The Dangers of Bad Advice

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I was reading a Facebook discussion about an article that advised against warning shots, a position I agree with, when an individual whose profile suggests that he’s a real estate and litigation attorney asked “Who ever said you had to aim to kill? Why isn’t kneecapping adequate?”

This goes against EVERY recommendation from training courses or criminal defense lawyers I’ve ever encountered, including several books that are somewhat standard in the self-defense training industry (Massad Ayoob’s “In the Gravest Extreme” and more recently, Andrew Branca’s “The Law Of Self Defense”).

Here is the exchange, after the initial question above:

James Cochrane If you admit to deliberately aiming for the knees, you are admitting that you weren’t facing an imminent threat of death or serious injury, which means you weren’t legally justified in using lethal force to begin with. Shooting them in the leg/arm is Hollywood, not real life.

RealEstateLawyer James Cochrane nonsense, not shooting to kill shows you did not want or intend to kill in response to threat of deadly force. Nobody said you had to meet deadly force with deadly force. I’m those situations deadly force is permissible but not mandatory.

James Cochrane RealEstateLawyer First off, you’re not shooting to kill, you’re shooting to STOP. Which is most effective by shooting center of mass. Legs and arms are mobile targets, which are extremely difficult to hit, especially under stress, and may not stop the assailant’s attack.
So if you aren’t shooting to stop, the argument can easily be made that you had no legal basis to shoot to begin with.
Have you had formal training? I’m not aware of ANY formal training program that teaches anything OTHER than shooting to stop.

James Cochrane Oh, and shooting AT ALL is deadly force, even shooting in the leg counts as deadly force.

James Cochrane RealEstateLawyer Are you a lawyer or certified instructor? Because at this point you are giving extremely BAD advice which could result in someone facing murder charges.

RealEstateLawyer Other User use bird shot and shoot for the crotch. You’ll likely be get both legs and the lower abdomen but even if he dies you can beat a charge of first degree murder

RealEstateLawyer James Cochrane obviously, but not with intent to cause death

RealEstateLawyer James Cochrane go back and read what I’m saying. If you shoot low and only cripple then there will be no murder and no murder charge.

James Cochrane Let’s see, a crotch shot with bird shot, which likely means opening the femoral artery, how is that NOT a shot likely to cause death or serious bodily injury?

I hope you have good legal malpractice insurance, you’ll need it.

RealEstateLawyer James Cochrane so no matter where I aim I’m guilty of murder? Nonsense. My point is that you are privileged to meet a threat of deadly force by using deadly force, but you are not required to shoot to kill. You can shot to wound or cripple at your option.

James Cochrane I highly suggest you talk to someone who specializes in criminal defense law, not real estate, as what you are saying is completely contrary to what every criminal defense lawyer and self-defense specialist I’ve trained under has said and/or published.

Other User How about I use bird shot and aim for the chest? If I’m shooting indoors at ranges of less than 10 yards, I think that’ll do just fine.

Other User I don’t care whether I’m “required” to shoot to kill. I’m not shooting someone for shits and giggles. If it’s serious enough that I’m pulling the trigger, someone is going to die.

RealEstateLawyer Other User yoi are saying that you would never shoot except to kill someone? Big talk- you ever kill anyone?

Other User Two RealEstateLawyer – are you an attorney? Do you have any law enforcement experience? Experience teaching self defense?
Do you have any firearm experience at all?

James Cochrane Other User Two Per his profile, he IS an attorney, but all of his listed coursework and experience is in real estate and commercial litigation, not criminal defense law.

James Cochrane Which is why I suggest he may need to check his malpractice insurance.

James Cochrane Of course, I would hope that ANY attorney would understand the difference between murder and a self-defense shooting, but that isn’t evident in the above conversation, either.

Other User RealEstateLawyer, I have not killed anyone, and yes, I am saying I would NOT shoot someone except if I intended to kill them. If it’s not serious enough for it to be a life or death situation, I’m not going to shoot another person. “Shooting to wound” is just stupid.

