In this discussion between Attorney Don West and myself we talk about compelling your attacker to work for the fight, not getting into fights you don’t need to be getting into, the unavoidable risks of death and imprisonment you face the moment you’re engaged in a physical confrontation, the tremendous costs of a legal defense, factors that might motivate a prosecutor to take you trial above and beyond the legal merits of your case, and much more!
Enjoy the show!
NOTE: There is a transcript of this video available below my signature, for those of you who prefer to read rather than view.
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And that is it for me today. As always, folks, as I sign off, I urge all of you to keep in mind:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program
I’m Don West, National Trial Counsel for CCW Safe, and I’m here with Andrew Branca lawofselfdefense.com, a nationally recognized expert in use-of-force law and law of self-defense.
You know, Andrew, we know that you can avoid being convicted, if you don’t get prosecuted. You can avoid being prosecuted, if you don’t get arrested. And you can avoid getting arrested, if you don’t kill anybody, even if it would otherwise be legal.
So I’ve heard you talk about making the other guy work hard at—you said it better than I do, when you talk about making the other person work hard before you use force and self-defense? What are you talking about?
Sure. So, one of the things it’s really important for people to keep in mind is that the moment you get engaged in that confrontation, you’ve just incurred two risks you were not incurring a moment before. And those are a greater than zero risk of losing that physical fight, and a greater than zero risk of losing the legal fight.
We learn self-defense, we get a gun, we get a concealed carry permit, we carry pepper spray, we do all those things, to reduce the risk of losing the physical fight to as close to zero as we can possibly make it, but the risk is never zero. You could always lose that physical fight, it just might not be your day.
Well, the same is true for the legal fight. You can take my classes, read my books, do all kinds of stuff, to reduce your risk of losing the legal fight as close to zero as possible, but it’s never actually zero. It’s always a greater than zero risk that you could be convicted for that use of force.
What I urge people to do is think to themselves, if I’ve used force, if I’ve taken another human life, I’m charged with murder. go to trial, I get convicted and sentenced to 20 years in prison, under what circumstances would you be able to look in the mirror on the last day of that 20th year sentence and say, “You know what, it was the right thing to do, pressing that trigger was the right thing to do. And if I had to do it again, I would do it again.”
Because there are circumstances in which it’s worth that cost, right? It’s better to be alive in prison than dead. If your wife and your children were at risk of dying or being maimed, that would be worth it.
But the truth is, if you think about it, I think you’ll realize this, a very short list of things that are worth going to jail for much of the rest of your life for. And unless the circumstances fit one of that very short list of items, it’s probably not a circumstance in which you want to risk having to shoot another person.
To put it another way, I urge people to choose their tactics make their decisions in such a way that if they’re ever compelled to use deadly force, deadly defensive force against another person, they made that other person earn that, they made that other person work for that, they did everything in their power for that not to happen. And that other person made it impossible [to avoid], made it their only last resort to have to use that deadly defensive force.
Unless you’ve done that, I think it would be very difficult to spend 20 years in jail and feel like that was the reasonable and appropriate place to be.
So the idea of avoiding any conflict that you can avoid, makes the risk zero at that point.
Yes, the only way for the risk to be zero is to not be in the fight.
Let’s talk a little bit about some of the things you can do as a practical matter, I know [this] kind of blends into tactics, but what are some of the things that you can do if you are being approached by someone and you’re a little worried, they’re doing something scary.
We’ve talked about that before in the hypothetical parking lot situation, you’re there at your car, maybe fumbling with stuff, and all of a sudden you see somebody just kind of off in the distance headed your direction and you’re concerned, you don’t see something that makes you genuinely fearful, but you’re worried about what’s about to unfold?
Well, there’s lots of things you can do, but they’re all geared again towards making that other person work for if there’s going to be a fight.
So for example, everyone’s familiar with the phrase stand-your-ground. Some states are stand-your-ground states, some states impose a legal duty to retreat before you can use force in self-defense. In fact, only a small minority only about 13 states impose a legal duty to retreat before you can use force in self-defense.
But folks, if you can safely retreat from a fight, rather than get in that fight, and you don’t do that, you’re a fool. And I don’t care if you’re in a duty-to-retreat state or a stand-your-ground state. It’s makes no difference.
Your job is to make it hard for that other person to compel you to use force against them. If you can, consistent with safety—again, your top priority is winning the physical fight, so I’m not saying to increase your jeopardy—but if you can, consistent with safety for yourself and other people you have a duty to protect, avoid that fight by retreating, please take advantage of that opportunity.
If you’re facing a prospective threat in a parking lot, and you can take two steps consistent with safety and place a vehicle between you and that scary character, please do that. It’s effortless. It’s completely safe, it cost you nothing.
And it’s making that other person work hard to compel you to have to use force against them. That’s the circumstance you want to put yourself in.
So not only are you in that context, stripping away the ambiguity that we talked about a other occasions, you’re making the person go through all of those numerous steps to get at you, basically at which point, if they insist on you responding, then you’re prepared to do that.
Let’s talk a little bit about avoidance. In that sense, I’m the one who came up with this for myself, because it helps me explain certain factual scenarios and legal analysis that this notion of the avoidance mindset, or the stand-your-ground mindset, you’ve touched on it in a way.
The “stand-your-ground mindset” in a stand-your-ground state, essentially, would be that I have the legal right, not to retreat, to stand my ground and confront any force that’s used in whatever legal way I can. I have no obligation to retreat, so I won’t, right.
