of convicting Brady of first- or second-degree manslaughter, for which the prosecution merely had to prove negligence. To win a murder conviction, prosecutors would have had to prove premeditation.

    Read more: http://tdn.com/news/local/article_0d...#ixzz1kSBlA6EJ
    This is why I posted the Jury Instructions in hopes others would read and see that you will be judged by what others feel a reasonable prudent person would do in the same circumstances and knowing what you knew at the time.

    I am not advocating in not defending yourself and family in your home or else where for that matter but be able to articulate Ability, Opportunity and Jeopardy when it comes to imminent threat to life or limb.

    So when it comes down to it, Don't Be That Guy!
    • Being prepared is to prepare, this is our responsibility.
    • I am not your Mommy or Daddy and do not sugar coat it but I will tell you simply as how I see it, it is up to you on how you will or will not use it.
    • IANAL, all information I present is for your review, do your own homework.

  6. #6
    Opt-Out Members BigDave's Avatar
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    I thought I would add to my last statement a bit, as this subject is very important to me and hopefully many others.

    Each incident will have its own facts and circumstances that will vary from one extreme to another and no one response would be appropriate for all.
    There will be incidents where you have no other choice to use your firearm if someone bust down the door and enters in a threatening manner and the law and most people would be on your side. There are those few that do not require the escalation to the use of deadly force as to size strength level of threat of one, even though they entered the home with out an invitation. Many instructors teach firearms owners about articulating the Ability, Opportunity and Jeopardy as a guideline and all elements must be in place at that moment in time and it arises to imminent threat of life of limb.

    If we view from the beginning on the use of force. note throughout how the definition of Necessary is defined and used and
    generally through the RCW's and Jury Instructions the use of force is a progression in severity to be used and will be used by a Jury on how prudent person knowing the same as you did at that time and would have acted the same.

    While we have the right to stand your ground it is not a position of escalating an incident but one that you do not have to leave to defend yourself if necessary and not more then necessary.

    Something that has concerned me for sometime now an attitude to have a desire to use their weapon as soon as possible and not as a tool of last resort. There are those incidents where the weapon would be the first and the only choice, but recognize many or most use of force incidents do not include the use of firearms. The answers some seek are not black and white. Choosing incorrectly could cost one their freedom and livelihood to support their families, make sure if you use your weapon you know what is at stake, their life, your life and your families well being.

    RCW 9A.16.010
    Definitions.


    In this chapter, unless a different meaning is plainly required:

    (1) "Necessary" means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.

    (2) "Deadly force" means the intentional application of force through the use of firearms or any other means reasonably likely to cause death or serious physical injury.
    WPIC 16.05 Necessary—Definition
    Necessary means that, under the circumstances as they reasonably appeared to the actor at the time, (1) no reasonably effective alternative to the use of force appeared to exist and (2) the amount of force used was reasonable to effect the lawful purpose intended.

    RCW 9A.16.020
    Use of force — When lawful.


    The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:

    (1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction;

    (2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody;

    (3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;

    (4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public;

    (5) Whenever used by a carrier of passengers or the carrier's authorized agent or servant, or other person assisting them at their request in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force used is not more than is necessary to expel the offender with reasonable regard to the offender's personal safety;

    (6) Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to any person, or in enforcing necessary restraint for the protection or restoration to health of the person, during such period only as is necessary to obtain legal authority for the restraint or custody of the person.
    WPIC 16.02 Justifiable Homicide—Defense of Self and Others
    It is a defense to a charge of [murder] [manslaughter] that the homicide was justifiable as defined in this instruction.
    Homicide is justifiable when committed in the lawful defense of [the slayer] [the slayer's [husband] [wife] [registered domestic partner] [parent] [child] [brother] [sister]] [any person in the slayer's presence or company] when:
    1) the slayer reasonably believed that the person slain [or others whom the defendant reasonably believed were acting in concert with the person slain] intended [to commit a felony] [to inflict death or great personal injury];
    2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
    3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to [him] [her], at the time of [and prior to] the incident.
    The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
    WPIC 16.04.01 Aggressor—Defense of Others
    One who acts in defense of another, reasonably believing the other to be the innocent party and in danger, is justified in using force necessary to protect that person even if, in fact, the person whom the actor is defending is the aggressor.
    There are many more Ron Brady's out there who thought they did everything right and I am sure thought it was black and white to someone coming onto his property trying to steal items and ended up loosing his freedom and security of this family.

