Law of Self Defense News/Q&A Show: June 17, 2021
The Law of Self Defense content you’re about to enjoy is presented for general educational purposes only. It does not constitute legal advice. If you are in need of legal advice, consult competent legal counsel in the relevant jurisdiction.
Hey, folks, Attorney Andrew Branca here from Law of Self Defense with our weekly Law of Self Defense News and Q&A sSow for June 17 2021.
Welcome everybody. This is the Law of Self Defense News and Q&A Show for June 17 2021. We have a bunch of stuff to discuss today. So I’ll prepare to dive right into it. For those of you who may be uncertain about whether they’d like to hang in there for the whole show, we do have a number of news stories to share with you.
One is about civilians, innocent bystanders coming to the assistance of a police officer. The facts of the new story aren’t that important. But I’d like to talk about the possible legal implications of coming to the aid of an officer:
Another case about the police who shoot a man who himself was holding a shoplifter at gunpoint:
Another case about murder charges being dismissed at trial by a judge, which almost never happens:
And finally, another case in which charges were dismissed during deliberations after the jury started looking up definitions to terms.
And all of these news stories will be linked in the text version of today’s content, which you can always find at the Law of Self Defense website.
After those news items and my comments on those, we’ll get to the Q&A section. We have a couple of interesting questions in from members.
One of those was the legal implications about exiting your home or place of business to go investigating suspicious activity such as gunshots or breaking glass outside or things of that sort, the legal implications around investigating that kind of disturbing events outside of your home or business.
And then a second question came in that raises a really a common question within the self-defense community that I’ve seen come up time and time again, again, it’s one we address with regularity in our law of self-defense level one class, and that is whether if you’re carrying a gun, for self-defense, you increase your legal risks in a prosecution if you’re also carrying pepper spray.
In other words, it’s an argument that if you you’re carrying pepper spray, a prosecutor might argue, hey, you didn’t actually have to shoot that guy, you could have just pepper sprayed him, therefore arguing that your use of deadly force was unlawful because you had pepper spray as an option, a defensive option. So we’ll address that question as well.
By the way, if you’d like to send in questions for us to consider not today’s show, but for next week’s show, you can always send us questions to email@example.com. Let me see if I can pull up that email address for all of you who are watching this on video. That’s firstname.lastname@example.org.
And we’ll take those questions under advisement for a future News and Q&A Show, which we do every week, every Thursday at 4pm. Eastern time.
If you are a platinum member of Law of Self Defense, then I urge you to use the Platinum member Q&A form on your member dashboard. Your questions are guaranteed to be answered and if private, if you prefer, just indicate as much when you submit your question.
But everyone else can just send their questions to email@example.com.
So let me jump into these news items.
The first that came to my attention this week was one involved in assisting a police officer and the facts of the new story aren’t that important to what I want to talk about really. An officer was involved in making an arrest the suspects fight the officer. The suspect was apparently about to achieve control of the officer’s gun and fortunately innocent bystanders came to the officers assistance. cane let me fix this issue. bystanders came to the officer’s assistance and helped gain control the suspect and everything all ended well for, I guess everybody but the suspect.
And I want to preface my comments by saying I’m not telling people to not assist police officers. I don’t tell people what to do. I only try to make people aware of the possible legal consequences of a course of action. So when they make their decision, they’re making a well informed decision.
And also, just because the decision has legal risks, or a course of action has legal risks, doesn’t mean you don’t do it. It just means you do it. informed of those legal risks.
Now, we may think that coming to the assistance of a police officer is something that could not possibly raise legal complications for you. And perhaps there was a day and age in which that would have been largely true, but we don’t live in that day and age anymore.
A police officer, especially if they’re a white officer involved in the violent arrest of a black suspect, are increasingly in high profile cases being prosecuted themselves for their use of force on that suspect. And sometimes acquitted. And sometimes, as we just saw in the George Floyd case, convicted and likely to be sentenced to much of the rest of their life in prison.
And when you think about as a bystander, not a sworn officer, having no legal duty to intervene, when you think about intervening in an event where it looks like the officer needs assistance, I would urge you to consider what happens to other police officers who assist that lead officer.
And the George Floyd case is a great example of that. We had the lead officer who was just tried and convicted, who was kneeling on George Floyd’s neck. And he had three other officers who were assisting him in that arrest. And they’ve all been charged as accessories.
Now, imagine that you were assisting a police officer in making an arrest, a violent arrest of a suspect of a different race or ethnic background. And there’s a bad outcome to the arrest, the suspect dies, for example, or suffers some serious bodily injury is paralyzed, as we’ve seen in another recent case, right? The Jacob Blake case.
And imagine that officer’s conduct gets portrayed as a racist use of force by the officer, the officer is prosecuted aggressively, portrayed as a racist police officer, “ACAB”, right, in the modern anti police lexicon, The officer’s prosecuted vigorously by the state and convicted.
