A short while ago I was interviewed by the crew over at CCW Safe, who you may know as sponsors of our content, they are providers of legal service memberships, learn more about them at http://lawofselfdefense.com/ccwsafe.
We covered a variety of topics, including the Ahmaud Arbery case, the Amber Guyger case, the five elements of self-defense, and I’m sure CCW Safe is going to put out that interview in a well-produced format as part of their own podcast content, but what I’ve done is I’ve pulled out the sections just of me responding to their questions, and I wanted to share that with all of you today.
So here are all those questions and my answers in that recent CCW safe interview, enjoy the content. Here’s the complete video version of this content—I’ve also provided question-specific videos below each question, with appropriate portions selected from this complete video.
Q1: Andrew, can you describe the competing narratives in the Amman Arbery case, the narrative of guilt and the narrative of innocence for these defendants?
A: Well, I’m not sure how familiar everybody is with the Arbery case. And of course, how people perceive it is largely going to be a function of what they’ve been exposed to in the media. Sometimes the media portrays things accurately. Sometimes it’s propaganda. Sometimes we just don’t really know what the truth is in many of these cases.
Just as background, Ahmaud Arbery was running through a neighborhood in Georgia. He was perceived by some of the local residents as being a burglary suspect of the community. There was a home under construction in the neighborhood that had been repeatedly unlawfully entered, property had been stolen from it $1,000s worth of property. The intruder had been caught on video, and sometimes eye-witnessed, and it appeared to be someone who looked a lot like Mr. Arbery.
So when these neighbors saw Ahmaud running through the neighborhood, they perceived him as a felony burglar in flight from the scene, pursued him in their pickup truck while armed, a confrontation ensued, and Ahmaud Arbery ended up getting killed in that confrontation.
Those three men were involved in their pursuit, one of whom did the infamous cell phone video of it, they’re now facing charges of murder, felony murder, four counts of that, I believe, a couple of counts of aggravated assault, unlawful imprisonment, and attempted criminal action, which is really attempted unlawful imprisonment as well. So they’re basically looking at the rest of their lives in prison if they’re convicted of these charges.
So the opposing narratives in the case are, basically, on one side that there was a young black man just recreationally jogging through a neighborhood when he was pursued by these three racist white guys who murdered him for being black.
The other narrative is these are upstanding, these three men were upstanding members of their community, some former law enforcement, former Coast Guard, they reasonably perceived a felony burglar in flight from their neighborhood. They decided to do a citizen’s arrest under Georgia law. In the course of that citizen’s arrest, they will say, they were attacked by Ahmaud Arbery. And it was during that attack, defending themselves from that attack, that Arbery ended up getting shot with a shotgun and killed as a result.
And the first thing I’d like to say, by the way, is it should go without saying, but sometimes this is overlooked when people get heated about these things, it’s a tragedy that Ahmaud Arbery is dead. I’m sure everyone would wish that was not the case, that this had gone a different way. It’s not a good thing that he died. So I just want to make clear to everybody upfront, that’s certainly my position. I’m sure it’s all our positions. This is terrible. It’s terrible for his family. And by the way, it’s no picnic, either, for these defendants and their family. I mean, this is a disaster for everybody involved.
That said, my expertise is the legal issues. And it should also be said that we don’t really know, we almost never really know what’s in people’s minds, what’s in their hearts. Was there a racist intent here? You know, we can’t know these things. But in a court of law, we have to go with what the evidence actually is and reasonable inferences we can make from that evidence and apply that within the context of the applicable law that governs the situation.
And the laws here would be things like Georgia’s then-existing citizen’s arrest law, which was—and by the way, I also feel obliged to say, please, folks don’t go making citizen’s arrest. I just, I want to discourage everybody from doing that. You know, there’s no question in my mind that this pursuit, this attempt to make us citizen’s arise, this was incredibly imprudent behavior. These were poor decisions. There’s other things that could have been done.
Having said that, that doesn’t mean those imprudent decisions were crimes. It doesn’t mean the consequences were criminal for these defendants. So I don’t think anyone should be making a citizen’s arrest, unless, you know, go to the police academy, get a badge, become a cop if you want to be arresting people, that’s fine.
