Law of Self Defense News/Q&A Show: June 3, 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.

We do this Law of Self Defense News/Q&A Show every Thursday 4pm Eastern Time live and then we make a replay available after the fact after the live show are recorded, we play the show. This is the one piece of content we produce every week at Law of Self Defense that is open access. Most of our content is locked down for our members. But we make this one show each week freely available. We’ll talk more about membership in a moment.

As the name suggests, the News & Q&A Show, the first half of our hour, roughly hour together is self-defense law in the news, things that have caught my eye in the last week. And the second half is the Q&A. Now we do have a bunch of questions that were sent into us ahead of time that I thought were sufficiently interesting to cover in the show. Mostly submitted by our Law of Self Defense Platinum members, their questions always get priority. But time permitting if we can get it in before the top of the hour, I’ll also take questions from the live audience.

So if you’re watching this, at the law of self defense website, or you’re watching this on Facebook live, you can put your questions in the comments and I’ll flip through the comments before the end of the show, and pick out questions that I think would be informative for people to answer.

Now we have a bunch of new stories, a ton of content to cover today. So, I’ll describe the new stories we’re covering first to give you all a heads up on what we intend to cover, you can make a decision about whether or not it’s sufficiently interesting for you to stay with us for the hour. And then I’ll also address the pre-planned questions that we plan to cover time permitting.

So we have a new story on activists who are protesting what they claim is the serial prosecution of a defendant by Baltimore State’s Attorney Marilyn Mosby. You may recall Marilyn Mosby from the Freddie Gray prosecutions. In this case, the protesters are very upset that she’s prosecuting this black gentleman for the fifth time in a murder trial. What I found interesting about this story is I would bet good money that none of these people who are protesting what may be a persecution of a defendant a fifth time murder prosecution. I wonder if any of these people protesting this persecution of this defendant had any sympathy at all for the six Baltimore police officers that were persecuted by this same prosecutor Marilyn Mosby, back in 2015. We’ll cover that in some more detail.

There’s also a new story that I included here today, just because again, it touches on Marilyn Mosby and the six officers she prosecuted in 2015. It’s a new story about objections to a challenge coin that’s been minted in support of those six officers.

We have another story about the sentencing coming up for Derek Chauvin, recently convicted of murder in the George Floyd case murder and other charges.

And we have a interesting story about stupid people doing stupid things a father and an adult son get into a shootout and a car crash up deliberate ramming by vehicle. And of course, that ends up in arrest. But we talked about some of the legal dynamics of that event in particularly in the context of subjective reasonableness, a required element for any use of force.

And as I mentioned, we also have a bunch of questions lined up. The questions include, what are the legal consequences of errant rounds, missed rounds that may have been fired in lawful self-defense, but then proceed on downrange. There’s no such thing as a miss folks. Right? The round continues until it definitely hits something.

We have a question asking about a scenario in which a Texas rancher who’s got a hunting cabin goes out to his hunting cabin and finds out it’s occupied by 20. Male illegal alien squatters. What are the legal implications for his privilege to evict those squatters particularly, obviously, in the use of force context?

We have a question about the Plano, Texas and antifa protests. That’s the one where they blocked the road. A bunch of cars were backed up, and they large, angry white gentleman, apparently got out of his car, walked up to the head of the line and started shouting at the protesters. And then there were various threats and displays of force at least some of the protesters were apparently armed, at least with electronic devices like tasers perhaps also with firearms. So we talked about that case, answer some questions about use of force implications there.

I should also mention, new for 2021, we’re also making just the audio portion of the show freely available as a podcast. You can get this podcast on any of the major podcast platforms including Spotify, Google podcasts, Apple podcasts, we have links to all of those. It’s freely accessible, there’s no cost. So in effect, it’s a weekly hour long self-defense law podcast. And you can learn how to access that at

And before we dive into the first of the news, the last thing I need to mention is the sponsor of today’s content, which is CCW Safe, a provider of legal service memberships, what many people mistakenly call self-defense insurance.

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Okay, so let us now go ahead and proceed with the show proper and start diving into our news stories.

Activists Protest “Persecution” Of Keith Davis Jr. After New Attempted Murder Charges

So, the first of the stories that caught my eye today was these protests that are currently taking place against Baltimore State’s Attorney. Marilyn Mosby, she’s prosecuting a gentleman called Keith Davis Jr. Probably for the fifth time now for murder. He was charged with killing a security guard back in 2015. He’s had so far four trials, two of them resulted in hung juries. And of course, a prosecutor is free to retry a hung jury. One was resulted in a conviction, that conviction was overturned. And then the most recent also resulted in the conviction and a 50 year prison sentence. And that conviction has now been overturned. So I’m not sure what’s happening in the Baltimore courts. But nevertheless, now Maryland Mosby is promising to try Keith Davis, Jr. a fifth time for the alleged murder of this guard.

Now, I don’t want to get into the merits of the case. But I want to use this as an opportunity to talk about prosecutorial power and the abuse of that power.

And by the way, folks, on this topic of multiple prosecutions, imagine if this was you. Imagine if you were charged with murder, not for allegedly murdering a security guard. But when what you claim is an act of self-defense. They drag you to court, you burn through several $100,000, you end up with a mistrial. So, they try it again. You end up with a mistrial. So, they try you again. You get convicted, you get your conviction reversed on appeal. So, they try you again.