Do you think you wouldn’t find yourself charged as an accessory in that case? Other police officers who would have assisted are finding themselves prosecuted as accessories in those cases. So you need to be aware of that that’s a genuine risk. If that officer is portrayed as some kind of racist killer and you help him, in that narrative,you were helping a racist killer.
And there’s only upside for a prosecutor to bring charges against you, bring you to trial, destroy you financially, try to put you in prison for the rest of your life. If possible. There’s only upside for a prosecutor to do that. There’s no self-interest on his part that would discourage him from doing that.
So that doesn’t mean that if you see an officer in trouble, you don’t help if you think it’s appropriate to do that, under the circumstance. Just keep in mind in today’s day and age, I mean, listen, officers themselves are leaving their departments in droves. They don’t want to do the job. The risks are too high.
So just be aware, you’ve come to the assistance of an officer. It’s not just the officer incurring risk of possible prosecution of a use of force event goes bad. It’s anybody who assisted that officer, whether that’s fellow officers, or whether that’s a bystander who thought they were doing the right thing by helping.
Okay, and again, that new story, the new story itself is not important. It’s the broader topic I wanted to share, but it will be linked. The underlying new story will be linked in the text content of today’s the text version of today’s content.
Another news story that came to my attention was the police shooting and killing of an armed citizen who was holding a shoplifter at gun point.
So there was a shoplifting, apparently genuinely occurred. A bystander ,not someone who worked for the store, not a loss prevention employee, just a bystander perceived the shoplifting, decided to hold the shoplifter at gunpoint.
The police were called, and when the police arrived at scene what did they see? They saw one guy holding a gun on another guy. And the police say they shouted at the man with the gun to put the gun down. He did not do so, so the police shot him. It looked initially as if he were seriously injured but likely to recover but he ultimately died of the gunshot wounds inflicted by the police.
Now when he was still alive, the police were actually saying hey, once this guy’s out of the hospital, we’re going to charge him criminally. What would they charge him with? Well probably aggravated assault with a firearm because you can’t point a gun at someone for a simple property crime, for a shoplifting crime that involves no threat to persons.
There’s no deadly force threat there. There’s no deadly force threat. There’s no justification for a threat of deadly defensive force.
Now, there are of course, the great exception about deadly force in defense of property being in Texas, this did not happen in Texas would not apply. In any case, this is precisely the kind of case that a prosecutor even in Texas would be inclined to put to the test. Because the man holding the purported shoplifter gunpoint had no personal interest in the property, had no stake in the events taking place, and decided he was going to threaten someone with deadly force.
It also, of course, raises the obvious issue of anytime you’re pointing a gun at someone in public, no matter how justified imagine in this case, it was entirely justified, which it does not appear to be. But imagine there actually was a threat to innocent life and the bystander or the gun owner pointing the gun at the suspect had good lawful reason for pointing his gun at that suspect.
The cops don’t know any of that, when they show up. When the cops show up, they see a guy pointing a gun. And if they demand that you drop your gun, well, you better get it down fast. In fact, it would be great if you were sufficiently aware of your environment, which should not be too much to ask that you are aware of the cops were about to arrive on scene and your gun was out of sight when they got there. If that’s at all practically feasible, but if it’s not, the cops are going to roll up, see someone they don’t know, you, with a gun.
Especially, by the way, if they’re responding to a shots fired call, so they’re expecting gun violence to be in play. You look like that guy. The stakes, the risks are extremely high, the prospects of getting shot by police very high.
If you present as a deadly force threat to arriving officers, don’t be surprised if you get treated as a deadly force threat by the officers.
And please, folks, whatever you do, don’t get those concealed carry badges, don’t get some kind of armband that says good guy, or whatever they put on these armbands. Nobody knows what those mean. Having a badge if you’re not a cop is only a formula for trouble. Trust me, it doesn’t help you, police don’t like it, when they roll up and discover you have a badge, a fake badge in their eyes, of course. And it is fake if you believe that a badge can only be held by someone who has that badge by lawful authority of the state. And it’s just not going to help keep you from getting shot in this kind of scenario. So be aware of your environment.
Now why did this guy not drop his gun when the police told him? I don’t know, the news story doesn’t say, doesn’t provide a reasonable explanation. For all we know the guy was deaf, couldn’t hear the commands. If you’re deaf, that’s really high-risk conduct to engage in, folks. Perhaps the guy with the gun was under enormous stress, auditory exclusion. Again, we don’t know. What we do know is he was holding a gun when the cops rolled up, didn’t lower it when the cops told him to, and they shot him and killed them.
So if you’re going to have a gun out, even if it’s for totally lawful reasons, if the cops shoot you because they have a reasonable perception that you’re an imminent, deadly force threat to themselves or other innocent people, that’s a lawful shoot, no matter how justified you might have been in having your gun out. So take appropriate caution.
