Branca & West: Speaking with the Police (Part 2 of 2)

 

 

 

 

 

 

 

 

 

TRANSCRIPT

Welcome folks, to the Law of Self Defense Show for June 19, 2020. I am attorney Andrew Branca for Law of Self Defense.

So, folks, although most of our video content is aired live and then made available as a replay afterwards, this is not a live program today. I’ve pre recorded something very special for you. It’s a conversation between myself and Attorney Don West, where we talk about interacting with the police

This is in fact, the second part of a two-part conversation. Those of you who are Law of Self Defense Members can find the first part in our blog, same title as this post, except it’s part one of two. And members can also just look at the text version of today’s show when you’ll find that first portion hyperlinked there.

Branca & West: Speaking with the Police (Part 1 of 2)

Now, Don West is, of course, the National Trial Counsel for CCW Safe, which is one of our sponsors on , Law of Self Defense, so let me get that sponsor ship obligation out of the way right now.

CCW Safe is a provider of legal service memberships. What many people mistakenly call self defense insurance in effect CCW Safe promises to pay their members legal expenses. If the member is involved in the use of force event.

And those legal expenses start big and get bigger folks. They start in the 10s of thousands of dollars. They escalate quickly to the hundreds of thousands is a dollars and you can reach those levels pre trial before you ever get to an actual trial.

So it’s great to have some entity with the financial resources to back you that you need to fight that legal battle appropriately. Now, there are a number of companies that offer this kind of service. CCW Safe is just one of those. But in my experience, having looked at all of them closely, and I will say my rather well-informed opinion, is that CCW Safe is the best fit for me personally, I’m a member of CCW Safe. My wife Emily is a member of CCW Safe.

Whether they’re the best fit for you is something only you can decide but I do encourage you to take a look at what they have to offer, by clicking on the image or link below:

http://lawofselfdefense.com/ccwsafe

If you do decide to become a member at that same webpage, you can use the discount code LOSD10 tTo get 10% off your membership would CCW Safe

Now this past SHOT Show in Las Vegas, I was invited there to be a guest of CCW Safe, which I was happy to do. And as part of my attendance there, CCW Safe arrange for me and Don West to have a number of conversations about various use-of-force legal issues, which they of course recorded and we’ll be releasing the recordings of those conversations between me and Don over the next several weeks or months.

And as they’re released, I’ll share those with you here. And of course, for our members on the the Law of Self Defense web site, http://lawofselfdefense.com.

Now Don, as I mentioned, is the National Trial Council for CCW Safe but he, of course, came to our attention as the co-counsel, along with Marc O’Mara, for George Zimmerman in his trial on a charge of second-degree malice murder, over the killing of Trayvon Martin.

Now, as you all know, Zimmerman was unanimously acquitted by the jury of all criminal charges. In fact, based on my experience watching every minute of that trial, there was literally zero evidence in that case inconsistent with self defense. In a case where the prosecution is obliged to disprove self defense beyond a reasonable doubt.  Zimmerman’s acquittal, although it shocked a nation that had been misled by the lies and propaganda of the media and other activists, was absolutely the appropriate outcome for that case.

Some months after that trial, Don became aware of my writings on the case, introduced himself, and since then we’ve become good friends. I was very pleased to have the opportunity to spend some time with Don at SHOT and engage in these conversations between us on these various use-of-force law topics.

The one we’ll share with you today is part two of speaking with the police in the aftermath of the use of force event. So without further ado, let’s jump right into that conversation.

Don West 

I’m Don West, National Trial Counsel for CCW Safe and a practicing criminal defense trial lawyer. I’m here with Andrew Branca, the foremost expert in the country on the law of self defense. Welcome, Andrew.

Andrew Branca 

Very happy to be here, Don.

Don West 

Let’s talk a little bit about your background and what you’re doing these days.

Andrew Branca 

Well, as you say, I’m an attorney who specializes exclusively in use-of-force law at Law of Self Defense LLC. Our motto is:  You carry a gun so you’re hard to kill. Know the law so you’re hard to convict. We help people know the law primarily through educational efforts, books, DVDs, courses, and so forth.

Don West 

Now, how can they find you?

Andrew Branca 

Lawofselfdefense.com, or just about anywhere on the internet.

Don West 

All good things start there. Yes, sir. Great.

Don West 

Let’s talk a little more about interacting with the police after a self defense incident. The question is how much should you cooperate? At what point do you do you interact with the police without doing yourself more harm than good and I know this is a fluid dynamic situation and well-meaning people can vary. But let’s pick it up at the point where the investigating officer comes in, someone has been shot or perhaps killed. And the police officer says, what happened?

Andrew Branca 

Sure. So I think again, there’s a very specific number of items you’ll want to share with the officers that cannot hurt you because you’re going to have to share this information anywhere anyway.

