In this weekly episode of the Law of Self Defense News/Q&A Show for August 6, 2020, we cover these use-of-cases related stories in the news, and answer questions asked live during the show:
- George Floyd: Just-released body camera footage
- McCloskeys: Prosecutor’s fights against efforts to dismiss felony charges
- Michael Brown: Newly elected prosecutor re-opens case–promptly re-closes case
If you’d like to submit a question for consideration in a future News/Q&A show, you can always send that to our attention at:
There is (or shortly will be) a transcript below my signature, for those of you who prefer to read rather than view. Law of Self Defense Members also receive this, and all, our content in audio format using the members-only Law of Self Defense Podcast.
Enjoy the show!
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict!
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program
Welcome, everybody to the Law of Self Defense Q&A Show for August 6, 2020. We have a ton of stuff to cover. There’s a little slide for today’s show. And there’s my name and company.
I am attorney Andrew Branca for a Law of Self Defense. This is the one show we do every week that’s open access. So you don’t have to be a Law of Self Defense Member to access this show. , welcome all of you people who are not yet Law of Self Defense Members.
Again, I’m attorney Andrew Branca. So, thank you always loyal fans for such kind and generous applause. I really appreciate it.
So for those of you unfamiliar with Law of Self Defense, we’re a law practice that does nothing but use-of-force law. We don’t do generalize criminal defense work. We don’t do DWI, stuff like that, nothing but use-of-force law meaning defense of yourself-defense of others, defense of property period.
And a lot of what we do is educational in nature. We try to inform the public about the actual Law of Self Defense, the laws governing use-of-force, so that they know where those legal boundaries are, so that they can effectively defend themselves, their family, their property, well within the legal boundaries, so they can make themselves both hard to kill and hard to convict. That’s kind of our tagline.
We do a number of shows every week. I’ll talk more about those later.
Law of Self Defense Membership: Just 99¢
For those of you who might be interested in becoming a Law of Self Defense Member, it’s very inexpensive. In fact, you can sign up for a two-week trial for only 99¢, with a 200% money back guarantee, get more information on that by clicking the image or link below:
But today’s Thursday show, every Thursday at 4pm Eastern time, is our News and Q&A Show and we broadcast this live on the Law of Self Defense Members dashboard, but also in the interest of open access on Facebook, on our Facebook page. We’re trying to do the same on our YouTube channel, but apparently still having some technical difficulties there.
Also, we after the live show, it usually takes us a couple hours, we’ll put up a recorded replay of the show. So for those of you who can’t make the 4pm, Eastern time live show, you can access the replay whether you’re a Law of Self Defense Member or not, either at the Law of Self Defense Blog, or on our Facebook page or on our Law of Self Defense YouTube channel. So something to keep in mind there.
As I say, we have a ton of stuff that we’re covering today. For those of you who may not have seen the kind of intro or prep video we did earlier today. Let me just pull that up in summary, so all of you can make a decision about whether or not you’d like to stay because it will be a little bit of a time commitment today. We’ll probably do about an hour. I won’t let it go past an hour if I can in the interest of respecting all your time. It’s possible.
We may not get to the question portion today, folks because there is so much news to cover. But if you are a Law of Self Defense Platinum-level Member and you sent in a question using that Premium Q&A Form that we provide for you, if I don’t answer your question on the air, I will answer it personally. So you don’t have to wait for a response until next week for your question.
So the news items we’re going to cover today include the George Floyd case, particularly his just-released body camera footage, the McCloskey case at the St. Louis and the prosecutor’s fight there against efforts to dismiss the felony charges against them, the Michael Brown case is back in the news again, believe it or not, the newly-elected prosecutor there announced he was reopening the case and came up with some interesting findings, conclusions this week.
I will talk about Los Angeles district attorney Jackie Lacey and her husband being charged with assault for muzzling with a pistol Black Lives Matters protesters. And we’ll talk a little bit about the reshot Brooks case in which former Atlanta police officer Ralph is suing for wrongful termination.
If we get to that last news story, the questions we got this week are really interesting. One of them was involving the use of unusual non deadly weapons against protesters. And by unusual, I mean things like pepper balls fired out of pink guns, smoke grenades, things that we normally don’t associate as non-deadly weapons appropriate for non-law enforcement use.
Another question asked about in the context of last week’s show, where we talked about protesters using high powered lasers to as effectively deadly weapons to blind law enforcement officers. We got a question about what about a normal weapon mounted laser laser mounted on the pistol for example, can that be used as a non-deadly defensive weapon and be shining on an aggressors body? If you shine it in their eyes? What about the fact that by doing that you’re also, you know, unavoidably muzzling them with the gun as well.
We got another question that asked about Andrew, you talk all the time about interacting with the police in the aftermath of a use-of-force event what we might want to say or not say, but what about our spouse? What about our wife? Is there one of our kids there? What should they say to the police, if anything?
And then a final question about whether or not a defense lawyer can object to a prosecutor statements during closing arguments. Again, we may not get to those questions. Those are the ones in the pipeline, we’ll see how the show goes.
[AFB: In fact, the show did not get to the lined-out content above.]
Sponsor: CCW Safe
Before we dive into the show proper. However, I am obliged, of course, to mention the sponsor of today’s show, and that is CCW Safe. CCW Safe is a provider of legal service memberships what many people mistakenly call self-defense insurance. In effect, they promise to pay their members legal expenses if the member is involved in the use-of-force event and those expenses start big and get bigger folks.
