Ken Del Valle Criminal Defense Attorney

07/20/2018

ON THE USE OF DEADLY FORCE IN SELF DEFENSE

In the classic "The Decameron" written by Boccaccio in the year 1,353 a genteel young woman tells the tale of a man that killed another in self defense and that the whole of society thought that the man had been morally and legally entitled to kill to prevent another from killing him.

That is the oldest reference I know of about the use of deadly force in self defense... 139 years before Columbus discovered America. The concept is well ingrained in most cultures.

Everyone understands the general principle of self defense but as they say... the devil is in the details.

It has been my experience that regardless of the law... juries will always impose certain requirements upon the facts presented by the defense to conclude that the defendant was justified in using deadly force for self defense.

FIRST: If an aggressor is armed with a deadly weapon such as a firearm or a knife or a deadly instrument such as a hammer or an axe... and the attack is eminent... the jury will not have much trouble finding that a defendant acted reasonably in using deadly force in self defense.
It's pretty much the same in the use of deadly force in defense of home invasions and burglaries... specially at night... and the same goes when defending against an armed car jacking.

SECOND: However, if an aggressor is not armed with a deadly weapon or a deadly instrument then the defendant must usually show that he/she made an attempt at de-escalation and or avoidance or that the defendant first tried to defend himself with something less than lethal force... before having to escalate to lethal force.

It doesn't matter that you didn't start it. It doesn't matter that you warned off an unarmed attacker by telling him/her that you would shoot him/her if they continued to advance upon you.

What matters in court is your demonstrable attempts to
de-escalate and avoid the confrontation by attempting to get away if possible.... all the more important if you are in a vehicle that you can use to just drive away.
Exception: A deadly force response to an armed car jacker is almost always allowed.

If you can escape in a vehicle drive to a police station or a fire station. Always know where they are at along your daily routes. Use your cell phone to call 911 on the way.

If you are on foot try to get to a crowded place with plenty of witnesses that may discourage an aggressive attacker. Call 911 as you retreat.

If you are cornered and unable to get away then a jury will be more understanding of your reasonable use of deadly force to defend yourself from eminent harm.

I know that a lot of jurisdictions have recently passed
"Stand Your Ground" laws that do not require that you attempt to de-escalate or retreat before you resort to deadly force.... but prosecutors haven't yet gotten comfy with the notion.
Try to get away!! When deciding to charge or not charge most prosecutors will still want to know if you attempted to de-escalate or retreat before you resorted to deadly force.
A video of you backing away making conciliatory gestures will play a lot better that a video of you advancing while making aggressive gestures.

So... you are now in the grocery store parking lot with a big guy shoving you because you beat him to a parking space. There are possibly cameras and about ten witnesses...you have a pistol.

You back away as he shoves you.... making sure that the cameras and witnesses note your verbal effort to de-escalate. You conciliatory body language is important ... witnesses will later describe your actions and attitude to the police based on your observed body language.

Then... you reach in your pocket and pull out your handy pepper spray and blast the aggressor in the eyes with it.
You have just foregone your firearm and used non deadly force to attempt to protect yourself from the bully.

No one could find that to be an unreasonable or over broad response to a non deadly force attack.

So far you are on sound legal footing. You have not responded to a non deadly force attack with two shots to the bully's chest... you are a real John Q Citizen.

But the bully is now enraged and doubles his efforts to injure you. Now there is physical contact and you may even have demostrable injuries.

Now you can pull the pistol and put two in his chest.

What you have done is demonstrate that you reasonably attempted to de escalate and avoid... then attempted to protect yourself with non lethal force and only after you had no other choice and exhausted other less lethal options... finally resorted to lethal force.

Lethal force against an unarmed opponent must be your last recourse... specially in front of witnesses.

THIRD:Do not give chase or finish off an attacker.

The law protects your right to be safe. But once you are safe you have no right to continue using any sort of force, much less deadly force, against a now non attacker. Once you are safe you must stop.

If you pepper spray or shoot the bully and he leaves off you have won.

If he stops attacking you you have won.

If you can use your counter attack to get away from immediate danger you have won.

FOURTH: Self defense law allows you to protect yourself in a reasonable manner. Only that and no more.

Our cultural notions of reasonable self defense have deep roots. Current laws expanding those notions do not sit well with many jurors. A lot of homicide defendants believed it when they were told the law was now "Stand Your Ground".
The law may say that... but juries aren't buying it.

And this. Do a cost benefit analysis before you resort to deadly force. Is killing the bully shoving you around the parking lot worth going to trial for murder?

Undoubtably there are times when quick resort to your firearm is the only way to assure your survival but most street confrontations are not such times. And you must act prudently to stay out of prison.

FIFTH: You are not a cop. Juries seem to give cops a lot of leeway when cops commit questionable killings. You are not a cop. You won't get the same leeway.

SIXTH: Empathy. Everyone you kill is someone's son or brother or father or husband. It is not right to take a person from those that care about him or her. So do not do so unless your are in reasonable fear of immediate physical injury that can not be stopped by you leaving or running away.

