NOTE: You can click here for “If Only USCCA Had Done It Right: Part 2”

The United States Concealed Carry Association (USCCA) along with its partner Delta Defense LLC purport to pay their members legal expenses if the member is involved in a use-of force event. Indeed, their sophisticated internet advertising campaigns frequently feature CEO Tim Schmidt assuring the public that “We’ve got your back!”

In recent years, however, USCCA has refused to meet that apparent obligation to its members. When asked about this the organization has either provided no particularly substantive reasons–e.g., “we just feel we’re not obligated to do so”–or has made up an outrageously not credible explanation months after the fact–e.g., “actually that member preferred we not help them.”

It is for these reasons that I’m personally unable to recommend USCCA in good faith to anybody seeking legal services coverage in a use-of-force context.

That said, there DO EXIST scenarios in which it would arguably be appropriate for ANY use-of-force legal services company to decline to provide coverage–and we’ll explore one of those scenarios in the context of a recent New Mexico Supreme Court decision.

If THIS had been USCCA’s explanation for its repeated failure to cover its members, they’d have had a point. Too bad for them, however, that this was NOT their explanation.

Five Elements of Self-Defense Law Cheat Sheet

New Mexico v. Huble

Disclaimer – Content is for educational & entertainment purposes only, and does not constitute legal advice.

Copyright Disclaimer Under Section 107 of the Copyright Act 1976, allowance is made for “fair use” for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use.

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Transcript

(PDF Link)

NOTE: All LOSD video/podcast transcripts are prepared in rough form, provided solely for our members’ convenience & documentation, and are not thoroughly reviewed for accuracy. Refer to the original video/podcast for the authoritative form of this content.

Welcome everybody. Welcome to today’s episode of the Law of Self defense. I am, of course, Attorney Andre Branca with the law of self defense.

And today we are here to talk about if only US CC A had done it right now.

I just have to find my little image and yes, I did change the thumbnail from yesterday, folks. Uh We’re still covering the same uh New Mexico Supreme Court case in which a defendant claiming self defense was denied the legal privilege to argue self defense to the jury. The judge said, no, I am not going to give this jury a self defense instruction too bad.

He was convicted of first degree murder, appealed his conviction to the New Mexico Supreme Court.

Um and bypassing, by the way, the mid level appellate courts went straight to the New Mexico Supreme Court because first degree murder is potentially a capital case in New Mexico. And the New Mexico Supreme Court said the trial court did it right.

You are not allowed to argue self defense to the jury. And I wanted to cover this in the context of um in part US CC A because I’ve been critical of US CC A on a number of occasions for their failure to cover their members. So if you don’t know US CC A is a legal service provider, what many people mistakenly call self-defense insurance? They promise to pay their members legal expenses of the members involved in a use of force event and is arguing, self defense is justification, but sometimes they don’t and they don’t give very good reasons for why they don’t. Um I’ll dive into that a bit more in a moment.

But, but the fact remains that there are scenarios in which it would be appropriate for a self defense insurance company, a legal service provider to not, not cover a member.

Now, none of this applies to us ccas failure to cover its members. But nevertheless, it’s worth noting that there are explanations that US CC A could have had that would have justified their non coverage of a member. They didn’t have, but in theory, they could have had, in which case, I would not be critical of them for not covering that member.

Uh As unfortunately, I’m obliged to be US ccas failures and their, their quote unquote insurance arm or partner is Delta Defense. Uh That’s why both those names are up there. The, the company relationships get a little complicated for our purposes.

We can treat them at the same uh same organizations, partnered organizations, paired organizations.

Now, I’ve critiqued them at length.

I have many blog posts on this. Uh There’s the most recent one. We have an aggravated uh page here of my critiques of us CC A.

I’ll put it up there on the screen law of self defense.com/us CC A and you’ll see, I’ve been coloring covering the uh Alan Coley failure to be covered by US CC A um after which they made up some ridiculous story months after the fact about how really Alan Coley, you know, sure he was a member.

He called them moments after his use of force event to inform them of what had happened.

They never provided any resources to him, whatever, but they say months later that well, really Alan Coley, he didn’t really want their help.

He was fine with a public defender. You can believe that if you wish. And of course, the Kayla Giles case, um Kayla Giles had uh shot and killed her um estranged or divorced husband in a Walmart parking lot in Louisiana.

Uh She claimed it was self defense. The state obviously claimed it was murder and uh and US CC A paid the 1st $50,000 of her legal expenses. She was a paid up US CC A member and then decided not to pay any more.

And in court filings or explanation was we don’t think we have any obligation to pay period that she sued them to meet their obligations to her.

Uh So when I asked US CC A whom I know I was on their legal advisory board for some years before this event.

Um I called my contacts there and said, hey, what’s going on? Why aren’t you covering this member? They’re like, oh, we can’t talk about it. We’re in litigation which is fine, but it doesn’t answer the question. So ultimately, Kayla Giles would go on to be convicted of the murder of her husband.

Uh We’ll never know if she would have been convicted, But for the lack of resources that US CC A had promised to provide to her as a paid up member, the amount of resources you can bring to the legal fight is the same as in any kind of fight.

Folks.

We’d like to think it doesn’t make a difference. What kind of justice you get depending on how much money you have for the fight. But in fact, it makes a big difference.

