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Legal Definition of Lethal Force

EJ interviews criminal defense attorney Dana Mclendon on the topic of self defense and the use of lethal force.

EJ Owens: You have a unique perspective on this because you’re not only a lawyer but you carry too.

Dana McLendon: Yeah.

EJ Owens: That’s hard to find. A lot of those lawyers with the—you know the whole studious type or set away.

Dana Mclendon: Well even among lawyers, not many try cases and not many try criminal cases. So it’s kind of like the same thing in the gun world, there’s 300 million guns in America but they’re owned by 100 million people. And 90 million of them are hunters who don’t carry and so on and whatever the numbers are. And you finally get down to the people that actually go into court rooms and try cases, who try criminal cases, who try crime of violence cases—those are fewer still.

EJ Owens: So I have me as the everyday carrier, very small percentage.

Dana Mclendon: Right.

EJ Owens: And I have you, a criminal defense attorney, very small percentage but then you’re also one of us who carry a gun, so like you’re even a smaller percentage of the smaller percentage that you are.

Dana Mclendon: Yeah, probably so.

EJ Owens: ‘Cause that’s my Mathematics coming in right.

Dana Mclendon: Yeah right.

EJ Owens: But then in most cases, you’re trying the use of lethal force right?

Dana Mclendon: That’s often the case. That’s often the question, what is lethal force and when you start talking about definitions, sometimes we use words that we just use them and we think we know what they mean and we think everybody knows what they mean but it turns out maybe we’ve never really unpacked it and carefully examined it. And I got some great advice one time when I was a young lawyer preparing a case for trial, the lawyer told me don’t think about how to make your case go from beginning to end, skip to the end. The last thing that’s going to happen in that jury trial is the judge is going to read jury instructions and the jury instructions are written in language that’s simple and easy to understand as best we can do for people who aren’t lawyers so that they can apply the facts and the law to come up with a verdict. So the best place to find the definition of terms like lethal force is jury instructions and the jury instructions for lethal force are typically going to say something like it’s the use of force that is likely or intended to cause death or serious bodily injury. So if I use a gun, it only has one purpose, to inflict serious injury or death. So when we have a conversation about lethal force in the gun culture or the gun community or in the gun incident, we skip right over it because we already know we’re talking about a situation where the device creates lethal force period, that’s what it does, that’s what it’s supposed to do. But on the continuum, what if you had a knife? Yeah, sure knife is going to create the element of lethal force. What if it is was a bat? It’s not created for the—a baseball bat, it’s created for a sport but it can be used as a weapon. Get all the way down to a flyswatter, somewhere along the way, you’ve left the area of lethal force but for purposes of deciding what lethal force is, it’s that force which is intended or likely to cause either death or serious bodily injury.

EJ Owens: We could focus around the weapon but even a good strong punch to the right spot on the brain can potentially kill…

Dana McLendon: Yeah, I mean you can take a brick—I mean anything, many things can become weapons that aren’t created to be weapons. The unique thing about being a gun carrier is you’ve already brought the element of lethal force to the equation; you didn’t scramble for a weapon in a situation, you didn’t pick up a tire iron to fend off someone who was attempting to assail you, you didn’t grab a kitchen knife—you brought a gun, you brought a gun to this scenario to begin with. So we kind of fast forward past that whether there is lethal force but it’s still important thing to understand that when you’re carrying a gun, you have created a situation that already involves lethal force, the potential for lethal force.

EJ Owens: So in that aspect, by virtue of carrying a gun then it’s easier for a prosecutor to say maybe he was looking for trouble because he’s bringing that.

Dana McLendon: Your actions will be—the facts will be crammed into a narrative and I’ve had trials where there were competing narratives…


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EJ Owens: And the narrative is nothing more than a story.

Dana McLendon: It’s a story. I mean that’s what a jury trial is, is a cast of people telling a story attempting to convince the same 12 people to believe different things to come to different conclusions but when you carry a gun, you’ve already removed any opportunity to say well there’s not a lethal force question here. Sometimes you have crimes of violence, you have assault cases where you can create a narrative as a defense lawyer that hey my client was just out trying to see a movie or whatever and wound up in this situation. If you bring a gun, you’ve changed that conversation. So just remember if you’re a carrier, if you’re carrying a gun everyday, you have already zoomed right into the area where lethal force is built in.

EJ Owens: So that’s going to propel moving up the chain to me potentially going to jail and spend the rest of my life, we’re already moving fast into that. There’s not this previous dialogue of went where and how.

Dana McLendon: Right.

EJ Owens: How did that person die, that’s crazy, maybe he had an underlying heart condition and when you’re hitting me, it triggered it—no you brought a gun, therefore you have intent and ability and…

Dana McLendon: Yeah and it also creates a scenario where the narrative can quickly be constructed that you were spoiling for this, you were looking for this or you were a hair trigger ready to do this as opposed to I was just a guy trying to get a gallon of milk and I ended up in a fight for my life at Mapco. If you bring a gun, you create an opportunity for the narrative to include that you were a vigilante or that you were a violent person to begin with; you left your home ready to do violence, ready to kill someone. So it’s a factor for sure in any trial.

