In this weekly episode of the Law of Self Defense News/Q&A Show (our only weekly show that’s open-access to the non-members) we cover these use-of-cases related stories in the news, and answer question both sent in ahead of the show and asked live during the show:
- Security Guard “Assists” Police By Shooting Already Subdued Suspect
- Florida Man “Detains” Black Teenager, Is Charged with Felony
- Garret Foster Shot at Protest While Threatening with AK Rifle
- Buying Prosecutor’s Offices for Political Advantage
Questions & Answer
- Q: “Affirmative Defense”: Why Best to Avoid that Phrase
- Q: Prosecutorial Decision-making Politicized
- Q: Missouri AG Files Motion to Dismiss Charges Against McCloskeys
There’s a transcript below my signature, for those of you who prefer to read rather than view. Law of Self Defense Members also receive this, and all, our content in audio format using the members-only Law of Self Defense Podcast.
Enjoy the show!
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict!
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program
The Law of Self Defense content you’re about to enjoy is presented for general educational purposes only. It does not constitute legal advice. If you are in need of legal advice, consult competent legal counsel in the relevant jurisdiction.
Hey folks, welcome, welcome to the Law of Self Defense. This is our regular Thursday News/Q&A Show, the only Law of Self Defense Show that is accessible by non-members, so we are broadcasting live on Facebook as well as on the members page over at lawofselfdefense.com.
If you are a member, I urge you to participate at the members page because we do prioritize our members comments and questions. So, if you submit it in the members dashboard area of Law of Self Defense as you’re watching there, that’ll get prioritized coverage.
For those of you joining us on Facebook, welcome, welcome. I know every show there’s a bunch of new people there. So if you don’t know who I am, I am attorney Andrew Branca for Law of Self Defense LLC. Thank you very much. We have a fantastic Law of Self Defense community fan base.
What we do at Law of Self Defense LLC is as the name suggests, self-defense law, period. We are a law practice that does nothing but use of force law, meaning defense of yourself, defense of others, defensive property. And that is it. We don’t do DWIs. We don’t do shoplifting cases, we don’t do anything else, except use-the-force cases. And that’s been true of our law practice for more than 25 years.
But a great part of what we do is not just the practice of law, but education and information out to the general public, so that the armed American citizen is well positioned to win the legal fight as well as to win the physical fight. So that’s what we’ll talk about today.
This is our least structured show, it’s a little bit informal. Our News/Q&A Show. I’ll cover some news events that caught my eye over the course of the week, share with you my own perspective on those use of force news events as a self-defense attorney, try to translate all that legalese into plain English so you can have a better sense of what’s going on in these cases.
And then at the end of the show, we’ll take questions. We did not get all that many questions this week, which was a little surprising. So we’re always happy to take questions during the show as well. But if you have questions you’d like to submit ahead of time for our consideration, you can always email those to firstname.lastname@example.org, and we’ll add them to the list and take a look at them for each show.
If you are a Gold or Platinum Law of Self Defense member you have your own Q&A submission form on the website. Obviously, those questions get prioritized and if you’d like a private response to your self-defense law question, we provide that through that form as well. That’s your membership dashboard area.
CCW Safe: Our Sponsor
Now before we jump To the substance of today’s show, I do of course need to mention our sponsor, which is CCW Safe, a provider of legal service memberships, what many people mistakenly call self-defense insurance. They in effect promise to pay their members legal expenses of their member is involved in a use of force events.
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So, if you don’t have that kind of money stuffed in your mattress, it can be useful to have a financial partner standing behind you to make sure you have the resources you need to fight the legal battle. Have your life really. And that’s what CCW safe offers to do.
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Security Guard “Assists” Police By Shooting Already Subdued Suspect
Let’s begin to dive into the cases that came to my attention today and I do have a couple little videos for you. This is not our weekly After Action Analysis Show where we look at use of force videos in detail. I’ll talk more about those shows in a moment. This is just some video of a news report about a use of force event.
And in this event, a security guard in Texas sought to help the police make an arrest of somebody acting irrationally. He tried to stop this apparently emotionally disturbed person (EDP) himself the security guard did. The police showed up the police made an arrest of this EDP. And the security guard during the course of the arrest, the security guard shot the EDP and killed them.
And if you read the written news report on this event, it makes it sound as if the security guard shot the EDP. I’ll just call him an EDP from now on, shot the EDP because it would seem as if the officers were having some difficulty making the arrest, or perhaps the EDP became violent, that there could potentially have been some circumstance that would have perhaps justified this use of deadly force by the security guard, perhaps in defense of others, in defense of the police officers seeking to make the arrest.
When you watch the video of the news report of this event however, it seems almost by accident that they disclose the factual and legal truth behind this case. So I’ll share that video with you. It’s very short. And let’s see if I can pull this down.
[See video of this News/Q&A Show for referenced video.]
Okay, did you catch that?
“Even though the deputies say they had subdued the man with tasers so the EDP had been subdued. It was then that security guard pulled out his gun and shot and killed the man.”
Folks, are there any circumstances under which it’s appropriate to use deadly force upon someone who’s no longer a deadly force threat to anybody who’s been subdued by police officers using their tasers?
No, folks, that’s why the security guard’s charged with murder. He wasn’t helping out the cops. He wasn’t saving their lives. He wasn’t defending others in this scenario. I don’t know if he just lost his mind or had terribly poor judgment or what the case may be, but he apparently killed someone here who simply did not need to be killed.
Florida Man “Detains” Black Teenager, Is Charged with Felony
Okay, let’s go on to the next news report that came to my attention and that is this just popped up on the radar screen really in the last 24 hours. And I’ve been working on other stuff since I’m not sure how big this has blown up if it’s become as big as the Ahmaud Arbery case, which you’ll recall was a case out of Georgia in which several neighbors had chased down a young black man, they saw trespass onto a home under construction. They pursued him with a suspicion that he had engaged in felony burglary. They went to stop him to question them to ascertain whether or not a citizen’s arrest was appropriate. They arm themselves when they did that. One of them had a shotgun. They drove their car in pursuit of our brain ahead of our brain or mind our brain right up to their car, charged the man with the shotgun fought over the show. And was killed.
