Law of Self Defense News/Q&A Show: June 24, 2021

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.

[Full transcript below signature.]

In today’s News/Q&A Show for June 24, 2021 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:

NEWS

Q&A

  • Come home, find stranger in home, can you just shoot him?
  • Neighbor asks couple arguing outside home at 11pm to be quiet, while neighbor has shotgun slung over back. Unlawful brandishing?
  • Armed robber has leg in cast, victim is athletic, would it not be reasonable to expect victim to retreat rather than fight?

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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

Law of Self Defense Platinum Protection Program

IMPORTANT:  We encourage civil and reasoned debate among Members in the comments.  That said, comments reflect the opinion (legal or otherwise) of those who authored them only, and no comment should be assumed to reflect the opinion of, or be assumed to be shared by, Attorney Andrew F. Branca, except those authored by Attorney Branca.  Law of Self Defense LLC does not systemically moderate comments for legal correctness, and we suggest that all comments be viewed with an appropriately critical eye and a grain of salt.

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TRANSCRIPT

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, welcome. Welcome to the Law of Self Defense Show for June 24, 2021. We have a very, very busy show planned for all of you today, for our weekly Law of Self Defense News/Q&A Show for Thursday, June 24, 2021. Come on in Make yourselves comfortable.

Overview

And I’ll give you a quick overview of what we plan to talk about in terms of news items and Q&A. questions that have been sent in beforehand.

My news items, we have a short piece on Mark McCloskey, of course, the St. Louis attorney who along with his wife was criminally charged and just settled those charges on a misdemeanor plea deal for defending his home in St. Louis, from a bunch of Black Lives Matters, quote, unquote, protesters.

We have another news report about an interesting murder trial self-defense trial taking place in Utah, where, unfortunately, it appears to me that the trial judge is very poorly informed on use of force law. This highlights the dangers of exposing ourselves to that kind of legal expertise, quote, unquote.

And then for the Q&A, we have a number of questions that were sent in beforehand. As always, time permitting, we’ll also take questions live. So throughout the show, if you have questions, use of force questions you’d like me to address, put them in the comments, either on Facebook or in the membership dashboard, and I’ll do my best to address them, time permitting. But the questions that we have prepared for today’s show, they came in beforehand.

One was about a homeowner who is outside his home, he’s returning home and he observes an unauthorized person inside the home. Can he just shoot that person?

Another question was about a neighbor who confronted to apparently loudly talking to people outside his home out by his mailbox at the street. The neighbor had a shotgun over his back and the question is did the neighbor burying the shotgun on his back? When he asked the loud couple to keep their voices down at 11pm? At night outside his home? Was he committing a crime by having that chalk on on his back?

We have another question that refers back to a debate I participated in on stand your ground at the UC Berkeley law school in California. I didn’t just participate, oOf course, I won that debate. And that took place back in 2014. But we have a question about one of the issues that was brought up in that debate.

And by the way, we do have that the entire recording of that debate about an hour and a half available for our members at the Law of Self Defense Blog. And I’ll put a link to that debate in the text version of today’s content for those who would like to watch that debate. It’s fairly good stuff.

And then we have a question about really ties to a news report, so this could have been a news item as well, but it was brought to my attention by one of our members, and it raises a scenario in which a homeowner in the Seattle area heard banging on his door at 4am answered the door armed, sees the person on the other side of the door, 18 years old. He told him to go away, that he was armed, and the person outside the door nevertheless attempted to enter the home, at which point the homeowner shot him and killed him. Question is about possible legal liability there.

So those are the topics we’re planning to cover, again, as well as the any live questions time permitting that are submitted during the course of the show.

CCW Safe: Our Sponsor

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:

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And if you do decide to become a member of CCW Safe, you can save 10% off your membership at that URL http://lawofselfdefense.com/ccwsafe, using the discount code LOSD10.

NEWS

Mark McCloskey, who pulled gun on St. Louis BLM protesters, shows off new rifle

Okay, folks, with that out of the way I’ll jump into Well, the first news story is just a quick one. It’s Mark McCloskey, who, of course pulled the gun on the Black Lives Matters protesters threatening him and his wife outside their home in St. Louis.

He was wielding an AR-15 pattern rifle. His wife, Patricia was holding a Walther PPK style handgun, they both just settled their criminal charges with misdemeanor pleas as part of that agreement. They were required to forfeit those two firearms which they did.

But the good news is Mark has gone right out and purchased himself another AR-15 pattern rifle, always a good choice for home defense, so good for him.

I hope he has learned that it’s much more optimal, almost always tactically and certainly legally, if you’re defending your home to be inside your home. Make them come to you rather than you going out to the fight.

I understand there may be tactical reasons why it can be better to advance. I don’t see them in this particular scenario. But you raise a lot of legal vulnerabilities when you go to the fight rather than the fight coming to you.

If the home actually been threatened, damaged, entered, this would have been a clear cut lawful, not just threat of deadly force deadly defensive force by the McCloskeys but use of deadly defensive force.  And he gave up that layer of legal protection when he went out on his front yard and got himself filmed with the weapons.

By the way I hope he’s also learned to mount a whole bunch of security cameras around the outside of his own home facing outwards. It would have been extremely helpful to the McCloskeys if they’d had their own video of what was happening, as opposed to the cherry picked video that was sourced solely from the Black Lives Matters protesters who were threatening him and his wife. That would have changed the narrative dramatically in this case. Unfortunately, the only video of the event was the video of the protestors, not the video, there was no video controlled by the McCloskey.

