Get Your License to Carry Handgun

Authored by: Mike Ooley

Although we do not believe you should have to pay a fee and ask permission to exercise a Constitutional right, we nonetheless suggest that folks obtain an Indiana License to Carry Handgun, if eligible. The Indiana State Police is the designated bureaucracy that processes the applications. You can apply online at: https://www.in.gov/isp/. Look for the section entitled "Firearms Licensing." 

We encourage folks to get the license, if eligible, even if you do not currently intend to carry a firearm. One reason is that you might change your mind about carrying in the future. If you already have the license, you will not have to wait for the application process to take place. Additionally, we suggest getting a license if your spouse or other family member has a license and carries a firearm. You might find yourself needing to take control of the firearm as a result of any number of possible scenarios, one of which would be a medical emergency.

What makes an Indiana resident eligible? Well . . . there are a number of qualifiers - (surprise . . . surprise . . .) one of which is paying a ransom (the state calls it a fee) to exercise your rights. Currently, the fee for a lifetime license should be $125 (includes a state and local government fee).  You must also have a "proper reason" to have the license. Luckily, Indiana is a "shall issue state," so this means you are "allowed" to have the license if it is for the defense of oneself or the State of Indiana. Another important eligibility factor is whether you are a "proper person" under Indiana law. Please review the following to understand the current definition of a "proper person" in Indiana:

IC 35-47-1-7

Sec. 7. "Proper person" means a person who:

(1) does not have a conviction for resisting law enforcement under IC 35-44.1-3-1 within five (5) years before the person applies for a license or permit under this chapter;

(2) does not have a conviction for a crime for which the person could have been sentenced for more than one (1) year;

(3) does not have a conviction for a crime of domestic violence (as defined in IC 35-31.5-2-78), unless a court has restored the person's right to possess a firearm under IC 35-47-4-7;

(4) is not prohibited by a court order from possessing a handgun;

(5) does not have a record of being an alcohol or drug abuser as defined in this chapter;

(6) does not have documented evidence which would give rise to a reasonable belief that the person has a propensity for violent or emotionally unstable conduct;

(7) does not make a false statement of material fact on the person's application;

(8) does not have a conviction for any crime involving an inability to safely handle a handgun;

(9) does not have a conviction for violation of the provisions of this article within five (5) years of the person's application;

(10) does not have an adjudication as a delinquent child for an act that would be a felony if committed by an adult, if the person applying for a license or permit under this chapter is less than twenty-three (23) years of age;

(11) has not been involuntarily committed, other than a temporary commitment for observation or evaluation, to a mental institution by a court, board, commission, or other lawful authority;

(12) has not been the subject of a:

(A) ninety (90) day commitment as a result of proceeding under IC 12-26-6; or

(B) regular commitment under IC 12-26-7; or

(13) has not been found by a court to be mentally incompetent, including being found:

(A) not guilty by reason of insanity;

(B) guilty but mentally ill; or

(C) incompetent to stand trial.

As added by P.L.311-1983, SEC.32. Amended by P.L.191-1984, SEC.1; P.L.148-1987, SEC.3; P.L.269-1995, SEC.5; P.L.49-2005, SEC.1; P.L.118-2007, SEC.34; P.L.127-2011, SEC.3; P.L.114-2012, SEC.139; P.L.126-2012, SEC.57.

If you have made it this far and are confident you have a "proper reason,", are a "proper person," and can pay the required fees, we would say you have an excellent chance of getting your license as long as you are not a "prohibited person" under federal law. You are probably not a prohibited person under federal law if you have purchased a gun recently via an FFL and otherwise meet the criteria above. If you are unsure and need further guidance regarding the definition of a "prohibited person", you can "Google" the following statute for more information: 18 USC § 922.

One word of caution, be sure to take your time when filling out the online application to make sure you thoroughly and accurately complete the form. We understand one of the most frequent reasons for denial is providing a misstatement in the application - especially regarding prior criminal history. Sometimes a factual error is simply due to a misunderstanding or forgetting about what happened 30 years ago. The bottom line - be accurate, honest and thorough. If you have doubts about how to answer a question, check with the ISP or an attorney.

