Welcome to our News/Q&A Show for August 20, 2020. These News/Q&A shows air LIVE every Thursday at 4PM ET, and are our ONLY open-access weekly content available to non-Members of Law of Self Defense.
In today’s show we answer the following questions sent in ahead of time to email@example.com:
- Defense of home when in the yard?
- Is putting flashlight in someone’s eyes a criminal assault?
- Use of dash cameras to document defense against rioters?
A transcript of this show will be available, usually within 24 hours, for those of you who prefer to read rather than watch a video. The podcast version of this show will be available solely through the members-only Law of Self Defense Podcast.
Enjoy the show!
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program
[Usually arrives within 24 hours of live show concluding.]
The law of self defense content you are 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. Welcome everybody. Welcome to the law self defense news and q&a show for Thursday. If I can pull this up for Thursday, August 20. That would be today.
I am Attorney Andrew Branca for Law of Self Defense. Thank you very much. It’s always greatly appreciated. Come in folks come in, make yourselves comfortable if you’re watching this live on Facebook and would be kind enough to hit that share arrow and that that like thumbs up button. Leave a comment with your city and state that helps fool Facebook into spreading word of the Show More broadly, helping us grow the Law of Self Defense Community, it’s always appreciated.
Many of you will know that this is the one show of the week that we do that is open access, you do not need to be a law of self defense member to access our Thursday weekly q&a show, which you do need to do in order to access the other programs of the week. Before we jump into any of that though, I want to give a quick overview of what we plan to cover today. These are kind of the the pre programmed questions. We’re also happy to take questions live time permitting, if you want to submit those in the comments. If you’re a law of self defense member, we do encourage you to enjoy the live show. Using your membership dashboard questions asked in the chat there will get priority over Facebook or YouTube. But those of you on Facebook and YouTube who are not yet law of self defense members, first of all, shame on you. But second of all, please feel free to put your questions in the comments there and I’ll scroll through them before the end of the show. We typically run about an hour. I try to stay under an hour for these weekly news and q&a shows.
Today’s show. independent of questions that may be asked during the show has kind of three pre programmed questions. Those involve questions, one from a gentleman out of California who asked about defense of his home when he’s in his yard, so much like the McCloskeys scenario in St. Louis. This differs from defense of your home when you’re actually inside your home. For example, we’ll talk about how that varies based on pretty common legal principles across the 50 states.
We’ve also got a question about putting a flashlight into someone’s eyes in a defensive manner and whether or not that could constitute criminal assault. We’ve been talking the last couple of weeks about the use of these rioters of lasers in the eyes of law enforcement, and how that can readily qualify as a use of not only use of unlawful physical force, but unlawful physical deadly force felony battery upon those officers. But the question arises, what about a regular flashlight? If you carry a flashlight on your person, which I certainly do encourage all of you to do as well. So we’ll cover that.
And then we had an interesting question about the use of dash cameras, on personal vehicles to document defense scenarios, where you might, for example, be surrounded by a group of perhaps violent writers or certainly unruly writers. And whether or not that kind of video documentation can be helpful to your case, your narrative of self defense, the answer, of course, is yes, it can be helpful. It can also be quite harmful, depending on the nature of the evidence, so we’ll take a look at all of that as well.
Again, today’s show is the only show of the week our Thursday news and q&a show that is open access. Feel free to enjoy it every week. I encourage you to put it into your calendar book market, Thursdays 4pm. The law of self defense news, a q&a show if you You’d like to submit questions for our consideration for future shows. If you’re a platinum member of law, self defense, we encourage you to use the Platinum q&a forum for that. In your members area and your questions get prioritized. You can also get private answer to your question if that’s what you prefer.
For the rest of you, you can always email questions to us at firstname.lastname@example.org for our consideration for future shows that show at Law of Self Defense. And, of course, we do encourage everyone to at least consider becoming a member to give you a sense of the kind of stuff we’ve been covering since last week’s news and q&a show which wasn’t very long ago, just about seven days ago.
Some of the content we covered for our members includes a story we released today, a post and by the way, all our content goes out in written video and audio format. So it’s video as you’re watching now, it’s written either as a blog article or a computer generated traffic script of our show typically the news and q&a shows are transcribed because they’re less structured than a scripted blog post or video. And then in audio form to our members as through the members only law self defense podcast, so text, video and audio for everything.
Today’s content was about a man who shoots a woman with a BB gun for stealing the Trump sign off his lawn.
Earlier this week we did a brief post just noting with curiosity, the fact that a lot of the news media is suddenly discovering that George Floyd had actually just ingested a fatal dose of fentanyl when he was subject to restraint by the police officers. And it seems far more likely based on the available evidence that it was in fact, George Floyd’s intentional ingestion of a three times fatal dose of fentanyl right Other than officer Chavez knee that caused George Floyd’s death. Frankly, if the officers had not intervened at all, George Floyd would still be dead based on the toxicology of his fentanyl levels. So we covered that.
We covered another story where we I was interviewed by concealed carry comm on their podcast for about an hour discussing the scenario of When can I use my gun as a threat and still have that be a lawful exercise?
Earlier this week, I also did a legal analysis of the decision handed down by the Ninth Circuit Duncan v. bursera, in which they ruled California’s standard cat magazine ban unconstitutional so you could get a detailed real-world lawyer’s analysis of that decision and its implications.