In any case, good for Mark McCloskey in rearming himself and once again, being prepared to defend his family.

Abreu’s self-defense argument survives legal test heading toward his murder trial

So, the second news story I wanted to touch on is going to be more lengthy, because it involves a rather odd application of self-defense doctrine, I would suggest an incorrect application of use of force law, by the trial judge in this case.

And that’s really the reason I want to highlight this, as kind of a cautionary tale. I touch upon this all the time, usually it’s an appellate court proceedings. But it’s not at all uncommon for legal experts, lawyers, prosecutors, defense attorneys, trial judges, appellate court judges, state Supreme Court judges, to not have a very robust understanding of use of force law.

And so anytime we put ourselves in a position where we unnecessarily place our fate in their hands, we’re running the risk that our fate will be decided by people who are frankly incompetent to have that responsibility.

And I think we may be seeing an example of that here. So, this case involves a home invasion for a drug burglary purpose, the defendant and an accessory invaded an occupied home, I believe it was a mobile home or trailer, but regardless, it was a home, they invaded the home with a rifle and for the purpose of committing a drug robbery.

Apparently, they believed, and I suspect it is probably true, that the dwelling was being used for purposes of drug preparation or drug sales, or there were drugs present that they could steal. Obviously, being in possession of significant quantities of drugs makes you a high-risk target for robbery by other people.

So, the defendant and the accessory invade the home for purposes of committing a drug robbery, the accessory is duct taping the residents of the home. When the victim who was also a resident of the home attempts to flee this home invasion, and as he’s running away, the defendant shoots the victim in the back killing him. And all this took place inside the home.

So, the defendant’s charged now with murder for killing the victim, the resident of the home, he’s charged with kidnapping for the whole duct taping thing. And charged, of course, with robbery for the robbery.

Now with respect to the murder charge, in particular, the I’m worth the pre-trial stage of this proceeding now. So, the pre-trial stage, of course, is where both sides are making arguments, motions to the court about the legal arguments and evidence that they want to present in front of the jury. And a key part of any trial court is to act as a gatekeeper on those legal arguments and evidence that will be permitted in front of the jury.

So in this case, the defense has informed the court that they intend to argue self-defense and defense of others against the murder charge in particular. What they’re claiming is that before the defendant shot the victim, the resident of the home, the defendant’s accessory, the person who was doing the duct taping of the residents, he was shot in the leg by somebody, presumably the victim, and the defendant shot the victim in defense of the accessory and in defense of himself.

If this sounds like an outrageous application of self-defense doctrine, well, certainly the prosecution would agree with you. The prosecution in this case made a motion to the trial court, saying that they wanted the trial court, trial judge, to prohibit the defense from even mentioning self-defense in this trial with respect to any charge, particularly the murder charge.

And the judge just handed down his decision on those competing motions. And he’s going to allow the defense to raise the legal defense of self-defense with respect to the shooting death of the victim by the defendant.

So now, it would seem certainly on its face that self-defense should obviously be off the table here. Utah law allows the victim of a forcible felony to use deadly defensive force to stop that felony. And in this case, we have at least claims of aggravated burglary, aggravated robbery, aggravated kidnapping, all of which qualifies forcible felonies under Utah law and would justify any of those residents in that home from using deadly defensive force against the defendant and against the accessory as well.

So that would be justified force by the homeowners and of the homeowners use the force is justified as a defensive response to the unlawful forcible felonies of the defendant. Well, then the defendant can’t himself justify his use of force against the lawful use of force of the homeowners. He’s given up self-defense, he’s lost self-defense, because he’s lost the element of Innocence by being the initial deadly force aggressor in the fight. The deadly force aggression being all those forces felonies through robbery, burglary, kidnapping.

Now also Utah, as many states do, has a legal presumption of a reasonable perception of an imminent deadly force threat when you’re dealing with a forcible intruder into your home. Now, most states that have these legal presumptions, they condition that legal presumption on a number of exclusionary factors. So, one of those factors is commonly for example, if the force used by the homeowner was used against a law enforcement officer in their course of their duties, you don’t get the benefit of that legal presumption of having a reasonable fear of imminent deadly force harm at the hands of the intruder. Obviously would not apply here.

But another common exclusion, in most states that have these legal presumption of reasonableness laws, is that it’s required that the home in question, the home that’s being intruded into, is not being used for unlawful purposes. Well, I suspect that in this case, the home was being used for unlawful purposes. The news report, which of course, I’ll link in the text version of today’s content, seems to suggest that the home is being used for the manufacture or distribution of drugs, which is the classic reason that this exception is created in these legal presumption laws.

So if this was being used as a drug house, a crack house or meth house, or however we want to describe it, then the people in the house lose the benefit of this legal presumption of reasonableness. Now, they wouldn’t lose self-defense generally, as a justification for defending their lives against forcible felonies, but they would lose the legal presumption benefit, in particular.

I will note, however, that Utah, unusually, does not condition, this legal presumption of reasonableness against the home intruder being conditioned on the premises not being used for unlawful activity. So even if this is a drug house, because this happened in Utah, that alone would not lose these residents of the home their legal presumption of reasonableness under Utah law.