And again, I’ll have that news story linked in the text version of today’s content.
There was another case that I thought was interesting because it involved the dismissal of murder charges. Now, again, the facts of this case aren’t that important. The case involves the suspect, the defendant who happens to be black. He was at a party apparently. By the way, he’s the brother of some other famous black person, a woman who’s an actress or an athlete or I don’t know who she is, but every new story in this case says that she’s famous, so presumably, she’s well known in certain circles.
In any case, this was her brother, he was at a party. Lots of people at the party, two people were shot and killed at the party. There was apparently a witness who described what the shooter was wearing clothing similar to what this defendant was wearing.
But in fact, the evidence around the case appears to have been remarkably weak in terms of identifying this particular defendant as the man who fired the shots that killed the two victims.
He actually went on the trial at least a couple of times before. One resulted in a mistrial. The other resulted in the conviction that was reversed. So he was going to trial the third time now.
And anytime you’re going to a criminal trial, one of the pro forma things your lawyer will do is before you get to trial, there’ll be a probable cause hearing. At that hearing your defense attorney will argue that there’s insufficient evidence to support probable cause in this case and ask that the charges against you be dismissed.
That’s almost always denied. The prosecution doesn’t generally get a case to that point unless there is sufficient evidence for at least probable cause.
Then when you actually get to trial, one of the first things a defense counsel is likely to do is ask for the charges to be dismissed, again, on the grounds that given the available evidence, and by then both parties should effectively know all the available evidence, that given the available evidence, no reasonable jury could find that the crime charged has been proven beyond a reasonable doubt.
What kind of circumstances could lead to that conclusion? Well, it might be, for example, that a crime might have several elements. And one of the required elements. In fact, there’s zero evidence to support that element. While there’s zero evidence to support a required element, then the crime can’t be proven beyond a reasonable doubt. Because while one of the required elements is zero, evidence can’t be proven of the zero evidence.
But again, generally, this kind of motion to dismiss charges is made and then dismissed by the judge, not granted by the trial judge, because again, the prosecution doesn’t generally get a case to that point, unless they have their ducks in a row and have made sure they have at least a prima facia, at least some superficial evidence on each element of the crime.
And once they have that, once there’s more than zero evidence on each element of the crime, then it’s really up to the jury to decide what weight and credibility to give that piece of evidence. So generally, the trial goes forward.
Here we have a very unusual case—and this was a murder case—in which the trial judge at the start of the trial, simply dismissed all the charges, said that, in fact, agreed with defense counsel that the evidence on hand was not sufficient for a reasonable jury to find that the charge of murder, two counts of murder, had been proven beyond a reasonable doubt.
The one witness they had who provided a physical description that kind of matched the defendant, well, the description only matched about 75%. A couple of other witnesses that they were supposed to show up for trial for the state, and provide compelling testimony, in fact, suddenly disappeared just before trial. So the prosecution was not able to produce those key witnesses.
And without them, the judge decided that there simply was not enough evidence that would allow a jury to conclude guilt beyond a reasonable doubt,e and dismissed the murder charges right there.
That never happens, folks, but it happened here, the exception that proves the rule. So if you want to see a case where that happened, well, I’ll link that new story again, in the text version of today’s content.
Finally, we have a case, a really an odd case out of New Hampshire, it involved some conflict between BLM/Antifa protesters on the one hand, and somebody who decided to do kind of a, I don’t know, counterprotest by himself and a buddy driving in a pickup truck, big Trump flag on the back, drove by the protestors, there were curses, “you’re number one!” hand signals were exchanged.
Someone apparently threw a water bottle at the truck, the truck stopped, the defendant got out waving a gun. Now the crowd was approaching him. So ,he’s arguing self defense in this trial.
So anyway, there was a crowd approaching him when he after he stopped his pickup truck. He’s waving his gun around. He’s asking basically, if anybody wants some trouble. He’s claiming self-defense. And he pulled his gun because he was being approached by the crowd.
Of course, if you’re provoker of a conflict, well, you lose the element of Innocence and you lose self-defense. So, it’s not a very compelling self-defense claim here. He decided he was going to trial on this, effectively, he was charged with aggravated assault with a firearm. Nobody was actually shot in this particular case. He’s going to trial, and in my opinion, doesn’t look good for him. It looks like he went out looking for a fight, found a fight, started threatening people with deadly force under circumstances in which he had probably lost the element of Innocence because he’d provoked the confrontation.
Now, of course, I’m sure his defense counsel has a counter argument to that, some argument consistent with the legal justification of self-defense. That’s what his defense counsel is being paid to do.
