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A Conundrum? New Orleans Murders Fall as Self-Defense Killings Rise

A Conundrum? New Orleans Murders Fall as Self-Defense Killings Rise

Ignorance of the Law Also Catches Many Defenders in Consciousness-of-Guilt Trap

It’s become so commonplace for “journalists” to be blind to obvious cause-and-effect relationships that fall outside the acceptable Progressive narrative that James Taranto of the Wall Street Journal has long used the tag-line “Fox Butterfield, Is That You?” as he notes these occurrences in his daily (and excellent) “Best of the Web” blog posts.

Perhaps the quintessential such observation is “Prison populations continue to increase, even as crime rates decline,”  the implication being that this represents some kind of counter-intuitive conundrum along the lines of:  how can we be locking up more criminals if there are fewer criminals to lock up?

It takes an exceptional type of intellectual obtuseness not to recognize the distinct possibility that these two events may be not only correlated but causative–put more criminals in jail, and there are fewer criminals on the street to commit crime.

Self-defense killings rise in New Orleans even as murders fall

Although always humorous, one such observation he noted yesterday particularly caught my eye as it touched upon a subject near and dear to my heart, the use of force in lawful self-defense.  Specifically, the New Orleans newspaper Times-Picayune ran a story entitled “Self-defense killings rise in New Orleans even as murders fall.

It is axiomatic that if you raise the price of something, you get less of it. In New Orleans it has become increasingly likely that the price for attempting to unlawfully use deadly force against another person is the lose of the aggressor’s own life–a higher cost is hard to imagine.

It only makes common sense, then, that higher levels of self-defense, particularly self-defense that results in the death of the attacker, would be accompanied by a decreased incidence of unlawful killings.  For one thing, a deadly force attacker has been killed, thus substantially limiting his ability to contribute to the murder rate in the future. Second, other criminals wishing to stay alive begin to re-direct their criminal activities away from those that might involve themselves being killed.

These observations are, of course, nothing new.  Dr. John Lott wrote a seminal text–“More Guns, Less Crime”–on this topic as long ago as 1998 (coincidentally, the same year I published the first edition of “The Law of Self Defense.”)  Just a few weeks ago his Crime Prevention Research Center published the most recent of many such reports noting that on a national level between 1999 and 2013 (a 14-year period) murder rates have declined even as the percentage of adult Americans permitted to carry concealed handguns has sky rocketed.  (The entirety of this report is embedded at the bottom of this post.)

CPRC Table 8-28-14

So, nothing really new there.  The only really remarkable thing is that in 2014 a “journalist” remains unable to see this obvious and well-documented and oft-referenced relationship–greater exercise of lawful self-defense leads to a reduction in violence against innocent person.

The “Consciousness-of-Guilt” Trap

What I did find particularly interesting in this Times-Picayune piece, however, was the observation that several of the defenders discussed had apparently acted in lawful self-defense, but then as a result of their ignorance of the law of self-defense managed to get themselves into hot water by engaging in conduct evincing what lawyers refer to as “consciousness of guilt.”

The concept of consciousness of guilt simply recognizes that people who believe they have done something wrong tend to act in ways that differ from that of people who do not believe they have done something wrong, and these differences in conduct can be used to infer consciousness of guilt.  What kinds of conduct are we talking about?  Classic examples include flight from the scene (beyond the needs of safety), lying to the police, tampering with evidence, and efforts to induce witnesses to change their story.

Most states have an explicit “consciousness of guilt” jury instruction, the general format of which is: “The defendant has been accused of [tampering with evidence.] If you believe beyond a reasonable doubt that this is true, you may infer from this conduct consciousness of guilt and use this as evidence that the defendant is guilty of the crime charged.”

In other words, if the jury believes you tampered with evidence to conceal wrongdoing, they will be explicitly instructed that they can conclude that not only does the prosecution believe you are guilty the underlying crime, but even you believe you are guilty crime. Ouch.

One of the reasons I wrote the first edition of “The Law of Self Defense” is that I routinely overheard other gun owners giving each other advice on what to do in the aftermath of an act of self-defense, and this advice too often fairly screamed of consciousness of guilt.  “If you shoot someone outside of your house, make sure you drag them over the threshold.” Uh, yeah, and that long smear of blood along the way isn’t going to take CSI to solve.  “If you have to shoot someone, drop your folding knife by them so they’ll have had a weapon.” Yeah, that folder that rides in your pocket every day and is absolutely covered in your DNA and fingerprints. No. Do NOT do this, unless you’re affirmatively seeking to go to prison.

