In today’s News/Q&A Show we discussed the Grand Jury indictment of Travis and Greg McMichael and Bryan William in the death of Ahmaud Arbery in Georgia. We also discussed the Grand Jury as a legal entity in terms of substance and procedure, how it works, why it works, and how easy is it for a prosecutor to obtain an indictment, and why?
In terms of prepared questions, we addressed:
1. The Federal lawsuit against USCCA by a Platinum-level member for whom the organization has declined to pay her legal expenses.
2. We discussed the element of imminence, in both it’s most common form–meaning an attack about to occur right now–as well as it’s less common form–meaning a threat that’s not immediately about to occur but is otherwise unavoidable absent a defensive of force–and the legal consequences of each form of imminence.
3. We also fielded a question asking whether it can be lawful to shoot a police officer observed choking a suspect.
Finally, we also took questions from the live audience during the show.
Below my signature you’ll find a transcript of today’s show, for those of you who prefer to read rather than watch video or listen to the podcast.
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
Thank you all for joining me here today. This is of course, the News & Q&A Ahow for the Law of Self Defense for June 25 2020. I’ll share some self-defense law stuff that’s in the news. I’ll address some questions that were sent into us beforehand before the show. And if we have time, I’ll accept questions from the live audience as well.
So to give everyone an overview of what we plan to cover today, to so you can know if you’re interested in staying with us for the whole show, the news I plan to cover are the Grand Jury indictments in the Ahmaud Arbery case. And as part of that, we’ll go over how Grand Juries work, how they work substantively and how they work procedurally, and how hard it is, or not hard for a prosecutor to get in indictment on a particular case.
And for the questions, I have three lined up, and then we’ll take questions from the audience as well, we will take requests on questions. Yes. But the questions I have lined up are threefold.
One is: Is there any update on the federal lawsuit against USCCA, for not paying legal expenses of one of their Platinum members?
Second, can I talk a bit about the distinction between the element of imminence as something that’s immediate about to happen versus imminence as an imminent threat is something that’s otherwise unavoidable unless force is used defensive force.
Third, and then interesting question from one gentleman asking Can I shoot a police officer who is choking a suspect?
Before we dive into that, however, I should of course, thank our sponsor CCW Safe, a provider of legal service memberships, but many people mistakenly call self defense insurance in effect promises to pay their members legal expenses if the member is involved in the use of force event and those expenses. get big fast, folks.
In this USCCA case we’ll talk about USCCA had paid this member’s legal fees up to $50,000. And by the time she was suing them, because they had stopped paying the legal expenses were up to $150,000. Pre-trial folks, they still hadn’t gotten to trial. So that’s how quickly these expenses can run up.
So it’s good to have a partner behind you that has the kind of financial resources you need to fight that legal battle. effectively. I’ve looked at all these organizations that offer these kinds of services and for me personally CCW Safe is the best fit. I’m a member of CCW Safe. My wife Emily is a member of cc w safe
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 clicking the image or link below, and if you do decide to become a member, you can get 10% off your membership at that link using the discount code LOSD10.
For those who may not know, if you’re new to our shows, this is our regular Law of Self Defense Thursday.
News and Q&A show, we do this every Thursday live on Facebook at 2pm. Eastern time.
I am Attorney Andrew Branca for Law of Self Defense.
You can also find us on Facebook on Tuesdays doing our Cases of the Week Show again live 2pm Eastern Time, where we look at the most important appellate court decisions on self-defense from the prior week.
And on Wednesdays we do our After Action Analysis Show again live on Facebook 2pm Eastern Time, where we take a use of force event caught on video and we do a plain English legal analysis of the use of force event.
All of those shows of course, we’re also available as replays to our members.
And in fact, we’ve just begun actually streaming this content live simultaneously to our members dashboard. So if you’re a Law of Self Defense Member, you’ll see a lot of expansion going on in your member dashboard over at the lawofselfdefense.com site. So I encourage you to take a look at that. I’ll talk about some of the features that have come up that we’ve added recently.
Let’s see. Okay, so I mentioned the news we talked about where the indictments of Ahmaud Arbery. And not Ahmaud Arbery, but of the gentleman involved in Ahmaud Arbery’s death. So let me pull up that slide.
So, all of this information I have for you today is based on an article in The Atlantic Journal Constitution, AJC is how they abbreviate themselves. From yesterday, the headline of the article if you’d like to google it is “all three suspects indicted and Ahmaud Arbery shooting death.”
Those suspects, of course, are Travis McMichael, the son, and Greg McMichael, the father, and William Brian, the gentleman who was filming the video that we’ve all seen and that I’ll play for you again here today.