Other User James Cochrane, I think the main thing we have all learned from this thread is that we should NEVER EVER go to RealEstateLawyer for any legal advice. 😄😄😄
Other User Two Other User – I disagree, to an extent. We don’t shoot to wound. We don’t shoot to kill. We shoot to stop the threat.
“I was in fear for my life, and I believed I had no reasonable choice than to use defend myself with my firearm. I will give a detailed statement after I have consulted with my attorney. I am invoking my 5th Amendment rights after I have had such an opportunity.”

Other User Other User Two, technically correct, but we aim for center body mass (not kneecaps) when shooting to stop the threat, and we keep shooting until the threat is neutralized. Practically speaking, that’s basically what would be called “shoot to kill.”

After posting this on my own wall, I got the following responses

James Cochrane From an internationally known competitive shooter I know:

Have first hand knowledge of a competitive pistol shooter (Pistol Distinguished/Master) who shot a would-be carjacker in the elbow after snap shooting him through the driver’s side door as the carjacker’s gun was in his face. After the first shot, bad guy staggers back and falls on his back on the driveway dropping the pistol a few feet away. Good guy gets out of the car and gives him a command to freeze, etc. Bad guy reaches for the dropped pistol-good guy deliberately aims for the forearm/elbow and hits the elbow of the reaching arm-nearly severing the arm (.45 ACP/230 gr. Hydra Shocks). Later sued for intent to maim and loses big $$$

Another Instructor “Are you a lawyer or certified instructor? Because at this point you are giving extremely BAD advice which could result in someone facing murder charges”
I’m a certified concealed carry instructor. This is extremely *GOOD* Advice. Masaad Ayoob, Andrew Branca, etc… will all tell you the same thing – you do not shoot to ‘wound’ or ‘disarm’ – because, as you stated initially James, not shooting for center of mass is indicative of you not truly fearing for your health and continued wellbeing.
Rarely is someone such a good stressful shooter that they can hit with pinpoint accuracy – and trust me, at north of 7 yards, it *IS* pinpoint accuracy, under stressed circumstances. If they *ARE* that good of a shooter? The courts don’t care.
I’ll go one step further and add, you never EVER fire a warning shot, either, for the same reason.
Contact the Bar where this guy’s located. What he’s doing is extreme malfeasance if he promotes that to any client, and one could maek the argument that even by stating it publicly, he’s advocating it. I’m not aware of a single state that offers any legal protection for sharpshooters shooting defensively.

A Lawyer I Know Having spent 35 years as a criminal defense attorney and currently a senior trial prosecuting attorney, I can say that Real Estate Lawyer is an idiot and James Cochrane is correct.

Resurrecting an old John Ringo post – Option Zero

This was initially posted to Baen’s Bar, I can’t find any sites currently hosting it and had to delve into the Internet Wayback Machine to find it.

 

Option Zero Minimize

For all that we’re locked in a war with Afghanistan (and, yeah, that is what is happening) and we are probably going to end up at war with other countries, we really haven’t seen much discussion of what the options for a war on terrorism look like. Mostly, in my o so humble opinion, because people don’t like to face them. Why? Because there are no “pretty” options, they are all really nasty.

Well I’m good at talking about really nasty options; it’s my “day job.”

So I’m going to lay out the three options to a war on terrorism (and one nightmare.) And if you think about it long and hard, you’ll see that there isn’t a “fourth” option.

The first thing to consider is what is the ending strategy; what final outcome do you want from this war? The only reasonable “complete victory” description is the following: No nation-state or proto-nation state shall harbor, neither by direct support, nor by omission nor commission, known international terrorist groups.

Definitions. There’s a fixed definition of terrorism in US Code, so we’ll go with that one for now. Then we have to consider what the “harbor, support” aspects. The US has terrorists. Timothy McVeigh is the most famous but we also have Puerto Ricans, environmentalists, etc. But the FBI also works hard (harder at some times, less hard at others) to shut them down. So the US does not support those terrorist groups. Either by omission (“we know they are there but we don’t want to bother them”) or commission (“we know they are there and we like what they do.”)

But at that point we have to decide what to do about it, who bells the cat in other words. Remember, victory is getting countries to never ever in their wildest dreams sponsor terrorists.

