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Law of Self Defense: How to Turn An “Accidental” Shooting into Negligent Homicide

Law of Self Defense: How to Turn An “Accidental” Shooting into Negligent Homicide

Tampering with evidence is conduct inconsistent with self-defense or accident

This case of the week involves a Montana man who reportedly shot his hunting partner just as they returned from a hunt to their cars in a K-Mart parking lot, according to this ABC Fox news report.

The shooter is said to be an NRA Instructor in handgun and rifle. The victim was struck in the chest by a rifle round and died a short time later at a local hospital.

Hunting “Accidental Shooting” or “Negligent Homicide”?

I haven’t hunted in many years, but while I was active, it was my experience that it was rather common for hunting-related shooting deaths to be treated as accidents that resulted in no criminal charges for the shooter. I have always thought this to be rather inexcusable.

If you’re hunting with a firearm, you have an obligation to know what the heck you are shooting at, and to ensure that what you are hoping might be a game animal is not in fact a human being. Failure to do that is, in my mind, outright negligence. The death ought to be charged as a negligent homicide.

In addition, any time you’re handling a modern firearm, it can only discharge if the trigger is depressed. It’s on you to prevent that from happening unintentionally. This obligation ought to be particularly understood by a certified NRA Instructor, which the shooter in this case apparently was.

That said, even the traditional “accidental shooting” could still result in criminal charges if there were some aggravating factor present. A good example might be if the shooter was intoxicated. Another might be if it turned out there was some pre-existing animus between the shooter and victim.

Consciousness of Guilt Evidence, Inconsistent with Innocence

This particular case presents a classic means by which a shooting death that might not been pursued by authorities suddenly becomes an extremely attractive case for prosecution: the presence of consciousness of guilt evidence.

Consciousness of guilt evidence has to do with the recognition that the behavior and conduct of someone who believes they’ve done something wrong often differs in observable ways from the behavior and conduct of someone who doesn’t believe they’ve done something wrong. Such “guilty behavior” might include things like lying to the police, flight from the scene for purposes other than safety, or tampering with evidence.

Such conduct suggests that not only does the prosecutor think the defendant is guilty of a criminal offense, apparently the defendant thinks the defendant is guilty of a criminal offense. Otherwise, why lie to the police, flee the scene, or tamper with the evidence?

Don’t Do This: “If You Shoot Someone Outside Your House …”

One timeless and dangerous piece of self-defense advice is that if you shoot someone outside your house, make sure you drag them inside the house before you call the police. Why? To make the scene appear to be a more favorable self-defense scenario than was actually the case.

I can assure you that when the cops show up and find a big blood smear from the sidewalk up through your front door to the body, it’s not going to require CSI to figure out that the scene has been tampered with in a manner to make it appear more favorable to the shooter.

That kind of tampering with evidence is utterly classic consciousness of guilt evidence—why do it, except that you don’t believe the scene as it actually was, was consistent with a lawful use of force?

Did Tampering Lead to Negligent Homicide Charge?

In this particular case, the shooter has been charged with negligent homicide and tampering with evidence, which is a separate felony charge. I expect it’s highly likely that the negligent homicide charge came about because of the presence of the tampering evidence—that is, the consciousness of guilt evidence—and that absent the tampering evidence there likely would have been no criminal charge at all.

Indeed, it is noteworthy that the criminal complaint charging the shooter with both felonies (embedded below) was sworn on November 26, 2018, more than five weeks after the shooting on October 21.

This suggests that the shooting wasn’t perceived as a negligent homicide on its own merits at the time it occurred. This perception changed after further evidence came to light. The complaint does not specify the precise nature of the alleged tampering, but the summons on negligent homicide and tampering was issued the same date the complaint was sworn.

