Welcome to this episode of our ONLY open-access content, our weekly News/Q&A Show. A transcript of the show is available at the Law of Self Defense Blog (http://lawofselfdefense.com/blog), with links to all relevant content mentioned.
In today’s News/Q&A Show for August 12, 2021 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:
NEWS
- MO Governor Pardons Mark and Patricia McCloskey
- TX Court of Appeals Affirms Amber Guyger Conviction
- Increasing Legal Hazards of Even Lawful Citizen’s Arrest
Citizen’s arrest of man found rummaging through construction site pickup truck.
Car Burglar Held at Gunpoint by Good Samaritan Awaiting Police
- Trial Updates: Ahmaud Arbery Case, Rittenhouse Case, shooting of Ma’Khia Bryant
UPDATED: Video Legal Analysis: Two Recent Police Shootings of Knife-wielding Aggressors
Q&A
- Defending against attacks by people wielding paintball guns?
- Defending against attacks where I risk of losing control of own gun?
- Defending against felony attacks where risk of deadly force not obvious?
- Can my training/qualifications be used against me in court?
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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
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If the McCloskeys had stayed inside their home, what would have prevented the rioters from setting fire to it? Not saying that the rioters would have in this instance, but how else do you prevent your home from being burned with you inside other than going outside your home?
I believe an AR rifle is capable of firing from the inside of a home to the outside of the home, should an arson be attempted. What, by the way, was the evidence of imminent arson? We’re incendiaries observed? We’re other structures being fired?
If the protester had said “I’m gonna burn your house down”, is that sufficient? Do I need to see evidence of incendiary or other structure fires? Let’s take it as a given that some of these protests have been known to cause fires, without knowing any more about this particular protest.
A verbal threat alone–meaning ALONE–is never sufficient to justify a use of force. There must also be some physical conduct consistent with carrying out that threat imminently. A verbal threat can, however, greatly reduce the degree of accompanying physical action one needs to see to discern an imminent threat. “I’m going to burn down your house,” accompanied by retrieving a gas can out of hiding, could well be sufficient to justify deadly defensive force. Certainly holding a Molotov cocktail in one hand a lighter in the other would be sufficient, accompanied by a verbal threat to bring those items to bear–indeed, if the physical conduct alone is sufficiently threatening by its own nature, no accompanying verbal threat is required.
I am logged in and on your blog. There is no transcript of the show available and no links to relevant content mentioned. There hasn’t been a transcript available since June. I prefer to read the transcript of the show, doesn’t take near as long as having to watch it. Have you changed how this works or what?
Guess I should have checked my E-mail. Just forget I said anything.
Thanks for your answer on the strong arm robbery question. Based on current case law in California, people vs ceballos 1974 states in short that justifiable homicide to stop a felony is only justified if the felony qualifies as an atrocious crime such as robbery, rape, mayhem, or murder. My guess is the strong arm robbery would only qualify if there was a reasonable threat of deadly force. So it would essentially depend on the exact facts of the case.
Robbery always qualifies as a deadly force threat. The doctrine that you can kill a robber with impunity is just as old or older than the Castle Doctrine, the legal doctrine that holds that you can kill a trespasser with impunity if he attempts to enter or enters your castle with force and violence. Common law robbery and common law burglary were both capital offenses under the common law and the law gave victims of a robbery or burglary the permission of the law to kill the offender to protect themselves from these offenses. The command or the permission of the law for a killing is what justifies a homicide.
The facts of a case that would justify a homicide in prevention of robbery or burglary are the facts that would show that there was a robbery or burglary in progress at the time of the homicide.
I took this example from the website https://www.shouselaw.com/ca/defense/legal-defenses/self-defense/
The attorneys here seem to disagree
Example:
Isabelle is walking home from work during the day. She is in a crowded neighborhood and a man runs up to her and grabs her purse. Isabelle takes a knife from her jacket and stabs the man in the neck – killing him.
Here, Isabelle would fail in using self-defense as a legal defense. There was no real danger of her being killed or suffering great bodily injury. Further, she used more force than was necessary.