How much resources do you think you have left for that fourth trial? I mean, really, by the second trial, you’re completely broke, to be honest.

That’s another reason I encourage people to take a look at CCW safe to my knowledge they are the only of the self-defense insurance companies that will continue to provide resources through that entire process you are not cut off. Even if you’re convicted at trial, they will finance your appeal.

Their competitors won’t do that, either because they lack the resources to do that. Or they just tell you upfront that they won’t do it.

So, this is a real concern, especially with politically motivated prosecutions that they come back again and again and again as often as they can.

And they know, the prosecutors know full well, that if it’s your second or third trial, there’s no money left for your defense. And that makes you a lot easier to convict. We’d all like to believe that we don’t live in a world where how much money you have, how much financial resources you can bring to the legal fight, makes a difference in the justice you get. But I’m sorry, it does, and makes an enormous difference.

So another reason I recommend you take a look at CCW safe at

But back to Keith Davis Jr. and Maryland Mosby. So, the protesters who support Keith Davis, Jr. are saying this is ridiculous. He’s going to be tried a fifth time for murder. This begins to look like malicious prosecution, like a personal vendetta, like a persecution of this defendant. And there’s a good argument to be made there.

Again, I don’t want to get into the merits of this case it I find it hard to believe it’s gotten to five trials and it has much merit. I would have expected the defendant to have been convicted by now. I guess he’s been convicted a couple times but convicted and had the conviction stick not been overturned on appeal by now there was much merit to the case.

But the reason this case struck my eyes because I remember when Marilyn Mosby was prosecuting six Baltimore police officers over the death of Freddie Gray, Freddie Gray was a street corner drug dealer in Baltimore, who was picked up on a drug sweep of his block by a squad of police officers. It was a large effort.

By the way, it was an effort requested by prosecutor Marilyn Mosby because her husband was the prosecutor, sorry, was the politician for that district in Baltimore. And the residents of the district were complaining about the drug dealing. So the politician husband asked his wife, Marilyn Mosby, to ask the police to sweep the square for drug dealing.

Which is what the police did, they picked up Freddie Gray handcuffed them put them in the back of a police van. And when the police van reached its destination, they found Freddie Gray with a serious neck injury that would result in Gray’s death a few days later.

Now, it’s important to know that there’s literally zero evidence that any of the officers charged in this case used any unlawful force on gray at all, none, literally zero evidence that any of them use unlawful force on Freddie Gray. Nevertheless, these officers were charged with offenses as serious as second-degree malice murder.

Now when it actually got to trial, when Marilyn Mosby had to prove her case, the first cop was a mistrial, a hung jury, the second cop decided not to go with a jury, he went with a bench trial, he got acquitted by the trial judge, the third cop got acquitted by the trial judge, all the same judge in all the trials, the fourth cop got acquitted by the trial judge.

And at that point, the judge essentially looked at the prosecutors and said, are we really going to do this six times, because it’s the same evidence and every case for every one of these defendants, the outcome’s not going to change, the evidence and the law is not going to change. And finally the prosecutor ended up, Marilyn Mosby dropped all the charges against all the officers.

The Barack Obama, Eric Holder Justice Department, found no evidence to support a federal prosecution of these officers. And in fact, the Baltimore Police Department’s own Administrative Review returned to every one of these officers to duty. So they didn’t even do anything administratively wrong.

Yet Marilyn Mosby brought these prosecutions against them. Why?  Well, obviously for political reasons only.

So I wonder of all these people protesting in support of Keith Davis Jr. saying he’s being persecuted by a prosecutor were also protesting in favor of the six Baltimore police officers who were persecuted by Marilyn Mosby. Half those officers, by the way, were black. Not that it should matter, but that’s the world we live in.

And I expect that if you ask them, they’ll tell you, the people protesting for Keith Davis today. We’re not protesting against Marilyn Mosby abuse of her office when she was targeting cops, we’re only angry about it now because she’s targeting, allegedly, Keith Davis, Jr.

And folks, the bottom line is everyone is entitled to due process of law and everyone is entitled to not be subject to a politically motivated prosecution. Everyone. And if we denied due process of law to anyone, even people we think we have good reason to hate, we ought not be surprised when it’s our turn in the barrel, or the turn in the barrel of someone we support, and they are denied due process of law or we are denied due process of law.

Permitting prosecutors to bring politically motivated cases against people we do not like invariably and ultimately results in that same prosecutor misusing that same power in the same way for political purposes against people we support ,and perhaps against ourselves. And that’s not should not be anybody’s idea of what justice is.

There’s a reason that representations of Lady Justice, right, the statue of the woman holding up a scale, a book, why she’s blindfolded, because justice is supposed to be blind and applied equally to each of us. Okay, so that’s that news story about the Keith Davis Jr. protest in the context of prosecutorial abuse, persecution of defendants for political purposes.

Despite denouncing police brutality, online retailers sold coins commemorating bad behavior by cops

A related news, actually, it’s an unrelated news story, except that also happens to mention the same Baltimore six cops. So, this was a news story. That was in essence an expression of outrage by the journalists that some online vendors such as Etsy and eBay, were selling challenge coins–I’m sure you all know a challenge coins are–and these challenge coins were commemorating alleged police misconduct.

