UPDATED: Law of Self Defense News/Q&A Show: Oct. 14, 2021

Law of Self Defense News/Q&A Show: Oct. 14, 2021

UPDATED: We’ve updated this post from last night with a summary of stories covered, we’ve carved up the hour-long show into individual story segments for convenience, and we’ve added a rough transcript of the show, all below.  Note that this updated content is available only to Law of Self Defense Members. 

Crazy: Chicago Prosecutor Refuses to Charge Gang Gunfight in Streets

Does Stand Your Ground Allow Man to Kill Two Others Over Firewood?

Intervene in a Shoplifting, Get Yourself Charged with a 10-year Felony

Gun-Shaped OC Spray: A Clever Idea, or A Good Way to Get Yourself Shot?

Law of Self Defense News/Q&A Show: October 14, 2021: Rough Transcript

Welcome to the Law of Self-defense News/Q&A Show how for Thursday, October 14, 2021.

To give you an overview of what we plan to cover today, I have a number of topics. This is of course our News/Q&A Show for Law of Self-defense, and at Law of Self-defense, we do use of force law. That’s all we do, as a legal practice. I am of course attorney Andrew Branca. Thank you very much.

And in these weekly shows, this is our only open-access content we do every week, most of our content is restricted normally for Law of Self-defense Members, but in these weekly News/Q&A Shows we do every Thursday 4pm Eastern time, we provide our analysis of certain use of force events that we see in the news, either that have come to our own attention or that others have brought to our attention. That’s the news part of the show. And we’ll explain how the news gets things right, gets things wrong in the use of force context, and how use of force actually works in those instances.

And then we also do Q&A. So we have questions sent in to us beforehand. We have questions sent in to us via the comments, which I’m not sure actually how to see here on the YouTube page, but hopefully, someone will pop into my office in a moment and explain to me how to do that, before we go any further. However, I do have our little video intro to run. So let me take care of that and do that first. Here we go.

Let me step through the news items we have to cover today.

The first involves the instance in Chicago where prosecutors are refusing to press charges against any of the five gang members who were involved in a wild shootout, in the streets of the city, that prosecutor being Kim Foxx. There’s no question the shootout happened, involved five members of street gangs in Chicago, and she’s declining to bring charges against any of them, on the grounds her office says of mutual combat, making it impossible for she says for her office, her prosecutor’s office, to prove any crimes here beyond a reasonable doubt because of the legal doctrine of mutual combat. So we’ll talk about that doctrine of mutual combat and how it’s completely applicable here. And how her explanation is complete horse pucky.

We also have a news story about Missouri man who kills two over firewood. That’s what the headline says, that he shot two people dead over firewood, and no charges will be brought. The news report says because of Stand Your Ground law. So we’ll explain what stand-your-ground law is, and how it’s completely inapplicable to the actual facts of this case. So again, the media getting these legal doctrines completely wrong misinforming the public, and unfortunately leaning some members of the public into use of force actions that can only get them either killed or criminally charged with serious felonies.

As happened in our next news story, which was a woman was arrested after shooting an alleged shoplifter at a convenience store in Phoenix, Arizona. She’s charged with aggravated assault with a firearm, which is a felony good for 10 to 20 years in prison in most jurisdictions. She’s perhaps 40 or 50 years old, so we’re talking about much of the rest of her life in prison if she’s convicted of this aggravated assault with a firearm charge. She’s fortunate the person she shot didn’t die, of course, or she would be looking at manslaughter or murder charges. So we’ll be talking about the wisdom of using gunfire to stop shoplifters.

Then we have another instance that was sent in to us a real life event that came to the attention of one of our Law of Self-defense Instructors. For those who don’t know, we have an instructor program for self-defense instructors, that’s the equivalent of a semester-long, law school class on Self-defense Law, if any law schools taught Self-defense Law in this depth, which to my knowledge, none of them do, unfortunately. If you’d like to learn more about the instructor program, you can point your browser to http://lawofselfdefense.com/instructor.

But in any case, one of our Law of Self-defense Instructors, Gary T. sent us a report about his neighbor his neighbor was involved in confrontation with the house next to him involving unintended two trash cans. This argument over trash cans escalated to the point where the neighbor pulled a gun, pointed it at the other party, and now they’re charged with aggravated assault with a firearm, again a felony good for 10 to 20 years, over trash cans. And we’ll talk about the prudence or wisdom of escalating to deadly force in circumstances that really clearly didn’t have to happen.

And then I also wanted to share with you not so much a news story but a product, a self-defense product, that was just brought to my attention yesterday apparently it’s called I don’t know how to pronounce it, Byrna.  It’s a pepper spray device. And those of you who follow me for any length of time know that I’m a fan of pepper spray, I carry it myself in addition to carrying a pistol every day of my adult life. But this is a pepper spray device that’s shaped to look exactly like a handgun, comes in a variety of colors, some of them bright fluorescent type colors, but also just flat black. Much like a Glock for example. Or most any other hand guns that are popular today for personal defense. And it looks exactly like a gun. So we’ll talk about the wisdom or lack thereof of choosing as your pepper spray device, an item that is shaped to appear in all respects exactly like a pistol.

Alright folks, but before I jump into the meat of each of those stories, I do want to mention our sponsor, our sponsor for today’s content is, of course, CCW Safe. CCW Safe is a provider of legal service memberships, what many people mistakenly call self-defense insurance. In effect CCW Safe promises to pay the legal expenses of its members if they’re involved in a use of force event.