That’s why US CC A exists on the promise that it will provide those very resources it itself says are vital to a legal defense, but which had failed to provide to Kayla Giles and failed to provide to Alan Coley with no very good explanation.

So now we have this case out of New Mexico just came out of the New Mexico Supreme Court earlier this week, I think on Monday and uh it involves a defendant on appeal and appellant uh who shot and killed somebody. And at his trial, he requested a self defense jury instruction. He says, when you claim self defense, you’re always saying folks, you’re saying yes, I shot that person. You’re not denying you shot them. You can’t simultaneously say it wasn’t me.

And I did it in self defense, right? That wouldn’t make any sense. So anytime you claim self defense, you’re saying it was me, it was me.

I shot that guy but I did it with the legal justification of self defense.

The moment you raise the legal defense of self defense, it’s called a legal defense of confession and avoidance for a reason because you’re confessing not necessarily to a crime but to the underlying conduct. You’re not denying it was you who shot that dude? You’re saying it was you, you’re not saying I have an alibi. I was someplace else.

You’re saying I was right there and I fired that bullet into him and killed him. But I did it with the legal justification and self defense.

Well, what do you think happens when the legal justification of self defense is taken off the table? Then all that’s left of that statement is not, I shot and killed him in self defense but merely I shot and killed him, period.

So it’s a big deal when self defense cannot be argued to the jury after an attempt to do so because you’ve essentially then simply confessed to the crime. That’s what happened to this defendant and he was convicted at trial because the jury was denied a self defense jury instruction by the trial judge, he was convicted, he appealed his conviction. This degree of murder in New Mexico is potentially a capital crime.

Very common.

Capital crimes can be immediately appealed. Capital convictions can be immediately appealed to the state’s highest court.

So you skip any intermediate appellate courts, you go right to the Supreme Court of your state. That’s what happened here.

The New Mexico Supreme Court reviewed this appeal and concluded that the trial judge was correct. It was appropriate not to give a self-defense jury instruction to the jury.

In this case, this defendant at trial was appropriately denied the ability to attempt to justify his use of force of self defense.

You don’t have a, a perfect claim to self defense folks an absolute right to argue self defense to a jury.

You have to qualify to argue self defense to a jury here. The trial court said you don’t qualify in the New Mexico Supreme Court agreed. So the conviction is affirmed.

It’s worth understanding how this can happen because this is one of the circumstances in which any legal service provider like us CC A like CCW safe, like um attorneys on retainer are different because they’re not really a um an insurance type of policy. They’re actually the attorneys who would be representing you.

Um But anybody providing what might be called self defense insurance, uh they’re going to have conditions on providing that insurance.

And this scenario is one of those in which I think it would be unfortunate but reasonable for one of these companies to say, you know what we’re, we’re not gonna cover you if this set of circumstances had existed with respect to Kayla Giles or Alan Coley. I think US CC A would have been in a very defensible position for not covering those two members. Unfortunately, for US CC A, they had nothing like this kind of substantive argument for why they failed to cover their members. All right.

So we’ll circle back to some of that. But let me jump into the formal launch of today’s show. Here we go.

And the sponsor of today’s show is CCW Safe.

One of these providers of legal service memberships, what many people mistakenly call self-defense insurance in full transparency. A competitor to us CC A which I’m highly critical of uh a competitor to Americans on uh retainer. Uh who I like a lot.

I’ve spoken with those guys.

I think they do great work. They, what they offer is different than what these other companies offer.

Attorneys on retainer offers actual legal representation, not reimbursing your legal expenses for legal representation. So it’s a different kind of offering.

Uh but the attorneys are to strike me as smart, capable defense attorneys.

I would have no qualms about them representing me.

Uh if I was involved in the use of force event, so they may be a good fit for you. Something to consider the best fit for me.

I found is CCW safe. I think the world of those guys, I do a lot of partnering with them.

Uh, they do more than just pay your legal expenses. They also fly in, in an investigative team of experienced homicide detectives, uh, that are employed by CCW safe.

So you have your own investigators working on the scene. Normally as the defender, the only investigators working the scene work for the prosecution.

You think that biases things a little bit maybe? Um So they also have attorney Don West as their national trial counsel, Don West was one of the attorneys for George Zimmerman along with Mark o’mara. Those guys did a perfect legal defense of Zimmerman should be taught in every law school in the country. Uh I think the world of done any legal defense with Don West participating is head and shoulders above one that does not have him participating for all those reasons. I urge you to take a look at CCW safe if you’re interested in this kind of coverage.

I’m personally a member of CCW Safe.

My wife Emily is personally a member. I trust them if you’d like to know why I trust them.

I have a little video that explains exactly that you can view that at law of self defense.com/trust.

And when you go to that URL, you also get a 10% discount code you can use when you become a member of CCW safe. Again, that’s law of self defense.com/trust.

So that the case we’re gonna talk about here, uh New Mexico V Hubble just handed down by the New Mexico Supreme Court that it’s a uh example of the type of case where I think any of these companies would be justified in including CCWC um would be justified in not providing coverage. Uh is one of the points I want to illustrate here today. Another point worth making is how so many states in this particular case, New Mexico make their use of force law, their self defense law more complicated, less transparent, less clear than it needs to be.

And that’s, that’s a function of the state legislature and the appellate courts who create the case law.