Last point - if your request for a License to Carry Handgun is denied for some reason, there is an appeals process that you can request within a designated timeframe. The appeal might involve a hearing with an administrative law judge as your next step.

I hope this has helped you better understand the process. Please exercise your rights and apply. 

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Safe Storage Laws

Authored by: Mike Ooley

First, let me say that every gun owner should always ensure that his/her firearms are always secured and are not accessible to unauthorized or untrained individuals - notice the emphasis on ALWAYS! Unfortunately, there are those, some that are even pro freedom and pro gun, who believe we should cede ground and get out of the way with respect to "safe storage laws." Many people accept the premise that the mere presence of firearms in the home poses a threat to the lives and safety of the children and adults in the home. Some would even accept the notion that firearms in the home pose a "severe" risk. Usually, the propaganda machines will also sling around the term "common sense" at the same time and that "safe storage laws" might "save one child". I would ask that you take a few moments to consider the points below before deciding to support, oppose or remain silent on this issue.

Many of us who believe in freedom and personal responsibility are reluctant to agree that criminalizing more conduct is a good idea but it can be difficult to articulate why laws such as the "safe storage laws" being proposed under legislation H.B. 1040 by Indiana Rep. Bartlett are a bad idea. However, if we do not speak up, laws of this nature will continue to be passed that will be ineffective in obtaining the goal of "safety" and will only serve to infringe upon the rights of law-abiding citizens and make politicians "feel good" because they have done "something". Please review the information below as you consider your position with respect to potentially allowing the legislature to criminalize your own conduct in your own home based upon how you store your own firearms and how you might need to use those firearms (which are tools) to combat crime directed at your own family by real felons.

1. From a policy standpoint, I do not see any conclusive proof that criminalizing more behavior in our society will produce fewer accidental gun deaths. It is likely that laws, such as the "safe storage law" being proposed, could do more harm than good by impairing the ability of law-abiding citizens to protect themselves. My son Alex and I have had the fortunate opportunity to meet and chat with Dr. John Lott. I can tell you that he is an incredibly thoughtful, intelligent, and informed person. Dr. Lott, who is generally thought of as a pro-gun economist, has studied and written on the subject of "safe storage laws." He addressed the topic in an article entitled "SAFE-STORAGE GUN LAWS: ACCIDENTAL DEATHS, SUICIDES, AND CRIME" written by John Lott and Jon Whitley (John R. Lott, Jr. and John E. Whitley, "Safe‐Storage Gun Laws: Accidental Deaths, Suicides, and Crime," The Journal of Law and Economics 44, no. S2 (October 2001): 659-689. It is available at https://doi.org/10.1086/338346 ). In the article he states: It is frequently assumed that safe-storage gun laws reduce accidental gun deaths and total suicides, while the possible impact on crime rates is ignored. We find no support that safe-storage laws reduce either juvenile accidental gun deaths or suicides. Instead, these storage requirements appear to impair people's ability to use guns defensively. Because accidental shooters also tend to be the ones most likely to violate the new law, safe-storage laws increase violent and property crimes against law-abiding citizens with no observable offsetting benefit in terms of reduced accidents or suicides.

2. We do not need to criminalize conduct for which the law already provides a remedy. Under current law, irresponsible storage of a firearm will likely result in a civil lawsuit against the responsible party if injury or death occurs to someone outside the household. If civil litigation is not enough, prosecutors also have possible criminal charges that might be pursued such as criminal recklessness. As an example, several months ago, a man was accused of bringing a loaded handgun into an IKEA store in Indiana and was charged with criminal recklessness after the gun purportedly came out of the man's pocket while he was seated on a couch in the store. A child subsequently found and fired the gun. Thankfully, no one was injured, but the man was charged.