But as it turns out, it’s not going to come to any final adjudication in this trial, because the jurors during deliberations went online and began to look up definitions of terms like provoker, aggressor. And these are terms of art in this context, these are exclusionary factors for a claim of self-defense. They would be, and were, defined by the judge in the jury instructions on self-defense and how to lose self-defense, to the extent that the judge thought appropriate to define those terms.
Now, not every word in the jury instruction may be defined by a judge. Sometimes the court simply says just use your common sense understanding of what that word means. In this particular case, it appears at least a couple of jurors were confused about that, decided to go online and find their own definitions.
Folks, as a juror you’re required to arrive at a verdict based solely on the legal arguments, evidence, and jury instructions given to you in court. You may not leverage outside sources of information. One of the key roles of a trial is to act as a gatekeeper on the information, on the legal arguments, on the evidence, on the jury instructions that a jury is allowed to have and consider in their deliberations.
If the judge does not give it to you, you’re not allowed to use it. You certainly can’t go online and start researching stuff that the trial judge has not agreed that you should have.
And so this guy who acted stupidly, even if his conduct was ultimately legally justified, which seems unlikely, but this defendant who acted rather stupidly, getting himself into a confrontation where he had to start waving a gun around, he gets a free pass on this trial.
Now, the prosecutors, of course, are already saying they’re going to retry him, try him again. The mistrial here is a win from a defense counsel’s perspective, he’s not convicted, he’s not going to be sentenced to some lengthy term in prison, at least not yet. So, you get another bite at the apple, at self-defense. A mistrial is a win for the defense every day of the week.
I do caution people just be aware when you go for a retrial, whatever resources you had for the first trial have already been expended. Most people will expend a large proportion of their resources to avoid going to jail for a decade or two. Often, they’re left with very few resources for a second trial. So, it’s not the same battle anymore. You had an army, a legal army, for the first trial. That legal army is expended. Now, you don’t have that anymore for the second trial.
And by the way, the prosecution knows that you’re much less resourced in a retrial than you were in a first trial. In this particular case, it appears this defendant was sufficiently destitute and lacking in resources that he had a public defender, even for his first trial. So he’ll just have a public defender again for his second trial. And I don’t expect the outcome there to be, frankly, anything but guilty in that second trial as well.
But nevertheless, it’s an unusual case in which we see a trial abruptly brought to an end with a mistrial during deliberations, the most final possible stage of the trial proceedings, because of jury misconduct in going online, when they’re not supposed to, and looking up outside sources of information beyond those that were provided in court.
Okay, folks, and again, that news story will also be linked in the text version of today’s content. Those are all the news stories I wanted to cover.
So we’ll jump into the Q&A portion of the show. And I just want to mention again, if you’d like to submit questions for next week’s Q&A show, you can do that by emailing them to us at firstname.lastname@example.org. If you are a Law of Self Defense Platinum member, then I would encourage you to use the Platinum Q&A form on your member dashboard as those questions get prioritized. And in fact, they’re guaranteed to be answered and privately if that’s what you prefer.
Next up is the Q&A portion of the show. So I’ll answer a couple of questions that were submitted to us beforehand, and then time allowing, I will answer your questions live. So, if you’re watching this live on the Law of Self Defense member dashboard or on the Law of Self Defense Facebook page, before we close out the show, if time permits, we’ll scroll through the comments for any questions that might have been asked live and do our best to address those.
Now before we jump into the substance of today’s content, I do, of course, need to mention today’s sponsor, CCW Safe, a provider of legal service memberships, what many people mistakenly call self-defense insurance. CCW Safe in effect promises to pay their member’s legal expenses if their member is involved in a use of force event.
And those expenses start big and get bigger, fast, folks. For example, imagine a case where you were threatened, you displayed your gun, you didn’t fire a shot didn’t hurt anybody—and now you find yourself charged with aggravated assault with a firearm, typically a 10-year felony.
If you’re charged with aggravated assault with a firearm, you’re looking at a retainer to your lead counsel on the order of $30,000 to $50,000. And that’s just for pre-trial work, folks, that’s not for going to trial. If it’s a killing case, where you’re charged with manslaughter or murder, you’re easily looking at $100,000 or $200,000 pre-trial expense, and just multiply that for the trial.
If you don’t have that kind of money stuffed in your mattress just in case you’re compelled to defend yourself or your family, it can be useful to have a financial partner standing behind you to make sure you have the resources you need to fight the legal battle, the way you want it fought—as if your life depended on it. Because, really, it does. And that’s what CCW Safe offers to do for its members.
There are several companies out there that offer similar services. I’ve looked at all of them, as you might imagine, and I found that CCW Safe is the best fit for me personally. I’m a member of CCW Safe, my wife Emily is a member of CCW Safe.