So, a cop uses force on a suspect. It’s claimed to be misconduct, and someone mints a challenge coin in support of that officer. And the idea is that that it’s wrong. Right? If the police misconduct is wrong, the challenge coin should be wrong, and these online vendors should be pressured to not allow sales of these challenge coins commemorating purported police misconduct on their platform.

So, one of the challenge coins objected to was for the Baltimore six the six officers persecuted in the Freddie Gray case. And I’m going to quote from the new story here because I think it’s important to hear their actual language.

Last year in eBay, Senior Vice President wrote on social media that there’s no place for hate or violence in our community, and we will do whatever we can to affect change. But eBay recently allowed the sale of a coin commemorating Riot teams response to unrest in 2015, with the words, the Baltimore six in apparent reference to the six officers involved in the arrest of Freddie Gray who died in police custody, that coin just sold on eBay for $366.

Now, of course, the inference here, because the whole story is about challenge coins commemorating police misconduct, the inference is supposed to be that the Baltimore Six, the six officers charged in the Freddie Gray death, had committed misconduct, had committed unlawful acts upon Freddie Gray, to cause his death or contribute to his death.

And as I’ve already mentioned, of course, there’s literally zero evidence than any of the Baltimore Six did anything unlawful to Freddie Gray, whatever, with again, three of them being acquitted outright at trial, the other three having all charges dismissed the Feds seeing no evidence to prosecute, and Administrative Review returning all of them to their jobs.

In short, not one of those officers was ever found of than anything unlawful, not even administratively wrongful with respect to Freddie Gray.

But despite this reality, every one of those officers will be forever perceived by the public as a bad actor, largely because of maliciously or perhaps merely stupid journalists commentary on the case, as found in this news report about these challenge coins.

If there’s a dumber and less informed class of people, generally than journalists, there are exceptions, but generally, I’ve yet to meet them.

State seeks 30 years for Chauvin; defense wants time served

Okay, another story I wanted to cover is very briefly because we’ll cover more detail I suppose as it gets closer, it’s still about three weeks away, but the sentencing of Derek Chauvin, who was convicted in April of the murder of George Floyd, as well as some other criminal charges brought against them.

We’re currently in the post-conviction pre-sentencing phase of these legal proceedings. And I did have a question come in a week or two ago about why we do this. What is this phase? Why aren’t defendants sentenced immediately upon the guilty verdict, you’re found guilty of murder, we sentence you to life, whatever.

So let me address how this process works here so you can understand the proceedings.

Now one way to think of criminal trials is as having three major stages. The first stage is the pre-trial stage, the preliminary stage, which sounds unimportant, right, preliminary things are normally things we think of as unimportant. But this is where the evidence and legal arguments are proposed for inclusion or exclusion from the trial. This is where the legal battlefield is defined. So, it’s very important often the fight is effectively run right here at the pre-trial stage. This again, is where the legal battlefield is defined.

So then after this, we have a second stage, which is the criminal trial itself, the guilt phase.

And if that results in the guilty verdict, then we hit the third stage which is the sentencing stage and sentence thing is not simple. It’s often a fairly complicated procedure, and it can involve the consideration of large quantities of evidence, including evidence that might not have been at all admissible during the trial itself.

And typically states allow for a range of prison time for conviction of serious felonies. And those ranges are embodied in what are called sentencing guidelines. So you look up a crime, it’s associated with some level of offense class a felony, Class B felony is a pretty common framework, then you look up Class A felony, and it has a range for sentencing.

And with any given range, a wide variety of factors can be considered in determining the specific sentence such as whether this is the defendants first defense or their fifth offense, for example, there are other factors that can lead to additional sentencing above and beyond the guideline range such as if there’s a firearm sentencing enhancement, so gun was used to commit a crime, or perhaps whether the defendant committed the crime from a position of authority. Not just a stranger raping a young woman, but the teacher raping the young woman, for example, or in this case, in Chauvin’s case, a murder committed while a cop wearing a uniform under color of law.

So collectively, all of these factors can be thought of as exculpatory factors that might lead to a shorter sentence or inculpatory factors that might lead to a longer sentence and determine which such factors may play a role in sentencing requires that those factors in the evidence supporting them have to be argued in court to the sentencing judge so that the judge can make an informed sentencing decision.

And often as part of this process, there’s what’s called a pre-sentencing investigation, or a PSI, that’s conducted independent of the prosecution and the defense. And it’s presented to the judge the findings of the report. And also there’ll be arguments made by the prosecution, and by the defense themselves in open court in sentencing hearings that will help the judge arrive at a specific sentence. And that’s where things currently stand with Derek Chauvin.

So, the PSI is being prepared, the exculpatory and inculpatory factors are being decided upon by the sentencing judge, the same judge who was the trial judge in the case. And with the arguments being made to the judge, by the prosecution, and by the defense and with respect to the arguments made by the prosecution and defense, one can think of these as almost being a form of negotiation with the sentencing judge being the arbiter.

