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, Law of Self Defense expert. Andrew, thank you. Tell the viewers if you would, how they can find you online and a little bit about yourself?
Sure. I’m Attorney Andrew Branca, I specialize exclusively in use-of-force law, and I have for the last 25 years. My law practice, Law of Self Defense LLC, our slogan is: you carry a gun so you’re hard to kill, know the law so you’re hard to convict. By which we mean not know legal tricks, but know the actual law of self defense so that your use of force and self defense is compliant with the law.
Your website is lawofselfdefense.com. And if someone goes there and looks around what kind of materials will they find that you’ve authored and published,
We always encourage people to first take advantage of the stuff we offer for free which is mostly our blog posts, videos, podcast. We also have books, we have DVD courses, online courses, live online courses, sometimes live classes around the country. So there’s a lot for people to take a look at their convenience.
How does a live online course work?
It’s just a webinar, so people can log in from their computer. It’s the same course we teach live all over the country a full-day course, except we do it over the computer screen, so they don’t have to travel anywhere. And even more important, from my perspective, I don’t have to travel anywhere.
And you have some state-specific materials. I know the laws are pretty consistent throughout the US. but there’s some pretty big differences. For example, if you’re in a stand-your-ground state versus a duty-to-retreat state.
We do we have a supplemental course for each of the 50 states. So every one of the 50 states is covered in a separate supplementary course that covers that state-specific use-of-force statutes, court decisions, and jury instructions.
Well, I would certainly encourage everyone to take advantage of the material that you have. Not just the free stuff, but to buy a book. I read the book, I benefited greatly from it. And I thought I knew a lot about self-defense–and I do know a lot about self defense–when I tell you, it’s accessible. It’s not legalese. And it’s so comprehensive. I truly enjoyed it and recommend it to colleagues and friends are appreciated so good.
Today, let’s talk about something. We know everyone’s heard the expression, you can’t bring a gun into a fistfight. We heard that. That’s in the context of disparity of force. That’s at least that’s something that you see on the internet and comments are people talking about it?
What is disparity of force? And more specifically, how do you discuss that that aspect of the use of force law.
So this phrase disparity of forces is really often poorly used. It’s very common in self-defense instruction. I’ve seen it in many of the classes I’ve taken. What the law wants is what we call proportionality, meaning that the degree of defensive force you’re using is proportional to, not disproportionately greater than, the threat you’re facing.
So the law is not actually looking for disparity. If there’s disparity, that’s bad for your case of self defense, the law is looking for proportionality.
And in terms of proportionality, what the law does, in terms of assessing the degree of force, is placing force into one of two buckets: either the force involved is deadly force, which means force of course capable of causing death, but also includes force capable of causing serious bodily injury, typically some kind of maiming or disabling kind of injury. So there’s that’s the deadly force bucket.
The other bucket is the non deadly force bucket which is simply all lesser degrees of force, force not likely to cause death or serious bodily injury,
And what the law says for lawful self defense purposes is if the threat you’re facing is only non-deadly in nature, you’re only allowed to use non-deadly defensive force to stop that threat. If the threat you’re facing is deadly in nature–force likely to cause you death or serious bodily injury–then you may be privileged to use deadly defensive force to stop that threat.
So that’s the proportionality, that the two forces, the threat and the defensive force, are proportional to each other, are in balance.
Now, in terms of a deadly force threat, there’s many ways that a threat can get to be deadly in nature. Obviously, if the attacker has a gun or a knife, they can readily cause death or serious bodily injury. But that’s not required for them to be a deadly force threat. If there’s a disparity of numbers, so there are multiple attackers in one defender, well, those multiple attackers can inflict death or serious bodily injury, collectively there are a deadly force threat.
If an attacker is much larger or much stronger, or has an exceptional fighting ability that the defender does not have, even though it’s a bare-handed attack, it could be a deadly force attack, if it’s of a nature that can cause death or serious bodily injury.