I usually carry a pistol but there is always a pepper spray in my pocket. You can buy them on Amazon for less than ten bucks.... a lot cheaper than a good homicide defense attorney.

SEVENTH: None of us is as special as we think we are.
Life comes with a full contingent of jerks to remind us that we are not as special as our moms told us we were.
In a crowded society we all have to deal with jerks that at that point in time may get the best of us. It's just part of life and you must learn to tolerate it. Even the strongest lion can get his tail nipped at by a couple of hyenas.
So, whenever possible, avoid, de-escalate and attempt to get away before resorting to deadly force.
Don't let your ego put you in prison.

So live wisely and walk away from it when ever you can.

04/15/2018

More great legal advice:

Again: Do not talk to the police.

The U.S. Supreme Court has ruled that cops can use deceit, trickery and psychological manipulation to get a confession or incriminating statement from you. Remember that at all times.

We have all had the experience of being approached by a street bum when we exit a store or a restauran and
you know what's coming... he's going to ask for a handout.

You can give him some change or ignore him or say no to that street bum.

Here's the thing.... you have the exact same right to brush off a cop or any agent that wants to speak with you. You have the same right to brush off the cops as if they were a street bum.

You have the right under the Fifth and Sixth Amendments of the U. S. Constitution to tell cops you don't want to speak with them without a lawyer present.

Even if it is not your intention to get a lawyer you can tell the cops that. Even if you can't afford an attorney you can tell the cops that. Even if all you want to do is stop,the questioning you can tell the cops that.

Usually the cops will try to argue with you about your request for a lawyer by implying that you must be guilty of something if you don't want to speak with them without a lawyer...
Do not fall for that dumb trick. Remember, cops get to use trickery and lies to you to get you to confess.

Do not argue with the cops about why you want a lawyer... just tell them again and again and again and as many times as it takes that you will not speak with them without a lawyer present.

Even if the cops tell you that you are just a witness to a criminal event do not speak to them without a lawyer present. That is also an old trick.... if you admit you witnessed a criminal event you just placed yourself on the scene of the crime and you may have just corroborated someone else's statement that you are the perp.... see how it works?

Even if a cop tells you that you are on a video that shows you committed a crime.... you must request an attorney. Cops often lie and tell suspects that they are on video to trigger a confession or incriminating statement.

The best prosecution tool is a confession!

Every crime has elements that need to be proved up in court.
When you talk to the cops you may just be giving them a confession about one or more of those elements.

If you tell a cop that you just peeked into the liquor store cause the door was open at 2 am you just put yourself inside of a structure and have just given up the first element of the crime of burglary... that you entered into a structure. See how it works?

If you admit that that is you with a red T shirt on the fussy convenience store video you may just be the guy in the red T shirt that shot someone a block away... see how it works?

So... you can be perfectly innocent of a crime and wind up on trial for that crime because you believed you had nothing to hide or because you believed you were doing the right thing by talking to the cops.

Also, use your phone to record your exercise of your constitutional rights. Keep a code on your phone that locks your phone after a period of time. Cops wear body cams so you get to use your phone the same way.

THIS IS NOT A FORUM FOR YOUR COMMENTS ON THE LAW. IF YOU HAVE A PROBLEM WITH THIS ADVICE KEEP IT TO YOURSELF.

IF YOU LIKE IT SHARE IT.

12/31/2017

Here is some great legal advice:

Lately I have seen videos of police stops for suspect DWI that are disturbing.

Remember that the officer knows you are being videoed and that the video will be used in Court and played to the jury during your trial.

The disturbing part is the officer’s running commentary during the filming of the video.

Even when it is obvious that the defendant is perfectly sober the officer will start a running commentary (he knows it is being filmed) about his observations that you are intoxicated.

The commentary will often go something like this:
1) I smell alcohol on your breath.
2) Your eyes are blood shot.
3) You can’t follow my finger on the gaze test.
4) I’ve been doing this a long time and I can tell you are intoxicated.

All of the officers statements are being filmed and will be played to the jury.... problem is that the jury can’t tell if what the officer says he’s observing is true.

The jury can’t view the film and determine whether or not you actually smelled of alcohol, or whether your eyes were blood shot or if you followed the gaze test. But they are hearing the officer say so on the video.

Tough situation to be in.

So you must deny the accusations each and every time they are made. You must tell the officer in a firm but respectful way that he is wrong.

Off: Your eyes are blood shot.
You: No they are not.

Off: You smell of alcohol.
You: No, I do not smell like alcohol.

Off: You failed the gaze test.
You: No sir, I followed you finger(or what ever object) perfectly with both eyes.
(As an aside on the gaze test... always complain out loud that the light is hurting your eyes. That you have stigmatism.)

Off: I’ve been doing this a long time and I can tell you are intoxicated.
You: No sir, I am not intoxicated, and or
You must be getting a lot of bonus money for each arrest.