Now, as I mentioned, state prosecutors in this case had made a pre-trial motion to ask the judge to deny, to prohibit the defense from being permitted to argue self-defense as a justification for the murder charge. And the judge denied that motion. So the judge is going to allow self-defense to be argued as a justification for the murder of the victim in this case.

Now, first, I’ll note that this is a pre-trial ruling. So the judge is really just saying that he’s going to allow the defense to make that argument, to argue self defense in front of the jury. That doesn’t necessarily mean the judge will actually instruct the jury on self-defense at the end. And if he doesn’t instruct the jury in self-defense, then self-defense is off the table as a possible path to acquittal. Or even if he does instruct the jury in self-defense, it doesn’t mean that the jury won’t reject self-defense for the reasons we’ve already discussed on the merits of the evidence as they hear it.

Maybe the judge here wants to see how the evidence develops over the course of the trial, before deciding whether to actually instruct the jury on self-defense. Or perhaps the defense will come up with some narrative that, if believed by the jury, would negate the forcible felonies or other aspects of this narrative of guilt.

Remember, these felonies forcible felony have not yet been proven beyond a reasonable doubt, they are allegations. Now, how one would explain away the duct taping of the residents is hard to imagine. But the judge may be acting in an abundance of caution to see if the defense can come up with some argument consistent with innocence, consistent with a narrative of self-defense.

Now, my concern here, however, is the judge’s explanation, as described in the news report for why he’s decided to allow self-defense. I mean, he could have given the explanation I just shared, that he wants to see how the evidence develops, but he gets much more specific about his rationale. And his specificity suggests to me that he has a very imperfect understanding of use of force law.

Now, I’m going to quote here from the news report, because it provides an explanation for the judge’s reasoning here.

Second District Judge David Connors, in a ruling filed June 16, rejected a motion by Davis County prosecutors, who sought to bar any self-defense claim in jury instructions or arguments at trial.

The judge noted the county attorney’s office “argues that a person who initiates the aggression cannot, under any circumstances, be mistaken about whether he would be justified in using force.”

And what the judge is referring to there is, although he doesn’t say it explicitly here, he’s referring to the doctrine of regaining Innocence, the notion that someone, even in an initial aggressor, can potentially be justified in using defensive force if they’ve regained the element of Innocence that they had initially lost because they were the initial aggressor. So we’ll talk about the doctrine of regaining Innocence, which is what the judge is referring to here.

And the news article continues.

But Connors said there’s no case law “that stands for the proposition that an initial aggressor is always barred from raising an imperfect self-defense claim.”

So here the judge is referring to the doctrine of imperfect self-defense, which is, which is a not really a legal defense in the same sense that self-defense is.  Self defense is an absolute or perfect legal defense, meaning that if the jury believes self-defense was legitimate, then there’s zero criminal liability.

Imperfect self-defense cannot relieve the defendant of all criminal liability, all it can do is mitigate what would otherwise have been a murder conviction to a manslaughter conviction. So it’s not a perfect defense in the sense of an acquittal. It’s merely a defensive mitigation.

But in raising both of these doctrines and referencing both of these legal doctrines, regaining innocence and the doctrine of imperfect self-defense, they’re so obviously inapplicable to the facts of this case, that it seems to me as if the judge really doesn’t understand what he’s talking about in the context of these arguments.

So he may be making a perfectly reasonable legal decision, let’s see how the evidence develops over trial before I make any absolute decisions about whether the jury will be allowed to consider self-defense in deliberations. But it may be making that decision for the wrong reasons. And that’s not a good thing.

So let’s talk first about that paragraph that talks about regaining innocence. That’s where the news article reports quote,

The judge noted the county attorney’s office “argues that a person who initiates the aggression cannot, under any circumstances, be mistaken about whether he would be justified in using force.”

So the doctrine of regaining innocence applies in a circumstance where the defect in the claim of self-defense is on the element of Innocence, Innocence has been lost. And as a required element of self defense, if Innocence is lost, then self-defense entirely is lost.

But there are circumstances in which someone can lose the element of Innocence, and thereby they’ve lost self defense, but then regain the element of Innocence and regain self defense. And there’s two primary ways that can happen.

One is that the initial aggressor withdraws from the fight and communicates their desire to stop fighting, we call this withdrawal and communication. So you may have started a fight, you may have shoved, somebody, realized you were acting like an idiot said, Hey, sorry, buddy, I’m walking away, I don’t want to fight anymore.

You’re still on the hook for that shove. That’s still a simple battery, you could be held criminally liable for that by but by withdrawing and communicating your withdrawal, you’ve in effect ended that fight, you’re still responsible for it, but you’ve ended it and you’re walking away, you’re withdrawing from the confrontation.

Now for the fight to continue that other party has to come to you and initiate their own force, and that would make them the initial aggressor in a second fight for which they are now responsible. They are the initial aggressor in that second fight. They’ve lost Innocence in that second fight. They’ve lost self-defense in that second fight. You’ve regained innocence, for purposes of that second fight when you withdrew and communicated from the first fight.

So withdrawn communication is a way for an initial aggressor to regain innocence.

But that rationale can’t apply here in this case, because there’s zero evidence, even the defendant doesn’t claim that he attempted to withdraw and communicate. That never happened here. So that can’t be a basis for regaining Innocence.