Now those men have been charged with felony murder predicated on unlawful imprisonment. I believe it wasn’t their neighbor who followed behind with a camera filming the events has also been charged with felony murder predicated on unlawful felony unlawful imprisonment. So they thought they were making a citizen’s arrest or at least exploring the possibility of a citizen’s arrest lawfully, now they’re all charged with felony murder. I don’t believe I’m not sure if any of them around on bail. I know the neighbor who’s videotaped the event is not out on bail. So, dangerous situation making a citizen’s arrest, ended up charged with felony murder. If convicted, you’re in prison for the rest of your life.
Well, here we have a Florida man who’s been charged with detaining a black teenager. Apparently, he saw the teenager riding a bicycle through his neighborhood. He called 911. The man did and reported variously that he suspected this teenager of either Attempting or committing car robberies in the neighborhood of having stolen the bicycle he was on. He also claimed at one point to be an off-duty officer turned out he was not an off-duty officer at all. He claimed to have this misconduct by the teenager on video. I don’t believe that proved to be true either.
But in any case, what he did do was he pursued this black teenager on the bicycle. Now the black teenager was reportedly going to an early basketball practice. This this event took place at 5:30am so it was dark. I have no idea if people go to basketball practice at 5:30am and strikes me is kind of a well a very early time to be going to basketball practice. That said, I’ve routinely gone to the gym at that time. So perhaps that was in fact what was going on. In any case, We have video of this stop because the man make attempting to detain the black teenager apparently was holding up his camera and making a video so I can share that video with you as well. Let me pull this down and we’ll start that video up. It’s quite short.
[Refer to video version of this News/Q&A Show for the referenced video.]
Okay, so I’m back. So thankfully nobody was injured, shot and killed in this case. Things didn’t get physically violent. But, of course, the question arises, it’s much the same parallel with the Arbery case.
This gentleman’s claiming to have made detention. Presumably he thinks he made it lawfully that qualifies as a citizen’s arrest, if it meets the conditions for citizen’s arrest under Florida law where this occurred, because if it doesn’t meet the conditions for citizens’ arrest, then it lacks that justification, and the same conduct qualifies as false imprisonment under Florida law. That’s statute §787.02. False imprisonment in Florida law.
By the way, for those of you who are law, I actually I guess for this show, we leave the text transcript of this show up at the Law of Self Defense website. We will hyperlink any reference to a statute or a court decision there so you can click through and read the actual thing yourself so we don’t have to read so much law here on the show. B
But this is false imprisonment under Florida law is statute §787.02. And it applies to forcibly, or by threat, abducting, imprisoning, or restraining another person, without lawful authority or against his or her will.
So unless you have lawful authority, like for example, you’re a police officer with reasonable suspicion or you’re a private citizen making a citizen’s arrest, having met the conditions required for a lawful citizen’s arrest, unless you have that kind of lawful authority, you make that detention, you’ve committed false imprisonment.
Now, clearly there was a detention here. The question is whether or not there was the lawful authority, the conditions for citizens rest had been met here under Florida law. If not, well, it’s a pretty clear commission of false imprisonment. false imprisonment is a third-degree felony under Florida law. And that’s good for up to five years in prison folks, so it’s not a walk in the park, if you get convicted on this kind of offense.
Now, was there any basis here for citizen’s arrest under Florida law? Florida doesn’t really have a blanket citizen’s arrest statute. There is a common law privilege to make citizens rest.
For those who don’t know, most states when they were first states didn’t have statutes. Most law was simply derived from Old English common law, which is law that results from court decision. So, you can also think of it as court-made law. And common law was how all law was.
Then states began to pass statutes. And we had these parallel bodies of law, common law and statutory law. And what the statutes don’t speak to, common law can still apply. So in Florida, you can still make a claim of old common law privilege to make a citizen’s arrest but it’s very narrow under Florida law. In effect you have to be making an arrest of someone who’s committed a felony in your presence.
It’s very unclear whether that happened here. The video evidence claimed by this man making the detention apparently didn’t exist. I’m not at all certain there’s any other evidence that any of this claimed misconduct happened.
These events actually took place about a month ago. But the prosecutor’s office just made a decision in This case in the last couple of days, which is why it’s in the news now. So, they’ve had about a month to develop evidence in this case. Of course, keep in mind, we’re only hearing one side of the story, right? We’re not hearing the side of the story of the man who sought to make the detention. But certainly the side of the story from the state does not look good, does not look like there’s anything here that would meet the conditions for common law citizen’s arrest under Florida law.
Florida law also has a couple of other rather situation-specific circumstances under which the detention can be made. So ,for example, they have a merchant’s detention law. Many states have these it’s a privilege for a business owner to detain someone they reasonably suspect of having shoplifted they can detain them until the police arrived.
There’s also a special privilege for making a citizen’s arrest. under circumstances where an armed person has committed a trespass that becomes a form of aggravated trespass under Florida law Most trespass under Florida law is a misdemeanor. But if it’s an armed trespass, it can be a felony under certain circumstances. Even if we imagine those conditions for a citizen’s arrest were met here let’s just imagine you see a trespass. It’s not obvious that the person is armed. That would make it only a misdemeanor.
So if you observe a misdemeanor having been committed, are you going to threaten a person with a gun in the course of making a citizen’s arrest over a misdemeanor? Does that seem like a prudent thing to do? I know I wouldn’t.
And if you believe that the trespass was by an armed person, which would make it a felony under Florida law, so that’s an armed person you suspect with the trespass now, which would theoretically justify you making that citizen’s arrest. But would you do it without having a gun on your person? Would you go to make a citizen’s arrest of an armed person without your own gun? Isn’t that just going to a gunfight And why? Over a bicycle over trespass by someone on a bicycle. I mean, what exactly Could he have stolen? That could be worth incurring those risks yourself.