One of the biggest reasons I favored CCW Safe over other similar offerings is that many of those others simply don’t provide the level of resources you need for an adequate legal defense. If you’re looking at a “self-defense insurance” offer that caps out at $150,000 or $250,000 for criminal legal defense, that’s simply not enough for a murder or manslaughter trial if you’ve killed someone in self-defense, as I’ve already discussed. In contrast, CCW Safe promises to pay what the defense costs, period, with no such cap. Read the fine print, folks, and understand what you’re getting—and not getting—from any such offering you’re considering.
Having said that CCW Safe is the best fit for me, whether they are the best fit for you is something only you can decide. But I do encourage you to take a look at what they have to offer by clicking the image or link below:
Okay, folks, let’s jump now in to our Q&A section. So we have two major questions that were sent in, both by Law of Self Defense Platinum members. There were some other questions also emailed in, but we prioritize our Platinum member questions, as I mentioned. And I expect we’ll just have time for these two because they’re a little bit lengthy, and any time that is remaining we’ll devote that to any live questions that were submitted in the comments during the live show.
Investigating Disturbance Outside Home/Office
So, the first question comes in from Jim B, a Platinum member of Law of Self Defense. And he asks about a scenario in which he hears noise outside his office or his home, or some other structure. And his question, he specifies shots being fired. But more broadly, it could be glass breaking, it could be sounds of struggle, it could be something disturbing happening outside your office, home, or any other building you’re in.
And he asks, Is it safe, legally speaking, for me to inspect and secure the property? He says, I have no doubt hiding family or employees in a room and remaining on guard inside may put me in a better position for legal defense, or may create higher risk. How do I minimize the prosecution’s ability to convict if I presumably, if he goes out to investigate ends up and use the force confrontation? How will the fact that he went out to investigate implicate his legal defense?
So let’s assume that his use of force itself is otherwise on solid ground, so he didn’t use excessive force in the circumstances and so forth. Let’s focus our attention simply on him going outside.
Now, first of all, I can tell you, the number one goal, folks is to survive the fight, right? You have to. If you don’t survive the fight, then nothing else really matters. So if I hear gunshots outside, I guarantee you there’s one thing I’m not doing unless I have reason to believe my family is out there. I’m not going out there. I’m not going out to get into what is apparently a gunfight. That’s not my job. That’s not my duty. And that’s not a situation I’m going to voluntarily put myself into.
And by the way, folks, anytime you go to what appears to be a fight, rather than the fight coming to you, it doesn’t look much like self-defense.
Now, are there exceptions to that generalization of course. We had the church shooting in Texas a year or two ago, where the gentleman in his home was notified that people were being shot in the nearby church grabbed, his own AR-15—the bad guy was also using an AR pattern rifle, apparently—good guy grabbed his AR-15, ran out into the socks, and engaged the bad guy or at least made the bad guy aware of his presence. Bad guy fled, good guy chased him, and all had a happy ending.
So, I again, I’m not telling people not to intervene. Just keep in mind what you’re doing. If you’re going out to gunshots, you’re going out to an apparent gunfight, and there better be a damn good reason for that.
Now, a mass shooting event sounds like a pretty good reason to me. An argument between two drug dealers who happened to see each other’s cars going down the street outside your business, not my circus, not my monkeys. So make sure you’re making well informed decisions.
What if it’s just noise you hear, you hear breaking glass outside in the parking lot, maybe a car is breaking broken into right? Not that unusual, especially in this era where car break-ins, simple property crimes, apparently are no longer deemed to be criminal activity. And in many of our urban centers, it’s just apparently some form of reparations to be able to steal someone’s property, steal their car, steal items from their car.
So, there’s a property theft going on. What are you going to do about that? Well, is the property in your car worth getting into a physical confrontation over? I hope not, I hope you’re not leaving stuff in your car that’s worth that. Even the car itself, which is admittedly probably pretty expensive. Are you going to get into a fight over your car? Maybe you can, you certainly can use non-deadly force in defense of property, the law allows that.
But can you have any degree of confidence it is going to stay a non-deadly force fight, that that guy stealing your car isn’t going to have tools or knives or weapons or gun that will escalate things to a deadly force confrontation?
And if he does that, are you now privileged to use deadly force and self-defense? Yes, you are. But now you’re in a gunfight again. And that’s not where we want to be. That privilege to use deadly defensive force ought to be the last thing we want to happen to ourselves. And we ought to conduct ourselves in such a way that it’s the least likely situation in which we’ll find ourselves.
If I were to look out my window right now and see my car being stolen, I’d call the police and if the car rolls away before the police get there, well, that’s what I have car insurance for. I’m not going to kill somebody over stealing my car. Because I don’t want to kill somebody over stealing a car. And also, I don’t want the legal complications that would invariably arise from having killed someone over stealing a car.
And of course, in any case, you can’t use, at least outside of Texas, deadly force in defense of minor property, anyway, in your cars, your personal property.
