News/Q&A Show: Dec. 17, 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 17, 2020 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:

NEWS

• Ahmaud Arbery Case: Police Body Camera Released
• Georgia Felony Burglary Law:  § 16-7-1
• Georgia Citizen’s Arrest Law:  § 17-4-60
• If Arrest Lawful, Pursuit and Stop to Question Also Lawful
• No Prosecution for Pawn Shop Owner Because Evidence Looted
• No Prosecution Where Victim’s Friends Lied, Tampered with Evidence
• Ohio AGAIN Trying to Become Stand-Your-Ground State
• Texas Proposal to Repeal Stand-Your-Ground: Serious Threat?

Q&A

• The Zimmerman Trial Files:  Open-Access
• Defendant Sits in Jail for Two Years Pre-Trial:  No Bail?
• Has Anyone Yet Used Missouri Self-Defense Immunity Law?
• Is a Baseball Bat a Lethal Weapon?
• Arbery: Does Unlawful Entry Infer Felony Intent for Burglary Purposes?
• Arbery: Why Flee From Innocent Unlawful Entry into Dwelling?
• Defendant Sits in Jail for Two Years Pre-Trial:  Why No Earlier Immunity Hearing?
• Security Cameras Inside/Outside Home: Good Idea? Risks?
• Disparity of Force Rule: How’s It Work?

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!

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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.).

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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, everybody. Welcome to this week’s Law of Self Defense News/Q&A Show for December 17, 2020. Another Thursday, another Law of Self Defense News/Q&A Show. For those who may not know I am Attorney Andrew Branca for Law of Self Defense.  Thank you very, very much. That’s greatly appreciated.

Come on in folks, Make yourselves comfortable. If you’re watching this live, none of you watching the recorded replay. But if you’re watching live, especially on Facebook, or YouTube, if you could please leave a comment with your city and state that would be appreciated provides me with some useful geographical context for my commentary today, and helps encourage those social media algorithms to spread word and help us grow the Law of Self Defense community.

Also, if you’re on Facebook, you can please click that like thumbs up button, click that share arrow that would also be greatly appreciated. And if you have family and friends who you think could benefit from being hard to convict as you’re all learning to do today, in our New/Q&A Show, I’d appreciate your help in letting one or two of them know about the show so they can join us as well, and learn the actual law of self defense.

So this is our only open access content that we produce each week, you do not have to be a loss of defense member in order to access the Thursday New/Q&A Shows, either in their live form or recorded playback form. Most of the content we produce however, is restricted to our members.

The good news is membership is super inexpensive. It’s only about 30 cents a day, and you can try it out for only 99 cents for a two-week trial membership. If you decide within that two-week period, you don’t like what you’re getting, we’ll give you a 200% refund on request. If you do like what you’re getting, and most people do, we have very few members ever leave. Thankfully, we appreciate that support. Again, it’s only about 25 or 30 cents a day to be a Law of Self Defense member and access our hundreds of hours of educational videos, members only podcast and text legal analysis in which we translate all the legal ease of use of force cases into plain English, as we’ll do in today’s show, as well.

http://lawofselfdefense.com/trial

So we’ll cover some events that have been in the news. First, that’s the News part of the show. Then we’ll turn to questions, questions that have been sent in by Law of Self Defense members ahead of time or have been emailed to us ahead of time. And they have you can email us questions for our consideration to show at Law of Self Defense Comm. We’ll take those under advisement.

And of course, you can ask questions as well during the live show. Just put them in the comments. And before we close out the show. I’ll scroll through and do my best to answer the questions that have been submitted. within the constraints of allowable time we do try to keep the show to just under an hour.

So for those of you who enjoy the show, and you’d like to watch if you can’t make the live show, which is 4pm every Thursday, you can catch the recorded replay either at the Law of Self Defense blog, which is http://lawofselfdefense.com/blog, or on our loss of defense Facebook page or on the Law of Self Defense YouTube channel.  Again, this is open access content, the only content we produce that is in fact open access.

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.

Okay, let’s jump into some recent use of force law news. And there’s not all that much going on right now. I mean, the truth is, folks, we live in a society in which our news media doesn’t really report the news, they mostly create the news. And when the journalists start going on vacation, like over the summer, or around the holidays, the news plummets, not necessarily because things aren’t happening, but because they’re not getting reported by the media as much.

Ahmaud Arbery Case: Police Body Camera Released

But we did have what’s being presented as a big deal, in the case of the shooting death of Ahmaud Arbery. And this is in the form of some police body camera footage taken in the immediate aftermath of the shooting, when police began to arrive on the scene. And, frankly, a lot more is being made of these body cam videos than I think they’re really worth.

It’s always, I guess, useful to have more evidence. And this is certainly some evidence. I have one clip of Travis Michael being spoken with, spoken to by an apparently female police officer. We don’t see her of course, she’s got the camera on, but we can hear her voice. And there’s also I understand some body cam footage of the Roddy Bryan, this is the gentleman who was falling behind in his vehicle and recorded the pursuit and the fight at the end on his cell phone camera that blew this case into the public consciousness.

I’ll share with you here, the video I have of Travis McMichael in the immediate aftermath of the shooting. It’s not very long, it’s less than three minutes. And then I’ll dive into why I think this the supposed revelations of these body cam videos I don’t think really changes anything and doesn’t change my prior legal analysis of this case, which is that based on the legal merits, not the public hysteria, the pining of people who don’t actually understand Georgia law, or would prefer the law be something different than what it is.