Acts Suggesting Consciousness of Guilt Traps Otherwise Lawful Defenders

The Times-Picayune story describes two situations in which individuals purportedly acted in lawful self-defense, only to find themselves being nevertheless prosecuted on the basis of consciousness of guilt evidence.  In both cases they essentially claimed that their ignorance of the law of self-defense left them uncertain as to whether they might be prosecuted for murder under the law despite their good faith belief that they had acted in lawful self-defense.

Both cases involve defenders who sought to hide the weapon they used to kill their attackers, only to have the weapon later discovered by police.

In the case of 37-year-old Kawanda Hampton (Featured Image), she stabbed her boyfriend in the chest as he was beating and choking her, an apparently lawful act of self-defense.  Then, however, Hampton drove the evidentiary train off the rails:

Apparently unaware that she was within her rights to kill Carson, Hampton lied to police at first, police reports say. She claimed her 12-year-old son stabbed her boyfriend, and that the slaying weapon was a knife she had cleaned and returned to a kitchen drawer before officers arrived.

But police found a bloody knife in a trash bin outside. And the son told officers that he retrieved the knife for his mother at her request while she was being choked, but that she did the stabbing. Hampton soon admitted she lied because “she was afraid,” and that her son was telling the truth, police say.

“I was scared,” Hampton said through tears in an interview this week. “I didn’t want to go to jail and have to leave my kids. … But it was me or him. I’m not an evil person.”

[Prosecutors] agreed with police that the evidence did not support prosecution for homicide. Her case on obstruction of justice is pending.

In a second case, 24-year-old Eugene McGee was visiting a woman friend when her ex-boyfriend showed up. The ex-boyfriend threw a brick through a window and tried to enter the woman’s home while threatening her. McGee grabbed the woman’s gun and went outside to confront the ex-boyfriend. Shots were exchanged, with McGee suffering a debilitating gun shot wound (he remains in a wheelchair) and the ex-boyfriend a mortal one.  Even assuming that McGee had a robust claim of self-defense up to this point, he too then drove the evidentiary train off the rails:

McGee was a convicted felon on parole for a cocaine charge, so he didn’t want to be caught with a gun. A witness told police he asked someone to move the gun away from him. Police found both guns in a dumpster nearby. McGee pleaded guilty last month to obstructing justice and received a 20-month prison sentence.

Ironically, under the facts as presented in the news article, in which the gun was the woman’s and not already in McGee’s possession, the seizing up of a firearm in imminent need of self-defense is one of the few circumstances in which a felon, normally prohibited from possessing a firearm of any sort, can credibly claim that the possession was justified as a matter of necessity and self-defense.

Consciousness of Guilt Traps Are Not Limited to New Orleans

We have also, of course, seen similar conduct grenade claims of self-defense in other cases followed closely here at Legal Insurrection, even if not referred to explicitly by prosecutors as consciousness of guilt evidence.

In the case of Michael Dunn, who shot and killed Jordan Davis in Florida, his flight from the scene well beyond the needs of immediate safety both undercut his credibility and prevented the police from even knowing to search for the purported shotgun he claimed Davis pointed at him.

In the case of Theodore Wafer, who shot and killed Renisha McBride in Detroit, his initial claims of “accident” and later claims of “self-defense” were characterized by prosecutors as prior inconsistent statements in which either one or the other was necessarily an act of lying to the authorities.

CPRC Report: Concealed Carry Holders Across the United States (July 9, 2014)

–-Andrew, @LawSelfDefense

[Featured Image Source: NOLA YouTube]


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.

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Comments

Another valuable piece, Andrew. Thanks.

ufo destroyers | August 28, 2014 at 10:53 am

Excellent article. Not wanting to be the grammar hound, but something is missing in the 7th paragraph right before the first exhibit. I think the word is either “declined” or “fallen” in regards to the murder rates since that’s in the title of the graph.

When some of our esteemed friends in the field of journalism seem truly and deeply bothered about anyone criticizing Hamas’ right to “negotiate” with Israel through the use of missile barrages, I feel like such attitudes are reflected in any discussion of crime domestically as well.