This ain’t easy. Terrorism is a good thing to most of these countries. They can attack other countries and not get “blamed” for it. And countries always have something they want to attack other countries about. We could have terrorist groups in Mexico trying to cut off immigration and terrorists in Canada trying to reduce the flow of maple syrup. But we don’t.

So any option worth discussing means that any nation-state, from Afghanistan to Britain, will think long and hard about sponsoring terrorism, especially against the US, and then decide it isn’t worth it.

Option One is the nuclear counter-terror option, let’s just call it the “Kill ‘em all” option. “We’re stronger, more ruthless and more horrible than you so ticking us off was a bad idea.” The actual operational method would go broadly along these lines:

Determine your enemy country’s centers of gravity. This is rarely the capital city by the way. Nuke all functional centers of gravity. Using Iraq as an example, nuke all the “palaces” which are probably used as production and research facilities for Weapons of Mass Destruction (WMD). Nuke Takrit, which is the hometown of Saddam Hussein and from which he draws all his bodyguards. Nuke all barracks and motorpool facilities for the Republican Guard. Then send a list of rather reasonable demands (along the lines of “give us Saddam pickled in brine and all of your WMD and terrorist support people, here’s a list”) and if they don’t respond appropriately, hit a list of targets, centering on governmental groups, until they give up. And they will eventually. It might take four of five governments, but they will. And after it happens to a couple of countries, others will rethink the strategic wisdom of sponsoring terrorism.

This is not a pretty option and it has a huge number of possible negative ramifications. Most of the ones that are bandied about – the US would be held liable for war-crimes, embargoes, the US would never be the same again, etc. – are fundamentally unlikely or have already occurred. But Bad Things would happen.

Bad Things are going to happen, have happened and will continue to happen. The only question is which option are the fewest Bad Things going to flow from. This is not support for Option One, simply a statement of fact. Onward and downward.

Option Two should probably be called “The Card Option” since it was stated first and most eloquently (that I know of) by Orson Scott Card of “Ender’s Game” fame. The Card Option is basically redoing WWII. Invade, subjugate, rebuild, re-stabilize under democratic regimes and stay in place long enough to ensure it holds. Japan and Germany writ over and over again until the remaining “failed states” that harbored terrorists either stopped being “failed” or at least killed all the terrorists with extreme prejudice.

This option has the benefit of being the most “moral” and being the one most likely to succeed. However, it’s also the most costly, both in military and civilian lives and in dollars. Option Two would kill more civilians than Option One, based upon experiences in WWII and wars since then. “Collateral Damage” would have to be writ large when doing such things as taking Kabul or Kandahar against determined guerrilla forces. “We had to destroy the village to save it” over and over again.

As to “money”, you don’t want to think about the price tag. Something on the order of a trillion dollars per year defense budget and 15-20% of the American population in uniform. And not for five years but for something on the order of 15-20. Afghanistan alone would require at least 15 divisions of infantry (mixed heavy and light) and we’d probably have to take Pakistan first. Not have it as a weak ally. And that fight would go (briefly) nuclear.

I think we could return to some relative “norm” at the end of the war. But Bad Things would happen. And we’d have to have a tremendous amount of resolve for many years. Resolve to not only pour our young men and women into the furnace but be willing to say “Yes, constitutional liberal democracies don’t make war on each other so we have to enforce constitutional liberal democracies upon these states.” And stay long enough to make it hold.

Very ugly. “The White Man’s Burden” for the 21 st Century. The Italian Premier’s “Islam makes lousy civilizations.” Very ugly.

Option Three is a “Chindit War,” what we are currently waging. Already we are beginning to see the weaknesses of such a war. There is no real “reason” for the Taliban to relinquish power. They know that all they have to do to survive is hold on. And since we’re not getting down and taking territory away from them, they are not fundamentally effected; they still have power which is their main goal. In the meantime, there is huge collateral damage for no noticeable strategic or operational effect.

A Chindit War can, possibly, work. On a relatively long time scale. And if we stick to it. But it won’t shock the enemy (which is every country that sponsors terrorism ) into rethinking the strategic costs. Nor will it first remove the leadership that supports despotism and terrorism and then emplace over time leadership that understands democracy in its bones.