As opposed to the “avoidance mindset” which may be legally required in those 13 states.
But at the same time, what you’re saying, I take it, it makes the most sense ever, if there’s any way to avoid that lethal confrontation, you take advantage of that, because then we’re not injured and you’re not arrested, right
And the way to do it consistent with your own safety and the safety of those you have a duty to protect. I mean, the stand-your-ground mindset is a mindset that’s effectively saying, “I’m willing to get into physical confrontations when I don’t need to.”
I mean, I suppose you may be free to do that under the law, but it’s very foolish life strategy, you’re exposing yourself to unnecessarily violence to a greater than zero risk of dying in a fight to a greater than zero risk of ending up arrested, prosecuted, convicted, sentenced to decades in prison, when you don’t have to.
That simply makes no sense, if you can as effectively secure your safety and the safety of those who have a duty to protect by not getting in the fight in the first place.
You know, you’ve talked about it, some of your written materials, the 10 common mistakes that people make in understanding self-defense law, and one of them is ego. You know, you say “Don’t let your ego get involved.” We just talk about that a little bit.
Yes, well, egos are expensive, folks. If ego gets you into a confrontation, use-of-force, and you end up criminally charged, Don and I both know, we’ve both worked on a lot of different homicide cases where someone’s been killed and the killer is now claiming self-defense.
Those people are looking at spending easily over $100,000 before they ever get to trial, folks, pre-trial expense, and a multiple of that when they get to trial. Even if they’re acquitted, they’re still out all that money and there’s no guarantee you’ll be acquitted.
I tell the people on whose cases I consult I don’t care how innocent you may be in reality. If we bring you to trial and put you in front of a jury, there’s a greater than zero chance that you will be convicted by that jury and spend much of the rest of your life prison.
Why, if you don’t have that? Don’t let your ego put you in a cage for much of the rest of your life.
Remember the core mission folks, the core mission is to survive the fight. That’s it. That’s the core mission. And if that means that the other person gets to be mean to you, or say nasty words, and you don’t get to punish them, somehow, folks, that’s fine. That’s not what matters. What matters is the core mission, which is securing your safety and the safety of those you have a duty to protect.
I think a lot of people have a naiveté or almost an ignorance of how the criminal justice system actually works. The roles that the prosecutor plays, that they have an ego involved, they want to win the case, they want to advance within the office, maybe they want to run for political office one day, and if they don’t get you in their sights, then they can’t do any of that on your back.
One of the most common things I hear from people who are being prosecuted is that they can’t believe they’re getting prosecuted for self-defense. They can’t believe it! Because they know in their head, they’re the good guy.
But of course, nobody else who’s evaluating their conduct, after the fact, can know that because they weren’t there. They’re not familiar with this person. All they can do is look at the evidence and make what they think are reasonable inferences from the evidence.
And unfortunately, sometimes these decision makers may be making unreasonable inferences from the evidence. And maybe they have some other internal motivation for pursuing this case, as you say, aspirations for higher political office.
You know, and some, some district attorneys, state attorney’s oOffice, the individual prosecutor assigned to the case has complete control over it. In other offices, they have virtually no control. They take their marching orders from someone up the line.
It may in fact be the elected official who’s facing an election in a few months and wants to get in the paper. Now, I don’t assume that they’re being disingenuous or that they’re corrupt, but at the same time, we know that if you get your name in the paper for prosecuting somebody that you’re going to get a few votes along the way.
Sure. And the key message for all of the lawful defenders out there is to keep in mind that, again, once you’ve gone hands on in that confrontation, all this decision making about how the rest of your life is going to look is outside of your hands. Someone else is making those decisions. That prosecutor is making those decisions about whether you’re going to be compelled to spend much of the wealth you’ve acquired over a lifetime of hard work in a legal defense.
All your money, I mean, that’s what it kind of boils down to, it almost doesn’t matter how much money you have. No, it’s going to cost you all of the money. What a lot of people don’t understand is it can cost as much in experts and investigation and trial preparation as it does for legal fees. The lawyer fees themselves are just a drop in the bucket.
And as you touched upon so critically important that the individual absolutely loses control over their life, once they’re in the criminal justice system. And for someone to say, Well, if I get convicted, I’ll just appeal. I’ll take it all the way to the Supreme Court. We know that can’t happen from a jurisdictional or procedural standpoint. And even if it did, you’re going to be spending that four to six years in prison waiting for it to happen.
Another very common misconception is that so many people seem to think that the appeal is like a do-over of the trial, and they couldn’t be more the opposite. When you go to trial, you’re presumed innocent until you’re proven guilty beyond a reasonable doubt.
If you’re convicted, you’ve been proven guilty beyond a reasonable doubt. All the presumptions on appeal are against you. They’re no longer in your favor. It’s a much higher, uphill battle to win an appeal than it was to try to win a trial, and you’ve already lost a trial. Going to appeal is not a winning strategy. It’s what you do as a desperate last resort.
Terrific advice as always, Andrew, thank you.
I encourage everyone to take a look at lawofselfdefense.com. Take a look at the material that Andrew offers for free. Buy his book, buy the videos, participate in a live class.
We are so happy to have you as a partner. Thank you again.
Thanks for having me.
We’ll talk again soon, I hope. Thanks, everybody. I’m Don West national trial counsel for CCW safe