Attacker’s Reputation for Violence

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A recent court of appeals case from Florida nicely illustrates the legal rationales by which an armed citizen claiming self defense can get evidence of his attacker’s reputation for violence in front of the jury. A clear understanding of these rationales is essential, because they each have very different conditions, and the failure to meet these conditions can result in the jury never hearing of the attacker’s violent reputations–and such evidence could obviously prove decisive in whether or not a jury believes the armed citizen’s claim of self defense, and therefore whether the citizen walks out of the court room a free man or is sentenced to a great many years in prison.

In this case, the defendant Munoz was convicted of manslaughter for the killing of Suarez. The trial court allowed Munoz to present to the jury some evidence of Suarez’s reputation, but excluded other reputation evidence of violence (specifically, Suarez’s reputation for carrying a gun). Munoz appealed on the ground that the trial court was in error in excluding the evidence of Suarez’s reputation for carrying a gun. The appellate court agreed with the trial court, affirming Munoz’s conviction. Munoz v. Florida, 45 So. 3d 954 (October 29, 2010).

Facts

Suarez had been harassing his ex-girlfriend, with whom Munoz was friendly. On one such instance Suarez had an altercation at the woman’s place of work. Afterwards, the frightened woman called Munoz, explaining that she was afraid Suarez would return. Munoz agreed to meet with her at her workplace. Shortly after Munoz arrived, Suarez returned. Sitting in his car Suarez pointed an AK-47 assault rifle at Munoz and stated “I could kill you, I could light up your ass right now.” Suarez and Munoz engaged in a verbal altercation, and Suarez emerged from his car (without the AK-47) and approached Munoz in a manner indicating he wished to fight. As Suarez approached he placed his hand into his right pocket. As recounted by the appellate court, “The defendant, believing that Mr. Suarez was reaching for a gun, pulled out his own gun and shot at Mr. Suarez. Mr. Suarez fell to the ground, but the defendant continued to shoot. In total, the defendant fired his gun fourteen times, with ten projectiles striking various parts of Mr. Suarez‘s body. Mr. Suarez died at the scene.”

The court permitted Munoz to introduce evidence of specific acts of violence by Suarez if and when Munoz testified himself that he was aware of these specific acts of violence at the time of the shooting, and Munoz did so testify. On the issue of Suarez’s reputation for carrying a gun, however, the court required that Munoz must first demonstrate he was aware of this specific reputation at the time of the shooting. When Munoz was unable to do so, the attacker’s reputation for carrying a gun was not allowed to be presented to the jury.

Analysis

Generally speaking, a person’s general reputation for a certain type of conduct is not admissible in a trial as evidence that he has, in a particular case, engaged in such conduct. The fact that a defendant has been repeatedly cited for speeding for example, is not admissible as evidence in a trial to determine whether he was in a particular instance speeding (although it can certainly be considered in the punishment phase of the trial).

Similarly, “evidence of an [attacker’s] character is generally inadmissible. the exceptions to this rule are where the . . . defendant acted in self defense.” Once the user of force has met his burden of production with respect to self defense, it may become possible to introduce evidence of the attacker’s reputation. As the court of appeals put it, “Once the proper foundation is laid, the defendant may introduce evidence of the victim’s reputation or of specific instances of the victim’s conduct. There are, however, important distinctions and evidentiary requirements between reputation evidence and evidence of specific acts.”

The court continues, “The purpose of introducing the reputation evidence in a self defense case is to show that the [attacker] was the initial transgressor. Reputation evidence is offered to show that the [attacker] acted in conformity with a known character trait. Because reputation evidence relates to the conduct of the [attacker] [emphasis in original], the defendant is not required to have had prior knowledge of the [attacker’s] reputation in the community.”

“Conversely, the purpose of specific acts evidence in a self defense case is to demonstrate the reasonableness of the defendant’s fear at the time of the incident. Because the defendant’s state of mind is at issue, before the defendant may introduce specific acts allegedly committed by the [attacker] he must show that he had prior knowledge of these acts.”

“The reasonableness of the defendant’s fear and his subsequent actions [in this case] were in dispute. Thus, we agree with the defendant that whether Mr. Suarez routinely carried a firearm was relevant to his claim of self defense. Whether he routinely carried a firearm and may have been in possession of a second concealed firearm was relevant to the reasonableness of the defendant’s fear, especially in light of the defendant’s testimony that when Mr. Suarez reached for his pocket, the defendant feared Mr. Suarez may have been reaching for a gun.”

“We, however, disagree with the defendant that his prior knowledge of Mr. Suarez’s reputation for carrying a gun was unnecessary. Because the reputation evidence was offered to prove the reasonableness of the defendant’s fear and his state of mind at the time of the shooting, the defendant was required to demonstrate his prior knowledge of Mr. Suarez’s reputation for carrying a concealed firearm.”

“This distinction exists because reputation evidence offered to show that Mr. Suarez was the initial aggressor relates to Mr. Suarez’s conduct, whereas reputation evidence offered to show the reasonableness of the defendant’s fear relates to the defendant’s state of mind, which requires the defendant to have knowledge of the reputation.”

Discussion

The appellate court provides an elegant description of the difference between the types of reputation evidence requiring foreknowledge by the armed citizen and the types of reputation evidence that do not require such foreknowledge. Understanding such fine nuances of the law greatly aids the armed citizen in ensuring the most robust legal defense possible.

As an aside, in reading such cases it is often interesting to note the small, seemingly irrelevant facts the appellate court occasionally tosses into an opinion. In this case, for example, the court of appeals explicitly notes that “the defendant fired his gun fourteen times, with ten projectiles striking various parts of Mr. Suarez’s body.” Such a fact would be highly relevant if an issue on appeal was whether Munoz had used excessive force in defending himself–were 10 hits really required to put an end to Suarez’s violent attack and secure Munoz’ safety? Might not one or three or seven shots have been enough?