Which means a Chindit War can never end; we’ll be fighting international terrorism and failed states that support it when my children are old and gray. And the longer you give a wily and determined enemy to strike you, the more chance he has of scoring. Note the current anthrax “thing.”

There are various “versions” of these basic option. But mostly they are “Three Plus” or “Two Minus” or even “One Minus.” I have yet to see anyone say “there’s a completely different option” short of “we’ll give in to all their demands.”

However, there is “another” option, call it “One to Infinity.” It is what I call Option Zero.

Hemorrhagic smallpox is nearly one hundred percent fatal (194 out of 200 cases.) The only “cure” for it is to be immunized (general smallpox vaccination.) Immunizations last for approximately thirty years. Full population immunizations were discontinued in the US in the 1970s but military personnel were immunized up through 1989.

Imagine absolute horror for a moment. Imagine that right now hemorrhagic smallpox was being distributed by mujaheddin that were “living weapons.” Imagine that it infected nearly one hundred percent of the American public.

All that would be left after it swept across the country is former military who served from 1973-1989.

Their children would be dead. Their friends would be dead. Their parents would be dead. Virtually every “liberal” in the US would be dead.

And they would still have enough nuclear weapons to vaporize half the world.

If you don’t think we would use them, you’re dead wrong. You don’t have to be hail to press a button. Bad knees don’t really count in an Ohio. There wouldn’t be a teary eye in the house as the Minutemen and Tridents arched into the sky. And the guys who had last piloted F-4s would be flying B-2s and screaming: “This is for my grand-children you rag-head bastards!”

Welcome to Option Zero. “At the end of this war, the Arabic language will be spoken only in hell.”

Which is why we need to get off Option Three by next spring. Before Option Zero becomes “Option Only.”

An old post resurrected on the usage of the term Well-Regulated in early congressional debates

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A great deal of debate has centered on the phrase ‘A well-regulated militia
being necessary to the security of a free State’, in the Second Amendment
to the US Constitution.  Those who are arguing for more restrictions on
firearms generally argue that this phrase limits the right to bear arms
to those who are in a well-regulated militia, and claim that this is
synonymous with a militia under government control, and claim that this
means the modern day National Guard.  Those arguing against further
restrictions, and for the repeal of at least some current restrictions,
frequently point to early dictionaries referring to well-regulated clocks,
appetites, and shotgun bores, in which the term means ‘properly functioning’
or ‘properly aligned’.  Well, to make life MORE fun, I’ve found several
places in the early Congressional debates, contemperaneous with the
adoption of the Second Amendment, where the term was used in reference
to a ‘well-regulated government’.  The only editing I have done is for
the purpose of fitting within a posting, but I’ve noticed one or two
places where the Library of Congress’  OCR software goofed (arc instead of
are, for instance), and left those intact.  Scanned images of the documents
are available at the Library of Congress site, in addition to the OCR version
I copied this from.

Enjoy!
The original usage I found when looking up something else, in the records of
the early Congressional debates as found at thomas.loc.gov.  This is from
page 314 of The Debates in the Several State Conventions on the Adoption of
the Federal Constitution (Elliot’s Debates):