So each side starts off with their most extreme offer first, and often, not always, but often the sentence ends up somewhere in the middle of all that. In this case, the state’s arguing for a sentence of 30 years for dark Shelvin, which is two or three times the sentence that would typically apply to Chauvin’s convictions under the normal application of the Minnesota sentencing guidelines.

So what’s happening here is normally Chauvin would be looking at somewhere between 10 and 15 years, but the state’s arguing there are aggravating factors, like he was a cop in uniform, like the crime was committed in front of children, like the crime was committed with accessories–there were obviously the three other officers involved in Floyd’s arrest–and that those should effectively bump up the total sentenced to 30 years.

And of course, the defense is arguing for mitigating factors. So, the defense is in effect arguing for zero jail time beyond times already served, because Shelvin was a they say, true, trusted faithful police officer for 20 years, has friends, his family, and so forth, never committed a crime before things along those lines.

So this will all ultimately be resolved on June 25. So in about three weeks, when the sentencing judge again, same as a trial judge Peter Cahill, will make the final call on children’s fate at least absent an appeal or a retrial.

Father-son shootout in Jefferson leads to arrest warrants

Now, the next story I wanted to cover was a weird event. As you’d expect, this would have happened in Florida, but I don’t believe it was Florida, but a father and son got into a car ramming slash shootout with each other. So kind of a crazy story. But it’s useful to illustrate how circumstantial evidence is used in these use of force cases, particularly in the context of subjective reasonableness.

So, subjective of reasonableness is of course, one half of the element of reasonableness, which in turn is one of the five elements of any claim of self-defense. Those five elements are innocence, imminence, proportionality, avoidance and reasonableness.

And for a use of force to be reasonable, which it must be to be lawful, two things must both be true.

First, the user of force must have had a genuine good faith belief in the need to use that force and self defense. If even they don’t think it was necessary self-defense, it doesn’t qualify. So, you need that genuine good faith, subjective belief in the need to use force and self-defense.

But that subjective belief alone is not enough, that subjective belief must also be objectively reasonable. So a hypothetical reasonable and prudent person with the same training, experience, under the same circumstances as the defender, would also have shared that subjective belief in irrational. An objectively unreasonable subjective belief is not enough to support a justification for our use of force. The subjective belief has to be real, genuine good faith, but it also has to be objectively reasonable.

Now, if the prosecution can disprove subjective reasonableness, can disprove that the defendant had a genuine good faith belief in the need to use force and self-defense, well, then, if they’ve disproved subjective reasonableness, they’ve disproved the element of reasonableness and by extension, they’ve disproven self-defense as a legal justification.

So this is often a target of attack by a prosecutor on a claim of self-defense. Now, the challenge with attacking subject of reasonableness is of course that well, it exists inside the defender’s head and we can’t see inside their head. So unless they actually tell us what their subjective belief was, how are we supposed to be able to determine subjective belief, subjective reasonableness?

Well, what we typically do is we make reasonable inferences about what their subjective belief likely was by looking at circumstantial evidence, did they conduct themselves in a manner consistent with someone who had a genuine good faith belief that they were facing, for example, a deadly force threat.

And in this particular news story, we have two parties a father, one Renee Omar Guzman, in one car, and we have his adult son Matthew Guzman in a second car.  And both parties agree that the Father rammed his car into the car that the son was riding in. And they also agree that the sun fired several shots at the father with a Smith and Wesson semi-auto nine-millimeter pistol.

So both those events occurred, both parties agree. Where they disagree is in the sequence of those events. The father claims that the son shot at him, and then the father rammed the son’s car and self-defense. In contrast, the son claims that the father rammed his car and that he then fired shots at his father in self defense.

So absent other evidence (and other evidence does exist in this case, but we’re going to ignore it for purposes of this discussion), how are we to determine which narrative is more likely to be the true narrative, that of the father, who says he was shot at first, then he rammed the other car in self-defense, or the narrative of the son who says, hey, we were rammed first and then I shot back in self-defense?

Well, we do it by considering the circumstantial evidence and applying common sense to make reasonable inferences from that circumstantial evidence. Which is what Greene County Sheriff jack Williams does, in this case, as the sheriff notes, and I’ll quote here from the new story:

The father rear ended the other car at 80 miles per hour. And if you’re being shot at, you’d think you’d hit the brakes and turn around and get yourself out of that situation. The father saying where he was initially shot out, was over a mile and a half away from where the ramming took place. So he continued, even after what he claims where the shots fired for another mile and a half, and then rammed them.

In other words, the sheriff is doubting the father’s narrative because he’s questioning the subjective reasonableness of the father’s narrative.

A reasonable person tends to distance themselves from life threatening danger, not close proximity to that danger. So, a person who closes proximity to another is engaged in conduct that is inconsistent with having a genuine good faith subjective belief that that other presents a life-threatening danger.

Here, the fact that the father admittedly pursued the con the son’s car for a mile and a half closing proximity to the point of ramming and disabling the son’s car, suggested he did not have a genuine good faith belief that his son presented a deadly force threat and that, in turn, suggests that the ramming occurred first, and the shots were, in fact a defensive response.

And that’s why the sheriff here ultimately secured a warrant for the arrest of the father, and not for the arrest of the son because of that circumstantial evidence, which was more consistent with the sons narrative and inconsistent with the father’s narrative, and the father’s inconsistent with the father’s claim of a subjectively reasonable fear of deadly force harm.