In other words, there seem to be people out there who seriously believe we have insufficient violent crime by minority groups, that such violent crime is necessary to get society’s attention about the reality of racism, and that continuing to keep violent minority criminals off the streets is not only unjust individually, but injurious to society by denying it the critical mass of crime necessary to keep it honest.

Well, that’s how it comes off.

Char Char Binks | August 28, 2014 at 11:25 am

If ignorance is bliss, I don’t want the kind of bliss Wafer and Hampton are experiencing.

Until the last criminal gets it. Their intended victims are the first responders.

There is no way around the “consciousness of guilt” trap. Normal people will feel some guilt, whether their actions are justified or not. Only with training, and experience, is this guilty feeling, or perhaps anxiety, mitigated. Perhaps a training course which includes proper use of guns and education of relevant laws (or “The Law of Self Defense”) should be encouraged with each gun purchase.

DouglasJBender | August 28, 2014 at 12:15 pm

Has anyone yet tried the “Zombie Defense”? That would be where the person claims they didn’t believe the victim was actually alive, so it couldn’t be murder.

    Sure, that’s just a variation of the old-school insanity defense. 🙂

    Bit harder to pull that off today than it was in the 60s and 70s, however.

    –Andrew, @LawSelfDefense

      Phillep Harding in reply to Andrew Branca. | August 28, 2014 at 1:00 pm

      I don’t know if California still has it’s screwball “I believed this action was necessary for the preservation of my life” law. As I understand, it is/was one of those “cross your eyes and scratch your head” laws.

        Every state provides for a legal defense of necessity, but it’s rarely invoked, especially in cases involving deadly force. (Some states use different wording, such as “choice of evils,” but the underlying principle is the same.)

        In essence, what would otherwise be misconduct can be excused if the act is necessary to address a substantively greater harm that is entirely not of the actor’s making.

        So, you hear a crash, see a car has smashed into a tree and is burning, the driver is unconscious. The doors are locked, so you break the window, open the door, drag the driver to safety.

        It is, of course, unlawful to break someone’s car window, but doing so falls within the bounds of the necessity defense–the harm of breaking the window is small relative to the loss of human life, and you played no role in the car crashing.

        Where the actor’s act itself threatens or causes loss of life, however, it’s a much more difficult case to make. If there was a threat of death or grave bodily harm to the actor, which is what spurred his act, he’s better off arguing simple self-defense. Conversely, if there was no threat of death or grave bodily harm to the actor, then there was no much greater danger avoided by his acting in a deadly manner.

        –Andrew, @LawSelfDefense

Thank you Andrew. In particular, the part about ‘consciousness of guilt’ is extremely useful.

Also, if you’re going on camera to describe your act of self-defense (which you shouldn’t anyway, but I digress), change into a shirt that doesn’t have writing on it, and has long sleeves to cover your tats, please.

    Traditionally, the only time one would expect to be on camera is when dealing with the investigative officers, back at the police station.

    One should never speak with investigative officers in the absence of legal counsel under ANY circumstances. THOSE are the guys to whom you really DO say nothing substantive except the “magic words”: “I am asserting my right to silence. I am asserting my right to counsel.”

    Of course, things are changing today with respect to cameras, what with more and more patrol officers being wired up with on-body cameras. Not much you can do about that, however. And it wouldn’t change anything I’d recommend in terms of interacting with those guys, anyway.

    –Andrew, @LawSelfDefense

Henry Hawkins | August 28, 2014 at 2:15 pm

Sure, homicide rates go up and down, but sometimes it’s because people have learned to hide the bodies better.

There’s a simpler explanation for the self-defense shootings/murders figures.

Every self-defense shooting (by definition lawful) presumes a criminal attack using (or threatening) lethal force. Had some of these self-defense shootings (if not most) not occurred, more attack victims would have been murdered. So there would be fewer self-defense shootings and more murders (the previous condition) rather than more self-defense shootings and fewer murders (the current condition). The stats reflect the replacement of some potential murders by acts of lawful self-defense.

Faster, please.

BannedbytheGuardian | August 28, 2014 at 6:30 pm

I also think it is due to the overall improvement in Louisiana since Katrina & ousting of corrupt officials. Bobby Jindal has been a monumental change bringer in attitude .in & towards Louisiana .

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