And those expensive start big and get bigger, fast, folks. I mentioned a couple of news stories we’ll be covering today involve people who’ve been charged with aggravated assault with a firearm. You can easily spend $30,000 to $50,000 on a retainer for your lead counsel if you’re charged with aggravated assault with a firearm. And that $30,000 to $50,000 is just for pre-trial expense, folks, it doesn’t cover trial expense. If you’ve actually killed someone and find yourself charged with murder or manslaughter and now wish to justify that killing as self-defense, you can easily burn through $200,000 pre-trial expense before you even get to trial folks.

So if you don’t have that kind of money stuffed in a mattress just in case you’re compelled to defend yourself, your family can be helpful 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, which is as if the rest of your life depended on it because effectively it does. And that’s what CCW Safe does for its members.

Now there are several other companies that offer purportedly similar services out there in the marketplace. As you might imagine. I’ve looked at all of them and I found that CCW Safe is by far the best fit for me. I’m personally a member of CCW Safe. My wife is personally a member of CCW safe. That said whether they’re 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 pointing your browser to http://lawofselfdefense.com/ccwsafe.

And if you do decide to become a member there, you can save 10% off your membership with the discount code LOSD10, that’s LOSD for Law of Self-defense, and the number 10, at that URL http://lawofselfdefense.com/ccwsafe.

Crazy: Chicago Prosecutor Refuses to Charge Gang Gunfight in Streets

[Source: Prosecutors reject charges against 5 suspects in deadly gang-related gunfight in Austin: ‘It’s just like the Wild West’]

Okay, so the first story I wanted to cover in more depth now is this gang shootout gunfight wild west type gunfight that happened in the streets of Chicago amongst five gang members, all of this is apparently incontrovertible facts and they were identified and the prosecutor in Chicago Kim Foxx, I believe it’s, yes, Kim Foxx, two exes.

Kim Foxx has decided she’s not going to prosecute any of these gang members, none of them, for participating in this street side gun battle, on the grounds of mutual combat, arguing that mutual combat would make it, the legal doctrine of mutual combat would make it impossible for her to prove any of these parties guilty of any crime beyond a reasonable doubt, so she’s declining to bring charges. This is such a really outrageous decision that even the extremely liberal mayor of Chicago, Lori Lightfoot, is objecting to no charges being brought here.

So first, let’s talk about the doctrine of mutual combat. So generally speaking, mutual combat occurs when two people, or more people, decide to settle their differences through physical combat. It’s the traditional two guys in a bar saying, all right, let’s go outside and settle this like men. Like idiots, of course, but they decide to settle their differences with mutual combat.

In terms of use of force law, what engaging in mutual combat does is strip you of the element of innocence. Those of you who follow for any length of time know, there’s five elements of a self-defense claim, innocence, eminence, proportionality, avoidance and reasonableness. All the required elements must be present for your claim of self-defense to be valid. If the prosecution can disprove or eliminate any one of the required elements, you don’t have a legal justification in self-defense, the prosecutors destroyed it.

When you engage in mutual combat, what you’re doing is losing the element of Innocence. Because in the eyes of the law, all the parties involved in mutual combat re initial aggressors in the fight and as aggressors, they lose the element of Innocence. They lose self-defense.

So in that context, being a mutual combatant is simply a way to lose self-defense. Right, it’s got a negative consequence for the person claiming self-defense, mutual combat can never have a positive context.

Well, there is one state, the state of Washington, not Illinois where these events occurred, but the state of Washington, which does apply mutual combat in a positive sense for a defendant. And that’s where defendants are involved in, really, a traditional fistfight, so a non-deadly force combat. These are the two guys in the bar who go out to settle their differences.

Now, in theory, if you’re punching someone else, you could be charged with simple assault or simple battery, usually misdemeanor level crimes. But in the state of Washington, they allow the doctrine of mutual combat to be raised as a legal defense to a charge of simple assault or battery, if you and the other fellow had both agreed to get into the fight. So you’re not simply attacking him, he’s not simply attacking you, you’re attacking each other. It’s a mutual combat scenario.

And the state of Washington allows mutual combat to be raised as a legal defense to those misdemeanor charges of simple assault and simple battery where there’s no deadly force involved. And that’s the important point. That’s the threshold. That’s the limit of the application of this doctrine of mutual combat, in that positive sense, in acting as a legal defense to those misdemeanor assault or battery charges: It does not apply in a deadly force situation. Because if it did apply in a deadly force situation, that would mean that lethal dueling was lawful in the United States. And it’s not folks anywhere.

Under this expression of mutual combat being communicated by a Prosecutor Kim Foxx in Chicago, if two people want to get in a gunfight, like in the wild west movies in the middle of the street and just shoot it out, she can’t prosecute either, then, because it’s deadly force mutual combat, and that’s fine by her, under her understanding of the legal doctrine of mutual combat. In fact, mutual combat in Chicago doesn’t even have the possibility of being raised as a defense as it can be in Washington, because Washington is an outlier in allowing mutual combat to be raised as legal defense. But even in Washington that can only be raised in the context of a non-deadly force fight, not a gunfight in the streets, as occurred in Chicago.

So this explanation for why she’s not prosecuting any of these gang members, and by the way, presumably one side of the fight might be able to argue self-defense, right, perhaps they were attacked by the other side. But they can’t both be claiming self-defense, someone was the initial aggressor, or it was mutual combat. And in either scenario, they’ve lost, whoever was the initial aggressor, or mutual combatant, had lost that element of Innocence, and lost self-defense.

And by the way, if you’re not familiar with these five elements of self-defense, we do have an infographic we make available for free. That list the five elements provides a brief description of them, it’s just a PDF document doesn’t cost a penny, folks. And if you want to download that, you can get that at http://lawofselfdefense.com/elements

Because if you don’t understand these five elements, you can’t possibly understand Self-defense Law. It’s the absolutely must-have required basic foundational knowledge to understand use of force law at all is these five elements I think And you can get that totally free infographic at http://lawofselfdefense.com/elements.