It is further said, that the operation of local interests should be
counteracted; for which purpose the Senate should be rendered permanent. I
conceive that the true interest of every state is the interest of the whole;
and that, if we should have a well-regulated government, this idea will
prevail. We shall, indeed, have few local interests to pursue, under the new
Constitution, because it limits the claims of the states by so close a line,
that on their part there can be but little dispute, and little worth disputing
about. But, sir, I conceive that partial interests will grow continually
weaker, because there are not those fundamental differences between the real
interests of the several states, which will long prevent their coming
together, and becoming uniform. Another argument advanced by the gentlemen is,
that our amendment would be the means of producing factions among the
electors; that aspiring men would misrepresent the conduct of a faithful
senator, and by intrigue procure a recall upon false grounds, in order to make
room for themselves. But, sir, men who are ambitious for places will rarely be
disposed to render those places unstable. A truly ambitious man will never do
this, unless he is mad. It is not to be supposed that a state will recall a
man once in twenty years, to make way for another. Dangers of this kind arc
very remote: I think they ought not to be brought seriously into view.
Another usage I found from the Journals of the Continental Congress, 1774-1789,
from Monday, January 31, 1785, p.26:
“Mr. [Jacob] Read, to whom was referred a letter from the Comptroller of the
treasury with its enclosures stating that a number of the Certificates issued
by John Pierce Commissioner for liquidating the Claims of the Army, had been
counterfeited: beg leave to submit the following report. That the honor as
well as the interest of the federal government requires that the most
efficacious measures should be taken to discover the persons who have been
guilty of the said forgery, to the end that an Act which the laws of all well
regulated governments have marked as an offence may in future be prevented,
its injurious effects both to the United States and its Citizens as far as
possible restrained, and the Mischievous and wicked Authors of it brought to
punishment.–Whereupon resolved, that, the Comptroller be required to trace
the said certificates as far back as possible through their several possessors
on their progress to the Treasury.

And another usage:

We are told that both sides are distinguished by these great traits,
confidence and distrust. Perhaps there may be a less or greater tincture of
suspicion on one side than the other. But give me leave to say that, where
power can be safely lodged, if it be necessary, reason commands its cession.
In such case, it is imprudent and unsafe to withhold it. It is universally
admitted that it must be lodged in some hands or other. The question, then,
is, in what part of the government it ought to be placed; and not whether any
other political body, independent of the government, should have it or not. I
profess myself to have had a uniform zeal for a republican government. If the
honorable member, or any other person, conceives that my attachment to this
system arises from a different source, he is greatly mistaken. From the first
moment that my mind was capable of contemplating political subjects, I never,
till this moment, ceased wishing success to a well-regulated republican
government. The establishment of such in America was my most ardent desire. I
have considered attentively (and my consideration has been aided by
experience) the tendency of a relaxation of laws and a licentiousness
of manners.

>From p. 394 of Elliot’s Debates — Saturday, June 14, 1788, in a discussion
over how the powers over the militia should best be distributed.
Again, all of this was found at thomas.loc.gov (actually,
lcweb2.loc.gov/ammem/amlaw/lawhome.html).

James

The first consideration of training

I’d been mulling over my next article for the past week or so, it was going to be an introduction to terminology generally used on shooting ranges, as, like any specialized field, shooting has it’s own jargon that can be confusing to newcomers.  However, a discussion thread on FaceBook convinced me there’s a more important subject…

SAFETY.

Safety has to be the first priority in a training class.  The NRA doesn’t allow any live ammunition in training classes, I’ve only heard of ONE exception being made at NRA Headquarters, and that involved someone with a government protective detail, they got to keep their ammunition.  Even with that restriction, instructors are still expected to follow the rules of safe gun handling religiously, even to exaggerate them to make sure students are kept aware of how important they are and that the instructors themselves follow the rules.  Even with completely inert training guns made out of rubber, the rules are followed.  They’re rules, not guidelines, rules written in blood.  Those rules are why, despite a continued growth in the number of firearms owned in the United States, accidental gunshot deaths have been declining in absolute numbers, not just in incidents per 100,000 people.

The incident in question involved a family who went to a training course put on by someone who they had known for years and trusted, even considered a friend.  The instructor is a combat veteran with an exemplary record for personal heroism.

But the instructor kept sweeping at least portions of the class with firearms, and when called on it, ignored the concerns of the students who raised objections.  It’s irrelevant that the firearms in question had been unloaded and had the slides locked back.  The FIRST RULE of firearm’s safety is treat every firearm as if it is loaded.  The SECOND RULE is never point a firearm at anything you aren’t prepared to destroy.  The family in question was experienced shooters, one member was himself a certified instructor and has attended numerous courses from nationally-known instructors.  They finally decided, after multiple incidents of having firearms pointed at them, to leave.  One family member had flown in from across the country, the class was supposed to be a family bonding event.  But they left.