And that’s equally as valid law as a statute. And it just makes it much more difficult for normal people, lay people to understand their legal privilege to use force in lawful self defense or defense of another or defense of property because it makes the law really complicated to understand. And we’ll see that as we go through the decision. Now, at law of self defense, we have a very straightforward framework for understanding.

Use of force law are five elements of self defense.

These are the building blocks of any defensive persons claim in any us state or jurisdiction. It’s a common framework to all the states and that’s because use of force law is very old law.

It’s very well established law, it doesn’t change very often and then only around the margins.

Now, these five elements I talk about are innocence, imminence, proportionality, avoidance and reasonableness. Now, it’s up to five elements. It’s quite common for one or more of these elements to be legally waived and not required. For example, most states are stand your ground.

States, they don’t have a generalized legal duty to retreat before you can use even deadly force in self defense.

There’s only 11 states that impose a generalized legal duty to retreat before you can use deadly force in self defense. 39 states don’t.

So the large majority, 80% of states or stand your ground, states not duty to retreat. States and the stand your ground. States don’t impose that generalized legal duty that takes away the element of avoidance here.

Avoidance has to do with whether or not you have a generalized legal duty to retreat before you can use deadly force and self defense.

If you take away avoidance, you go from five elements to four elements. There are circumstances in which you may be defending your home against a forcible and unlawful intruder. In which case, arguably, four of the five elements go away.

The important part is there’s not 500 building blocks of a claim of self defense.

There’s not even 50 there’s only up to five, maybe not even five worst case scenario is five. I’ll explain it briefly. I will mention we do have a little cheat sheet that we make available. Here’s uh I guess I should put it right set up.

Here’s my copy here.

We make this available for free to everybody. You can get it at law of self defense.com/elements.

It lists the five elements, innocence, imminence, proportionality, avoidance and reasonableness provides a brief explanation of each. If you don’t understand these five elements, you can’t possibly understand self defense or defense of others law period. Um And so you, you need to know this information.

We make this cheat sheet available for free folks.

We don’t charge a penny for it.

You can get it at law of self defense.com/elements. So what do I mean, what do, what do these five elements mean? Innocence, imminence, proportionality, avoidance and reasonable. So, in a nutshell, innocence means you were not the initial unlawful aggressor in the confrontation.

You didn’t start the fight. Obviously, self defense is intended to allow the victim of unlawful aggression to defend themselves against that aggression.

It’s not intended to justify the acts of the unlawful acts of the aggressor.

So you have to have the element of innocence. Imminence means the threat you’re defending yourself against is either actually occurring, you’re taking the beating or the shots are being fired at you or they’re immediately about to occur. They are not some past threat that’s already over.

There are not some future speculative threat that may never happen.

It’s either actually occurring or immediately about to occur. That’s the element of imminence, proportionality has to do with the intensity of force being used.

Generally speaking, you can only use deadly force in self defense if you’re facing a deadly force threat, deadly, meaning reasonably likely to cause death or serious bodily injury, some kind of maiming injury. If you use deadly force in defense against a non deadly threat, you’ve gone disproportional, you lose the element of proportionality, avoidance.

We’ve already talked about.

Do you have a generalized legal duty to retreat before you can use deadly force and self defense? And have you violated that legal duty? Did you have a safe avenue of retreat and not take it? And reasonableness is a two part element, subjective reasonableness, meaning your genuine good faith belief in the need to use force and self defense as you did.

But that genuine good faith belief is not by itself enough, it also needs to be objectively reasonable.

So you have a subjective reasonableness and an objective reasonableness, objective, meaning that whatever you may have been thinking a hypothetical, reasonable and prudent person in similar circumstances with similar skills with similar training and experience would have shared your subjective belief. Your subjective belief cannot have been irrational or speculative or imaginative that would not be inadequate. Now, these five elements are cumulative. So I mentioned earlier, sometimes not all five are required one or more may be legally waived, but any that are not legally waived, any that are required, well, are required and they’re cumulative. So they’re all required, which means that all of these elements can be thought of as a target of attack for the prosecution because you don’t need to prove self defense at trial.

The state has to disprove self defense and they have to do that beyond a reasonable doubt, but they accomplish that not necessarily by disproving your claim of self defense in its entirety, but by disproving anyone of the required elements of self defense.

So you might have, if imagine a scenario, you’re in a jurisdiction where all five elements are required all the time for of them could be 100 and 50% in your favor. But if the state can disprove one of them beyond a reasonable doubt, your entire claim of self defense collapses ceases to exist. So when we look at New Mexico Law, there is a New Mexico statute, self defense statute.

It’s in the homicide section of their law.

Let me expand it here and it’s remarkably unhelpful. So this is the relevant portion for us today.

Uh New Mexico Statute 30-2 dash seven. Justifiable homicide by citizen homicide. Homicide merely means by the way, the killing one person killing another. A homicide is not necessarily a crime.

A killing in self defense is a, is a homicide, one person killing another, but it’s a justified homicide, not a crime, an unjustified homicide would be a murder or a manslaughter, an unlawful killing.

So here, homicide is justifiable when committed by any person in any of the following cases, when committed in the necessary defense of his life, his family or his property or in necessarily defending against any unlawful actions directed against himself, uh, himself, his wife or family. That doesn’t really tell you how to figure out if it was, if it was done. If the force was lawfully in necessary defense of, for example, your life, it says if it was lawful, then it’s not a crime.