And by the way, folks, this dynamic also applies to any of us, who might decide to pursue an aggressor like the father here apparently pursued the sun, once you start going to the fight, rather than the fight coming to you, it doesn’t much look like self-defense to anybody.

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I should mention also, before we get to the Q&A portion of the show, if you’d like this kind of content, you can get it more often than once a week, folks, we produce content for our members on an almost daily basis, doing this kind of legal analysis, usually in a much more detailed setting, rather than covering a bunch of different stories.

Usually, we focus on one particular story, a use of force event, court decision involving use of force law. But that content is accessible in text, video, and podcast form only to our Law of Self Defense Members.

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All right, let’s get over to the Q&A portion of the show now.

First, we had a bunch of questions, and this happens every week. I guess it’s unavoidable. But folks, our expertise here is use of force law. When are you permitted to use various degrees of force in defense of yourself ,in defense of others, in defense of property.  What we don’t cover here is gun law. Gun laws completely different. Gun law is when do you need a license for a gun? What kind of license for what kind of gun? Where can you carry? Where can’t you carry? What are ammo requirements? What are magazine limits?

We don’t cover weapons law, gun law in particular. So if you send us questions on gun law, this is the response you’re going to get.

We do of course get a lot of actual gun law inquiries, people involved in gun law issues, and we refer those to other attorneys. So if you’re facing actual legal liability on a gun law issue, and of course, if you’re a Law of Self Defense Member, then certainly reach out to me, it’s not the kind of case I would personally work on. But I can find you a competent attorney.

This also applies to rights restoration cases. I know a lot of lawyers do great work in those cases. I don’t work those cases, but I can refer you. So if you’ve had a gun purchase denied, because of a NICS issue. Or perhaps in your youth, you were convicted of a felony and you’d like to get that record cleared so you could buy a gun lawfully. I can certainly help with that by referring you to attorneys who do that work.

But that’s not the kind of work I do kind of work I do is use of force law. Also, when we cover these questions, it’s important to keep in mind that it’s very rare in the law for there to be absolute 100% certainty black and white answers yes and no answers. It’s almost invariably a sliding scale between legal liability and no legal liability, and you rarely bump up against the ends, you could be the most innocent defendant I’ve ever had in my office. And if we put you in front of a jury, there’s a 10% chance you’re getting convicted. That’s just part of the noise in the system. Innocent people do get convicted.

So there’s no way to guarantee a particular legal outcome. So what we’re looking to do is to conduct ourselves in self-defense, defense of others, defense of property in a way that pushes us as close to zero legal liability as possible. You can’t get to zero, but you can get pretty darn close.

So that’s our goal at loss of defense is to help our members accomplish that get as close to zero legal liability as possible. But generally speaking, you’re not at zero. You’re also generally not at 100% unless It’s a really egregious case, you’re somewhere on that sliding scale.

So when we answer these questions, we’re not literally trying to provide an absolute answer. We’re trying to teach you how to think through how the law would apply to these cases so that you’re developing a knowledge base that’s applicable not just to a specific question, but to use of force scenarios generally. So with that in mind, take a look at the time. Okay, we’re doing okay, I think.

What about errant rounds fired in self-defense?

We got a question from Jody from Florida. He’s one of our Law of Self Defense Platinum-level members. And he asked, what about errant rounds fired and self-defense?

So, you’re involved in a self-defense shooting, you’re popping rounds at your attacker. And one or more of those rounds continues on past the attacker. And Joe brings this to our attention through a new story from Vero Beach, Florida, where there was a gun fired inside an apartment and official said the rounds went through the closed front door of the apartment, another round went through a kitchen wall, another round went through a cupboard, another round went through a window.

And obviously, as we mentioned earlier, there’s no such thing as a miss with a bullet will continue to travel until it hits something capable of stopping it.

So, what about those rounds? What’s the legal liability associated with those rounds?

And I’m sure if you’ve taken a concealed carry course of self defense course, the instructor at some point, said something to the effect of, hey, there’s a lawyer attached to every one of those rounds. And I’m not sure that’s really all that useful a statement.

I mean, of course, anytime you’re projecting out potentially deadly force, there’s naturally potential legal liability with doing that.

Strictly speaking, if your firing of the shots was in lawful self-defense, and non-negligent, so you didn’t, for example, just put one hand over your eyes and blindly fire the gun in the general direction of your attacker, but you’re conducting yourself in a lawful way, you’re directing the shots deliberately at your aggressor, and one or more shots miss, or over-penetrate ,or continue on and damage or hurt somebody else innocent party, if your use of force was otherwise lawful self-defense and you were non-negligent, there ought not be either criminal or civil liability for that unintended injury.

Now, if you conduct yourself negligently, there’s certainly going to be civil liability, if you conduct yourself sufficiently negligently, so it’s not just negligent but reckless, which is a criminal degree of negligence, then there can be criminal liability. So you don’t want to do that. And of course, again, just like there’s never 0% criminal liability anytime.

Anybody can sue anybody for anything in America, and it’s possible that they may win no matter how meritorious your use of force. So, there’s no black or white answer here, except I can tell you that where the weight of the law would apply to these scenarios.

