News/Q&A Show: Dec. 10, 2020

Welcome to this episode of our ONLY open-access content, our weekly News/Q&A Show. A transcript of the show is (or soon will be) available below my signature, for those who prefer to read rather than view. Also, Law of Self Defense Members can access the show in audio form in the members-only Law of Self Defense Podcast.

In today’s News/Q&A Show for December 10, 2020 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:

NEWS

Q&A

  • Can deadly defensive force be used to stop a kidnapping?
  • Is a verbal threat enough to justify deadly defensive force?
  • The 12 strongest self-defense cases of the year?
  • Defendant spent two years in jail before being granted self-defense immunity–why?
  • If prosecutors appeal grant of self-defense immunity, how’s that process work?
  • Can a thrown bottle justify the use of deadly defensive force?

Be sure to mark your calendar to never miss a News/Q&A Show–they air LIVE every Thursday, at 4pM ET of the Law of Self Defense Members Dashboard, our Facebook page, and our Youtube channel, and playback recordings are available on each of those platforms.

A transcript of the show is available below my signature, for those who prefer to read rather than view. Also, Law of Self Defense Members can access the show in audio form in the members-only Law of Self Defense Podcast.

CCW Safe:  Our Sponsor

Now before we jump into the substance of today’s content, 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.

And those expenses start big and get bigger, fast, folks. For example, imagine a case where you were threatened, you displayed your gun, you didn’t fire a shot didn’t hurt anybody—and now you find yourself charged with aggravated assault with a firearm, typically a 10-year felony.

If you’re charged with aggravated assault with a firearm, you’re looking at a retainer to your lead counsel on the order of $30,000 to $50,000. And that’s just for pre-trial work, folks, that’s not for going to trial. If it’s a killing case, where you’re charged with manslaughter or murder, you’re easily looking at $100,000 or $200,000 pre-trial expense, and just multiply that for the trial.

So, if you don’t have that kind of money stuffed in your mattress just in case you’re compelled to defend yourself and your family, it can be useful to have a financial partner standing behind you to make sure you have the resources you need to fight the legal battle, the way you want it fought—as if your life depended on it. Because, really, it does.  And that’s what CCW Safe offers to do.

There are several companies out there that offer similar services. I’ve looked at all of them, as you might imagine, and I found that CCW Safe is the best fit for me personally.  I’m a member of CCW Safe, my wife Emily is a member of CCW Safe.

One of the biggest reasons I favored CCW Safe over other similar offerings is that many of those others simply don’t provide the level resources you need for an adequate legal defense. If you’re looking at a “self-defense insurance” offer that caps out at $150,000 or $250,000, that’s simply not enough for a murder or manslaughter trial if you’ve killed someone in self-defense, as I’ve already discussed. In contrast, CCW Safe promises to pay what the defense costs, period, with no such cap.

And what if you lose a trial and you have to appeal. CCW Safe covers you on appeals again, with no cap. These other companies often say well, we’ll cover you up to the limit of the cap on an appeal. But of course, you’ll have spent all that money at the trial itself. So effectively, there is no coverage for an appeal.

So be aware if your plan that you’re looking at or already have has that kind of cap. I know $250,000 sounds like a lot of money, folks, and it is a lot of money, but not in the context of a criminal defense in the murder or manslaughter case. Read the fine print, folks, and understand what you’re getting—and not getting—from any such offering you’re considering.

Having said that CCW Safe is the best fit for me, whether they are the best fit for you is something only you can decide. But I do encourage you to take a look at what they have to offer by clicking the image or link below:

http://lawofselfdefense.com/ccwsafe

And if you do decide to become a member of CCW Safe, you can save 10% off your membership at that URL http://lawofselfdefense.com/ccwsafe, using the discount code LOSD10.

Enjoy the show!

25% OFF EVERYTHING (*) HOLIDAY SALE

Before we get to the motion itself, I’d also like to make sure you’re all aware of our 25% OFF EVERYTHING (*) HOLIDAY SALE.  We’ve cut the price of almost everything we offer by a full 25%, and there’s not need for a discount code or anything–the 25% discount is baked into the price you’ll see already.  (The only thing the discount does NOT apply to is our Memberships, which remain at their usual low price.).

So if you would like some Law of Self Defense books, or DVD courses or online courses or posters or mugs or hats or whatever, either for yourself or as gifts for loved ones whom you’d like to be hard to convict, you can grab those at a full 25% discount by clicking the image or link below:

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Remember:

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict!

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Law of Self Defense Platinum Protection Program

TRANSCRIPT

Welcome to the Law of Self Defense News/Q&A Show for Thursday, December 10, 2020. Come on in. Make yourselves comfortable. For those of you who may be new here. I am Attorney Andrew Branca for Law of Self Defense. Thank you very much. Thank you, that’s always greatly appreciated.

This is the one piece of content we produce every week that’s free open access available to everyone. Even if you’re not a member of Law of Self Defense, we’re mostly a membership program. But every Thursday we do our Law of Self Defense News and Q&A show. And of course, being that our focus at Law of Self Defense is exclusively use of force law. That’s the entire focus of our criminal practice, meaning defense of self, defense of others, defense of property.

We focus on news events involving use of force that have been in the news last week, and we take questions both questions sent to us beforehand, from our members, or even non-members emailed in to us. And anybody can email us questions for our consideration at show@lawofselfdefense.com, as well as questions that you can submit live during today’s show.

We do this show live every Thursday at 4pm Eastern time. So you may want to mark your calendars to make sure you never miss it. We air it live stream it live on the Law of Self Defense Facebook page, and for Law of Self Defense Members, they can also access it on their membership page over at the Law of Self Defense website, which I certainly encourage them to do. You never know when Facebook is going to get grumpy and decide to cut people off, so we encourage you to make sure you have an alternative way of being able to access our content.

