Not Guilty! to Attempted Assault with Deadly Weapon

No Guilty

PANCHO VILOS’ CLIENT FOUND NOT GUILTY of Attempted Assault with a Deadly Weapon!
Here was the Provo Herald’s write up of the facts which gave rise to the case I defended in trial last week (and hence, no presence here on Facebook for over a week!)
“A road rage confrontation escalated to a potentially deadly situation Friday after a man fired a shot in an Orem parking lot, according to reports.
Arrest reports state that at about 4:30 p.m. Friday police received the initial 911 call. The complainant stated that as he drove near 1100 S. Main St. another driver cut him off. The complainant honked his horn, but the other driver slammed on his brakes, causing the complainant to nearly hit him, reports state.
The complainant told police that as he passed the driver, he yelled at him and flipped him off. The complainant decided to flip around and followed the other driver to the Scera Pool parking lot.
Reports state he observed the other driver holding a gun out of his window, pointed at him. But when the other driver pulled the trigger, the gun was not pointed in his direction and he (complainant) was unharmed.”
That was the Orem Police and Media’s version of the case. Don’t have time tonight to give all the details, but after two days of testimony and several solid days of trial preparation, the Jury found the defendant NOT GUILTY of attempted assault with a deadly weapon by reason of self-defense and defense of others (two of his pre-teen children who were in the car when the complainant yelled and flipped off the defendant). THEME: It is reasonable for a parent to resolve all doubts in favor of his children’s safety when confronted by an angry, seemingly out-of-control motorist under the influence of road rage and point a gun because “action always beats reaction” (reference to likelihood of being killed by road rager in a car or a weapon you haven’t seen yet, that could be pulled on you in a fraction of a second and not being able to react in time unless defendant’s gun is pointed at the road-rager).
The police and prosecutors thought they had this one in the bag because the defendant, when he couldn’t get the complainant road-rager to shut up and leave him and his young girls alone, fired the gun in the air near State Street in Orem. The State of Utah’s premiere expert witness and the very experienced arresting officer testified it was not justifiable under the circumstances of this case for my client to point the gun at the complainant and fire the gun in the air. But justice prevailed anyway because of the compelling arguments above as well as relentless cross exam of the alleged victim, the arresting officer and the State’s expert witness, not to mention dramatic testimony from the defendant and zealous argument by defense counsel (Panch, himself).
WORD OF CAUTION: The Defendant’s tactics in this case were quite unusual and generally not taught by CCW instructors in this and many other states. Be prepared to be arrested, charged and prosecuted and pay an enormous attorney’s fee for a vigorous defense if your tactics don’t fall in line what the arresting agency is teaching its officers. Note: Referring attorney and co-counsel was Chris Dexter of Dexter and Dexter in Orem, Utah, whose assistance was much appreciated and contributed immensely to the success of this case.

11 Things You Didn’t Know About Personal Injury Lawsuits

 

Person Injury - Car accidentBy Attorney Mitch Vilos

1. The injured person doing the suing is known as the plaintiff. The person being sued is known as the defendant.
2. In most states the word “insurance” is not allowed to be uttered at trial, but almost always the defendant (person being sued) has insurance coverage. Some states, like Alabama, excuse all jurors from jury duty who have the same insurance as the defendant.
3. Most cases settle within policy limits, so that it is extremely rare for the person being sued to have to pay money out of his or her pocket.
4. If the defendant’s insurance company decides to “roll the dice,” and loses, often the company will pay more than the insurance limits rather than be sued by the defendant for “bad faith” refusal to settle.
5. Some states surprisingly only require very minimal insurance coverage ($10,000) to satisfy their financial responsibility laws for injury to one person. Only two states require $50,000 which can be exhausted by a couple of days in the Intensive Care Unit (ICU). The rest of the states require less than that. Your only real protection from uninsured and underinsured drivers is to buy uninsured and underinsured motorists coverage, which in most states, is very affordable.
6. Resolving a personal injury case is not just about getting a settlement from the wrongdoer’s insurance company. Often the most difficult part of the case is dealing with Medicare, Medicaid, or health insurance companies who expect to be paid back for whatever medical bills they have paid from the time of the accidental injury until the case is settled with the wrongdoer’s insurance company. The law, at present, is very complicated regarding these “subrogation/lien” (payback) issues. Having an experienced personal injury attorney who understands these issues is indispensable.
7. Insurance rates per thousand decrease the more insurance coverage you buy. Minimal coverage costs the most per thousand. As you increase your coverage above the minimal limits, the cost per thousand dollars of coverage of liability, uninsured and underinsured motorist coverage decreases.
8. Liability insurance covers you if your negligence injurers someone else.
9. Uninsured motorist coverage covers you if a negligent person, who has no insurance, injures you or a family member.
10. Underinsured motorist coverage covers you if a negligent person, who has too little insurance to cover your damages, injures you or a family member. In most states, the underinsured coverage only applies if the negligent person’s liability insurance pays out it’s liability limits first. This becomes tricky because most underinsured motorist policies require written permission to settle with the liability insurer of the negligent party and several other requirements as well, which only an experienced personal injury attorney would understand.
11. Reputable and experienced personal injury attorneys you know and trust can help you find a trustworthy firm in another state without you having to pay anything more than if you had dealt with only one firm. Most personal injury attorneys accept cases on a “contingency” basis, meaning unless they recover money for your, you do not owe them a fee.