The second primary way to regain Innocence is under circumstances of escalation, where the fight escalates to deadly force. And specifically what I’m referring to here is where the initial aggressor is a non-deadly force aggressor. he shoves somebody, for example. He grabbed somebody’s shirt, unlawful force, it’s a simple battery, not allowed. But it’s non deadly force, at least at that point.

If the other party responds to the shirt grab by knocking the aggressor’s hands off him off himself, well, that’s a non-deadly response to a non-deadly attack ,that’s perfectly proportional, that would seem perfectly justified lawful use of defensive force.

But what if the initial aggressor grabs the other guy’s shirt and the other guy responds by pulling a knife or pulling a gun. Well now what he’s done is he’s escalating what was a non-deadly force fight to a deadly force fight, and he’s escalating to deadly force fight without lawful justification.

In effect, what’s happened is there was a first non-deadly force fight for which the initial aggressor was responsible, lost Innocence lost self-defense. But when the second party escalates unlawfully to deadly force, he in effect becomes the deadly force aggressor in a second fight for which he’s responsible, for which he’s lost, in essence, for which he’s lost self-defense, and the initial non-deadly force aggressor is permitted to defend himself against that unlawful, deadly force attack.

Now, a key facet to this doctrine is that the escalation to deadly force was an unlawful escalation, that the counter of deadly force is an unlawful use of deadly force.

But that doctrine for regaining innocence also cannot apply on the facts of this case, because the confrontation was initiated with deadly force. If you start at a deadly force level, there’s nowhere to escalate to.

So once the defendant initiated contact with deadly force, his forcible felonies, well, then there’s no reasoned means by which the people inside the home can escalate beyond that. They’re starting at that deadly force level.

If they respond with deadly force, first of all, they’re not escalating to deadly force, they were already there. And secondly, their use of deadly force is lawful deadly force, not unlawful deadly force. So there’s nothing on these facts that would allow the defense to regain innocence. The only question is whether they lost Innocence to begin with.

Now, if we presume, right, we believe the robbery, home invasion, kidnapping narrative, well, then they’ve lost Innocence. But it’s possible that the defense could come up with a narrative at trial that runs counter to the prosecution narrative of home invasion, kidnapping, and robbery. We don’t know until we see the facts develop.

But if you do believe those forcible felony charges will then clearly Innocence was lost from the deadly force initial aggression by the defendant, and there’s no rationale if it’s been lost of innocence has been lost. There’s no rationale on these facts by which the defendant could have claimed to have regained Innocence and with Innocence lost and not regained self-defense is off the table.

The other doctrine the trial judge talked about was imperfect self-defense. And I’ll I’ll quote that paragraph in the new story again:

But Connors said there’s no case law “that stands for the proposition that an initial aggressor is always barred from raising an imperfect self-defense claim.”

Well, there may be no case law on it, but you don’t need case law because if you properly understand use of force law, then it is always the case that an initial aggressor is always barred from raising an imperfect self-defense claim.

So what is imperfect self-defense? Again, it’s different from perfect self-defense. Perfect self-defense, if believed by the jury, is an absolute barrier to criminal and civil liability. You are acquitted, what you did was simply not a crime, if it was perfect self-defense, and perfect self-defense means, of course, that all the required elements of self-defense are present: Innocence, Imminence, Proportionality, Avoidance and Reasonableness or, more accurately, that the state has failed to disprove any one of those required elements beyond a reasonable doubt.

FREE INFOGRAPHIC: 5 Elements of Law of Self Defense

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, by clicking the image or link below:

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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.

Imperfect self-defense occurs when you have an otherwise perfect claim of self-defense, except it has one defect. And that defect is that the belief in the need to use deadly defensive force was objectively unreasonable.

So every other facet of self-defense is present. You have the element of Innocence, you have the element of Imminence, you have the element of Proportionality—there are some cases in which proportionality can play into imperfect self-defense, but it’s really still an objective reasonableness defect, but let’s presume for purposes of this discussion, you have Proportionality–you have the element of Avoidance, assuming you’re in the duty to retreat state and Avoidance would apply anyway, and you have the half of the element of Reasonableness that is subjective reasonableness, that the defender has a genuine good faith belief and the need to use deadly defensive force.

But then we get to the defect. The other half of the element of Reasonableness is objective reasonableness. Subjective reasonableness by itself is not enough. It’s required, you must have that genuine good faith belief in the need to use deadly force in self-defense. But that subjective genuine good faith belief must also be objectively reasonable. That is, a theoretical, reasonable and prudent person in the same circumstances with the same knowledge and so forth, would also have shared that subjective genuine good faith belief.

So when we have an otherwise perfect claim of self-defense, except the use of force was objectively unreasonable, then we have a case of imperfect self-defense. If that’s the only defect in the self-defense claim, the absence the failure of objective reasonableness, then the defense can make an argument for imperfect self-defense. And the result, if believed by the jury, would be to mitigate what would otherwise have been a murder conviction down to manslaughter.

Now, a manslaughter conviction may not sound like much of a win, but if murder carries a sentence of life in prison without possibility for early release and manslaughter carries a sentence that tops out at 20 years with perhaps probation possible after a third of that time in many states, well, then you’re looking at maybe six or seven years in prison instead of the rest of your life in prison.

So manslaughter looks bad, unless a murder conviction is the only other alternative. So if you’re looking at murder, imperfect self-defense begins to look pretty good if self-defense is itself off the table.