The best way to do that, of course is to be a Law of Self Defense member. Membership is very inexpensive, it’s only about 33 cents a day, maybe 30 cents a day, I haven’t done the math lately. And even better, you can try it for two weeks for just 99 cents, we have a trial membership 99 cents for two weeks. If you decide in that two-week period that it’s not for you rarely happens. But should that occur, just ask us for a refund, we’ll give you 200% of your money back. And as they say, if you like what you see, and you do decide to stay a member, it’s only about 30 cents a day to be a member under the normal non trial rate.

And of course, what you get as a member is a ton more content than you get in this one free show. We produce new content almost every day, 30 to 60 minutes of video, podcast, written blog post on use of force events, the law that explains how to understand that law as plain English, so that it’s actionable for you so that you can make yourself as hard to convict as you are hard to kill. And obviously, that’s pretty important. Not that much point surviving the physical fight, if you’re only going to spend the next 20 years of the rest of your life in prison.

So we don’t want that. We want you to be able to defend yourself action humbly decisively when that physical fights, and also be well positioned not to have to spend much of the rest of your life in prison. You can learn more about that 99 cent, two-week, 200% money back guarantee trial Law of Self Defense Membership by clicking the image or link below:

http://lawofselfdefense.com/trial

If you are watching on Facebook, if you could be kind enough to hit that share arrow that’s greatly appreciated. Hit that like thumbs up, leave a comment with your city and state that helps convince the Facebook algorithm to share our program more broadly, obviously, Facebook won’t be inclined to do that on its own initiative. So we ask your assistance in fooling the algorithm into doing things it would almost certainly probably not due itself.

So we have a number we have a ton of content. We did start a few minutes late today. Sorry, folks, I had a little bit of a technical issue. But everything seems to be working now. We have a ton of content to cover a bunch of stuff in the news, and a bunch of excellent questions and into us from mostly loss of defense Platinum level members, which their questions, obviously, priority. But some interesting questions as well from the general public that were emailed into us. We’ll hit as much of that as we can. And I don’t have time to do all that and read the comments simultaneously. But if you put any questions you have in the comments, I’ll try to periodically check them over the course of the hour.

Usually we try to keep the show to an hour and certainly I’ll time allowing I’ll flip through wouldn’t look for questions before we close out the show at the end. So if you have questions and you’re watching live, I’d encourage you to do that, if you’re watching the playback recording of this, and we do make that available as well both on Facebook and on the Law of Self Defense website, we leave that freely accessible, so even non-members can enjoy the Thursday News and Q&A show. But if you’re watching the recorded play back, I would not encourage you to put questions there because we don’t review the recordings afterwards for questions that have come in.

So, alright, folks, a ton of great News and Q&A content for today’s show.

CCW Safe:  Our Sponsor

Now before we jump into the substance of today’s content, 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. CCW Safe in effect promises to pay their member’s legal expenses if their member is involved in a use of force event.

And those expenses start big and get bigger, fast, folks. For example, imagine a case where you were threatened, you displayed your gun, you didn’t fire a shot didn’t hurt anybody—and now you find yourself charged with aggravated assault with a firearm, typically a 10-year felony.

If you’re charged with aggravated assault with a firearm, you’re looking at a retainer to your lead counsel on the order of $30,000 to $50,000. And that’s just for pre-trial work, folks, that’s not for going to trial. If it’s a killing case, where you’re charged with manslaughter or murder, you’re easily looking at $100,000 or $200,000 pre-trial expense, and just multiply that for the trial.

If you don’t have that kind of money stuffed in your mattress just in case you’re compelled to defend yourself or your family, it can be useful to have a financial partner standing behind you to make sure you have the resources you need to fight the legal battle, the way you want it fought—as if your life depended on it. Because, really, it does.  And that’s what CCW Safe offers to do.

There are several companies out there that offer similar services. I’ve looked at all of them, as you might imagine, and I found that CCW Safe is the best fit for me personally.  I’m a member of CCW Safe, my wife Emily is a member of CCW Safe.

One of the biggest reasons I favored CCW Safe over other similar offerings is that many of those others simply don’t provide the level resources you need for an adequate legal defense. If you’re looking at a “self-defense insurance” offer that caps out at $150,000 or $250,000, that’s simply not enough for a murder or manslaughter trial if you’ve killed someone in self-defense, as I’ve already discussed. In contrast, CCW Safe promises to pay what the defense costs, period, with no such cap.  If you’re considering any type of “self-defense insurance,” be sure to read the fine print, folks, and understand what you’re getting—and not getting—from any such offering you’re considering.

Having said that CCW Safe is the best fit for me, whether they are the best fit for you is something only you can decide. But I do encourage you to take a look at what they have to offer by clicking the image or link below:

http://lawofselfdefense.com/ccwsafe

And if you do decide to become a member of CCW Safe, you can save 10% off your membership at that URL http://lawofselfdefense.com/ccwsafe, using the discount code LOSD10.

NEWS

Alright, folks, let’s jump into the first news story.

Bail Denied in Ahmaud Arbery Case

And that is that the defendants in the Ahmaud Arbery case have been denied bond, so they they’re being held in prison on a variety of charges, including felony murder charges for the death of Ahmaud Arbery. And you’ll remember these are the two guys in the pickup truck, who perceived Arbery as committing a felony burglary in a house across the street from theirs, pursued him in their pickup truck.

They were charged and attacked by Arbery. Specifically, Travis McMichael, the son of the two, adult son, Arbery fought Travis for his shotgun ended up getting shot in the process. And now the father and son, Greg and Travis McMichael, and a neighbor who filmed the event with a cell phone in a car behind the pickup truck, have all been charged with various degrees of felony murder, attempted unlawful imprisonment and other charges.

And they recently sought bail and they were denied bail. So, they’re going to be held in prison until their trial happens, whenever that is usually it’s quite some time. And the headlines reported how the order denying bail from the judge that heard this, this would be the trial judge at this point. The headlines read like this scathing order explains why judge denied bond to father and son accused of killing among our brain.

Now the first thing I’ll say is they’ve been charged with a form of murder, all right, felony murder in this case, but nevertheless a form of murder. And it’s not uncommon for bail to be denied to murder cases. And the defendant, keep in mind what the purpose of bail is. Bail is intended to guarantee that if they let you out, you’ll return for your trial. If you don’t return, you forfeit the bail. And most states a bail bondsman will come get you, or marshals will come get you. Or they’ll just wait until you, you know, bump into the law again and get arrested for an outstanding warrant.