3. It might seem repetitive, but I will also make the "slippery slope" argument — it is still very valid. "Safe storage laws" are another incremental government intrusion that will likely be ineffective. Too often, supporters of the law will try to justify even more intrusive laws under the pretense that the original law was only ineffective because it "did not go far enough." Unfortunately, we are often guilty of not opposing what appear to be seemingly harmless solutions from the state. However, by not opposing the state solution, we are tacitly endorsing the notion that state action is appropriate to solve a particular problem. When the state action does not produce the desired result, it will be because the state "did not go far enough" with "common sense legislation" - thus inviting ever more intrusive action (the slippery slope). As an example, remember when you could not be pulled over for a seatbelt violation? Now one can be pulled over for the violation because the original law "did not go far enough" in furthering the goals of the state. I wonder if a police officer has ever used the seatbelt law as a pretext to conduct a stop that would otherwise be illegal - that in turn led to a search that would have otherwise been illegal? Think about it – what if your ex-wife or ex-husband is unhappy with you and they decide to call the police to explain you have guns and they might not be stored properly. Subsequently, the police come to your door and you admit that your 17 year old, who has extensive firearms training, but is a "child" under Indiana law, does have the combination to your gun safe because you want him to have access to the firearm in the event it is needed on your rural homestead. Are you about to be defending a felony charge under the proposed statute?

4. And finally, this proposed law is probably unconstitutional. In the landmark case of Heller v. DC , the US Supreme Court held, among other things, that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. The US Supreme Court also found that the DC trigger-lock requirement (as applied to self-defense) violated the Second Amendment. By the way - I have had the opportunity to meet Dick Heller who was the plaintiff in Heller v DC. We owe him a tremendous debt of gratitude for his courage in being a part of that case - along with those that litigated the case, Alan Gottlieb, founder of the Second Amendment Foundation and Alan Gura, attorney with Gura PLLC.

We expect movement on HB 1040 (Safe Storage Law) in the Indiana legislature this year. Please make your informed opinions known to your legislator and encourage others to do the same. 













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Should You Provide Aid to Your Attacker?

Question:  

An armed citizen justifiably shoots an assailant, then calls 9-1-1. From a legal defense viewpoint, what are the possible benefits and risks of treating the gunshot wound while waiting for the first responders?

Response:

You have just survived the moment you had hoped you would never experience. You had to use deadly force to defend yourself or another innocent person against a violent attack.

Should you provide first aid to the person that just attacked you? The decision is not one to be taken lightly as there are a number of practical and legal considerations. From a practical standpoint, it will probably not be prudent or safe to render aid, but in a scenario where the scene is secure, and you can safely administer first aid, what legal ramifications might there be? For more discussion regarding the practical considerations, check out Massad Ayoob's comments: https://www.youtube.com/watch?v=xRyhocMdJLM.

As is the case in most states, you have no legal duty to provide aid in Indiana (Ind. Code §34-30-12-1). However, some states do have an affirmative duty to provide aid. The duty may only require that you summon aid by calling 9-1-1. See, e.g., Minn. Stat. § 604A.01. This article has a breakdown of states that create an affirmative duty and states that do not: http://tmsnrt.rs/1Df3U7T.

If you decide it is safe and you are capable of rendering aid, most states have some type of "good Samaritan" law. These laws vary but generally provide civil immunity for someone who makes an error while rendering emergency medical care. That is, he or she cannot be held legally liable for damages in court. These statutes typically have three requirements:

- The aid must be given at the scene of the emergency,
- In good faith, and
- Gratuitously, without the expectation of monetary gain.

You will find those same three elements with slightly different wording in the Indiana "good Samaritan" statute which states:


"a person who comes upon the scene of an emergency or accident...or is summoned to the scene of an emergency or accident and, in good faith, gratuitously renders emergency care at the scene of the emergency or accident is immune from civil liability for any personal injury that results from: (1) any act or omission by the person in rendering the emergency care; or (2) any act or failure to act to provide or arrange for further medical treatment or care for the injured person; except for acts or omissions amounting to gross negligence or willful or wanton misconduct." (Ind. Code § 34-30-12-1) (emphasis added).

In regards to the exceptions noted in the statute, if the aid is rendered in a way that constitutes gross negligence or willful or wanton misconduct, then there will be no immunity. Gross negligence as it originally appeared, was very great negligence. It has been described as a failure to exercise even that care which a careless person would use. Most courts consider that "gross negligence" falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 211–12 (5th ed. 1984).

