Trainers testifying?

[Sal Picante]

Curious about something we hear often and wondering if you have data: How often are trainers called in to testify on behalf of students?
For the purpose of discussion, let's assume this is civilian-CCW context, not LEO/MIL based and not just expert testimony...

[Gray222]

Good question...would like some kind of cases posted if any trainer has ever...

Also, since we are asking questions...how many trainers/instructors have ever said in the course of their classes that they will testify on what they are teaching?

I know D.B. and Wayne Dobbs both said they would.

[Chuck Haggard]

I've said it, and I have a few times, in my cases all were guys from my agency, haven't had a "civilian" shooter needing that service yet.

It's one of my cautions when talking about people picking who they train with, you should avoid an instructor who wouldn't be able to stand up in court due to past issues like documented fraud cases, etc.

[BJJ]

I imagine Tom Givens could shed some light on this issue.

[Lon]

I try to tell all my classes I'll come testify if they ever need me to. I also tell them I'll testify truthfully no matter what so depending on the circumstances you may not like what I have to say.

The only time I've had to testify was in a criminal case AGAINST my former student. He was charged with violating one of the stupid requirements in Ohio's law dealing with carrying in a vehicle. I had to testify to what I taught him regarding the law.

He was ultimately acquitted. If I had to guess the dash cam showed something the jury didn't like. Which doesn't surprise me considering the agency involved.

[Al T.]

Zimmerman's CWP instructor testified.... Food for thought. I do know there are several folks I will not train with due to their background.

[JohnO]

Massad Ayoob has done it a number of times. He testified for an acquaintance (friend's friend).

[Kyle Reese]

I've said it, and I have a few times, in my cases all were guys from my agency, haven't had a "civilian" shooter needing that service yet.

It's one of my cautions when talking about people picking who they train with, you should avoid an instructor who wouldn't be able to stand up in court due to past issues like documented fraud cases, etc.
Yup. Also, I'd avoid any trainers who issue threats via social media venues, or anything similar that could cast aspersions on their testimony.

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[John Hearne]

Not testifying but one of the ways that I responded to a very serious complaint (highest for us) was to submit a magazine article by Scottie Reitz that discussed the low ready position. I also showed that I had trained with Uncle Scottie. The magazine article was one of several training documents (including instructional manuals) that I submitted for inclusion in the investigation file to address what was and was not the "low ready."

[Mas]

Defense lawyers don't do that as often as they should. In a clean shooting case, the instructor appearing as a material witness to testify as to what they taught the defendant, is instrumental in establishing that (A) the defendant did what he or she was taught, and (B) that what he or she was taught was in the mainstream of common custom and practices/best practices for handling that particular type of life-threatening emergency.

Others in this thread have already offered good caveats. Another is: Make sure the instructor isn't giving out "kill a commie for mommie" BS. A smart opposing counsel will find all of that discoverable in court.

[jlw]

I have declined to train with certain instructors because I don't want their videos played in court to my detriment.

So far, I have only had one student involved in an actual shooting, and it was an on duty shooting. I was called to the stand in a preliminary hearing in that case, but it was in relation to my investigation of the incident and not training related.

[Erick Gelhaus]

In a local one that got a wee bit blown out of proportion, none of the instructors the shooters had taken training from were even interviewed by the plaintiffs - never mind deposed and subpeoned. One of that organization's use of force program supervisors was identified as the "Person Most Knowledgable" on the entity's training program and policies. He was disposed but it was pretty minimal.

As has been mentioned by many here, from a couple different views, it would behove a student to consider how an instructor could play in court. Seemingly innocuous teaching points and task specific comments can be over-exagerated by unscrupulous media and opposing counsel.

[Dagga Boy]

When your training curriculum is a major part of a Federal Civil Rights lawsuit......sort of changes how you think and why many instructors who have been under that level of scrutiny have a bit of a different take on many trends in the training industry. When in that situation I was thankful I based my program on the methodology of a unit that had been under this type of scrutiny in the past. Golden moments in life is when the Chief's special investigator calls you into the office and says that the plaintiff's are taking a totally different approach because your training program did not leave any openings for them and he appreciated my ability to defend the methodology.

I have a strong belief that we often focus way too much on the "shooting". That is perfect if your focus is "shooting". If your focus is on use of force with a firearm and you not focusing on Pre-shooting, shooting, and post shooting, then you may be opening up for a bunch of issues. I find nothing particularly magical about how to shoot and it is quite a simple concept (Vickers quote of shooting a pistol is simple, but not easy is on the money). How you handle dynamic and complex force decisions and functioning under great stress in a crisis is where a bunch of potential for problems lies.