But again, on the facts of this case, imperfect self-defense cannot apply. We don’t need case law to tell us this. We just have to understand what imperfect self-defense actually is. Imperfect self-defense is a perfect claim of self-defense but for the absence of objective reasonableness. That is, the defender’s subjective belief that he was facing a deadly force threat is genuine but objectively unreasonable.

But on the facts of this case, the defendant’s own facts of this case, he is saying he shot the victim, because he believed the victim had fired the shots that hit his friend, his accessory in the crime, who was shot in the leg. Well, if you have incoming rounds, that’s not unreasonably perceived as a deadly force threat, that’s reasonably perceived as a deadly force threat.

They were getting shot at, the defendant and the accessory, I mean, the accessory got shot, so they were genuinely taking incoming fire. So the defendant’s perception of a deadly force threat was not an objectively unreasonable perception, it was objectively reasonable. And if it was objectively reasonable, then imperfect self-defense is simply off the table.

The defendant has lost self defense, arguably, because he’s lost Innocence. And he can’t qualify for imperfect self-defense because to qualify for imperfect self-defense, you have to have first an otherwise perfect claim of self-defense, which he doesn’t have haven’t lost reasonableness. But also, the defect in your claim of self-defense has to be that lack of object of reasonableness. And that doesn’t exist here, even under the defendants own version of the facts.

Now, again, this is largely intended more as a cautionary tale to all of you. It’s another opportunity to again, caution to not place your fate into the hands of the criminal justice system, unless there is no other reasonable alternative.

Because when even the purported legal expert in charge of the proceedings, in charge of the legal decisions, appears to not properly understand the relevant law, it’s not that hard to understand why I warn that even the most innocent client has perhaps a 10% chance of conviction if they’re put in front of a jury. And that 10% risk folks applies even if you’re the most innocent defendant with the most perfect claim of self-defense that’s ever been seen in a court of law.

And that is it for the news items this week.

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Q&A

Now let’s take a look at the questions that were sent in this week.

Q&A: Castle Doctrine Privilege Killing Intruder?

One was sent in by Geary, who’s one of our Platinum members. Our Platinum members have on their membership dashboard, have a Platinum member Q&A form where they can submit questions directly to my attention. And we’ll answer those questions either privately if they prefer, if they indicate as much when they submit the question to us, or we’ll prioritize it for answering on the News/Q&A Show. And that’s what we’re doing here with respect to Gary’s question as a platinum member.

And this question really touches upon a homeowner who returns home, and he sees an unauthorized person inside his house and he asks, does the Castle Doctrine permit the homeowner to shoot the unauthorized person? A lot of people, he says, Geary says, believe that if they find someone in the home, they can automatically shoot the person even though there’s no threat to life by the intruder.

So that’s the question from Geary. Well, of course, it gets more complicated than that simplistic view. But that’s why we’re here to explain, precisely how to understand these kinds of dynamics.

First, I will tell you personally, if I’m about to enter my home, and I see someone inside my home when I’m outside the home, if my family is with me outside the home, in other words, I have good reason to believe there’s no innocent person inside the home, I’m not going into that home to have a confrontation, I’m calling 911 and having the police come to do that.

And that’s true regardless of whether or not the person I see inside the home appears to be there with malevolent purpose, like they’re rifling through drawers, or is just standing there and frankly, might be an innocent intruder.

Innocent intrusions happen, folks. And that’s one of the reasons that the law does not give blanket license to simply shoot dead anyone you happen to find in your home, even unauthorized person in your home, on that basis alone. There needs to be more than that.

Now, I mentioned earlier, many states have legal presumption of reasonableness laws in the context of dealing with an intruder in your home. This creates a legal presumption that you the homeowner have a reasonable perception of an imminent deadly force threat from that intruder, it gives you basically every element you need to justify use of deadly defensive force. But even those legal presumptions are conditional.

Typically, they’re conditioned on the intrusion having occurred first while you’re actually in the home. So you’re not entering from the outside already knowing there’s an intruder in there. Typically, it has to be an occupied dwelling in which the intrusion occurred.

But also the intrusion has to have been not just unlawful, but usually also forcible. In other words, something was broken to get into the home. And the concern there when the legislature has passed these laws is they don’t want the innocent intruder to be subjected to deadly defensive force by the homeowner.

An innocent intruder could be a repairman sent to the wrong address. It could be a neighbor’s out of town visitor who walks into your identical looking home or condo or apartment. It’s someone who’s present unlawfully, but without malice.

That person does not need to be shot dead inside your home, the legislature believes. So they deny this legal presumption of reasonableness with respect to a not forcible entry into the home.

Which by the way, folks is a good reason to lock your doors, right? If someone’s going to enter your home without authorization, well, make them break something to get in. If they break something to get in there’s no innocent explanation for that, right? They cannot be an innocent intruder, if they’ve broken something to get in. And then if your state has this legal presumption of reasonableness law, you would meet those qualifying factors.

Even in states that have very liberal defense of dwelling, homes, probably the most liberal is Colorado, whose make my day law allows for the use of deadly defensive force in defensive dwelling, without there having to be any deadly force threat at all. Any degree of threat by the intruder is sufficient to trigger the privilege for the homeowner to use deadly defensive force. So it does away with the need to have a deadly force threat at all, which is extremely unusual.

But there still has to be some degree of threat. The statute says any degree of threat, but it has to be some, it can’t be none.

