Kyle’s Law: Democrat Horrified Prosecutors Might Be Held Accountable

Well, this elicited a chuckle when it came across my news feed.  Apparently, the Left is already panicking about my proposed Kyle’s Law, even though “proposed” is a bit extravagant for a single-page notion hosted on the web site of a small-town lawyer in Colorado.

If you’re unfamiliar with Kyle’s Law, you can learn more about join the rapidly expanding Kyle’s Law community, right here:  Kyle’s Law: Stop Politically-Motivated Prosecutions of Self-Defense.

It seems a New Hampshire state representative is in a bit of a twist over my Kyle’s Law proposal.  Katherine Rogers of Concord represents Merrimack District 28 in the NH House of Representatives—and, yes, she’s a Democrat.

Although she doesn’t credit the Kyle’s Law she’s criticizing to me, the details she discusses are, to my knowledge, found only in my proposal (at least, I’ve seen no other prior to mine).

You can click here to find the full-text of her editorial published in a local New Hampshire newspaper—My Turn: Kyle’s Law is wrong for New Hampshire—I’ll just hit the high points myself here.

Representative Rogers writes:

[S]ome in New Hampshire are pushing to pass “Kyle’s Law.” This wolf in sheep’s clothing is being offered as a way to “prevent politically motivated prosecutions of defendants claiming self-defense in gun-related incidents.”

Good heavens, no!  A wolf in sheep’s clothing!  Good thing I have a gun!

If this proposal were to become law in New Hampshire, it would effectively ensure that anyone claiming self-defense will have a protective barrier around them against anyone questioning whether, in fact, the claim is valid.

Kyle’s Law would not prevent anybody from questioning anyone about any use-of-force event. Indeed, I would encourage prosecutors to investigate any use-of-force event involving deadly force of any type.

All Kyle’s Law says is that before a prosecutor drags a person with an arguable claim of self-defense into a trial where they’ll be required to disprove self-defense beyond any reasonable doubt, they ought first be confident that they can at least show disproof of self-defense by at least a preponderance of the evidence.

Any prosecutor not confident that he has 51% proof in hand has no business dragging someone into a costly and dangerous trial where the standard for guilt is more like 90%. That’s rather the whole point.

“Kyle’s Law” would require the jury instruction on self-defense include a special question to the jury: “If you the jury are acquitting this defendant on the grounds of self-defense, do you also find that the prosecution failed to disprove self-defense by a majority of the evidence?”

She finally got something right!

If the jury answers this in the positive, the defendant is entitled to compensation not only from the state but also from the prosecutor personally. Additionally, the charging police officer will be held accountable as well.

Honest charging officers have nothing to worry about.  The ones lying on criminal complaints that unjustly drag innocent people i to trials that can easily cost $100,000s and carry at least a 10% chance of conviction no matter how innocent they may actually be?  Well, yeah—but shouldn’t charging officers who swear false complaints with such outcomes be made to feel worried?

This is wrong for New Hampshire and throws the idea of law and order on its head. Here are reasons why “Kyle’s Law” should be rejected.

OK, great, let’s hear this genius opposing argument!

One — What qualifies any jury to make a judgment on the performance of the prosecutor and whether it is a politically motivated case? How does this get decided?

Apparently Karen—sorry, Katherine!—is struggling cognitively with these pretty simple concepts. As she already noted, the special jury form proposed doesn’t ask the jury to determine whether a prosecution was “politically motivated.”

It merely asks whether a prosecutor who has been telling a court through an entire trial that he can reasonably expect to prove the self-defense defendant guilty beyond a reasonable doubt failed to even show proof by a mere preponderance of the evidence.

As to who decides whether one side in a trial has met a burden of proof by a preponderance of the evidence—that’s the job of the jury in every civil case in America, an assessment that civil juries are expected to carry out, and do carry out, many thousands of times a day all across America.

She continues:

A prosecutor is acting in good faith, within the scope of the authority they possess, based on evidence, case law and precedence.

As Judge Bruce Schroeder shouted at Prosecutor T. Claire Binger in the Kyle Rittenhouse trial:  “I DON’T BELIEVE YOU!”  If people really believed that prosecutors were acting in good faith, we wouldn’t see this tremendous energy and support behind Kyle’s Law.

Further, no prosecutor actually acting in good faith would ever be subject to Kyle’s Law—all they have to do is not drag a self-defense defendant into a destructive and dangerous trial unless they start that trial confident that they have at least 51% proof against self-defense.

That’s what we used to call in the old days, “probable cause,” and is what’s required for a mere arrest. Surely the standard for a full-blown trial should be no less.