They were right to do so.  The instructor in question doesn’t list any formal certifications for himself or his instructors on his site, and doesn’t list any NRA classes as being taught at his school, and the name of his school certainly suggests he would not be teaching NRA courses because the NRA is very particular about using the word “weapon” in their courses, but if he IS an NRA certified instructor, he could likely lose that certification over the experiences of people in that class, even though it wasn’t an NRA class.  The NRA takes safety that seriously, and particularly the reputation of their training department.

It’s the responsibility of everybody on a firing line to practice the safety rules, particularly the instructors, and to raise an issue if violations are noted.  Nobody should “blow off” safety concerns, they should always be addressed.  Most accidental gunshot wounds and deaths are because someone disregarded the safety rules, a common refrain is “I didn’t know it was loaded!”.  There’s a rather infamous video of a DEA agent in Miami exclaiming to a classroom full of parents and students that “I’m the only one in this room that I know of  professional enough to carry this Glock .40”, immediately before shooting himself in the leg.  I’ve helped clean up after someone knowingly violated the rules, because he thought his gun was empty, that was a very unpleasant experience, his first words, as told to me by a friend who was nearby, were that he knew he screwed up, that he knew better.  That guy gets out of jail this year.

Safety is the first and most important consideration in training.  An instructor who can’t agree with and follow that is not an instructor I want to train or be on the same firing line with.  I can teach someone who is ignorant about firearm safety how to be safe.  I can’t teach someone who is too arrogant to follow the rules to be safe.

The abuse of ITAR and it’s First and Second Amendment ramifications

Recently, a guy in Texas spent his time designing and testing a simple pistol that could be manufactured by anyone using a 3D printer, and posted the design on the Internet.  Within days, the US Department of State contacted him to pull the files down, on the grounds that they violated international arms controls laws regarding exporting munitions.

The US Government has tried this before, in the early ’90’s, with Phil Zimmerman and the PGP (Pretty Good Privacy) public key encryption software he wrote using the RSA algorithms, in response to reports that Congress was considering legislation to require that any encryption software sold in the US have a backdoor that the government could access.  Phil Zimmerman included notes with the software that there were potential legal issues with exporting the software from the United States because strong encryption software was classified as a “munition” and governed under the Munitions Control Act of 1954, commonly known as ITAR (International Traffic in Arms Regulations, but it was posted on the Internet and exported outside the US by unknown persons.  The US Government investigated him for several years over whether he violated ITAR because the software was published online.  An interesting note is that the PGP software could be exported in PRINTED form, including in a form allowing for easy scanning and optical character recognition (OCR), but not in usable software form, so the printed source code, and even t-shirts implementing PGP in Perl could legally be exported.

An interesting twist, and one that impacts me and my friends, is that the National Rifle Assocation (NRA) has recently sent out an email to at least some NRA trainers stating that the US government was giving them unclear guidance as to whether providing firearm’s safety training to foreigners was in violation of ITAR, and as a result, they were not accepting foreign students to NRA Instructor or Chief Range Safety Officer training courses, and advised other trainers to consult with a lawyer familiar with ITAR if they intended to teach classes with foreign students.

To my mind, these restrictions represent clear violations of the First and Second Amendments.  It’s legal for a foreigner legally present in the US to fire a firearm, and even in some cases to purchase one, but it’s illegal to teach him how to do so?

Of course, with the defeat of attempts to capitalize on the deaths of innocent children at Sandy Hook Elementary School, President Obama made it clear that he would take action using the regulatory powers available to him, I find it very disconcerting that only a few months later we encounter these restrictions, at the same time as the IRS admits that it was imposing additional burdens on conservative groups applying for 501(c)4 status, and while the evidence is unfolding about how the Obama Administration flat-out lied to the American people and Congress about the events in Benghazi, Libya, that included the deaths of our ambassador and three other Americans, blaming them on a poorly-done video insulting Islam that nobody had heard of, and deleting references to terrorists and Al Queda. Only a few days ago, President Obama, in a college commencement speech, was claiming that anyone who tells you there is reason to fear government tyranny is lying.  I think the accumulated evidence is clear on who is lying, and a government that lies to it’s people and actively tries to subvert their rights meets the definition of tyranny.