Well, ok, it seems rather obvious, but it doesn’t tell you how to figure out if it was lawful.

It doesn’t, for example, step through the actual elements that have to be present for your use of force to be lawful or alternatively the elements, any of which if disproven beyond a reasonable doubt makes your use of force unlawful to find this, these elements in New Mexico Law, you have to move past the statute to New Mexico jury instructions.

Now, jury instructions are not technically a source of law, an authoritative source of law sources of law are the constitution of a particular state and, and, and various federal constitutional provisions and laws as well. But I, I’m not going to get into that deep end of the pool. Let’s stick to just the state level. So it’s whatever the state constitution calls for and then statutes passed by the legislature enacted into law and case law appellate court decisions are just as valid law as our statutes.

The appellate courts of course, are interpreting and applying statutes to real people in real cases. And it’s the appellate courts that have to take a justifiable homicide statute like the one in New Mexico and flush it out with the actual conditions that have to be met for the homicide to be justifiable because the statute doesn’t do it.

The legislature in New Mexico did not do that. They left it to the appellate courts to define those elements.

And so case law is um is as valid as any legislative statute.

Important to keep in mind where jury instructions become helpful is jury instructions tend to be an amalgamation of statutory language and how the ca the, the appellate courts want that statutory language applied. In other words, it’s a, it’s a amalgamation of the statutory language and the case law that has fleshed out the statute so they can be practically applied to real people in real cases. Now, New Mexico’s uh self defense jury instruction does that. Here’s jury instruction. 1451 83 self defense, Deadly Force by defendant.

We’ll focus here in the deadly force realm because that’s what the case we’ll be looking at involves. And if we look through this, we begin to spot the five elements I’ve been talking about innocence, imminence, proportionality, avoidance, and reasonableness.

Unfortunately, we don’t see them.

And as discreet a framework as I’ve provided here, they tend to be mushed together in the actual law of New Mexico, which is just sloppy legal construction. It’s just sloppy work. For example, when we look at the New Mexico jury instruction, um of course, this is the instruction given to the jury telling them how to apply the law to the facts of the case as they believe those facts that have been proven or disproven in court before them.

And the judge says to the jury, an issue in this case is whether the defendant acted in self defense, the defendant acted in self defense. If there was an appearance of immediate danger of death or great bodily harm to the defendant as a result of whatever the threat was, fill in the blank because that of course, will be very uh case specific what we actually see in this first sentence and it’s numbered number one, which might lead a reasonable person to think.

Well, this is like one condition of self defense.

In fact, we have at least three of the five elements listed here in appearance of the danger. Well, that goes to a subjective reasonableness, the subjective state of mind, I perceived a danger, right? There was an appearance of danger. That’s part of what I’m claiming immediate danger. Well, that goes to the element of imminence that the threat you’re defending yourself is either actually occurring or immediately about to occur.

It’s not in the past, it’s not in the future.

So now we have half of reasonableness element, the subjective component, we have the element of imminence. And then we have this, the danger is one of death or great bodily harm. Well, that goes to proportionality element, right, proportionality has to do with whether we’re dealing with a non deadly threat or a deadly threat, a deadly threat, meaning one readily capable of causing death or great bodily harm.

So, although this is numbered one, it actually includes arguably 2.5 elements of self defense, imminence, proportionality and the subjective portion of reasonableness.

I think that’s sloppy legal construction because I think these are all conceptually quite different things, but they’re combined here in one bullet point, numeric point, we continue. And so cumulative elements here, cumulative requirements and two, the defendant was in fact put in fear of immediate danger or great bodily harm. And because of that fear, what’s bullet 0.4? Oh, that’s the acts of the defendant and shot the aggressor uh as, as a uh because of that fear.

So here we have more elements um that he was in fear.

Again, we have immediate, we have proportionality and we have that the defendant was in fact put in fear. Now, arguably, I guess I can correct myself.

We can say that the appearance component in bullet number one might be the objective reasonableness that it’s a reasonable appearance.

They don’t have the word reasonable in there, but presumably the court would read that in and not only was there a reasonable appearance, a reasonable person would have perceived that immediate danger of death or great bodily harm. But the defendant did so that becomes subjective reasonableness and again, proportionality, great bodily harm. And we get to bullet three. So still cumulative, the apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did. This is more and more explicit, objective reasonableness.

So a reasonable and prudent person in the circumstances of the defender would have acted in the same way and then they get to the burden of persuasion here.

The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense.

If you have a reasonable doubt as to whether the defendant acted in self defense, you must find the defendant not guilty. So what are the elements we did not see here? Well, there’s really 21 is innocence and the other is avoidance, right? We have reasonableness. We have imminence.

We have um proportionality, but no mention of innocence and no mention of avoidance. Well, there’s no mention of avoidance because New Mexico is a stand your ground state.

So avoidance is legally waived as an element as a generally applied element.

Now, it is possible to regain an obligation to retreat, to regain the legal duty to retreat. And typically how that’s done is by violating the element of innocence, but we don’t see innocence nowhere in this jury instruction.

Do we see any reference to who was the aggressor in the confrontation? Well, that’s because New Mexico deals with the element of aggressor in a separate jury instruction.