And we also did a cases of the week show People v. Williams it’s an Illinois Court of Appeals case in which the defendant fired nine shots in purported self-defense and the question for the court. And for the appellate court was, Well, that seems like a lot could that possibly be lawful as possible? The first few were lawful, but the last few were not. And are we going to put this guy in prison for the rest of his life? Because even though when he started firing, it was legal for him to do so. He simply went on too long. That was a question before the court.
So, many of you will be familiar with the Michael Dunn case down in Florida, which Michael Dunn fired 10 shots. And at his trial, the jury determined that the first three were not sufficiently unlawful to convict him of what would have been murder. But the last three were sufficient to convict him of three counts of attempted murder, and sentenced him to 60 years mandatory minimum in prison. So these are questions that arise in real world cases.
So anyway, that’s the kind of content we cover for our Law of Self Defense Members. If that’s the kind of content that you might find interesting, you might consider trying out membership and the good news is you can try it out pretty inexpensively folks a two-week trial for just 99 cents.
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Alright, let’s get into the show. First, of course, with a obligatory reference to our sponsor, which today is CCW Safe.
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Now before we jump into the substance of today’s show, I do, of course, need to mention today’s sponsor, CCW Safe, a provider of legal service memberships, what many people mistakenly call self-defense insurance. They in effect promise to pay their member’s legal expenses if their member is involved in a use of force event.
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Okay, folks, let’s jump into the first question that was sent in to us ahead of time and that is defense of your home when you’re standing in your yard much like the mcclaskey scenario. Now, it’s important when we talk about defense of any kind of property to differentiate between defensive property and defensive persons. So if it’s mixed, if it’s a threat to property and a combined threat to persons a scenario that’s really a threat to In scenario folks, and it becomes a defense of person self defense or defensive other scenario, the the property aspects simply falls off the table. The only time the defensive property rules are controlling is when it’s only defense of property in the absence of a threat to persons. Now, the good news when it’s in defensive person scenario is that defensive persons law is pretty consistent across the 50 states, about 80%. The same that reflects how old self defense law is. It’s many thousands of years old dates back to the ancient Greeks and Romans, the American variation, not much of a variation is hundreds of years old dates back to old English common law. And across the 50 states Self Defense Law is pretty much the same. Now, of course, every state has its own statutes, jury instructions, court decisions, and states do differ substantially in a few areas like whether or not there’s a legal duty to retreat, but the underlying legal principles are all based on the same five elements of the claim of self defense, more accurately, up to five elements.
Now, we don’t have time in this show to step through all those five elements in great detail. But if you don’t know these folks, you really can’t understand anything about a self-defense or defense of others analysis. So I do encourage you urge you to please take an opportunity to download the free infographic we have on this, it briefly describes the five elements, so at least you have that working foundation to understand everything else we’re talking about, doesn’t cost a penny, folks.
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Now, whereas I said that defensive persons was pretty consistent across the 50 states, defensive property laws, really not Folks, it varies quite a lot across the 50 states. But at the very basic level, we have to when we’re talking about defensive property, at least differentiate between defense of mere personal property least defensible property on the one hand, and defense of highly defensible property on the other. We also need to understand if we’re going to be talking about the fence of a home, for example, that we understand what the Castle Doctrine is, and its limitations. It’s not nearly as broad, as most people think, seem to think. And we also need to understand the concept of curtilage particularly in the context of this question, which is, what are the rules of engagement for defense of my home if I’m standing outside the home? Now for at least defensible property mere personal property, including by the way pets, pets are for use of force law purposes, least defensible property, the general rule outside of Texas is non deadly force only. Sometimes not even that much Texas does have a provision for the use of deadly force in defense of personal property. It’s Penal Code Section 9.42. If you’d like to read that statute, and I encourage you to do that, you can find the http://lawofselfdefense.com/942.
But even if you’re in Texas, I would urge you to not risk your liberty, perhaps a lifetime in prison on that statute, but nevertheless, you can find it there to read what it says. But in all the other 49 states there’s literally zero provision for the use of deadly force in defense of personal property. In the absence of a threat to persons you simply cannot justify the use of deadly defensive force for that purpose. Things change if we’re talking about highly defensible property, highly defensible property is dwelling class property. It always includes at least your home in many states, it may include a place of business in many states that includes an occupied vehicle. This is one of the ways defensive property varies across the 50 states. I know there are a couple of states that are trying to classify places of worship as highly dense Principle property. I don’t believe any of those have become law yet. But the key word highly defensible property is it modifies the conditions a liberalizes. The conditions under which deadly defensive force can be used in the context of a threat to that property. Now what has to be understood, however, is that what the law is doing is not saying, hey, you can kill someone if they damage the shingles on your home or the doorknob on your front door, or the antenna on your car. When the law allows her broader privilege to use deadly force in the context of highly defensible property, what’s happening is all this property has as a core characteristic that it serves at least in part to shelter and protect the people within it.
What’s happening is these highly defensible properties are being used as surrogates, trip wires, for the protection of the people within the property. It’s fundamentally still a defensive persons scenario, but it’s clad in in in a facade of defense of property. In fact, the laws that To provide for this are often not in the defensive property sections of the statutory code. But in the they’re buried in the defensive persons portions of the code because really, conceptually, they’re still defensive persons standards, they just lower the threshold that privileges the use of deadly defensive force in the context of being in highly defensible property, as opposed to if you were just walking around in a public place.