Destructive Consciousness of Guilt Jury Instruction

Not only can consciousness of guilt evidence encourage a criminal prosecution, it can also result in a consciousness of guilt jury instruction. Essentially the jury is told that the prosecution has claimed that the defendant lied to the police, fled the scene, tampered with evidence, etc. If the jury believes the prosecution have proven this beyond a reasonable doubt they are permitted to infer from that conduct that the defendant is guilty. That’s going to leave a mark.

Bottom line: Don’t do things that will appear as conduct inconsistent with innocence to the police, prosecutors, judge and jury that are going to be determining the lawfulness—or not—of your use of force.


Attorney Andrew F. Branca
Law of Self Defense LLC

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P.S. Here’s that embedded criminal complaint and summons:

[Featured image via YouTube]


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Each time I read one of A. Branca’s essays, I feel as though I’m enrolled in a course on Self-Defense Law in law school, with a first-rate professor.

Always educational and enlightening!

Also one unwritten rule is “Don’t pop off with stupid statements on social media that can come back to bite you,” such as the commenter I saw on Twitter who said something to the effect of after shooting somebody in self-defense, they should take careful aim and shoot them in the… um… delicate areas so they would not reproduce. Yeah, that may play well for the Chairborne Warriors, but if you wind up in a self-defense situation where one of your shots *does* strike the assaulter somewhere around the groin, the prosecutor will rip you a new one.

    Geologist in reply to georgfelis. | November 29, 2018 at 9:52 pm

    One of my instructors advocates aiming for the pelvis, as that will bring an assailant down quickly and effectively. So if I ever shoot someone in the private areas, the shot was aimed at the pelvis.

Always appreciated, Andrew.

“The shooter is said to be an NRA Instructor in handgun and rifle.”

I have a hard time believing that.

That’s like saying the guy who confused the 1st Ammendment with the 5th is a professor at Harvard Law School.

ABC: “was returning home from a hunting trip with Trude when a rifle went off”


Did the men do something to anger the rifle? Were they poking it with a stick? Making lewd jokes about it’s musket ancestors?

Well, seeing that there is NO probable cause listed in this SUMMONS, we have NO idea what happened, other than a weapon discharged and a projectile apparently struck one party in the chest, killing him. And, as well all know, from recent lawsuits, the Remington 700 rifle can discharge without the trigger being depressed by simply removing the safety.

Personally, I have NEVER seen a Summons issued for a criminal felony, especially one which resulted in the death of another person. Usually a warrant or capias is issued based upon a detailed presentation of the evidence supporting probable cause and a LEO simply arrests the defendant. And WTH would a judge threaten to suspend a person’s DL for a non-traffic related case? Finally, this summons appears to suggest that the person ordered to appear will be arrested and processed, then released without bond. WTH???

Trude is also a local Republican politician in Montana.

Here’s video showing the faulty Remington 700

The “NRA Instructor” still violates several gun safety rules, such as

1) always treat the weapon as if it was loaded, even when you “know” it is not (especially then).

2) always keep the weapon pointed in a safe direction (usually up, as the ground will ricochet into bystanders)

3) never point the weapon at something you don’t intend to kill.

And, as well all know, from recent lawsuits, the Remington 700 rifle can discharge without the trigger being depressed by simply removing the safety.

Some well-known guns can, in some circumstances, be fired accidentally without touching their triggers—the P-08 Luger and Type 94 Nambu, with their exposed external trigger linkages, or the wear-prone safety mechanisms of the Mauser C-96 (pre-1916 “New Safety” guns) or the Astra 900 (which never copied Mauser’s later improved safeties). (The P-08, incredibly, can be fired even when disassembled! Oh, those Germans . . . ) These guns are all obsolescent but still fire modern and commercially available ammunition (well, maybe not the Nambu). However in all these cases something has to be handled manually to do it—the guns don’t just “go off” by themselves. And if they’re being handled manually, then the handler is responsible for safe operation despite odd or defective mechanical design features. Muzzle control is the most obvious cure for these ills; if the gun isn’t pointed at anything serious while being handled, nothing regrettable will happen even if it fires unexpectedly, for whatever reason.