And by the way, there’s Florida case law as recently as last year. This case is Roberts v. State, the Florida Court of Appeals 2019. And again, this will be hyperlinked in the text version of today’s show over at lawofselfdefense.com. That suggests that the use of a gun to affect the citizen’s arrest is just outright unreasonable. And therefore, if it’s unreasonable, it’s not it doesn’t meet the conditions of the arrest a trespasser statute, which requires that the arrest have been done in a reasonable way using reasonable force.
Well, now that the courts in Florida have said, threatening someone with a gun is not reasonable force under the terms of that statute. So even if you’re trying to use that arrest of an armed trespasser statute to justify your citizen’s arrest the Florida courts a well, you’re still not allowed to do with a gun. So there goes that justification. So I think this guy’s got a pretty good chance of looking at five years in prison. And let’s set aside for a moment.
By the way, just knowing that he made this decision he engaged in this conduct after the Arbery case, where we know how politically charged these cases get. And by the way, the man who made the detention appears to me from his mug photo to be white, or perhaps what has become popular known these days as white Hispanic, he certainly doesn’t appear black, but the teenager he stopped was black.
Folks, the politics the optics of this are absolutely horrible. And we’ll talk in a minute how it’s increasingly perilous to put yourself within these kinds of optics in the increasingly politicized environment of many prosecutor’s offices.
Garret Foster Shot at Protest While Threatening with AK Rifle (Part 1)
Okay, let’s take a look at another case that has made the headlines last week and that is the Garrett foster case. So many of you will know, this took place in the context of some protesting slash riding a tumultuous environment out on the public streets. Garrett Foster was open carrying an AK during this protest, which he was lawfully permitted to do in the under the laws of the of the jurisdiction.
Unfortunately for Garrett Foster, he approached an occupied vehicle. I believe this was in Texas, yes, Texas, he approached an occupied vehicle. And the driver of that vehicle says that he pointed the AK directly at him, causing him to fear imminent death or great bodily injury. So the driver who had his own gun shoots and kills Foster in claimed self-defense.
Now, what’s remarkable about this event is not really the event itself, but the fact that it once again, exposes the dangers of appeals to authority. In other words, we’re seeing, I’m seeing, many references to this event from people who are being interviewed by the media as legal experts, and they’re commenting on the legal aspects of the case, and they just have no idea what they are talking about .
The actual relevant legal analysis of this is very straightforward. Was the driver of the vehicle an innocent party, a non-aggressor, who had a reasonable perception of an imminent threat of death or great bodily injury from Garrett foster? If the answer to that question is yes, then his use of deadly defensive force was justified, period. If the answer to that is no, then his use of deadly defensive force is not justified, period.
It’s very straightforward. It’s not a complicated legal analysis. Now the facts may get complicated. Reality is complicated. The real world is complicated. But the legal analysis in terms of the black letter law is very straightforward.
But then we get stuff that really confuses the public in general understanding of how all of these use of force laws are supposed to work. When we get nonsense from people like someone interviewed for one of these news stories, Attorney Milo Colton, in Texas, also a criminal law professor at St. Mary’s University in San Antonio.
And he says it’s uncertain. I’m quoting now, it’s uncertain whether there will be justice in this case due to the state’s gun laws.
All right, well, first of all, we need to differentiate between gun law and use of force law. Unless your preferred gun law is that you’re not allowed to have guns, gun law is not relevant here because both parties were in lawful possession of their guns. So there was no gun law violation. So gun laws actually irrelevant here.
Use of force law, of course, is extremely relevant. The other weird thing about this is the way he phrases it. It’s uncertain whether there will be justice.
Well, what’s justice? is justice that the drivers found guilty of murder. Is that the only acceptable outcome consistent with justice or is justice that responsible adults apply the letter of the law to the facts of this case and come to a reasoned legal conclusion. I would suggest the ladders gesture. And by the way, real justice doesn’t reference the outcome. Real justice references, the process you use to get to an outcome. If your defense definition of justice is the outcome, that’s the antithesis of justice.
So, in any case, there’s nothing unusual about Texas gun law in this case, nor is gun law relevant in this case. So that’s nonsense. And by the way, who is this guy Milo Colton. So I looked him up, went to his University’s law schools website. He is a Phi Beta Kappa graduate of the University of Colorado at Boulder with a BA MPa, ma and PhD degrees. He also graduated from the University of Iowa with a JD degree. Pretty impressive stuff, right? That’s a lot of academic credentials. And then he doesn’t know anything about use of force law, whatever.
So I’ll quote some more of his quotes in the article. He says by 1995 the Castle Doctrine was well-established by the legislature which essentially said, if a homeowner felt threatened or somebody on the property felt threatened, they can use a gun to defend themselves.
Okay, first of all, that’s not what the Castle Doctrine says. That’s not what it means. And Castle Doctrine did not arise in Texas in 1995 Castle Doctrine is existed in common law before the United States was the United States and was incorporated by every single state. There is no state in the country that does not have some flavor of Castle Doctrine., if you understand what Castle Doctrine actually means.
It does not mean, if you’re a homeowner and you feel threatened, you can shoot somebody. That’s not what Castle Doctrine means.
Castle Doctrine means that if you would otherwise have had a legal duty to retreat, you’re relieved of that legal before you can defend yourself, you’re relieved of that legal duty to retreat if you’re defending yourself against an intruder in your castle, which is normally defined to mean at least your home.
For many years, Texas was a duty to retreat state, until they adopted a standard ground statute in 2007, I believe. So, if you were out in public and you were attacked, and you had a safe avenue retreat, you were required to take advantage of that safe avenue retreat before you could use deadly force in self-defense.