So many states have special provisions that allow for the use of deadly defensive force in the context of highly defensive property where that deadly defense force would not be allowed if you were walking down the street. And usually what they require as a trigger is that the person you’re using the deadly defensive force against is making a unlawful and forcible entry into the property, which means that if they’re outside the property and not trying to get in these special provisions don’t apply.
So they’re not triggered and you don’t get the benefit for them in the context of this question, How Can I protect my home with them outside on my front lawn? Well, if you’re outside on your front lawn, you’re not inside your home protecting yourself or your home from someone forcibly and unlawfully trying to get in so you don’t get the benefits of those special provisions.
People ask, Well, what about the Castle Doctrine? What’s that do for me? Well, the Castle Doctrine, unfortunately, is often mistakenly thought of as much broader than it actually is. And a lot of the reason people mistakenly believe it’s broader than it is because they hear people like lawyers or cops use the phrase in excessively broad ways. Now, the core meaning of the Castle Doctrine, its historical meaning and really, it’s only proper Meaning, if properly understood, is that if you would otherwise have had a legal duty to retreat from a threat before you could use defensive force, you’re relieved of that legal duty. If you’re defending yourself against a threat and you’re in your home, you’re in your castle. The old school rule used to Be that, under Old English common law that everyone had a legal duty to retreat if safely possible, if they were out in public, but they were relieved of that legal duty to retreat. If they were in their home in their castle, no duty to retreat in your castle. That’s all the Castle Doctrine does for you. It doesn’t give you special privileges to use force or more force or greater force or use for sooner. All it says is, if you would otherwise have had a legal duty to retreat, you’re relieved of that legal duty if you’re defending yourself in your home. Now, of course, in most American states, about 36 of the 50 American states, there is no generalized legal duty to retreat. So you don’t really usually need the Castle Doctrine to relieve you of a duty that’s not being imposed in the first place. But there are about 14 states that do impose a generalized legal duty to retreat as safely possible. Before you can use deadly force and self-defense and every one of those states does relieve you have that legal duty if you’re defending against an intruder into your home. When you’re inside your castle, but again, that’s all it does it relieves you that otherwise existing duty to retreat. Now, let’s talk about the concept of curtilage.
So curtilage refers to the area immediately around your home, that’s part of the normal day to day use of your home. And it’s a way of kind of extending the boundaries of your home to the exterior of your dwelling. So, for example, the Castle Doctrine always applies if you’re inside the four walls of your house. There’s no question about that. In most states, it also applies to your curtilage. The area immediately around your home that’s part of the normal day to day use of your home often includes a front porch or back porch or front yard or backyard. Now it’s very gray and ambiguous about how far the curtilage extends.
Clearly once it reaches a point where you no longer have the right of exclusion, it’s a public street. It’s no longer curtilage but between the four walls of your home and some outside limit we have curtilage we don’t really know what that outside limit is. It’s all very circumstantial. These are judgment calls made on a case by case basis. A decision made in one case is not controlling in another case.
So the truth is, you never really know for sure, if you’re standing within your curtilage for use of force law purposes, until a judge has has made that decision at court. And that’s obviously much later than your use of force decision making is going to require all you can know is that the closer you are to your house, the walls of your house, the more likely you’re still within your curtilage The further away you are from the four walls of your house, the less likely you are to still be in your curtilage.
Now another important thing to keep in mind, for those of you who like the law and read about this kind of stuff, it’s also important to keep in mind that curtilage is one of those legal terms of art that is used in different legal contexts and can mean different things and have different scopes in different legal context. So the most common use of curtilage is not use of force law, not Self Defense Law defensive castle law, it’s actually in search and seizure law.
When the question arises of Well, we’re the police required to get a warrant in order to seize a particular piece of evidence Did you still have a reasonable expectation of privacy about that piece of evidence, and one of the general rules applied there is well, if the evidence is within your curtilage, the police need a warrant in order to seize it if it’s outside the curtilage. And they can just pick it up and walk away with it. It’s a piece of evidence that’s admissible in court. But the way the courts defined curtilage for search and seizure law is very different can be very different than they define it for use of force law purposes. So just because you see curtilage, you might find the court saying all the curtilage extends to the property line for search and seizure law that does not mean curtilage extensive property line for use of force law purposes. So be aware of that.
And in any case, remember what curtilage does for you it all it really does is extend the four walls of the house basically to the outside, but only for the purposes of the Castle Doctrine, not for purposes of special provisions that allow you to use deadly force earlier, those special provisions typically require a forcible and unlawful entry into the home. curtilage doesn’t apply there. curtilage may apply in the context of Castle Doctrine. So if you would not have had a duty to retreat inside your home, you may not have a duty to retreat on your front lawn if your front lawn is deemed to be curtilage. But you don’t get those other special provisions that lower the threshold for the use of deadly defensive force, you just may be relieved of that otherwise existing duty to retreat.
