When Courts Defy the Law

Courts sometimes reach decisions that defy the law. Statutes and caselaw say one thing but courts rule differently. This is because, despite lifelong efforts by good people, every justice system is corruptible and they have been corruptible in all societies throughout history.

Historically, the most common form of corruption has been courts’ obeying rulers’ decrees, even when those decrees are illegal. Citizens can be killed without charge or trial if the ruler commands it (the killing of Abdulrahman al-Awlaki, a 16-year-old U.S. citizen born in Denver, comes to mind). Conversely, criminals who serve the ruler can be protected from the law (the quashed prosecution of voter intimidation by armed New Black Panthers comes to mind). But there is a more common source of judicial corruption in the United States.

In democratic societies such as the United States, the justice system is often corrupted by mass hysteria. Since colonial times, the newsmedia have periodically whipped the public into blind frenzy. You are unlikely to become the target of a presidential death-order. But enraged irrational lynch mobs are a realistic danger to every armed citizen who was forced to defend his home against thugs.

  • From June through September of 1692, the local news of Salem Village, Masschusetts incited mass hysteria until it became collective insanity. Nineteen men and women were convicted of witchcraft and hanged.
  • From 1850 to 1860 the northern press invented stories of cruel southern masters whipping and murdering their slaves. This drove juries to deny slave-catchers who wanted to take free Black northerners into slavery per the Fugitive Slave Act. Courts openly defied federal law in order to follow beliefs aroused by the media.
  • From 1890 to 1920, the nation’s press invented an epidemic of Black-on-White rape that could be stopped only by ritual public torture/murders (called “lynchings”). Possessed by press-goaded fear, judges and juries demanded the killings of innocent Blacks, despite the laws, despite evidence.
  • From 1955 to 1965, southern radio, TV, and newspapers portrayed civil rights workers as “outside agitators”. Courts goaded by the media routinely exonerated murderers of those workers despite the laws, despite evidence.
  • Today, whenever the media portrays as murderous vigilante someone who saves his own life by shooting an attacker, judges and jurors are often swayed by media mob-think to convict despite laws, despite evidence.

The Harold Fish Case

On May 11, 2004, retired schoolteacher Harold Fish was hiking in Coconino County Arizona when Grant Kuenzli, a man with a violent history, ordered his two vicious dogs to attack the hiker. Fish drew a pistol and fired a warning shot as the dogs sprang at him. Kuenzli then personally attacked Fish while yelling death threats. Fish shot Kuenzli, killing him at point-blank range. Given the on-site evidence and Kuezli’s long history of siccing his dogs on innocent hikers, law enforcement concluded that the killing was self-defense and did not arrest Fish.

But when the local press aroused mobs by depicting the spotless-record retired schoolteacher as a vicious murderer, the county prosecutor filed charges. At trial, the judge:

  1. Refused to admit Kuenzli’s criminal history of assaulting hikers with his attack dogs,
  2. Refused to allow coroner’s evidence that the shooting was clearly self-defense,
  3. Refused to instruct the jury that self-defense was legal in Arizona, and
  4. Instructed the jury that if they decided that Fish had indeed killed Kuenzli (a fact that Fish freely admitted) then they were required by law to find him guilty of murder. So they did.

More than five years and a half-million dollars in legal expenses later, an appeals court ordered Fish released, reversing his conviction because of the original judge’s openly displayed prejudice.

The Jimmy Hair Case

On July 20, 2007, from inside his vehicle, Jimmy Hair shot and killed Charles Harper. Harper had forced his way into the vehicle and attacked Hair. He thus met the statutory definition of Florida law 776.013 (the so-called “castle doctrine”). According to that law, Hair could not be prosecuted. But the press depicted Hair as a murderer because Harper may have been retreating when he was shot. Despite the law, the judge ordered Hair held for trial on a murder charge. The judge felt that the statutue was wrong, and that he (the judge) was not obliged to follow its explicit wording, but only his interpretation of legislative intent.

More than two years and hundreds of thousands of dollars later, the appeals court ordered Hair freed in a scathing rebuke to the original judge for openly defying state law.

The Larry Hickey Case

On the evening of November 17, 2008 in Tucson AZ, two female neighbors in their 30s charged onto the home property of former corrections officer Larry Hickey and attacked him. Both women were large and one was a martial-arts student. Hickey tried to fend them off but then their 23-year-old boyfriend circled behind Hickey and struck him on the head, stunning him and sending him to the ground. Hickey began to lose consciousness as the trio continued kicking him. Groggy, he drew his licensed service pistol and shot one of the women in the leg. The three attackers ran away as neighbors called 911.