But that’s the reason that bail is provided, it’s in the expectation that if they’re holding the bail, you’ll come back for your trial. But if you’re looking at life in prison, and these guys effectively are, most people if the prospects are lose property or spend the rest of their lives in prison, might be likely to give up the property, whatever it might be that they put up.

So it’s not that uncommon to murder cases where the expected penalty if found guilty is often life in prison, that people aren’t given bail, because it’s not believed that there’s any possibility that they’ll come back. So, not absolute. Sometimes people charged with murder do get bail. But it’s not that uncommon that they’re not.

In this particular case, the trial judge said that the reason he’s not giving bail is because the three men involved are, as he put it, a basically a high risk to the public if they were released. And he’s basing this perception of high risk on the conduct involved in the Ahmaud Arbery pursuit and the death of Arbery.

Which doesn’t really make sense, because there is clearly in evidence-based narrative in which the only reason I’m Ahmaud Arbery died was because he was the physical aggressor towards Travis McMichael, I mean, that’s going to be the defense argument in the case.

Iit seems much more likely that the real reason they’ve been denied bail has nothing to do with them being a risk to the public. They’re certainly not a generalized risk to the public. But more likely, they were denied bail because of the purportedly racist text messages and social media posts that were produced, as evidenced by the state before the trial judge during this bail bond hearing process.

Now, being a racist ought not be a reason not to get bond, it’s got nothing to do with the criteria for issuing bonds, right, the likelihood the perceived likelihood that you’ll return for trial. And being racist is not a crime. I mean, having the belief is not a crime. What the judge is supposed to be worried about is whether or not for example, you’re likely to not return, are likely to harm others and so forth.

But politically, if the judge has the discretion on whether to grant bail or not, politically, it’s a non-starter, to grant unnecessary favors to people who have been successfully characterized, true or not, as racist. If you’re a judge who runs for reelection, and you’re doing favors for alleged racists, how’s that going to look?

So there’s a good probability here that the reason the McMmichaels and the William Bryan, the neighbor who filmed the event, are not out on bail, are going to spend the time until trial sitting in a jail cell, is because of these purported racist text and social media.

Remember, folks, when you get engaged in this criminal justice pipeline, you’ve just put your life in the hands of other people. They’re now the deciders about your how your life is going to unfold, and their interests may not be aligned with your interest, they may well be counter to your interest. That’s one of the consequences of getting in meshed in the gears of the criminal justice system. That’s why you do not want to do that if you can possibly avoid it, consistent, of course, with the safety of yourself and your family.

Attorney for Kyle Rittenhouse leaves legal team

So another piece in the news is about the Kyle Rittenhouse case and that was the announcement that attorney john Pierce who had been permitted by the trial judge in the Kyle Rittenhouse case to be part of the criminal defense team.

Now, John’s an attorney licensed to practice law in California, not in Wisconsin where this Rittenhouse trial is going to take place. But it’s very common for courts to grant permission to out of state lawyers to appear as attorneys in criminal cases, especially where the client the defendant also has local criminal counsel. In fact, I assume that would be mandatory, that the lead counsel is a local Wisconsin criminal defense attorney, which Kyle does have, and then to for the trial judge to grant permission for other out of state attorneys who want to be involved in the case to be involved in the case.

Last week, I reported that the trial judge had granted permission for john Pierce to be part of the criminal defense legal team. And then within days, John was in the media announcing that he was in fact, stepping down from being on the criminal defense legal team, which, frankly, isn’t surprising. He’s primarily a civil litigator. He’s not a criminal defense attorney, for the most part, not to say he couldn’t do criminal defense work. I’ve spoken with John, he strikes me as a very capable and smart attorney.

And of course, there’s always a lot of negative media coverage around John Pierce, he’s, I think it would be fair to say, he’s a controversial figure. I have no idea how much of that negative media coverage is accurate or inaccurate. We all know about fake news for sure.

But in any case, it appears that while a week ago, it looked like John Pierce was going to be an active player in Kyle’s criminal defense, that that’s no longer the case. Although it appears he expects to still be involved in any civil litigation Kyle gets involved in after the fact.

Now full disclosure, as I mentioned, I have spoken with John, I spoken with him about the case, the Kyle Rittenhouse case, nothing formal or confidential. I’m not myself involved in the case. But I just wanted to mention that connection. So again, in the interest of full disclosure.

Man Reportedly Charged With Attempted Murder After Chasing, Shooting Unarmed Burglar

So I’m often asked about home defense type scenarios, you’re defending yourself in your home against a genuine intruder. And I frequently say, well, that’s about the hardest use of force scenario to screw up. I mean, you really have to work hard to screw that up. If you’re facing a genuine, forceful, forceful, forcible entry, unlawful intruder into your home. It’s very hard to mess that up, even if you’re responding with deadly defensive force.

Now, having said that, there are of course, people who managed to mess it up. And the great way to mess it up is to scare the intruder out of your home, chasing down the street with an AR haven’t get on his knees and beg for his life and then shoot him dead in the street in front of witnesses, which is what happened in Florida, according to a news report.

And by the way, all these news reports, I’ll put the headlines and links to them in the text version of today’s content. So if you’d like to read those full stories, you’ll have that opportunity. But here we have Miami man who apparently was home playing a video game, and someone just broke into his house while he was sitting there, and then saw him and ran back out of the house. And the homeowner allegedly picked up an assault rifle chased him down the street.

And Miami Dade detectives say the suspect begins to what appears to be the big for his life. But the defendant takes the assault rifle and shoots him multiple times.

Obviously, that’s not a lawful use force that’s not self-defense. And it’s not defense of dwelling folks. Once the threat has been neutralized, whether you’ve neutralized it or it’s neutralized itself, by for example, flight that fights over folks that intrusions over. And if you pursue, whether it’s a home intrusion or just a confrontation out in public, the fight’s over and you pursue you become the aggressor in a second fight, folks, and it’s going to be very difficult for you to justify your use of force if you’re the aggressor in a second fight.