So we’ll talk about their indictments what they were indicted for, as well as how grand juries work generally, before I get into the procedure of grand juries, I do want to talk about some quotes in this article, because I thought it was written in an interesting way. A very, of course, as we might expect, these days a very biased way.
So the article starts off “a Glynn county Grand Jury on Wednesday returned to murder indictment against the three men in custody for the killing of Mr. Arbery as he jogged through a neighborhood near coastal Brunswick. Arbery was shot and killed as he ran through the Satilla Shores neighborhood about two and a half miles from his home.”
Well, I would ask all of you folks, is that what happened?
Was Mr. Arbery shot because he was running through a neighborhood? Or would it be more accurate to say he was shot because he attacked a man armed with the shotgun, fought the man for the shotgun, and got shot in the process of doing that?
The article would have you believe that Mr. Arbery was just jogging down the street, and these gentlemen rolled up behind him and shot him in the back with the shotgun while he was jogging.
That of course, is not what happened. We know that’s not what happened. Because in fact, we have the actual video of what happened. See if I can pull that up. Here we go. So here’s the video.
It’s slowed down to about 25% speed so we can get a better idea of what’s going on. This would be Roddie, the third gentlemen not related to the McMichaels, who’s in the car behind recording Arbery running there, on his cell phone.
And we’ll see Arbery running towards the pickup truck, the pick-up truck’s not moving folks. Arbery is running to the McMichaels, the McMichaels are not running or driving to Arbery, they’re stopped in the street. We see Arbery running around to the passenger side of the truck although he first been running towards the driver side, and then we will see him on our break. Cut across the left front of the pickup truck. We’ll see that the younger McMichael goes, the gun shop the bang, the struggle for the gun shot and it’s during the struggle for the for the shotgun, that Arbery ends up shot and killed.
It looks to me like something else was going on other than Mr. Berry being shot because he was running through the neighborhood. That’s just that’s not a very accurate portrayal of what’s going on. \
And then the prosecutor in this case now, this case has gone through several prosecutors, it appears to me from my professional perspective, like this was a hot political case, none of them hot political potato. None of those prosecutors wanted anything to do with they all got rid of the case pretty much as soon as they could. So an outsider has been brought in and outside prosecutor.
And this is what she’s quoted as saying, in the AJC article, quote: we will continue to be intentional in the pursuit of justice for this family (the Arbery family, I suppose) and the community at large as the prosecution of this case continues.
That’s district attorney, Joyette Holmes. Now, I don’t know, I don’t understand what that means. I don’t know what it means to be intentional in the pursuit of justice. Is it possible to pursue justice unintentionally?
Frankly, so far, I find this prosecutor to be rather astonishingly unimpressive. Maybe it was just a bad day we’ll see. In any case, I hope the jurors present themselves more intelligently than this quote from this prosecutor does here.
The AJC article continues: Arbery a 25 year old black man who was unarmed, was killed February 23. Michaels and Brian, Ronnie Brian are white.
I did find it odd that they capitalize black for black man and lowercase white for white man. Not that I care. But I expect had the reverse had happened it would look kind of weird to our eye, wouldn’t it have, if black was lowercase and white was uppercase. Not sure if that’s just typical journalism and competence there. Most journalists I know do not have a very good command of English grammar or spelling. So it might just have been a mistake, of course by the editor as well. But in any case, again, we have this very biased perspective.
A 25 year old black man who was unarmed, was killed.
Well, he wasn’t unarmed. He was armed with a shotgun. He was attempting to arm himself with a shotgun. He had at least as great possession of that shotgun as the Travis McMichael. So if he wasn’t quite armed, he was arming himself with Travis McMichael shotgun, and at the same time, he was disarming Travis McMichael. I think that would be a more accurate way to portray what was happening in that video.
Then we have some quotes from the Georgia Bureau of Investigation. The investigator, his name is Dial. He testified at the probable cause hearing a few a couple weeks ago, I guess maybe last week or two weeks ago. So we have some quotes from him as well.
GBI investigator Dial said that when Bryan (that would be Roddie), the man who was filming with a cell phone, when he was interviewed by investigators, he recounted what he heard Travis McMichael say is our boy lay dying and they waited for police to arrive, quote, effing N word. Obviously I’m not going to say the word.
But Michael said, according to Brian referring to a profanity followed by a racial slur.
Well, is that what happened? Do we find that credible? Do we believe that? Brian is telling the truth when he says that Travis McMichael said that? Because from my perspective, it doesn’t seem very credible.
This is the first time we’re hearing that this was said. It doesn’t seem quite credible to me. It’s. So the shooting was February 23. This probable cause hearing was, I believe, June 4 or so. 14 weeks, it took 14 weeks for the public to learn that Travis McMichael stood over our body’s dying body and use the N word.