Maybe the attorney who wrote this example made a mistake
No, the attorney did not make a mistake. In the example given there is no use or threatened use of physical force against Isabelle’s person that would cause her any physical injury. You can’t use physical force in defense of persons (self defense) unless there is a use or imminent use of physical force against your person. Isabelle’s use of force was a use of force in defense of property and the use of deadly force in defense of property is strictly limited to defense of highly defensable property such as habitation.
The use of physical force to defend yourself from a felony robbery is a use of physical force in defense of persons, a use of physical force to protect yourself from the robber’s threatened use of physical force upon your person, not a use of deadly physical force to protect your property.
“Robbery always qualifies as a deadly force threat” So my example proved you wrong then.
A purse snatch is a form of a felony strong arm robbery. Whether there existed a danger of great bodily harm to the robbery victim like I said the first time just depends on the facts of the case which a jury would have to determine. Purse snatching can very easily turn into a risk of GBI if for example the robber began to punch the robbery victim in the head, or if the robber started dragging the victim to another location, multiple attackers, etc. I would probably agree that if the robber and victim were in a tug of war over the purse then it would be hard to make an argument for a danger of GBI unless there was some other exacerbating factor.
John Doe. The common law of England didn’t consider the picking of pockets to be a robbery or a use of physical force against the person. It was merely a misdomeanor theft. Purse snatching wouldn’t be any different in any state in the United States unless the legislature of the state had specifically defined the offense of purse snatching as a robbery by statute and made it a felony offense.
Robbery, by definition, always involves a use or imminent use of unlawful felony force upon the robbery victim and the robbery victim’s use of proportional force (force that would otherwise be unlawful felony force) is always justified when it is necessary to prevent another’s use or imminent use of unlawful felony force.
Thanks, Andrew!
The Guyger jury didn’t find that the prosecution proved her guilty. The jury decided that the law didn’t matter because she was white and Jean was black.
There’s no such thing as a “reasonable mistake”. A mistake is always wrong, by definition, so how can anyone determine whether or not it’s reasonable?
Anyway, Texas Penal Code 8.02 Mistake of Fact doesn’t say that the MISTAKE has to be reasonable, but that the BELIEF formed as a RESULT of that mistake must be reasonable, perhaps a subtle distinction, but a very important one. Guyger had good REASON to believe that an intruder was in her apartment, an absolute excuse to a murder charge.
This is ludicrous. There is no subtle distinction between “mistake that formed a reasonable belief” and “reasonable mistake.” A mistake cannot exist in and of itself. There aren’t mistakes simply floating around out there. Mistakes must have causes. There are times when you don’t know it’s a mistake until after the fact. Your behavior can be perfectly reasonable and legal, even after it is discovered to be mistaken. There is no contradiction to say “reasonable mistake.” Why? Because there are unreasonable mistakes.
I pointed a loaded gun at someone just standing there, put my finger on the trigger and accidentally pulled it and killed someone. Ooops. Mistake.
At night, someone threatened to kill me and subsequently pulled a gun out of his waistband, I shot that person dead and later found out his gun was a toy. Mistake.
Guyger had no legit reason to shoot Botham Jean dead. That’s why she is in jail, that’s why she lost her appeal.
We NEVER know we’re making a mistake until afterwards. If we knew at the time, it wouldn’t be a mistake, but willful misconduct.
Your examples are ludicrous. Pointing a loaded gun, finger on trigger, at someone “just standing there” isn’t a “mistake of fact”; it’s a stupid, negligent, criminal act.
Your second example is not quite analogous to the Guyger case, because Jean didn’t do any criminal act to threaten Guyger, and it’s not a mistake to defend your life against a perceived deadly attack.
A closer parallel is Oscar Pistorius. If he truly thought there was an intruder behind that door instead of Reeva Steenkamp, a mistake of fact, he was justified in shooting. As with Guyger, there may have been a racial, rather than legal or factual, basis for the prosecution and conviction.
Arguing about the reasonableness of Guyger’s mistake was nothing but a debate about whether or not the Mistake of Fact law applied to her. The jury said no.