When the police arrived, the three attackers told police that they were peacefully sitting on their lawn when Hickey shot them for no reason, and that they had never set foot on Hickey’s property. Consequently, the police refused to photograph the bloody crime scene in front of Hickey’s garage. At trial the prosecution hammered over and over on the points that: (1) all three “victims” were unarmed and (2) a man had shot a woman. The judge refused to allow expert testimony that three unarmed adults could easily stomp a man to death. He refused to instruct the jury that self-defense laws said nothing about gender.

Incidentally, even as Hickey’s criminal trial was underway, the three attackers sued him in civil court. They wanted Hickey’s insurance company to pay damages. The insurance company refused on the grounds that they had sworn under oath in the criminal trial that they never set foot on Hickey’s property, so Hickey’s insurance was not liable. In reply, the three testified that they had lied in the criminal trial, and that they did in fact attack Hickey on his own property. In the end, Hickey’s insurance had to pay. Meanwhile, back in the criminal trial, the three were recalled and asked about their testimony in the civil trial, where they admitted to attacking Hickey on his own property. Their calm reply was that they lied in the civil case just to get money from the insurance company. They got the money. They were never charged with perjury in either court.

In any event, nearly three years and hundreds of thousands of dollars in legal expenses later, Hickey was released.

Probability not Certainty

Rather than post dozens of similar stories from around the nation, suffice it to say that every self-defense trial is a roll of the dice. Repeat that to yourself. Every self-defense trial is a roll of the dice. Judges persuaded by hysterical press routinely refuse to inform juries about applicable statutes and caselaw. Juries swept along in mob hysteria routinely convict despite overwhelming evidence that self-defense was the only alternative to being murdered.

The good news is that self-defense trials are not completely random. Over the long pull, justice tends to triumph over hysteria, even if it is delayed for years, after consuming life savings. The important thing is to know the factors that influence courts.

One factor increases the probability of justice winning over hysteria: obeying the law. Fifteen factors weigh on the side of hysteria over justice.

Obey the law — Obeying the law helps the person who must defend his or her life with violence. Two points are often forgotten. First, your breaking even an apparently trivial or irrelevant law (such as having an open container, carrying a weapon into a forbidden place, or even going shoeless into a mall with signs “shoes required”) will be used by the prosecution to show that you are inherently evil. Second, caselaw counts more than statute. For example, a Texas statute allows you to shoot a non-threatening sneak thief stealing something from your property after dark. But Texas judges have consistently refused to instruct juries about this statute, resulting in criminal convictions for doing just that. And judges’ refusals have been consistently upheld by the Texas Supreme Court. In short, the law is what judges say it is, not what the legislature wrote down. That is why people hire lawyers–they know caselaw.

Fifteen factors weigh on the side of hysteria over justice. Any one of the following factors may result in your conviction for deadly assault or worse, even though written law and caselaw both are on your side. You can do everything right, by the book, and still go to prison for the rest of your life. Life is unfair.

[Incidentally, my personal advice is to know the following factors, but do not be paralyzed by them when you are attacked. If your choice comes down to prison versus death, or more likely, to seeing your loved ones raped or killed, then choose prison.]

15 Factors That May Convict You, Even if You Did Everything Right

1. Unarmed Attacker — Experts may testify that a mob of unarmed adults or teens can easily and quickly kill a man. But if your attackers were unarmed and you were armed, it will feed press hysteria no matter what experts say.

2. Provocation — Under the law, your staring at someone or even saying something insulting does not justify their trying to kill you, nor does it nullify your right to self-defense when they do. Nevertheless, if the press says that you somehow provoked the attacker’s rage, it will weigh against you despite the law.

3. Shooting a person anywhere but in the front of the chest — An attacker may spin around as he strikes you, or try to get behind cover while he shoots you. Then your bullet may strike somewhere other than the front of the chest. No law prohibits this. Nevertheless, shooting someone in the back feeds press hysteria despite all logic.

4. Drugs or alcohol — Your own use of drugs or alcohol does not legally prohibit you from defending your life. Nevertheless “drug deal gone bad” is a press catch-phrase to demonise the innocent. Your merely shooting a armed robber in a liquor store might raise the question, “What was the killer (you) doing in a liquor store if he was not a crazed alcoholic with a gun?”

5. Unnecessary force — An Oklahoma pharmacist was attacked by three armed thugs. He pulled a gun from behind the counter, shot one of the robbers and chased the other two out of his store. Upon returning, he saw that the one he had shot was still moving, so he shot him again (five times, in fact). He is now serving life for premeditated murder. It was not deemed necessary for him to shoot the poor misguided teenager again.