Keep in mind too, there’s some defensive home scenarios that people commonly think of as defensive home scenarios that are really defensive person scenarios. So someone’s throwing a Molotov cocktail at your house are eminently about To do so, well, that’s an act of arson folks. And arson of a dwelling is a deadly force attack. That’s not really a defensive property scenario. That’s a defensive person scenario, a deadly force defensive person scenario. If someone’s firing the gun into your home, if there’s any reason to believe anyone’s in the home, that’s a defensive person scenario. They’re all endangered by those bullets entering the home. You don’t have to, you’re not defending the home. In that context, you’re defending the people within the home. So that is my answer to that question. Let me scroll through the comments real quick. And see if we have any questions on that. Additional questions on that first one, first, I’ll go through the membership area at law self defense. Let’s see. Someone asked whether there’s a limit on characters in the chat box. A lot of self defense there is not if you’re having problems you may want to try a different browser. Let me take a look at the Facebook again folks, if you’re on Facebook watching live if you could hit that or I guess even the replay if you could hit that share button the like button, that’s always appreciated.
Steve mentions Steve being on Facebook stand your ground would be the same in your yard, just as in the street?
Well, maybe not Steve. There are differences between or there can be differences between stand your ground relieving, you have an otherwise existing duty to retreat. On the one hand, and Castle Doctrine applied within your curtilage like your front yard, relieving you have an otherwise existing duty to retreat. They’re similar concepts and that they both relieve you of an otherwise existing duty to retreat. But each of those stand your ground and Castle Doctrine within your curtilage can have different conditions. In fact, often standard ground has a lot of conditions. That Castle Doctrine in your curtilage does not have, particularly in states that adopted standard ground by statute as opposed to case law. So it’s very common for statutory stand your ground laws to have conditions you need to meet to qualify for standard ground.
For example, you’re in a place you have a right to be, which would also apply in your front yard, presumably, but also that you’re not engaged in unlawful activity is another example. In Pennsylvania, they have a condition that stand your ground only applies if the person you’re facing defending against displays a firearm or replica firearm or some other deadly weapon if they don’t, you don’t have stand your ground privileges, you have a legal duty to retreat. So those are conditions that would apply under stand your ground but would not apply under the Castle Doctrine. The Castle Doctrine does not have those conditions. The Castle Doctrine is what would apply if you were within the curtilage of your home. Presumably your front yard would be your curtilage purposes of this discussion.
So it’s possible you could fail to meet a condition for stand your ground and so you would have re imposed on you a legal duty to retreat if you were out in public. Say, for example, you were carrying a gun in a place that was posted and that posting against guns had legal import in that jurisdiction. So you’re carrying, in effect unlawfully? Are you committing a trespass by carrying on that property that could disqualify you from stand your ground, if not being engaged in unlawful activity is a condition to stand your ground, but it would not disqualify you under Castle Doctrine within the curtilage of your home. So they’re not exactly the same, but they’re, you know, they’re generally related, but there are circumstances in which they would apply differently. Let’s see.
Okay, so let me proceed to the next question that we have pre-loaded. Before I do. I would like to mention what All this defensive property talk folks I mentioned defense property is relatively complicated compared to Self Defense Law varies a lot from state to state. The good news is we have a complete dedicated course to defensive property available from law, self defense. And this week, not only can you get that course at a great price, but you can get it at a fantastic combo package deal.
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Okay, let’s go back to our questions. Now. See what the second question was, is putting a flashlight in someone’s eyes a form of assault. So we’ve been talking recently about how some of these violent protesters have been using powerful lasers shining them in the eyes of law enforcement, causing eye damage, likely permanent eye damage to these officers eyes. Does that constitute an unlawful use of force and what degree of unlawful force in our in our previous discussions, I’ve made the argument that if those lasers are caused serious bodily injury and permanent damage blindness would certainly qualify a serious bodily injury, they fall within the deadly force bucket that is an act then of deadly offensive force against which deadly defensive force would be legally justified. assuming of course, the other conditions of self-defense have been met, which they would in this scenario, violent protests are shining lasers into the eyes of law enforcement just doing their jobs. But to understand how the criminal law would apply to these kinds of actions, you need to understand how the laws of assault and battery and aggravated assault and battery really works.
So, just very quickly, in summary, the traditional use of these words these terms of art assault battery, as they’re taught in law school, there is a little varies from state to state, but the the general principles governing how these terms are used, is that an assault is putting someone else in reasonable fear of imminent physical harm. You don’t necessarily have to to harm them at all. But they have to perceive that you’re threatening to imminently harm them, you’ve put them in fear of harm. So it’s a lot about their mental state. If they’re in a state of fear of harm, then an assault has been committed. I’m talking the context here of unlawful threat of harm. Obviously, if the threat of harm is defensive in nature, then you may have a self defense justification. But if you’ve unlawfully put someone in reasonable fear of imminent physical harm, it’s a criminal assault. A battery is when you actually harm someone. So you cause them some degree of physical harm. If you do both, you put them in fear of harm, you raise your fist where they can see you and then you strike them. While the raising of the fist may have been an assault, you may have put them in fear of imminent harm. And the actual contact is the battery and we have an assault and battery but they don’t have to be combined, right? You could raise your fist and then punch them. You’ve committed an assault but not a battery. Or you could run up behind them and punch them. They never saw you coming. They were never in fear, you’ve committed a battery but not in assault.