Now, are there situations in which you’re almost compelled to go out and investigate? And I think there are. I think, a reasonable argument can be made by people in certain circumstances that just hunkering down until the cops show up is not reasonable in their particular position.
And this could often be, for example, in very rural areas, farm-like areas, there are counties, large counties, in many parts of America, where the law enforcement presence is maybe a sheriff’s deputy or two in the whole county. And if they’re occupied dealing with some domestic or dealing with an auto crash and they get a call that you heard a noise in your backyard, or in your detached garage, or in your barn, that’s not necessarily going to be as high a priority call as the hands on event they’re already dealing with and they could be quite some time before there’s any police backup.
So, what do you do then? Do you just hunker down in your home, unable to sleep, afraid someone’s going to break into your house and the next minutes or hours, when you know, the police response could be an hour or two or more. It’s a much more difficult situation.
Now in fairness, of course, the people who will be judging your conduct after the fact also live in that community, probably, you’ll have your local police, you have your local prosecutors, local trial judge, jury will be selected from that community. And hopefully they would understand these dynamics that you live in an isolated area, police response is slow in the extreme. You can’t simply hunker down in your house waiting for something bad to happen when help is unlikely to arrive anytime soon.
Are there alternatives? Well, maybe, I mean, maybe you can call neighbors. If I lived in that kind of environment, I’d want to know my neighbors pretty darn well. And if they told me they were hearing noises in their yard, it might be helpful to have half a dozen other law-abiding members of the community arrive on scene in their cars, if only to present a such a number of people that someone who’s committing a petty crime in a detached garage is not going to be interested in a confrontation at that point.
The goal there, however, would be to deter the bad guy from remaining on scene. That’s the goal, not to necessarily make some kind of citizens arrested, the bad guy is going to run away. That’s a win in my book every day of the week and twice on Sunday.
So, Jim asks, How can I minimize the prosecutor, the legal implications of going out to investigate.
The best way is not to go out to investigate. Call the police, call the guys who have body armor, shotguns, dogs, helicopters, partners, backup, call those guys to deal with this. They’re paid to do it, they’re trained to do it, they have qualified immunity from civil suit if something were to go wrong. And of course, they have a badge and a gun and are in a much better position to be making an arrest than you would, for example.
If you must go outside, and the only reason I can imagine going outside personally would be if I believed there was some threat to innocent life taking place, not over a mere property concern. Or perhaps if I lived in that kind of very rural environment, as I just addressed. But I don’t live in that kind of environment. If you must go out, my goal, again, would be to try to get the bad guy to flee, not to actually engage if I could possibly avoid it. Certainly not to get into a gunfight if I can possibly avoid it.
There’s always a risk that a prosecutor will try to portray you’re going out to investigate is you going out to a fight creating a fight that didn’t have to happen? Especially if you’re going out with a gun? To investigate? What’s apparently a mere property crime?
Now, are you allowed to be in possession of your gun when you’re going to investigate a possible property crime? Yes. And if you never use that gun, it’s all good. But if you use the gun, a prosecutor might very well try to portray you as intending to use that gun from the very beginning, intending to kill that person stealing your property. And again, outside of Texas deadly force and defensive mere personal property is not going to be legally justified.
True? “Carrying OC Spray May Undercut Claim of Self-Defense”
Okay, the next question we had was from Good heavens that I forget to write down his name. It’s from Lee J. Lee is another Platinum member of Law of Self Defense. Thank you, Lee, for all the support.
And he apparently got into a discussion on Reddit. Reddit is something I know exists, I barely understand what it is, some kind of internet forum groups, I guess. Apparently, there he was on one involving issues of self-defense. And he had an exchange with a fellow person on the internet.
Folks, first of all, I wouldn’t get too personally invested in any conversation you have on the internet. Anonymity gives people a freedom to spout nonsense and half-informed bs that doesn’t exist if they were in a face-to-face conversation. So, keep in mind that the quality of information you’re getting over the internet is probably something less than zero.
But in any case, an issue came up about carrying pepper spray, if you’re also carrying concealed. Again. And this other individual, not our Platinum member, but the person he was speaking with, suggested that, hey, you shouldn’t carry pepper spray if you’re carrying a gun, because then a prosecutor can argue, well, you didn’t actually need to shoot your attacker, because you have pepper spray as an option. And therefore shooting your attacker was unlawful, not justified and you’re guilty of whatever the crime is that you’re charged with over the shooting, murder or manslaughter if you killed them, aggravated assault or aggravated battery with a firearm, if you merely frightened them or actually caused them non-deadly physical injury.
So, I’m going to read the reply that this other fellow wrote, just to provide the full context, and then I’ll dive into why his perception of this issue while not uncommon, by the way I see this perception reflected frequently in gun forums, in the old days in gun magazine articles. It’s a common myth, those in the self-defense community, especially the gun self-defense community, far from the first time I’m seeing this, but our Platinum member sending in this question prompted me to bring it up as a discussion point for today’s News and Q&A Show.