But it has to be said the Georgia citizen’s arrest statute that was in effect at the time was unbelievably broad. And it was very old. And that’s part of the problem here, I think. It was codified in the 1860s, a time when there were not a lot of formal professional police departments. You know, the citizenry in much of the country was basically the law enforcement. And that’s how this statute is framed, is giving individuals the private right to make an arrest when they reasonably perceive a felony or somebody in flight from a felony. And that’s the law under which these men need to be judged.
The difficulty, of course, is a law that seemed reasonable in 1865 seems less reasonable in 2020, or 2021. And, in fact, that’s why Georgia has since repealed that citizen’s arrest law. But in fact, what the men were doing under the law at the time may well have been perfectly lawful.
And if the pursuit was lawful, and the stop was lawful—and that follows if the citizen’s arrest would have been lawful—then their use of force is best characterized as self-defense, when they were charged by Arbery.
I apologize. Obviously, I talked a great deal, so I should give someone else an opportunity.
Q2: Andrew, is there evidence of Ahmaud Arbery charging the defendants in this case?
A: Oh, that’s for certain there’s no question about that. The culmination of the fight has the pickup truck with the father and son, Travis McMichael [the son] and Greg McMichael [the father]. They’re in the forward vehicle. This is being recorded by the third gentleman in a separate rear vehicle, from his cell phone camera.
But the two the two men who were most engaged in the fight were Travis McMichael and Greg McMichael. At the time of the culminating event, they were actually stopped, their pickup truck was stopped in the street, Travis McMichael was standing beside the pickup truck outside of the driver side door. The father was in the bed of the pickup truck.
But they weren’t closing on anybody. They were in a static position. It was Ahmaud Arbery who was running directly at them. And, frankly, in what I can only characterize this as a charging situation. I mean, there’s 360 degrees you can run, he was running directly at Travis McMichael standing outside the truck. Then as he got closer on our break, kind of veered around the right side of the truck got to the front edge of the far edge of the truck, cut sharply to the left and charged and came to grips and started punching Travis McMichael in the head.
So that moment of aggression was clearly on the part of Ahmaud Arbery.
The difficulty that comes in is that it assumes that the stop, the pursuit, was lawful in the context of lawful self-defense, that there was good motive for these men being out there in the street in the truck armed in the first place.
If that’s not true, if you don’t believe, for example, that they had a reasonable belief that he was a felon in flight from a burglary, well, then you could argue that in fact, their conduct was an act of aggression against which Mr. Arbery was attempting to defend himself.
So that whole context of that citizen’s arrest law is going to be really, really pivotal.
Q3: Andrew did Mr. Arbery have any prior encounters with law enforcement?
A: Oh, he had a number of them. Now, whether those will be relevant for this trial is a different question entirely.
But yeah, he was, I mean, basically, he was a known thief in the community. He had a felony conviction for theft for stealing a television out of a Walmart. The local convenience store owners knew him, they called him “the jogger” because he would pretend to be jogging, and then, by the store, then dash and grab some stuff, and dash back out again. When pursued by police, he would routinely, when caught say, Well, I was just running through the neighborhood. So this was a common excuse he would use.
He also had a felony conviction for gun possession, he brought a gun into a school, he was on probation for that, a five-year sentence served on probation, when he ended up getting killed on February 23, 2020.
So he had plenty of interactions with the law and there’s a lot of evidence that he was psychiatrically unstable and tended towards violence. His mother had a confrontation with him where she had to call police because he took her car keys and wouldn’t return her car keys. She didn’t know what else to do. She calls police, and she tells the police Hey, listen, be careful because if you actually try to arrest him, he’s likely to become violent.
So these are all kinds of characteristics that anybody who looks at the evidence would know.
That doesn’t mean the jury will ever hear any of that, because it may well not be legally relevant to the criminal charges in this case.