Now, we also need to distinguish between assault and battery in the simple context and then the aggravated context. So a simple assault or simple battery is one that does not involve the use of deadly force. It’s a non deadly force threat or injury. aggravated assault or battery is one that involves a use of deadly force a threat or use of deadly force. So for example, you raise your fist. Let’s assume that’s non deadly nature it normally is you put someone in fear, that’s a simple assault, you draw a gun pointed at them, even if you don’t fire. Well. Now you’ve committed an aggravated assault and with a firearm, which in most states is going to be good for 10 or 20 years in prison. The most common cases I work on are aggravated assault cases in which normally law abiding people draw their gun pointed at someone never fired shot, never heard anybody, but it checks all the boxes for an aggravated assault a felony, that they now have to justify by raising a legal defense of self defense. Or if you’ve actually shot someone and not killed them that would be an aggravated battery so you’ve caused them physical harm of a deadly force nature.
Of course if you shoot them and actually killed them then we’ve moved beyond aggravated battery to manslaughter or murder one of the killing charges so that’s simple assault battery aggravated assault battery now I’ve argued that the damaging the eye damaging lasers are aggravated battery, you’re causing a physical harm of a deadly force nature because remember, deadly force includes not just force capable of causing death but also force capable of causing serious bodily injury and certainly blindness, permanent damage would qualify as serious bodily injury. So that puts it in the deadly force bucket that puts it in the aggravated battery bucket, felony, aggravated battery by definition, and that would justify the use of deadly defensive force. Now that’s for lasers coherent light.
But here what we’re talking about is Well, first of all, let’s talk let’s differentiate between two classes of lasers. We have lasers that are readily capable of causing substantial damage. And arguably some people have asked well, aren’t there lasers that don’t like laser pointers you might use in a classroom, or lasers you might have mounted to your gun. To my knowledge, those are all also labeled as don’t point these at your eye or anybody else’s eyes. So I would argue they’re still eye damaging, but even if we pretend they aren’t in a real confrontational setting, can you really distinguish between the two? Or is it reasonable to infer that if someone is acting in an offensive manner and shining in your eyes, they’re doing it for the purpose of causing you harm, and make a reasonable inference that it is in fact, an aggravated form of attack upon you an aggravated battery?
After all, if someone points in apparent gun at you, you’re not required to read their mind to determine if it’s a real gun, something that reasonably looks like a real gun. You’re not required to ask them if you can in first inspect the gun and make sure it’s not a toy. If they have an apparent knife in their hand, you’re not required to first assess whether I might not have a rubber tip. As opposed to being an actual bladed weapon. You’re allowed to make an E reasonable inference based on the apparent appearance of the object and its likely effect and I would suggest that applies not just to realistic looking guns or realistic looking knives but also to lasers being offensively directed at your eyes. So that’s lasers.
What about non laser normal, light, non-coherent light use transiently in a defensive manner so you’re shining it in someone’s eyes. I would suggest a normal flashlight. Oh, by the way, folks, their flashlights are wonderful defensive weapons. I’ve often mentioned the importance of having a diversified self defense toolbox. If you carry again for personal protection as I certainly carry again for personal protection, you might consider making sure you have a non deadly means of self defense. I prefer OC spray for that purpose. If I’m carrying a gun I’m carrying no OC spray if I’m not carrying a gun I’m probably carrying OC spray but I usually carry again another great defensive weapon is also a good flashlight. This happens to be what is it the Streamlight protac one L. I like these are inexpensive the batteries are cheap. I’ve got a bunch of them. There’s always one in my pocket, but it’s a quite a lot of lumens. I forget how many but sufficient for my purposes easy to carry around. Just part of my as you might tell by that if you can see how chipped more than this part of my EDC kit.
These high lumen flashlights are a fantastic defensive weapons and a number of respects. One is while they don’t cause actual physical harm to whoever you shine them on, even if you shine it in their eyes, if you do shine it in their eyes, they tend to put up kind of it’s almost a wall of light effect. So that person can’t see what you’re doing. They don’t know what you’re doing that creates uncertainty for them.
Also, if you happen to be, for example, putting your hand on your grip of your pistol Remember one of the elements of an assault is putting someone in fear of harm an aggravated assault is putting someone in fear of for example your gun. So if they know that you’re reaching for your gun for the purpose of changing their behavior, you’ve checked all the boxes for felony aggravated assault, but only if they know that if they don’t know that if they can’t see you doing that, well then you haven’t put them in fear because they’re unaware that you’re reaching for your gun and therefore there is no criminal assault that you’d now have to pay your lead counsel 30 or $50,000 to his retainer and have to defend in court so for that purpose alone, the wall of light effect alone that obscures what you’re doing can be enormously advantageous.
Also, of course, many flashlights today this one as well, has a strobe effect. And if you’ve never had to look at that strobe effect, it’s not painful. It’s non physically harmful, but it’s very disorienting, it’s difficult to look at it’s very distracting. I think it’s a fantastic feature of these tools as as defensive Weapons less than lethal weapons that literally cause less physical harm, even then OC spray because they technically cause no physical harm. So certainly I would argue use of a normal flashlight noncoherent light non laser light, very unlikely to be perceived as anything that would constitute an assault under a normal transit defensive usage Now, if you’re doing something weird, like duct taping someone to a chair and pinning their eyelids open and shining 1000 lumens into the right eyes for an hour at a time. Yeah, that may well cause some physical damage but of course, that’s not really what we’re talking about in this context.