Author: James D. “Mitch” Vilos has been representing injured persons for over 35 years, including cases involving car accidents, gunshot wounds, brain and spinal cord injuries, medical malpractice and defective products. Read his full bio here. He also defends weapons cases and is an advocate for the Second Amendment (The Right to Keep and Bear Arms).

Self-Defense Law Update

Self-Defense of All 50 States, 2nd Ed. Updates as of 22 Mar 14

Self-Defense Laws of All 50 State (2nd Edition)

Here are the current state updates in the law of self-defense as of the above-date.  Please remember to try not to be the “test case!”  If any of you are aware of any other state self-defense law changes, please let us know immediately at mitchvilos@gmail.com so we can research it.  We do our best to keep up, but it is conceivable that one “slips through the cracks.”  Since publishing our book Self-Defense book in 2010, virtually all of the changes in state law have been positive – more protective of the innocent and more dangerous for criminals. 

Despite the attacks on “Stand Your Ground” (SYG) laws, which legal principle has been the majority view since a U.S. Supreme Court case in the late 1800’s, we’re not aware that any SYG laws have been repealed although there is a violent attack on Florida’s SYG law currently.  I have been invited to write a law review article supporting Florida’s SYG law which may be published this summer.  I will post the article on our Facebook page and blog when it is completed. 

 

Alabama – [Alabama in August of 2013 added “place of business” as a special place and made it clear that business owners could defend their businesses at night when the business was closed:]

§ALA.CODE 1975 § 13A-3-23 (a) (4) & (5)

(4) Using or about to use physical force against an owner, employee, or other person authorized to be on business property when the business is closed to the public while committing or attempting to commit a crime involving death, serious physical injury, robbery, kidnapping, rape, sodomy, or a crime of a sexual nature involving a child under the age of 12.

 

(4) (5) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, business property, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, business property, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring.   The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if: [See Alabama Subchapter under Presumption of Reasonableness in Special Places.]

 

Alaska – [On September 18, 2013, by adding paragraph 5 below to §11.81.335. Justification: Use of deadly force in defense of self, Alaska became a true Stand Your Ground (SYG) state by dispensing with the duty to retreat in places where the defender has the right to be present.  The corollary to this is that trespassers obviously must retreat before using deadly force if it’s completely safe to do so.]

 

(5) in any other place where the person has a right to be.

Download PDF version here: Self-Defense Laws Updates 

Reminder That Unassembled “Components” Can Be Prosecuted

SOLEMN REMINDER THAT UNASSEMBLED “COMPONENTS” CAN BE PROSECUTED AS IF ONE POSSESSED AN ASSEMBLED “BOMB” (This same reasoning applies to having a “machine gun” even if the components aren’t assembled.) Same applies to parts that could be combined to make a silencer (yeah, I know – these could be constructed very easily out of an assortment of materials – but the gov would have to show intent to pass constitutional muster – uh, I think/hope).

Paramedic who responded to Texas plant blast pleads guilty on pipe bomb charge

BUYING AND SELLING GUNS WITHOUT COMMITTING A FELONY

Buying a gun in another state - gun transfer I got a couple questions today about selling a firearm to a resident of another state.

As I understand it, the person offered the gun online for sale. A person from another state said he would like to buy it. Seller suggested it needed to go through a gun dealer in the buyer’s state. The buyer said it didn’t because it is a private sale. Right? Wrong? WRONG!!!!!! All sales by private individuals to individuals living in another state MUST go through a dealer in the BUYER’S state!!!!!! The “buyer” in this case might have been a BATF (Ban All The Fun) plant (JK – agent for the Bureau of Alcohol, Tobacco and Firearms) and the penalty – 5 year federal felony is NOT a joke.

Caller asked if the buyer comes to your state to buy the gun, does that make it legal for a private sale? NO! He can come to see the gun, handle the gun, but before you transfer it to him, you must do it through a dealer in the buyer’s home state. Period.

Underinsured Motorist (UIM) Explained

uninsured motoristREALITY CHECK : Because you are more likely to be injured in a car accident than in a shooting . . . . .