The most common cases I consult on are aggravated assault with a weapons case. These are cases where generally usually no shots were fired, nobody was hurt. But the defendant, the client drew their gun under questionable circumstances, they’re charged with aggravated assault with a weapon. That’s good in most states for a sentence of as much as 10 or 20 or more years in prison.
And these are people who’ve never been in trouble in the law before a day in their lives. And now they’ve had to come up with a retainer for their lead counsel in an amount ranging from $30,000 to $50,000. For pre-trial expenses, folks, that’s not for going to trial. That’s for getting to the decision point of whether you’re going to trial, just multiply that for trial.
And if you’ve actually killed someone in self-defense, and you’re facing a manslaughter or murder charge, it’s extremely easy to go through $100,000 or $200,000 pre-trial.
Now maybe you have that kind of money stuffed in your mattress, but if you don’t, it can be very helpful to have a financial partner who can provide the monetary resources and other resources you may need to fight that legal battle the way you want to fight it as if your life depended on it because it really does. That’s what CCW Safe does.
There are other companies out there that offer similar services. I’ve looked at all of them. Based on my analysis, CCW Safe was the best fit for me, I’m a member of CCW Safe. My wife is a member of CCW Safe. Now having said that, whether they’re the best fit for you is a decision only you can make.
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George Floyd: Body Cam Video
Alright folks, let’s jump first into this George Floyd case. So, as you may know, within the last day or two, the body camera footage from one of the officers has been released. It was released initially by the British press, now it’s everywhere. I’m not going to show the video here in the class because I don’t want to step through all 18 or so minutes of it frame by frame it would take far too long. I will embed the video however in the text version, the blog post version of today’s show, which like the show the video itself is open access so anybody can access the blog post of today’s show at Law of Self Defense comm slash blog. So if YouTube or other places dumped the video, you know you’ll be able to find it at law self-defense.
Now, I have to say when I first saw this case it was really interesting to me because what I perceived happening was an unbelievable knee-jerk reaction to those early George Floyd videos.
Apparently the narrative we’re supposed to believe is that Officer Chauvin simply committed a cold-hearted racial murder in the middle of the street in front of scores of witnesses. While he knows he’s being filmed by many cameras, and he did it by crushing Floyd’s neck with his knee, and suffocating Floyd to death. And this racist murder occurred while three other cops either just stood around and watched or actually facilitated the racist murder.
Really? I mean, does that strike anybody as likely? Would such a vicious racist have had a years-long career in the police department before this fateful day? I mean, police departments now keep racist on board? Is there any actual evidence to support any of these claims?
Is there evidence that Chauvin is a racist, independent of this video? Is there evidence in the video that he’s a racist? Does he say anything racist? If so, where is this evidence of racism?
Is there evidence that Chauvin applied life-threatening pressure to Floyd’s neck? How much pressure? How would you know? Where is that evidence? If you kneel on a bathroom scale, does the scale show your full body weight? Or does it show a highly variable fraction of your weight? Anywhere from half your weight to zero of your weight, depending on how much pressure you’re actually applying?
Certainly, neither of the medical examiners’ reports, neither the one by the state nor the one by Floyd’s family showed any evidence that Chauvin’s knee caused Floyd life-threatening injury or indeed any injury at all.
By the way, the knee technique was permitted explicitly under Minneapolis Police Department policy, as I’ve covered elsewhere and other blog posts on this case.
On the other hand, is there an explanation for Floyd’s death that requires neither racism nor murder, an explanation that is actually supported by evidence as opposed to this crazy narrative of a racist murder in the street in front of tons of witnesses?
Like maybe Floyd’s existing cardiovascular disease, maybe his life-long addiction to drugs, maybe his current intoxication with life-threatening levels of methamphetamine and fentanyl, fentanyl being a particularly deadly drug in the system. Floyd’s decision with this physiology and toxicology to forcibly resist lawful arrest for some 10 minutes. I have to wonder Floyd had decided with that physiology and toxicity to run up a flight of stairs with that effort alone have killed him.
If Floyd had popped a cyanide pill into his mouth and then Chauvin had kneeled on his neck, would we still say it was the knee that killed Floyd? And remember, the state’s going to have to prove Chauvin guilty beyond a reasonable doubt.
Is it common for suspects to resist arrest? I think it is.
Is it common for suspects to feign illness, feign injury, feign difficulty in breathing? I think it is.
Even if Floyd was genuinely suffering difficulty in breathing, which I believe he was, is it possible that it was his physiology, his toxicity, his fighting lawful arrest, that induced that difficulty in breathing rather than Chauvin’s knee?
We know from the body cam video that Floyd was complaining about a difficulty in breathing while he was still on his feet resisting arrest, and long before he was on the ground with Chauvin’s knee on his neck.
From Chauvin’s perspective, do people who want to murder you, or people who are knowingly creating a risk that you will die because of their conduct, first call for an ambulance? Do they express concern with their colleagues that you may be suffering from excited delirium?
This body camera video is entirely consistent with these officers having done not a darn thing wrong, much less having committed a racist murder, or racially motivated manslaughter or even a negligent manslaughter. And by the way, the original videos were also consistent with innocence if people didn’t want to scream emotional reactions like a stampeded herd of animals, rather than apply their critical thinking abilities.