So here’s the quoted comment from the other fellow on this Reddit forum, quote: “No, I’m not a cop, I have no duty to apprehend anyone I carry to protect myself and anyone I’m with.” So far, so good. “There is no situation I can conceive of where I can solve a problem with OC spray that I could not solve by leaving the area.” That’s not clear thinking I’ll come back to that in a moment.
He continues. “Furthermore, in the off chance I get in a citizen involved shooting, I don’t want to end up arguing with the other guy’s lawyer in court about whether or not I should have just pepper sprayed them instead of shooting. Carrying a non lethal option gives them room to argue that you should not have needed to use the lethal one, which will only make your case harder. It doesn’t matter how right you actually are. All that matters is how right you can convince 12 idiots who couldn’t even get out of jury duty you are.” Well, there’s certainly some truth to that.
He continues “having the option of non-lethal and choosing not to use it can weaken that narrative,” presumably the narrative of self defense. “The idea that that isn’t a real issue doesn’t make any sense. Any weakening of your case could very easily be the thing that convinces the jury that you were in the wrong or convinces the prosecutor not to drop the case. as obvious self-defense or convinces your own lawyer, that your best option is to take a plea deal. If you have reasons to carry a non-lethal option, in addition to a firearm, I can’t tell you that it’s wrong or the wrong decision for you. But I don’t think it provides any benefit. And I was laying out the reasons that I don’t think it provides any benefit,” close quote.
Alright, so a lot of poor thinking there in the commentary.
So let me roll back up to the top where he mentioned, so first of all, he says there’s no situation I can conceive of, where I can solve a problem with OC spray that I could not solve by leaving the area. Well, that’s just not well thought out.
First of all, it presumes he’s physically capable of leaving the area and that the area provides a means of efficient egress. That’s not always the case. Sometimes you’re in a position where there is no place to go. Sometimes you’re cornered. Sometimes, you could normally flee at speed, but you can’t now because you recently broke a foot or injured yourself or otherwise have your movement inhibited.
Sometimes you’re just an older person. I’m no spring chicken myself, I seriously, recently, I should say, suffered a broken foot that seriously impaired my ability to get around. I’m not all that quick these days, under the best of circumstances. Sometimes you just can’t move fast enough to escape what the threat is, even if a path of retreat is available to you.
Sometimes, maybe you could flee, but you’re with someone you have a duty to protect, that can’t flee. If you’re with your five-year-old, say, maybe two children, what are you going to do then? Flee and leave them behind? Pick up another 120 pounds of person and run at speed? I don’t think that’s going to happen.
Maybe you’re with an elderly parent, you’re going to throw them over your shoulder and run away? Would that be practical? I don’t know. What if you’re with both of your elderly parents, you’re going to pick them both up and run away?
So sometimes you just can’t leave. And so this notion that, hey, any problem, I could solve it, oh, see, I could problem solve by leaving. It’s just poor thinking from purely from a purely tactical perspective. So that’s not a legal issue there. That’s just common sense tactical decision making.
The other issue he raises, this is the common legal issue that’s raised in this context is, I don’t want to end up arguing with the other guy’s lawyer in court about whether or not I should have just pepper sprayed him instead of shooting, carrying a non-lethal option gives them room to argue should not have needed to use the lethal one.
Well, this perception simply reflects a very imperfect, really broken, understanding of what’s going on if you’ve used deadly defensive force in a use of force event and are claiming self-defense justification.
So, let’s say you’ve shot somebody with a gun. And during the event’s investigation, it’s discovered you have pepper spray, or maybe you didn’t have, right? Either way, we’ll discuss both of those scenarios.
So you’ve shot someone, you’re claiming self-defense, what has to be true for your use of deadly defensive force to be lawful?
Well, you have to have the five elements of self-defense, which we talk about all the time here.
By the way, if you don’t know what those five elements are, I would urge you to please do yourself a huge favor. We have a little downloadable PDF that lists the five elements of self-defense. For those listening on audio, there’s simply the elements of Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
You can download this PDF, it provides a brief description of each of those five elements. If you don’t know what these five elements are, you can’t possibly understand self defense law. These are the core components of any claim of self-defense or defense of others. And you can get it for free, we don’t charge for this at all, at http://lawofselfdefense.com/elements.
So please, if you didn’t get nothing else out of this show, I urge you to download that five elements of self-defense infographic that we make available at absolutely zero charge.
So you’ve shot someone in self-defense, you want to justify that shooting as lawful self-defense, you have to have those five elements, let’s presume all five are required. In most states, the element of Avoidance is not required, because most states are standard ground states. But let’s pretend for purposes of convenience, all five elements are required.