So if mutual combat is not the rationale for not charging any of these gang members who had this fight out in the streets of Chicago this gunfight, what is the rationale? Well, the rationale, first of all, there doesn’t have to be rationale. Presumably the rationale is political. There’s no legal rationale that prohibits the prosecutor’s office from bringing charges. It’s a matter of prosecutorial discretion. Kim Foxx has decided she’s simply choosing not to bring charges in this case.

And why would she make that kind of decision on such a political basis? Well, Kim Foxx in Chicago is one of the many prosecutors whose seats were effectively bought for them by George Soros, George Soros has purchased a basket of prosecutor seats all around the country, Kim Foxx is one of those. Most of these prosecutors races folks involve a few $1,000. Maybe in a big city like Chicago, a few 10s of $1,000s of dollars. George Soros gave Kim Foxx $2 million for her last race. That effectively buys the seat, no one else is bringing that kind of money to that race. And of course, it works, Kim Fox was elected to the position of prosecutor.

And for those of you who don’t know, may not be familiar with Chicago, Chicago is, the gangs in Chicago so thoroughly control large areas of the city that their politicking can make or break the race for any politician running for any office in the city. They are part of the political machine, politicians go to the gang members to ask for help in getting elected. It’s much like an old school mafia movie where a politician would go to the mafia boss to ask for his help and support in getting elected.

Well, that’s what happens in Chicago, except it’s not a bunch of old Italian guys in a smoky room. It’s the gang members in the city. And they helped Kim Fox get elected, she couldn’t have gotten elected without their help. These are not just troublesome people in her community, the way a normal prosecutor might see them. dealers of drugs, committers of crime, violence, death, mayhem—these are her constituents. So, of course, she doesn’t want to inconvenience her constituents with criminal charges.

That’s the only explanation because there is no legal explanation for why these people can’t be charged, they can be charged, if the prosecutor wished to use her discretion to charge them. So be careful who you elected these offices, folks, because these, these prosecutors have unbelievable power and authority, both in a positive way and the negative way. Both in the ability to bring charges where arguably charges have no legal merit. We see that in the case of George Zimmerman, we see that right now coming up in just a couple of weeks the trial of Kyle Rittenhouse.

And to not bring charges, as they’ve apparently never really brought charges against any of the Antifa members or Black Lives Matters who engage in rioting and looting and arson in major cities all over the country. None of those people are sitting in jail, none of those people, except for perhaps a handful, have faced criminal charges for that conduct. Because the prosecutors just decided they don’t want to.

And by the way, once the police learn that these people are not going to be prosecuted even if arrested, there’s little point to making an arrest. So that doesn’t happen either. And then we end up with this whole cycle of endlessly increasing crime, violence, mayhem, which unfortunately, we’ve all become increasingly familiar with in so many of our urban centers.

But it’s all a function of who makes these decisions. And that’s a function of who gets elected to these offices. So, it’s unfortunate, but that’s the way it works.

But the reason these gang members are not being prosecuted in Chicago is not because in mutual combat, it’s because Prosecutor Kim Foxx doesn’t want to prosecute them.

Does Stand Your Ground Allow Man to Kill Two Others Over Firewood?

[Source: Missouri man kills 2 over firewood, no charges due to ‘stand your ground’ law]

Alright, the next story I wanted to touch on and by the way, folks, if you are watching live and you’re commenting, please feel free to comment throughout the show. I can’t look at the comments the entire time I’m doing this but time permitting, I will look at the comments.

Alright, so the next story I wanted to get to was one of a gentleman, a Missouri man. I believe it was Kansas City. And by the way, folks, all these new stories if you go to the text version of this content, which is over at the law, self-defense comm blog, page law, self-defense comm slash blog. We do provide links to all the underlying news stories so you can read into these yourself if you’re sufficiently interested.

But this was a Kansas City, Missouri man, and the headline reads, Missouri man kills to over firewood. No charges do to stand your ground blah. That’s the headline to the piece. And it’s so commonly the case. The headline is  completely misinformation about what actually happened in this case completely misleading to the public about how these use of force laws work.

And completely typical, especially on political hot button issues like things like stand your ground laws, which the media spends endless resources in misinforming the public about and making them the public believe it’s something that it’s not that it’s some kind of license to kill and of course, it means nothing of the sort.

I will say in this news article they do quote a local prosecuting attorney and he seems to know what he’s talking about which is not always the case folks. It’s often the case where the headline gets the law wrong and then they quote the prosecutor and he gets the law right in this case, at least. The headline’s mistaken, but at least the prosecutor, the information he provided the newspaper, if they’re capable of understanding it, was a correct understanding of Missouri use of force law and stand your ground law in particular.

So the first thing this new story gets wrong as they say that a man kills to over firewood. Like there was a dispute over firewood, and he said I’m tired of this dispute over firewood, and he shot two men dead. That that was his rationale. They had a disagreement over firewood, so we killed them.

Well, that’s not at all what happened. In fact, what happened was these two men who were killed, were delivering firewood to the father of the man who shot them, and they shorted the man on the delivery they only delivered a portion of the firewood they were supposed to drop off.

The father was not home when these two delivery men, the men who were shot, left the scene having not finished the delivery of the total amount of wood they were supposed to drop off, but the man’s son was home, and the man’s son saw that his father was being shorted. The delivery men were driving away—

Okay folks I’m back and it appears that I can now see the comments on YouTube as well so if you leave any questions or comments you have I will do my best to get to them before the top of the hour but back to this two men killed over firewood story.

So the two men had shorted the father on the delivery, the father wasn’t at home but his son was, presumably an adult son. The delivery men are driving away, the son gets in his own car and pursues them. Everybody stops and the son starts calling out to them, Are you just gonna rob my father by shorting him on this delivery of firewood?