The general consensus appears to be that Well, obviously, Greg McMichael, Travis Smith, Michael Riley, Brian, they’re all obviously guilty. It’s just a matter of going through the process and getting them convicted.

On the legal merits, I think they have a very good legal defense argument to be made. We’ll step into that in just a moment. But here’s that video of Travis McMichael conversing with a apparently female police officer in the immediate area. aftermath of the shooting death of Ahmaud Arbery.  Here we go.

So folks, I’ve done a lot of analysis on this case already. It’s all collected at this one URL http://lawofselfdefense.com/arbery.  Some of it’s open-access, some of it is restricted to members only. And I don’t want to make this a Arbery-specific program, with that depth of coverage. We could spend a couple of hours just talking about all of that.

But I do want to touch upon a couple points here and refresh people’s recollections of what the actual evidence looks like. In this case. There’s video of Arbery unlawfully entering a dwelling, someone’s home on the street, emerging from the home and then running down the street.

There, was he was observed apparently, shouts went out, the McMichaels were alerted. I guess at some point, obviously, Roddy Bryan was also alerted, the McMichaels pursued Arbery. They were armed. The father Gregory, I believe with a pistol. Travis with a shotgun. You heard in this little clip video here they had just had a gun stolen out of a truck in their own driveway shortly before this by someone with a similar description to that of Arbery. So they had reason to believe this person may be armed, they had reason to believe that a felony burglary may have been committed.

Now I don’t believe any of that is controverted by anybody, not even by the prosecution. So there iare, however, a lot of misconceptions, misperceptions, misunderstandings of the law here.

Georgia Felony Burglary Law:  § 16-7-1

So for example, in terms of Georgia burglary law, and you can find this in Georgia § 16-7-1. Burglary. I’ve heard many people say that, well Arbery couldn’t have committed a crime. I mean, he didn’t take anything from the home. He didn’t commit a forcible entry. In fact, the home is under construction, it wasn’t even occupied.

Well, folks, none of that is required for felony burglary under Georgia law. In fact, I’ll read the relevant part of the statute to you § 16-7-1:

(b) A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwelling of another. A person who commits the offense of burglary in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years.

A person commits the offense of burglary in the first degree, when without authority and with the intent to commit a felony or theft they’re in, he or she enters or remains within an occupied unoccupied or vacant dwelling House of another, or any building, vehicle, railroad car, watercraft, aircraft or any other such structure designed for use as a dwelling of another. A person who commits the offense of burglary in the first degree shall be guilty of a felony, and that happens to be a felony good for up to 20 years under Georgia law.

So nothing needs to be taken all that the burglary statute requires is an unlawful entry with the intent to commit a crime inside. So if someone unlawfully enters and they intend to steal something, well, then it doesn’t matter whether or not they actually stole something. It doesn’t matter whether there was anything to take or they fled with any property in their possession. The actual taking of properties not required to be guilty of burglary, just the unlawful entry into the dwelling, any kind of structure with an intent.

Now, how do we know what our brains intent is? Well, of course, we can’t really. I mean, we can make inferences, he did have an apparent criminal history of theft. I don’t know if that would have been known to the McMichaels or not if it would have been known. It could be relevant. Certainly they say right here in this video that they were aware of other thefts in the community, they were aware of property, a gun specifically being stolen from their own vehicle.

So thefts were happening. In fact, they had been asked by the local police department to keep an eye on this particular home, which had apparently been subject to burglary before. And again, I don’t believe any of that is contested by anybody, including the prosecution.

But it doesn’t matter what Arbery what his actual intent was, which we can never know, of course, because now he’s deceased. What matters for our purposes, is did his conduct create a reasonable suspicion that a burglary could be committed because that is what’s required to trigger the privilege of the McMichaels and Brian to execute a citizen’s arrest?

Georgia Citizen’s Arrest Law:  § 17-4-60

Now, there’s a lot of misperceptions around this area of law too. A lot of people are saying things like, Well, before you can make a citizen’s arrest, the crime for which you’re arresting the person has to have been committed in your presence, you have to have seen it.

No, not under Georgia law. It’s not required that an actual crime was actually committed at all, in order to trigger the privilege to commit a citizen’s arrest under Georgia law. This is the relevant part of the fight. This is the entirety of Georgia citizens statute. And it happens to be Georgia § 17-4-60. Grounds for Arrest.

Whenever I reference a statute folks or a court case or anything like that, you can be sure that I’ll link it in the text version of today’s content. But here’s Georgia’s grounds for arrest citizens arrest law, private arrest, law, 17 460:

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

Quote, a private person may arrest an offender if the offense is committed in his presence. So if a crime is committed in presence, you can do it make the citizens arrest or within his immediate knowledge, that’s an alternative trigger for citizens arrest alternative to committed in prison. So that tells you right there that committed and presence is not required. And then the second sentence, it’s only two sentence statute. The second sentence is, if the offense for which the arrest is being made, is a felony. And we already saw that burglary of the type apparently committed by our brain is a felony good for 20 years on the Georgia law, if the offense is a felony, and the offender is escaping, or attempting to escape.