I also feel that way about “accidental shootings” explained away with “I was cleaning my gun and didn’t know it was loaded”. Every incident of this I have seen reported should have resulted in negligent homicide charges (at least). Maybe someone here can present an exception. I doubt it.

My guns are never loaded at home. After the range, I clean them and put them away. It takes just as much time to get to a loaded gun as it does an unloaded gun and I can’t think of a single situation where the extra 1-2 seconds it takes to load would be the difference that gets me killed.

    ANY of your guns? Seriously?

    Oh well, I’m sure the crook will wait patiently…..

    The only gun loaded in my home is the one on my person / in the room I’m in…. but that one is always loaded.

    Because that 1-2 seconds is a long time in a gunfight.

      Explain that to me wise guy. All you’ve offered is an attitude to support your opinion.

      I don’t know where you live but believe me, no one is going to sneak into my home without making a lot of noise. I will have plenty of time to get to my gun(s) in the very unlikely event that I need to.

      There IS such a thing as common sense. Maybe you have a lot of enemies. I don’t and I live in a safe neighborhood. The odds of my ever having to defend myself with a gun are close to zero. That is true with most Americans, especially those of us who own guns and are trained to use them.

      So… care to explain why you need to carry at home or even sleep with a loaded gun? Maybe you need to move to a safer neighborhood.

        Not trying to pick a fight, but safe neighborhoods are not victimized by “safe” criminals. If anything, a criminal breaking into your house when he knows it is probably occupied will be more desperate, having already considered that the police oversight and response is likely to be greater, security measures more prevalent, as is the likelihood of an armed victim.

        In other words, a lesser chance of an armed incursion in one location vs. another location doesn’t bring with it a commensurately lesser degree of danger in any given armed incursion.

          I’m not arguing that you should not be prepared to defend yourself. I’m making the argument that having a loaded gun in your home is only inviting problems. Do you really fear that someone is going to sneak into your home? There lots of things you can do that are better than walking around armed in your home or risking being “jumped”.

          Even if I were to be targeted for armed invasion with the invaders busting down my door, I can get at my gun and load it much faster than they can find me, 15-20 seconds at most. Were there a risk of civil unrest, I would be taking additional precautions and might even carry a loaded gun were the unrest getting close but even then, the odds of defensive gun use would be pretty slim.

          You really need to explain to me what exactly you are fearing. Being jumped in your own home is not a gun issue, it’s a lack of general security. The gun is the last resort, not the only resort.

        Richard Grant in reply to Pasadena Phil. | November 30, 2018 at 7:19 pm

        “I live in a safe neighborhood…”

        That is code.

        What makes YOUR neighborhood “safe”?

    My self defense gun is always loaded for the reason stated.
    However, there is not a round in the pipe.

    The time it takes to rack the slide is measured in tenths of a second. Time time it takes to get to and into the safe is many seconds. So I’m ok with that slight added time.

    There is a good reason for this.

    The reason there is not one in the pipe is that Glocks have been know to have kabooms, i.e. case rupture upon firing. The case rupture (a rare event to be sure, but I have witnessed one) has been traced to running the top bullet in the mag through the gun several times without firing, which often happens if you have a mag filled with self-defense ammo. The reason this happens is that if you practice as you should, and you practice with cheaper FMJ ammo, you will likely unload your self-defense ammo and load your practice ammo. Once you get back home and you pop that to round back in the mag, load the mag, and rack the slide you’ve just cycled the top round again. Manufactures often only warranty a round going through the action twice. This issue it the potential of a bullet set-back and compressed load.

    So if you’ve been to the range ten times this year, and keep one in the pipe at home, you may well have a round sitting in the chamber of your pistol that’s been through the action ten times. Not good.

    I personally witnessed my daughter’s Glock ankle weapon (she’s a LEO) go kaboom at the range. It destroyed the mag and dumped all the ammo on the ground… the last thing you want to happen in a fire fight.