Keep in mind, of course, that this sudden claim made for the first time with the probable cause hearing is being made by a guy rowdy who suddenly found himself charged with felony murder predicated on attempted unlawful imprisonment, a criminal charge of federal felony murder charge. I don’t think it’s ever been brought before in George’s history, predicating felony murder on attempted unlawful imprisonment.
But in any case, it is a murder charge and he’ll go to jail for the rest of his life if he’s convicted, and you think a person in that circumstance, suddenly looking at life in prison for having filmed an event, you think he might suddenly recall something that would be helpful to the prosecutor and going after the McMichaels and therefore helpful in getting a deal from the prosecutor. So maybe he’s not looking at life in prison anymore.
Frankly, the whole, that whole part of the narrative stinks.
So let me talk a little bit now about how Grand Juries work. And I’ll try to be as specific to Georgia as I can, but the process is quite similar in other places.
So a Grand Jury, of course, is different than a trial jury.
A trial jury is typically six or 12, in serious cases, felony cases, that varies by jurisdiction, the verdict has to be unanimous in terms of guilt, or innocence to end up with a trial verdict. And those jurors sit only for that one trial.
A Grand Jury is quite different. The Grand Jury is not deciding guilt or innocence. They’re merely deciding whether there exists with the law calls probable cause for bringing this defendant to trial. In Georgia, there’s typically anywhere from 16 to 23. people sitting on the Grand Jury, they sit for a number of weeks, they typically meet once a week or once every other week.
And they’ll listen to probable cause evidence for a whole bunch of different cases and decide whether to indict return a true bill or to not indict that accused a no true bill or no bill.
And typically, you only need a majority of the Grand jurors. So 12 of the Grand jurors in Georgia is enough to get an indictment
So 12 is obviously a bare majority of 23. But you really only need 16 people present in order to have a forum, a forum something right word, a sufficient number of grand jurors to issue an indictment. So as long as you can get 12 yes votes for indictment, however many grand jurors are actually there so long as there’s more than 12. You get that indictment.
Now what do we mean by probable cause? How hard is it for a prosecutor to get an indictment? What kind of challenges that he has to overcome? Does he have to overcome?
Well, it’s really quite easy because the procedure of a Grand Jury is bit is made to make it easy for a prosecutor to get in an indictment. Really, if there’s any question that this accused could potentially in any way be guilty of the crime charged. Generally what we’ll find is he’ll proceed to trial he’ll be indicted and go to trial.
Most Grand Juries across the country and this is I’m told by Georgia lawyers is true for Georgia, too, about 90% of the cases presented to a Grand Jury ended up with an indictment , with the accused indicted.
So it’s it would it’s the bizarre exception, one in 10 cases, maybe one in 20 where the Grand Jury declines to return in the indictment when they’re presented with the probable cause evidence by a prosecutor.
Why is it Why is it so biased? Well, unlike the trial, which is very much an adversarial process, the prosecutor has to go head to head with the defendant’s attorney. And there are very strict restrictions on what kind of evidence is admitted at trial.
The rules are much more relaxed and much more favorable to the prosecutor in front of a Grand Jury. Before the Grand Jury, only the prosecutor presents evidence. So right away, obviously, everything’s enormously biased in his favor, because if you only hear one half of the story, you’ll tend to believe the side telling you the story. If you don’t hear the counter story
There’s no reason for you not to be convinced by the person who’s telling you only one side.
Even worse from the accused perspective is at the Grand Jury level, the prosecutor is allowed to use all kinds of evidence he would never be allowed to use at trial. So for example, he’s allowed to use hearsay evidence. hearsay evidence is evidence that a witness is testifying about for which they have no personal knowledge. They’re repeating the statement of someone else, that someone else is not there testifying about their knowledge themselves. So basically, it’s Mary in the witness stand, saying she heard Jane say that this thing happened well at trial, you need to have Jane there to explain her personal knowledge of what happened. You can’t have Mary talk about what Jane knows. That’s hearsay. That’s unless there’s some exception triggered that’s prohibited at trial. And the Grand Jury hersay evidence is fine.
Also, a trial there’s lots of reasons evidence might be excluded because it was acquired in a way that violates defendants constitutional rights, they were not mirandized or the warrant was bad or there was no warrant at all when a search was done, and defense counsel can generally get that kind of evidence excluded from the trial, but that kind of evidence can still be admissible for Grand Jury purposes.
So obviously, everything is geared very favorably to the prosecution, the defendant doesn’t get to say anything. They don’t get to present their own narrative. They don’t get to tell their side of the story. They don’t get to present their own evidence. The one exception under Georgia law, I believe, is if the accused is a police officer. They can submit a sworn statement that will be provided to the Grand Jury so the Grand Jury will get that police officers side of the story at least in that kind of rigid format. But generally speaking, you’re not allowed to present the defense side of the narrative.