6. Illegal activity — If someone tries to kill you while you are selling drugs you will either die (if you do not defend yourself) or go to prison for murder (if you do). Nothing you can say or do in court will trump the fact that you were engaged in a crime.

7. Not calling 911 — No law says that after successfully defending your life, you must call 911 and wait for police to arrive and interrogate you. Nevertheless, if you fail to do those things, the press will proclaim that you are a vigilante killer on the loose, and you will probably be convicted.

8. Use of spring guns — Even if someone says that they will invade your home on June 6, at precisely 4:00 A.M., you cannot set a trap for them, so that they get shot by a tripwire shotgun or step on a land mine. The public sees traps as “unfair” and so they weigh on the side of press hysteria.

9. Motive — If you shoot a non-stranger, intense searches will try to turn up (or invent) a motive for your murdering them. All the evidence in the world that you killed your neighbor in legitimate, justified self defense will not save you if you owed them poker-game money.

10. Racism — If you have ever expressed contempt for left-handed Lithuanians, you had better not shoot a left-handed Lithuanian. Your “racism” will be proclaimed on every front page and every TV news lead. Never say anything bad about anyone you might have to kill.

Furthermore, if you are not seen as African American and your victim is, then the press will brand you a “racist”. That you may have significant sub-Saharan ancestry yourself will be ignored. That you may have African-looking relatives will be ignored. That your dead attacker was more European or East-Asian than African will be ignored. If the dead guy “looked Black” and you do not, you will be vilified by newsmedia lacking both honesty and honor.

You are safe from the lynch mobs if the media see you as Black also. From ages 15 to 34, homicide by young Black males is by far the leading cause of death of young Black males. From ages 15 to 24, more Black males are murdered by other Black males than die of all other causes combined. Data here. For any individual teen-aged Black male, the chances are nearly one out of 50 that he will be murdered by another young Black male. Data here. Every week, about 150 young Black males are murdered in the United States by other young Black males. Data here. No one cries out for these victims. U.S. society embraces the spiraling epidemic of Black-on-Black murder without a whimper. It is not even reported in the media.

On the other hand, if you do not “look Black” but the dead guy does, you will be slandered by so-called journalists and prosecuted by a lynch-mob justice system.

11. Standing your ground — Even in states where you are allowed to defend your life without trying to retreat, press and prosecution will argue that your not trying to retreat before shooting an attacker shows your desire and plan to kill someone.

12. Tampering with evidence or lying to police — A cop asks, “Where were you headed when the dead guy lying there in the puddle of blood jumped out of the alley and demanded your wallet at gunpoint?” In fact, you were on your way to your girl-friend’s house. But not wanting your wife to know about it, you make something up. When the lie is discovered, the obvious question will be, “How many other things did he lie about?” Similarly, the bad guy threatened you at knifepoint, but you put a spare gun in his dead hand to make it look better. Nothing can save you when this is found out.

13. Property not on your person — A bad guy in a pickup truck pulls up in front of your lawn and proceeds to load your lawnmower (or your boat’s outboard engine) into his truck. He shows a gun in his belt and orders you to stay back. If you wind up having to shoot him, the media and prosecution will ask why you did not simply walk away. They will answer themselves that you were looking for any excuse to kill someone.

14. Criminal record — If you have a criminal record for violence, evidence in your favor will be discounted.

15. Shoot a teenager — No matter that the 17-year-old attacker has a criminal history too heavy to lift. No matter that he just shot and killed three other people in front of you. No matter that he already shot at and wounded you. Kill him and the newsmedia will go berserk, demanding the lynching of the vicious child killer. That’s life.

Dr. Sweet’s grandfatherly advice: Know the above factors but do not be paralyzed by them when you are attacked. If your choice comes down to prison versus death, or more likely, to prison versus seeing your loved ones raped or killed, then by all means, defend yourself and your family even if it means prison.

For more on this topic, I recommend Mitch Vilos and Evan Vilos, Self-Defense Laws of all 50 States (Centerville UT: Guns West, 2010), from which much of the above material was taken.

Next Time: Civic Duty versus Self-Interest


Frank W. Sweet is an NRA-certified firearms instructor who teaches the safe and effective use of handguns for self-defense. He was awarded an M.A. in Civil War Studies in military history from American Military University in 2001. He is the author of Legal History of the Color Line (ISBN 9780939479238), Six Gems of Forgotten Civil War History (ISBN 9780939479023), and of numerous published historical essays. To receive a schedule of his firearms training courses, email to fwsweet@ccwvslaw.org. The information above should not be construed as legal advice.

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