By being the aggressor, you lose that element of Innocence. Even if you were the person initially wronged in the first fight. Now it’s a new fight in which you’re the aggressor, you lose that element of Innocence, one of the five required elements of self-defense, and you lose, as a result, self-defense itself.

And by the way, when I talk about these elements of self-defense, if you don’t know what I’m talking about, I would urge you to please take advantage of our free download infographic, The Five Elements of Self-Defense Law, these are the five building blocks of any claim of self-defense, no matter what state you’re in. If you don’t understand these five elements of self-defense, you can’t possibly understand how self-defense law applies in the real world. This is totally free, doesn’t cost a penny folks. It’s just a PDF download. You can get that at http://lawofselfdefense.com/elements.

Again, the most basic foundational information you need to know we make it available to you for free.

Florida man seeks self-defense immunity in 2017 SWAT drug raid that left 21-year-old woman dead

Okay, what else is in the news? Here, we had an interesting case. So we had a Florida case in which a defendant is seeking self-defense immunity. Now, this is a different case than the Jason Dames case that I’ve been discussing with Law of Self Defense Members throughout the week, we’ll come to that case in a moment. This is a separate case.

So there’s an interesting twist in this pursuit of self-defense immunity. For those who don’t know, self-defense immunity is essentially a procedure by which you can get an expedited relatively low-cost decision on self-defense without having to go through a full-blown trial.

Basically, you request a pre-trial hearing, you make the argument that your use of force was lawful Self Defense. And if the judge buys that argument, then he can grant you immunity from prosecution and or civil suit in Florida. It’s both immunity from prosecution and civil suit.

And so if you’ve shot someone, and you’ve been charged with, say murder, because they died after you shot them, and you claim it with self-defense. You could make that argument at trial, of course. But in a state that has self-defense immunity, you can also make that argument pre-trial. So for a few $1,000, instead of hundreds of 1000s of dollars in legal expenses, and then a few weeks normally, instead of the months or years you can take for a murder trial, and basically get your life back on track. be cleared of that criminal charge for that use of force event. That’s how it normally works.

Here we have a case where we have a defendant, who was apparently by news reports and evidence recovered at the scene a pretty it’s productive, right? A pretty hard-working drug dealer. His house was full of drugs, a SWAT team came in did a drug raid, in fact, they found that the house was full of drugs.

So the police kick down the door come into the house, and the defendant shoots at the police. Now, of course, as always, in these cases, he says, Well, I didn’t know they were police. I thought it was a home invasion. Maybe that’s true, right? We don’t know. If the circumstances were such that his genuine good faith, reasonable perception was that he was being subject to a home invasion, then shooting at them would be lawful, even if his perception was mistaken, so long as it was as it was genuine and reasonable.

Of course, the cops are going to argue that, hey, we were screaming cops at the top of our lungs, we had badges we had uniforms, whatever the case might be. So that’ll be a factual dispute, not uncommon to come up in these cases.

And the next thing is also not uncommon. So he shoots at the police. Naturally, the police shoot back, and they strike a young woman in the home who the police say the defendant was using as a human shield. She struck by the police return fire and kill her.

Now you might think, Oh, this is the Breanna Taylor case. It’s not the Breanna Taylor case. It’s just an essentially identical case. So, it’s a completely different case.

So, this defendant now has been charged with felony murder for the death of the young woman, not murder, because he didn’t shoot her. He shot at the police, the police shot back, and they killed the woman. But because she died in the course of this defendant arguably committing a felony, the shooting at the police officers, his shooting at the police officer becomes the predicate felony required for felony murder, legal liability for the death of the woman that resulted because he was engaged in that felony.

Now he’s trying to argue for self-defense immunity saying hey, there was self-defense, I didn’t know there were cops, I was defending myself.

But it’s a weird twist. Because normally, with self-defense immunity, you’re saying, hey, my use of force killed that person. I’ve been charged with murder because they died as a result of my use of force. But in fact, my use of force was lawful. So I should not have criminal liability for their death. Their death wasn’t a crime if my use of force was lawful. And therefore I should, it’s lawful self-defense, their death is justified, legally justified, and I should be granted immunity.

Here, he’s not charged with murder, he’s charged with felony murder, his use of force did not actually harm anybody. And his use of force is not a direct predicate for a criminal charge against him, but an indirect predicate.

So, it’s not like he shot the woman, and then he was arguing self-defense for shooting her. His use of force is the predicate felony underlying the felony murder charge. And it’s not clear to me if the Florida courts have allowed a self-defense immunity hearing in the context where the charge trying to get cleared trying to get immunity for is not a direct consequence of the use of force like a murder charge, but an indirect consequence of the use of force like felony murder.

Now, certainly, if he argues that his shooting at the police was legally justified, and the finder of fact believes that to be the case at trial, that would be jury, so that his firing at the police was legally justified, well, then it’s not a felony. If it’s not a felony, it can’t be the predicate for felony murder. So he can certainly make that legal argument.

But it’s unclear to me if he’d have to make that legal argument at trial, because it wouldn’t be permitted for purposes of self-defense immunity. In other words, that these facts don’t allow for that expedited pre trial, low cost, time efficient adjudication and self-defense in the context of a self-defense pre trial immunity hearing, but rather, he’d be free to make these arguments that the shooting of the cops was lawful because he thought it was self-defense, not a felony. So, felony murder goes away because there’s no predicate.

But he might be obliged to make that argument at trial, as opposed to in a pre-trial immunity hearing. So it’ll be interesting to see how the courts in Florida work through that.

Okay, so that is all the news I wanted to share with you today. We’re going to jump now into the questions that have been sent in.

25% OFF EVERYTHING (*) HOLIDAY SALE

Before we do I do want to mention that we are, like everybody else. I imagine conducting a big holiday sale Christmas sale, we celebrate Christmas here at law, self-defense. But obviously, the sale is open to anybody.