Of course, the whole world now has been told relentlessly that this is obviously a case of racist cops committing a racist murder. So now should the officers be acquitted, which seems to me not unlikely, it seems to me the state’s actually going to have some difficulty if they get themselves in front of an actual unbiased jury, the state’s going to have considerable difficulty given this evidence proving guilt on any of these charges beyond a reasonable doubt.
So if these cops are acquitted now, the same public that’s been told relentlessly, that these are obviously racist murderers, is going to be shocked and outraged, just as they were shocked and outraged when George Zimmerman was acquitted, for much the same reason, because they’ve been lied to for months about the purported facts of that case.
They’ve been told for months, that George Zimmerman was obviously a racist murderer of Trayvon Martin, for no other reason than Trayvon Martin had committed the crime of having Skittles, wearing a hoodie, having iced tea.
Now, if all you read was news, well, you might believe that too, if you actually watched the trial, like I watched the trial, if you looked at the evidentiary file, like I looked at the evidentiary file, you weren’t at all surprised by the verdict. We’ll come back to that in a moment.
Unfortunately, I think the way this has been framed by the media and those who gain advantage from racist hysteria and outrage in America, we’re going to see much the same propaganda and ultimately outraged reactions to an acquittal in the George Floyd case, as well.
So, I said I wasn’t going to play the video because it’s very long, but I did as I watched it, I took a few notes, a little bit of kind of a primitive transcript. I just want to step through that.
So that within a couple minutes coming into the body cam video, we see Floyd sitting in the driver’s seat. So, he’s sitting in the driver’s seat of a car. This is the same George Floyd who would in a few minutes tell the police he was incapable of getting into the patrol car because he suffered from claustrophobia. Does that seem credible at all, given that when the police first approached him, he’s already sitting in a vehicle? I think not.
From the first minutes, Floyd is resisting, he’s resisting forcibly and is resisting lawful commands to show his hands, to comply, to stop twisting, to stop twisting to get his hands near his pockets, which the cops point out is a legitimate reason for them to be concerned. He doesn’t have any ID on him. Wasn’t just driving? He’s driving without ID on top of the apparently fake bill he tried to use in the store. By the way, when you use the fake bill in the store, that store owner is stuck with that he, takes that loss, he takes that hit.
So Floyd’s acting in a way that makes the police nervous. They tell him you’re acting in a way that’s making us nervous. And he continues to act that way throughout this encounter, reaching for his side, giving nonsensical responses, he’s got foam around his mouth. That’s when the cop think maybe he’s on something, they’re concerned down that he’s on drugs. When people aren’t drugs, they act irrationally, sometimes with superhuman strength, not reasonably.
So now the cops are concerned about this, too, as we’ll see in a few minutes of cops are also concerned eventually that he might be suffering from what’s called excited delirium. A common reaction to suspects who are violently resisting and who are at high toxicity levels of drugs in their systems.
The cops don’t throw Floyd to the ground, Floyd repeatedly drops himself to the ground as part of his resistance. The cops repeatedly are telling him to sit still, stand up straight, stop resisting. Floyd continues to insist he did nothing wrong. Suspects do that frequently. Insist, “I didn’t do anything, officer, why are you doing this to me?” Yes, folks they do.
Again, while Floyd is still on his feet while the officers are trying to get him to the car ,while the officers are applying no pressure to his neck or airway in any way, Floyd is already complaining “I can’t breathe.”
Before he goes to the ground where he’s laying down in the footage we’ve all seen with the knee on the neck, he says I can’t breathe at least 5, 6, 7 times. That’s not the officers causing him not to breathe. That’s Floyd’s physiology, toxicity and resistance to lawful arrest, causing him difficulty in breathing.
So if that difficulty in breathing is happening for internal reasons it’s no surprise that it continues after the cops have him on the ground.
Do the cops have their hands on Floyd’s body? Yes. Is that a standard practice for dealing with suspects you believe may be suffering from excited delirium? Yes, one of the causes of death of excited delirium is over exertion of the large muscles of the suspect. So, you try to put three, four cops on the suspect to immobilize them, so they can’t over exert and end up killing themselves from the excited delirium.
Is it common for cops to put a hand on a suspect, applying essentially no pressure, just so they have a contact sense of where that suspect is what that suspects doing is the suspect trying to move away? Absolutely, that’s the case. So just because a hand or knee is on a suspect, doesn’t mean it’s applying some substantial amount of pressure.
Meanwhile, of course, the cops being concerned for Floyd’s health, hardly an indication of racist murderers, have already called for an ambulance for him. By the time Floyd stops moving, and there’s a concern that he may be in serious trouble, one of the cops checks his pulse, again, if you’re trying to kill someone do you check their pulse but at that point, the ambulance is only a minute and a half away.
What are the cops supposed to do? With a minute and a half before professional EMF shows up? I would suggest not much. I would suggest, in fact, they’ve probably been trained not to do anything in these circumstances, when EMS is going to be there momentarily. And of course, that’s how the video ultimately ends.