So again, the unauthorized person in your home, the mere fact that they are present without authority, does not just this not alone justify the use of deadly defensive force, there has to be some indication of threat at a minimum.

Now, Geary had phrased this question in terms of the Castle Doctrine, does the Castle Doctrine permit the homeowner to shoot the unauthorized person. So I’ll just briefly touch on this.

Again, folks, it’s important understand what the Castle Doctrine actually does. It should be thought of as different than special provisions that allow for the use of force in defense of a home where that privilege would not exist outside the home. There are laws that lower the threshold required to privilege the use of deadly defensive force when you’re in your home dealing with an intruder. But the Castle Doctrine is not that.

The Castle Doctrine, properly understood, has one very specific purpose. And that is, if you would have been required to retreat outside of your home before defending yourself the Castle Doctrine relieves you of that otherwise existing duty to retreat if you’re inside your home.

That’s all it does. It doesn’t lower the threshold for the use of force, it doesn’t allow you to use force sooner than you otherwise would have used. The only element of self-defense it modifies is the element of Avoidance.

And with the large majority of states are stand your ground states, either by statute or by case law, so there is no previously existing duty to retreat anyway. And in that context, Castle Doctrine doesn’t necessarily do all that much for you, you don’t need to be relieved of legal duty that doesn’t exist even outside your home, much less inside your home.

But if you’re in a duty to retreat state, and those states tend to enforce that element of Avoidance very rigorously, you would be relieved of that duty to retreat in your home under the Castle Doctrine. That’s what the Castle Doctrine does. So it should be understood in that very limited context.

Q&A: Slung Shotgun Brandishing?

We had another question sent in by email by Rich Jay, this one involved a couple, apparently a young couple having a conversation at 11pm at night, outside a neighbor’s home. And I don’t believe they were known to the neighbors, I believe they were strangers to the neighbor. That’s my sense from the question.

So the neighbor, here’s this couple of having a conversation, presumably was loud enough to get him out of his house at 11pm. So maybe it was more of an argument. The question’s not clear on that, but the homeowner, the neighbor, comes out of his home, and asked them to be quiet at 11pm at night, right by his mailbox out by the street.

But here’s the thing, the neighbor, the homeowner, has a shotgun slung over his back. So when he asked them to be quiet, he’s doing it in the context of him having a visible shotgun over his back.

And the question from Rich is that, and I should say he identifies himself as this having occurred in Connecticut, which is one of the more severe gun control states. And that, of course, may color his perception, being in that environment, that would be kind of natural. He says, we’re in Connecticut, this doesn’t seem right. It feels like the neighbor committed some type of infraction, but I’m not totally sure. And he’s asking for my opinion.

And my opinion, and it is a largely subjective opinion, and we have to be careful state, like Connecticut, or Massachusetts, or New York, are often very aggressive about bringing prosecutions, even on the margins, were in other states there would never even be a thought of a prosecution.

But the question here is, was having a shotgun slung over the back, not in the hands, not being pointed, not being manipulated in any way, simply slung over the back, is that a sufficiently threatening conduct to qualify as some kind of unlawful brandishing, for example, or even an aggravated assault?

Would a reasonable person have been put in fear of imminent deadly force harm by seeing that shotgun slung over the back? And my opinion would be, no, that’s not sufficient by itself.

The homeowner’s on his own property. And by the way, I’m not touching on any gun law issues here. Right. So I don’t know if it’s legal in Connecticut, in terms of gun law, to be in possession of a shotgun under those circumstances. I would think it would be, if you’re on your own property, but I don’t do gun law.

Just from a use-of-force perspective, would it be reasonable for the two people talking by the mailbox to perceive a gun threat by the shotgun over the back? And I would suggest no.

Now it could be a fine line, right? If the homeowner tells them, Hey, get away from my property, or you could get yourself shot, that begins to sound like a threat, doesn’t it? But if you simply walked up, if, for example, the neighbor came out, he’s afraid there might be a threat out there, right? He’s looking around his property, it’s 11 o’clock at night, he wants to be able to defend himself. So he slings a shotgun over his back. When he realizes it’s just a couple having an argument by his mailbox, he says, Hey, could you please keep it down? My kids are sleeping. That doesn’t strike me as threatening, but it wouldn’t take a lot of evidence to make it threatening.

So a lot would depend upon what the two people having the argument, if they’re able to provide evidence that’s consistent with threatening conduct, that would change the dynamic a great deal. All these use of force cases, folks, are highly fact sensitive, and small changes in facts can have very large changes in outcome, but a polite request to just keep their voices down, does not in my mind, become a unlawful brandishing or assault with a deadly weapon case. Merely because there’s a shotgun slung over the back.

That said, I would discourage people from engaging in that kind of conduct, because it does raise this kind of fine line question. And remember, a Connecticut a prosecutor wouldn’t necessarily have any hesitation at all about bringing the criminal charge, and then making the neighbor defend against that charge at trial, in which case, he’s looking at tens of thousands of dollars in legal fees, even if the charge ends up getting dismissed before going to trial.

So it’s a high risk endeavor. And of course, there’s always a chance you could get convicted on whatever on the brand brandishing charge. I’m sure in Connecticut, a brandishing charge would lose you your gun rights forever, are maybe on a more serious felony aggravated assault charge.

So I would not encourage engaging in this kind of behavior, but I personally would not perceive it as being unlawful brandishing.