      Mac45 in reply to Twanger. | November 30, 2018 at 12:09 pm

      About Glock Kabooms.

      90+% of the kabooms experienced in GLOCK pistols are the result of cartridge cases unsupported by the chamber and have only occurred in certain models, most notably those chambered in .40 S&W. It is a design flaw, though GLOCK refuses too admit that. As you note, what you are describing is a case rupture caused by excessive pressure caused by excessive bullet setback. This can be caused by repeatedly loading the same round into the chamber of a self loading firearm, and has to be guarded against. The easiest way to do this is to rotate the ejected cartridge to the bottom of the magazine each time you eject an unfired round from the chamber.

      People who carry a specific handgun regularly rarely store it unloaded. This includes LEOs.

        tom_swift in reply to Mac45. | November 30, 2018 at 12:33 pm

        The easiest way to do this is to rotate the ejected cartridge to the bottom of the magazine each time you eject an unfired round from the chamber.

        There’s an easier way. Steer clear of Glocks entirely.

        Over the past few decades I’ve had hundreds of guns in my house, but not a single Glock. It’s not just Glockophobia—there are other guns I won’t have, either, because in my personal experience they’re not very good, and guns which aren’t very good are just plain dangerous. Post-WW2 Colts, post-1960s S&Ws, and I won’t rely on a Ruger auto for defense. A few more, but those are the biggies. There are loads of decent guns available, no need to settle for second-rate.

          No, a case rupture caused by excessive bullet setback can occur in any self loading weapon. They are not restricted to GLOCKS. Also, except for the mentioned design flaw in certain of their weapons, GLOCKS are not bad firearms. I do not own one simpply because I do not like the feel of one in my hand.

      tom_swift in reply to Twanger. | November 30, 2018 at 12:34 pm

      The time it takes to rack the slide is measured in tenths of a second.

      It takes a bit longer if you don’t have two hands available.

      If you do have two hands available, maybe you’re not in an emergency situation yet.

        Twanger in reply to tom_swift. | November 30, 2018 at 3:48 pm

        With respect… I can rack the slide one handed on the edge of a table, chair, or a door frame.

        As far as “If you do have two hands available, maybe you’re not in an emergency situation yet.”

        This is simply ridiculous. How do you know what situation you’ll be in and how fast it will develop? Are you prescient? I’m not. With my pistol locked in the safe I’m not waiting until I have less than a second before going to open it. If I’m in a fist-fight or had my arm shot off, I’m probably not going to get into the safe very quickly either. So I’m basically screwed. Better to get there early and be prepared. Easy to lock it up again. Proper planning prevents poor performance.

        I understand the tradeoff’s between having a gun in Condition 1, 2, 3 or 4. With grandkids around, the handguns are locked in the safe in condition 3. It’s a compromise.

    Having a loaded firearm in the home is a personal choice. And, there are both pros and cons associated with the practice. The biggest pro is that the weapon is readily availablle in a time of desperate need. Things can happen which will make it extremely difficult or impossible for you to manually load and charge a firearm. Things such as an injury to one hand or arm, rendering that limb useless. The biggest con to having a loaded firearm is that it is more likely to discharge if improperly handled.

    If you choose to have a loaded firearm in the home, it is usually best to either have the weapon on your person, or secured. I have some loaded weapons in my home. Two of them have rounds in the chamber. The others have loaded magazines, but an empty chamber. I consider all to be charged, whether they are or not. All are secured in an easily accessible gun safe when they are not on my person. None of my rifles or shotguns are cocked or have a round in the chamber, Though one of my rifles does have a loaded magazine inserted.

Phil: “Do you really fear that someone is going to sneak into your home?”

With respect, Phil, everyone’s situation is different. What is satisfactory for you may be unsat for me. For example, I can kick in my door and rush into the main bedroom in less than 10 seconds. So your 15-20 sec scenario to upload wouldn’t be effective in my situation.