So strictly speaking, again, if you’re firing the shots with otherwise lawful self-defense, so it’s justified in that respect, and it was done non-negligently, which of course, is an issue that could be argued in court whether or not it was negligently or non-negligent. But lawful self-defense non-negligently, there ought be neither criminal nor civil liability for injury caused by those errant shots.

Now, in some states, of course, you have the benefit of self-defense immunity provisions, which could be criminal immunity or civil immunity, or both, depending on the jurisdiction, that allowed this particular issue to be argued out in a pre-trial hearing.

So, you can get the whole self-defense question, the criminal liability, the civil liability question, adjudicated in a relatively timely, low cost manner, a pre-trial hearing, kind of a mini-trial, usually one day, two day trial -ike process in front of a judge, no jury, just in front of a judge. And if you meet the legal threshold for the use of force having been lawful, the judge can grant you immunity from criminal prosecution and or civil suit. Again, depending on the jurisdiction.

I certainly am a fan of those immunity provisions. I think they’re frankly more important than standard ground provisions, usually for good guy cases and self-defense. So if you live in a state that has those good for you, if you live in a state that does not. Yeah, it would be nice if they could be adopted there.

Rancher Finds 20 Men Squatting on Hunting Cabin: Can He Remove?

Okay, the next question we have is a bit more complicated. It comes from Anthony f from Texas, again, another Platinum protection member. And he poses a scenario and frankly, it wasn’t clear to me if this was a real-world event or just a hypothetical scenario.

So, we’ll treat it as kind of a hypothetical but the hypothetical is that a rancher in Texas has a cabin. It was unclear from Anthony’s message if this was really could really be thought of as a home, or more of a occasionally used cabin for hunting purposes, for example. And the legal implications change depending on that factor.

But for the moment, let’s treat it as a cabin. It’s a cabin in rural Texas, he visits only occasionally for purposes of tending cattle or hunting deer. And he arrives at his cabin, and he finds that it’s occupied by 20 males, presumably illegal immigrants in our hypothetical squatting on the property.

Now, when he arrives, and he sees this, he can’t immediately call 911, because he’s outside of cell phone coverage, well outside in this part of Texas, some parts of which look a lot like the moon, frankly.

And in this hypothetical, when he ordered the men, the 20 men to leave the property at first they refused, but then ultimately, they complied. And they left. And the question is, was the rancher justified in removing these 20 men?

And it really depends on what we mean by removing and because the method of removing matters a great deal, right, that’s the conduct that would possibly be subject to criminal liability. In this kind of case.

Certainly, the intruders have no right to be on the property, right, they’re trespassers, at the very least. And the rancher does have the right to not have them there. The rancher has a right to remove trespasses from his property.

But there are hard limits on the manner in which the rancher can remove the trespassers, for example, he clearly it would be unlawful for him to simply shoot each one of them in the back of the head and cart their bodies off to the property line.

There’re also practical and tactical considerations when we’re talking about such a disparity of numbers, especially in such an isolated area, as described in the hypothetical. And those are tactical and practical implications that are true even of the rancher is armed with a firearm and the men themselves, the 20 men possess no weapons.

So there are times when a use of force may be technically lawful, but would be ridiculously stupid to attempt because the outcome is likely to be extraordinarily negative.

Now, first, let’s consider the manner first in the context solely of defensive property, so we’re assuming right now that the 20 men are not threatening the rancher, they’re simply threatening against the property, they’re trespassing. So it’s a property issue. It’s a defense of property issue. It’s not a defense of persons issue, the rancher is not under imminent attack. If he were under imminent attack, well, then it’s a defensive person’s self-defense.

But in a defense of property context, so assuming the squatters entered the cabin when it was unoccupied, meaning before the rancher arrived, so it’s not a case where the ranchers in the cabin, and these 20 minute break in the 20 men are there already when the rancher arrived.

So it’s not clear to me that the Texas special provisions for home defense would apply to this case. Now you can find, if you’re in Texas, if you’re interested, you can find those provisions. Its Penal Code 9.32(b), as in Bravo would be the relevant paragraph.

And this is a provision that many states have similar special provisions for the defense of highly defensible property for the defense of home scenario. And what this provision does is it creates a legal presumption that the defender in the home dealing with a forceful and unlawful intruder into the home, it’s legally presumed that defender has a reasonable fear of an imminent deadly force attack that would justify his use of deadly defensive force against an intruder. Basically, it gives the home defender everything he needs to justify the use of deadly defensive force against that forceful and unlawful intruder. So it’s a very powerful defensive home statute. Again, not unique to Texas, many states have these legal presumptions in defense of highly defensible property provisions.

But this provision, at least the Texas provision, which are reviewed for today’s show, explicitly applies only when the home is occupied, meaning occupied by the defender. That is, it envisions a defender inside the home facing an intruder or someone attempting to intrude into the home. It doesn’t envision a homeowner who arrives home to find people already inside the house.

And in our hypothetical, that’s what happened. The rancher got to the cabin, the people were already there. So, the cabin’s not occupied by the rancher while the intrusion was taking place. And if that provision, again, penal code, section 9.32(b), if that does not apply, because for the reason I just described, then the defense of the home of the cabin is really treated as a defense of just least defensible property a defensive personal property.