So, for example, the McMichaels, the defendants in this case, they wouldn’t have known anything about Arbery’s psychiatric history. They may not have known anything about his criminal background. It’s a little awkward, because one of the McMichaels, the father [Greg] had worked for a local prosecutor’s office, and had been part of the investigation into Arbery for the gun felony, that bringing the gun into the school property crime. So he knew Arbery in that context, in one sense, but it’s not clear that, we don’t believe that he knew it was that Arbery he was chasing down the street.
Q4: Andrew wouldn’t Arbery’s prior felony convictions, psychiatric illness, history of violence, wouldn’t that give him a motive to fight?
A: Well, maybe. And that would be an argument for trying to get some of this evidence admissible in court. I mean, there’s really two bases on which it could be admissible. We’re talking about things like our Arbery’s state of mind, and how he tended to conduct himself, and so forth.
And one would be if the defendant knew him and knew of that character, and therefore, that played a role in their decision-making in use-of-force. For example, if they knew he had a tendency to violence, well, that would be relevant because it goes to their state of mind. It would appear they didn’t know any of that at the time. So it wouldn’t be admissible for purposes of the defendants’ state of mind, the reasonableness of their perceptions of a threat, for example, or of a felon in flight from a burglary.
But the other way it might be admissible is not for the defendants’ state of mind, but for our Arery’s state of mind. In other words, what would motivate him to charge a man in open possession of a shotgun? I think there’s a good argument to be made there for the evidence to be admissible for that limited purpose.
But as a general rule, a lot of this evidence would be labeled as character evidence, you can’t introduce character evidence simply to show a propensity for someone to do something, in court, there has to be a different rationale. There are rationales that exist here, rationales that go to motive, and things like that, but so far the judge has not allowed–
So, the psychiatric evidence appears to be completely out, because Georgia has a blanket exclusion, inadmissibility, for psychiatric evidence.
But there’s a lot of other evidence that’s been put forward, that the parties have argued back and forth, whether or not it should be admissible, and the judge has yet to make a decision.
And now we’re on our fourth day of jury selection, and, frankly, we don’t know yet what evidence is going to be permitted to be argued in court. Which is a little awkward, because that frames what legal arguments you plan to make, and that framing would largely guide the kinds of questions you’d be asking during jury selection. So frankly, the means that part of it seems like a bit of a mess, like these questions should have been answered long before we got to the jury selection process.
Q5: Andrew, can you quickly explain the five elements of any claim of self-defense justification for a use of force event?
A: Sure. So for folks who don’t know, here at Law of Self Defense we basically define the legal defense of self-defense as consisting of up to five elements. Sometimes all those five elements don’t apply, and they wouldn’t in Georgia, but I’ll list the five elements. And then, if you don’t mind, I’ll tell people where they can get a free infographic that lists these five elements, so they can just have this free PDF.
But the five elements are Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. They can get that infographic at http://lawofselfdefense.com/elements, it doesn’t cost a penny, folks. And if you don’t understand these five elements, you can’t really understand self-defense law. So I would urge you to download that infographic at http://lawofselfdefense.com/elements.
And the way those five elements work is, each of them is essentially a required component of a claim of self-defense. And to defeat your claim of self-defense, the prosecution has to defeat one of those required elements beyond a reasonable doubt. But if they do that, if the prosecution can do that, then self-defense, it’s rather like an old school light switch, it’s either on or off. So if any one of the required elements is disproven beyond a reasonable doubt, in the judgment of the jury, well, then your claim of self-defense isn’t just diminished, it’s gone. It’s obliterated.
Which is a little awkward, because an inherent part of claiming self-defense in the first place, is that you committed the underlying physical act, you’re conceding that. You’re not saying it wasn’t me who fired the shot, I was someplace else, I have an alibi. You’re saying the opposite of that. You’re saying it was me, I shot back guy, but I had the legal justification of self-defense.
Well, if the prosecution can obliterate your legal defense and self-defense, all that’s left of that statement is that I shot that guy, period. And that’s largely a confession to the underlying crime. So very important that you have a robust base of those five elements to make sure that your claim of self-defense is difficult to effectively attack and destroy.