So flashlight non deadly force, not even an assault because you’re not causing physical harm. By itself, of course, if you combine it with other types of force, then the other type of force might constitute some degree of assault, but the flashlight itself No.
Okay, folks, before I get to the last question, I do also want To mention, if you like this kind of stuff, if you’d like to be able to understand this kind of content, these kinds of scenarios in cases, at a more professional level than you currently can, you might consider participating in our upcoming law, self defense level one class live online.
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All right, the last question of today’s show, use of dash cameras to document your defense against, for example, riders your vehicle, you’re trapped in your vehicle. There’s violent riders around you, maybe they’re just about or you’re concerned, they’re about to start breaching your vehicle, you’re wondering if you should drive through the crowd. You’d like to be able to have favorable evidence if you end up using force of any kind and then have to justify that force in court.
And in any of these scenarios, video can be of tremendous help. There’s no question about that. It’s also true however, that video can be harmful if you’re not careful Or more accurately depending on the nature of the video. So in terms of helping you the video obviously helps to put the jury in your position they see what you were seeing, they hear what you were hearing, that can be really decisive. It really humanizes the the terrifying position you were in when you had to make your use of Force decisions. It can even explain away perhaps imperfect decision making in self defense. Given the totality and the stress of the circumstances, the laws allowed to take that into consideration. We’re not required to make perfect decisions in self defense, we’re required to make reasonable decisions and self defense under the circumstances.
For example, when we think about the McCloskey again in St. Louis standing on the front lawn with that AR and that whatever that pistol was Walther PPK, like pistol it would have been great for them if they had their own video from their angle, maybe cameras mounted on their home facing the crowd that could be shown to the jury so the jury could see what the McCloskey saw here, what the McCloskey heard, rather than the McCloskey is being dependent upon the video provided by the people in the crowd who arguably Let’s face it, are on the other team were the people threatening them a classic these were the people being threatened by the McCloskey are they likely to share their smartphone video with the McCloud skis if it’s favorable, McCloskey, he’s arguably not.
So in that sense, it can be very helpful if you have your own video. However, it’s not necessarily helpful. If the evidence in the video is damaging to you that can be bad. Now, I’ll use as a couple of illustrative examples, some real life cases.
One of them didn’t actually involve a recording, but let’s pretend for our purposes it did. And this is the Florida movie theater shooting back in. Oh my gosh. 2014. Now, an older gentleman, retired police officer retired SWAT police officer at the movies with his wife in Florida 2014 The movie has not yet started I guess there’s coming attractions and such on the screen. And there’s a younger couple sitting in front of them in the movie theater who are on their cell phones. And Curtis Reeves, complaints about this tells the gentleman in front of them Chad Olson, that his use of his cell phone is bothering him channel awesome. Olson tells them in effect Go jump. Curtis Reese leaves a seat goes complained to a manager comes back to his seat. The confrontation begins again. The younger gentleman in front of him stands up, and Curtis Reese ends up shooting the younger gentleman in the chest and killing them. In front of them in front of that gentleman’s wife, Chad Olson dies in his wife’s arms in effect, the moment after Curtis reads fires that shot.
And Curtis Reeves, I think now his trial data set for April 2021. Folks, this shooting happened in January 2014 is over seven years between the shooting and the current trial date trial. It’s been pushed off repeatedly. There’s nothing to say it won’t be pushed off again. That’s a long delay between the actual claimed criminal event and the first trial in the case. lots of reasons for the delay somewhere. Changes in Florida’s self defense immunity statute, required a lot of hearings, a lot of challenges in court. Now of course COVID is one of the reasons it’s been delayed from. It was October of this year to April of next year.
But anyway, so Curtis Reis fires the shot shoots channels through the chest mortally wounded him. Immediately Curtis Reeves, the shooters wife turns to him, and says, What did you do that for? Well, this wasn’t recorded, but there are witnesses who observed this statement. And that’s not helpful to Curtis for us. If his own wife who’s sitting next to him did not perceive an apparent need for the use of deadly defensive force that undermines the reasonableness of Curtis Reeves claims that he had a reasonable perception of a need for deadly defensive force. His wife’s statement did not help him. If that had been caught on video or caught on audio, it would not have helped him. So it’s possible for stuff to be recorded. That’s turns out not to be helpful.
Another case, this was an actual criminal case, that I was not involved in the case and not The lawyer was involved. He told me about this over on a meeting. But he had been involved in the case where a young adult a male had been involved in kind of a road rage incident had shot another gentleman in what looked pretty much like self defense and it was about to be written off as self defense. Except after firing the shot, the young man who acted and reported self defense called his father, and his and the sons end of the conversation was recorded by other means. And so the sons overheard telling his father on the phone, Dad, you won’t believe it. I had to shoot someone again. It turned out this was the third time this guy had shot someone in purported self defense.
Now, is it theoretically possible these were all lawful shootings in self defense? Sure it is. But does it make the prosecution suspicious that this seems like a pattern of behavior and maybe we should Put this guy to the test at trial this time. It certainly did. And that guy went to trial. Now Frankly, I don’t remember the outcome of the trial really I my vague recollection is it ended up in an acquittal. So was determined to be lawful shooting again. But he never would have gone to trial in the first place, but for the fact that that remark had been caught, as a recording that was later overheard by the prosecution, and that’s what compelled the prosecution to take him to court with all the attendant risk and expense and so forth.