    If I was going to try and break it down into a short sentence it would be something like, My weapon is my tool of last resort but there when I need it and only then use it when I have no other choice to save myself or another from death or grievous bodily harm and treat it as my and my families life depends on it.

    As to the shooting in LA Center we will have to see what information that comes our of that investigation as to if it was a good shoot or not.
    Last edited by BigDave; 01-25-2012 at 06:17 AM.
    • Being prepared is to prepare, this is our responsibility.
    • I am not your Mommy or Daddy and do not sugar coat it but I will tell you simply as how I see it, it is up to you on how you will or will not use it.
    • IANAL, all information I present is for your review, do your own homework.

  7. #7
    Regular Member sudden valley gunner's Avatar
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    And it's time to educate jurors that jury instructions are not law they have no duty to convict someone protecting their property especially when the RCW's spell out a use of deadly force.

    I will not convict someone protecting their property. The thief put a value on his own life when he chose his path.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Regular Member Vitaeus's Avatar
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    @Big Dave, upon reading your link I now remember that case, I agree with you that the facts of a case determine the results. In your cited case the dead man was OUTSIDE the home AND the owner had chosen to go to a house he was NOT sleeping in specifically for the purpose of "defending" it. I really need to figure out how to Bold copied text, in my last post the first RCW I cited made "residential burglary" a felony which is defined as "the person enters or remains unlawfully in a dwelling other than a vehicle". In your cited case this would not apply as the couple that were fired upon were currently trespassing, which is not enough of a crime under the RCW to by itself justify the response by the owner. That said I very strongly agree that anyone using deadly force needs to understand the requirements for it and to consider whether there is another legal and safe method to protect themself or others.

    Thank you for the reasonable discussion on such an important topic. Some of the other discussions on here are getting a bit strident and full of straw men.

    Stay safe and hopefully our guns can remain on our hips other than at the range.

  9. #9

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    Quote Originally Posted by Vitaeus View Post
    @Big Dave, upon reading your link I now remember that case, I agree with you that the facts of a case determine the results. In your cited case the dead man was OUTSIDE the home AND the owner had chosen to go to a house he was NOT sleeping in specifically for the purpose of "defending" it. I really need to figure out how to Bold copied text, in my last post the first RCW I cited made "residential burglary" a felony which is defined as "the person enters or remains unlawfully in a dwelling other than a vehicle".In your cited case this would not apply as the couple that were fired upon were currently trespassing, which is not enough of a crime under the RCW to by itself justify the response by the owner. That said I very strongly agree that anyone using deadly force needs to understand the requirements for it and to consider whether there is another legal and safe method to protect themself or others.

    Thank you for the reasonable discussion on such an important topic. Some of the other discussions on here are getting a bit strident and full of straw men.

    Stay safe and hopefully our guns can remain on our hips other than at the range.
    The way your post reads ( part about not sleeping in it) some may think that since no one was living in the house at the time has some bearing on the definition of a "residential burglary".

    For clarification, "dwelling" is defined by the type of structure (house, apartment, duplex, etc.) and there is no requirement for it to be in current use. If someone illegally enters a vacant or abandoned house, and then commits other crimes (theft, vandalism, etc.) it is still a residential burglary.

    If I recall correctly, this case turned on the owner "laying in wait" and shooting a "would be" burgler with some level of premeditated intent as soon as they set foot on his property and before actually entering the dwelling. So while technically correct in that it was merely trespass at the time, and tresspass is not a felony, he had an uphill battle from the start in defending his action.

    Pure and simple, homeowner was too quick on the trigger and didn't seem to grasp what his rights and responsibilities were. That is generally a bad idea when one takes to toting firearms. Absent an articulable and reasonable threat of harm (and simply thinking "he might have a gun" ain't it...) you are going to be called out.