So it’s no surprise that 90%+ probable cause cases presented to a Grand Jury ended up in an indictment under those circumstances, it’s no surprise that happened here, it does doesn’t necessarily reflect hardly anything about the strength of the prosecutor’s case on the legal merits of the case that they will have to make an actual trial.
So no surprise to me, certainly that the McMichaels and Williams have been indicted on the charges that the prosecutor wanted them indicted on. Generally, if you see a case go before a Grand Jury and an indictment is not returned. It’s almost always because the prosecutor did not actually want to get an indictment. In that case, if they wanted an indictment, they can almost certainly get the indictment.
Okay, folks, I think that’s all I have to say about the McMichaels and Williams indictment.
This all started over what was initially perceived to be a property offense, Ahmaud Arbery entered a home under construction unlawfully. The McMichaels believed that they had a reasonable suspicion that he may have been conducting a felony burglary which under Georgia law occurs when you unlawfully enter someone else’s property for the purpose of theft. You don’t actually have to take anything. It just has to be your intent to steal when you unlawfully enter the property.
And of course there the McMichaels involving themselves in Williams involving themselves in this arguable property offense, ultimately culminated in the shooting death of Armory and the felony murder charges against the McMichaels and William so things escalated badly.
But to the extent it began as a defense as a property offense, now might be a good time for me to mention our current sale running on our Defense of Property Course. This is a couple of hours of detailed instruction on defense of property, both highly defensible property, like your home, your occupied vehicle, your place of work. as well as your personal property, which includes things like pets, folks, believe it or not, under the law your pets are I know you feel like they’re members of your family, but they are mere personal property.
And the rules are quite different for the use of force in defensive mirror personal property. And the rules can get quite complex when we’re talking about the use of especially deadly force in the defensive, highly defensible property.
So we put together this course to teach people all of that and we made the course state-specific because as part of the course, which you get either as a DVD or an online stream course or both your choice, we have a web page that contains all the defensive property law you need for all 50 states. So this course is specific to all 50 states.
The course normally sells for $100 but you can get this course now for 65% off so only $35 for what is $100 course, normally
Plus, as a bonus, you will get our newest course that we’re currently finalizing, which is our course on the ”Lawful Defense against Rioters, Looters & Arsonists” Course.
And by the way, folks, if you have questions you’d like to see answered before we sign out today, please be sure to put them in the comments because I will review the comments for questions from the audience as well as the questions that we had sent in beforehand.
If I can pull it up there we go. Our newest course “Lawful Defense against Rioters, Looters & Arsonists”. Again, like the Defense of Property Course because they’re about the same length it sells for $99.95 or will as soon as we release it in the next few days.
By the way, if you’re a Law of Self Defense Member, you will get this course for FREE. So it will be in your membership dashboard. You don’t have to pay anything to get this course.
If you’re not a Law of Self Defense Member, you may want to consider taking advantage of this defense property sale because not only will you get 65% off the Defense of Property Course, making it $35 instead of 100, you’ll also get that Lawful Defense against Rioters, Looters & Arsonists” at no additional cost. So, $35 for BOTH of these hundred dollar courses, folks, if you want to take advantage of that opportunity, you can do that by clicking the image or link below:
So let’s talk now about your questions we have to cover today.
And first I want to mention remind everybody how you can submit your questions to us. First of all, if you’re a Law of Self Defense Gold or Platinum Member, you can submit questions using that Premium Q&A form on our member dashboard. Just go to http://lawofselfdefense.com/, then go to Memberships at the top of the screen, pick My Account, and then there’ll be a tab in your dashboard for Ask Andrew. We will prioritize those questions and if you’d like your question answered privately, we will do that as well. But that forum is exclusively for our Law of Self Defense Gold or Platinum members.
And if you’re not a member, folks, I kind of have to ask why not it’s really inexpensive. In fact, you can try it out for two weeks for 99 cents. If you’re not happy with it, ask for a refund, we’ll give you 200% of your money back. You can learn more about that by clicking the image or link below:
But if you’re not a Law of Self Defense Member, the other way to submit your questions is either be here on the live show and you can ask questions or email them to us at email@example.com.
All right, so let’s see what we have here for the first question that was sent in ahead of time. And this was sent in from Michael O. Michael O. asks, a while back, I wrote about us CCA getting sued in federal court for not paying for one of its members, legal expenses, one of their Platinum members in a self-defense case, are there any updates on that case?