So recordings can help, they also can’t hurt. It all depends on the nature of the evidence that’s actually recording.
There’s also some practical considerations in this context of a dash cam on your car or even a handheld camera like a smartphone. If we’re talking about dash cam on your car, most dash cameras are forward looking. But I would suggest that many of these scenarios the real threats Not in front of you. The real threats on the other side have a pretty strong windshield and on the far side of the hood of your car, the immediate threat I would most be worried about is not that one. And by the way, that one is also in the direction of the travel of your car, should you step on the gas.
But rather than threats to the side of your vehicle right by the passenger when they’re right by the driver window, that class is much less robust. You can’t move your car sideways by stepping on the gas pedal, so you don’t have an immediate defensive response to using the vehicle. That’s where people are going to break windows, open car doors pull you out of the vehicle, and that’s when you get killed or at least very badly injured. As we saw in the gentleman of Portland just this past week. I’ll cover that in a post in the next day or so that event where the gentleman got pulled out of his truck beaten up ultimately kicked in the head while he was sitting on the street, and just viciously brutally knocked unconscious. But it’s the side attacks that really concerned me the most in cars generally don’t have dashcam cameras pointed to the sides. I mean, are you going to have cameras pointed in all directions like many police cars have now it seems a bit unwieldy.
Now alternative could use your smartphone to record. That’s not necessarily a bad way to go. But of course, if you’re holding a phone in your hand, that’s a hand you don’t have available for other purposes, at least not immediately, instantly available. It’s dedicated to that purpose. You’re already trying to drive a car or be prepared to drive a car you’re already trying to present a weapon or be prepared to present a weapon. How many hands do you have?
And by the way, which hand Are you going to hold it in? In our live in person classes we offer bring with us a very costly simulator system self defense simulator system, where people see a video of a perhaps threatening aggressor. And they have to solve that problem in the context of the simulator. We give them an infrared laser gun, a fake gun to do that with and sometimes we’ll encourage them look, if you get the guy at gunpoint, use your cell phone, pretend you’re calling 911 and go through the motions of making that 911 call. And what a lot of people discover is they have a pistol under strong hand They can’t work their phone with their weak hand. They’ve just never done it. They’ve never had to type in the code. Or if they set their phone up for fingerprints, they’ve set it up for their strong hand fingerprint, but not their weak hand fingerprint. So the phones actually, for all practical purposes, inoperable in their weak hand.
Now what do they have to do? Well, they have to try to transfer the gun from the strong hand to the weekend while they’re transferring the phone from the weekend to the strong hand. That doesn’t strike me as a great position to be in. First of all, there’s that moment of vulnerability even if you don’t fumble the transfer end up dropping the phone or dropping the gun. But even if you do the transfer now you have the gun in your weekend and the phone in your strong hand. And are you better with that gun in the weekend? Are you just as fast just as accurate with the gun in the weekend? Probably not fact. Most people I know. Excuse me, even most competitive shooters never practice with their weekend. The only time they shoot with their weekend is when they finally required to do so in a match. And then it generally doesn’t go very well.
By the way, for those of you who are competitors, a huge way to get a leg up on your competition is simply, if you do nothing else, practice at least dry fire with your weekend, you’ll smoke them because they’re not making that effort, in my experience, most of them. Okay, folks, that’s the last of the questions. I will turn I will look back through the chat on the law self defense member page and the Facebook to see if more questions have been typed in so I can answer those. And if you haven’t put a question in yet and you just realize you’d like to please go ahead and do that now. In the meantime, before to give you an opportunity to do that, by a little time, I will mention one more thing before we go and that is the Law of Self Defense Platinum Protection Program.
Platinum Protection Program
Okay, folks, so we’re talking about all these politically motivated prosecutions, the cost of prosecution and that brings me to the point where I’d like to mention something else we can offer from Law of Self Defense to touch on both those points. And that is our Platinum Protection Program.
So, the Law of Self Defense Platinum Protection Program combines two of our most popular programs into one. The first thing it does is it guarantees my availability to be on your legal defense. The truth is, folks, that given my time commitments, most of the cases that come into my office that request a legal consultation, we have to say no to. I just I don’t have the time. Frankly, from my perspective, these consultations are among the least productive uses of my time. We almost cannot afford to do them for clients.
So very frequently, we have to tell people I’m sorry, we just we simply can’t help you on your case.
Unless that person who calls is a member of our Platinum Protection Program. If they are, we drop everything to work on their case immediately. And immediately is important folks, it’s almost like treating cancer, the sooner you can get in and engage the prosecution with your narrative of defense, self-defense justification, the more likely it is that you’ll be taken off that track to trial. Once the prosecutor’s got a year, two years, three years invested in your prosecution, it’s very difficult to get those charges dismissed at that point.
So, the more resources you can bring to bear sooner, ideally immediately after the event, the less likely it is you’ll be charged less likely it is you’ll be indicted, the less likely it is you’ll be prosecuted in the first place.
So that’s the first thing you get from the Platinum Protection Program, is my guaranteed participation on your legal team. By the way at no additional cost beyond what you’ve paid for your membership. My legal consultations normally cost many thousands of dollars. But if you’re a Platinum Protection Program member, that’s all covered. You don’t need to spend an additional Penny beyond your membership.