We’re currently running a 25% off holiday sale on just about everything that we do our books, our online courses, DVD courses, posters, hats, mugs, just about everything. Except our memberships our memberships are already only about 30 cents a day, they’re at the normal price. But everything else 25% off for the holiday season. You can take advantage of that get gifts for family and friends who you would love to be hard to convict as you are. And you can take advantage of that at http://lawofselfdefense.com/holiday.

You don’t need a discount code. All the prices are already discounted. You’ll see it they’ll just appear in your shopping cart as a correctly discounted 25% off price. And again, that’s at http://lawofselfdefense.com/holiday

Q&A

Okay, with that out of the way, let’s jump back into the question.

Can deadly defensive force be used to stop a kidnapping?

So the question from a platinum member Larry? And it’s very long question. So I’m going to distill it down to what I think is its essence. And its scenario in which he’s walking through town. And his town happens to be Salt Lake City. But he says, basically, I’m walking through town, I have loved ones with me, family with me. And we’re approached by a individual or maybe a group of people, and they proceed to hurt us or Usher us to a another location against our will. a location where there won’t be any witnesses, perhaps they won’t take no for an answer. They won’t let me proceed on to travel on my preferred path or my desired destination. At what point he’s asking basically has circumstances reached the point where deadly defensive force would be appropriate.

But we have to be careful here because what he’s actually describing is what I would call kidnapping what the law calls kidnapping, so if someone is detaining you, so they won’t let you leave, or they’re trying to move you to another location against your will. That’s kidnapping.

Under Utah law, kidnapping is a felony. And in any case, Utah self-defense Law, like the self-defense law, really, of every state, they include deadly force threats to cover not just things that can kill you, or even things that can cause you serious bodily harm, directly, but also, crimes against the person that are have traditionally been considered deadly force threats, and kidnapping is among them.

Nobody kidnaps you because they have your best interests in mind. Kidnapping and attempt to make a kidnap is a deadly force crime in pretty much every state, at least by common law. But in many states, they explicitly list kidnapping, along with a threat of imminent threat of death or serious bodily harm as a justification for the use of deadly defensive force. And Utah does that.

So if you look at Utah’s self-defense Law, you have to get the paragraph, it is their deadly force justification paragraph, it explicitly lists kidnapping as one of the underlying justifications for the use of deadly defensive force.

Now, when I said earlier, we have to be careful, I want to make sure that we understand what we’re talking about here. So, a detention is not simply someone blocking a road, or blocking your progress down the sidewalk in a particular direction. A detention is when you can’t go anywhere. So if there is say protesters blocking your road and you can’t block walk down that road, they’re preventing you from going in a particular direction, but you’re still free to go in other directions, you haven’t been detained. You’re still free to go elsewhere. It’s basically an inconvenience. So we have to differentiate between those two situations.

Now, unfortunately, in a car, you might find yourself in a situation where you’re the 20th car, you know, big stopped bumper-to-bumper collection of cars because there’s protesters 20 cars ahead blocking the road. And there’s cars behind you and cars beside you. So you can’t just drive away. You don’t want to leave your car there, just in the middle of the street.

But in fact, you are free to leave. I mean, you could do that, right, you could walk away, and you’re not personally being targeted by those people. So we need to differentiate from those kind of non-violent, obstructionist protesters on the one hand, and people actually engaged in the unlawful detention, or attempt to transfer you to another location against your will.

Never do that, folks, never allow yourself to be transported to another location, it does not end well, which is why it’s traditionally always been treated as a deadly force threat.

Is a verbal threat enough to justify deadly defensive force?

Okay, then we have another question from Platinum member. This is Jeff, he had, again a very long scenario he laid out so I’m going to try to distill it to its essential elements.

And that is he was with his wife and his daughter in a car. And he was teaching his daughter how to drive basically. And they were going down a road, an unpopulated area, but they were near one particular home. And as they were driving by the home, a bunch of dogs ran out of the home, the daughter stopped the car in place because she was afraid of hitting a dog.

A guy comes out of the house. And he’s very mean, like, what are you doing here? Why are you bothering me? They explained very kindly, hey, we’re just teaching our daughter how to drive. We’re not trying to cause any trouble. And he tells them, “Hey, people get shot.”

And the man and his wife and his daughter very alarmed by this, obviously. The situation doesn’t escalate, they’re able to drive away. So it’s all good.

But the question is, is that alone enough, is that threatening remark enough to justify the use of deadly defensive force?

This touches on kind of a basic legal principle about when a threat is imminent. And again, the threat has to be an imminent threat, not a speculative threat, not a future threat, not a past threat, but a threat that’s either actually occurring or imminently about to occur.

Imminence is another one of those five elements of self-defense. So, again, folks, if you don’t understand what I mean, when I talk about these five elements, please download that infographic http://lawofselfdefense.com/elements, The Five Elements of Self-Defense Law Infographic, because otherwise, you simply don’t understand how self-defense law works, and you can’t if you don’t understand these five elements.

Now, the issue with this scenario is it appears and in fact, Jeff, when he sent it in, said, well, the guy didn’t make any aggressive movements. It was just that verbal threat. And a verbal threat alone is not enough to constitute an imminent threat, folks, the law requires more than that. Specifically, what the law requires is what the law refers to as an overt physical act. So the words alone are not enough they need to be accompanied by an apparent intent and ability to carry through on the threat if there’s literally just words and no accompanying overt physical act. It’s not an imminent threat.

Another way to think about this scenario is using applying what Mas Ayoob, now also many others, but I believe it started with Mas, teaches as the AOJ triad, ability, opportunity, jeopardy. This is a great framework for evaluating in real time whether a threat is in fact an imminent threat against which defensive force would be appropriate.

And it’s also a great framework for communicating to others, why your perception of a threat as being eminent was a reasonable perception and doing so in an evidence based way because an irrational fear or unreasonable fear cannot be the basis for a justified use of force.

