Saturday, February 25, 2012

Why I despise "I'd rather be judged by twelve than carried by six"

I'd rather be judged by 12, than carried by six ...

When someone mouths this cliché, I have a hard time keeping my cool. Because most people's understanding of the concept means the next 12 people they come across will be the 12 dudes raping them in the prison showers.

Now, I really don't care about the person who's saying it getting gang raped. As far as I'm concerned, he called it down on himself. I do have a problem with the prison showers happening to the innocent person who:
a) didn't know any better
b) listened to the bozo.

The 12/6 dictum is primarily the brain child of Col. Jeff Cooper, founder of Gunsite. The colonel's military background strongly influenced his concepts of shooting -- including when to shoot and when to stop. A particularly hotly debated issue is the wisdom of training military style shooting in a civilian context. Basically, the rules of engagement (ROE) are different.

It was often felt the colonel's perspective ignored the legal consequences in a civilian context -- in the name of ending a potential threat. The 12/6 'response' lends credence to this contention.

The 12/6 is a pity counter that is often used to dismiss a critical 'reality' about the consequences of violence. It's also the difference between self-defense and prison time. I don't know if the colonel used it as such, but I certainly will attest that is how a lot of folks use it today.

I can give you a really good example of the differences between civilian and military tactics and how they viewed in different contexts. Good because it is often taught in civilian shooting and concealed carry classes. *And* it is court tested.

Someone breaks into your house in the middle of the night. Your children are screaming, and he bursts into your room waving a shotgun. You shoot him. He falls down and drops the shotgun. As you pass him to go check on your children -- having kicked the dropped shotgun away from him -- he growls, "I'm going to kill you." You put two more rounds into him and go see if your children are safe.

This is important -- that double tap IS following infantry protocol of passing a downed combatant. You take the fight out of him by killing him right there. That is what soldiers are taught to do and really ingrain on the battlefield. They do it without thinking as a survival protocol in combat.

Except in a civilian context, you've just committed manslaughter. And if the DA is really gung ho, he's going to try for murder charges. That's because the immediate danger had passed when you shot him as he was lying on the floor. Yes, he threatened you, but he was not an immediate danger to you anymore. (People get the term 'threat' confused because it generally means danger in a legal context, but something else in popular language.) He cannot act upon his threat to kill you. So you are not legally justified in shooting an unarmed man lying incapacitated on the ground for what he says.

Google Jerome Ersland. The Oklahoma pharmacist was convicted of Murder 1 because he came back and shot a downed robber. Now, realistically, Ersland's shooting did not conform to the military rules of engagement, either. To see it as such, you'd have to turn your head and squint.

Infantry rules of engagement are if the guy is in front of you, he's a hostile combatant. As such, you tap him as you pass. Once you've passed him, however, he is now a prisoner requiring medical assistance.

Once Ersland passed the dude, he was no long a combatant -- even by military standards. Yes, returning put him back in front of Ersland. That is -- arguably -- where the military training kicked in, mixed with adrenaline and combat trauma. There will be some debate if shooting the downed guy would have been overlooked on the battlefield. What we can say for certain is it wasn't overlooked in the pharmacy -- especially because it was caught on video. Now you can argue "well, what if the guy went for the gun again" all you want. But the raw fact is he *didn't*. You can only act in 'self-defense' in response to what is happening. *Not* what might happen. If there is no immediate 'threat', it's not self-defense.

This even applies in British common law where -- if you sincerely believe an attack is imminent -- you can act pre-emptively. But even this has limits. If the guy is in your face and snarls he's going to kick your ass, then yes. You can reasonably argue your pre-emptive strike was self-defense. If, however, the guy is standing -- not advancing, standing -- four feet away and does the same thing, your closing the distance to slug him isn't going to play well. (Under adrenal stress and spatial distortion, you had damned well better believe you're likely to step up, try to hit him, and not realize you did.)

Someone once said, "War is a thinking man's game." So too is self-defense. Unfortunately the way "I'd rather be judged by 12 than carried by six" is often used, it is an emotional and dangerous cliché. Used that way, it is not a thought out and rational conclusion.

Everything I've stated thus far is based on pretty much confirmable facts. (Ask a lawyer or read some law books.) Now my opinion, based on some more facts. I'll qualify them. F = fact; O = my opinion.

Violence is often the result of out-of-control emotions (F). Society has become less tolerant of violence (O). Many people, who engage in participatory violence, claim what they were doing was 'self-defense' (F). Many actually believe it. (O). This tendency to claim and believe an attack was 'self-defense' has 'peed in the pool' when it comes to cops and prosecutors believing such a claim (O). Self-defense is an affirmative defense (F). You are confessing to an action that is normally a crime (F). This "I did it" does half of the DA's job -- specifically proving that you were the one who did it (F). When you plead self-defense the 'production of proof' shifts to you. (F). You must produce enough proof (articulation of actions, their significance, the reason why it was dangerous) to explain why your actions were -- in fact -- self-defense (F). This, instead of it was you giving into your emotions and committing illegal violence on another person (F). Your 'fear' is not enough, you must provide facts that demonstrate your fear was justified and reasonable given the circumstances (F).

The 12/6 motto is often used by people to skip all this legal mumbo jumbo and sophist crap and get to the most important of all things -- my feelings (O). If I'm scared, I'm going to act on my feelings and let the court sort it out (O). This, because I told myself I was about to die and that scared me so I killed him in 'self-defense' (O). Stop and think about that for a second. Because there is one hellaciously big abyss that we've stepped over without even blinking. Why is it bad when someone else kills because of their emotional and subjective state, but it's all right, A-OK, okey dokey when we do it? (O).

It has been my experience that most people who use the colonel's, "I'd rather be judged by 12 than carried by six" maxim are not only doing exactly that, but justifying that position -- and their ignorance of use of force law -- with that cliché.(O)

Oh BTW, although this is about shooting, you might also want to sit down and consider how it also applies to using 'military combatives' and 'reality based self-defense' training (F).

M

3 comments:

  1. This is not a horrible post. The legal aspect of the shift from the DA having to proof beyond a reasonable doubt to the defendant having to provide proof for need of defense is also pretty interesting.

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  2. This is stupid, he got the reference wrong. Talk about someone going off the deep end when they have no clue...more sheep.

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    1. Wow, agreed! Ignorance with pen (or type) is worse than knowledgeable with steel. I don't even need twelve peers, just twelve that are not sheep like this site seems to be.

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