Well, then you have to have all five elements, there has to be evidence in support of all five elements. And the threat to your claim of self-defense, what the prosecution has to do to overcome your claim of self-defense, is he has to disprove one any one of those required elements beyond a reasonable doubt.
If he can do that, he’s defeated your claim of self-defense, your justification goes away, you’re guilty of whatever the underlying criminal charge was.
But if he cannot disprove any one of the required elements beyond a reasonable doubt? Well, then he hasn’t disproven self-defense and the jury is instructed to acquit you on the basis of self-defense. Now, that’s all true whether or not you have pepper spray on your person.
So if you’re carrying OC spray, and you’ve shot someone, and you’re claiming self-defense, what does the prosecution have to do to disprove your claim of self-defense, to convict you? He has to disprove any one of those five elements beyond a reasonable doubt.
If you’re not carrying pepper spray, and you shot someone, and you’re claiming self-defense, what does the prosecution have to do to convict? Exactly the same thing, he has to disprove one of those five elements of self-defense beyond a reasonable doubt.
The pepper spray changes nothing i terms of the legal burden facing the prosecutor. It doesn’t increase, it does not decreasing.
Now, obviously, if he can disprove one of the five elements beyond a reasonable doubt, then he’s disproven self-defense, and your justification fails. And if he can do that, and you were carrying pepper spray, what happens to your claim of self-defense? Well, it’s gone. He’s disproven self defense.
And if he can do that, and you’re not carrying pepper spray, what happens to your claim of self-defense? Well, it’s disproven. The OC spray changes nothing about the legal threshold that the prosecutor has to reach, it changes nothing.
Now, if in fact, for example, your use of deadly defensive force was not justified because hypothetically, I’ll pick one of the elements, Proportionality, you were not facing a deadly force threat. Well, then, sure, if you were not justified in using deadly defensive force, you should have only used non deadly force. That’s all the law allows.
But that’s true, not because you happen to have pepper spray on your person or not have it on your person. That restriction, that constraint, that requirement of proportionality, that you not use deadly force, if you’re not facing a deadly force threat ,applies, regardless of whether or not you happen to have a canister of OC spray in your pocket. So again, the pepper spray changes nothing.
Now, could a prosecutor say those words, say to the jury, ladies and gentlemen of the jury, this defendant shouldn’t have shot that victim because he could have pepper sprayed him instead? Of course, they can say any words they want in a courtroom. The question is, what impact is it likely to have? How does it actually change the legal battlefield? And it doesn’t, folks.
So having the OC spray or not having the OC spray on your person does not change your legal defense in the slightest and having the OC spray does not diminish the legal threshold the prosecutor has to achieve in order to gain the conviction, overcome your claim of self-defense, disprove self-defense beyond a reasonable doubt.
Let’s think about the alternative, though. Let’s think about not carrying the OC spray.
Well, according to the FBI and Department of Justice, crime statistics, you’re five times more likely to be threatened with a non-deadly force attack than you are with a deadly force attack. meaning you’re five times more likely to be in a situation where you can only use non deadly force and self-defense, not deadly force in self-defense, five times more likely to be in a situation where you can use force to defend yourself but not your gun.
If all you have on your person is your gun, and you’re facing a genuine, but non deadly, threat of physical harm, you know what happens? People go to their gun. They may know it’s not legally justified, but they’re genuinely frightened. That’s their only defensive tool. They go to what they have. And then they end up getting charged with aggravated assault with a firearm and they call my office and it cost them a lot of money to try to get them acquitted of that criminal charge.
And why did they go to the gun? Because it was the only tool in their toolbox. Don’t put yourself in that position. Folks. If you have the OC spray or some other non-deadly means of self-defense and you’re facing a merely non-deadly force threat, then you have the appropriate tool in your toolbox. You’re not compelled through fear or stress to go to your gun unlawfully. Under those circumstances facing only a non-deadly force threat, you have a ready option to use reasonably effective non deadly force in self-defense, that OC spray.
And by the way, if you’re only facing a non-deadly force, right, you don’t want to be going to the gun because it’s a crime. It’s a serious felony 10 years, sometimes 20 years in prison. You want to have that non-deadly force option.
So by making this decision that because a poor understanding of how self-defense works in an actual courtroom, thinking it’s better for you from a legal perspective not to have the OC spray creates an enormous tactical vulnerability for you. And that’s just poor thinking, folks. You’re not gaining anything legally by not having the OC spray, but you’re losing a lot tactically. So don’t put yourself in that position.
Okay, I think that’s about all we have. So, before we go, I do again, remind everybody if you think of questions after the fact and would like to send them in, you can send them into our email address email@example.com. We’ll add them to the list of questions we consider for every show. If you’re a platinum member, please use the Platinum Q&A form, that will be better for you there.
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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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