So this is the case that involves USCCA member Kayla Giles. She was a Platinum member of USCCA. She shot her estranged husband she was criminally charged, she raised a legal defense of self-defense. And she submitted to USCCA for coverage of her legal expenses as a Platinum member. And USCCA paid for her legal expenses up to about $50,000 and then they stopped
And when they stopped, Kayla Giles lawyer asked repeatedly for payments for incurring legal expenses that were ongoing. They declined to pay so he sued them in federal court.
If you’d like to read more about this case, in some detail, you can find the blog post I did on this by clicking the image or link below:
So, what’s going on in this case? Well, I expect what’s going on is that USCCAA has decided that Kayla Giles shooting of her husband doesn’t look like self-defense to them.
And there are sketchy aspects to this, Kayla Giles had acquired her gun and become a USCCA member, just I think just a few days before shooting her husband.
So one view of those facts is while she had premeditated her murder of her strange husband, acquired the gun and USCCA as steps in that premeditation to make sure she’d have the means, and she would have the resources to fight the legal battle afterwards. So all of this could have been done with malice aforethought.
Alternatively, I’m sure what Kayla Giles will say in her defense is, look, I got the gun because I was scared of my husband. And if I was scared enough to get a gun, that’s because I thought I might need it. And if I thought I might need it, then I want to make sure I can win the legal battle too. But that’s another alternative view of the same facts that does not require that we believe Kayla Giles acted with malice.
The concern about this, of course, is that USCCA appears to be making its own call on whether it feels this was self-defense or not, it appears to have decided that it thinks it was not self-defense, and therefore it does not want to pay.
Which I wouldn’t have a problem with. If USCCA marketed its coverage in that way. There are other legal service memberships out there that take the same approach, but they tell you upfront, that’s what they will do and affect what they say.
One of these is armed citizen Legal Defense Network, great group of people. And they effectively said hey, if you’re involved if you’re a member of our defense fund and you’re involved in the use of force event, we will submit your case to our board. Our board will look at it decide whether or not it looks like self defense to them. And if it does, we’ll cover with you but of our board decides it doesn’t look like self defense to them. You’re not getting covered, you’re not getting access to that Legal Defense Fund.
And the board is pretty prominent. It’s people like Massad Ayoob, Tom Givens, John Farnham, Dennis Tueller. These are all obviously world-class rock stars in self-defense and self-defense law. So, I would expect many people would feel comfortable leaving their case whether it be covered by the legal defense fund up to the judgment of those gentlemen. And of course, you’re told upfront that that will be the case at this filtering this decision will be made by the board and you can take that into cosideration when you sign up to be a member or or not.
USCCA doesn’t market itself that way. They don’t say hey, we’ll cover you. If we feel like it, we’ll cover you if we think it looked like self defense. In fact, all their marketing materials are along the lines of, Hey, don’t worry if you’re a member, we’ve got your back.
Well, it looks like they have your back if they feel like it, not like they have your back no matter what.
My personal perspective on this kind of thing is, I think that the way these programs should work is if you’re a member in good standing, and you’re involved in the use of force event, and there is sufficient evidence in support of self-defense that the courts going to allow you to argue the that criminal defense, because if there’s zero evidence in support of your of your self-defense claim is weak enough, the trial court will deny it as a legal defense, but if they’re allowing it as a legal defense, well, then I think any of these programs should pay for your legal defense if you’re a member of that program, and haven’t violated one of their you know, pre-stated explicit exclusions, like the one I mentioned for Armed Citizen Legal Defense Network.
So that’s how I think these programs should work. Now this is going to play out in Federal court. There hasn’t been much substantive action. So in addressing the question, are there any updates? The answer is not really.
There’s been a lot of motions filed back and forth. It looked like the lawyer for Kayla Giles misfiled a bunch of paperwork early on, so he had to refile a lot of papers. There was questions about whether the court had jurisdiction, I believe it decided that it did.
There are a lot of motions by USCCA that have been filed to seal the records of this case, and to seal the filing of the case. And make of that what you will. Frankly, I think if, if USCCA thought were acting appropriately, it would prefer the transparency of how it was acting instead of trying to seal all these motions, but obviously, that’s a matter for us CCA to decide.
So now I expect that this case will drag out for a long, long time. Of course the problem for Kayla Giles is that she does not have the financial support she thought she would have. She’s already spent $150,000 in legal fees, pre trial folks. So this case could easily get up to a million dollars. She doesn’t have that money if USCCA is not paying it. That’s why she became a member of us CCA.
This is a single mom, or would soon haves been a single mom once she was divorced from her estranged husband. So she doesn’t have the resources to fight this kind of legal fight by herself. That’s why she became a member. And of course, they’re not going to hold up a criminal trial. While this is being debated in civil court, two completely separate matters. So she’s going to end up going to trial without those resources, which seems less than just frankly.
Okay, the next question that we have is can you talk about imminent versus inevitable.