I mean, one of the catchphrases we have here at law, self-defense is, you know, if “you carry a gun so you’re hard to kill, then know the law so you’re hard to convict.” And that doesn’t mean legal tricks, or fooling the criminal justice system, it means know what the law actually is, know what these five elements actually are, so you can constrain your use-of-force within those boundaries.
And if you do that, you’re genuinely hard to convict. But if you mess up and make it easy for the prosecution to destroy one of those five elements, well, then you’ve basically handed him a walk away conviction, you’ve made his day easy.
And the way those elements work is again, they are Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
Innocence, meaning you can’t have been the initial aggressor in the fight. The initial aggressor can’t claim self-defense as a justification for his use of force.
Imminence, the threat you’re defending yourself against has to either be in progress, you’re actually being attacked, or immediately about to occur, it can’t be some past threat, it can’t be some speculative future threat that may never happen, it has to be an imminent threat.
Proportionality has to do with the degree of force involved. In short, you can only use deadly force to defend yourself against a deadly force attack.
Avoidance has to do with whether or not you’re in one of the 11 states, we’re down to 11 now, that impose a legal duty to retreat. Georgia does not, so for purposes of this discussion the element of avoidance doesn’t apply in an otherwise lawful case of self-defense.
And then we have that fifth element of Reasonableness. And this is kind of an amorphous umbrella element that sits over all the others. Everything that you perceive, that you decide, that you do in self-defense has to be the perceptions, decisions, the actions of a hypothetical, reasonable and prudent person.
So you have to have subjectively believed it was necessary to act in self-defense as you did, and a hypothetical reasonable person in the same circumstances would also have believed it was necessary to act that way. So a genuine but irrational belief in the need to act in self-defense wouldn’t be sufficient, it has to be a genuine and reasonable belief in the need to act in self-defense.
So anytime you want to understand whether or not somebody who used force was likely lawful self-defense, you can apply that five-element framework.
And it applies it in all 50 states, folks, there’s very little—self-defense laws are about 80% the same across the states. Of course, the variance matters, that can make the difference between, you know, a guilty or not guilty verdict at the end.
But the overall framework is fairly consistent. And that’s a reflection of how old this law is. I mean, we in America inherited all this from Old English common law, they had a well-established framework back then. And all the states essentially apply the same pattern, which is why this five elements framework works so generally across the country.
Q6: Andrew, can you expand on the element of Reasonableness and what makes it particularly dangerous in self-defense law?
A: It’s very dangerous. I mean, if you look, if any of the audience looks, at your state’s self-defense statutes, they will see “reasonableness” or some variant of “reasonableness” everywhere across those self-defense statutes, sometimes multiple times in a single sentence in a self-defense statute.
And that reflects the weight and importance that the law puts on that particular element. And unfortunately, it’s always a judgment call. And it’s a judgment call that’s not made by you. It doesn’t matter whether you thought what you did was reasonable. It matters whether other people, in hindsight, think it was reasonable, whether the police, the prosecutor, the judge, particularly the jury, decide it was reasonable. And you don’t have any control over how they’re going to perceive things.
I always caution people that the cases I work on, we often tell the clients that, listen, if we put you in front of a jury, there’s something like a 10% chance you get convicted, no matter how innocent you are, that’s just part of the noise in the system.
And a large part of that noise is ambiguity around things like “reasonable.” Maybe you genuinely thought it was reasonable, maybe I would think it was reasonable, but there’s always a risk a jury won’t. And it’s their decision that controls your fate.
I always caution people, listen, before you get in that physical confrontation, keep in mind the moment you do, you’ve lost control, your fate, other people now control it, whether or not you’re going to spend the rest of your life and life in a cage with unpleasant people. That’s not in your hands anymore. That’s in other people’s hands. Those are the stakes. So if you’re going to get into a fight, make sure what you’re fighting for is worth that kind of risk.
Q7: Andrew, can we get your thoughts on the amber Geiger wrong apartment case?
A: Guyger was a really interesting case because it really seemed to me that she subjectively, genuinely believed she had encountered an intruder in her own apartment.