Group Members and Friends,

I recently settled an injury claim for a woman who recovered HUNDREDS OF THOUSANDS OF DOLLARS MORE for her injury claim because she and her husband invested a few extra dollars each month in UNDERINSURED MOTORIST (UIM) car insurance.

I don’t sell it, but all too often I see the tragedy of not having it. I have another claim pending currently where the client will likely collect AT LEAST $100,000 more because he had UNINSURED MOTORIST (UM) COVERAGE.

Under and un-insured coverage are among the most INEXPENSIVE insurance products you can buy. Plus, they pay YOU and your family if you are injured whereas liability coverage only pays if you injure someone else. Some auto insurance agents will encourage you to waive this coverage because it keeps their policy premiums competitive. DON’T waive UIM or UM coverage.

Call your insurance agent today and make sure you have sufficient (at LEAST $100,000) of UNDERINSURED (UIM) and UNINSURED (UM) coverage. Your agent won’t push you to get it because he/she doesn’t make enough of a commission to make the effort to sell it, but when (not if) you need it, you’ll be glad you have it.

Layton, Utah homeowner shooting at burglar

Clare is a great person with a wonderful family. I wish I had met them under different circumstances. Nevertheless, I believe the resolution which will be announced next Tuesday afternoon after the court hearing is fair to both sides.

Community rallies behind homeowner arrested for shooting at burglar

Published February 08, 2013
Associated Press

SALT LAKE CITY – Residents in a northern Utah city are coming to the defense of a man who was arrested and faces charges for shooting at burglars as they drove away from his property.

Layton police arrested Clare Niederhauser, 64, last week after he fired one shot at a car and another at a fleeing burglar, said Layton Police Lt. Shawn Horton. He was arrested on suspicion of two counts of reckless endangerment.

The shots were unlawful because the burglar had dropped a crowbar and was fleeing the property, said Horton, who added that the shots could have endangered somebody’s life.
“There is a responsibility of owning a gun: you need to know when you can lawfully use your weapon,” Horton said. “You’re not authorized to shoot a firearm at a car just because you don’t want it to get away, or to scare them, or disable a tire.”

Layton police said they also have arrested the man suspected of burglarizing the house, Robert Santos Cruz, 47. Investigators are searching for a woman who drove the car that was leaving the driveway when Niederhauser shot at it.

Niederhauser, a concealed weapons permit holder who used a .357 caliber handgun, didn’t immediately return phone messages from The Associated Press. He told detectives that he aimed to shoot the tire of a car leaving the driveway and later to scare Santos Cruz as he ran away. Niederhauser came home to find a car in his driveway and Santos Cruz leaving his house holding a crowbar, Horton said.

Niederhauser’s supporters said he is being unfairly punished for protecting his home. They said the arrest sets a precedence that homeowners can’t protect themselves and have launched a blog urging people to call police to complain and contribute to a legal aid fund.
The blog supporting Niederhauser says at the top, “Support Clare Niederhauser. A good man did the right thing.”

“He tried to act in a way that is responsible and compassionate and keep his head about him,” said Loran Hubbard, 53, of Layton. “We have the right to defend ourselves when we are confronted with a lethal weapon. If a big crowbar isn’t a lethal weapon, I haven’t seen one.”

There had been two other burglaries in the neighborhood in the past three months that had Niederhauser on high alert, said neighbor Teuvo Jones. The shot he fired at Santos Cruz was a warning shot near a hollow, Jones said.

“You would have to have all the laws of physics changed to make that a danger to anyone,” said Jones, basing his assessment on Niederhauser’s account. “It was far from reckless.”

The Layton City Attorney’s office is working with Niederhauser’s attorney to reach a plea deal, said assistant city attorney Steve Garside. The agreement will likely be made official on Tuesday when Niederhauser makes his first court appearance.

Niederhauser’s attorney, Mitch Vilos, confirmed that a plea agreement is in the works but declined to discuss specifics. He said he and Niederhauser will speak to the media after the Tuesday afternoon court appearance.

Layton is a city with about 68,500 people located about 20 miles north of Salt Lake City.
Clark Aposhian, a firearms instructor and chairman of the Utah Shooting Sports Council, has been following the case closely and believes the arrest was appropriate.

“I can understand the guy getting caught up in the moment, but he’s got some explaining to do,” said Aposhian. “It’s not that he was shooting at the person necessarily, but the reckless endangerment is because he fired his gun when the rounds could have gun anywhere.”

Read more: http://www.foxnews.com/us/2013/02/08/community-rallies-behind-homeowner-arrested-for-shooting-at-burglar/?test=latestnews#ixzz2KKMYV1Qx

Legal Seminar

Gallery

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Readers and students. Last Friday (September 7th) we launched the “Maiden Voyage” of our new advanced legal seminar entitled Hidden Legal Traps in the Law of Self-Defense. It is intended as a supplement to our popular book Self-Defense Laws of … Continue reading