Indiana has no case law interpreting the application of the good Samaritan statute to a self-defense scenario. As a matter of fact, there is not much case law anywhere. However, while Indiana has little guidance on the good Samaritan statute in the self-defense context, our best guess is that as long as you satisfy the elements of the good Samaritan law in Indiana, the courts are likely to treat the person who defended oneself in self defense like they would treat an innocent bystander, making you immune from civil liability if you decide to render aid in a way that is not grossly negligent.

Nonetheless, there are some other considerations, particularly from a criminal law standpoint that one must consider. For instance, how will rendering aid look to a jury? Will it help your case or hurt your case? On one hand, some jurors will see rendering aid as the morally correct course of action. On the other hand, some jurors may see your attempt to render first aid as a sign of guilt. They might think you are trying to save the perpetrator because of some mistake you made when you decided to shoot.

Another important aspect to consider from a legal perspective is the preservation of evidence. A potential negative implication from rendering aid is that you will have directly participated in changing or eliminating evidence at the scene such as body position, wound condition, clothing damage or alteration, weapon location, or any myriad of other pieces of evidence that might be critical to the investigation of your self-defense act. Although this will likely occur when professional medical help arrives, at least your motivations will not be attacked as you will not be a direct participant in altering the evidence.

Whatever the situation, you need to be able to articulate why you did what you did to your defense team so that they can educate authorities and potentially a jury. Please remember that the laws will vary depending upon your jurisdiction (refer to http://tmsnrt.rs/1Df3U7T). The key is to visualize these scenarios ahead of time so that you will be more prepared to respond if you have to act in self-defense.


Mike Ooley & Alex Ooley
Boehl Stopher & Graves
400 Pearl Street, Suite 204, New Albany, IN 47150
812-948-5053
This email address is being protected from spambots. You need JavaScript enabled to view it. / This email address is being protected from spambots. You need JavaScript enabled to view it.

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NRA Complicit in Giving Up Gun Rights?

Rob Pincus wrote a good article about the current debate taking place after the massacre in Las Vegas. The NRA issued a statement giving up ground on bump-stocks in order to get something else in return. What I fear is that we will start the slippery-slope and get nothing in return. Rob Pincus put it nicely:

To open up a negotiation on restricting "bump stocks" or any other accessory or type of gun is to accept that some level of infringement is not only acceptable, but that gun owners will be complicit in its establishment. "Shall not be Infringed" is the starting point… the basis for all the arguments and the reason for discussions on gun rights. Give that up and we conceptually give up the Constitutional Basis for anything else we decide we actually want to keep or fight for.

This is not an easy issue, but I tend to agree with Rob Pincus on this one.

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A Problem of the Heart

This article is right. Most of the discussion after a tragic event is about merely fixing symptoms of a bigger underlying problem — a moral problem.

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Joint Committee Meeting on Constitutional Carry in Indiana

There was a joint committee meeting to discuss constitutional carry on August 22nd. If you weren't able to watch it, you can watch the recorded video on the Indiana General Assembly website. 

Guy Relford and others do a great job arguing for constitutional carry. You have to select the August 22nd meeting from the dropdown menu when you get to the Indiana General Assembly website. 

http://iga.in.gov/information/archives/2017/video/committee_judiciary_and_public_policy/

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Indiana Constitutional Carry

If you are not aware, the Indiana Joint Committee on Judiciary and Public Policy has begun a summer study on constitutional carry. What is "constitutional carry?" It is a return to governance in accord with the Indiana and US Constitutions.

Sec 32 of the Indiana Constitution provides "The people shall have a right to bear arms, for the defense of themselves and the State." If the legislation is passed in the Indiana general assembly, recognizing the plain meaning of our state constitution, the requirement for law-abiding adults to obtain a permit in order to lawfully carry would be eliminated. The current permitting system would be optional for those who desire to obtain a permit for the purposes of carry in other states that recognize an Indiana license to carry a handgun.

Please keep in mind that constitutional carry would not change the definition of who a proper person is in terms of who can legally possess a firearm. Constitutional carry would eliminate the requirement that law-abiding citizens ask permission from the state, have a background check, and pay a fee to exercise a constitutional right. Although I may be subject to confirmation bias, I watched the first hearing on August 22nd and would say that Representative Lucas and Guy Relford, amongst others, did an exceptional job advocating for constitutional carry. The hearing was approximately 5 hours long and presented a picture that was clear that constitutional carry legislation should be supported.