And these two men who shorted the father on firewood, they get out of their vehicle armed with guns, and they point the guns at the son. So clearly, an unlawful imminent deadly force threat against the son by these two men, and the son responds by, not unreasonably, he’s standing outside his vehicle, he reaches into the vehicle retrieves his own gun, of course, it would have been better if the gun was on his person, but he retrieves his own gun from his vehicle and starts shooting at the two men pointing guns at him. And shooting effectively, apparently, he strikes both of them with rounds, and they both end up dying as a result of their injuries. The son suffers no injury, whatever.

But he didn’t shoot them over firewood. He shot them because they were presenting as an imminent unlawful, deadly force threat to his life. So he shot them in lawful self-defense. That’s why there’s no charges being brought in this case. He didn’t shoot them over a piece of lumber, a piece of wood. He shot them because his life was being unlawfully threatened by them.

Now what about this mentioned a stand-your-ground which the headline says, no charges due to stand your ground law?

Well, properly understood all stand your ground does is relieve you of an otherwise existing duty to retreat before you can use force in self-defense. Now most states don’t have a legal duty to retreat, there’s only about a dozen states that impose a legal duty to retreat. In fact, I have a list of those, at http://lawofselfdefense.com/retreat. You’ll pull up our current blog post listing the 12 remaining duty to retreat states.

And Missouri is not one of them anyway, so Missouri is not a duty to retreat state in any case. So there would not be a legal duty to retreat regardless. And if there wouldn’t have been a legal duty to retreat, regardless, you don’t need standard ground to relieve you of a duty you’re not subject to in the first place. And of course, that’s why stand your ground law comes into place because Missouri has a stand your ground law that says you don’t have a legal duty to retreat.

But if you’re being shot at folks, then retreat’s not practical and not safe. You can’t run faster than a speeding bullet and the only time a legal duty to retreat is imposed, even in the 12 duty to retreat states, is if you can retreat with complete safety. You’re not required to increase your jeopardy in an effort to retreat, to meet this legal duty to retreat. If retreat is dangerous to you, then the legal duty does not apply.

Here we have the son, facing two men pointing guns at him, he’s not going to run or drive away faster than the bullets that would be fired at him. So there is no legal duty to retreat. Regardless, even if Missouri had been a duty to retreat state, even if it had been Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New York, North Dakota, or Rhode Island. Even in those states, there’s no duty to retreat unless you can do so safely. And under the circumstances, what muzzles on him, safe retreat is not possible and wouldn’t apply even in those dozen few remaining duty to retreat states.

By the way, folks, the standard ground has gotten such bad press ever since the George Zimmerman trial. But since then, and that was what, almost 10 years ago now, I guess. There’s been an increasing number of states that have gone from duty to retreat to stand your ground. So the number of stand your ground states has gone up.

And not one single state has gone the other way. Not one single state that is a standard ground state has decided we’d rather be a duty to retreat state. So that’s a pretty compelling trend across the country on a law that so many people misunderstand.

And by the way, folks stand your ground is not some license to kill it doesn’t mean you can kill someone if they merely frighten you, all the other elements of self-defense still have to be present. So I talked about those five elements of self-defense, innocence, imminence, proportionality, avoidance, and reasonableness.  Again, you can get that five elements infographic at http://lawofselfdefense.com/elements, it doesn’t cost a penny.

What stand-your-ground does is effectively take away one of those five elements, it takes away the element of Avoidance, it removes in otherwise existing duty to retreat, but the other four elements are still present folks, or they need to be present for your use of force to be self-defense, you still have to be the innocent party, you still have to be using proportional force, you still have to be facing an imminent threat either actually occurring or immediately about to occur in your conduct has to be otherwise reasonable.

So standard ground isn’t a license to kill, you still have to meet all those other conditions. But if you meet those other conditions, the laws in a standard ground state says we’re not going to put you in a cage for the rest of your life merely because the prosecutor was able to convince a jury that you had some hypothetical safe avenue retreat, we’re taking the issue of retreat for an otherwise lawful use of force and self-defense off the table.

Intervene in a Shoplifting, Get Yourself Charged with a 10-year Felony

[Source: Woman arrested after shooting alleged shoplifter at Circle K in north Phoenix]

Okay, the next story I wanted to touch upon was this woman. Let’s see, I think I actually have a little image here. See if I can make this work. Miriam Shekhmoos. And if you’re thinking that’s an unfortunate last name, well, you’re not alone, I can assure you.

But apparently Miriam was in a Circle K convenience store in the middle of the afternoon, 3:15pm, in Phoenix, Arizona, and had on her person, a pistol for personal protection. I guess that was the purpose, that ought to have been the purpose. But in any case, she was armed with a pistol, and she observed a man apparently shoplifting from the store. And of course, the headline reads that the woman arrested after shooting alleged shoplifter at the Circle K.

If you don’t know, folks, in 49 states, there is no, zero, allowance for the use of deadly force in defense of mere property. You can only use deadly force in defense of innocent life. If we’re talking about a pure threat to property. No deadly force is permitted.

Now there is one state, Texas, that does have a provision for the use of deadly force in defense of mere property in the total absence of a threat to an innocent person. That’s status Texas, you can find that law if you’d like to read it at Texas Penal Code 9.42. In fact, you can point your browser to http://lawofselfdefense.com/942, it’ll pull up that statute totally free.

But I would caution that statute has a lot of conditions that have to be met. And the failure to meet any of those conditions strips you of that justification for the use of deadly force and defensive property in which case, you’ve used deadly force without any legal justification and should expect a long prison sentence. So even in Texas that does have this theoretical provision for allowing deadly force in defensive property, I would discourage you from attempting to take advantage of that provision.