Adding personal liability to their performance would mean prosecutors won’t proceed in any case against a person who could claim self-defense.

No, Katherine—it means they can proceed against every person claiming self-defense, where the prosecutor has probable cause to begin that trial. If probable cause can be demonstrated, Kyle’s Law is off the table, nothing to fear there. Any prosecutor afraid of Kyle’s Law is afraid only because they are bringing self-defense defendants to trial in the absence of probable cause.

And, yes, those prosecutors should be held accountable—exactly as Kyle’s Law proposes.

This litmus test would be unlike anything else in our criminal justice system and open a wide door for abuse.

Actually, probable cause is a standard threshold in the criminal justice system  Indeed, it’s what’s required even for a mere arrest. Shouldn’t the threshold for compelling a self-defense defendant into a multi-hundred-thousand-dollar trial and the risk of life imprisonment be at least as high as the threshold for a mere arrest?

And the “wide for abuse” is the privilege currently exercised by politically-motivated prosecutors to expose self-defense defendants to the costs and risks of a trial in the absence of probable cause.

Two — This would only expand the use of the self-defense defense to include almost every case in which someone feels threatened. Self-defense claims will skyrocket as defendants see the legal loophole for getting away with criminal activity.

Amazing.  Katherine wants people to not be able to claim self-defense too much.  Just white people, Katherine?  Or does she want the ability of black victims of criminal predation to have less privilege to defend themselves, too? What about women targeted by rapists, don’t want them to claim self-defense after they win that fight just because they “felt threatened,” do we?

One wonders exactly who Katherine thinks is supposed to feel comfortable claiming self-defense, if not people who used force defensively while they were being threatened.

Three — This effectively legalizes vigilante justice. Law enforcement is not a private right. Our state must offer public safety in the form of state or local police forces.

Well, if Katherine is equating “self-defense” with “vigilantism,” and she wants to do away with “vigilantism,” that means she wants to do away with “self-defense.”

In case you had any doubt about what Democrats would like to do to the legal defense of self-defense.

After all, who needs self-defense when we have the state and local police forces to protect us, right?  Like the state and local police forces protected George Zimmerman from Trayvon Martin’s attack?  Or Kyle Rittenhouse from the attack of a serial child rapist? Or the entire city of Kenosha from a looting, rioting, burning horde?

Or like the state and local police forces protected the 1,300,000 Americans who were victims of violent crime in the United States last year? Oh, wait, those 1,300,000 Americans were actual crime victims, so the state and local police forces apparently are unable to actually prevent violent crime! Who knew! Guess those people should not have a privilege to defend themselves, then, eh Katherine?

While every citizen has the right to self-defense, we do not have the right to put ourselves in positions of danger every chance we get and to invite others to attack us for no reason.

This, of course, is mere emoting.  Nobody actually puts themselves in positions of danger “every chance they get,” and anybody inviting (provoking) an attack is a defendant a prosecutor will have no difficulty convicting on the legal merits.

Four — Combined with “stand your ground” and “concealed carry” laws, “Kyle’s Law” will only add to the idea that we are less a civilized government than a self-policing, ‘shoot em up’ tribal anarchy that lives day to day by the rule of survival of the fittest. We make our society far less safe this way.

I would suggest that the dangers of anarchy aren’t going to be the eventual consequence of Kyle’s Law, but rather that Kyle’s Law is a response to the unjust treatment of lawful defenders compelled to deal with the actual anarchy already being visited upon otherwise safe communities by the political left and their policies.

Isn’t it time to pass reasonable gun violence prevention statutes and stop coming up with dangerous alternatives like “Kyle’s Law?”

Someone should let Katherine know that guns don’t self-animate and commit acts of violence—bad people do that. The bad people that attack the self-defense defender’s, too often followed by bad prosecutors then attack a second time with unjust prosecutions in which the trial process itself is used as a tool of punishment despite the apparent innocence of the defendant.

That’s why Kyle’s Law is so necessary.

Life is not a video game. You only get one life. Our laws should reflect that reality.

Indeed, and that one life should be neither stolen by a criminal predator nor destroyed by an unjust prosecution.

So I guess that’s finally, Katherine and I can agree on something—I look forward to her future support of Kyle’s Law in New Hampshire, the Live Free or Die state!

Remember, you can learn more about Kyle’s Law and join the rapidly expanding Kyle’s Law community, right here:  Kyle’s Law: Stop Politically-Motivated Prosecutions of Self-Defense.