So the law doesn’t really care so much how we get to the deadly force threshold. It simply cares whether or not we’ve gotten to the deadly force threshold and if the threat is readily capable of causing death or serious bodily injury, that’s what privileges you to use deadly defensive force to neutralize that threat.
The assessment of whether the force is sufficient to cause serious bodily harm or death would be at that moment that the lethal use of force is the response, I guess. In other words, for example, would the vulnerability of an individual you talked about ,size, include age and physical condition?
And how about the position they might be in, during what might have started as a non-deadly fight, for example.
Rght. So of course, the fight is typically very dynamic. So two individuals can start a fight, with both of them being of roughly the same, say, strength or same fighting ability, but one of them suffers a broken arm in the course of the fight. Well, he no longer has the same defensive ability that he had before. Now he’s got a broken arm, That changes the degree of threat that he’s defending against, what was before not a deadly force, right, not a threat likely to cause some serious bodily injury now is such a threat.
And it’s the same with the nature of the prospective defender. For an 18-year-old to be shoved to the ground, probably not that big a deal. They tend to pop right up, at least I did when I was 18. If someone’s 80 years old, and they’re shoved to the ground, well, that could be a life-threatening event. They break a hip, that’s clearly serious bodily injury.
Certainly, someone can be vulnerable simply by not being as good a fighter as they can be in a vulnerable position. You see that in MMA all the time, someone who is the best and the strongest and the fastest is put in a position where they are virtually helpless.
That’s exactly right.
And although in an MMA fight, you can tap out before you’re seriously injured or killed, if it happens on the street or in a parking lot somewhere. You can’t, obviously.
And if you believe that the person intends to cause you seriously, serious bodily injury, or death, and has the ability to do it, and is probably demonstrated it by then, you may already be injured to some degree. It’s certainly legally sufficient to respond with deadly force. If you wind up in a situation where you believe if you don’t use deadly force in response to the attack, you’ll be seriously injured.
Strictly speaking, if you reasonably believe that to be the case, an unreasonable fear of harm would not be sufficient. But you may reasonably believe it because you’ve already suffered serious injury in the course of the fight. You may reasonably believe it because the person attacking you may not be a stranger to you. Right?
You may know they have an exceptional fighting ability that you don’t have, for example. That would definitely play a role in your subjective perception of the degree of threat you are facing. This comes up a lot in spousal abuse cases, where an abused wife, for example, knows that when her husband gets drunk, he gets incredibly violent, causes her serious injury. She knows this because she’s experienced it multiple times in the past. When he’s sober, he’s fine. When he’s drunk, h’s a nightmare that causes serious bodily injury.
Then, at home one night she sees him getting drunk again. Well, she has, based on her experience, the ability to infer that a violent attack is likely to follow his drunken state because it has so many times in the past
But if he doesn’t assault her that night, but instead goes to bed notwithstanding the history, notwithstanding his propensity for violence and all of that, she can’t very well go into the room and and shoot.
Well, she can, but it won’t be lawful. Right, it may be mitigated.
We’ve certainly known of the battered spouse defense, which may mitigate from a higher degree of murder, right to manslaughter, typically, but it’s not a defense.
That brings us sort of to the imminence idea, you know, we’re talking about proportionality in the sense of this disparate force, but regardless, [the threat] has to be imminent, and that’s what would be the undoing of the spouse who shot the abusive husband in bed, right. Likewise, if you’re being assaulted by someone, that threat of great bodily harm or death has to be imminent,
Imminent, so either actually occurring or immediately about to occur,
That’s hard to get a handle on, I would think we know what it means intellectually. But it’s probably pretty hard to identify in terms of feet or yards as someone approaches you.
So where people tend to get in trouble on imminence is not really where it’s a close call. Where it’s a close call, because remember, the prosecution does have to disprove self-defense beyond a reasonable doubt. So he’s looking for something more than a close call.
Typically, where people tend to get into trouble is where it’s not a close call, where the threat is nowhere near imminent. So where they’re using force against a threat that’s already over, and whatever the fight might have been the threats gone, the person is running away, and then they use force. So clearly, there’s no reasonable perception that the threat was about to occur because the person is running away, for example.