EJ Owens: You know it didn’t always used to be that way. You look at the Wild Wild West, everyone carried a gun and therefore, everyone was equal. Well, now in today’s society where it’s almost like a faux pas for you to carry a gun, like why do you want to go looking for trouble? Why are you—want to go kill somebody? And with the right of self defense then I have a right through my state and whether it be a permit that I have to carry or whatever to carry a weapon then if I enact that, I’m suddenly on trial. And the mindset of why would anybody want to do that?

Dana McLendon: You almost have to—if you’re going to carry a gun, you almost have to be prepared to convince someone that you are not looking for trouble or that you are not ready to commit violence on a moment’s notice. So there are people walking around who it’s important to remember in that jury box will be people who feel just as strongly about the absence of guns as you do about the presence. To me, I have a mental checklist when I leave the house; gun, knife, keys, wallet, phone.

EJ Owens: Right, watch, wallet, keys, phone, gun…

Dana McLendon: Ready to go, right. That’s completely alien to a huge number of people and they hold their convictions about your being wrong about this just as strongly as you hold the conviction that you’re perfectly within your rights.

EJ Owens: And the view of the world as they perceive it may be different and in most cases it is, the way that I perceive it and watching the news I see what’s going on in my local community, I see—so I live in Tennessee, Memphis. And the other day we day we had 6 shootings in one night and I get the little alerts on my phone from the local news oh there is another shooting and another shooting and another shootingand another shooting. Wow, to me, I say that’s 6 shootings regardless of the context of what it was, it happened—that’s 6 potential opportunities that happen in one night for someone to be involved in a self defense situation. That’s too much for me, so I carry and even in the ‘nice’ town that I live, it still happens; guys walk in and rob stores all the time. And case in point, I was showing my wife a video that a guy walks into a bank, the CCTV cameras are showing—guys walks into a bank, whips out his gun, points it at the teller and says give me your money, give me your money. There’s a person standing to his right and a person standing to his left and the dialogue between my wife and I were—I said well what would you do? She said well back away, let him do his thing. I said yeah that’d be great until he pointed that gun to you and said why you looking at me? Get on—face down on the ground and then he shoots you and kills you to make an example of everybody else and that happened in a moment of that. But you’re not allowed to carry a gun in a bank; it says so on the rules.

Dana McLendon: Yeah, some banks are posted, that’s for sure.

EJ Owens: Okay, so what do I do? Great discussion.

Dana McLendon: And that’s where the concept of you have to have the mindset to understand that you’ve brought lethal force to the equation. You have arrived there if you’re carrying, you’ve arrived there undeniably at least physically prepared to apply lethal force. I don’t carry OC spray or a mace or whatever, maybe I should but I don’t. I’ve made the decision that, that’s just one thing I don’t have with me but I do carry lethal force and I’m squarely in the category of I can’t say I didn’t come prepared for that moment.

EJ Owens: Correct and we keep talking about the legal side but there’s such an emotional side where I know you see in your office, family members, in the jail when you’re having your discussions with them. The second you take that person’s life, your life as you know it is forever changed and even if it was the whole ticket tape parade in your honor for doing an honorable thing, you still have in our society, you’ve taken a life. And that separates you from the rest of the people walking on the face of the planet in regards of how you perceive it, they see you and how you see them.

Dana McLendon: Well just like I made the conscious decision that if necessary I would defend myself with lethal force, other people go about the world and say I would never do that. They would literally sooner be at the mercy of the perpetrator than take his life or take anyone’s life. And that’s fine, I mean that’s the choice that they get to make but and they feel just as strongly about it as we do about not going out like that.

EJ Owens: Correct and that’s where those interweb discussions, debates, arguments if you will, I call them “acts of futility” where those gets really heated. And then the view of people who carrying a gun for a living; police, military and so on, it’s just as bad as it is for us but they have a uniform and they have a set of rules and laws that are associated with why they carry and then there’s implications of they were in the right place at the right time doing their job and we’ll just debate that they do their job well enough. With us, why do you even have a gun? That’s crazy.

Dana McLendon: Yeah, I come at it from the standpoint of I’m planning to go home and I’m going to live my life lawfully, I’m going to—I’m not going to go stupid places and I’m not going to do stupid things with stupid people. So I’ve carried for 22 years now and never once been in a situation where I had to unholster. That’s decision making about where to be, when to be there, what to do. So you have to have that mindset when you strap on lethal force.

EJ Owens: Right, right and I have found myself in situations where I’ve had to pull my gun and thank goodness I didn’t have to pull the trigger but you still go through those emotions, man that just happened. If that guy had done…and I had just gone to the store and here I am in a gas station, the next thing you know, I’m not at home and mama’s cooking dinner and the kids are trying to do homework and I got to get x, y and z done that she’s already told me I have to get done as these husbandly duties and ring ring, hello, hold on my water’s boiling on the stove. Would you like—take a connect call from the jail…

Dana McLendon: Right.

EJ Owens: And she’s who the what, they must have the wrong number. Can you take a call from the jail?

Dana McLendon: Or can you come identify this body.

EJ Owens: Even worse. And now your life is forever changed.

Dana McLendon: Yeah, it’s high stakes. I mean you can’t be wrong; you need to do everything that you can to make the right decision under the worst possible circumstances, part of that is knowing the legal field that you’re stepping on. You wouldn’t go and play a game of football without knowing the rules even if you’re a big strong dude who spent 6 months lifting and watching people play or whatever. You wouldn’t go on the field if you didn’t know what the rules were and yet people put a gun on and go out in the community without necessarily knowing as much as they could and should know about the rules.

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