Look out for more information in the coming days regarding the issue. If you have an interest in attending or watching the next study hearing, you can find more information here:

http://iga.in.gov/…/…/committees/judiciary_and_public_policy

or here: https://www.nraila.org/…/indiana-summer-study-on-constituti…

Also, I would suggest following Representative Lucas and Attorney Guy Relford:

https://www.facebook.com/Jim-Lucas-for-State-Representativ…/

https://www.facebook.com/gunguyWIBC/ 

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Is There a Possibility for Civil Liability If You Miss Your Target in a Self-Defense Encounter?

The Armed Citizen's Legal Defense Network (ACLDN) just released their attorney question of the month. The question is, "Would the armed citizen likely face criminal charges for the collateral damage, and/or incur civil liability for that stray bullet?"

Our response is below, and you can also see it at the ACLDN's website along with responses from others.

Even with no criminal prosecution of a citizen for a self-defense shooting, that would not preclude a civil action against the citizen by a purportedly innocent bystander. Given the understandable focus on potential criminal prosecution and the citizen's loss of freedom, the issue of civil liability is sometimes overlooked. In a civil case, the party bringing the suit (the plaintiff) will focus on attempting to recover monetary damages from the citizen who used deadly force in self-defense. 

Although I understand some states have varying forms of self-defense immunity statutes that provide a defined process within the criminal procedure context that might entitle the citizen to immunity from criminal prosecution and from civil liability, Indiana has no such statute that would be characterized as a self-defense immunity statute. Indiana Code 35-41-3-2, entitled "Use of Force to Protect Person or Property," would apply. The Indiana statute is replete with the use of the term "reasonable force" and "what the person reasonably believes." The statute states specifically that "[n]o person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary." 

Hence, although there are few cases analyzing our statute from the perspective of civil liability, it would seem safe to conclude that for a plaintiff to prevail in a civil case, they would have to prove that the person acting in self-defense did not act reasonably. Unlike a criminal case requiring proof beyond a reasonable doubt, the plaintiff would simply have to prove, by a preponderance of evidence, that the armed citizen did not act reasonably. 

Case law interpreting the Indiana statute seems to contemplate that a person acting in self-defense, as described in the hypothetical, should not be placed in any sort of legal jeopardy, to include payment of civil damages, if the citizen was protecting himself or another innocent person by reasonable means from an immediate threat of death or grave bodily harm. Obviously, what is reasonable and what is not reasonable is subject to a great deal of interpretation, and the question would likely be answered by a jury. Ultimately, although the burden of proof would be on the plaintiff, it would be helpful for the citizen to be able to articulate why he acted as he did under the circumstances to assist a potential jury in concluding that his actions were reasonable and proportional to the threat presented to him and that he acted as a reasonably prudent person would act in a similar situation. In addition to a MAG 40 class taught by Massad Ayoob, an ACLDN membership and the DVDs provided to Network members furnish a wealth of educational information that may help one articulate why your actions were reasonable and prudent.  

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Introduction to Handgun Safety and Fundamentals at Orion Arms - Jeffersonville, IN

Learn how to safely handle a handgun and the fundamentals associated with the safe use and storage of a firearm. Seminar also includes information about different types of handguns, how they function and things to consider when making a purchase. (Registration is required).

Registration Fee - $10.00 (To be donated to The Second Amendment Foundation and the National Wild Turkey Federation) 

Stop by to talk to an Orion Arms associate or call 812-284-4867 to register. 

Available Dates: 

Saturday, August 19th 10:00 am – 11:30 am 

Saturday, September 9th 10:00 am – 11:30 am 

(There will be additional time allotted for questions following each seminar). 

Location: All seminars will take place at Orion Arms located at 3300 Industrial Parkway Jeffersonville, Indiana. Seminar will be conducted by certified firearms instructors Mike Ooley, attorney, Alex Ooley, Doris Ooley and/or Ryan Ooley of O2 Gun Group, LLC. You can find more information about the instructors and other courses offered by O2 Gun Group, LLC at www.o2gungroup.com. For additional questions and/or registration, stop by Orion Arms or call 812-284-4867.