You must speak clearly and loud enough for the microphone to pick up your responses.

You must deny each accusation. Each and every time it’s made.

If the officer gets mad at you continue to be respectful but adamant in your denials.

At some point tell the officer that you know you are being recorded and that he is trying to create false evidence against you by making those comments.

You: With all due respect officer, are you trying to manipulate the video evidence with your statements?

Do not become aggressive or act like a jerk... if you do the jury may convict you just for that.

For some people it is difficult to maintain composure at the time of arrest... but you must do so. It is a great argument to demonstrate to the jury that you were not intoxicated at the time.

Keep your head about you. The cops rule on the street. Be patient, your lawyer will rule in the courtroom.

PL EASE DO NOT COMMENT IF YOU ARE NOT AN ATTORNEY.

THIS IS NOT A FORUM. IT IS LEGAL ADVICE FOR THOSE THAT MAY BE IN THE DESCRIBED SITUATION.

NON ATTORNEY COMMENTS WILL BE DELETED UNLESS IT IS TO SHARE A SIMILAR EXPERIENCE.

FEEL FREE TO SHARE

12/31/2017

10/30/2017

More great legal advice:

18 U.S.C. Sec. 1001 makes it a crime to lie to a federal officer. That includes FBI, DEA, HSI ... any federal agent... including a Federal Park Ranger.

Violations carry a possible sentence of 0 to 5 years and in some cases up to 8 years.

It is a great prosecutorial tool often used to bootstrap more serious charges.

Federal agents have a great trick to get suspects to lie to them.

Two or more agents will approach the target. There will always be two or more agents so they can later bolster each other’s courtroom testimony about the conversation.

The agents will usually catch the target by surprise.
I have had cases were the target was approached at a restaurant dinning with his family, or at work or at his kid’s football game.

The target will be asked a hard material question like,”Have you ever deal drugs?” or “Have you ever bribed a police officer?” or “Have you ever falsified a bank loan application?”

These are embarrassing questions that will almost always elicit a denial. The agents, of course, already know you have done the things they are accusing you of... and you have just added “false statement to a federal officer” to the list of your charges.

The prosecutorial strategy behind this is to have at least one sure charge you can be convicted of in case you want to fight your case on the other charges.

So? How do you handle it?

You tell the agents you don’t want to talk to them without an attorney present.

You take out your cell phone and begin to self video your request for an attorney to be present before you make a statement.

The agents may tell you that you are not entitled to an attorney because you are not in custody.

Do not believe him/her. Do not argue... just continue to stand your ground in a polite but firm manner and insist that you want to consult with an attorney before talking with them.

I have personally been in such a situation. I was approached by two agents as I was leaving my bank. I told them to meet me at my office later that day.

When the agents arrived I had a colleague sitting next to me. After polite introductions we proceeded. The agents asked a question; my colleague and I left the room; I gave my colleague the answer; we returned to the room and my colleague relayed the answer to the agents.
At no time did I personally answer any of the agents’ questions personally or directly.
Fortunately it was a non issue.

Remember this: No police officer or agent or any one can ever testify in court that you exercised your right to an attorney or your right to remain silent or your right to not consent to a search...
It is impermissible testimony because it is the exercise of a constitutional right.

Life experience:
We have all been approached by unknown persons that wanted to speak to us. Usually someone may approachyou while you are coming out of a store or a restaurant... and you know that within a few seconds they will be asking you for spare change or a donation or to sign a petition. You feel perfectly comfortable waving such persons off or ignoring them.

Know this: When you are approached for questioning... aside from your constitutional rights... you also have the exact same right to ignore any police officer or federal agent as if he/she was a street bum approaching you for spare change.

And although an agent may be more insistent you still have the right to ignore their questions and to not interact with them. In short, you are free to blow them off just as if they were a couple of homeless guys asking you for spare change.

If you are approached by federal agents... get beyond the initial approach and find an experienced federal criminal defense attorney.
This is serious business. The agents aren’t going to try this unless you are a serious target of a federal criminal investigation.

Always ask the agents or police officers for a business card or at least a name and phone number. I am amazed how many clients consult me about these types of matters and when I ask them the names of the agents that tried to interview them... the client doesn’t know the name of the agent or the name of the agency. So ask!
It will allow your attorney to contact the agent; advise the agent you are represented and to let the agent know to leave you alone. It will also allow your attorney to discover the name of the prosecutor managing the case and to begin digging around on your behalf.

As always be polite but firm. Act with the knowledge that everything you are doing at the moment may eventually play out in front of a jury.
You want the jury to see you as a reasonable well behaved person rather than as a thug. So be nice!
Nice but firm.

As always... you have a phone that can video the interaction. Use it. Keep a code on your phone so that your video or voice recording can’t be erased by others.

THIS IS NOT A FORUM FOR ANYONE’S OPINIONS
IT IS SIMPLY SOUND LEGAL ADVICE FOR ANYONE THAT MAY ONE DAY BE TGE SUBJECT OF SUCH AN EVENT