But in any case, if you don’t live in Texas and every other state, there is zero allowance for the use of deadly defensive force in defense of mere property. So the headline here suggests that that’s what she did that she shot a man, an alleged shoplifter. That’s why she used force against him because he was committing a property crime.

Now, the news text in the news story does say that she apparently tried to stop the man and he pushed his way past her to run away. And that’s when she shot him. So it’s a little ambiguous. I mean, she may have made things even worse for herself, if she simply shot him in the back as he was running away. So there, perhaps, there was not even a property crime any longer occurring.

On the other hand, perhaps this physical contact was of a nature that it could be reasonably perceived by her as an unlawful imminent threat of death or serious bodily injury to her to her person, in which case her use of the gun might well have been lawful self-defense.

She has, however, been arrested and charged with aggravated assault with a firearm again, a serious felony good for 10 to 20 years in most jurisdictions, plus you used the gun, so there’s going to be a gun sentencing enhancement on top of the underlying offense. This woman’s reported as being 41 years old. 20 years in prison is a good chunk of the rest of her life in prison if she’s convicted on this kind of charge.

And the fact that she was arrested, now, this is not certain, but it suggests to me that she did not say the right things, or have her attorney say the right things. Because there is a theoretical self-defense justification argument to be made here, if she knew what to say, if she knew what the elements of a self-defense claim were. And I’m not saying she should lie. But I’m saying if you don’t know what the elements are in the first place, you certainly don’t know how to articulate where the facts of the situation align with the required elements and be able to communicate that to other people.

If you’re just going to make general protestations about having been frightened, that’s not going to get you out of being arrested for having shot someone, especially if there’s facts in the case suggesting it might have been over mere property or might have been shot in the back as the guy was running away, which is very difficult to justify under any circumstances. Not impossible. There are circumstances in which shooting someone in the back can be perfectly justifiable. But there aren’t many of them. And they’re very particular and you better know what they are, if that’s what you end up doing.

So the wisdom here, so this woman intervened in the shoplifting event, we know that for sure, at the very least, she intentionally tried to stop the shoplifter from leaving the store. Now she’s ended up shooting someone who appears will survive, so that’s good, she won’t be facing a murder or manslaughter charge.

And folks, that’s generally true. If you have shot someone in lawful self-defense, or what you think is lawful self-defense, depending on your how well informed you are on the subject of use of force law, you want that person to live.

I know, it’s a common perception that if you’re going to shoot them, shoot him dead, so there’s only one side of the story being told, your side of the story. First of all, that’s generally not true in modern society. There’s witnesses, there’s cameras, there’s always the other side of the story. If nothing else, there’s the forensics, right? So if you shot the person in the back as they were running away from the convenience store, for example, that’s going to be apparent on the forensics. So it’s very rarely the case that it’s genuinely only your story being told of the other person dies.

But more important, if they die, the level of criminal liability you’re looking at has skyrocketed. I mean, now you’re looking not at maybe, presumably you’re all law-abiding people who’ve never been convicted of a felony before, so first time offense. The person survives, maybe you’re convicted of aggravated battery with the firearm, maybe you’re sentenced to 10 years, maybe you get out in a third of that time with good behavior. Three to four years in prison, you get your life, more or less back, at least you’re not living in a cage anymore.

If that person dies, and you’re charged with murder and convicted, you’re looking at life in prison without possibility of early release, folks. So even if you don’t care about the moral aspects of a person not dying unnecessarily, it’s in your own interest that that person not die, because if they live it enormously reduces your prospective legal liability and exposure.

So, but anyway, this woman intervened in an apparent shoplifting event and that she finds herself looking at an attempted 20 year felony conviction. If she’s found guilty on this charge of aggravated assault with the firearm, was it worth it? Was that outcome worth it?  And that’s always a possible outcome, folks. In fact, the outcome could have been worse, right? She could have presented her gun and the shoplifter might have had a gun, and shot her dead.

So anytime you get into these physical confrontations there’s, suddenly you’re subject to two risks at least two risks that you weren’t being subject to before one of them is a risk of death in the physical confrontation. Right? And I don’t care how good you are with a gun or a knife or your hands or whatever the risk of dying in the fight is always more than zero. We developed these defensive skills to reduce that risk as close to zero as possible, but it’s always more than zero.

And the risk of going to jail for the rest of your life is suddenly more than zero, or at least very lengthy portions of the remainder of your life before your risk of going to prison was nothing because you weren’t engaged in physical confrontation with anybody. The moment you get engaged, your risk of going to prison, perhaps, for very long periods of time, perhaps the rest of your life, it may not be high, but it’s more than zero. It exists.

So what’s worth incurring those two risks, the risks of death and the risks of life in prison? Is stopping a shoplifter of someone else’s goods worth that risk?

Now, maybe it is to you. And that’s fine. I’m not making a moral judgment here. I don’t tell other people what to do. I don’t tell other people when to use force and not use force. I can only advise people as to the likely legal consequences of using force under particular sets of circumstances and let them make a hopefully well-informed decision about what’s worth it to them.

I expect that this woman had never before thought through these possible outcomes of her decision to intervene in the shoplifting until now she’s facing those risks in real life.

Neighbor Dispute Over Garbage Leads to Felony Charges

Which really touches upon the last event I wanted to share with all of you and this was a story sent to me by one of our law self-defense instructors, Gary, Gary True. And I’ll just read it verbatim. Because it’s, I don’t think I could do a more compelling job than Gary did here when he sent it to me. Of course, all the names of people involved are not here. Gary didn’t provide them, as he shouldn’t have, and if he had provided them, I wouldn’t be sharing them anyway.

