13 September 2010

CLTV: Inferring Malice

Restarting the weekly CLTV. There are some glitches this week in the intro and the text at the end. As well, the points made could be tighter. It could probably all have been fixed, but I was getting over some sort of illness yesterday and just didn't have the strength to keep fighting it. :-P

From CLTV.


Anonymous said...

So... if you walk down the street with a firearm strapped to your belt, not at all "hidden from common observation," why in the world would a police officer stop you?

At most, perhaps they would attempt to initiate a consensual encounter, but of course you are free to disregard their inquiry and go about your business.

The moment that the officers interferes with your liberty by ordering you to stop, he's seized you, and must be able to articulate specific facts justifying a brief detention. And of course the mere fact that you are lawfully walking down the street cannot serve as the basis for a Terry stop -- even when you're walking while armed...


Bad Monkey said...

Actually I too live in Virignia. I do open carry, usually I carry concealed though. I agree 100%, strap a shotgun to your back and the police may wish to have a word wih you.

And thank goodness for that, I see nothing wrong with the police wanting to ask a few quick questions if it looks like Bob is on his way to visit his wife and brother-in-law with a shotgun on his back.

Also, thank you for the shout-out (so to speak), and I appreciate you taking the time to make the reply to explain a few of the key points, it was very informing. Why the defense would want an instruction telling a jury they can infer malice I still don't 100% understand. Perhaps it was so they could get that first bit which explained the defendant had a right to arm them self if they perceived a threat.

I do not see it taking too long for a few defense attorneys to start looking for a jury instruction ensuring the jury is aware the individual had a right to be armed even absent that perceived threat though based on Heller and McDonald.

Anyway, I don't want to seem 100% contrarian. I agree that from the use of a firearm one could reasonably infer a person had an intent to do grievous, even fatal, harm to a person. However, that is not malice. Malice basically boils down to an intent to commit a wrongdoing. Something we both agree a killing/shooting may or may not be depending upon the totality of the circumstances. I believe those circumstances should be from where the jury infers or finds malice.

Which lets be honest, I don't think any jury in Virgina has ever found malice only because the person used a firearm.

Again though, thank you for mentioning me and taking the time to make this video. I greatly enjoyed it and look forward to your future posts/vids.

Ken Lammers said...

The inference of malice through use of a firearm instruction is a prosecution instruction. The right to arm instruction is a defense instruction which would be offered to counter the prosecution instruction. Of course, the defense may forgo the right to arm instruction if the prosecution was sloppy enough not to offer its instruction.

There are always a few defense attorneys trying to push the borders after new decisions. However, I just don't see a generalized right to be armed instruction making it into a case. Unless you're thinking it should be something of an ameliorative instruction for those poor underdeveloped folk who live in Yankee cities and whose politicians took their right to bear arms away from them so long ago that they forgot they had them?

Bad Monkey said...

Do you mean perhaps like those Yankee cities of Northern Virginia who seem more and more to not particularly care for the right to bear arms.

Or perhaps readers of certain newspapers who like to publish the personal information of CC permit holders obtained through FOIA requests.

One needn't leave Virginia to find those that might need reminding of the right to bear arms.

Perhaps that type of instruction wouldn't be such a bad idea. How about this, you may infer from the use of a firearm that it was justifiable. Of course I'm not being serious, if they want to prove it was such they should have to offer evidence it was. Just as I think a prosecutor should not be allowed to rely upon the malice instruction.

Again I do not think any prosecutor actually would just try and say, he used a gun, therefore there was malice. That would not be sloppy, but stupid.

Anonymous said...


If his wife is in bed with his brother-in-law meaning her brother....he has bigger problems to worry about than shooting him.

Great video though.