So what we were just looking at was 5183 self defense, deadly force by a defendant. There’s also 5191. There’s actually two variations of this 5191 and 5191. A, but they’re substantively identical.

And this deals with the aggressor as a limitation on self-defense.

So what New Mexico has decided to do is deal with the element of innocence separately from the other elements of self defense. This jury instruction reads, if you find beyond a reasonable doubt that the defendant was the first aggressor, the initial aggressor, you must then decide whether the following exceptions apply.

Why are there exceptions? Because if you’re the first aggressor, you lose the privilege of self defense, you lose the element of innocence and innocence is always a required element of self defense. It’s never legally waived, but there are ways to recover innocence, even if you lost it. Even if you were the first aggressor, you may be able to recover innocence.

The two ways to do that are by withdrawal and communication and under circumstances of escalation. So withdrawing, communication is where you say, oh man, I, you threw the first punch, say or you shoved somebody and then you regained your senses. You were the initial physical aggressor but you changed your mind.

Oh, man.

I don’t know what I was thinking. Sorry, I’m backing up. I don’t wanna fight anymore.

Well, now for the fight to happen, the other guy has to come to you and if he does that he’s in effect become the initial aggressor in a second fight and you’ve regained your privilege of self defense in that second fight, you’re still on the hook for that shove or punch or whatever you initially did.

That could be a, a simple battery by itself. But you’ve regained your innocence by withdrawal and communication for purposes going forward. The other way to regain your innocence is if your initial use of force was merely non deadly force, it was for example, a shove and that other person responds unlawfully with a deadly force response.

They go disproportional in that case again, they’ve effectively started a second fight. They’re the initial aggressor in a deadly force fight and you’ve regained your privilege of self defense in the context of that deadly force fight.

They started again. You’re still on the hook for your initial unlawful non deadly force for that shove.

That’s a simple battery. You could still be charged with that, but you’ve regained your privilege of self defense with respect to their unlawful escalation to deadly force.

So let’s take a look at the actual language here.

If you find beyond a reasonable doubt that the defendant was the first aggressor.

They’ve lost innocence. You must then decide whether the following exception applies. Uh, let’s see, because, uh, then the defendant is no longer the first aggressor.

Number one deals with, uh, let’s see, these first two deal with, um, if the other party escalates unlawfully to deadly force, you started with non deadly force, you shoved them, they came out with a knife or a gun the way the New Mexico jury instruction addresses that the defendant was using force which would not ordinarily create a substantial risk of death or great bodily harm. So only non deadly force used by the defendant and the victim, the other party responded with force which would ordinarily create a substantial risk of death or great bodily harm. So you started a non deadly force fight, they escalate to deadly force.

That’s an exception to losing self defense because you lost the element of innocence.

You’ve in effect regained the element of innocence. If they unlawfully escalate to deadly force or the other scenario would be withdrawal in communication.

You, the defendant tried to stop the fight, you let the other party know you no longer wanted to fight and then the other party continued the fight. They’ve in essence started a second fight in which they are the unlawful aggressor. So that’s where New Mexico addresses the issue of innocence. And it’s not unusual for states to do this to treat innocence separately because it does get a little complicated because they have to deal with.

Not only the notion that you lose self defense if you lose the element of innocence because you were the initial aggressor, they also have to deal with these ways to regain innocence.

So, not uncommon.

All right, with all that in my mind. The point is when we look closely at the new Mexico law, particularly in the form of the jury instructions that amalgamates statutory and case law, we do find all the five elements that are required under New Mexico law. The only one not found is avoidance. And that’s because New Mexico does not require avoidance as a generalized element. So instead of five elements under New Mexico law, there’s only four.

Now note, however, if you violate innocence and you wanna regain innocence in a manner that’s within your control, you have to withdraw and communicate and what is withdrawal but retreat from the fight. So in effect, if you are the first aggressor, you’ve reacquired a legal duty to retreat.

But absent that normally New Mexico Law doesn’t require the element of avoidance.

In an otherwise lawful case of self defense. There’s only four elements of self defense, imminence, proportionality, avoidance, well, not avoidance, sorry, innocence, imminence, proportionality and reasonableness.

And we see all of those in New Mexico Law just not in a very well structured way with all that in mind. Let’s take a look at this case.

State v Hubble handed down uh the 10th, which was Monday, I believe, right.

It was indeed.

So just a few days ago, State of New Mexico versus Christopher Hubble, uh Christopher Hubble, the defendant. And on appeal, the appellant appeals his conviction for first degree murder, a capital felony under New Mexico law. And uh pursuant to New Mexico Court rules, any capital felony when appealed goes right to the New Mexico Supreme Court.

The defendant challenges his conviction on the grounds that the state erred in failing to provide a self defense instruction to the jury by state. Here, he means the trial court, uh the judge refused to provide a self defense instruction to the jury.

So that’s the one we’re gonna focus on. There is another ground of appeal, but it’s not relevant for our purposes. So the, the trial judge refused to give a self defense instruction to the jury and the, the defendant, the appellant says that was legal error.

My conviction should be reversed.

I I was entitled to the jury being able to consider self defense as a justification and keep in mind when you make an effort to claim self defense, you’re, it’s a, it’s a defense of confession and avoidance.

You’re necessarily conceding to the underlying conduct. You’re necessarily saying I shot that guy, but I did it in lawful self defense.