So there are of course five elements of a claim of self-defense. Those elements are innocence, eminence, proportionality, avoidance and reasonableness. And, folks, if you don’t know these five elements, please do yourself a huge favor and learn what they are. It doesn’t need to cost you anything to do that we have a free “Five Elements of Self-Defense Law” infographic, you can download by clicking the image or link below:
These are the elements of the claim of self-defense anywhere in the country. The good news is there’s only up to five things that you need to worry about. The bad news is if any of these are required and missing. You don’t have a claim of self-defense, self-defense collapses. So at the very least, if you know nothing else about self-defense law, you need to know these five elements download this infographic, it’s free, provides a brief explanation of each.
Now one of those is the element of imminence, and imminence has to do normally how it applies is it’s a requirement that the threat you’re defending yourself against the reason you’re using force is you’re facing a threat that’s imminent, the threat has to be eminent that can’t be a past threat that’s over. It can’t be a future threat that may never happen. It has to be a threat that’s event that’s about to happen right now.
That’s the standard definition of imminence for purposes of use of force law.
But there is another possible interpretation of imminence that rarely comes up but can in certain circumstances. And that’s where the threat is imminent, not because it’s about to happen right now, but because it’s otherwise unavoidable.
And most commonly, this comes up in battered spouse type of cases. So what you’ll have is a typically a woman, she’s a long term victim of abuse. She’s been abused again or she perceives that abuse is about to happen otherwise unavoidable.
And it could be because typically there’s a pattern of abusive behavior. So imagine that her abuser, let’s say it’s her husband rarely drinks, but every time he does drink, he becomes physically violent and beats her and now tonight, he’s drinking.
He’s not bad yet. He’s not violent yet, but she knows the pattern. Once he drinks enough, he’ll get angry and he’ll start committing acts of physical violence upon her. Typically what happens is he drinks until he passes out, then he wakes up and he beats her up. So he’s drinking, he passes out and she knows in her mind, she knows based on actual past experience, what’s going to happen in a few hours and a few hours, he’s going to wake up, have a hangover and become physically violent with her. S
o what does she do? She goes and she gets a gun, and she shoots the sleeping husband in the head, or she pours gasoline on him and says, I’m on fire he or she stabs him with a knife. There’s lots of ways that these battered spouses find to kill their abusers.
But they’re killing their abusers under circumstances where the abusers threat is not about to happen right now. So it doesn’t fit that classic mold of imminence of an imminent threat being one that’s about to happen right now. Instead, the woman argues that, well, maybe it wasn’t about to happen right now. But I know from personal experience with this abuser, that unless I killed him, it would inevitably have happened. Maybe in a few hours, maybe later The next day, but it would have happened because that’s always the pattern.
Another scenario, a hypothetical you can imagine where this could apply that doesn’t involve a battered spouses. Imagine you’re kidnapped. Your kidnapper locks you in a basement you’re chained to a radiator in the basement kidnapper says, well, it’s my beliefs of my cult that when we kill kidnap someone to kill them, we only kill them on the third day. So we’re not going to harm you today. We’re not going to harm you tomorrow. But the third day, we’re going to come in here and blow your head off with a shotgun.
Are you required to wait until they show up with a shotgun before you can act in self-defense, assuming you find an opportunity to do that before the third day? No, you can act in lawful self-defense against that promised deadly force threat of the shotgun. Even though it’s not about to happen right now, even though it’s three days away, or then two days, then one day, because chained to the radiator, it’s inevitably going to happen unless you act in self-defense beforehand.
Now, when this kind of argument comes up, this interpretation of eminence comes up in battered women cases, what typically happens is not that the woman gets acquitted.
Now if she had a claim of perfect self-defense, every element of self-defense was there, the classic eminence was there, she was defending herself against the threat about to happen right now. And that narrative of self-defense with the classic definition of evidence was found compelling by the jury the jury could acquit her on the basis of elf Defense her conduct her use of force would simply not be criminal, it would be lawful.
But when we have this imperfect form of eminence, the threat was not about to happen right now, but she’s claiming it would inevitably have happened based on her experience. What typically happens is we end up with what’s called an imperfect self defense claim, perfect self defense results in acquittal, no criminal liability, your use of force was not a crime. In perfect self defense, or battered women’s self defense based on this eminence It was about it was going to happen eventually it was otherwise unavoidable generally does not result in acquittal.
What it can do for the woman is mitigate what would have been a murder conviction to a manslaughter conviction. So instead of going to prison for the rest of her life with no possibility of early release, she’s sentenced to perhaps 15 or 20 years for the killing. And parole is possible in many states that could be as early as a third of the sentence. So maybe in five years, she’s out she does five years and she’s out
That’s a lot better from the defendants perspective than the rest of her life in prison without possibility of early release.