And AOJ stands for ability opportunity, jeopardy.  Ability does that threatening person have the ability to cause harm? Just about everybody has the ability to cause some harm, right? We all have fists and feet. Opportunity, do they have the opportunity to actually bring that ability to bear? And importantly in this context and aligned with this requirement of an overt physical act, Jeopardy? Are they conducting themselves in such a way that a reasonable person would believe they’re about to bring that ability and opportunity to bear against them.

So words alone are not enough, you need that accompanying overt physical act.

Now, what words can do is words can be sufficiently threatening that the physical act you need to see can be rather minimal. So, if you just see a guy say in a shopping mall, he’s 10 or 15 feet away. And he’s just reaches for his beltline hasn’t said a word to you, just standing there, maybe he glances your way reaches for his belt line. While he may just be reaching for his phone, so you can call his wife, right? Perfectly harmless.

But if that slight physical act has been preceded by a threat, a verbal threat to shoot you, “Hey man I’m gonna shoot you,” and then he reaches for his waistline. Well, now you have the overt, you have the verbalized threat, and the accompanying overt physical act, and that combination can be enough to create a reasonable perception of an imminent threat against which you need to defend yourself, of course, that reaching for the bass waistline, in conjunction with the verbal threat is also Jeopardy, right? He’s conducting himself in such a way that a reasonable person would perceive an imminent threat, not imagining it.

Now, it’s not enough that someone is in a like, in this scenario, the person the strange man was just outside the car within touching range. Certainly, he had the ability to cause some harm. Apparently the car windows were down, he could have reached inside the car right struck somebody, he had the opportunity to bring his fist to bear if he was going to do that he was close enough.

But was there Jeopardy was he conducted himself in such a way that he it appeared he was eminently about to do that. And it appears from the description that was not the case. So I would suggest on these facts, there’s not enough.

Now, if the person outside the car had said, “Hey, people get shot”, and then he produced the gun or appeared to be producing a gun, well, that obviously would change everything. That would be the overt physical act, that would be the Jeopardy for AOJ that would qualify as that imminent threat against which deadly defensive force would be appropriate. But that’s what you’re looking for. You’re looking for that overt physical act, you’re looking for that “J” component of the AOJ triad.

The 12 strongest self-defense cases of the year?

So Gary, Gary, also a platinum member, sends in a very interesting question, says what the 12 Days of Christmas upon us? Which 12 cases have you covered over the past year, which lays out the strongest understanding of self-defense?

Well, Gary, that’s a hard question to answer, but not because it would be difficult to find 12 cases, but it would be difficult to prioritize 12 cases, out of all the cases that I review, and read and analyze and work on as part of our normal law practice. Now the ones that are part of our lawful, normal law practice, obviously, I can’t discuss those anyway, for obvious reasons of confidentiality.

But besides the normal legal work of the office, I read over 2,500, easily, at least 50 a week 2,500 use of force appellate court decisions every year, probably closer to 3,000. I also reviewed 1,000s and 1,000s of use of force cases in the news, the media.

So, it’s an enormous volume of content that go through. And obviously I don’t memorize 2,500 cases. So, they’re in short term memory while I need them to do a show like this or do content for the loss of defense community. And then unless they’re particularly memorable, they fall out of shor- term memory, obviously.

But I might try to do something like a top 12 cases, maybe the best of the year. type of programming as one of the last maybe one or two. News and Q&A shows for 2020. The last two weeks of the year fall on last two Thursday’s fall on I believe Christmas Eve and New Year’s sat correct. Let’s see. Christmas Eve New Year’s Eve.

So maybe we’ll pre record something like a top 10 type show for to share with all of you in those two days so that I’m not doing a live show on those two days. would prefer to spend the time with the family as you might imagine.

Defendant spent two years in jail before being granted self-defense immunity–why?

Our next question is, a defendant spent two years in jail before being granted self-defense immunity–why?

Gene B from Florida also a platinum member asks in the Jason James case, he spent two years in prison waiting for an immunity hearing a self-defense immunity hearing Is this normal and was he denied bail when charged? So Jason Dames was a case I’ve been discussing in depth with law self-defense members in September 2018. He was involved in a shooting in September 2020. Just this past September, he had a self-defense immunity hearing in Florida.

The neat thing about this particular pursuit of self-defense immunity was we have a lot of documentation so we have his lawyers motion or request for self-defense immunity. We have the full transcript of the self-defense immunity hearing itself. And we have the judge’s order granting self-defense immunity and explaining the judge’s rationale for granting self-defense. immunity. So, it’s tremendously interesting content that we’ve analyzed and shared with our members over several posts, videos, podcasts over this past week.

Now one of the interesting things about the Jason Dames case that made a lot of headlines and just regular media was this two-year gap. The shooting happened in September 2018. He was granted immunity in September 2020. And the grant of immunity means effectively, that his shooting of the other fellow was simply not a crime. It was justified self-defense. But that entire two year interim, Jason dame’s was in jail. awaiting trial, in fact, trial was scheduled to start only three weeks after his self-defense immunity hearing. So he was sitting in jail while waiting to go to trial or have this hearing for two full years. He’s granted immunity, meaning what he did was actually not a crime at all, it was justified self-defense. So he spent two years of prison while in jail for, for what exactly?

Now, Jean asks was he denied bail when charged? Again, this was a murder case. So he was charged with second degree murder, with a firearm under Florida law, be looking at the rest of his life in prison. I don’t know whether he was even offered bail, again, not uncommon for murder defendants not to be offered bail. But if he had been offered bail, it would have been expensive bail. And Jason Dame’s is not a guy with a lot of resources. So it may well be the case that the judge said, Well, you know, if you come up with, I don’t know, half a million cash bail, we’ll let you out. He just said, well, that’s not happening. So he just sat in jail for two years.

So that’s definitely a possibility. It’s one of the gripes that, you know, many of these bail reform activists, which, by and large, I think bail reform, as it’s been enacted in places like New York is going to grievously too far. But there, it would be nice if we had a rationalization of the bail system were better judgments were being made about whether or not people were actually a risk to the public if we released them on bail. In the case of Jason Dames, for example, he had no criminal history, he had a concealed carry permit. So he was a lawful concealed carrier, he was clearly unquestionably This was uncontroverted by the prosecutor, clearly the victim of the other guy’s initial aggression a deadly force attack upon him.