Or when they use force to prevent some speculative future threat. So someone says I’m going to go home and get my gun, come back here and shoot.
Let’s talk about that more specifically Sure. Let’s instead of being at home, let’s be in a bar, and you’re in a bar, you’re having a couple of, well, maybe a beer, maybe not, but you’re in a bar in a restaurant and somebody sees something they misinterpret, or it escalates to the point that somebody says to you, I’m going out to my car and get my gun and come back here and shoot you. And they head for the door. When can you shoot them?
Well, if they come back with the gun, and they appear that they’re prepared to shoot you, that would be an imminent threat. That’s about assuming all of that to be true.
And you absolutely believe them that that’s their intent, that they intend to go to their car, get their gun, come back in and shoot you. Can you shoot them as they head out the door?
Well, the real criterion for imminence is either it’s happening, it’s immediately about to happen or it’s otherwise unavoidable. By otherwise unavoidable I mean, so you’re trapped in the bar, say before they got to their car, they handcuff you to the bar so you can’t get away, then I would say, Yes, the threat is imminent even as they’re walking out the door because you can’t escape, you can’t get away before they come back the threats otherwise unavoidable.
But of course, that would not normally be the case. Normally, you would have some option other than simply staying there waiting for them to come back with their gun. In fact, I would suggest that if you do wait and come back for the gun, and you’re preparing to shoot them, when they come back, that it begins to look a lot like a mutual combat situation where you’re actually agreeing to get into a deadly force fight with this other person
When it wasn’t necessary. Even if you don’t have a legal obligation to avoid it. If you’re in a so-called stand-your-ground jurisdiction, your conduct will still be evaluated under this reasonableness standard. Is that what you mean? Or if you’re a mutual combatant?
If you agree to get into a fight, then you’re a co-aggressor in the fight. So you lose self-defense simply for being a co-aggressor in the fight. The rest of it doesn’t matter, because you’ve lost self defense because you’re not an innocent party in the eyes of the law.
You’ve talked about innocence. You’ve talked about, I’m sorry, imminence, and you’ve talked about proportionality in the context of disparate force. In your materials, you’ve identified what you believe are the five elements of self defense. We’ll touch upon them just for a minute, and we’re going to close out and refer people to your website for additional information.
Sure, and we actually cover these in some detail on our website and totally free content. But in just summary, the five elements of a self defense claim, and it’s up to five, in many cases not all five even apply, but it’s only up to these five: innocence, imminence, proportionality, avoidance, and reasonableness.
And in a nutshell, innocence simply means you must not have been the aggressor in the fight, if you want to justify your use of force as self-defense.
Imminence is that the threat you’re defending yourself against has to be either actually happening or immediately about to occur or the otherwise on unavoidable.
Proportionality has to do with the degree of force involved, whether it’s non-deadly force or deadly force.
Avoidance has to do with whether or not you have a legal duty to retreat, if safely possible, before you’re entitled to use force and self defense.
And the fifth element is reasonableness. It’s really kind of an umbrella element that sits over the others. Everything you perceive, you decide, that you do in self-defense has to be conduct of a reasonable person, meaning it’s not, for example, an irrational fear of harm or an unreasonable fear of harm, you’re perceiving things and making decisions as a reasonable person would do.
As always, thank you, Andrew, I really appreciate you joining me here and I look forward to our next get together.
I would encourage all of our viewers to go to Andrew’s website, investigate lawofselfdefense.com, take a look at the materials. I wish that all of my clients had known of Andrew and read his read his book or reviewed some of these materials before they wound up in that lethal self-defense scenario.
The ounce of prevention, I guess, is the pound of cure and sometimes the pound of cure even if you’re successful at it can be several hundred thousand dollars, easily. We know that from real world experience that if you can avoid the conflict, avoid it and certainly act within the law and avoid being within immersed in the legal system.
Thanks so much.
I’m Don West National Trial Counsel for CCW Safe.