Unless you were in your home. If you were in your home dealing with an intruder, you were relieved of the otherwise existing duty to retreat. That’s what Castle Doctrine means. That’s all it means. Being relieved of that otherwise existing duty to retreat. It certainly does not mean that simply because you’re standing on your property ,someone threatens you, that you can shoot them. That’s not what it means.
Second of all, he goes on, continues. It’s his other quote was, “I think it was about 2007 that the Stand Your Ground law went into effect and you didn’t have to be in your property to use the self-defense logic to shoot another person.” Which is very strange phrasing. I don’t know what self-defense logic is, I guess he means self-defense principles, perhaps maybe he just misspoke.
So what stand your ground did, effectively in 2007 in Texas, is take that same privilege that the Castle Doctrine gave you in your castle, and expand it to every place you have a right to be. So now even if you’re out in public, if someone threatens you with a deadly force attack, you’re not required to first explore whether or not you have a safe avenue of retreat before you can defend yourself against that deadly force attack.
And by the way, stand your ground it’s not some weird alternative form of self-defense. It’s normal self-defense. It’s self-defense, simply with the addition of having been relieved of that otherwise existing legal duty to retreat. And folks when we talk about these elements of self-defense there, there are only up to five of them innocence eminence, proportions. analogy, avoidance, and reasonableness.
FREE: Five Elements of Self-Defense Law Infographic
And if you’re not familiar with these, let’s see if I can pull up this slide real quick. You ought to be, because if you’re not, you have no idea how self-defense law works. It’s not super complicated, and only has five components often not even that many. Sometimes one of the five elements is legally waived and no longer required. But the most you have to worry about is five elements of any claim of self-defense. This is true in every state in the country. And if you don’t know these five elements, you simply cannot understand how self-defense law works at all. Fortunately, for all of you, we have a free infographic absolutely free doesn’t cost a penny that briefly explains these five elements. So at least you have a starting foundation for understanding how Self Defense Law actually works. You can download this by clicking the image or link below:
It’s a PDF download, doesn’t cost a thing.
If you’re an instructor and after you look at this free PDF you’d like to get a poster version for your classroom, we also have those available. Don’t feel obliged, you get the PDF without any obligation. But I mentioned it in passing. If it turns out you’d like a poster version, we have a link for that at that same.
Garret Foster Shot at Protest While Threatening with AK Rifle (Part 2)
Okay, so let me come back to this case here. So, we have Castle Doctrine, we have stand you ground that expands the Castle Doctrine to any place you have a right to be. But neither of those give you special privileges to use force. It simply relieves you of an otherwise existing duty to retreat.
You still have to meet the normal conditions for self-defense and as I said, there were these five elements innocence eminence, proportionality avoidance and reasonableness. Castle Doctrine and stand your ground take away avoidance, so now there’s only four elements, but you still have to meet those existing four elements, innocence, eminence, proportionality and reasonableness.
So arguing self-defense in the stand your ground states exactly the same as arguing self-defense in a duty to retreat state, except for the absence of that element of avoidance, your conduct still has to meet the other four of the five elements of self-defense.
So how does Castle Doctrine even enter this picture? Well, it’s not in a duty to retreat sense because even if say stand your ground didn’t exist here, even if Castle Doctrine didn’t exist, even if there were a normally applying legal duty to retreat, that duty only ever exists if you can retreat safely. You’re never required to increase your jeopardy in an effort to escape. If you can’t escape safely, there is no legal duty to retreat even absent, stand your ground and absent Castle Doctrine.
Well, let’s look at the facts of this case. You have a driver sitting in the car. He’s in a place he legally has a right to be. He says he’s threatened by this gentleman with the AK who pointed at him. If those are the facts, where is the safe avenue of escape? is he supposed to jump out of his car and run away faster than an AK round? Is he supposed to drive his car in, especially in a crowded environment like a protest right environment faster than an AK round can reach his vehicle. There is no safe avenue of escape, folks, if you’re being threatened from feet away with someone bearing in AK rifle.
If there’s no safe avenue of retreat, there’s no legal duty to retreat period, and you don’t need Castle Doctrine and stand your ground to relieve you of an existing duty to retreat that does not exist, because safe retreat is not possible. So, neither Castle Doctrine nor standard ground can have anything to do with this case on the facts.
Now, what often happens is that people applying Castle Doctrine improperly, they apply it in a much broader way than simply being relieved from a duty to retreat.
There are in the law special provisions that allow you to use force in defense of your home. Well, let me be more accurate in defense of highly defensible property where that use of deadly force would not be lawful if you were just walking down a public street. And what the law is doing here is it’s creating legal presumptions that in the context of that highly defensible property, you had a reasonable fear of death or serious bodily injury. This is defined under Texas § 9.32. DEADLY FORCE IN DEFENSE OF PERSON. Again, we’ll link this in the text version of today’s show.
That’s the Texas statute entitled deadly force in defensive person. And it creates a legal presumption that if you’re in your highly defensible property, and under Texas law, highly defensible property is defined as your home your vehicle has to be occupied, you need to be in it so not just an empty car parked someplace, but your occupied habitation vehicle, place of business, or employment. So either you own the business or you work there. Any of those under Texas law qualify as highly defensible property.
What Texas statute §9.32 does is it creates a legal presumption that if you’re in your highly defensible property, you’re in your home, your vehicle, your place of business or employment, and you’re defending against an intruder who has or is attempting to unlawfully and forcibly enter it. You’re legally presumed to have a reasonable fear of eminent deadly force harm.
This doesn’t give you a license to kill. What it’s doing is it’s presuming that those elements of any claim of self-defense exist, they’re presumed to exist, that you were facing an imminent threat that the threat was deadly in nature, that your perception was a reasonable perception. So it’s giving you most of the elements you need to justify the use of deadly defensive force, but you do still have to meet the elements.
