We’ve written before about the excellent thing that is Andrew Branca’s book, The Law Of Self Defense. We recommend it to everybody. He also does live seminars on particular states’ or groups of states’ laws. We recently attended such an event as a guest of Andrew.
Let us make perfectly clear what this means: we attended without paying his usual fee, so we’ll decline, if ever offered, the excellent perk that goes with attending a seminar: an hour’s free legal consultation, should you ever be involved in a self-defense incident.
An hour? we can hear some of you skeptic’s thinking aloud out there. What earthly good is an hour of a lawyer’s time? It turns out, for an individual facing possible indictment or charges in the aftermath of a self-defense shooting, a very real possibility these days, what he or she needs is a criminal defense attorney admitted to the bar and familiar with the courts locally, and what that attorney needs is someone like Andrew as a backstop — someone who can tell them what elements of self-defense need to be present in their fact pattern to win the case.
Of course, most of us are not attorneys (although there were an interesting set of them taking advantage of the Continuing Legal Education credits the seminar provides). Most of the attendees were shooters and everyday defensive carriers.
For us, the take-away from the seminar is what to do to establish a fact pattern that can prevent our indictment, get the case tossed in the motions phase, or, if all else fails, deliver a win in court.
A win in court sure beats a loss, but Andrew emphasizes that it isn’t an absolute win. “The process is the punishment,” and even a “victorious” defendant emerges financially ruined and reputationally tattered. It gets considerably worse if the media decides to play buzkashi with your head. George Zimmerman’s legal bills are between him and his lawyers, but they’re estimated at over $1 million. And even if George can ever earn his way out from under that debt (like Frankie Valli in Jersey Boys?) he still has a large number of people who, inflamed by false and careless media reporting, think he got away with murder. One of them took a shot at him this year. (Imagine the restraint it took not to shoot back). And the guy that shot at him was released on bail, where he’s since been busted again for another violent crime.
The system seems sometimes to be spring-loaded against the guy who’s a first-time participant, and full of breaks for the frequent flyers. Andrew doesn’t defend this system, but he does tell you what it is, and how to survive it.
Can’t You Just Teach Yourself?
No, you can’t. Why not? Because, where are you going to learn the law? Trying to reason from the Constitution would be fine if that’s what courts actually did, but that’s not what they do. They don’t even work from the state’s own self-defense law, alone. We have said before that for a layman (non-lawyer), trying to read statutes is a chump’s game. What “the law” is in a courtroom is a farrago of statute, court decisions, and jury instructions from previous cases. It gets even worse. Some court decisions are precedential and subsequent courts rely upon them, others are unpublished and you can’t rely on them, to name just one tiny example.
What happens when you use a Self Defense, er, defense
The DA has measured, and this fits you.
The first thing is that some very big elements of the crime — and yes, people who defend themselves are often charged with crimes up to and including murder, just ask George — are proven for the prosecution by your self-defense argument.
Because you’re not saying I didn’t do it. You’re admitting that you did it. But you’re saying I had a justifiable reason for committing this crime, one that makes it not a crime. In this way, a self-defense based defense is very different from an alibi defense, for example — the alibi supports the idea that I didn’t do it.
George Z, for instance, never denied he was right there, and never denied shooting Trayvon Martin. His self defense plea simplified the task for the prosecution — all they had to do is disprove one of the elements of self-defense, because he’d already admitted almost everything else they’d need to convict him of murder. He had admitted:
- He was there
- He fired his gun
- He intended to shoot Trayvon
…and, of course, no one disupted that:
4. Trayvon died.
In a case like Zimmerman’s, your self-defense plea may be a matter of life or death. (Since prosecutors had taken the death penalty off the table, for George it was a matter of life or life in prison, a fate worse than death for a lot of free men).
Where’s the Burden of Proof? What are the Elements of Self-Defense?
First, who has to prove that your actions were self-defense? This varies from state to state, but in general, you do.
And the elements you have to prove are:
- Innocence: you have to be defending, not attacking.
- Imminence: you have to fear death or grievous injury right now, not sometime next week.
- Proportionality: if someone flips you the bird and you do a double mag-dump in him, you’re going to have issues with the justice system.
- Avoidance: Did you try to avoid the violence or did you welcome it?
- Reasonableness: What would that mythical “reasonable man” think about your use of force?
Each of these items is handled a little bit differently in every state’s law. And many of them are fairly subjective, but they’re not subjective based on what you think or what you thought at the time, but on what our ideal reasonable man would think.