But Gary writes, good morning, Andrew, I wanted to share with you a story you probably hear all too often. (That’s very true. This is a story I hear far too often. Most of the cases I work on fit this story framework.) But Gary continues, a friend of ours got home from work to find his wife arguing with the neighbor over trash left out on trash day, the argument escalated to the point of the neighbor spitting on our friend, and our friend allegedly pulling out a firearm, our friend is now charged with two counts of aggravated assault with a deadly weapon.

So again, folks aggravated assault with a deadly weapon good for 10 to 20 years felony time in most states if you’re convicted of those charges.

So Gary continues, I played him, presumably his friend is out on bond. Gary writes, I played him a few of your episodes last self-defense episodes. And he just said, Man, I wish I heard of this guy before. Gary continues, you don’t just teach millions. The law you also teach common sense arguing over petty garbage in your driveway with your neighbor is just simply not worth it. Go inside. Jjust wanted to share this and say thank you for all you do.

Folks, we get letters in my office just about every week, from people in prison. The return address on the envelope is the prison. The letters are written on typically legal paper with a pencil because that’s what they’re allowed to have to write with. And invariably, the letters are 7, 8,10, 12 pages long, because these people have a lot they want to say about their circumstances.

And generally they’re in prison because of aggravated assault or aggravated battery with a firearm or manslaughter or murder charge. And they thought that what they did in that event in their heads their subjective, subjective genuine good faith belief was what they did was lawful self-defense. Because they knew something about self-defense Law. Maybe they took a concealed carry class or a self-defense course or went on the internet or who knows. Unfortunately, what they learned about Self-defense Law was wrong, was bad was misinformation.

Because there’s a tremendous amount of misinformation out there on how use of force law actually works. They heard bad use of force law, whether from an instructor or the cop neighbor down the street or the newspaper, journalists misdescribing how this stuff works, or heaven forbid going on the internet and reading the comments on some of these blog posts or self-defense threads or gun threads that are out there.

And they absorbed a lot of misinformation that led them to believe that doing X would be lawful and legally justified. And in fact, now that they’ve done X, they’re discovering it’s very much not the case. In fact, what they did was good for 10 to 20 years in prison, aggravated assault with a firearm.

And we get letters from people describing this and either they’ve gotten a hold of our content or they got a copy of our book, The law of self-defense, by the way, which we give away practically for free, we only ask that you cover the shipping and handling. It’s a real physical book folks. It’s a couple hundred pages plus in length. If you’d be interested in getting a free copy of that book, you can get that at http://lawofselfdefense.com/freebook.

And they write us and basically they describe all the things they think are relevant to their use of force event, and they’re bewildered that they’re being prosecuted, that they’re in prison, that they’ve been convicted, that they’re going to spend the next 10 years in a cage with unpleasant people.

And what they end their letters with almost invariably is, having read your book, or whatever content they accessed. I wish I knew then what I know now.

And it almost makes you want to cry, because the information like I say, we give much of it away for free. And they just didn’t know then. And because they didn’t know then, they’re living in a cage.

That does not have to happen, folks, none of this stuff is rocket science. Again, I’ll mention those five elements of self-defense, innocence, eminence, proportionality, avoidance and reasonableness. There’s not 500 of them, folks, there’s not 50, there’s only five, but you have to know the five.

And you have to constrain your use of defensive force within those required elements, or what you did was simply not lawful self-defense, it was simply a criminal use of force against another human being. And that’s not where you want to be.

Gun-Shaped OC Spray: A Clever Idea, or A Good Way to Get Yourself Shot?

[Source: https://byrna.com/]

Let’s see if all the ones The last thing I wanted to mention was this   spray device. So I have a picture for that, too. Let me put this up. This is very unfortunate. So here’s an image. What’s that look like to all of you? It looks to me like a gun. Like a fairly poor quality, kind of Glock knockoff type of thing, right Polymer. This one happens to be brightly colored, but they sell them in all different colors, including just black, in which case, it just looks like a you know, inexpensive polymer type pistol, nine millimeter pistol.

This is in fact a pepper spray device. So it doesn’t fire rounds. It does take a magazine, but apparently the magazine is full of OC. It’s got a thumb safety, it’s got a trigger, I mean, it looks just like a gun. But when you press the trigger, I presume that it’s OC spray that comes out.

It’s hard to think of a worse idea than this contraption for a number of reasons. But one of the most common is other people are allowed to respond to your apparent use or threat of force. So when someone else is attempting to justify their use of force against you, it’s not necessary that you were actually a threat of any particular degree, it only matters that you reasonably appeared to be a threat.

So let’s flip it around. And just imagine that, for example, you’re walking down the street. Someone jumps out of a doorway, points a gun at you, says give me your money. And you decide, well, I’ve prepared for this day, you step off the X, pull your own gun, shoot them dead.

And then it turns out that their gun was actually a toy, a replica, something that was not in fact actually capable of inflicting death or serious bodily injury upon you.

So you thought you were using deadly defensive force against an unlawful imminent deadly force threat. But you weren’t, you were mistaken about that, the threat against you was not in fact, deadly.

Does that diminish your justification for your use of force? And the answer is no, it does not, so long as the threat you were defending against was a reasonable appearance of a deadly force threat. It doesn’t have to be an actual threat. It has to be a reasonably perceived deadly force threat.

Well imagine that you’re facing some kind of non-deadly force threat, who knows, a road rage incident, you pull in a parking lot, a car screeches next to you, a guy jumps out, says you cut them off back down the road, and he gets out of his car, you’re out of your car, and he shoves you.

Alright, well, that’s a simple battery, That’s a crime, misdemeanor crime, non-deadly force, but an unlawful use of force, he’s not allowed to shove you. You’re entitled, your privileged to defend yourself against that conduct, with non-deadly force, non-deadly defensive force. That’s what that element of proportionality means your defensive force has to be proportional to the threat if the threat facing you is only non-deadly in nature, you can only use non-deadly force in self-defense.

