Branca & West: Escalation of Force
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That’s it for now, but before I go, remember:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Best,
Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Fully enjoy these sessions with Attorney West and Attorney Branca. As stated previously, I have found these sessions to be Attorney Branca at his best. One point of clarification, my understanding has been that if a good guy goes to his gun and the bad guy flees, it is advisable to phone the police. Correct? Next point of particular interest to me is Don West statement that even if an attacker is shot through the heart, that attacker is still a threat although for a limited time. In one session that I presented, a medical doctor corrected my like statement on such a situation. Thus, I’m pleased to have this point repeated here. Thank you for provided access to these formats.
This was quite an eye opener. I always thought that the 21′ rule was an absolute. Thank you gentlemen for explaining this. Very informative.
I have been trying to absorb all the information I can on this Law of Self-Defense blog. But I have to admit, I’m still confused about the distinction and when it is appropriate to engage in the threat of deadly force versus the use of deadly force with respect to a person defending himself or herself. It sounds like, in some jurisdictions, just deploying your weapon (drawing it from the holster) will get you prosecuted for aggravated assault. This would seem to bear heavily on the issues raised here about the 21-foot rule, which seems to assume that you have not drawn your weapon. Is there a similar deadly-threat distance that has been empirically determined for the situation where you already have your weapon drawn? I wonder how many cases there are where fear of prosecution for assault causes a defender to not deploy a weapon defensively until it is too late?
Hey David,
There is no magic self-defense justification distance. Self-defense is fundamentally based upon its (up to) five elements, and effectively inquires whether a non-aggressor defender had a genuine and reasonable belief that they were facing an imminent threat of unlawful force.
Naturally, the real world is a complicated place with an infinite variety of fact patterns that could answer that inquiry in the positive or negative, depending on those facts.
Some of those fact patterns, but certainly not all, center on whether an attacker armed with an impact weapon was close enough to the intended the victim to present as an imminent threat of harm., and thus could be reasonably perceived as such an imminent threat. In understanding how to answer this question it can be useful to know that a typical adult can cross a distance of about 21 feet in about 1.5 seconds, because that tells you that the defender would have a mere 1.5 seconds (and, really, much less given reaction time) to defend against such a threat, and can contribute to a reasonable perception of an imminent threat.
That “Tueller distance,” however, is a tactical rule of thumb helpful to developing an informed analysis of a self-defense fact pattern, it is not a hard-and-fast legal doctrine–indeed, it’s not a legal doctrine at all. There’s not a self-defense statute anywhere in the country that says a word about distance of any length.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
That reaction time question makes me think of the driving rule of thumb when following another vehicle – leave 2 seconds of distance. The assumption appears to be that it will take you 1 second to decide to hit the breaks, and another second for the brakes, once applied, to stop the car. How much simpler of a decision process it is hitting the brakes than deciding whether you should use deadly-force in self-defense. Alas, I live in Los Angeles CA, where, as you well know, such decisions are sometimes scrutinized by politically motivated prosecutors for every possible excuse to file criminal charges.
Anyways, I appreciate your response. You have a great blog here!
Michael Drejka tried to use the Teuller Drill to justify his shooting of Markeis McGlockton, but was convicted of murder and sentenced to 20 years in prison. McGlockton was wishing a few feet of Drejka who was on the ground. McGlockton’s feet were deadly weapons. Everyone seems to feel the drawing of the gun was justified, even pointing the gun, but when McGlockton took a step back at the last moment, Drejka was no longer in imminent danger of death or grave bodily harm. The distance was opening instead of closing, so the window of opportunity, ability and jeopardy was no longer present, it seems to me. The Teuller Drill no longer applied.
That was the most ineffective concil I have ever seen in a national case..
Once he was on the deck, his mobility compromised 21 feet was the least of his problems.
If you have been paying attention you would understand that disparity of force is now in play..
Also notice the aspects of furtive movement shooting..
There is not much we can do about political prosecution, ineffecrive concil etc…but it does not change the actual law ..
Also note that unless you have drilled a Tueler Drill…you have no idea how reactionary gap applies to you personally..Drill it… but remember to consider open carry vs concealed..
With out sufficient situational awareness, you are unlikely, which a concealed handgun,to achieve a draw in time..
Remember 1.5 seconds is the average time, not the fastest..and all that gives you is a tie.. in practice you must move ,force the opposition to react to you or you are not going to have enough time to stop the threat .
Well put. Good point that you should be moving if you think there might be a problem. Just leaving even if nothing overt has happened but your creep alarm starts going off. Moving to put cover and concealment between you and the potential threat if that isn’t on the table. Or, if it’s too late for the former options, moving laterally while you draw if the threat starts moving at you (better than backwards usually, you can’t back up faster than you can move forward, and certainly not faster than someone else can) to extend distance, try to get an obstacle in the way or at least make them have to adjust. Distance is time and you will always be operating at a physical reaction deficit.
Also as you say, if you haven’t trained on a timer to see how fast you can actually consistently get the gun up and get a hit on target in a meaningful spot (upper chest typically) as you actually carry it, you have no idea where all of your lines need to be drawn.
His feet wern’t deadly weapons and he wasn’t attempting to kick Drejka. Had there been an overt attempt to kick Drejka, then the jury might very well have found the shooting justified.
One of my favorite quotes of Andrew Blanca was recorded on my cel phone on April 26, 2017, from and interview he gave. Andrew said, and I quote, “I actually put that fear into them, Jim, because that’s the reality. I tell my students, the people who attend my seminars, the last thing we say before the seminar ends, is that they have to be prepared to spend the rest of their life in jail and still have that use of defensive force to be worth it. Because you could do everything legally correct and end up with a crazy jury. You could do everything legally correct and end up with a dead beat of an attorney, and a really skilled prosecutor and get convicted anyway and spend 20 years in prison and at the end of the 20 years, that last day, you still have to be able to look in the mirror and say to yourself, “You know what? It was the right thing to do then, and if I had to do it again now, I would still pull that trigger. Then I tell people, “Think about the things in your life, the list of things that qualify to meet that standard. Your own life? Of course. Your rather be alive than dead. The life of your wife, your children or your parents? Of course. Your large screen TV? Are you willing to spend 20 years in prison for a large screen TV or your car or any other property? I tell people you really have to think carefully well before the fight what you are really willing to spend the rest of your life in jail for, because that is the potential downside and those are the only circumstances under which you should be prepared to pull that gun and kill another human being”. (End of Quote). Those words changed my life, reset all my internal switches and cleared up a lot of fuzzy thinking. Thanks Andrew!
That’s very kind of you.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Yes, Andrew’s repeated message of Avoidance – if safe to do so, rings true for me. It is a cognitive decision, not one of impulse as I view it.