It’s not making them go away. It’s just saying we presume those conditions to be met. Well, that sounds great. And the defender here was in his car, so Wouldn’t that statute apply here? will only if there was evidence that Garrett, the person with the AK, had unlawfully or was attempting to unlawfully enter the driver’s vehicle. And to my knowledge, there’s zero evidence of that.
So even this statute §9.32, with the special provision, the legal presumption for the defense of highly defensible property, which would include your occupied vehicle doesn’t apply, because the conditions to trigger that provision don’t apply. There was no attempt to make a forcible and unlawful entry into the driver’s vehicle.
What does apply just the normal five elements of self-defense? Again, you can get those in the infographic we offer if I can pull it back up. Innocence, eminence, proportionality avoidance and reasonableness except Texas is a standard ground state. In fact, it’s what I call a hard stand your ground state. So avoidance is off the table. For this case in this jurisdiction, we’d have just innocent eminence, proportionality and reasonableness.
So this is just a straight up self-defense case has nothing to do with Castle Doctrine, nothing to do with stand your ground, nothing to do with special provisions for the defense of highly defensible property, straight up self-defense.
Which this law professor apparently doesn’t understand, which is why he complicates his explanation of how the law would apply with all these irrelevant legal doctrines. Just because someone’s a lawyer, folks, even if they’re a criminal defense, sorry, criminal law professor in a law school doesn’t necessarily mean they actually know a darn thing about Self Defense Law. Do yourself a favor, educate yourself so you have a working actionable understanding of Self Defense Law.
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So what is what do you get as a Law of Self Defense member? Well, of course, in addition to this show, which we do make public, we have two other shows we do every week.
One of them is our weekly Cases of the Week Show where we look at the most important court decisions on self-defense from around the country in the last week, pick the two or three most important of those and translate them into plain English. So you can see how the actual self-defense law is applied by the courts to actual people in actual use of force cases, folks, because that’s all that matters, how the laws actually applied.
What people say in the internet doesn’t matter in court, what your neighbor the cop down the street says to you doesn’t matter in court. The only thing that matters is how the law’s actually applied. And by the way, folks, this is how lawyers learn the law. By reading cases in which the laws apply to actual people. That’s how we know how to expect the law will be applied to our clients in similar circumstances.
So that we cover this every week. It’s all done in plain English we translate all the legalese into plain English, a great way for you to learn how Self Defense Law actually works, but available exclusively for Law of Self Defense members. They get this show in video form blog text form, as well as in our podcast, our law self-defense podcast, which is itself only available to our members. It’s a member secured podcast.
Then on Wednesdays we typically do our After Action Analysis Show. This is where we take a use of force event that’s caught on video and we apply our five elements of Self Defense Law analysis to apply that framework to it. Again, all in plain English so you can understand how those five elements apply to real use of force acts of violence events that we can analyze in video frame by frame. And we do that every Wednesday, again only for our Law of Self Defense members who get it in that video form in written form as a blog post and in the podcast.
And our members also get free bonus content not available for free to the public. So we just completed our newest course. It’s a video course called “Lawful Defense Against Rioters, Looters & Arsonists.” T
his is the launch week we just put it out last week so we have it on sale for $54.95. To take advantage of that offer, almost 50% off, you can click the image or link below:
But if you’re a Law of Self Defense member, folks, you get that course for free. It’s in your members area. So that course alone, even at the sale price is worth more than five and a half months of membership at the normal price, which I should have mentioned, the normal price for membership is just under 10 bucks a month. So only about 33 cents a day.
It would be nice to think that everybody thought Self Defense Law was important enough in their lives to be willing to spend 33 cents a day so they know where the legal boundaries are and can reduce their chances of having to spend the rest of their life in prison if they’re compelled to act in defense of themselves or their family or their property. I certainly would hope that you’d feel that way. But that is, of course, your call to make.
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Okay, let’s continue now with our News/Q&A Show.
Buying Prosecutor’s Offices for Political Advantage
We try to stay away from politics in the show, obviously, ours may become apparent I have my own political views naturally, the probably not very hard to guess. But we try to make our shows our content really useful for specific and not political in nature. But we are talking about laws and sometimes how laws are created and passed and applied, can be done in a politically motivated process.
And I urge people to keep in mind that when we think about prosecutors, which of course we normally don’t think about prosecutors, prosecutors are is a job that unless you’re an active participant in the criminal justice system is just not on your radar. They’re working in the background, like so much of civilization does work in the background.
So most people don’t recognize how much power prosecutors have how much enormous discretion and how they’re effectively immune from liability for those discretionary decisions. They decide who’s going to be charged with a crime. They decide the severity of the crime. And by the way, when they make that decision folks, that’s life-destroying, if they decide to charge you with some felony, criminal charge, you’re looking at 10s of thousands, maybe hundreds of thousands of dollars in legal expenses.
And there’s not a darn thing you can do about that they’ve thrown you into the arena, you’re in the cage, you’re going to have to fight and it’s going to cost a lot of money, maybe all your money, and they get to make that decision, at their discretion, with no second judgment.
And you can’t sue them afterwards. They are effectively immune from liability. Now, I know you’ve all heard about one or two cases where a prosecutor has been sued. Folks, that happens so rarely in the thousands and thousands of decisions they make every week. That is not even worth considering. For all practical purposes, they’re immune for any conduct having to do with their office, a truly powerful position.
Now, many people argue prosecutors need that discretion. They need the discretion in the interest of justice with limited resources that any prosecutor’s office has. They can’t possibly bring every possible case to trial. They have at least 20 more cases 20 times the cases on their desk that can possibly be brought to trial, who’s going to decide which ones? Well, you’ll hope those decisions will be based on legal merit.
But unfortunately, increasingly, we see cases where they’re not because this tremendous power that arguably good prosecutors need to do their jobs effectively, can also be used for evil. And when tremendous power is used for evil, the destruction that can be wrought, not just the destruction to people who might be charged, but the societal destruction that can result if bad actors are not charged, can be absolutely tremendous.