Q: Reasonableness of Retreat/UC Berkeley Debate?

I also got a question from Joseph P. via email, and he refers back to a debate I did years ago, 2014, at UC Berkeley law school. It was a debate on stand your ground.

It was very, very interesting experience. It was me and a law school professor on my team, we were on the pro stand your ground team. And then there was a another law professor and a television commentator called Sunny Hostin, who still owes me $100, for losing for her losing this debate to me, which she’s never paid. But another law professor and Sunny Hostin on the anti stand your ground side of the debate.

And just before the debate started, my partner, the law professor, someone I never met until I arrived at the debate, that’s when they introduced me to her, she told me,listen, I just want you to know up front that I’m actually anti stand your ground, but they needed someone else to be on your side of the table.

So that was very encouraging. As it turned out, I did not need her on my side of the table. I won the debate handily when they took the voting of the audience at the end.

And by the way, I will provide a link to the video of that debate. It’s an hour and a half long or so. So it’s kind of lengthy. But if you’d like to watch the entire debate, I’ll provide a link in the text version of today’s notes.

2014 UC Berkeley Stand-Your-Ground Debate

And also as a law, a member of the Law of Self Defense Community did a “Downfall” parody video. These were very popular some years ago. “Downfall” was a movie about World War II. And there’s a famous scene in which Hitler’s being informed that all his armies have been destroyed. And it’s very common, it’s become a common meme to apply that German dialogue with English subtitles to other humorous scenarios.

And someone did a “Downfall” parody video about the UC Berkeley debate, I found it very funny. So I’ll provide a link to that as well. I would play it for you here. It’s only about three minutes long. But when I do play it, I get copyright strikes from the social media companies. So instead, I’ll just provide a link.

“Downfall” Parody of SYG Debate

In any case, Joseph’s question has to do with an issue that was brought up during that debate, where the anti stand your ground side said, Well, what about a scenario in which you have an armed robber, and his leg is in a cast, and you have the victim of the armed robbery who’s athletic and physically fit? Shouldn’t we require the physically fit person to run away, if they can do so safely, which is of course what the duty to retreat says. It says if you can retreat from the confrontation with perfect safety, you’re required to do that you have a legal duty to do that before you can be justified in using force in self-defense.

And Joseph asks, well, wouldn’t this apply? Wouldn’t this conduct, this running away be required anyway, just on the basis of reasonableness? So that gives us an opportunity to talk about how reasonableness applies in this context.

So certainly in a duty to retreat state, and there’s about 12 of those, if you can safely retreat, you’re required to safely retreat before you’re justified in using force and self-defense.

The 12 Duty-to-Retreat States That Force Innocent Victims Facing Imminent Death to Flee for Their Lives

There’s are about 38 stand your ground states, and in all but six or seven of them, they’re all what I would call soft stand your ground state. So you don’t have a legal duty to retreat, but the prosecutor is permitted to argue, hey, he didn’t have a legal duty to retreat, but he could have retreated, and a reasonable person would have retreated, and therefore his failure to retreat was unreasonable, and you should deny him self defense, because he fails the element of reasonableness.

They’re allowed to make that argument. And then it’s up to the jury to decide whether or not they accept that argument. And if they do, you’ve lost self defense.

There are about a half dozen hard stand your ground states, and the hard stand your ground states prohibit the prosecution from making that argument, that reasonableness argument. In those hard standard ground states avoidance is off the table, period.

So those are the three types of jurisdictions in this context of the element of avoidance and how that would play out in this context.

Now, of course, again, it’s highly fact sensitive, right? Just because you’re attacker’s in a cast doesn’t mean he, I mean, if he’s armed with the gun, it doesn’t matter, right? You’re not going to run faster than bullet.

If he’s armed with a knife. Well, then it’s as simple Imminence analysis: ability, opportunity, jeopardy.  does he have the ability to cause harm does he have in this context, the question would be opportunity to cause harm, Jeopardy would be clear if it’s an armed robbery, he’s demanding your property under threat of physical harm.

With an impact weapon, the question is, does he have the opportunity to strike, and if he has the opportunity to strike then the threat is imminent. Well, then safe retreat is not an option, the threat’s already imminent. If he doesn’t have the opportunity to strike, if he would have to try to hobble towards you to strike you with the knife, well, then the threat’s not imminent, and therefore it doesn’t trigger a privilege to use force in self defense. Until he actually has that opportunity until he’s close enough to strike.

Now opportunity in the context of impact weapons raises, of course, part of that analysis would be the Tueller drill, part of the Tueller drill analysis, and this would be obviously a variation, but the Tueller drill typically is the idea that an aggressor can cross a distance of about 21 feet in a second and a half, which is about the time, Tueller believed, it took someone armed with a service pistol and a service holster to get that gun into play to defend themselves.

But obviously an aggressor in a leg cast is going to be a lot slower crossing 21 feet and the real question is, can he strike before the defender could otherwise secure their safety? If he can, then they have the opportunity to bring their deadly force to bear. If he can’t, the opportunity does not exist, at least yet. And if it doesn’t exist, yet, there is not yet an imminent threat. And in the absence of imminence, there is no privilege for use of force and self-defense.

Alright, well, we did have some other questions lined up, but perhaps we’ll address them this week, because we are coming right up to the top of the hour. Let me take a quick look. To see what come in. Look at questions in the comments.