So if they take away self defense, all that’s left is a confession. So of course, there’s a woman involved in this killing. Surprise, surprise ladies don’t let the women folk get you killed.

Men choose wisely. All right, defendant and a woman, Jeanine Grell had a complicated on again off again relationship. At the time of the shooting here, defendant was living with a friend and the woman was staying in the house that defendant owned.

That seems a bad deal.

During that time, defendant picked the woman up from work and drove her home when they arrived Harley Benedict, who would be the victim of the shooting.

The fatal victim whom the woman claimed was a repair person for the air conditioner was in her front yard in his front yard. The defendant’s front yard, this is his house.

The defendant left the woman but returned less than an hour later and walked into the home unannounced believing the woman and the other man had just engaged in sexual intercourse. The defendant asked them both to leave the home immediately while the woman got dressed, the man got up into the defendant’s face and stared him down following him through a hallway. And according to the defendant cornered him again.

Defendant told the man to leave the house.

The man replied that he was not going anywhere and that defendant would have to get a gun if he wanted the man to leave.

The defendant left and told the man that he would return is it does sound like a good plan to anybody for either of these two men, folks, if you’re in an argument with someone and they leave and come back, especially if they tell you they’re coming back, they’re not leaving to buy you some, uh, candy and flowers and bring them back. They’re coming back with a weapon. They’re not done with the fight.

They just wanna arm up before they get into the fight.

That’s a bad plan for the defendant because obviously this looks then like a premeditated use of force and he looks like the initial aggressor in the fight, especially the second fight when he comes back. And it’s not a very good plan for the victim, is it? As we see, the defendant walked back to his friend’s trailer where he was staying, retrieved the keys to his truck, his AK-47 and a loaded magazine. The defendant chose the AK-47 because of its intimidating nature.

The defendant told his friend that he was going shooting and the friend testified, the defendant seemed bothered and distressed. The woman heard defendant’s truck as it approached the house and went outside to confront the defendant.

As the woman approached, the defendant waved her off and said, go get your effing boy. The woman went inside to inform the man prompting him to exit the house.

As the man exited the house, the defendant loaded the magazine into his AK-47, stepped out of the truck, took the safety off, pulled the slider. This is the court writing the Supreme Court in New Mexico they mean the bolt, of course, um pulled the slider back chambered around and started walking around the truck. The defendant testified, the man ran down the driveway towards him.

So he fired a burst of bullets pulling the trigger at least twice, killing the victim.

He knew the man was unarmed. So we have a number of problems here, don’t we? As we look back at the elements of self defense innocence, eminence, proportionality, avoidance and reasonableness in the context of this deadly force confrontation.

Who’s the initial aggressor? It sure seems like the defendant, right? He left. What was by all appearances? Only a non deadly force fight? Got a gun came back.

Now, he knows now it’s a deadly force fight.

He’s the initial deadly force aggressor. Um, what about, um, imminence? Well, imminence hardly matters because he’s causing the confrontation here. What about proportionality? Well, he escalated a non deadly force fight to a deadly force fight and he says he knows the other party is unarmed.

Can you use deadly force against someone who’s unarmed? Maybe if you can show that even in their unarmed state, they still represented a threat of deadly force. But that, that’s hard to do.

Uh, there needs to be some kind of aggravating factor. Uh There is no requirement of avoidance under New Mexico law and in terms of reasonableness, reasonableness can be thought of as an umbrella element that sits over the, all the other elements, innocence, imminence.

Proportionality was this defendant reasonably perceiving some kind of deadly force threat from this aggressor. Was he reasonably acting as the initial deadly force aggressor in this confrontation? That would be hard to justify.

So, back to the decision, the defendant’s request for a self defense jury instruction was denied by the trial judge and he was tried for willful and deliberate first degree murder.

The defendant now appeals his conviction for the murder discussion by the New Mexico Supreme Court. On this first issue of appeal, the only one we’ll be talking about today. Uh Self defense jury instruction that was denied.

The defendant argues that the court erred in failing to provide a self defense jury instruction, whether a jury instruction was properly denied is a mixed question of law and fact that the court, the New Mexico Supreme Court reviews de Novo. Now when they say De Novo, they mean they’re not assuming they’re not taking on any of the um views of the trial court. So normally trial judges get a lot of discretion, a lot of deferment from appellate courts.

When a trial court makes an evidentiary ruling.

For example, I’m going to allow this piece of evidence in or not allow this piece of evidence in or allow this witness to testify or not allow this witness to testify.

The appellate courts give a lot of def deference to the trial court. They’ll only reverse that decision. If no rational judge could have arrived at that conclusion, they’ll only reverse that decision if there’s an abuse of discretion by the trial court, which is a very high threshold. But when it comes to jury instructions, um, the appellate courts are much less inclined to provide that kind of deference in, in essence, they actually apply a legal presumption in the favor of the defender.

If there’s any view of the evidence that could support a jury instruction that the defendant asks for, the defendant is supposed to get it.

Now, it might be that 99% of the evidence is against the jury instruction and only 1% is for it, but it’s up to the jury to decide how much weight to give that 1% to decide if it’s really 1% in their mind or if it’s 100% in their mind.