Well, that’s consistent with the fact that we know that Arbery was in flight from the scene of the apparent burglary. But if the offense is a felony, and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

So what’s required is reasonable suspicion, to trigger the privilege to make the arrest. It’s not required that a crime was actually committed. What’s required is reasonable suspicion that a crime has been committed. Now, perhaps reasonable people could disagree whether or not the facts in this case the video of Arbery, entering, exiting the home unlawfully, then fleeing when asked what he was doing, I guess reasonable people might disagree on whether or not that constitutes reasonable grounds for suspicion that felony burglary had been committed.

But I think it would be very difficult for a prosecutor to prove beyond a reasonable doubt that it had not been which is the standard that will have to be met at trial.

Now I think what’s happening with respect to citizens arrest laws, citizens arrest unlike use of force in defense of persons law is highly varied across the 50 states. Some states don’t have citizen’s arrest provisions at all. Many states that do have citizen’s arrest provisions, the statutes are extremely old. I believe in Georgia’s case, the citizen’s arrest statute is something on the order of 150 years old. Which means these were statutes that were drafted and passed into law in a different era, with a different culture. And in many places before there were organized professional police forces, where the citizens were expected to be the police force.

And these laws vary a lot from state. So in many states, it is required that the crime for which you’re making the arrest took place in your presence. That’s true in many states. So a person may be well informed on citizen’s arrest law in their own state, some state other than Georgia, know that in their state, the crime has been committed in their presence. And then they just simply presumed that that must apply in Georgia to, and therefore the McMichaels would not meet the conditions for a lawful citizen’s arrest of our burn.

But that’s not a condition to Georgia citizen’s arrest laws we just described. So I think sometimes people have been taught some citizens arrest law that may be true in their jurisdiction. But it’s not true for Georgia, and therefore, it’s not relevant to these events that took place in Georgia. And many other cases, of course, people have not been properly taught on any form of citizen’s arrest law. They’re just they’ve read something about citizen’s arrest law in the media, on the internet. And so they believe now that that’s what the law is, and may have no connection to what the citizens wrestle actually is anywhere, much less in Georgia.

So there’s a lot of disinformation misinformation going on about citizens rest law. And mostly it’s going on to kind of define citizen’s arrest in a way that the McMichaels would not qualify. But I think under Georgia’s version of citizens arrest law, this very old statute, the there’s quite a bit of evidence to support a triggering of their privilege to make a citizen’s arrest based on the facts in this case.

If Arrest Lawful, Pursuit and Stop to Question Also Lawful

What else was I going to say about that? Oh, and of course, in this case, they actually didn’t make a citizen’s arrest, right. No arrest was technically made by the McMichaels. Remember the video, they pursued Arbery they attempted to block his progress with their vehicle they pulled up in front of Arbery just before our break was shot, it’s Arbery approaching them with Michael’s parked vehicle. So he’s coming to them, they’re not going to him. It’s Arbery who charges Travis Michael standing outside of his vehicle. It’s not Travis Smith, Michael charging Arbery.

But in any case, there’s this suggestion that oh, my God, they admitted on these body cams that they were chasing Arbery. Well, if they would have been privileged to make an actual arrest of Arbery, they certainly would have been privileged to pursue Arbery and stop are blurry. Those are all lesser infringements on a citizen’s freedom of movement, then an outright arrest.

So I don’t think this issue of Hey, it’s been exposed that they were pursuing him, is all that legally meaningful? If they meet the conditions for citizen’s arrest, or if the prosecutor can’t disprove that they need to conditions for citizen’s arrest beyond a reasonable doubt? Well, they would have been privileged to arrest and they’re privileged to pursue and stop it all becomes lawful conduct on their part, not a predicate for the felony murder charges with which they’ve been, they’ve been charged.

So folks, again, I did a lot of analysis on this. Do I still have that link up? I do. So if you’d like to read more detailed actual law analysis of the outbreak case, you can find my work at Law of Self Defense comm slash Arbery.

No Prosecution for Pawn Shop Owner Because Evidence Looted

No charges in Horton shooting due to lack of evidence

Okay, let me see what else I have here. Not too much for. There were a few other things in the news. Now that I think about it. Let me pull up a couple of those. Let’s see. Okay, well, there are there were a couple of cases news stories in the last week involving a purported claims to self defense where somebody was shot and killed. These are two separate events.

One of them occurred just outside a pawn shop. And I believe in let’s see, where’s the pawn shop? Minneapolis so a shooting in outside a pawn shop. I believe the facts are the pawn shop is getting robbed the pawn shop owner shot the robber killed him. It’s not said explicitly in the news report, but it’s it seems to me that it’s likely that there was a racial disparity here, likely the store owner, pawn shop owner was white and the victim was black. Because there was a big ruckus after the shooting. In fact, the pawn shop was ultimately completely looted by an angry mob outside.

And one consequence of this all this chaos was now the authorities are saying they can’t reasonably charge the pawn shop owner because the looting committed by the mob completely destroyed all the relevant evidence and crime scene, including among the other stolen property, all the security cameras, and the hard drives that would have captured the security camera video was all taken along with everything else.

So in a circumstance in which as in any self defense case, anywhere, the one self defense is raised, and it certainly wouldn’t be raised in this case, the prosecution has the burden of persuasion to disprove self defense beyond a reasonable doubt. Well, that doesn’t seem likely to happen when all the evidence has been stripped from the scene by an angry mob. So here, presumably the mob was angry, because if you had asked them, I expect they would have said what we want justice done. And their own conduct, in effect made justice impossible to do.