In most states, that would mean the rancher is limited to using non deadly force only to remove these trespassers, but I say in most states, because right we are in Texas and our hypothetical, and in Texas, there is a statute that allows for the use of deadly defensive force in defense of even mere personal property. That is Penal Code § 9.42.

And that statute has very specific hoops that have to be jumped through, so among those very specific hoops is it only applies if particular crimes enumerated crimes are reasonably believed to be taking place and included among those crimes in this defense of least defensible property provision § 9.42. And I’ll quote here from the statute

… to prevent the others imminent commission of arson, burglary, robbery, aggravated robbery theft during the nighttime, our criminal mischief during the nighttime …

So, note that the theft provision and the criminal mischief provision only apply only trigger this privilege to use deadly force in defense property if they occur at nighttime. The other enumerated offenses, arson, burglary, robbery, aggravated robbery, don’t. arson is not really part of our hypothetical robbery and aggravated robbery is the taking of property by threatening a person and we’re presuming for this part of our discussion., that there is no threat the person or this would be a self-defense case, not a defense property case.

So that really leaves us with burglary as the one enumerated crime here that would trigger this deadly force in defensive property provision. And are the trespassers committing burglary? I mean, maybe, but maybe not. And if they’re not, they don’t trigger statute 9.42.

I mean, if they broke in, and even if they’re just eating food found in the cabin, right, which would not be hard to imagine, well, that would be a burglary. They unlawfully entered for the purpose of committing a crime, which is the classic definition of burglary. There the crime being essentially the theft of the food, right, converting the food to their own use.

But the rancher is required to reasonably believe that burglary or one of the other enumerated crimes in § 9.42 is taking place. And if you have to reasonably believe it, it means you can’t merely speculate it, you can’t imagine it, it’s not while they could be eating the food, “for all I know they’re eating the food,” the concern can’t be merely speculative. The rancher would have to be able to point to actual evidence from which he formed a reasonable belief.

So for example, did he see these men eating canned goods of a kind he keeps in the cabin, that would likely be enough to form a reasonable belief that the men were committing burglary, the eating of the food, but he can’t really speculate that the men must be eating his canned goods, absent evidence, and conclude from that speculation that burglary is occurring, that would trigger the deadly force privilege under Section 9.4.

So now all that I discussed before, and I’m going to try to wrap up quickly because we’re in the last five minutes, that’s the legal nuts and bolts on whether the rancher could lawfully use deadly force against a trespasser. That’s the kind of analysis we would do. In the absence of a threat to person.

Again, if it’s a threat to person, it’s a self-defense analysis, not a defense of property analysis. But it’s equally important to ask the practical and tactical question of even if permitted by law, should the rancher, or should the rancher want to, use deadly force in this context?

First, how many of these 20 people is he willing to kill? Excuse me to clear the property? is he willing to kill one of them? 510, all 20 of them.

Second, if the killings were actually all 100%, lawful, which, frankly, seems unlikely, that doesn’t mean the rancher won’t be put to the test of a criminal trial. And as I said, you could be the most innocent defendant in the world, we put you in front of a jury, there’s a 10% chance you’re getting convicted. That’s just the noise in the system is a 10% chance of life in prison worth clearing those 20 men from the property especially when one considers that, let’s face it, the rancher could clear him off the property, let’s say he kills them all clears them all the property, doesn’t face a criminal trial, but next month when he comes back, there could be easily a different group of 20 guys on the property again.

I mean, how often are we going to do that? What problem is really being solved here? is taking human life worth solving that problem wouldn’t even solve the problem.

There’s also the question of whether the rancher could realistically survive a deadly force fight against 20 men, even if he has a gun, and they are unarmed. And remember, the real mission in all these cases is always to make it home alive, not simply to be the legal victor in the fight, even if that would be lawful.

Third, this notion that the property’s rural, outside of 911 reception is not very compelling to me, frankly, because, of course, it means maybe the rancher can’t call 911 in the moment, but there doesn’t seem to be any reason he couldn’t simply turn around, drive to where he did have a cell signal and call from there.

So, again, the core mission is to survive the scenarios, and it’s not much consolation that your use of force was technically lawful, even if we assume it was technically lawful, if you nevertheless died in the effort.

Again, a completely separate analysis would be done if the men were actually threatening the rancher personally, that becomes a self-defense scenario, then you would just apply the five elements of self defense hope, hopefully, all of you listening to this. are familiar with those five elements.

Okay, folks, let me take a quick look at the look at the questions in the comments. Now in the last few minutes we have left So first, I’ll check out our members comments. Yes, no audio no audio. Sorry about that, folks, for the first couple of minutes.

I guess Jody mentions there are George Zimmerman challenge coins out there, too. Again, there’s no evidence that George Zimmerman did anything inconsistent with lawful self-defense, hence his acquittal at trial.

And James asks about the challenge of the autopsy of George Floyd that the autopsy was coerced? I’m not going to address that here because I’ve written about it extensively at the Law of Self Defense blog already.