So even if there’s only 1% evidence to support a jury instruction, the defendant is supposed to get the jury instruction. Uh, and in the context of self defense, because the burdens on the state to disprove self defense, beyond any reasonable doubt, all that 1% of evidence needs to do is support a view that there could be even just a reasonable doubt that it was self defense. So, in a self defense case, if the jury is instructed properly, they’re told, hey, even if you think it’s more likely than not, this was not self-defense, 51% you still have to acquit because self defense was not disproven beyond any reasonable doubt.

Even if you think it’s by clear and convincing evidence, say 75% likely it was not self-defense. That’s still an acquittal because self-defense was not disproven beyond any reasonable doubt. It has to be 95% if we’re gonna make up numbers, which I am uh not self defense in your mind for you to convict in a self defense case.

So if it has to be 95% against self defense, all the defendant has to do is get 5% 6% belief that it was self defense and the jury is instructed to acquit uh as they quote here from another decision where there is enough evidence to raise a reasonable doubt in the mind of a juror about whether the defendant lawfully acted in self defense, such that reasonable minds could differ, the self defense jury instruction should be given. So it’s a very low threshold. This actually goes to something called the burden of production.

So we’ve all heard the phrase burden of proof, right? Who bears the burden of proof, but the burden of proof actually has two components.

The, the one we’re most familiar with is properly understood as the burden of persuasion who bears the burden of persuading the jury.

On a legal question. On the issue of self defense, the burden of persuasion is on the state to disprove self defense beyond any reasonable doubt to the satisfaction of the jury. But before you ever get to the burden of persuasion before you ever get to that issue of self defense being put in front of the jury in the first place.

There’s the burden of production.

The burden of production asks. Well, is there evidence to support a self defense jury instruction? Because remember we have these cumulative elements of self defense in New Mexico for innocence, imminence, proportionality and reasonableness.

they’re all required. If anyone is missing what you did could not have been lawful self defense under New Mexico law simply as a matter of law because you’re missing a required element of self defense. And it’s up to the jury to decide if the elements been satisfied. But jurors only evaluate evidence, they’re the finder of fact.

If there’s zero evidence for them to consider, then no rational jury could decide. Well, that issue has been proven.

I looked at what I looked at the zero evidence and decided it was correct.

So if there’s zero evidence on the element of innocence or imminence or proportionality or reasonableness to support a claim of self defense, there’s nothing for the jury to consider that element cannot be proven.

Or there, there’s always, there can’t be a reasonable doubt about the element to put it more accurately, if there’s zero evidence to support a reasonable doubt. Now the amount of evidence you need is really just a scintilla, a hair 1% anything more than zero evidence should be enough to get the jury instruction. But if there’s literally zero evidence on one of the elements, one of the required elements of self defense, you can have self defense. That’s a failure of the burden of production. The burden is on the defendant to ensure that there is more than zero evidence in the record on each of the required elements.

And only if that burden of production is met, can he demand and be entitled to a self defense jury instruction? Now, it doesn’t have to be a lot of evidence. Again, it’s basically a more than zero evidence standard.

The evidence can be contested.

It doesn’t have to come from the defendant.

He doesn’t literally need, although we call it the burden of production, he doesn’t literally need to produce the evidence himself. It just needs to be somewhere in the record. It could be from state witnesses, it could be from the medical examiner’s report. It could be from a variety of places, but it needs to be in the record more than zero evidence in support of each of the elements of self defense that meets the burden production.

Only after the defendant has met the burden of production, does the burden of proof.

Now, the burden of persuasion shift to the state.

So they have the obligation to disprove one or more required element beyond a reasonable doubt. So back to the decision, uh to receive a self defense instruction there must be evidence that one, the defendant was put in fear by an apparent danger of immediate death or great bodily harm. Two, the killing resulted from that fear and three, the defendant acted as a reasonable person would act under the circumstances.

We should be able to see here that all they’re really doing is quoting the New Mexico jury instruction on self defense, right? 123, these are simply how that’s laid out.

And it has all the problems here that I pointed out with the jury instruction.

Of course, that they’re actually conflating distinct elements. They’re conflating facets of the element of reasonableness and facets of eminence and facets of proportionality, sloppy construction. In any case, the New Mexico Supreme Court says we begin by asking whether a defendant provoked the encounter and was the first aggressor by using force that created a substantial risk of death of great bodily harm. Finding that he was the first deadly force aggressor and did use that requisite force. We examined victims response.

In other words, did the defendant regain innocence? Based on this analysis, we hold that the evidence offered in this case was not sufficient to warrant an instruction on self defense in a nutshell.

They’re saying there are one or more elements for which there is zero evidence. And if there’s zero evidence on a required element of self defense, it cannot as a strictly technical legal matter, it cannot have been self defense and if it cannot have been self defense, there’s no point giving the jury an instruction on self defense that they could only arrive at irrationally in the absence of evidence.

One defendant provoked the encounter and was the first aggressor. The rule is well established in this jurisdiction that a defendant who provokes an encounter as a result of which he finds it necessary to use deadly force to defend himself is guilty of an unlawful homicide and cannot avail himself of the claim that he was acting in self defense to determine whether defendant was the first aggressor.

We must first decide whether victim, the person killed provoked the encounter. Defendant argues the victim began the violent encounter and created a substantial risk of death of great bodily harm. His theory is based on the initial interactions at the house where the victim allegedly cornered defendant and told him to go get a gun.

We addressed a similar argument in a different decision.