You might ask, Well, if that’s the case, why was he being charged with murder at all? And there’s some nuances in the case that explained why the prosecution believe they it was appropriate to charge him in that manner, questionable. But he was not someone who never threatened anyone before, never threatened anyone before he was attacked with deadly force. Is he a risk to the community that needed to be kept in jail for two years? I would think not. So it’s a it certainly seems like an injustice in that case.

If prosecutors appeal grant of self-defense immunity, how’s that process work?

Now, another question came in about that James Dames case. So he sought self-defense immunity, the trial judge, the hearing judge granted him self-defense immunity. So he’s immune now from prosecution and civil suit. But the prosecution has announced that they’re going to appeal that grant of immunity, which the prosecution is allowed to do, they can appeal from the trial judge’s decision to the Florida Court of Appeals, which is the mid-level appellate courts in Florida. The next step, of course, would be the Florida Supreme Court.

And the Court of Appeal can review that grant of immunity and the review is done de novo, which is a Latin phrase, and basically it means it’s a complete review done new, as if the preceding decision had not occurred.

Now, normally, appeal appeals, like if someone’s convicted, and you appeal your conviction. You set forth the issues that you argue were incorrect about your trial. And the appellate court will only review how the law was applied to those issues. They don’t review findings of fact, unless they’re reviewing a case de novo. If they review a case de novo, it’s like the previous decision ever happened there. They’re like the court of first exposure to that case.

When the Florida Court of Appeals reviews grants of immunity de novo, however, they really don’t review the facts unless the judge that granted immunity, made a factual finding that’s completely absent any evidence.

So there has to be at least some evidence in support of a factual finding. We talked about this a lot. The at least greater than zero evidence threshold has to be met for lots of reasons in the law. If someone comes to a conclusion in the presence of zero evidence to support that conclusion, well, obviously that’s got no merit. So if a judge granted immunity based on a factual finding that was, you know, in arguably contrary to the evidence and harden had no evidence to support it, then I can see a grant of immunity being reversed.

I don’t see that in this case, because in this case, at worst, the evidence was a bit ambiguous. So the judge did not make an irrational finding of fact, he just made a finding effect that was favorable to the defense and contrary to what the prosecution would have wanted, but it was based on actual evidence. So I don’t see a basis for the court of appeals to overturn this grant of immunity.

And that’s if they even decide to hear the case. So they hear that they hear these requests for de novo review of a grant of immunity at their discretion, they’re not required to hear it, often they don’t hear it. So they just basically, most commonly reject the state’s request to review the grant of immunity. I expect that’s what will happen here because it’s not a clearly egregious case where the judge overstepped.

Can a thrown bottle justify the use of deadly defensive force?

Okay, someone asked her about a case in San Francisco where a new district attorney has charged a police officer with what was it? Well, the police officer shot someone who threw a bottle at him. I don’t remember now, offhand if the person shot was killed, but let’s pretend they were killed. And the officer has been charged with murder. Oh, no. The other guy the guy threw the bottle has not been killed, I recall now, because he’s been charged to the prosecutor also charged him with the crime of throwing the bottle at the police officer.

So the police officer would have been charged with aggravated assault or something like that. And the fundamental question is, well, could the officer have been justified? Can the thrown bottle be deadly force?

And the answer is, well, of course it can be. But it’s not inherently a deadly weapon.

So the question we have to ask ourselves is what was the manner of its use one, reasonably likely to cause death or great bodily harm, we can all imagine a bottle being used to kill somebody, right? We can all imagine a bottle being thrown in such a way that it strikes an officer in the head, and causes serious bodily injury, right scarring stitches, a broken skull, it’s not difficult to imagine that.

But that’s not automatically the case, we would have to look at the circumstances around the throne bottle. Certainly, if you had a riot type situation where you had dozens or scores, or hundreds of people throwing bottles and such at grouped police officers, while the police officer, no single officer can watch all those people can observe all those objects flying through the air. And so it would be easy to imagine that any one or more officers could be struck and seriously injured by those objects. But this appears to be more of a one-on-one type situation.

So, the question in my mind would be what was the bottle thrown in such a way that it really was an imminent deadly force threat? Or could the officer just take a half step and not get hit by the bottle? I mean, was it coming at him at a slow enough speed or arc or whatever, that it did not in the manner it was thrown really constitute an imminent threat of deadly force harm, that warranted shooting the person who threw the bottle because you can’t just shoot people because they’re being jerks.

Now, if it was thrown in a way that did constitute an imminent threat of death or serious bodily injury, sure, that leads to deadly force threat against which deadly defensive force could be justified, I guess only if the person has another bottle, right, because if the bottle missed, and that was his only projectile well, then that threats done. So you can’t shoot someone for a threat it’s over.

So, now we have a lot of prosecutors who are obviously going after police officers, in my opinion, under circumstances that simply do not justify the prosecution’s being carried out, I included here the officers in the George Floyd case, this was true. The officers charged in the Freddie Gray case, a lot of politically motivated prosecutions happening.

You know, this is San Francisco, the prosecutor is described as a progressive prosecutor in the media. Are they politically motivated? In this case? Well, maybe I don’t know. But it’s also possible that, look, the cop just made a bad decision. He was offended that someone threw a bottle at them, and they shot him. Well, that’s not a lawful use of deadly defensive force.

 

Okay, so that was what I had for news and QA sent them ahead of time. Let’s take a look at the our membership page first. Let’s see. See if there’s any questions there there. I don’t see any questions. Thanks for the members for joining us there. Scroll through Facebook. Now for the last few minutes we have for the show. Hey, well, hope you’re doing well. We’ll had the misfortune of a deer running into his truck, apparently. Better than on the motorcycle for sure, for sure.

Okay, folks, as I go through these questions, the one thing I would ask all of you to do, well, first, it would be great if you became members.