And this, in contrast with how powerful these positions are, traditionally, the stakes to get into the game that become a prosecutor have been really modest, at least in monetary terms. So, most prosecutors races involve a few thousand dollars in a big city. Traditionally, it’s been missing Maybe a few 10s of thousands of dollars.
So, when somebody who’s worth over a billion dollars and who’s interested in acquiring political power on the cheap, sees that situation, well, he sees that buying up prosecutors off offices might be a pretty cost-effective way. And the guy I’m talking about, you may know, is a gentleman called George Soros.
He has been investing in prosecutors races for the last four years. And remember, when I told you here’s a little map of the US, and here we have counties cities, where he’s invested money into prosecutors races, remember I told you a typical prosecutors race, a few thousand dollars is spent on campaigning for that position. in a big city, maybe a few 10s of thousands of dollars is spent. Look at these dollar amounts that Soros has given to one candidate in prosecutors races in these various locations. Look at these sums. $680,000 in Washington County, $1.2 million in Clark County, South Las Vegas. $1.5 million in San Diego. $1.4 million in Phoenix $107,000. In this New Mexico
That seems like a paltry sum compared to the others. But the other candidate for this office when he saw his opponent, get $107,000 in campaign funds from Soros, he just dropped out of the race. He said, Hey, I was willing to put you know, two, three grand into this but I can’t compete with $107,000. So Soros got that prosecutor seat, really cheap
Harris County, over a million. Orlando, $1.4 million. These counties around the Virginia area, over a million. Philadelphia 1.7 million.
I mean, it’s unbelievable how much money is invested. It’s a tidal wave of money that all but guarantees that his candidate will win these races.
And you might say, Well, people are allowed to contribute money. And it’s true. As far as I can tell, he’s not doing anything unlawful. It is weird how these funds tend to be funneled from political action committees of maybe several political action committees are contributing to one candidate, and they all have the same address. So are they really different political action committees, or it’s just being distributed among them to kind of hide where the money is coming from?
But what are the consequences of allowing politically-motivated prosecutors to get elected in these positions?
Well, here’s one example of a high-profile candidate that source backed Kim Foxx in Chicago. Soros spent almost half a million dollars on her super PAC when she ran in 2016. And she won easily against her opponent in a race that normally involved campaign funding at a fraction of that amount.
Well, if you don’t know who Kim Foxx is, you should because she’s the contract. Chicago area prosecutor involved in the Jesse Smollett case. Jesse Smollett was the small-time actor who apparently tried to start a race war in America by falsely claiming that two Trump supporters beat him up in the street, turned out to be a complete fraud.
Foxx dropped all the charges against him. Nothing. Soros turns out to have liked that decision, because he’s already contributed $2 million this time around to her reelection in 2020.
Is that kind of prosecutorial decision making you want in your city?
Here’s another high-profile one in 2016. Again, Soros backed candidate Kim Gardner to be the head prosecutor in the St. Louis Missouri area, gave her $200,000 again in a in a kind of race that usually involves only a few thousand dollars. She had vastly more money than her opponent. Kim Gardner one well, if you don’t know Kim Gardner you should because she’s the prosecutor who’s now brought felony charges against the McCloskey.
They’re the St. Louis couple standing armed on their front yard facing a trespass passing mob that they say was threatening them with death. So when you see people like McCloskey prosecuted for multi-year felonies in what can be reasonably perceived as self-defense, when you see them being prosecuted for felonies at the same time that you see violent protesters and arsonists who’ve been recorded on camera, destroying property, setting fire to buildings, setting fire to vehicles, or not being arrested at all, even as they target law enforcement using lasers powerful enough to permanently blind the officers using mortar like explosives, causing serious injury, being freed with charges dismissed by the prosecutor’s office, what you’re seeing there, folks are the consequences of these politicized prosecutor’s offices.
Folks, we all know we need to be ready for the physical fight and self-defense. I would urge you to keep in mind you all need to be ready for the legal fight in self-defense and a great first step to doing that is to learn the law of self-defense.
Law of Self Defense LEVEL 1 Live Online Class: Sat., Oct. 3, 2020
A fantastic opportunity to get a really in-depth education in the Law of Self Defense, all in a single day is to participate in one of our Law of Self Defense LEVEL 1 Classes. We just had one of these classes this past Saturday, July 25. Just this past Saturday, we had one of our law self-defense level one classes live online. This is our live class full day class taught in a webinar format. So you don’t have to travel anywhere. I don’t have to travel anywhere. I know some of you in the comments attended the class on Saturday. So if you’d like to say nice things about it, feel free to do so.
This is the most in depth education available anywhere on self-defense law. And I include law school in that folks, law schools do not teach this stuff at anywhere like this step. In my three years of law school, I got a few minutes of Self Defense Law. That was it. But it’s all taught in plain-English, so you need to be concerned about that the class is perfectly appropriate for everybody.
We have one more of these classes in 2020, folks, and even that one’s not until October 3, because you just missed the last one. And after that, it’ll be months more before you have the opportunity to take another one, we’re probably only do two of these in 2021. And when the seats for these, again, folks that are full, that’s the end of the opportunity.
So if you’re at all interested in getting an expert knowledge of Self Defense Law in a single day, then I would urge you to click the image or link below:
We answer more than 100 very specific Self Defense Law questions in the course of that day. There’s nowhere else you can get that done in a six hours and fraction course of instruction, folks.
And in terms of so obviously, if you want a chance of having your act of self-defense be anywhere near the legal boundaries, you need to know where those legal boundaries are. And being a member of law, self-defense and taking our level one course is a great way to learn where those legal boundaries are.
But what if your subject to a politically motivated prosecution? What if you do everything right? And you’re still having to go to trial, well, then you have to win that legal fight, too, folks. And the best way to win that legal fight is to bring all the best resources you can add to that fight.