[GJM]

So does this mean that every instructor you have taken a class with is fair game for the other side, and can be used against you?

[Erick Gelhaus]

So does this mean that every instructor you have taken a class with is fair game for the other side, and can be used against you?

Depending on how opposing counsel - prosecution or plaintiff - chooses to handle it, a definite maybe is the answer.

It is nice to an attorney agreeing with one concept - the staff attorney at the Nat'l Tactical Officers Association is advocating for a greater emphasis on understanding, teaching case law considerations on the use of force side of things. Not just Tenn. v. Garner and Graham v. Connor but also Scott v. Harris, Plumhoff v. Rickard, and Mullenix v. Luna. As Dagga Boy mentions too much emphasis on trigger manipulation, there probably has not been enough on the legal parameters. It's my understanding that being able to educate counsel on what cases were actually about and what the rulings said can be a good thing.

[John Hearne]

So does this mean that every instructor you have taken a class with is fair game for the other side, and can be used against you?

“If you have the law, argue the law. If you have the facts, argue the facts. If you have neither the law nor the facts, muddy the waters."

[Lester Polfus]

So does this mean that every instructor you have taken a class with is fair game for the other side, and can be used against you?

It depends. I once took a class with a Big Name, without doing my due dilligance and came to regret it as that particular individual is now #1 on my "List of Firearms Trainers Most Likely To Die In An Armed Standoff With The Cops."

I asked to be removed from said trainers email list, and expressed my concerns about some inflamatory things the trainer said.

For the last 11 years I have retained both electronic and paper copies of the expletive laden response.

If I have a Really Bad Day my plan is to fully disclose my entire training history to my counsel, including the email exchange, which I think demonstrates that I am a reasonable , responsible person who unfortunately wasted several hundred bucks and a day on a real turd.

[Erick Gelhaus]

“If you have the law, argue the law. If you have the facts, argue the facts. If you have neither the law nor the facts, muddy the waters."

Truth!

[BehindBlueI's]

So does this mean that every instructor you have taken a class with is fair game for the other side, and can be used against you?

Everything is fair game. If it comes up or not is a different matter. In my deposition for my first 'wrongful death' lawsuit, I was asked about things as mundane as my hobbies, veteran status, etc. It depends on if the attorney knows what questions to ask and what they are digging for.


“If you have the law, argue the law. If you have the facts, argue the facts. If you have neither the law nor the facts, muddy the waters."

Yup. As I've heard it, "If the law is on your side, pound the law. If the facts are on your side, pound the facts. If neither are on your side, pound the table." It becomes about showmanship, creating a narrative, and then selling that narrative.

[Dagga Boy]

“If you have the law, argue the law. If you have the facts, argue the facts. If you have neither the law nor the facts, muddy the waters."

Ditto here as well from what I have seen. In the most significant case I was involved in, there was no room to attack the actual shooting and killing of the suspect as it was near perfect in regards to how my people were trained and their expected response when threatened with a firearm once it was clear what the plaintiff side thought was excessive was in fact right on the money. They made much better headway attacking supervisor decision making, not following policy in those decisions, and other issues totally un related to the actual shooting part or even on the officers who fired in self defense.

[Ed L]

So does this mean that every instructor you have taken a class with is fair game for the other side, and can be used against you?

In that case I may be in trouble.

At the time you take a class you may not know who to avoid, or at that time that person may not have yet gone way off the reservation.

How am I supposed to get absolution for taking a class with someone who later turned into an embarrassment to firearms training?

I prefer to look at it like sleeping with someone who gave you a sexually transmitted disease--get the infection treated and don't sleep with her again.

[GJM]

Bunch of responses here sound LE specific.

[jlw]

So does this mean that every instructor you have taken a class with is fair game for the other side, and can be used against you?


Bunch of responses here sound LE specific.

In the case of a private citizen, your training resume may or may not come up. It's going to depend on the issues raised at trial, but if you raise your training in defense, you are putting the issue into play.

The one big difference is that for a private citizen, how is anyone going to know who you have trained with unless you make it known?

For a cop, at least in my state, our training records and personnel files are open record. Anyone can get a copy of them. However, if I were take a class on my own time and not submit it for POST credit, it wouldn't appear in my official training records. Then it is going to come down to the wording of questions and subpoenas.

[John Hearne]

Bunch of responses here sound LE specific.

This is going to be an issue more on the civil side than the criminal side. Most of the time the standards of proof mean that it is rarely close and there isn't much need for an expert to testify. Plus, I would offer without evidence, training tends to reduce the odds of you being in a shoot so questionable than an expert would matter.