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Oscar here mentioned Stand-your-Ground, Castle Doctrine, are two different concepts. folks here in Texas have recently become confused by recent bill filings to repeal “Castle Doctrine,” but appears they are actually targeting “Stand-Your-Ground.”

So, Stand-Your-Ground and Castle Doctrine. Those are closely related things, but they’re not the same. They’re different.

They both have the function of relieving you from an otherwise existing duty to retreat. Castle Doctrine generally applies if you’re in or around your home, stand your ground generally applies if you’re out in public.

But the conditions that have to be met to qualify for Castle Doctrine or qualify for stand your ground, so qualify for relief of that duty to retreat in or around your home, on the one hand, are qualified for relief of that otherwise existing duty to retreat, iIf you’re out in public, on the other hand, those conditions are quite different.

And so you can qualify for one and not the other. Or one may apply under certain circumstances and not the other. So they’re not the same things.

Tthe even greater confusion that happens in this area of the law, and I’ll bring it up because we discussed self-defense immunity in some length was, Florida was among the most prominent among the first states to adopt stand your ground being relieved of an otherwise existing duty to retreat while you’re out in public, and self-defense immunity, having this expedited pre-trial mechanism for having it adjudicated whether your use of force for self-defense, they adopted both those legal doctrines in the same legislative session.

They’re not the same legal doctrines. They’re not the same statutes. They’re different statutes. But because they were adopted at the same time, it’s become common for the public and legal professionals. It drives me crazy to refer to self-defense immunity proceedings as stand your ground hearings. Self-defense immunity has nothing to do with stand your ground, nothing.

Self-defense immunity only asks, whatever the rules for self-defense are, do you qualify under those rules. If you do, you should be granted immunity.

Stand Your Ground actually changes the definition of self-defense because it removes one of the possible conditions that have to be met. It removes that element of Avoidance that might otherwise have to be met. So it broadens the scope of conduct that qualifies as lawful self-defense. Stand-your-ground is a provision, a doctrine that changes the definition of self-defense. Self Defense immunity has nothing to do with changing the definition of self-defense, it just says if you qualify whatever that definition is, as having acted in self-defense, you should be granted immunity and not have to go to trial.

Unfortunately, this is members-only content, but if you read the transcript of the Jason Dame self-defense immunity hearing throughout the entire hearing, they call it a stand-your-ground hearing. It’s not a stand-your-ground hearing. There’s no such thing as a stand-your-ground hearing. You don’t have a hearing to decide whether or not somebody qualifies for stand-your-ground. It’s just it’s a statutory provision. You have a hearing to determine whether they qualify for self-defense immunity.

So whenever you see any of these things refer to a stand your ground hearings, just keep in mind what’s almost certainly talking about is a self-defense immunity hearing. That’s got nothing to do with stand your ground. Drives me crazy.

Okay. All right.

Well, I think I’ve gone through all the questions before I let you all go. I’ll just remind all of you who may have perhaps come in a little later than others, that we are running a 25% off sale on just about everything at Law of Self Defense, including our books, hardcover, soft covers, our courses, DVDs, online streaming courses, are posters. Great for classrooms. For those of you who are instructors, our hats are mugs, everything except for memberships 25% off everything as our holiday sale this year. You can learn more about that a lot of self-defense comm slash holiday, you don’t need a discount code. We’ve just cut the prices by 25%. So there’s nothing tricky to remember. Just point your browser to http://lawofselfdefense.com/holiday.

And with that, folks, I’ll just remind all of you that if you carry a gun so that you’re hard to kill, which is certainly why I carry a gun so I’m hard to kill so my family is hard to kill. Then you also owe it to yourself to make sure you know the law so that you’re hard to convict Alright folks, I’m attorney Andrew Branca for law self-defense.

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6 thoughts on “News/Q&A Show: Dec. 10, 2020”

  1. Yeronimus Pretorius

    Kidnapping, of the type described by Larry, is exactly what happened to Allen Scarsella in Minnesota, and he is now serving 20 years in prison for defending himself. He was convicted in Hennepin County, the same county where Chauvin and his fellow officers are being prosecuted for the death of Fentanyl Floyd.

    1. I don’t think Larry described a kidnapping. Larry did not describe the essential elements of the crime of kidnapping and without all the essential elements of the offense of kidnapping there is no forcible felony. The “ushering” would have to be both unlawful and forceful. You can’t use any level of physical force in self defense until there has been a actual unlawful physical touch (use of unlawful force), or an actual overt attempt to actually unlawfully touch your body (express imminent use of unlawful force), or an actual verbal .threat to unlawfully and immediately touch your body on the present occassion (implied imminent use of unlawful force). Larry did not even describe a false imprisonment. If what Larry described is exactly what happened to Allen Scarsella, it is no wonder Scarsella’s claim of self defense failed.

      1. Yeronimus Pretorius

        Andrew Branca, Esq., eminent lawyer and expert on the law of self defense, says it was kidnapping, but some rando in a forum says no, so I’m confused.

        Re Scarsella, upon arriving at a public street then in the control of BLM activists, he and three of his associates were forced off this street (whose street?) by approximately 20 people. This was portrayed by witnesses and the prosecution as Scarsella et al “luring” the street enforcers away to do them harm.

        Both Scarsella and his friend Nathan Gustavsson were punched in the face (or perhaps each struck an innocent man’s fist with his face), breaking and bloodying one of Gustavsson’s teeth, whereupon Scarsella opened fire with a handgun.

        Gustavsson was later convicted of second-degree riot, among other charges.

        1. Yeronimus Pretorius

          The kidnapping in the first paragraph refers only to the hypothetical scenario. I don’t mean to attribute any opinion regarding Scarsella to Mr. Branca.

  2. Andrew, judging from the questions you received in this show and in past shows, you need to explain the initial aggressor rule a little more clearly to your readers. Seems most folks don’t understand that who the initial aggressor actually was in the use of force situation is a factual determination objectively determined by the judge or jury standing in their own shoes, Monday morning quarterbacking the use of force situation at their own leisure, and from the safety of the bench or jury box, based on the actual evidence that the Court has allowed to be admitted on the record.

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