Law of Self Defense Platinum Protection Program
Which brings me to another opportunity for you to think about, and that is our Law of Self Defense Platinum Protection Program.
This is a program you can join as a higher level of membership or a Platinum-level of membership. And it is the only way that you can be guaranteed to have my personal legal consultation on your legal team, if you’re charged with a use of force event.
Most of the time, folks, when we have cases come to the office because of my other prior commitments, I have to say no, and I can’t work on those cases. Unless you’re a Platinum Protection Program member, in which case we drop everything immediately to consult on your case. And that “immediately” is important, folks, because it makes a big difference whether or not you can raise that legal defense in a compelling way before the prosecution’s invested too much of their own resources into taking you to trial. You want to get off that track as quickly as you possibly can.
And another benefit is you get those legal services at no additional costs beyond that membership. Normally, my legal consultation costs thousands and thousands of dollars, folks, it’s quite costly. Free to you if you’re a member of the Platinum protection program.
So, if you’re interested in that I urge you to click the image or link below:
Alright folks, let’s take a look at the questions and answers.
We had one question come in by email, which was rather disappointing, we usually get a lot more than that usually have to turn questions away. So in the future, for those of you who didn’t see me mentioned this earlier, if you’d like to send in questions to us to consider for the show, you can email those to us at email@example.com.
Q: “Affirmative Defense”: Why Best to Avoid that Phrase
So the question that was emailed came in from Oscar and he asks, Are the concepts of affirmative defense universal or do they vary by state? And it’s a great question for a couple of reasons.
One is, I urge all of you to forget the phrase affirmative defense even exists. There was a time in American history where it meant the same things in all 50 states. And in that context, it was useful to know what it meant.
Basically, what it meant is that the defendant was raising a legal defense that was an affirmative defense, the defendant not only had the burden of production, the burden to raise the minimal amount of evidence needed to argue that defense question in the first place, they also had the burden of persuasion, the burden of proving that defense to the jury. The state didn’t have to disprove it, the defendant had to prove it. That was the definition of an affirmative defense. The defense has the burden to raise it and the burden to persuade the jury of the truth of it.
And traditionally, self-defense met those characteristics. So, self-defense was an affirmative defense, the defense had the burden of raising it, the defense had the burden of persuasion on it.
So, here’s what’s happened over the last several decades, 100 years, 80 years, every state has changed the nature of the legal defense of self-defense. In every state, all 50 states, the defense still as the burden of raising the defense, making sure there’s some minimal degree of evidence in support of that defense before they’re allowed to argue in court in front of the jury. But the burden of persuasion and self-defense the burden of persuading the jury of the truth or untruth proof of the claim of self-defense is now on the prosecution to disprove self-defense beyond a reasonable doubt.
Well, when that’s what self-defense is, and that is what self-defense is, in all 50 states, then it doesn’t meet the classic definition of an affirmative defense. An affirmative defense is one in which the defense has to prove it, =self-defense is now, in the modern era, a defense that the state has to disprove.
So here’s the problem. In some states, they said, well, we’re going to keep the traditional definition of affirmative defense, but we’re going to say self-defense is no longer an affirmative defense. Okay, that’s a reasonable approach to take.
Other states say, well, we’re going to keep calling self-defense and affirmative defense, but we’re going to redefine what affirmative defense means, so that it fits the new definition of self-defense. And that’s also a reasonable approach to take.
Now, they’re very different approaches, right? But within each state, as long as the people in that state are using their own definition, they’re doing fine. It’s not a crime. Problem everybody understands what they’re talking about.
But the moment you try to talk about an affirmative defense on the internet, or you’re talking to people from a bunch of different states, then it causes tremendous confusion because everyone thinks that the phrase affirmative defense is being used in the manner that they understand it in their state. And it might be, but it might not be the person saying the words affirmative defense may be saying them to mean what those words mean in their state. And that could be quite different than in your state. So we have people using the same words, but maybe meaning very different things and it only causes confusion.
Now, if you’re say, an instructor and you’re teaching in one state, you’re teaching in the state of Florida and all your students are Floridians and you only care about that jurisdiction, well, then feel free to use affirmative defense, meaning whatever it means under Florida law, that’s perfectly fine.
But if you’re talking in a trans-state manner, like on an internet forum, where there’s people from other states, also participating in the discussion, the use of the phrase affirmative defense just causes trouble because it means different things in different places.
So avoid that, just speak simply of self-defense, what it is. And what it is, is in terms of burden of production and burden of persuasion is the same everywhere. In general terms, the defense has the burden of producing the evidence to make sure you can argue it in case in court at all. Because if there’s no evidence, there’s nothing to argue. Right. So, there has to be some minimal amount of evidence to argue self-defense in court at all. Once you’ve done that, once the defense has done that the burden shifts to the state and the state now has the burden of persuasion of disproving self-defense beyond a reasonable doubt.
Okay, those are all the questions I had emailed in. So let me take a look here at the comments and questions that have come in over our Law of Self Defense membership dashboard. You folks get priority, of course.
Q: Prosecutorial Decision-making Politicized
Yeah, Dan says thanks for bringing up Soros, a major threat to freedom. It’s, you know, again, the show is not intended to be political. I don’t try to tell people what to do politically.
But I see prosecutorial decisions being made in ways that are obviously well beyond the bounds of any legal merit or legal analysis, that appear to me to be made purely for political purposes, consistently in one direction by this squad of prosecutors that have been outrageously over financed by Soros. I mean, if their opponent had $10,000, it’s not like Soros has given them an extra two thousand to be more competitive. It is giving them 100,000 or 200,000, or a half a million or 1.4 million. I mean, that’s just buying the office outright. So not a very prudent thing to allow to happen, I think in a society in which we’re supposed to be a society of laws, not of whoever has the most money.