So, from my perspective, as a criminal defense attorney, I see no prospect that any of these officers in front of an unbiased jury would be found guilty of any of these charges beyond a reasonable doubt. I think the whole thing is nothing but political theater of the worst possible, most divisive, sort, and the people engaged in it ought to be ashamed of themselves, except, of course, they do this because it gains them wealth, fame and political power. So don’t expect it to end anytime soon.
Okay, before I go on to the next story, I see Wayland Chang is on the Law of Self Defense Membership area. Wayland is a public defender from California took my Law of Self Defense LEVEL 1 Class back in Sacramento some time ago. And a frequent or frequent participant in our Law of Self Defense show. So welcome Wayland, a real go to court lawyer. Let’s see. Okay, no real questions there.
Let me go through the Facebook comments before I move on to try to keep up with things. Ken Granada asks, how was this video not a part of the original case? You know, we’re going to, I think, come back to that., Ken, but it’s an excellent question, isn’t it? Why was this held back? Why did it have to be leaked in order for the public to see it? It was in the possession of the prosecution. So, if they held it back, it was only can be because they thought that [holding it back] was advantageous to them.
They know they’re going to have to face it at trial. So why would they hold the back now when they know they’re going to have to face it a trial? I would suggest it might be because their actual motivation and pursuing this case is not based on legal merit, but based on political advantage and capital. I’ll talk more about that in a moment.
Steve notes that the store owner who got the bad bill is not out not only out the bad bill, which I mentioned, but also the merchandise. Excellent point.
Sean asked, now that this poor-quality video has been leaked to the officers [can the defense] ask for the actual video. Yeah, Shawn, they always would have been privileged to get a hold of the actual video. Now, the timing of when they get it, you know, the prosecution might try to stall things. And they might be able to stall things for quite some time. They might not be able to, but given that they didn’t want the public to see this, there’s ways that, things a prosecutors can do to kind of tie this stuff up. By the time you get to trial, however, the prosecution would have been compelled to provide the video to the defense. Let’s see.
Jack mentioned Floyd would have died if he had been laying peacefully in his own bed based on the levels of fentanyl in the system. That seems likely folks, and I don’t see how the prosecution overcomes that toxicity to prove an intentional killing or negligent killing beyond a reasonable doubt by these officers simply beyond me. Okay, so let’s jump back into things.
That was the George Floyd portion of today’s show before we go forward, however, because I know a lot of you are maybe not familiar with Law of Self Defense, not familiar with some of these legal aspects that we talked about.
FREE: Five Elements of Self-Defense Law Infographic
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McCloskey Update: Prosecutor Fights Dismissing Charges
Now, with that out of the way, let’s jump into the next case. I wanted to talk about McCloskeys. The McCloskeys, of course ,are the St. Louis couple, apparently quite wealthy couple who were standing on the front lawn with an AR and a pistol facing off against a trespassing mob of Black Lives Matters protesters, all in the context ,of course, of buildings having been arsoned within blocks of their home, BLM having been engaged in violent protests in their community and all over the country.
The McCloskeys say they were in fear of their safety, fear their home being set a fire. This was private property. This was not a street open, generally open to the public. These were trespassers on the property, they had apparently broken a fence to get in. All of them were unlawfully present without privilege.
So then the McCloskeys are filmed out on their lawn holding these guns, pointing them occasionally at members of the crowd, unfortunately pointing them occasionally at each other, it would appear which is not great. That’s a completely separate issue, of course.
And now the protesters, of course, have been saying, Hey, we never did anything wrong. Well, maybe the trespass, but you can’t shoot someone for simple trespass. We never threatened the McCloskeys. We never indicated any degree of harm to them. They had no justification for pointing those guns at us.
And if you believe that narrative, then it might seem that the criminal charges that have been brought against the McCloskeys might seem reasonable, specifically, an unlawful use of a weapon under Missouri statute § 571.030. And the relevant portion of that statute is that a person commits the offence of unlawful use of a weapon if and one of the conditions is if they exhibit in the presence of one or more persons any weapon readily capable of lethal use in an angry or threatening manner.
[AFB: The Missouri AG has filed a motion to dismiss these charges, and Circuit Attorney Kim Gardner has just filed her response to that motion, embedded below. Gardner is largely correct on the legal merits, even if I think her judgment is politically motivated.]
Now, if you believe the protesters were, you know, acting completely unthreateningly, well, then the McCloskeys would not be privileged point guns, then they would have met the elements of this particular crime. It’s a felony good for four years in prison. And this is the criminal charge that has been brought against each of the McCloskeys.
Now an important thing to keep in mind, of course, have legal process works is what I sometimes refer to as the yin and the yang of the charge and the defense. First you have the criminal charge, then the defendant raises the legal defense. If there’s evidence to support the criminal charge, then we ask, well, is there evidence to support a legal defense to that criminal charge?
And our criminal justice system is an adversarial system. So, the prosecution argues the narrative of guilt based on the evidence that supports the narrative of guilt. The defense argues the narrative of innocence based on the evidence that supports that narrative of innocence. The judge decides what law is to be applied and the jury makes the determinations of fact, based on the evidence, they see what they believe to have been proven or disproven. Those are the simplistic roles of everybody involved.
Now, strictly speaking, the prosecution’s only mandate is to argue that narrative of guilt, they’re not obliged to also argue a narrative of innocence. Now, sure, the prosecution’s theoretically obliged to disclose exculpatory evidence. So, if the prosecution investigates, and they discover, for example, evidence that the defendant was out of the country, they were in Spain when this killing happened, and therefore they could not possibly have been the murderer. Well, the prosecution is required to disclose that evidence. And such a fact, of course, would be catastrophic, devastatingly destructive to the prosecution’s case.