Also, that’s assuming best conditions, without Murphy interfering. Have you been out drinking with the boys, passed out in bed at 3am, or groggy and disoriented? Are you across the house or in the downstairs bathroom when tbe window is shattered open? Or if they do surprise you, and you need to break a grapple and get to your weapon before they catch up?

Have you roleplyed out any of these scenarios to see how realistic your defenses will be when you are confused, delayed, disoriented or suffering from the huge adrenaline spike you will experience? If so, good on you. If not, I strongly advise that you do.

You remember those B horror movies where all the guy needs to do is unlock his car door, key the ignition to start up and drive away to safety? A simple 5 second exercise in normal conditions that becomes an excruciatingly long 20-30 second fumble bumble under duress? That actually happens during a home invasion.

    A good dog will add a couple of minutes to that.

    I can’t think of a single situation where a forced entry could catch me by such a surprise that I wouldn’t have 15-20 seconds to arm myself and be ready. If I was worried about such a possibility, I would get a dog, motion sensors connected to lights and alarms.

    You could set up a 1200 lumen light aimed right at the door. You could set up alarms coming from several directions as a diversion. The invaders don’t know where you are. Anyone who is already staring into a blinding light, distracted by alarms from several directions and/or a shotgun being chocked while confronted by a snarling/biting dog is going to be busy for longer than I need to respond.

    They’ll never see the 1300 lumen light attached to my Glock when it is pointed right at their face. The bullets go exactly where the middle dot shines on their face. All of this can take place in under 30 seconds. More likely the intruders will just run.

    None of this will ever happen.

Phil: “I’m making the argument that having a loaded gun in your home is only inviting problems.”

Again, situational dependent. Kids living at home? Then no. Otherwise. revolver is loaded, 9mm loaded but round not chambered.

It seems counterintuitive, but keeping an “unloaded” gun in the home sets up the subconscious assumption that routinely ends with “but officer, I was certain the gun wasn’t loaded”.

People tend to get sloppy and careless when they assume their weapon is always unloaded.

I find it’s better to err in the other direction – always treat the weapon as loaded. And setting up subconscious assumptions that it’s really “unloaded” will work against you.

Again, your choice may vary depending on situation and level of expertise. But my personal preference is to keep them loaded.

    As we all learn during training, there is no such thing as an unloaded gun. You always assume a gun is loaded until it is proven that it isn’t. There are no excuses.

    You can’t be partly pregnant or sometimes honest. Either you are a responsible gun owner or you are not. Being responsible most of the time means you are irresponsible.

we keep a couple of defenders handy–both 12ga with 2 #4s and the rest 00–neither have rounds in the chamber–they have such a distinctive sound when racking one that most folks are going to know what they’re hearing and pause a moment–we have other handguns available, loaded but sans a round in the chamber–they’re available if needed but for indoors prefer a shotgun–one other thing–if an intruder breaks into your home don’t go looking for them–let them come to you if possible–don’t give away your position

After reading all this “Gun Talk”, I am so glad I did extensive research and knew how to locate, and identify, a “Safe Neighborhood”… is really easy, one you figure it out…..THEN, make sure your “safe neighborhood” is as far away from the “NOT Safe” ones by having as much distance from the Non Safe ones…..Now, I will tell you how to identify “Safe” from “non-Safe” ……it is so easy you can do it 2 ways: Drive through the neighborhoods, and/or find the local High School and wait till the kids come out…you’re welcome.

    There is no such thing as a “safe” neighborhood. Why, you ask? Because human beings live there.

    Some neighborhoods may be safer than others. But, murders, home invasions, rapes and simple burglaries occur everywhere. And people are targeted for a variety of reasons; they look wealthy, weak or the predators involved are too lazy or stupid to accurately assess a threat. So, tough you might live in a neighborhood for years without any troubles what-so-ever, that can change at anytime. Are you ready for it?