Yeah, manslaughter convictions don’t look good until the alternative is a murder conviction, and then they look pretty sweet indeed. So that’s how that works those two forms of eminence.
The third question we have for today comes is a provocative question. It comes from Michael Oh, and he asks, Can I shoot a police officer who is choking a suspect?
Right provocative question, especially in the context of the George Floyd. Death, which by the way, does not appear to have been the result of choking as much as it appears to have been the result of fentanyl toxicity, meth toxicity, existing heart disease, various other elements and of course, fighting lawful arrest for 10 minutes or so while in that physical condition.
But the question from Michael was Can I shoot a police officer who is choking a suspect? Well, to answer the question, we really have to go back to first principles. I mean, under what circumstances can you use deadly force against anybody? You can use deadly force against someone when they’re unlawfully when they are unlawfully using deadly force against an innocent person.
So is that happening when an officer is choking somebody and do you have the competence to make that determination? So first, we have to ask well, is the officer choking the suspect, in fact, deadly force because there are various forms of chokes that are not deadly force.
Carotid chokes are not deadly force unless it’s the pressure sustained for the several minutes necessary for the brain to begin to die. But properly applied unconsciousness occurs quickly. Certainly, the if the suspect is unconscious and the carotid is maintained, they’ll eventually die that could potentially be an unlawful use of deadly force because with an unconscious suspect, they’re no longer dangerous, no longer need to apply force to induce compliance of the suspect if they’re unconscious.
On the other hand, a, a respiratory chokehold within forearm across the larynx, for example is generally prohibited by for use by law enforcement, because of the much higher likelihood of causing a deadly force injury, an injury that can cause either death or serious bodily injury, typically the permanent crushing of the larynx and the airway.
So generally, that’s not what’s supposed to be used by law enforcement officers. So the first question is, is deadly force being used at all, not all chokes are deadly force. The second is, is the deadly force being applied unlawfully. There are circumstances in which a officer would be privileged in choking and suspect to death because there are circumstances in which an officer would be privileged to kill the suspect. That’s why we give officers guns, right? Because there are circumstances in which there killing of a suspect is lawful and if it’s lawful the law
Doesn’t much care how you do it. If you’re privileged to use deadly force in defense of yourself or other innocent people, the law doesn’t much care if it’s a gun, or a knife, or an anvil dropped from a great height, or a chokehold if deadly force is warranted, you’re allowed to use deadly force so long as you’re doing so to neutralize imminent deadly force threat.
So the question would be even if the choke that the officer is using is deadly force, does that mean it’s unlawful? Not necessarily. What if the suspect has the officers gun for example, and the officers fighting to control the gun his gun in the suspects hand with one hand and choking trying to choke the suspect, if necessary to death? with the other hand?
Would that be a lawful use of a deadly force choke I would argue would be the officers facing an imminent threat of deadly harm is privileged to use deadly force even in the form of a choke, a deadly force choke to defend themselves from that deadly force threat.
So merely because you see an officer with his arm around the suspects neck attempting to control that suspect, I would suggest is not grounds for concluding that the officer is using unlawful deadly force against the suspect that would justify you shooting the officer.
By the way, officers don’t generally use unlawful deadly force against suspects. I know if you watch the media, you would think it happens every day, especially against certain minority groups. It’s not common folks. If you look at the number of police officers, we have in this country, the number of criminal interactions that they have, or interactions with suspects who may be criminal. It’s relatively extremely rare that it happens at all and extremely rare that it happens in an unlawful manner. So that’s what I would keep in mind there. All right, I’m going to take a look through the comments here on Facebook and see what we have going. But I’ll give you one more chance to write those in if you have any, either on the news or the questions, already covered or in completely different topics, that’s fine too. A
s I give you a chance to add those in, I will mention once again, our upcoming Law of Self Defense LEVEL 1 Live Online Class. This is our live online class, it’s our full day LEVEL 1 Course on self-defense law, the same class, we’ve taught thousands of times all over the country at the same course that’s accredited for continuing legal education for defense attorneys, prosecutors, judges in more than 30 states, but we translate all the legal ease into plain English, so don’t let that intimidate you.
We only do two or three of these a year we’ve already done one. This is the second one, we have one more later in the year. And when these seats are gone, folks, they’re gone for the year, you’ll have to wait till 2021
This is the equivalent of a law school education in self-defense law. It’s far more to my knowledge in law schools actually teach this stuff. And you can learn it all in one Saturday, folks that Saturday, July 25 2020. The courses not terribly expensive for a full day course, $150 and you can learn more about that by clicking the image or link below. I know many of you here in the comments, I recognize your names have taken this course before if you’d like to say nice things about it to provide some social proof to people who may be uncertain. That’s always appreciated.