But if you don’t have that kind of decisive evidence of innocence, so long as it’s ambiguous, there’s any view of the evidence that’s consistent with the charges, no matter how unlikely that view of the evidence may be, no matter how incredible, in the literal sense not credible, that evidence may be? If there’s any evidence to support the elements of the crime, then the prosecution is free to use that as a basis to drag a suspect into court, make them a criminal defendant, and compel that defendant to raise whatever legal defenses they want to raise to avoid the conviction.
Now, that’s the simplistic approach, the prosecutor argues only that the narrative of guilt considers only the narrative of guilt. If it checks off the elements of the crime, they drag you into a criminal trial.
Traditionally, however, prosecutors did not take that kind of simplistic approach, considering only the narrative of guilt, if for only for purely practical purposes, because the prosecutor knows well, I could sit at my desk here and consider only the narrative of guilt. But when I get into the courtroom, well, then I’m going to have to overcome the narrative of innocence to so I may as well consider that now. Ultimately, I’m going to have to face those legal defenses and overcome those legal defenses if I want to prove the defendant guilty beyond a reasonable down.
So the prudent prosecutor considers not just the narrative of guilt, but they also consider the narrative of innocence. And if the narrative of innocence seems sufficiently compelling to make proving guilt beyond a reasonable doubt unlikely, and therefore getting a conviction unlikely, well, then why expend all that time and money and resources just to end up at a very predictable, not guilty verdict? After all, the prosecutor has 200 other cases on his desk, that are easy wins that he can take to trial. Why take this hard case that doesn’t look like a guilty verdict to trial?
But that kind of prudent, informed professional view of both the narrative of guilt and narrative of innocence, which we’d like to believe all prosecutors would do, taking that view, kind of presumes that the actual mission of the prosecution of the trial is a guilty verdict.
But what if a guilty verdict is not the goal whatever. What if the goal is, instead the political capital, the political advantage, that might be gained by simply going through the motions of the trial, regardless of the verdict?
Now, I want to hark back to the George Zimmerman case, because in that case where George Zimmerman had shot and killed Trayvon Martin, the local prosecutor, the police, detectives, investigators, others set up basically a team looked at all the evidence looked at the law, and they concluded that the evidence in that case was overwhelmingly consistent with lawful self-defense.
So they declined to charge indict or prosecute George Zimmerman. Could they have charged indicted and prosecuted Zimmerman? Sure. All they’re obliged to do is say, well, Zimmerman shot Trayvon Martin period, so that’s enough to go to trial.
But what would have been the point? Because they know when they get to trial, Zimmerman is going to show the jury all the evidence consistent with self-defense. And I can tell you as someone who looked at that entire evidentiary file, who watched every minute of that trial, the case for self-defense was not just sufficient to make it hard to disprove self-defense beyond a reasonable doubt, it was absolutely overwhelming.
The narrative of self-defense was so compelling based on the actual evidence as to make conviction almost impossible. And that’s why the local prosecutor declined to charge indict or prosecute george Zimmerman. But that local prosecutor was considering the actual legal merits of the case.
Let’s consider now Angela Corey. Angela Corey was a prosecutor in an entirely different district, some two-hours drive away from where these events happened. And Angela Cory saw this case very differently than the local prosecutor. Cory was running for re-election. And she was going to lose.
Much of the electorate in her jurisdiction was black., and Corey had made several prosecutorial decisions that were very unpopular in the black community. She’d prosecuted a 13-year-old black boy for murder, she was prosecuting Marissa Alexander, and other similar cases.
There were marches in the black community against Corey’s re-election. Her political fortunes looked dim, to say the least.
But in the Zimmerman/Martin case, Angela Cory saw an opportunity to regain lost political capital. She could prosecute Zimmerman as a racist, a white Hispanic murderer, who’d killed this 17-year-old (well muscled) child, Trayvon Martin, for the crime of having Skittles and iced tea or wearing a hoodie. I’m sure you all remember the ridiculous headlines at the time of the case.
Well, I can tell you again, having reviewed the entire evidentiary file and watched every minute of that trial, there was never a realistic prospect that the state could overcome Zimmerman’s claim of self-defense beyond a reasonable doubt.
Indeed, it’s noteworthy that Corey opted to not present the case to a grand jury at all. Instead, she used a sworn affidavit called an information to simply allege purported facts, purported facts that would later be demonstrably proven untrue, but to allege purported facts to get Zimmerman charged with second-degree malice murder, which for our purposes we can read as “racist murder.”
Now, from my perspective, it seemed like the whole world was shocked when Zimmerman was unanimously acquitted by the jury of all charges, only hours after going into deliberations in a case that had spent 14 months of investigation and weeks of trial. Why was the public shocked? Because they’d only ever heard the narrative of guilt.
In the courtroom, however, the jury and folks like me who actually watched the trial, also heard the narrative of innocence. And if you heard both, innocence blew guilt out of the water, it wasn’t even close.
So, of course, Zimmerman was acquitted. The prosecutors lost the case.
Does that mean that Angela Corey lost?