No Prosecution Where Victim’s Friends Lied, Tampered with Evidence

Suspect won’t be charged in fatal shooting of SW Marion County man outside his home

There was another case another shooting this was in, let’s see, I believe it was in Florida. And there was a confrontation in someone’s front yard, some dispute over ownership of a bicycle. And the somebody came from the non homeowner came onto the homeowners property, seized possession of the bicycle, that dispute occurred, and the neighbor ended up shooting the homeowner killing the homeowner. And again, we have a case where so much chaos occurred afterwards, that the authorities are basically saying listen, we just there’s nothing we can do with this case, there’s no way we’ll be able to disprove self defense.

Because the neighbor who came to take the bicycle who shot the homeowner says, well, the homeowner raised the rifle at me That’s why I shot him it was in lawful self defense. The only witnesses there were really friends and relations of the homeowner who was shot and killed in this event. But they did things like hid the homeowners rifle hid other guns involved at the scene. They lied to police in blatant ways about what happened, ways that could be checked and proven to be false. So in effect, their own conduct has made it impossible to pursue a prosecution of this neighbor who shot their friend, the homeowner at the scene.

And the authorities ultimately have just basically thrown up their hands and said, You’ve made such a mess of the evidence by you’re lying, you’re tampering with evidence, you’re hiding of the guns that are simply you’ve lost all credibility, there’s something nothing that we can do with this case. So another instance in which the chaos created by others have made it effectively impossible for the prosecution to pursue a case against in the event of an actual killing.

Ohio AGAIN Trying to Become Stand-Your-Ground State

Ohio Senate to vote on ‘stand your ground’ bill

Let’s see, oh, other news, Ohio. The Ohio legislature is again trying to pass stand your ground into law. They try this. They certainly tried it last year, they were unsuccessful last year. They weren’t successful last year in finally having Ohio join the other 49 states to place the burden of persuasion on self defense on the prosecution to disprove self defense beyond a reasonable doubt. Prior to that change in the law last year, Ohio was the last state that still placed the burden of persuasion on the defense to prove self defense by a majority of the evidence. That’s no longer the case. Now, Ohio is like everybody else, the prosecution has to disprove self defense beyond a reasonable doubt.

At the same time, Ohio made that change. They were also trying to pass a stand your ground statute standard ground meaning of course, simply that if you meet all the other elements of self defense, you will not be stripped of self defense because you purportedly failed to take advantage of a safe avenue of retreat before defending yourself and when I talk about these other elements of self defense.

If you’re not familiar with what that means, then I urge you please to do yourself a huge favor and take advantage of the opportunity to download our totally free infographic Okay, it’s not that one either. Hold on folks are free infographic on the five elements of the Law of Self Defense. So this is totally free. It’s just a downloadable PDF it doesn’t cost a penny these five elements are the five building blocks I should say up to five elements the five building blocks of any legal claim of self defense and they are cumulative all the required elements must be present to be don’t understand these five elements and they are innocence, eminence, proportionality avoidance, relevant to the Stand Your Ground law, and reasonableness.

If you don’t understand these five elements, you can’t possibly understand anything about Self Defense Law. So please download this infographic again, doesn’t cost a penny http://lawofselfdefense.com/elements is where you can download that.

But in the context of stand your ground, what standard ground basically says is, hey, have those five elements innocence, eminence, proportionality avoidance and reasonableness. If you meet the conditions of the standard grand statute, we won’t require the element of avoidance, we won’t impose a legal duty to retreat before you can defend yourself now, you still have to meet all the other conditions of self defense, they’re still required.

So basically, what stand your ground jurisdictions are saying is, Hey, if you’re the innocent victim of an attack, so you have the element of innocence, and that attack is imminent, immediately about to occur are actually in progress. So you have the element of imminence. And you use no more force than necessary. So you have the element of proportionality. And your perceptions, decisions, actions and self defense were those of a reasonable person. So you have the element of reasonableness. If you meet those four conditions, innocent victim of an imminent attack, use no more force unnecessary and your conduct was reasonable, we’re not going to put you in prison for the rest of your life because you arguably first failed to take advantage of a purportedly safe avenue of retreat.

The duty to retreat states and right now Ohio is still among them. Take the opposite view, they say hey, even if you are the innocent victim of an attack that’s actually happening are imminently about to occur, use no more force than necessary in your conduct otherwise reasonable. If we think you had a safe avenue of retreat, and you didn’t take advantage of it, we’re going to put you in the cage for the rest of your life.

So stand your ground states don’t take that position. They say, Hey, we’re not going to require as a legal duty, your effort to retreat before you can defend yourself against this unlawful, imminent deadly force attack upon you. So that’s all stand your ground really means and now, Ohio is again making another legislative effort to pass this into law. I believe the last time they passed it. But the governor vetoed it. I could be wrong about this, but I don’t think so. In any case, I certainly wish them luck.

Next, Ohio, and every other state that doesn’t already have it should pursue self-defense immunity provisions as well, which I think are even more important, really, then stand your ground.

Texas Proposal to Repeal Stand-Your-Ground: Serious Threat?