Whether the force was reasonable/lawful is a different issue from whether an attorney of questionable ethics can try to recover a large civil settlement. Remember, the standards of proof are different and if you have any assets (including home owners insurance) people will be tempted to try to acquire it.

It's probably a worst case scenario but the Larry Hickey case shows how bad it can be. To quote the ACLDN article:

"Additional expenditures covered travel expenses of expert witnesses for the trial, including Massad Ayoob, plus instructors under whom Hickey had trained"
"Because the Public Defender’s office so rarely deals with self-defense cases, Hickey became immediately immersed in forwarding information from all his prior training"
"From day one we wanted to avoid trial, so we disclosed all of Larry’s training, that he’s an instructor who has taught all these people, he has been training all these years, and
he knows when it is proper and when it is not. We disclosed all that to the prosecutor,”
"They learned early on that they would have to take care to explain how Hickey’s training led to tactical decisions he made during the attack"

"Alarmingly, out of context advice from instructors to “always cheat; always win,” and the axiom that one should treat every one else in a polite manner while simultaneously having a plan to kill them painted an inaccurate picture about Hickey’s outlook on life. Nicolini harvested these quotes from the training notes and handouts, and made much hay with them, especially during his closing arguments in which he described Hickey in highly inflammatory terms."

"the whole concept of taking training, carrying a gun 24/7. He tried to paint the picture that anybody who would do that is really out of whack with society. There was a lot of discussion
in his closing about the type of training that Larry took. Nicolini called Larry a liar; he called him a wannabe cop, a wannabe soldier."

Article link: https://armedcitizensnetwork.org/images/stories/Hickey_Booklet.pdf

[BehindBlueI's]

Bunch of responses here sound LE specific.

How so? LEOs gets sued more because they shoot more people and because the gov't budgets are fatter targets so, proportionately, we are more likely to have the experience of having been sued. That said, if you get media notoriety or you've got significant assets, you're kidding yourself if you think your background won't get put under a microscope.


The one big difference is that for a private citizen, how is anyone going to know who you have trained with unless you make it known?


Same way we all know Paula Deen used the "n-word". Someone asked her about it in a deposition.

"What training have you attended?" leaves you with the choice of disclosing it or committing perjury.

[GardoneVT]

I realize this may be hard to find ,but make sure your potential instructor doesn't publicly support radical right wing groups or openly racist organizations .

I personally don't care how prejudiced my instructor is or is not -I've better things to worry about - but an instructor with Facebook comments or editorials supporting racist principles is a legal liability in The Age of InstaBLM. If the court doesn't fry your rear end the media will .

[Poconnor]

It always cuts both ways. If you have no or minimal training you were in over your head and acted poorly. If you have a large training resume you are a gunfighter looking for a fight. I had a fellow officer say that about me once. His hobby was running and he was by far the worst shot on our department despite numerous offers for free coaching and free ammo from the dept. he didn't like it when I told him using that logic I guess he would run away fast when confronted by an armed robber. They buried that guy in a school as an sro. He retired when told he had to go back to the road.

[Glenn E. Meyer]

The idea that it cuts both ways brings up the point that you need (as Mas) says a competent attorney who understands the issues. From all the research, I read - the trial hinges on who tells the best coherent story of one's actions. This starts at the beginning of the trial. Of course, minimizing risk as mentioned by not having extreme trainer statements like: Have plan to kill everyone or the idiot slogans and logos on your gun might help. You can't assume a gun owner is always sympathetic to you. A hunter type or someone with some real training might think you are a wannabee killer if you do the extreme posturing.

So don't post - What is the most lethal 380 ammo I can buy?

I saw this recently.

To the point originally, most of the major trainers I've been with have said they would step up if they thought you were righteous. I've avoided the crazies.

[jlw]

I should add that in GA, peace officer certification is tied to fulfilling the annual training requirements. I know of two officer involved shootings in GA where the officers had not completed the annual requirements and thus technically should have had their certifications suspended. In fact, in one of those instances, the entire department had failed fulfill one of the requirements and was effectively shut down.

The system has since been automated so that a suspension notice is generated by the computer system rather than a clerk catching it.

It is a standard investigative practice to review an officer's training records due to the above.

[jlw]

Same way we all know Paula Deen used the "n-word". Someone asked her about it in a deposition.

"What training have you attended?" leaves you with the choice of disclosing it or committing perjury.