Yeah, Bloomberg spends his money in different ways. It’s, to my mind, it’s buying up these prosecutor’s offices is about the worst thing in my mind that can be done because it fundamentally undermines the public’s confidence that they’re going to be treated fairly in court. Ad fairly doesn’t mean they’ll be acquitted fairly means that they’ll be treated as would any other person, similarly situated to them. You know, there’s a reason that the statue of the lady of justice wears a blindfold, right? We’re not supposed to have these politically motivated biases in our prosecutorial decision making. And unfortunately, that’s what I see happening.
Alright, let me go over to Facebook and take a look at what we have there. Okay.
By the way, folks, if you are watching this live on Facebook, please if you could hit that share button, the arrow at the top that greatly appreciate it if you get hit that Like thumbs up, also greatly appreciated that helps fool Facebook into spreading word of our show more broadly.
Also, folks, that’s one of the reasons I should explain why our three shows and we often do four shows. In fact, this week, we’ll have a fourth show, we’ll have a bonus show for all of you tomorrow. Another one of those interviews with me and attorney Don West that we’ve been sharing. So keep your eyes open for that.
But one of the reasons we’ve we’re slowly removing content from Facebook is because we don’t want to be dependent on Facebook for getting our content out to people. So we’re limiting our exposure every day, I come to Facebook for work purposes. And every day, I’m surprised I still have an account that they let me use. So we’re always waiting for the hammer to drop for us to be told that we don’t meet their terms of service or whatever excuse they would have. And so we want as much of our community, the Law of Self Defense community to be on a platform that they can’t interfere with, and the only one of those we could possibly have is our own website.
Q: Are People Other Than Soros Buying Prosecutor’s Offices
Brian asks, Are other parties doing the same thing? We only looking at one instance this is the only.
If you’re talking about the Soros thing, the only the only group I see–and really so it looks like there’s lots of different groups, so-called justice reform groups, donating to these prosecutors, there’s not really, there’s a lot of separate ones that are all being funded by Soros. So, it really all comes back to him. These are just a ways of diverting the money to its ultimate source.
If there are other people who are devoting 10 times ,20 times, the campaign funding to a prosecutor’s race that the other side has, bring it to my attention. I’ll be happy to talk about it.
Q: MO AG Files Motion to Dismiss Charges Against McCloskeys
Terry Carter says the AG of Missouri filed a brief to dismiss charges against McCloskey Yeah, but he has he has no authority to have the charges dismissed. So he’s just you know, he’s a politician too. So he’s filing this brief to kind of throw his hat in the ring in a political sense. And maybe his brief will be persuasive to the judge.
But this is going to be the judge’s call whether or not the prosecutor’s charging instrument meets the legal requirements to drag them into trial on felony charges. And a problem is that it probably does. Not because the charging instrument is great, but because the threshold the charging instrument has to meet is so low, that the charging instrument probably meets those requirements, and the judge will probably let it go.
And the AG cannot compel the judge to make a different decision.
So, prosecutors can bring you to just about anyone at trial on any charge, folks, [any charge] that’s not a complete fabrication. But the moment there’s any factual basis for that charge, the attitude of the legal system is well, All right, there’s something there, let it go to trial and we’ll have the jury settle it, see if the prosecutor can prove their case beyond a reasonable doubt to the satisfaction of the jury.
Which sounds fine from like a theoretical legal analysis perspective, but unfortunately, the costs that are incurred by the defendant when that gate is passed through, when we when we actually get that authority to drag that defendant into trial is utterly financially destructive.
Now the McCloskey, he’s, even if you’re acquitted, by the way, you still incur all the legal expense, all the stress that you might spend much of the rest of your life in prison. So I don’t think people should be put to that legal test unless there’s genuine merit to doing so. And it’s very unclear to me that there is in the case of McCloskey,
I mean, was it absolutely self-defense? Self-defense cases are almost never absolutely self-defense. There’s always an argument on the other side. But when they’re marginal, when it’s could go either way, when there’s a reasonable argument, at least, for self-defense, and when you know, when you get to trial, you’re going to have to disprove self-defense beyond a reasonable doubt. I think it’s crazy to bring people, to force them to incur those things. destructive costs and stress by dragging him into trial in the case you’re so unlikely to win.
Unless, of course, your goal is not actually a conviction at all, if you don’t care about the conviction is all you care about is being perceived as having gone through the effort to convict them. Because you’ll get political capital from engaging in eye contact, well, then you effectively win the case, even if you lose the case, because the purpose of bringing in the case isn’t legal, its political, and you get the political value that you were seeking.
Thanks for all the people saying kind things about this most recent Law of Self Defense Level One Live Online Course. The next one again, folks is Saturday, October 3 last one of the year and it’s filling up fast already.
Waylon Chang says what Mr. Branca calls burden of persuasion is what most lawyers call admissibility.
I’m not sure about that, Wayland, you should send me an email about that. I’m not exactly sure what you mean by that comment.
What’s the going rate for a Soros judge? Yeah, it’s a good question. I mean, in, in many places, judges are appointed. But then you have to by the people who make the appointments, which is probably a little more costly. But in many places, judges are elected. And those races tend to be small scale races with not a lot of money, maybe a few thousand few 10s of thousands of dollars. So, if you can walk in there with a million dollars for a judge’s seat in some jurisdiction and your opponent running against you, even if he’s the, the incumbent, has three, four or $5,000, you know, just gonna take the seat.
Alright, folks, I think I’ve gone through all the questions and we’re right up on probably a little bit over an hour. We try to keep the show to an hour.
So thank you all again, remember, our live online class.
Remember, you can have that trial membership for just 99 cents by clicking on the image or link below:
Folks, I think you’re crazy if you don’t try it.
With that, I’ll let you all go except to remind all of you remember, that if you carry a gun so that you’re hard to kill, make sure you also know the law so that you’re hard to convict.
Alright folks, I’m Attorney Andrew Branca for law self-defense.
Until next time, stay safe
Attorney Andrew F. Branca
Law of Self Defense LLC