Well, yes, if you mean did she lose in a legal context.
But what if she never actually cared about the legal context? What if she always knew that she never really had a case of guilt? What if her actual goal was not legal, but political, because her actual goal was political. In that sense, Angela Corey did not lose, she won. Because in a political race she had seemed almost certain to lose, she instead won re-election.
Now in a few moments, I’m going to talk about the Michael Brown case, because that’s in the news as well. That’s one in which the then-prosecutor in that jurisdiction, Robert McCulloch, presented to the grand jury both narratives, the narrative of guilt and the narrative of innocence, in the shooting of Michael Brown, and we’ll talk about the outcome legal and political in that case in a moment.
But let’s come back now to the McCloskey case. So here in the McCloskey case, we have this Prosecutor Kim Gardner, richly financed by George Soros in her election campaign to become prosecutor, being richly financed again by George Soros in her re-election campaign.
But we have this circuit attorney Kim Gardner, and she has elected to exercise her prerogative to argue only the narrative of guilt. And folks, that’s all she’s required to do. That’s how the system is set up. We hope that prosecutors will can also consider the narrative of innocence. We hope they will use their discretion not to prosecute people in cases where a verdict of guilt seems impossible not to just put people through the process as a punishment. But they’re not required to also present to the public or consider the narrative of innocence, at least not until she gets the trial.
If she were a prudent prosecutor interested in the legal merits of the case, well, then she certainly would also consider the narrative of innocence because she’s necessarily going to have to overcome that narrative of innocence, once she’s at trial facing a defense, if she wants to achieve a conviction.
But what if she’s not interested in the conviction? What if she’s not interested in the legal merits of the case, that’s not her goal is to get a conviction? I mean, I’m sure she’d appreciate a conviction as a bonus, but whatever actual goal is simply to gain political capital by going through the motions of prosecuting them a classic case. After all, she gets that political capital whether the McCloskeys are convicted or not convicted, just like Angela Corey got reelected even though Zimmerman got acquitted.
And if doing that means that Gardner has to drag the McCloskeys into court on felony charges she knows with near certainty she can’t win on, in a process that maybe not for the McCloskeys because they appear to be wealthy, but in a process that for most people would be utterly life destroying and financially ruinous, well, so what the ends justify the means don’t they?
Self-Defense Immunity in the McCloskey case
Now one aspect of this I haven’t seen mentioned anywhere else, I’m not saying nobody else has talked about this, but I just haven’t seen it, is self-defense. immunity.
So, self-defense immunity is a process that in part is intended to address this difficulty, the freedom, the discretion, a prosecutor has to drag someone into court, expose them to the process as punishment, destroy them financially, destroy their reputation, even if the case for self-defense is overwhelming, because we don’t know that it’s overwhelming in the traditional framework until we have a verdict from the jury, and by then you’ve suffered all the damage of the trial.
What self-defense immunity does is it acts as a mechanism to allow the system to settle this question on self-defense, to settle the self-defense debate, pre-trial, so without incurring the expense and time and risk of a trial itself.
Under self-defense immunity, you request an immunity hearing, you present your case of self-defense at that hearing. The state presents its counter arguments. The hearing judge decides if it’s more likely than not based on the evidence and arguments that it was self-defense.
Which by the way is a much higher threshold than self-defense needs to meet a trial. So at a self-defense immunity hearing, it has to be a majority of the evidence supports self-defense, in order for you to be granted immunity. At trial, the prosecution has to disprove self-defense, not just by a majority of the evidence, but beyond a reasonable doubt. So, you only have to maintain a reasonable doubt a trial to win on self-defense, a much lower threshold than you need to get immunity pre-trial. So that’s the way the legislators have set the system up.
But if the hearing judge at that pre-trial immunity hearing decides self-defense has been shown by a majority of the evidence, then they grant immunity and depending on the state that can be immunity from criminal prosecution or civil liability or both.
Now Missouri has a self-defense immunity law and applies in both the criminal prosecution and the civil liability context. That statute is § 563.074. Justification as an absolute defense, and that provides that if a person uses force as covered in the self-defense statute, and they were justified in using such force, that fact shall be an absolute defense to criminal prosecution or civil immunity.
563.031. Use of force in defense of persons is Missouri’s use-of-force in defense of person statutes or their self-defense statute. And that’s unquestionably going to be what the McCloskeys raise as a defense to this criminal charge of unlawful use of a weapon. “We were acting in self-defense.”
Missouri’s self-defense statute, the way it’s framed is, it has two initial paragraphs. The first paragraph, paragraph one, talks about just generically the use-of-force in self-defense, by which they really mean non-deadly force in self-defense.
And then paragraph two talks about the use of deadly force and self-defense.
So you have to meet all the conditions of paragraph one, you have to be defending yourself from a reasonably perceived threat of imminent unlawful force, then paragraph two adds additional conditions before you can use deadly force in self-defense.
And one of the conditions that qualifies you for the use of deadly force in self-defense is that the force you’re using is being used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that’s owned by the individual claiming the justification under self-defense.
Well, all those Black Lives Matters people were there trespassing unlawfully, they unlawfully entered that property. So it certainly seems that the McCloskeys have checked the box that would justify the actual use of deadly defensive force, which in any case, they didn’t do, right? They didn’t actually shoot anybody. But if you were privileged to use deadly force, you’re certainly privileged to merely threaten deadly force.