In a civil case, yes, if they ask the question, but in a criminal case there won't be depositions. They could ask the question of a witness while on the stand, but if the defendant doesn't take the stand, then they won't have that opportunity.

[Dagga Boy]

My take is in line with what we found at my old place and why we were so good at doing OIS investigations. We found that LE very rarely sees a criminal prosecution on a shooting. Lots of review at times, but it is super rare to have a criminal prosecution. By the same token, it is rare that they are not sued Civilly. Two issues, deep pockets is one. We would write a check up to $70,000 to just about anyone, after that you got a war to the end, and likely counter sued so if the plaintiff lost, they get to pick up both sides court fees. We had officers getting $1 settlements that translated to hundreds of thousands to plaintiff counsel. We stopped getting harassment suits that way. By the same token, citizens only are held to criminal statues in most cases and do not have "policy violations" and procedural problems. LE/ Government attorneys tend to write stupid policy that gets them sued and gets damages awarded based on policy and procedure issues and not on whether the shooting was legally clean or not. Citizens do not face this.

Citizens tend to end up in criminal court and the criminal system as heir main issue. Most citizens have less "reward" for a law suit on the civil side. Judgements are one thing, getting paid is another. Government agencies can pay.....many Joe Average guy can't.

Where I am going is that LE agencies are more likely to see Civil court and Federal court. Citizens are more likely to see a criminal court. Where the opposing attorney's go as far as what they see as weakness is going to be the factor. On the LE side, training and policies are huge in what to attack. On the criminal side, Mindset and intent. Either way, where your training is coming from "can" be a factor. Am I glad that in every case I have worked in the past what I train, how I deliver it, and my background and history have always been assets to those I have trained rather than a liability or something to attack. There are trainers who if I was working a case for the opposing counsel providing advice, I would recommend going down that road if it was a liability for my opponent. Court is War....and both sides will try to exploit weaknesses, realmor perceived. Part of what we are doing to prepare for war is to properly prepare our defenses so the other side cannot exploit them....whether on the street or in a courtroom.

[Totem Polar]

Not much to add except that the guys at both of my local training range/facilities will testify on behalf of any student, and have--both criminally, and civilly. Incredibly, one of the most expensive trials one guy was involved in centered around the shooting of a dog; the expenses to defend that one were reportedly way up in 6 figures. Over a dog. Civil suits are evidently nothing to sneeze at, especially if you know you're in the right and are determined to see it through.

And, of course, Mas has done a good amount of this over the years. I'm aware of at least three trials in my area where he really helped keep the shooter out of jail--including one highly publicized fuck up defense (let's just say that it was reasonable to question the shoot) that was an amazing piece of testimony on Mas' part. He's credited locally with getting the guy off.

I've taken class from at least those 3 gun guys who have served as expert witnesses in civvy cases, and all (including Mas) have stated that they'd testify for students on a good shoot. FWIW.

[BehindBlueI's]

In a civil case, yes, if they ask the question, but in a criminal case there won't be depositions. They could ask the question of a witness while on the stand, but if the defendant doesn't take the stand, then they won't have that opportunity.

I'm sure there are exceptions in both ways, but if you're going for a jury trial and claiming self defense I find it likely you'll take the stand. If you go to grand jury to decide if you go to trial, they can ask some stupid questions, too. Not mine, but we had an officer asked why he didn't shoot the gun out of the bad guys hand. The dead guy in question had already shot a cop.

Random BS coming up is more of an issue in the civil side, I agree, but don't think it can't come up in a criminal trial as well. Particularly if you're the next Zimmerman. Remember before he was a circus act, he was just a self defense shoot that had been decided justified until the media got involved.

[Totem Polar]

Remember before he was a circus act, he was just a self defense shoot that had been decided justified until the media got involved.

Word to the wise.

[Erick Gelhaus]

I realize this may be hard to find ,but make sure your potential instructor doesn't publicly support radical right wing groups or openly racist organizations .

I personally don't care how prejudiced my instructor is or is not -I've better things to worry about - but an instructor with Facebook comments or editorials supporting racist principles is a legal liability in The Age of InstaBLM. If the court doesn't fry your rear end the media will .

I'm trying to find a way to best phrase this ... Here goes ... In this day & age, it would be great if everyone could / would follow that advice. One issue with it though is that the SJWs, opposing counsel, and the media can make whatever claims they want in that light. There's been a case where the one of the oldest, if not the oldest, shooting / fighting schools was referred to as "that neo-nazi gun camp" by opposing counsel; never mind what was said about its founder.

All the more reason to work hard at finding competent attorneys and spokespeople.