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Should You Provide First Aid to Your Attacker?

 Check out our response to this question below or over at the Armed Citizens Legal Defense Network, along with responses from a few other folks:  https://armedcitizensnetwork.org/june-2017-attorney-question


You have just survived the moment you had hoped you would never experience. You had to use deadly force to defend yourself or another innocent person against a violent attack.

Should you provide first aid to the person that just attacked you? The decision is not one to be taken lightly as there are a number of practical and legal considerations. From a practical standpoint, it will probably not be prudent or safe to render aid, but in a scenario where the scene is secure, and you can safely administer first aid, what legal ramifications might there be? For more discussion regarding the practical considerations, check out Massad Ayoob's comments: https://www.youtube.com/watch?v=xRyhocMdJLM.

As is the case in most states, you have no legal duty to provide aid in Indiana (Ind. Code §34-30-12-1). However, some states do have an affirmative duty to provide aid. The duty may only require that you summon aid by calling 9-1-1. See, e.g., Minn. Stat. § 604A.01. This article has a breakdown of states that create an affirmative duty and states that do not: http://tmsnrt.rs/1Df3U7T.

If you decide it is safe and you are capable of rendering aid, most states have some type of "good Samaritan" law. These laws vary but generally provide civil immunity for someone who makes an error while rendering emergency medical care. That is, he or she cannot be held legally liable for damages in court. These statutes typically have three requirements:
- The aid must be given at the scene of the emergency,
- In good faith, and
- Gratuitously, without the expectation of monetary gain.

You will find those same three elements with slightly different wording in the Indiana "good Samaritan" statute which states:
"a person who comes upon the scene of an emergency or accident...or is summoned to the scene of an emergency or accident and, in good faith, gratuitously renders emergency care at the scene of the emergency or accident is immune from civil liability for any personal injury that results from: (1) any act or omission by the person in rendering the emergency care; or (2) any act or failure to act to provide or arrange for further medical treatment or care for the injured person; except for acts or omissions amounting to gross negligence or willful or wanton misconduct." (Ind. Code § 34-30-12-1) (emphasis added).

In regards to the exceptions noted in the statute, if the aid is rendered in a way that constitutes gross negligence or willful or wanton misconduct, then there will be no immunity. Gross negligence as it originally appeared, was very great negligence. It has been described as a failure to exercise even that care which a careless person would use. Most courts consider that "gross negligence" falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 211–12 (5th ed. 1984).

Indiana has no case law interpreting the application of the good Samaritan statute to a self-defense scenario. As a matter of fact, there is not much case law anywhere. However, while Indiana has little guidance on the good Samaritan statute in the self-defense context, our best guess is that as long as you satisfy the elements of the good Samaritan law in Indiana, the courts are likely to treat the person who defended oneself in self defense like they would treat an innocent bystander, making you immune from civil liability if you decide to render aid in a way that is not grossly negligent.

Nonetheless, there are some other considerations, particularly from a criminal law standpoint that one must consider. For instance, how will rendering aid look to a jury? Will it help your case or hurt your case? On one hand, some jurors will see rendering aid as the morally correct course of action. On the other hand, some jurors may see your attempt to render first aid as a sign of guilt. They might think you are trying to save the perpetrator because of some mistake you made when you decided to shoot.

Another important aspect to consider from a legal perspective is the preservation of evidence. A potential negative implication from rendering aid is that you will have directly participated in changing or eliminating evidence at the scene such as body position, wound condition, clothing damage or alteration, weapon location, or any myriad of other pieces of evidence that might be critical to the investigation of your self-defense act. Although this will likely occur when professional medical help arrives, at least your motivations will not be attacked as you will not be a direct participant in altering the evidence.

Whatever the situation, you need to be able to articulate why you did what you did to your defense team so that they can educate authorities and potentially a jury. Please remember that the laws will vary depending upon your jurisdiction (refer to http://tmsnrt.rs/1Df3U7T). The key is to visualize these scenarios ahead of time so that you will be more prepared to respond if you have to act in self defense.

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O2 Gun Group, LLC
​PO Box 70, Borden, IN 47106
Phone ​812.786.4188
info@o2gungroup.com

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