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.
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.
And if you’re not a member of Law of Self Defense, I frankly have to ask why that’s the case. Because membership is really inexpensive folks, the normal membership is less than $10 a month only about 33 cents a day for world-class self-defense law expertise, insight, education, explanation.
And even better, right now we’re running a trial on membership, you can have a two-week trial membership for just 99 cents. And if you don’t like it within that two weeks, if you decide it’s not for you and want your money back, we’ll send you back not just 100% of your money, but 200% of your money, folks. It’s a negative risk proposition.
So I urge you take advantage of that.
And when you do, by the way, as a member even during that two week trial membership, you will get free access to our newest course “Lawful Defense Against Rioters, Looters, and Arsonists”. So I encourage you to at least take a look at that trial membership. You can learn more about by clicking the image or link below:
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So again, to take advantage of that opportunity, you just click the image or link below:
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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.
I also hope you take advantage of the opportunity to take our trial membership 99 cents for two weeks 200% Money Back Guarantee at http://lawofselfdefense.com/trial and our 65% OFF sale on our Defense of Property Course which gets you as an additional BONUS course “Lawful Defense Against Rioters, Looters, and Arsonists” absolutely FREE at http://lawofselfdefense.com/property .
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
Platinum Protection Program
As with Session #1 with Attorney West, I thought this was Attorney Branca at his best. Very impressive presentation – an excellent introduction for any newbies and a wonderful review for those who have been students of Andrew’s work. I’ll look forward to Session #3.
As an aside – I read the Active Response Training article as suggested previously.
Excellent article, which aligns itself with Attorney Branca’s assessment of shooting. – This makes me an outlier.
One fact that probably should be added to this conversation of speaking to police is one that is very ably presented by Attorney Mark Victor or Arizona, that sometimes the police will jot down things you said in their little pad of paper, things that you did not say and things that they misunderstood you to say. They will be going over their notes two years later when your case goes to trial. Do you want to trust decades of your life to the accuracy of a police officer? Some police are very honest. Some can be very sloppy. Mark Victors favors the “Just shut up” rule. The very handsome, friendly and polite police officer is trained to get you to talk and look for something you say to justify an arrest. For many untrained people it can be a trap. For the few who practice what they will say, Andrew is very correct, 1. Affirm that you shot in self defense; 2 point out the evidence and 3. the witnesses. After that, assert you right to counsel and assert your right to silence. After that, say absolutely nothing. Thank you Andrew, Don and CCWsafe.
Great stuff! I am a member of CCWSAFE and a have attended Andrew’s class in Frederick Maryland. In the “snip” provided in conclusion of this production “…1. Affirm that you shot in self defense; 2 point out the evidence and 3. the witnesses. After that, assert you right to counsel and assert your right to silence. After that, say absolutely nothing. Thank you Andrew, Don and CCWsafe.”
Wouldn’t’t it be prudent to go to the “active dynamic” while affirming you shot the person? Meaning in all the chaos, witnesses will be questioned and if the subject follows the “snip” advice, additional facts may not be be presented or recorded properly. Generic terms, putting the oneus on the attacker. If asked “how far away was he?” answer, “close enough to kill me.” There again, anything you say can risk everything. double edge sword.
Stay safe. Larry.
My over-active imagination immediately tried to prove Andrew wrong when he said “Saying you acted in self defense and that it was an accident is muddled, and is more than likely to get you convicted”; I immediately thought of a scenario where someone might pull out a gun out of fear for their life, then stumble over a dog and accidentally discharge the weapon.
As I thought about it, though, I realized that the situation was two different events: (1) the pulling out of the gun, which would have to be justifiable via self defense law, and (2) the stumbling over the dog, which would be the accident — particularly so, if without the stumbling, the person would have had time to assess the threat and decided it wasn’t a danger after all.
In this scenario, it would be very similar to “regaining innocence”: the person did something that separated the overall act into two separate stages — and it’s not at all like the “I pulled a gun for fear of my life and shot him, but it was an accident” that we are prone to claim when our own minds are muddled right after an event.
Sigh. I have no idea why I’m being so contrary right now; perhaps I’m just tired. Now that I think of it, I now can’t help but wonder why courts don’t, or can’t, give more leeway to someone who just went through an experience, to give muddled explanations for that experience, since the psychological responses are now well-known. Maybe, someday, they will….but until that time (and likely even afterward), it’s important to remember to limit our police interactions until we can get the help of a lawyer!
I wish to remind the readers that stumbles, which can happen at any moment, end in gunfire because the armed fool had his finger on the trigger. I never carried a round in the chamber till I learned finger discipline so automatic that it became and is a unconscious given. Shoot the gun and a round is going somewhere to its target with a lawyer attached, maybe into your leg, foot, family jewels, dog, wife, kid or neighbor. Touch the trigger and you can lose you gun rights and maybe your freedom. The finger only moves to the trigger when the gun in on target, the background has been considered and a decision has been made to shoot the gun. Shoot the gun and your life will change forever. Shoot the gun and accept the possibility that you may lose everything you have, any friends you have, your employment, your family, neighbors (they insist you move somewhere else) and you may also spend the rest of your life in prison. Keep your finger off the trigger.
Sure, that’s what should *ideally* happen, but in the real world, weird things happen. If you’re holding a gun and trip over a dog, there may very well be enough random rough-and-tumble going on that even good trigger discipline might not prevent a gun from going off.
The point I made still stands: the only way legally to make the claims “I acted in self defense” and “it was an accident” is if there are two separate actions that just happened to be jumbled together at the same time.