Edward asked if I can comment at the home gun confiscate confiscation ruled unconstitutional by Supreme Court decision. I’m afraid I can’t Edward. I haven’t read the decision yet. I probably will just from personal interest. But again, I’m not I don’t claim any expertise as a gun law expert, or, for that matter of constitutional law expert.

We do need to be very careful. So, I do encourage people to read those opinions, because often they pivot, not on the issue meet we might think is pivotal. Maybe not even on a second amendment issue per se. But on some, you know, fourth amendment issues, some search and seizure issue that is relevant in that case and might be the key to the Supreme Court decision but isn’t really a gun law decision per se.

Alright, folks, I think I’ve hit all the questions that were in the comments. I am currently planning to do a Law of Self Defense Show next Thursday, on our regular schedule, that would be June 10. I will however be traveling, and I’m uncertain what the internet situation will be like. So, it’s possible that the internet situation may be such that I can’t stream a live show. I won’t know that until the day of unfortunately. So plan on joining us next Thursday, June 10 4pm. Eastern Time for the next Law of Self Defense News/Q&A Show and if it doesn’t happen, you’ll know why that was the case.

But well even the worst case scenario if we don’t have one on June 10, we will have one on June 17.

Alright folks, as always, as I sign out I remind all of you that if you carry a gun so you’re hard to kill, that’s why I carry a gun so I’m hard to kill, so my family is hard to kill, then you also owe it to yourself and your family to make sure you know the law so you’re hard to convict.

OK, folks until next time I remain Attorney Andrew Branca for Law of Self Defense.

Stay safe!


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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5 thoughts on “Law of Self Defense News/Q&A Show: June 3, 2021”

  1. Andrew, on the question of self defense immunity under a law like Missouri’s, or even Florida’s, not every state is going to give you self defense immunity in a civil case just because you qualified for self defense immunity in a criminal case, or because you were found not guilty on the grounds of self defense in a criminal case. I have seen decisions holding that you have to assert self defense immunity in the civil court/case because the burden of proof is different in that court/case. I guess it depends on how the law is written, but in states where the standard of proof is different, you may have criminal immunity, but no civil immunity based on the criminal immunity. The criminal court’s ruling is not binding on the civil court. Not to say that you don’t have civil immunity, but saying you have to prove civil immunity in the civil court. I know this isn’t very clear, but you are smart enough to figure out what I am trying to say.

  2. Use of deadly force in defense of property, normally not legal. Use of non-deadly force in defense of property and use of deadly force in defense of self or others when the criminal resists the use of lawful non-deadly force and puts you in fear of great bodily harm or death (or a forcible felony), justified in every state.

    The initial aggressor rule does not apply to persons in encounters were they have the legal right to use force upon another to arrest, to prevent a trespass, to terminate a trespass, to protect property, or other lawful purposes. When a trespasser, a thief, a robber, or a vandal or prowler puts you in reasonable fear of gbh or death the normal rules of self defense apply, and the normal rule as to the initial aggressor is that the initial aggressor rule does bar an aggressor who a legal right to be the aggressor.

    You don’t use deadly force to protect property just because the assailant was a robber or thief just like you don’t use deadly force because your assailant was black, you use deadly force in defense of persons base on what the robber, thief, or black was doing or apparently doing (assuming there is a use or imminent use of force that makes the use of deadly defensive force apparently necessary).

  3. With regards to the trial where a poor soul had two hung juries, and then two trials where the verdict was thrown out in appeals: why the heck doesn’t the prohibition on double jeopardy kick in at some point, and declare that maybe the reason the Prosecution isn’t convicting this person, is because there’s just barely enough reasonable doubt to secure a conviction?

    I am convinced that the binary “must find the defendant ‘guilty’ or ‘not guilty’, otherwise it’s a mistrial” is a violation of presumption of innocence and of the standard of reasonable doubt, and declaring a mistrial so that the Prosecution can prosecute again, rather than dismiss the defendant as “not found guilty” when there’s a hung jury, is a violation of double jeopardy.

    The Prosecution should have no ability to re-try a defendant if there’s such a mistrial. The only reasons I can think of where a Prosecution should be able to re-try a Defendant is if the Defendant’s council is the one who caused the mistrial, or if the judge did, or in general, if there is a mistrial for anything that the Prosecution had done. (And I may be giving too much leeway for the judge as well — if the specter of judge- or prosecution-caused mistrial is enough to throw out the case entirely, then perhaps that would serve as a check on judicial and prosecutorial misbehavior.)

    Of course, we don’t live in a perfect world, so we have to deal with the Courts as they are, and not as they ought to be. Then again, if we don’t complain about how they currently are, as opposed to how they ought to be, we’ll never reform the Courts, either (and if there’s one thing I’ve noticed over the years, there’s a lot of leeway for reform in both Police policy and Court proceedings)!

    1. I would agree that giving the prosecution a second chance to prove a person guilty of the same offense is a violation of the double jeopardy clause of the Federal Constitution. The defendant is presumed not guilty and there is no constitutional requirement that the jury find the defendant “innocent.” A hung jury is a result of the prosecution failing to meet its burden of proving the defendant guilty beyond a reasonable doubt and the defendant has no burden of proving his innocence by any standard of proof. A hung jury has determined that the prosecution failed to meet its burden of proving guilt beyond a reasonable doubt. Its not rocket science.

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