What if you responded to that shove by pulling out a real gun? Well, then what you’ve actually done is you’ve escalated what was a non-deadly force fight to a deadly force fight, and you’ve done it unlawfully because you’re not lawfully privileged to respond to a non-deadly force fight with deadly force self-defense.

You’ve gone to excessive force, disproportional force, you’ve lost that element of proportionality, which means you’ve lost self-defense. You cannot justify your use of that gun is lawful self-defense, because you weren’t using that deadly defensive force against a deadly force threat, you were facing merely a non-deadly force threat.

So you’re saying, alright, now that I know that I certainly won’t do that, right? I won’t go to my gun. You know what I’ll do instead, though, is I’ll whip out this thing. I’ll whip out, see if I can point to it. Yep. How about this thing [shows pistol-like OC dispenser]?

Because it’s not deadly force, right? It’s only an OC spray device. So I’d only actually be using non-deadly force against that shove, which I’m allowed to use non-deadly force to stop a non-deadly force.

But here’s the problem. You didn’t just take out a typical OC canister, you didn’t take out like a Sabre Red canister, the kind I tend to carry myself. Which just looks like nothing but an OC canister, certainly does not resemble a handgun, I think we would all agree. If you just pulled that out, it would have been obvious to everyone, you were just using pepper spray to defend yourself, you were using-non deadly force to stop a non-deadly force attack.

But if you pull this thing out [pistol-shaped OC dispenser], in your head, subjectively, you know you’re using only non-deadly force. But everyone around you is going to perceive that you pulled out, what, that you pulled out an actual gun, because it looks exactly like an actual gun. And all those other people are privileged to use their own defensive force against the appearance of your threat. And what it looks like is you escalated a non-deadly force unlawfully to a deadly force level, you’re now the unlawful deadly force aggressor.

In that confrontation, that guy who shoved you would now be privileged to pull his own gun and shoot you dead, if he reasonably perceives this thing in your hand to be a real gun, even if it’s not actually a real gun, because it looks like a real gun. And he’s allowed to respond to reasonable appearances.

By the way, maybe there’s someone behind you, not associated with either the man who shoved you or you, just observing events, he sees you get shoved, he knows you’re allowed to use non-deadly force to defend yourself. But what you’re not allowed to do is shoot the guy who shoved you. And he sees you pull out a gun, presenting as an unlawful deadly force threat to that other person, the man who shoved you.

What’s that guy behind you entitled to do now, he’s entitled to use deadly force in defense of others, in defense of the man who shot you, to protect innocent life from your apparent deadly force threat, and he can just shoot you in the back of the head, in defense of others, apparent defensive others and that would be a lawful use of force on his part.

So you will have lost the privilege of self-defense, and because—or at least you would have appear to have exceeded your privilege of lawful self-defense by pulling out what appears to be a real gun. And now you can be subject to the use of deadly force, lawfully, by the person you’re threatening and anybody else who happens to be around who’s willing to engage in defense of others.

That’s not a position to put yourself in folks. It’s a remarkably stupid thing to do.

So, again, I don’t tell people what to do. So if you want to buy this thing, that’s up to you. But hopefully, you’re a bit more informed now about what the some of the likely legal consequences are for choosing this particular tool for your use of force defensive needs.

UPDATE: After we posted this Byrna critique on YouTube the video received a comment from someone claiming to be Bryan Ganz, CEO of Byrna.  Through incompetence on my part we accidentally deleted that video from YouTube, and as a result lost that comment. Fortunately, we had screen-captured the comment, so we in the interests of transparency and fairness we share it with you here:

Q&A

Alright, folks, let’s see if I can get to some of these comments. now. I’ll go through Google first. Let’s see. Let’s see what would happen.

Covert fandom asks what would happen if a prosecutor brings no charges? And there turns out to be a conflict of interest, say it’s a family member? Well, if there’s a conflict of interest, a prosecutor supposed to recuse themselves, so not having involvement in the case. If they refuse to do that there could be an appeal made to a judge to compel the prosecutor to recuse themselves so we’ve seen this happen in a number of recent cases.

So one is the McCloskey case in St. Louis, where this is the couple of lawyers who went out in their front yard armed with guns he with an AR platform her with what looked like a Walther PPK gun. I don’t remember what the particular model was. And they were facing off a mob of Black Lives Matters protesters who’d broken a gate to get into their little private community there and no shots were fired. Nobody was injured, but they were filmed Of course by the entire crowd. Lots of shouting lots of threats from the crowd towards them, apparently, but unfortunately, where they were St. Louis Missouri also has a George Soros funded prosecutor in charge of that jurisdiction, she decided to charge them with the equivalent of aggravated assault with firearms. Missouri has a Words the statute in an odd way I forget exactly what they call it. But basically, that’s the that’s the charge. unlawful use of a weapon, I believe is how Missouri labels and she then use the fact that she was prosecuting them in her campaign literature to get reelected. So they argued in court, that this was an abuse of her discretion that she was prosecuting them for political purposes, or at least it created the appearance that she was prosecuting them for political purposes. And they effectively they got the trial judge to remove her from the case, and not just her personally. But her entire office was taken off the case on the theory that well, you know, if the boss is compromised, and anybody who reports to the boss is going to be compromised. So remarkably, her entire office was taken off that prosecution. She appealed this all the way up to the Missouri Supreme Court and the Missouri Supreme Court said, Nope, that’s the right call, you are off this case, because you compromised yourself by promoting their prosecution in your campaign literature. So in that case, she was taken off the case against her will, of course, the court did it and then that was affirmed by the Missouri appellate court and the Missouri Supreme Court.