In the seminar, Andrew not only introduces these concepts but illustrates them with cases familiar from the national news, and (perhaps more to the point) unfamiliar, but illustrating the case law in the specific states. (For this iteration, it was MA and NH).
Why Do Self-Defense Pleas Fail?
The most common reason is this: attorneys can only work with the facts they have, and often they get a crappy fact pattern. If any one of the five elements of a self-defense plea fails, the whole plea fails: the chair must stand on all five legs or it falls.
Some of these distinctions can be extremely subtle. The difference between innocence and failed innocence, for example, can be a simple as an attacker’s desisting in the attack and attempting to withdraw. If you pursue, you’re the new attacker. If you provoke the attack, you’re not innocent. If you lay in ambush to drygulch somebody, your case for avoidance crumbles, etc. The most common error in proportionality is to answer non-deadly force with deadly force.
On the subject of Avoidance, Andrew showed us a favorite prosecutor’s trick: to show an illustration of the area where the confrontation took place, with every possible avenue of escape illustrated with a red arrow. “Even if only one of these was not blocked,” the DA will intone, “you must convict” the defendant. It can be “terribly effective,” Andrew warns, with juries. But there’s legal jiu-jitsu to use here, too: you only have to demonstrate that the way out, while not blocked, was not safe. If the assailant has a projectile weapon like a gun, can you turn your back on him? If he’s knife-armed and faster than you?
The Things People Think Are Legal, But…
One of the biggest things that lands well-meaning people in the legal stewpot is bad information. The only source of good information about self-defense law is a lawyer who’s trained to interpret the documents where the law really resides: statutes, court decisions, and jury instructions. Have you heard any of this advice:
- “If you shoot him outside, drag him back in the house.”
- “Shoot, shovel, and shut up.”
- “If he didn’t have a gun, put a kitchen knife in his hand before you call the cops.”
- “Don’t call the cops.”
Along with these there are things that might be legal, but are stupid. One example is clamming up completely: Andrew makes a persuasive case for a “say little” approach to the police instead of the well-known “say nothing,” which can make the police start to treat you as a suspect. Remember, cops spend 90% of their time relating to people in a binary world: victim, or suspect? You want them to think you at least might be the victim here, or you’re not going to like the bin they put you in.
The Advantage of Minding Your Own Business vs. Some Bad Ideas
More than one guy has landed in the legal soup when he made a snap decision that some damsel in distress needed rescuing. Sometimes the case wasn’t what it looked like; sometimes it was, but beaten-up Juliet gets back with beater Romeo and it’s their word against yours, Future Inmate Number.
There’s a fine point of legal doctrine this hinges on: is your state a Reasonable Perception or an Alter Ego state? The difference can unlock the door to a jail cell — or lock it, if you’re wrong. Do you even know what your state is? We didn’t.
And while getting into someone else’s domestic incident is always a bad idea, there’s a handful of bad ideas beyond that.
You are not a cop (well, unless you’re a cop, but even cops ought to know self-defense law — they’re becoming a favorite snack of prosecutors this year, after all). A cop has to go into a deadly area to arrest somebody; you don’t. A cop has to intervene in strangers’ fights; you don’t. A cop knows he can botch a use of force galactically, and fall back on qualified immunity; you don’t.
It’s almost never legal to use deadly force to protect property. People who do that are at the mercy of the degree to which their jurisdiction’s prosecutors are sympathetic to gun owners. Bear in mind, prosecutors came up through colleges and law schools, where gun owners are about as popular as the Herpes Simplex Virus.
Our Biggest Take-Aways
Our biggest take-aways from a day spent in a gun club classroom getting the living Jesus scared out of us were two:
- Everybody should take this seminar; and,
- We’re going to continue to use our superior judgment so as not to have to display our superior pistolcraft.
The biggest thing preventing this seminar from appearing in your jurisdiction covering your self-defense law is that Andrew is just one guy, and he’s booked every weekend day until sometime in 2016 (and he’s got a teenager and a newborn, simultaneously… )
But the good news is that Andrew has plans to train a cadre of experienced trainers to conduct LOSD training, as an adjunct to the defensive skills training they already deliver. That should make this vital self-defense training more widely available to the defensively-oriented public.
This seminar is highly recommended. If you carry your firearm without this knowledge, you are at risk of a wide range of bad outcomes, including arrest, incarceration and imprisonment.
This very weekend there’s a seminar in Lawrenceville, Georgia, covering the SD law of the great state of Georgia. Link: http://lawofselfdefense.com/event/losd-seminar-atlanta-ga/ It won’t be back in GA for a year unless Andrew fires up a local instructor.
For all upcoming seminars: http://lawofselfdefense.com/seminars/