    It isn't self defense when you act first to preempt what a bad guy might do. Has to be some sort of threat or overt act on their part other than simply being somewhere they don't belong and "maybe" having a gun.

    One of the greatest things we as gun owners can do to harm ourselves is to try and stand by folks like this and defend what they did or decry when they are convicted after acting outside the law or irresponsibly.

    Everyone complains when cops "protect their own" after transgressions. Well, as gun owners, that ideal applies to us as well.

  10. #10
    Regular Member Vitaeus's Avatar
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    The shootee's were out in the driveway, which is not inside the residence, which is the part that made it trespassing vice residential burglary. The other part was that he was "laying in wait". If he had found them IN the residence during an inspection tour, it might have been different. The case we are discussing had many flaws in the application of self-defense.

  11. #11
    Opt-Out Members BigDave's Avatar
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    Depending upon how one wants to view an incident involving someone entering their home uninvited will have many out comes.
    One I have brought up is if an elderly person with dementia enters the home and sits down, would it be justifiable to employ deadly force, not how I see it.
    If a younger person was to force their way into the home, would their be any doubt that they were there to do you harm, not in my view.
    If you caught your daughter or sons boy/girl friend climbing in their window, would it be justifiable to shoot them? even though I would have thought about it but if there was nothing else accompanying this act as a threat then no, again in my view.

    So when it comes down to it my view just having someone enter your home uninvited or not does not constitute a threat but their actions and circumstances would. And would you want to put your family and yourself taking a life other then a have to case?

    A view that is taught through out firearms training to assist people thinking through these scenario's is Ability, Opportunity and Jeopardy where all elements must be present to apply and of course one should be able to articulate each category.

    Nothing is just cut and dry.
    • Being prepared is to prepare, this is our responsibility.
    • I am not your Mommy or Daddy and do not sugar coat it but I will tell you simply as how I see it, it is up to you on how you will or will not use it.
    • IANAL, all information I present is for your review, do your own homework.

  12. #12
    Regular Member Vitaeus's Avatar
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    Dave, i agree all cases depend on the totality of the circumstances, if my posts have not stressed that I plead "the internet". I also agree that intent on both sides of the shoot are one of the most important parts of the totality. Being in your home makes it less likely that the intruder is merely lost, not impossible, but I believe that the law should err in the favor of the homeowner in most, not all, cases. Someone in the same room as you in possibly poor lighting doesn't leave much room for error. It is possible to list twenty conditions and still end up not having all the facts.

  13. #13
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    hermannr,

    "No charges filed, in Seattle of all places."

    Why do you say that? The King County Prosecutor's Office has a well-deserved reputation for being properly respectful of the right of self-defense.



    BigDave,

    IANAL, but it sure seems to me that the Pattern Jury Instructions you quoted are defective in making no provision for RCW 9A.16.050 (2).

  14. #14
    Opt-Out Members BigDave's Avatar
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    Quote Originally Posted by kparker View Post
    BigDave,
    IANAL, but it sure seems to me that the Pattern Jury Instructions you quoted are defective in making no provision for RCW 9A.16.050 (2).
    Here is the link so you can read it in it's entirety. http://www.courts.wa.gov/index.cfm?f...ryInstructions
    • Being prepared is to prepare, this is our responsibility.
    • I am not your Mommy or Daddy and do not sugar coat it but I will tell you simply as how I see it, it is up to you on how you will or will not use it.
    • IANAL, all information I present is for your review, do your own homework.

  15. #15
    Regular Member sudden valley gunner's Avatar
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    They will instruct you that you have to rule whether a law was broken or not and that your personal feelings on the law don't matter. Yet it does matter and is why the founders choose to follow the legal tradition of Blackstone, we can nullify laws we disagree with it is our right as jurors and peers.

    The trick is not letting on you believe in nullification when being brought to jury people making their living off the conviction of others don't like nullification, which makes it all the more important to retain that right.

    Some say jury nullification is the most practical way to stop the juggernaut police state.
    By Tom Stahl
    http://www.fija.org/docs/JG_state_la...lification.pdf
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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