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

 

17 thoughts on “Kyle’s Law: Democrat Horrified Prosecutors Might Be Held Accountable”

  1. Anthony Cieszkiewicz

    Congratulations as you evidently hit a raw nerve addressing malicious prosecution by liberal DAs in particular.

    Is the judge’s failure to clarify the laws grounds for an appeal?

    1. Attorney Andrew Branca

      Jury instruction issues are ALWAYS grounds for appeal.

      Still, appeals are for losers–it’s an uphill battle no matter what.

      And a win just means another trial, not an acquittal.

  2. Great write up! David Kenik aptly stated, “…they call it a criminal justice system for a reason…”

    Here in Maryland, Charles Dorsey shot and unfortunately killed Gary Espinoza after Mr. Espinoza communicated a felony threat through the front door, then broke through the front door and was shot. Mr Dorsey was my student for the Handgun Qualification License (HQL). He was a meek, non aggressive, passive person who told me in class he hopes to never have to use deadly force, but unfortunately he was forced to defend his home. It was an awful case of mistaken address (again). He was facing possible criminal charges in Howard County (dem run county) for a long, grueling five weeks. The charges never came to fruition, but Mr. Dorsey likely didn’t get his retainer fee back from his defense attorney (I don’t know those facts).

    I surmise the reason charges were not filed due to the facts of the case, but because Mr. Dorsey is African American and well, his race card was punched and he was set free. The reason I make this statement is because this incident was all over the local news, albeit Mr. Dorsey’s photo never appeared in the stories and the rumors swirled it was some guy in a white community shooting an assumed illegal alien. Then the Nest Doorbell video of the arrest of Mr. Dorsey made the rounds and the story was dropped overnight.

    Political motivations? You bet. Kyles Law should be the standard in our judicial system!

  3. Andrew: Keep up the good work! I hope you continue to grow your influence both with respect to the judicial system and with respect to new legislation to protect the right of self-defense. It would be great if Kyle’s law can gain some political traction. I live in California, so no chance here, but one thing I like about our laboratory of democracy, there are some red states where this might happen.

  4. They have something like this going in Missouri, only it is called McCloskey’s Law. I have see a copy of it and the people that are promoting it are so ignorant of the law that it make you embarassed to even have them have them “on your side.”

    I would like to see you draft a model “Kyles Law” and make it available so it everyone could support and provide it to their state reps. and senators for enactment.

    1. Attorney Andrew Branca

      I’m told that a legislator in OK announced a “Kyle’s Law” shortly after my blog post on the matter–I have reason to believe he modeled it after what I suggested, which is totally fine with me, rather the whole point. His bill is not yet online, last I looked, but it may already be what we need without me needing to play legislator.

      1. I see I made a typo. I HAVEN’T seen a copy of it and from his discription of it, it won’t make it through the judicial committee. Probably won’t even get anyone to sponser it. You have to keep those kind of laws low profile. No use of inflamatory terms and you want them to be understood to simply restate exising substantive law in a clearer manner to make those laws stronger, rather that being something new and radical. People are scared of radical change.

  5. cbthayer12@gmail.com

    Two thoughts:
    First: Why should this be limited to Self-Defense cases? Any case (especially a felony) is a huge burden on a citizen and the prosecution should have at least a better than “flip of the coin” likelihood of a conviction.
    Second: It seems the argument has been for YEARS that the “poor and minority groups” have been victims of the justice system steamrolling them unfairly. “Kyle’s Law” would seem especially useful in protecting the “weaker citizens” from the power particularly of an oppressive justice system. It seems this democrat has lost touch with the “poor victim” stories her ilk have espoused for YEARS.

  6. I would differ with respect to the personal liability of prosecutors, at least as far as making it impossible for the state to indemnify them. I want the people at the top to feel the pain. It would be satisfactory to me to see the criteria Andrew described give rise to a civil cause of action against the state with provisions for serious statutory, even punitive, damages. Imagine that. Wouldn’t it be an interesting turn of events to have Benjamin Crump show up to file such a lawsuit on behalf of somebody politically prosecuted for lawful self-defense. What’s good for the goose, as they say.

    1. Benjamin Crump could show up and file a lawsuit on behalf of somebody politically prosecuted for lawful self-defense. It would have to be a case where there was no probable cause to arrest or prosecute and that is a pretty low standard of proof though. I followed the McCloskey case pretty close and there was no probable cause in that case. I haven’t followed the Arbery case closely enough to say there wasn’t probable cause because probable cause can be based on something the defendants said and the defendants in that case didn’t have enough sense to keep their mouths shut. Hell, Greg McMichael is the person who leaked the video to the media for publicaton.

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