So again, their conduct might arguably check the boxes for this charge of unlawful use of a weapon but their conduct also checks the boxes of the deadly force in self-defense statute which justifies what would otherwise have been an unlawful use or display of weapons.
So, the good news for the McCloskeys, and let me take a step back, so this is precisely the kind of scenario envisioned by a self-defense immunity provision like Missouri’s § 563.074.
For sure, the prosecution has the narrative of guilt, that they could explain the court. But the narrative of innocence, the narrative in support of lawful self-defense, is so compelling that it’s clearly achieves that threshold of by a preponderance of the evidence. Don’t get dragged into trial to settle that, request that pre-trial immunity hearing before the trial, make your case or self-defense, show the hearing judge that self-defense is demonstrated by a preponderance of the evidence, get granted immunity from criminal prosecution civil suit, and that’s it the whole process.
Now, the lawyers in the audience will say while there can be good reasons for not requesting a self-defense immunity hearing, and that’s absolutely true. And that’s too technical for us to get into in this particular show, given the time we have remaining available.
But that is precisely the kind of scenario that self-defense immunity is intended to address, a case where technically the prosecution is privileged to drag you into court, but once in court, the case for self-defense is so overwhelming that a conviction is almost impossible. Let’s settle that question without having to go through a full-blown trial by doing it in the self-defense immunity hearing.
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:
Michael Brown: Case Re-Opened, Case Re-Closed
Okay, let’s jump in now to the next story I want to cover, and that is the Michael Brown case. So this is a really interesting case. You’ll remember that Michael Brown is the “hands up, don’t shoot” propaganda case, in which Brown attacked Police Officer Darren Wilson fought him for his gun in Officer Wilson’s patrol car, briefly fled, and then returned to charge at Wilson again, at which point Wilson shot and killed Michael Brown in what was obviously a lawful use of deadly defensive force.
Now when Officer Wilson shot and killed Michael Brown, the prosecutor in that jurisdiction was a gentleman called Robert McCulloch. He’d been the prosecutor there in St. Louis forever. And Robert McCulloch decided to do what we would hope prosecutors would do.
He presented the case to a grand jury. Frankly, I don’t think that was necessary. But again, we had all the usual, you know, racial and political dynamics around the case, white police officer shot a black man.
So Robert McCulloch presents the case to the grand jury, but he doesn’t present only the narrative of guilt, which he could do. That’s his prerogative. Instead, he presented all the evidence the narrative of both guilt and innocence to the grand jury.
Aand when the grand jury saw all the evidence, the grand jury declined to indict Officer Wilson. I’ll note in passing that later the US Department of Justice of Barack Obama and Eric Holder would conduct their own investigation, and they would also decline to bring any charges of wrongdoing against Wilson.
Now, again, prosecutor McCulloch did not have to present both narratives, he could have presented only the narrative of guilt. And if he’d done that he probably would have gotten in the indictment.
Because an indictment really simply requires the grand jury to consider that if everything the prosecutor is saying is true, if we believe that’s all true, and we don’t consider any defense at all, is there any way this defendant could be found guilty anyway? And if the answer is yes, well, then you get an indictment. And the real battle’s fought out in the courtroom at trial.
The grand jury’s purpose is really just to filter out the kind of impossible cases, where there’s some legal element has not been met for technical legal reasons. So even if everything the prosecution said was true you still couldn’t get a conviction.
But if there’s any greater-than-zero prospect for a conviction, well, traditionally the grand jury hands back a true bill, they hand back in indictment.
But in this case, McCulloch showed the grand jury both sides of the argument, the narrative of guilt and the narrative of innocence, and they concluded no possibility of a conviction, they refuse to indict.
Again, if he had only shown them the narrative of guilt, he probably would have gotten that indictment. But because he showed them both stories, they declined to indict. So, Officer Wilson was not dragged into a trial on murder charges that would have gone on for months, and ultimately ended hopefully in the middle based on the evidence.
Well, what this means is that the people in our society who gain wealth and fame by propagandizing trials based on racial hate lost a tremendous opportunity to spend those months gaining even more wealth and fame and that made them very angry at Robert McCulloch. And their response was to destroy Robert McCulloch.
And that’s what they did, in a professional sense. McCulloch, who’d been the local prosecutor there forever now found himself facing [in re-election] a young black city councilman, well-funded, but with zero prior prosecutorial experience, and McCulloch lost to that Councilman.
That Councilman’s name, now the prosecutor in that jurisdiction, is Wesley Bell.
Well, a key reason that Bell won that seat as prosecutor was community outrage over McCulloch’s decision to not railroad Officer Wilson into a trial where the prospects for conviction of Officer Wilson approach zero.
Indeed, it was claimed that decision was “racial injustice.” That was a key rallying cry of the Wesley Bell campaign, and it served him well. It got him elected. So, when Bell won, one of the first things he did as a new prosecutor was to reopen the Michael Brown case. Obviously, [the thinking goes,] the reason Wilson was not prosecuted must be racial animosity. Bell was going to discover the truth.
Well, after five months, having reopened the Michael Brown case, he announced this past week, a shocking conclusion: There’s no basis for criminal charges against Darren Wilson, based on the totality of the evidence in this case.