New Bill Would Require Texans to Retreat From Attacks, Ban Deadly Force to Protect Property

Okay. What else do we have in news? Oh, also on stand your ground. Other news, Texas, of course, supposedly, is trying to do the opposite of Ohio. Not really. But there’s one politician in Texas who has drafted legislation that would r- impose on Texans a legal duty to retreat make Texas duty to retreat state.

Now, in the last 20, 25 years, there’s been a whole bunch of states about half the states that have gone transitioned from being duty to retreat states to being standard ground states. And there’s been no states that have gone the other way. So no state that either already was or became standard ground has gone back to imposing a legal duty to retreat. But stand your ground laws are often badly mischaracterized by certain fragments, when within our silence, and particularly by the media, as if it were some kind of license to murder or license to kill or all you need to do is be frightened and you can shoot somebody in the face, which is we’ve already discussed, of course, it’s not what’s the underground means at all. All it does is removed that legal duty to retreat, you still have to meet all the other conditions for self defense.

So in the last 20 years or so there’s been, I don’t know a dozen states that have transitioned from duty to retreat to stand your ground. None have gone the other way. But it’s often perceived by some politicians as being politically expedient to make noises about doing away with standard ground because of its mischaracterization as this kind of license to murder. Usually they suggest without any evidence because no such evidence exists, that standard ground favors the white demographics in their political jurisdiction to the detriment to the cost of minorities in their jurisdiction. There’s literally zero evidence for that. But it’s become politically popular to make that argument.

So what’s this legislature in Texas, this legislator in Texas doing here by proposing to strip Texans of their standard ground lights and impose a legal duty to retreat? Is she really thinking that in Texas, she has any reasonable possibility of getting this law passed, I would suggest not, I would suggest she’s doing this purely for political and propaganda purposes. And frankly, it’s a smart move. By coming out against stand your ground, she’s immediately in the favor of people like Michael Bloomberg, and all the billions that he spends on gun control types of efforts, which I would characterize repeal a standard grant as being if they can’t take your guns, they’ll take your privilege or constrain your privilege to use force and self defense.

And she got herself a national name recognition from this stunt. So she’s raised her political profile enormously in both Texas and nationally, and now she’ll be getting favored glances from billionaires who like to engage in gun control and anti self defense efforts. So from her perspective, as a politician, it was a smart move politically for her. Um, I expect those are the actual reasons she did this. Not because there’s any prospect that Texas would actually adopt this kind of provision. Okay, folks, I think that’s all I had for news. So let me take a look through the online comments to see if there are questions.

Q&A

The Zimmerman Trial Files:  Open-Access

Now, we had a question come up about the George Zimmerman trial. Now, back when that trial was happening, I watched every minute of that trial and most of the pre-trial proceedings as well. And I wrote about the george Zimmerman trial extensively, usually multiple times a day during the course of the trial itself, with what ultimately, of course, turned out to be the rare instance of correct legal analysis of that case, virtually everything else we saw on the media or the internet was wrong. And I wrote so much on it, that I’ve actually aggregated all those Zimmerman posts and videos into one web page, kind of a super hyperlinked web page.

And someone over the course of this past week, emailed me about it to see if they could get access to all those Zimmerman writings. And the truth is you can, anybody can you don’t even need to be a Law of Self Defense member. This is all open access content. But if you’d like to read actual Correct legal analysis of the George Zimmerman case completely consistent with his acquittal at trial on all criminal charges. You can find my work there at http://lawofselfdefense.com/zimmerman. So for Gary in North Carolina who asked me if I can make all that available, it is in fact available right there at http://lawofselfdefense.com/zimmerman.

Defendant Sits in Jail for Two Years Pre-Trial:  No Bail?

Another question that came in was from Jean B. Now both Gary in North Carolina and Jean B are both Platinum members of Law of Self Defense. And Jean is referencing a case I talked about last week, the Jason Dames case, this was the case in which in 2018, Jason Dame’s was involved in a confrontation Maci killed somebody.

And he, after two years, just earlier this year in 2020, he had a self-defense immunity hearing, his defense lawyer requested a self-defense immunity hearing, in which essentially, it’s kind of a pr-trial mini trial on self-defense, where if you can convince the judge that your use of force for self-defense in this particular case it was Florida, the legal standard is, unless the prosecution can disprove self-defense by clear and convincing evidence, then the judge is supposed to grant you immunity from criminal prosecution and from civil suit for that use of force.

And Jason Dame’s did in fact, qualify for immunity. So the criminal proceedings against him have ended, unless the state appeals the immunity decision by the trial court, and he’s immunized from civil suit as well.

But one key facet of that case is he sat in jail from the initial event and his arrest in 2018, all the way through to full years, until his grant of immunity in 2020, a few months ago, last month, I think, or September of this year, I think it was. So even though he was ultimately granted immunity, in essence, a legal finding that his use of force was simply not a crime. He’d already spent two years sitting in jail. So Jean asks, well, why is that Is that normal? Was he denied bail.

And the truth is, I don’t know the specific answers to that case, except to say, Well, he killed someone he was charged with murder in the second degree in Florida, and it’s not uncommon for people charged with murder to not get bail. You’re looking at spending the rest of your life in prison without possibility of early release. If you’re convicted of the crime, the purpose of bail is to encourage the felons to show up in court when they’re supposed to. So the legal system can hold them accountable.