Lucero in Lucero, a defendant was denied a self defense instruction for a fatal shooting that resulted from a gun battle with a rival there.

The defendant alleged that the rival shattered him from his vehicle. The defendant then left the scene of the shooting and met up with some friends. The defendant later returned to the scene armed with a nine millimeter semiautomatic gun makes me think the New Mexico Supreme Court is anti Gunn.

Does it matter what kind of gun he came back with no, but they love it when they add these little details like the caliber and the manner of function.

It’s because they’re trying to make it look particularly evil. A nine millimeter semiautomatic gun. It wasn’t a 38 special revolver.

Well, legally that doesn’t matter. The defendant there ultimately encountered the rival and his companions in a vacant lot and fired the gun into the air. The action prompted the rival to draw his gun and shoot towards the defendant.

The defendant returned fire, shot two of the rivals shooters companions killing one, wounding the other.

And there the court concluded that because any appearance of danger that the rival created when he shot at the defendant from his vehicle had already dissipated. There was no appearance of immediate danger of death or great bodily harm to the defendant by the rival when the defendant drew and fired his own weapon. So if there’s a fight and that fight ends, you leave, now you’re leaving to go get a gun and come back.

But you leave that first fights over whoever was the first aggressor in that first fight doesn’t matter anymore. At least in the context of it doesn’t matter for the second fight when you come back with the gun.

Now you’re starting a second fight in which you’re the initial deadly force aggressor here. Like in that case, the defendant was the first aggressor when he returned with the A K AK-47. Whatever happened with about the argument inside the house.

When the defendant left that fight was over.

When he came back with an AK-47, it was a new fight.

There was no immediate danger of death or great bodily harm to defendant by the victim because the defendant left the house after the dissipation of any potential threat, the defendant returned to the residence armed with an AK-47. In addition to returning to the house armed with an assault rifle, defendant provoked another encounter when he told the woman to get the victim to come outside and meet him. Um So they conclude the defendant was the first aggressor.

And now they look at whether or not the defendant might have regained innocence, regain the element of innocence and therefore regain self defense and a privilege to a self defense jury instruction. Two, the exception that allows the first aggressor to invoke a claim of self defense despite being the first aggressor does not apply under the test established in Lucero that other New Mexico Supreme Court case, they’ve already mentioned under certain circumstances.

Even a first aggressor can establish a claim of self defense. If it is shown that one, the defendant was using force which would not ordinarily create a substantial risk of great bodily harm.

And two, the victim responded with force which would ordinarily create a substantial risk of death or great bodily harm. So this is regaining innocence under circumstances of escalation.

You started a non deadly force fight you shove that guy. He responded with deadly force.

He pulls out a knife or a gun.

If that happens, you’ve regained the element of innocence, you’ve regained self defense, you’ve regained a privilege to a self defense jury instruction. The court continues to determine whether the defendant created a substantial risk of death or great bodily harm. When he returned to the house called out for victim and brandish an assault rifle.

We again lean on Lucero.

We hardly need to go on here. Obviously, in this second fight, the defendant’s not creating only merely a non deadly force threat. He’s loaded up an A K.

So right away, that excludes him from the escalation method of regaining innocence because the escalation method requires that the only threat you presented was a non deadly force threat and the other party escalated to deadly force.

If you started with deadly force, there is no escalation possible. And in any case, the other party, the victim here did not himself escalate to deadly force, right? He was unarmed. Uh Now the defendant tries to find some aggravating factors here where he could argue that the victim was, even though he was unarmed was nevertheless still a deadly force threat.

The defendant also argues that he was justified in his actions because the victim was larger than the defendant. Uh in State v Heisler, the court held that the defendant was not entitled to a self defense instruction simply because there was an appreciable disparity in size there.

The unarmed victim was three inches taller and £70 heavier than the defendant and the victim had actually physically engaged.

The defendant holding him in a bear hug regardless of the size difference in physical contact. This court determined the evidence did not authorize instructions on the law of self defense. Defendant’s argument for a self defense instruction fails because the response by victim was not with force that would ordinarily create a substantial risk of death or great bodily harm.

So the defendant was the initial unlawful deadly force aggressor in the second fight.

And there were not circumstances of escalation that could regain him innocence. He’s permanently and not regained the element of innocence, which is, of course, always a required element of self defense.

And if you have no evidence to support him innocence, there’s zero evidence to support the element of innocence.

Innocence simply doesn’t exist in your claim of self defense.

And if a required element does not exist, you simply do not have self defense period, period. All right folks. So that is what I had to share with all of you today.

And I do have a, another call I have to run to. So gotta cut things a little bit short here.

Uh I’ll try to get to any Q and A from the members in the um in the chat separately in the blog playback version of today’s show.

I’ll just remind all of you 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. My family is hard to kill.

Then you also owe it to yourself and your family to make sure you know the law. So you’re hard to convict as well.

Until next time I remain attorney Andrew Branca for the law of self defense.

I forgot my conclusion here. If this had been a case where US CC A had decided not to cover this defendant because the trial judge said as a matter of law, this is not self defense. I would have said that’s a reasonable reason to not cover because it’s not self defense as a matter of law.

Unfortunately, for us CC A, that’s never been their explanation for either Alan Coley or Caleb Giles.

All right folks.

Until next time I remain attorney Andrew Branka for the law of self defense. Stay safe.