Boom, same conclusion everybody else came to. The original prosecutor, the US Department of Justice under Eric Holder, Barack Obama, and now was Bell.
Now some might argue that Bell lost in this instance. He promised to reopen the case if he was elected, because obviously the decision not to indict had to be racist. But when he reopened the case, he too had to close it without charges.
In reality, of course, Bell won. This was never about legal merit. This was about politics, the politics of race. The fact that Bell was obliged to conclude like everybody else, that there was no basis for charges against Wilson was not a loss for him, not compared to what he won.
He won the position as prosecutor in that jurisdiction, and he’ll probably keep that job until the day dies. Or until the day he decides to run for higher office. Maybe governor, maybe US Senator, like Kamala Harris did in California. Right, went from California Attorney General to US Senator of California.
The bottom line, the reason I mentioned this Michael Brown story in the context, the news report this week that the case has been reopened and now reclosed is to bringing to light the fact that the prosecutor Robert McCulloch, who did the right thing, who showed the grand jury both narratives, the evidence for guilt and the evidence for innocence, that guy lost his career.
And the prosecutor who promised to feed the mob the raw meat they demanded. He’s got that guy’s job.
So who really won, and who really lost? And what do these outcomes, these political outcomes, suggest to us about how prosecutorial decision making is likely to be motivated in the future? When people who want to be prosecutors see, well, if I do the right thing, I lose my job. But if I feed the mob, I get the job.
What kind of prosecutors do you think we’re going to get in the future? It is going to be a tough, tough time.
All right, folks. Well, we’re right up on an hour and I’ve gone through most of what I wanted to go But not the last couple of stories. I’m afraid I’m going to have to skip those. They’re less important. In any case, they’re about the Los Angeles district attorney whose husband was just charged with misdemeanor assault. And the former Atlanta Police Department officer Ralph who’s suing his department for wrongful termination after they fired him for shooting a suspect who had was firing a taser at him.
And I’m afraid I’m not going to get to the questions either. The Platinum Members who sent in questions using their priority Q&A form, I will answer those for you offline, if not today than tomorrow, so don’t worry about that.
The rest of you, we’ll keep your questions in the queue for consideration for next week’s show. If you’d like to send in a question for our consideration for a future News/Q&A show you can email that to us at:
The one thing I do want to mention before I let you all go is, if you like this kind of legal analysis and insight, you might consider a couple of options.
Law of Self Defense Membership: Just 99¢
One would be to try out being a Law of Self Defense Member, it’s really inexpensive. It’s 99¢ for a two-week trial membership at Law of Self Defense. After the two-week trial, it’s still inexpensive, it’s less than 10 bucks a month, only about 33¢ a day. But you can at least try it out for two weeks for 99 cents. If you decide you don’t like it in those two weeks, just let us know you want to cancel, we’ll give you back 200% of your money, folks. So, it’s not just a zero-risk proposition, i t’s a negative risk proposition.
Of course, we make that offer because it’s been our experience that once people try us out, they don’t cancel their membership. They like what they get. You can learn more about this trial membership for 99¢ by clicking the image or link below:
And as a member, you get other programming that non-members don’t get. We do a number of Cases of the Week Shows every week, not just Tuesdays anymore, we distribute them over the week. This is where we do a plain-English analysis of appellate court decisions on self-defense cases, defense of others, defensive property, so you can understand how the laws actually applied to real people in real cases. The actual law folks, not the “internet law,” not the “law” your retired cop buddy down the street told you about, which nobody in the courtroom cares about. The actual law of self-defense.
You also get access to our After Action Analysis shows, where we take a use-of-force event caught on video and we do a detailed but plain-English analysis of how the law of use-of-force applies to that video recorded confrontation, so you can see how the law applies to real use-of-force events in the real world.
Again, you can learn more about his trial membership for just 99¢ by clicking the trial membership image above.
LEVEL 1 Live Online Class: Sat. October 3, 2020
Separately from the membership we also a couple of times a year do a Law of Self Defense LEVEL 1 Live Online Class. This is a full day class on use-of-force law, taught in plain-English again, but to my knowledge, the most in-depth course available anywhere on the Law of Self Defense, defense of property, defensive of others.
You can get all that, an expert law school-level education in use-of-force law in one day, folks. It’s about six, seven hours, duration of class. I know many of you in the comments have taken the class if you’d like to say nice things about it. That’s always appreciated.
We only do these a couple times a year, folks, and we have the next one coming up on Saturday, October 3. After that it’s going to be probably six months before we do another one in 2021. Probably late winter.
So, if you’re at all interested in knowing this kind of stuff at an expert level, the equivalent of a law school semester class on use-of-force law, this would be your opportunity. But once the seats are gone, the seats are gone, folks, then you’re going to have to wait until the next one.
If that’s at all of interest, I encourage you to click the image or link below to learn more:
If you like what you see, grab a seat at the October 3 class, that would be my recommendation.
All right, folks, I don’t want to keep anybody too much longer out of respect for your time.
As always, before I go, I do like to remind all of you that if you carry a gun so that you’re hard to kill and that’s why I carry a gun and have my entire adult life, so I’m hard to kill, so my family’s hard to kill. Then you also owe it to yourself to make sure that you know the law so that you’re hard to convict
Alright folks, until next time, I’m attorney Andrew Branca for Law of Self Defense. Stay safe