But if you’re looking at life in prison without possibility of early release, there’s a pretty powerful incentive not to show up in court when you’re called. And it’s often felt that no matter how much bail is asked for, if someone’s able to come up with whatever that money is, then they might just decide to become a fugitive and not come back to court. It’s also possible he might have been offered bail, and couldn’t make the bail, bail in a murder case, which is often hundreds of 1000s of dollars, often more. And now you’ve got to come up with that money.

In the case of Kyle Rittenhouse, for example, his bail was $2 million. And he was able to come up with that and he’s been released on bail. But that took extraordinary efforts by many people to pull together that enormous sum of money as you might imagine. And even if a bail bond is an option, which is not always in every state, but even if a bail bond is an option, you still have to come up with 10% of the amount. And that’s non-refundable. That’s the cost you pay for the bail bondsman services. A lot of people can’t come up with that if you’re looking at a $500,000 bail in a murder case. You know, you got to come up with 10% that’s 50 grand you have to come up basically cash or equivalent to hand the bail bondsman. And you don’t get that back when you even when you do show up to court.

And if you’re not granted the bail, folks, yeah, you just sit in prison until your cases has some kind of final adjudication. That’s the way it works. If there’s probable cause to charge you with the crime so there’s been a sworn information by the prosecutor or an indictment by the grand jury. Yeah, especially in a felony case, a murder case. If you’re not granted bail, you just sit in jail until your your trial comes around. In.

In Jason Dame’s case, that was a full two years he would have gone to trial in early October, had he not been granted immunity. So it would have been regardless two years sitting in before the trial even started.

And by the way, folks, there are some places in the country. I mean, most of us live in somewhere in the vicinity of urban centers where there’s a very robust criminal justice system in many urban centers basically arraignments where bail is granted or not where the decision is made or running like 24 hours a day, seven days a week around the clock. But there are rural counties in the US that don’t have a magistrate personally present all the time. They have instead kind of a roving magistrate who goes from county to county. And when he shows up, he deals with whatever arraignments need to happen in that particular county.

But he may show up once a month. So you could be arrested, you don’t even have the possibility of arguing for bail until that magistrate shows up. So you could sit in jail for a month, three weeks, four weeks, and then make the argument for bail. That would be your first opportunity. And you spend that entire three or four weeks sitting in a jail cell. So that can certainly happen.

Has Anyone Yet Used Missouri Self-Defense Immunity Law?

Got a email inquiry here from Donnie in Missouri, he’s asking about Missouri’s self-defense immunity law, which was passed in I believe. I thought it was recent. I thought it was like 2018. He says 2007 here, but I don’t think that’s correct. I think it was 2018. But in any case, he asks, basically, has anyone ever raised self-defense immunity under Missouri law based on that statute?

And the short answer is, I don’t know. And the reason we don’t know is because we don’t really know what happens at the trial level. And this would be even worse, this would be at the pre trial level. So I’m sure someone local to the Missouri criminal justice system or wanted to put in enough effort. I mean, it might have to be done county by county could look and see what kind of motions have been filed. And if any motions for self defense immunity have been filed. It’s been two years. So I expect someone’s taken advantage of the option to pursue self defense immunity. But there’s no easy way for that to be searched like on a Lexus or Westlaw database, for example.

Unless there’s a self defense immunity issue that ends up being appealed to the appellate courts. The appellate court decisions are captured by Lexis and Westlaw. And I did take a look at the appellate court records for self defense immunity before we started today’s show. And there were only three cases that mentioned self defense immunity at all three appellate court decisions that mentioned it, but I’m not sure they were really self immunity cases, because every time they mentioned immunity, they also mentioned at the same time, the just the general self defense statute. And I think it may be a habit of the courts, simply referring to both simultaneously, self defense and the self defense immunity statute, even when it’s really not an immunity issue at stake.

But no, not a robust appellate record by any means. touching upon self defense immunity.

And this happens a lot, folks. So one thing to keep in mind, we know the law, the court decisions, the case law based on appellate court decisions, but appellate court decisions take years to come to fruition to completion years from the event in question. So anytime there’s a new law passed, you know, the laws passed, then somebody is involved in an event that may involve that particular statute, and they have to go through the whole pre trial process. They go through trial, they get convicted, they appeal their conviction, and only then do we begin to get an appellate court record relevant to that new statute.

And that can take years from happening. And until that happens, we don’t actually have case law on that statute. And until you have case law on a statute, I would suggest you don’t really know what the statute means just from reading the black letter law, the statute because it doesn’t mean what the legislature might have hoped it would mean, when they drafted it and pass it into law. The governor signed it. It means ultimately, what the courts say it means when they interpret and apply that statute to real people in real use of force cases. But we don’t have much yet in Missouri about how that will ultimately shake out. Largely, I think, because there just hasn’t been enough time. It’s only been a couple of years, I believe, since the since the immunity law was passed in Missouri.

Is a Baseball Bat a Lethal Weapon?

Let’s see. Jack asks, is a baseball bat, a lethal weapon, well, anything really can be a lethal weapon, right? It’s some things are inherently lethal weapons if they’re designed to inflict death or serious bodily injury. So a gun or a knife used in a offensive manner, are often deadly weapons as a matter of law. But anything can be a deadly weapon for use of force law purposes. It all depends on whether it’s being used in a manner likely to inflict death or serious bodily injury.