Excessive force was never once raised as an issue in this appeal, however. So why mention the number of shots fired and hits at all? One cannot help but wonder if the court of appeals is providing such technically irrelevant information in an effort to provide a context that may allow future courts to distinguish similar cases in the future, allowing a defendant who had fired only once or twice to reasonably argue that this appellate decision should not be binding on his case because of the difference in degree of force used.

IMPORTANT: This blog post does NOT constitute legal advice, nor does it purport to accurately communicate the laws or court decisions of the jurisdiction of the actual case discussed. This blog post is intended solely for ILLUSTRATIVE PURPOSES, and to provide a forum for the discussion and debate of important issues relevant to the law of self defense. If you are in immediate need of legal counsel, retain a competent attorney in your jurisdiction.

About the Author

Andrew Branca
Andrew F. Branca, Esq. is currently in his third decade of practicing law, and is an internationally-recognized expert on the law of self-defense of the United States. Andrew is a Guest Lecturer at the Federal Bureau of Investigation’s National Academy, a former Guest Instructor at the Sig Sauer Academy, an NRA Life-Benefactor Member, and an NRA Certified Instructor. He also teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country. Andrew is also a host on the Outdoor Channel’s TV show “The Best Defense” and contributor to the National Review Online. Andrew has been quoted as a SME (subject-matter expert) on use-of-force law by the Wall Street Journal, the Chicago Tribune, the Washington Post, and many other mainstream media, including nationally syndicated broadcast media. Recently, Andrew won the UC Berkeley Law School debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting Law Symposium on self-defense law. He is also a founding member of USCCA’s Legal Advisory Board. In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.

1 Comment on "Attacker’s Reputation for Violence"

  1. Good morning Andrew,

    I’ve bought (and read very carefully) your book, listened to your podcasts (and every other audio and video file I can find!) , and am waiting and watching for you to come to the Atlanta-area to do a class. This blog entry hits on my exact stressor in all this. (I do CC so I am training and educating myself on ‘justifiable force’; your book really opened my eyes — and sank my heart!)

    You wrote (well, you quoted) above: “Reputation evidence is offered to show that the [attacker] acted in conformity with a known character trait.” You’ve mentioned repeatedly all over the place about “reasonable person.” In my research, I hear and read you and Marty Hayes and others discussing Disparity of Force. I expand “person” be “”reasonable woman,” because of the pretty much permanent Disparity of Force aspect. (I’m a 59-yr-old fat woman with arthritic hips, so, not much chance running away for me! I am always in Condition 3 — or high 2? — because I recognize so many ‘prey-aspects’ about myself/my appearance.) I’ve just started studying the Tueller Drill. (O.M.G.! Talk about a sinking heart!)

    Here’s my quandary: unlike the vast majority of (white) folks out there, I am way-too familiar / educated / horrified / terrified about the “polar bear” violent assaults (I refuse to call it a game!) and the devastating aftereffects on victims (including six deaths!). A couple hours on YouTube will remove ANY sense of safety out in public, and, alas, will help identify the (‘class/type’ of, not the individual) most likely potential attacker.

    This is SO not “bare fear” (careful reasoning shows “fear of attack” to be a legitimate follow-on to the actuality of the danger; if you’re walking in the jungle, you can *reasonably* be afraid of a(ny) jaguar or lion) — this is an entirely reasonable (in the eyes of someone not ‘asleep’ to what’s going on) fear based on the recorded-and-posted horrific crimes being committed all over the nation, directed at people of my skin color. You threw out a line in one of your talks about “of course, this doesn’t cover racists” (heart sinking again) — and I do not see a way, in this current world, where my education about reality would not be instantly perceived AS racism! (Except it’s not. I AM legitimately in more jeopardy from “young black males” than I am from any other “type” of potential attacker. It’s not young white guys out “having fun” punching into unconsciousness/injury old women (and anyone else) in the street.)

    I (probably) cannot run away (adrenaline’s effects notwithstanding). I don’t know (and am — a bit frantically! — studying and investigating) what am I to do when faced with a situation where I am approached — at some distance yet to be figured out — by what could be a violent attacker who would already have a huge Disparity of Force; who could, with a single blow to my head, kill me, render me unconscious, or render me too handicapped to defend myself. I have been gathering up information, intending to write out a “justification / discovery white paper” for whatever position I end up taking: do I take out my weapon (a Kimber Micro .380 — delightful little gun!) and have it in my hand when I am approached within — what? 30 feet? 50 feet? I can’t carry on my hip — I have to get the weapon from a purse, at least until I see if a Flashbang holster would work for me, and then I’d have to get it out from under my shirt. But — on what basis do I determine if I am in jeopardy? And, almost more frightening — on what basis would a court perceive my attempts to keep from being violently attacked? (And are those two at all reconcilable?!)

    I’m also studying the signs and signals of “Body Language and Threat Assessment” — I read Mas Ayoob’s article last night in fact, in his “Deadly Force” book – which is now the 8th book on (gun-related) self-protection I’ve read in the past five months. When my husband was alive, I carried but didn’t worry much about self-protection — he was my hero. Now (since 2011) that I am a widow — I *NEED* to be as prepared as I possibly can be; I am alone responsible for my safety. Your book put the ‘fear of court’ in me (which feels stronger than the fear of god!) and I am waiting eagerly to get my (next) book and CD set for joining (just yesterday) the Armed Citizens’ Legal Defense Network.

    Help? Write a blog post (or ten!)? Do a video/podcast? Somehow, find a way to address the balance (if there can be one?) between what’s politically correct but can result in death or brain damage — and what’s realistic but will absolutely appear to be racist — in self-defense!

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