And by the way, in this apartment complex where this happened, something like 30% of the residents had either walked into the wrong apartment or had other people walk into their apartment. That’s how identical these apartments looked. So it’s not hard to imagine that someone could be an innocent intruder into the wrong apartment without intending any particular malice, believe they were going into the wrong place.
And suddenly, you see an intruder, you’re cop, so you’re armed with the gun, the gun comes out, you fired the shot. I don’t think there’s any question that she committed the killing with malice aforethought, for example. I think she genuinely thought she was facing an intruder.
So the subjective part of reasonableness, I think, was there. It’s the objective part, would a hypothetical reasonable and prudent person have come to that same perception? If not, well, then she fails that element of Reasonableness for self-defense.
And normally what happens under that circumstance is, what would have been a murder conviction gets mitigated to a manslaughter conviction, a form of what they call imperfect self-defense. And I believe that Guyger was at my recollection, I didn’t prepare my mind with this case before coming on with you folks, but my recollection is she was actually convicted of murder, but she was sentenced to something that was much more akin to a manslaughter sentence [10 years] than a murder sentence [life in prison without possibility of early release].
And maybe she serves, I don’t know what the rules are for this in Texas, but a third, or 40%, or whatever they do, if there’s good behavior, which I think you could expect in her circumstance. And so she’ll probably do three or four years, and then she’ll be out. I mean, she’ll be a convicted felon, obviously for the rest of her life. You know, it sounds horrible, three or four years in prison, and I’m sure it is horrible. But it’s a lot better than life in prison without possibility of early release, which is what she could have been looking at.
Q8: Andrew can two people in a fight both be acting in lawful self-defense?
A: I mean, it’s just like getting into, you know, a third party confrontation, coming to the rescue of some stranger, for example, you don’t really know what’s going on.
And you know, it can be quite possible in self-defense cases for two parties to be using force against each other, and they’re both doing it lawfully, because their use of force, the merits of it, the legal merits, are largely judged from their perspective.
For example, it’s not unusual for plainclothes police officers who go to, like, a rambunctious scene, like an active shooter scene, to shoot each other. The two police officers shoot each other because they reasonably perceive each other as potentially being the armed aggressor that they’re rushing there to stop. And both of them firing rounds at each other are actually doing so lawfully if their perception of the other as an unlawful deadly force threat is a reasonable perception under the circumstances. And unfortunately, sometimes one of those officers ends up getting killed.
And it’s still, as tragic as it is, it’s still lawful. I mean, there’s a phrase for those cases, awful but lawful.
Q9: Andrew, is the legitimacy of the initial citizen’s arrest the real key to this Ahmaud Arbery. trial.
A: Yes, I mean, to my mind with this case, if we start with the presumption that the citizen’s arrest would have been lawful, and that’s a big presumption, but for argument’s sake, if we start with the presumption that the citizen’s arrest was lawful, well, if it would have been lawful to arrest Arbery, and the Georgia statute says arrest of a fleeing felon, basically, well, the only way to arrest a fleeing felon is to pursue and stop that person.
So if the citizen’s arrest would have been lawful, then their pursuit was lawful, then the stopping was lawful, and then they were, the McMichaels were, acting lawfully when Arbery charged them. And it doesn’t matter what might have been in Arbery’s head himself, that’s not relevant to their decision-making in self-defense.
But I think the crux of the argument is going to be whether or not that citizen’s arrest was, in fact, lawful.
Q10: Andrew, what’s the best way for people to learn how Law of Self Defense LLC helps people make better informed, more confident, more decisive and more lawful decisions in defense of themselves, their family and their property?
A: Probably the best way for people to reach out to me is actually to simultaneously get a free copy of our book, “The Law of Self-defense.” They can get that at http://lawofselfdefense.com/freebook, it’s an actual physical book. We do ask that people pay the shipping to get the book to them, but the $25 cost of the book we eat. We just try to get the word out so people understand what the actual law of self-defense is, to be better able to make well-informed, confident, more decisive decisions and self-defense.
OK, folks, that’s all I have for you on this topic.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
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