The other thing you get from the Platinum Protection Program is Platinum-level access to all our Law of Self Defense blog posts, videos, podcasts, and we do that partly for selfish reasons, because the more informed you are about the law, the less likely you are to need our legal consultation in the first place.
So we try to do both we try to provide you with the educational materials and insight you need to make better informed, more confident, more decisive, more lawful decisions in self-defense, in part so you’ll be less likely to get in trouble in the first place.
But if you do end up facing legal jeopardy, you’re guaranteed to have us on your legal team.
So if any of that sounds of interest, I encourage you to learn more by clicking the image or link below:
And with that said, I will now go through the chat in Facebook questions. Let’s see
Okay, that was the membership area and let me look through. see a lot of nice a lot of people saying nice things about the live online class. Thank you very much, folks, I really appreciate that. I’ll put that back up on the screen. So you can refresh your recollection of that URL. If you’re interested. Law of self defense comm slash live online. That really is a good time.
James McDonald says he’s taken the class four times to one person, one seminar. One live online never gets old. You’d be shocked folks and how many people take the class four or five, six times? It’s fairly common. It is a firehose of information, very difficult to absorb it all in one sitting. Unfortunately, we can’t really get people to commit, you know, 45 minutes a day for 10 days at a time. So we have to do it for practical purposes as one class That’s one of the reasons we offer that package options so you can get access to the streams recording the DVD set the state specific content on DVD, as well as the live online experience so you can have live q&a. That in my opinion is the best option and then you can rewatch the DVDs your convenience doesn’t cost you a penny more. Again, you can learn more about that at law of self defense comm slash live online.
Steve bean asks, on Facebook, you mentioned touching one’s firearm to cause someone to feel threatened didn’t democrat McCloskey keys create the same threat. What I mean by putting your hand on your weapon, it’s not necessarily that it’s unlawful but that it meets the it checks the boxes for a criminal charge in most states that criminal charge would be aggravated assault, you’ve put another person in fear. Under Missouri law they take a slightly different approach. They call it unlawful use of a weapon but the underlying elements the same, you’ve put someone in fear of the gun. That, in fact, is exactly what they’re charged with because of that conduct. Yes. So did that create that legal risk for them a class case? It absolutely did they engage in that conduct. Now they find themselves criminally charged.
Now, a responsible prosecutor would look not just at whether their conduct meets the elements for the criminal charge, but we’ll also look at their likely legal defenses that the prosecution would have to overcome at trial. And of course, here the likely legal defense is defense of persons in defense of their dwelling. And the the strength of that legal defense strikes me as overwhelming on the facts of this case. So a responsible prosecutor would look not just at the criminal narrative, the narrative of guilt but also at the narrative of innocence, do a balancing and come to the conclusion that while the narrative of innocence overwhelms the narrative of guilt, I’m not going to waste my time and these people’s money by bringing them to trial.
Unfortunately, what we have in Missouri is a politically motivated prosecutor who’s just looking to raise political Capital, gain a win for her team use the processes the punishment. So she’s looking only at the narrative of guilt and ignoring the legal defense, at least up to the trial. Once they’re a trial, of course, she’ll be compelled to overcome that legal defense, which seems extremely unlikely. But maybe she doesn’t care about whether or not she gets a conviction. Maybe she only cares about the political capital.
John Gammon mentioned Soros bought that prosecutor well source certainly financed that prosecutor. It’s one of the dilemmas we have in the legal profession right now. Most of these prosecutor races involve perhaps 10s of thousands of dollars, usually only around $10,000 $20,000. And then sorrows gives one of the most radical candidates for that prosecutor position 100,000 $200,000 and blows the race out of the water.
That’s how the Soros backed candidates are winning in all these cities. It’s not because the populace independently decided we want this kind of lunatic, this radical political operative to be our local prosecutor. It’s because, you know, people don’t know what they’re voting for half the time and they see all these commercials favoring, you know, Kim Fox in Chicago, or Kim Gardner in St. Louis, and they sell I recognize that name and they check it off in the ballot, and then the radicals one, and now you’re all subject to that person’s radical decision making politically motivated decision making. It’s a travesty.
And I hope people figure out a way to address that because it’s prosecutors have unbelievable almost unlimited discretionary power in deciding who to charge and who not to treat arge like the the smallest case in Chicago, Kim Fox just decided not to charge Smollett for his efforts to generate a hate filled race war in the United States of America. And Kim Gardner in St. Louis has the discretion to charge McCloskey in the case that when you look at both sides of the narrative is clearly overwhelmingly in favor of lawful display of those firearms. But when you elect politically motivated prosecutors, you get politically motivated prosecutorial decisions.
Okay, folks, I think I’ll wrap up, we’re a little over an hour Sorry about that. I try to be respectful of everybody’s time. I would just remind you we do this every every Thursday at 4pm. Eastern time again, you can send in questions for our consideration for future shows that show at law of self defense comm that’s an email address. If you’re a member, a platinum member, you can use the Platinum q&a forum for that same purpose and get your question prioritized.
In the meantime, I just remind all of you before I let you go that if you carry a gun for personal protection and I certainly do have every day in my life and the reason I do is so that I’m hard to kill so my family is hard to kill we’ll have the carry against your hard to kill folks you owe it to yourself and your family to also know the law so that you’re hard to convict Alright folks, until next time, I am attorney Andrew Branca for Law of Self Defense. Stay safe