Andrew Branca 

Things like your name, the fact that you acted in self defense, that’s why this person’s been shot. If there’s any witnesses or evidence that’s favorable to you, you want to make sure that evidence and those witnesses are known to the police so they can capture that. If it’s not in evidence, it doesn’t exist for purposes of your legal defense. So if it’s helpful to your defense, you want to make sure that’s captured.

Don West 

So when you’re claiming self defense, right off the bat, you are admitting that you were the person that fired the gun, that you shot someone who may have died as a result of being shot, on purpose?

Andrew Branca 

Yeah. So self defense in that sense is very different than many other legal defenses. So if your legal defense were, say, an alibi defense, you’d be saying” Well, it wasn’t me, I was someplace else. I have proof. I couldn’t have done it.

Andrew Branca 

That’s not what you’re saying, when you’re claiming self defense. When you’re claiming self defense, you’re saying the opposite of that. You’re saying I did it. I fired the shot that killed that person. But I did it with the legal justification of self defense.

Andrew Branca 

So you better hope that legal justification and self-defense holds up, because if that disappears, all that’s left of your statement is essentially a confession of having committed the underlying act of violence.

Don West 

So you’re all in right at the beginning?

Andrew Branca 

Absolutely. And by the way, if you deny that it was you, if you try to say you weren’t involved, and then later you want to try to claim the justification of self-defense, well, you’ve got a serious problem now because now you have you’ve made two inconsistent statements.

Andrew Branca 

In fact, even if you’re just completely silent and don’t simply don’t say anything about self-defense at the scene, the fact that you didn’t mention self-defense at the scene can potentially be used against you later. You could end up with a prosecutor telling a jury: Sure, the defendant’s claiming self-defense here in court, but at the scene, he never said a word about self-defense to the responding officers. And it really undermines the credibility of your claim of self-defense, even if the self-defense act itself was in fact lawful. It doesn’t look that way, because it looks like you try to escape responsibility for the use of force.

Don West 

So that’s not the time to try to explain it away to say, well, maybe it was an accident, anything that would undermine the very straightforward claim: Yes, I shot that person. I shot that person because I was being attacked. I shot that person in self-defense.

Andrew Branca 

Absolutely. You want that to be a very explicit statement upfront. And by the way, especially anything that sounds like accident can be terribly devastating to a claim of self defense. And a lot of people do it, because we’ve all been taught since we were children. Well, if something was an accident, you’re not really responsible, right? accidents happen, right?

Andrew Branca 

And an accident is a legal defense, there is a legal defense of accident. But that’s not the same thing as the legal defense of self-defense. Aa legal defense of accident is intrinsically something you did not intend to have happen. It happened accidentally.

Andrew Branca 

An act of self defense is something you did deliberately, and you typically can’t claim both or at least you can’t claim both with any kind of coherency. You can’t say: Well, you know, the gun just went off. I didn’t mean to shoot that person. But if you don’t by that one, I shot them in self defense.

Andrew Branca 

Well, maybe from a technical legal perspective, you’ll be allowed to make those inconsistent legal arguments, but a jury is not going to buy that. If it was actual self-defense a jury wants to hear you say why you had to kill that person and they want to hear that it was self serving.

Don West 

How many cases have you read, I know I’ve been in the middle of some, where there’s a statement made at the scene in an attempt to deflect perhaps responsibility, that by the time you get to trial, there is only one defense and that is self-defense and it may have in fact, been fully justified, supported by the law and the facts, except there’s the statement out there that the prosecutor has a heyday with.

Andrew Branca 

Absolutely. And you know, the prosecutor’s in the game to win. And that’s not a knock against the prosecutor. That’s his job. That’s what we hire him to do. That’s his professional responsibility. But given that’s his professional responsibility, and he’s not doing that jo, because he doesn’t like doing that job. If you give him fuel to burn you at trial, he’s going to use that fuel. That’s simply the nature of his job. It’s our responsibility to not provide that kind of evidence to make it easy for him to do that.

Don West 

So when the police respond, I take it from what you’re saying it’s almost always well, it’s always better to say less than more, if more becomes something like that as you try to explain too much and if you don’t fully accept responsibility for your own actions and begin the process of showing how they were justified.

Andrew Branca 

So there’s kind of a fine line interacting with the police in that you don’t want to deny it was you, right? You want to accept responsibility, it was you who used force, but you’re going to claim legal justification for that use a force. And you don’t want to establish a hostile relationship with law enforcement when they respond.

Andrew Branca 

Now, that may not keep them from arresting you and I always tell all my clients:  Just assume you’ll be arrested, it’s the least of your concerns. But being arrested is not an act of hostility by the police. They’re just either securing the scene or they think they have probable cause to make the arrest.  They’re just doing their job.