Q: Sustained Non-Deadly Force Attack Privilege Deadly Defensive Force?

There is a question here from Kent on the membership dashboard. He asks if you’re in a non-deadly force confrontation, and you use OC repeatedly so use pepper spray repeatedly, but it has no effect, and that’s sometimes happened, folks, the attack continues, is deadly force appropriate even if the attack is still bare handed?

Well, the question is going to be has there been a factor that would trigger a privilege to use deadly force in self-defense. Just because a non-deadly force attack is sustained is not by itself enough. There has to be some triggering of the privilege to use deadly force and that, of course, would be a threat that escalates or becomes a threat capable of causing death or serious bodily injury, that would trigger the privilege to use deadly defensive force, presuming the other elements of self defense are involved.

So a sustained  barehanded fight, that fight could sustain to the point where the defender is so exhausted, that now the barehanded attack upon him which was non-deadly in nature, not likely to cause death or serious bodily injury when the defender was at 100%, is now capable of causing him death or serious bodily injury because he’s exhausted. So the nature of the threat itself hasn’t changed intrinsically, but the danger to the defender has changed because of his now exhausted nature.

The bottom line is, is he now subject to an imminent threat of death or serious bodily harm. If he is, that triggers for privilege use deadly defensive force. But the mere fact that the bare handed attack is sustained by itself, if it remains only a non-deadly force attack, then it’s still a non-deadly force attack against which deadly defensive force would not be justified.

Okay, I think that’s it. For the members.

All right, let me take a look at the Facebook. slide that over a little bit easier to read. Okay. Hey, TC, how you doing, buddy?

Let’s see. So with reference to the home invasion, drug robbery story, I see people asking, I can’t see how the judge allowed a self-defense claim when defendants were in the process of committing multiple felonies.

Remember, the multiple felonies have not yet been found proven beyond a reasonable doubt. That’s part of this same trial. So it’s theoretically possible that the defense will have a narrative that counters this.

I mean, for example, the imagine the defendant says, Hey, we went into the home with a rifle because we were returning the rifle that we had borrowed. And when we got in there, there was a home invasion happening. We didn’t duct tape those people, they were already duct taped. And the fact the home invasion was being committed by the victim.

Now, that could all be nonsense, right? But it’s a narrative that now the jury would have to consider the credibility of, so there would be a counter narrative at trial.  I suspect that, well, that would be a reason for the judge to allow the defense.

And if that narrative is not developed at trial, if in fact, there’s no evidence to support that, the defendant doesn’t take the stand, there’s no other evidence to support any such claim, well, then, then the judge would have the privilege to deny a self-defense jury instruction, tell the jury self-defense is off the table. They have to just decide guilt or innocence on the other evidence being provided.

But I expect that’s the case, because the underlying claimed felonies are still claimed felonies, they have not yet been proven.

My concern is not so much with that rationale with that case, my concern is that it appears to me that the judge doesn’t correctly understand those legal doctrines of regaining innocence and imperfect self-defense that I discussed.

Okay, folks, I’m going to wrap this up. We’re right at the top of the hour.

I will caution however, folks once again, this week, I got several gun law questions submitted. We don’t do gun law at Law of Self Defense, we do use a force law–when are you privileged or not privileged to use varying degrees of force in defense of yourself in defense of others in defensive property?

Gun law is different. Where can you carry a gun? What kind of license do you need? What gun is lawful? How can you get your gun rights back? Those are all vitally important questions in our society, but they are not our area of expertise.

So when I encourage you to submit questions, and I do encourage you to submit questions to us at our email address for this: show@lawofselfdefense.com, I’m afraid I can only really address the use of force questions. Gun law varies too widely across the country. I think for any individual to claim nationwide expertise at the level of detail I would want to be covering that kind of content so we do use a force law, not gun law.

Alright folks, that’s all I have in the News/Q&A show today. So I will wrap up.

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1 thought on “Law of Self Defense News/Q&A Show: June 24, 2021”

  1. Andrew, in Missouri if you are the initial aggressor in a physical altercation you are absolutely barred from claiming justification for defending yourself from the use of defensive force that you provoked and it doesn’t matter whether or not you reasonably believe that your victim is using lawful defensive force or unlawful defensive force. This law is a codification of the English law of self defense that was adopted by Missouri in 1825. In other states the initial aggressor is not absolutely barred from claiming self defense and doesn’t even have a duty to retreat before claiming justification for a use of deadly force against his assault victim. The initial aggressor is allowed to claim he was using unlawful non-deadly force and that his assault victim was using unlawful deadly force in self defense.

    This presents the question, how can an initial aggressor (or a jury) reasonably believe that the initial aggressor was defending himself from an unlawful use of defensive force that he provoked when the aggressor (or the jury) has no way of knowing whether or not the assault victim is or was justified in using deadly force in self defense? How could an aggressor (or a jury) know whether or not the assault victim subjectively believed that he was in imminent danger of great bodily harm or death, or a forcible felony, and how could the aggressor (or jury) know whether or not the assault victim had an objectively reasonable basis for that subjective belief? If the initial aggressor assaults a victim and kills him, the assault victim certainly isn’t going to be able to claim a subjective belief and provide a reasonable basis for that belief.

    It would appear to me to be common sense to believe that when an initial aggressor assaults someone and kills them without withdrawal or retreat, that the initial aggressor had the intent to kill them from the get go and that the offense was murder.

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