Now, when we use the phrase deadly weapon, we need to differentiate between use of force law context, and weapons law context. So every state has various weapons laws, what you’re allowed to carry on your person, what you need to permit for what you’re allowed to carry into certain secure facilities and so forth. And often, those weapons laws will have an enumerated list of the items that are prohibited that they want to be able to prosecute you for if you’re unlawfully in possession of those particular items. And so they’ll specify a gun, knife, stiletto, club, baton, all kinds of stuff.

But using the phrase deadly weapons in that weapons context is different, much more specific, often enumerated different than the use of the phrase deadly weapon for use of force law purposes for use of force law purposes. a deadly weapon is really anything being used in a manner likely to inflict death or serious bodily injury.

So a baseball bat being used to play baseball is not a deadly weapon for use of force law purposes. But if it’s being used to hit somebody in the head, then it’s being used to inflict death or serious bodily injury than it is being used as a deadly weapon. A shoelace being used to hold your shoe on is not a deadly weapon, but if you wrap it around someone’s throat in an effort to fixate them, it’s become a deadly weapon because of the manner of its use a plastic grocery bag, same thing, using it to carry groceries, clearly not a deadly weapon, duct tape it over someone’s head so they can’t breathe. Now it’s being used in a manner likely to cause death or serious bodily injury. So really, anything can be a deadly weapon depending on the manner of its use.

Hey, Marty Hayes, how are you Marnie is top dog at Armed Citizen Legal Defense Network, great group of folks. You know, I mentioned earlier on when I talked about our sponsor CCW Safe that while I find CCW Safe to be the best fit for me, it may not be the best fit for you and I can say that because none of these plans are perfect for everybody. Each of these plans is variations, different conditions and exclusions that apply. And it’s possible that the way your life is arranged CCW safe is not the best fit for you.

If you take a look at what they have to offer, and you decide If that’s the case, I would strongly urge you to take a look as an alternative at the Armed Citizen Legal Defense Network. They’re a great organization, great people, fantastic board advising them on, well, everything that they do. And Marty, if you want to put in the URL for Armed Citizen Legal Defense Network, I’m sure folks can just Google that. But if you want to put in the URL, I certainly have no objection.

Let’s see. Yep. Okay. Well, normally, we aired this live show, both on our Facebook page and on our member dashboard, but it looks like I messed up the member dashboard part for today’s show. Don’t worry, folks, if it’s not there live, I’ll be sure to put the as normal. We’ll put the recorded playback version of today’s show as a standard blog post and you’ll be able to access it there.

Arbery: Does Unlawful Entry Infer Felony Intent for Burglary Purposes?

Let’s see. What else do we have? Donny asks, this is with respect to the Arbery case and his unlawful entry into the dwelling and whether or not that constitutes burglary. Does the unlawful entry imply the intent to commit an offense after the entry? I would? I haven’t looked at that closely in Georgia law, Donnie, but I would suggest not because they’re presented in the statute as two separate elements of the criminal charge. And you wouldn’t need the intent portion if that was simply inferred from the unlawful entry. Right? It becomes duplicative at that point.

And there may be innocent explanations for why someone went in. For example, I mean, many people will if they see a construction site, they might step onto the property, the construction site to look around, especially men because they’re curious about such things. So if they were perceived unlawfully entering, and then exiting nothing in their possession, which would apply to Arbery as well.

But when they were, if they were stopped and asked what they were doing, they said, Hey, I’m just interested in construction sites. We’re just looking around to see what was going on. Alright, well, they don’t look like there was an unlawful entry, maybe a simple trespass, but no apparent evidence consistent with an intent to commit a felony on the property to actually steal items from the dwelling. So then you wouldn’t have felony burglary. So I would think you’d have to demonstrate both.

But again, remember here, it’s not required on the part of the McMichaels or a part on the part of Ronnie buying, that they have absolute proof that Arbery was committing a felony burglary, what they needed is a reasonable suspicion that he might have been committing a felony burglary under that Georgia felony burglary statute. And I think there’s evidence to support that position. I mean, competent, substantial evidence that the state will have to disprove beyond a reasonable doubt in order to overcome, in order to overcome their defense to the underlying, I believe it’s some form of unlawful detainment unlawful restraint, unlawful arrest, kind of provision in Georgia law, which is a felony under Georgia law.

They were they’ve been charged with that underlying felony, the unlawful arrest felony, and that’s the predicate for the murder charge against them because they haven’t been charged with murder directly. They’ve been charged with felony murder. Frankly, I don’t think they can be charged with murder directly because it looks like the shooting of Arbery happened after Arbery attacked Travis McMichael and then the struggle over the shotgun.

So I think they’re afraid they can’t prove an intent on the part of Travis McMichael to shoot Arbery with the shotgun. So they’re not even trying for that. That’s why they’re going for felony murder.

But to go for felony murder, you need an underlying felony. The underlying felony is this claim of unlawful arrest. But it appears to me there’s substantial, credible evidence to privilege the McMichaels to have made the stop. In fact, it’s not even unlawful arrest, attempted unlawful arrest. So but again, I think there’s plenty of evidence to support the McMichaels position that they were privileged to, if not arrested, certainly make a stop and ask Arbery what he was doing by unlawfully entering the property, which is of course what they say they were doing at the time. Arbery charged them and fought Travis McMichael for a shotgun.

Arbery: Why Flee From Innocent Unlawful Entry into Dwelling?