Another instance we have is in the Ahmaud Arbery case, Ahmaud Arbery was the gentleman pursued down the Georgia street by the McMichaels in their pickup truck and by their neighbor who was filming it on his phone. And then they there was a final confrontation, Arbery was killed in that confrontation. And now those three men, the two in the pickup truck, the one who was filming, they’re all coming up on trial on Monday, actually, on various charges, including murder, felony murder, unlawful citizen’s arrest, unlawful imprisonment, I guess is the charge, a whole bunch of different charges.  We’ll be covering that case live by the way, as soon as it starts up on Monday morning. And if you want to learn more, we’ve written about it extensively. You can see all our coverage of the case so far at http://lawofselfdefense.com/arbery will get you there. We have a kind of aggregation page for all our content on my case. But when the event first happened, you know, charges were considered against these men by the local prosecutor. And he immediately realized he had a conflict. I believe he’d worked with one of the men before, it doesn’t really matter. He recognized he had a conflict, so he recused himself and it got kicked to a second prosecutor who also had a conflict and recused himself and then went to a third prosecutor who also had a conflict and she recused herself. And none of this means that the prosecution is not going to happen. It just means that it gets handed to a different prosecutor for the normal administration of justice. Interestingly enough, and each of those prosecutors recused themselves voluntarily, they did not have to be compelled upon them. But interestingly, one of them, though, the female prosecutor has now been criminally charged, basically for failure to execute her duties as a civil servant, because she recused herself rather than aggressively prosecuting these defendants. So that’s an instance in which she recused herself voluntarily and now finds herself she’s facing criminal charges now, which I think is an insane, insane set of circumstances because nothing she did kept the prosecution’s from happening again, it just got handed down to get him down the line to a different prosecutor. And obviously, these men are still getting prosecuted. They’re going on trial on Monday.

So let’s see, what else do we have? B. Williams here on YouTube says my buddy asked a cop for advice, he said, told him to plant a screwdriver as evidence against a potential attacker and to make sure he kills them. bad advice already talked about why it’s actually preferential very preferential to you to have the assailant live, not die. One reason is your criminal liability as I already mentioned, another reason is that, you know, prosecutors make their careers on murder cases, if it’s a murder case, you’re going to attract the most experienced capable well-resourced prosecutors to your case, you don’t want that. You want lower level people on prosecuting you if it has to happen at all. And if it’s merely an aggravated assault, aggravated battery case, you’re much less likely to get the top tier of the office trying to put you in a cage for the rest of your life. If you if you plant evidence, and it’s discovered that the evidence was planted as very often happens, because your DNA is all over it, or it matches the other rest of the set of screwdrivers in your toolbox or whatever the case might be. That’s called consciousness of guilt evidence folks, that’s you’re changing the scene you’re altering the scene tampering with the with the scene, apparently because even you believe that the way the scene was was consistent with guilt. That’s why you’re tampering. And this can lead to a jury instruction to the jury, a consciousness of guilt jury instruction that effectively says ladies and On the jury, not only does the prosecution think the defendant is guilty, apparently the defendant thinks the defendant is guilty. That’s why he tampered with the evidence. That’s not a jury instruction you ever want your jury to get?

Let’s see, we also have our Okay, I’ll touch back on that later. We also have, we should have our Facebook page, see if I can find that. Here it is. Let me see the comments here. And then we’ll be right at the top of the hour. Oh, George Zimmerman dropped into the comments on Facebook. Thanks, George. always appreciate the kind words, hope all is well with you. Let’s see. Yeah, Donny notes, mutual combat would let all the combatants be charged. That’s correct. All the combatants are initial aggressors, all can be charged. It’s not a case where it’s, everyone’s let go. Except that weird provision in Washington where it’s simply a non-deadly fight them sometimes they do use that as a rationale for not bringing charges. But of course, nobody was seriously injured, anybody was seriously injured, then it would be a deadly force fight. And that mutual combat doctrine would not apply as an excuse for leaving people.

Several comments about presumably referring to the shoplifting intervention case about just being a good witness. We all carry cameras now on our phones, right? A lot of a lot to be said for that approach, especially when we’re only talking property offenses and not threats, serious threats to innocent persons.

Alright, folks, I think that’s about it. We are right at the top of the hour. So I’ll wrap this up. I will say Normally, we do the show every Thursday, at 4pm, Eastern Time, 2pm local time where I am outside Denver, Colorado. But we have these trials starting up. So we have the Waterbury trial, starting October 18, I’ll be following that trial every day in real time. Probably certainly have some kind of video and written analysis at the end of each day that will be available in a variety of places. I think also on Facebook and on YouTube, certainly for our members at the law self-defense website, and with certain partners that we’re providing content to. But I’ll be doing that every day for the remainder of October. And then on November 1, the Kyle Rittenhouse case starts and again, I’ll be covering every minute of that case in real time. From the moment it starts till it’s done. And that’s probably until the third or fourth week of November. So during that period, we will not be doing the weekly news and q&a show on Thursday afternoons because I’ll already be covering those trials so I won’t be available. So this is the last News/Q&A Show probably for the next four to five, maybe six weeks, and then we’ll bring them back.

But that’s the bad news. The good news is they’ll be a plethora of our content and analysis and commentary on those trials for that period of time that four or five or six weeks, so hopefully you’ll get a lot out of that, and that will be open access publicly available coverage because of sponsors who’ve kindly stepped up to make it possible for us to provide that coverage without having to charge all of you consumers of that content individually.

Alright folks, I will then in that case, wrap things up. As always, I urge you if you carry a gun so you’re hard to kill that’s certainly 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 that you’re hard to convict until next time I remain Attorney Andrew Branca for Law of Self Defense. Stay safe.