Andrew Branca 

But if you create a hostile environment, while it may not change, so much the legal nuts-and-bolts of what’s going to happen at the scene, it can greatly influence how those officers go about investigating the scene, gathering evidence, talking to witnesses. There was a famous case in Florida, the Michael Dunn case where he shot somebody in a car next to them at a convenience store. And then he fled the scene. And later he would claim: Well, I shot that person because they pointed a shotgun at me.

Don West 

That’s the famous loud music case, that people may know about, and he fled the scene, went home or to pizza, and I don’t think in any way volunteered information to the police until they knocked on his door.

Andrew Branca 

Right. Unbeknownst to him, a homeless person living in their car in the parking lot of the convenience store got his plate number. So when he finally got home, the police were there waiting for him.

Don West 

So he didn’t call the police. The police had to go get him, so the police already had a pretty fully formed narrative have the sequence of events, before they talk to him?

Andrew Branca 

Well, they had a narrative growing, right? They didn’t have his narrative, they had the other party’s narrative, and the other party’s narrative was: Some crazy dude shot my friend and drove off. That’s what the police had.

Andrew Branca 

And they had that narrative and only that narrative until they arrested them the next day at his home elsewhere in Florida, because he was visiting the area. So what that meant was that whole first night at the scene, when the police were gathering evidence, talking to witnesses, it was never in their heads that the shooter might have been acting in self-defense. Because there was no one making–

Don West 

They had not any idea what the shooter claimed to have seen, the description, where it was, something that would help the police with their investigation, what to look for,

Andrew Branca 

They had none of that. It simply looked like a shooting that had no connection to self-defense at all. So later, Michael Dunn would say: Well, they they pointed a shotgun at me, that’s why I shot them, tid you recover the shotgun. And the police just laugh. They said: Well, how could we will know to recover something that we didn’t even know we were supposed to be looking for?

Don West 

Well, obviously, the point would be if you’re involved in a situation like that, you need to be the one who calls the police, you need to sort of stake your claim of self defense. Whether Michael Dunn had a good faith belief, when it all settled out, that he truly acted in self-defense, when you see what he did after the fact, the prosecution had open season on him, all of those things would be argued as a consciousness of guilt.

Andrew Branca 

Absolutely.  And by the way, none of us knows what actually happened, right? None of us were there, none of us were witnesses. All we can do is look at the evidence and make reasonable inferences from the evidence. So for all we know, Michael Dunn’s telling the truth for all we know, a shotgun was pointed at him. But if that was true, the only reason that shotgun was not in evidence is because he fled the scene and did not call the police, and report the act himself.

Don West 

It’s a fascinating that case. In particular, I imagine a lot of people know bits and pieces about it, but there were two trials.

Don West 

In the first trial, first of all, Michael Dunn shot his firearm and killed one of the occupants of the vehicle, but also fired several other shots as the vehicle was leaving. So he had the first-degree murder charge. And then he had several other charges of attempted murder, all of them carrying very, very lengthy prison sentences potentially.  The fascinating thing to me was not withstanding his conduct, failing to stay, failing to report, and doing all of the things that we would urge people to do, the jury still was not able to reach unanimous verdict on the murder charge. It was a mistrial on that, because the jury hung. Who knows how doing the things that we’ve talked about may have changed the outcome of that case entirely.

Andrew Branca 

Yeah, we don’t know. So we know the jury hung on the first trial on the murder charge, which which tells us that at least one juror believed that the state had failed to disprove the claim of self defense, beyond a reasonable doubt, with respect to the murder charge.

Andrew Branca 

If Dunn had claimed self-defense at the scene from the beginning, would that have been enough to take murder completely off the table as far as the other jurors were concerned as well. So because Dunn ended up retried on the murder charge–

Don West 

That’s right-

Andrew Branca 

–and he got convicted the second time around,

Don West 

Those other shots were a lot less supportable even under his own statements as the vehicle was leaving, firing the additional rounds into the back of the vehicle.

Andrew Branca 

Right, because there was no reasonable narrative under which those shots as the vehicle was fleeing the parking lot, that those shots could have been self defense.

Don West 

Sure. Since we’re talking about that case, and we’re talking about interacting with the police, we know that he didn’t, but let’s say he had and the police arrived, he was there.

Don West 

I’ve heard people give the advice, and I’m one of them that sometimes says, you don’t give a detailed statement on the scene after having gone through that event and not having counsel. At the same time, you don’t simply shut down and not provide the kind of information that you’ve been talking about. I’ve suggested that you can say to the police, I’d be glad to cooperate with you. I acted in self defense, but I’d like to have the opportunity to talk with a lawyer first, and then not answer any more questions.

Don West 

You may disagree with me that those are good words to say. Let me preface that comment. My comment by saying though, the, the purpose of that is to have that positive connection with the police that even though you may not answer all of their questions, then that you were the person acting in self-defense and you need an opportunity to pull yourself together and have the benefit of counsel before you enter into their investigative world.