Okay, so let me scroll up here and roll through these questions in the comments.
Ernie asks, Is CCW, safe allowed to operate in Washington State, there are a number of states in which these legal service memberships are not allowed to operate.
I believe Washington is one but don’t hold me to it. I’m not I don’t live in Washington. So it’s not a concern for me personally. And I don’t work for any of these companies. So I’m partnered with CCW Safe, but I don’t speak for them. I’m not a salesperson for them. That’s why I don’t explicitly recommend you sign up, I just encourage you to go take a look at what they have to offer. If it’s a good fit for you, then it’s your call whether or not to sign up. But there are a number of states in which these the use of these programs is constrained. If you’re considering one, I’m sure they’ll inform you, if that’s the case before they take your money. So I would In short, I would ask them.
By the way, the one program of this type, it’s different, but of this type that doesn’t have any of these state level restrictions that I’m aware of, is our own program, our own Law of Self Defense Platinum Protection Program. This is the only way to guarantee that I’m available to work on your case, we drop everything to cover our Platinum protection members. It guarantees my ability to consult on your case at no additional cost. So our normal cost for consulting and case folks is many thousands of dollars. You don’t have to pay that if you’re a platinum protection member. It also provides you with all the benefits of being a platinum member of law, self defense, including content access premium Q&A forms to get your Self Defense Law questions answered by me personally, lots of extra bonus content that other people simply don’t have access to, or at least not without paying additional.
Now, this is different than CCW, safe, or us CCA or many of these other programs because we don’t promise to cover your other legal expenses. The only legal expenses covered here is me, you still need to have a lead attorney on your case.
But you get me at no additional cost. And you’re guaranteed to get me we have to turn away a lot of cases, folks, because the truth is I’m simply always 100% extended as it is, and I can’t drop other pre-existing obligations to take on a case that frankly, it’s not the most profitable use of my time to be perfectly honest.
So if you want to be guaranteed that should you run into one of these crazy nightmare scenarios where you suddenly find yourself charged with felony murder predicated on attempted unlawful imprisonment, or some other similar nonsense and be guaranteed to have me in your case you might want to consider our Platinum Protection Program. You can learn more about that at law, self defense comm slash platinum. And because it’s simply a traditional prepaid legal service program with an attorney, there are no state level restrictions. It doesn’t matter what state you’re in. We’re happy to provide the service.
So let me look through here. More questions. Oh, Tammy says she just became a platinum member. That’s great. Tammy. Thank you very much.
George speaks to New York law, which is Penal Code Section 35. has most of their use of force justification law, and he’s referencing here their duty to retreat language. Yep. If you can safely retreat, you’re supposed to safely retreat. But there’s only about 14 duty to retreat states in the country folks, most of the states are stand your ground states most of those are soft stand your ground states, not hard stand your ground states. But the explicit legal duty to retreat only exists in about 14 states.
Of course, folks, having said that, if you can safely retreat from a fight rather than get engaged in the fight, you’d be a fool not to do so.
Let’s see. Someone ordered the Defense of Property Course, you’ll really enjoy that course we get a lot of positive feedback on it and then of course, you’ll also get the as soon as we release it, we’re almost done folks. We’re just trying to make it as good as possible. You’ll also get that “Lawful Defense against Rioters, Looters & Arsonists” course as well, just click the image or link below if you want to take advantage of that sale 65% off, get the “Lawful Defense against Rioters, Looters & Arsonists” cost at no additional fee, 35 bucks for both of them:
Okay, folks, I think I hit all the questions. And I’ve hit I believe all the promos. So let me begin to wrap things up.
As always, before I sign off, I do encourage all of you to remember that if you carry a gun, hopefully it’s so that you’re hard to kill, so your family’s hard to kill, make sure you’re also informed on the law so that you’re hard to convict not by learning legal tricks, but by learning where the use of force legal boundaries actually are, so you can stay well within them.
Because if you do that, folks, you might still find yourself targeted by a politically aggressive prosecutor. But it’s going to be awfully hard for him to actually get that conviction. Don’t make it easy for him. don’t violate the legal boundaries for use of force through ignorance. Make sure you know where those boundaries aren’t stay well within them.
All right, folks, until probably Oh, I will have some bonus content for everyone tomorrow for our members tomorrow. Another discussion between myself and Attorney Don West to of course is one of the co-counsel for George Zimmerman in his trial, we’ll be discussing certain aspects of deadly force and self-defense. That’ll be a bonus video. We’ll put up for you tomorrow at the Law of Self Defense website, so keep your eyes open for that. Totally free to our members. And otherwise folks, I will sign off everybody.
I am Attorney Andrew Branca for Law of Self Defense. Stay safe