Don West 

Now, there may not, everyone may not be able to do that. They may not have the wherewithal. They may not be collected enough to go through those steps. But do you generally agree that you shouldn’t give a detailed statement? And that you should seek the advice of counsel?

Andrew Branca 

Absolutely. I’m both of those. When you can you.  You cannot give a detailed statement that’s going to be accurate because your brain will not have captured the details in an accurate way.

Andrew Branca 

So what do you say? I mean, there’s a reason that law enforcement, for example, every law enforcement officer is trained, they’re not required to give a formal statement, if they’ve been involved in the use of force event for 24, 36, 72 hours. It varies by department.

Andrew Branca 

Because they those departments have that experience until the brain chemistry is settled. We’re not going to have a single cohesive narrative that’s detailed, that has those kinds of details that’s consistent. What people will remember an hour after the event is different than what they’ll remember 12 hours later, 24 hours later, 48 hours later.  I’ve spoken with cops who’ve been in deadly force use-of-force events and they’ll tell me two, three years later, suddenly, some detail will pop into their head that they’ve completely forgotten that entire time. And they’ll just wake up in the middle of night remembering the color of somebody’s shirt.

Don West 

And notwithstanding all of those problems with being able to effectively and accurately explain what happened, once you’re being interviewed by the police, your statement is being recorded for all time, and it becomes exhibit number one, if you’re prosecuted, and you are then navigating those waters for which everyone I know including lawyers are essentially ill-equipped to handle on their own. Everybody needs a lawyer when they’re going to be interviewed by the police.

Andrew Branca 

Absolutely with no question. You have little idea of the words that might come out of your mouth that could devastate your legal defense. Frankly, if I, as an expert in self-defense law, were involved in a use-of-force event, one of the first things I would demand would be legal counsel,

Don West 

Right. I can tell you having tried a number self defense cases that if I’m going to pick one thing, that is the biggest obstacle to overcome, and usually the most important obstacle to overcome in defending someone that is explaining the statement that they made to the police, if it is in any way inconsistent with the trial evidence or their own testimony at trial, and no one needs to put themselves in that situation.

Don West 

Let me mention just sort of anecdotally, I’ve been involved in some cases where the client or my client or the accused and the case I’ve consulted on has done what I suggested, maybe not those words:  I’ll cooperate, but I want to talk to a lawyer first, but not given a detailed statement and then was contacted by law enforcement a few days later and asked to come in for an interview.

Don West 

By then, as a CCW safe member, they all have lawyers at that point. They have met with their lawyers, they’ve talked with their lawyers. And then oftentimes the lawyer will have also talked with law enforcement, they may have talked with the prosecutor’s office, and will have a lot more information about the direction this is headed, additional information about evidence, maybe even other witness statements, and can make an intelligent, informed decision about whether to be to submit for an additional interview. And the lawyer can assess the ability of the defendant, the accused client, to be able to withstand that kind of thing. And, frankly, they are very truthful witnesses that are just terrible, that just can’t seem to express themselves effectively and become their own worst enemy. So even though you know, they’re going to tell the truth, you can’t put them in that setting, where one misstep could, you know could sink their case.

Andrew Branca 

Absolutely.

Don West 

Great. And you again, thanks for talking today. We’ll pick this up again soon. I hope. I’m Don West National Trial Counsel for CCW Safe, thanks for watching.

Okay, folks, well, I hope you enjoyed the conversation between myself and Don on speaking with the police in the aftermath of use of force event. That was just part one of two of that conversation.

We also discussed at SHOT a number of other topics around use of force law that were recorded, and we’ll be released as videos over the next few weeks and months and as they’re released. I’ll share those with our members over at the Law of Self Defense website (http://lawofselfdefense.com).

Before I let you all go I do want to remind everyone that we are currently finalizing our newest course “Lawful Defense Against Rioters, Looters, and Arsonists”. This course will be available for free to Law of Self Defense Members, you’ll find it in your Member Area on the Law of Self Defense web site.

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Okay, folks, I think that’s all I have for all of you today. I hope again, you enjoyed that conversation with myself and Don.

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In closing I’ll just remind all of you as always, that if you carry a gun, so you’re hard to kill, that’s why I carry a gun, so I’m hard to kill, so my family is hard to kill, well, then you also owe it to yourself and your family to make sure you know the law so that you’re hard to convict.

Not by knowing legal tricks, but by knowing where the legal boundaries actually are. And if you stay well within those legal boundaries, you do in fact become awfully hard to convict. That’s where we want you to be as well positioned to win the legal battle as you are to win the physical battle.

Alright, folks, until next time, I am attorney Andrew Branca for Law of Self Defense LLC. Stay safe.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC
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