Let’s see. Yeah, so Tony asks, how would an innocent person have acted they got caught innocently looking at a home that was being built to the runaway? I don’t know. Maybe they would. I mean, certainly have a neighbor walked over and said, Hey, can I help you? What are you doing here? If you flee under those circumstances, it looks weird. I think that is in fact, pretty much When Arbery initially fled, because I believe it was other people other than the McMichaels, who observed him and called out to him to stop. And it was only after hearing those shouts, that the McMichaels came out armed.

Now, of course, they’ll say they came out armed because someone of a similar description had stolen the gun from a vehicle in their own driveway. So they were concerned, the person could be armed with that gun. And they only had their own guns in order to defend themselves, should that prove to be the case? Now, if we imagine instead that the, you know, Arbery was not in flight from anything until he was approached by armed men with shotguns, okay, I know, I think lots of people might be inclined to try to flee. It’s more difficult to justify charging the person with the shotgun and fighting them for the weapon. That’s harder to imagine.

But again, a lot of the speculation doesn’t really have much to do with anything. Because the truth is that what matters is not so much what was going actually going through Arbery’s mind at the time. What matters is the reasonable perceptions of the McMichaels and Bryan to what they were observing in terms of evidence about the events. So it doesn’t matter whether or not our boy was actually intending to commit a burglary or much of anything else. What matters is what the perceptions of his conduct would have raised in the mind of a reasonable and prudent person.

Defendant Sits in Jail for Two Years Pre-Trial:  Why No Earlier Immunity Hearing?

Donnie asks, When referring to the Jason Dame’s case, the guy who spent two years in prison before being immunized from prosecution in Florida, did he stay in prison two years because he did not request an immunity hearing.

We don’t know. But it’s possible. So, it’s interesting that he only requested the immunity hearing a couple of weeks before his trial was going to begin. Now, a lot of defense attorneys, including in Florida, where the self-defense immunity statute is pretty favorable. don’t really like to pursue self-defense immunity.

In some cases, it’s because the claim of self-defense is so bad, but it would be pointless. But also, you’re really putting yourself in the hands of that hearing judge and whatever predilection they may have to be willing to grant immunity.

Now, if you’re not granted immunity, if you’re denied immunity, you can still argue self-defense at trial, there’s no problem there. But by when you have that immunity hearing, basically, it’s a mini trial. So you’re laying out your entire legal defense for the prosecution to see before the game starts.

And in terms of things like disclosing legal strategies, the prosecution really as a practical matter is required to expose a lot more to the defense than the defense is to the prosecution plus at trial, keep in mind, the prosecution goes first. So they have to make their legal arguments first, then they rest, and then the defense gets a chance to respond by presenting their counter arguments. So that the defense normally gets to see the prosecution’s entire game plan before they have to substantively respond to that game plan. The prosecution doesn’t get that benefit, they go first. So they don’t really know what the defense game plan is in any detail.

I mean, of course, they’ll know if it’s a self-defense case, for example. But not the deep details of that self-defense narrative until they get to trial.

But if you do the self-defense immunity hearing, you’re laying all that out for the prosecution to see, to see beforehand before they get to trial. And arguably, they could fine tune their narrative of guilt to as a result of what they saw in the self-defense immunity hearing. So it’s possible the defense here for those and other reasons, chose not to pursue self-defense immunity until they really had their back against the wall with the trial about to start anyway. And then they decided to give it a shot with in this case success.

Security Cameras Inside/Outside Home: Good Idea? Risks?

Tony asked, What do you think about having security cameras inside and around your home? more of an asset or liability? Well, I can tell you, I have cameras all over my home, I consider them an asset. They’re an asset as long as what they’re recording is consistent with the law. So normally, for good guy cases of self defense, if we’ve made any effort to educate ourselves on Self Defense Law, we keep our conduct within the legal boundaries. And the more evidence of that, that there is including video evidence, the better off we are.

Now, if you’re going to put up cameras, and then you’re going to break the law, if you’re going to use force unlawfully outside the bounds of self defense, that would be bad for you. I think the solution to that problem is not to not have the cameras. The solution to that problem is keep your use of force within the legal boundaries.

Disparity of Force Rule: How’s It Work?

And Wesley asked, Can you address the disparity of force rule? Well, it’s not really a rule. But it touches upon the element of Proportionality which has to do with the degree of force involved in a confrontation. And as a very generalized statement.

Before you can use deadly force and self defense, you need to be facing a deadly force threat, a threat readily capable of causing death or serious bodily injury normally, a maiming kind of injury. If all you’re facing is non deadly force threat, you can only use non deadly force in self defense, a bit of a generalization but a good working rule of thumb.

Well, if you want to justify your use of deadly defensive force, you need to be able to point to that deadly force threatened obviously, if the aggressor had a gun or a knife. Well, that’s a pretty explicit deadly force threat, but sometimes they don’t have a gun or a knife sometimes. It’s other factors that are what made them a deadly force threat.

And one of those could be a disparity of numbers. For example, you were by yourself defending yourself against multiple attackers, or the person attacking you is much stronger or larger than you are has an exceptional fighting ability you don’t have and all these characteristics are kind of fall into a general bucket of disparity of force. In other words, what made that person a deadly force threat that justified my use of deadly defensive force was not some particular weapon that they had, but that they otherwise had a disparity of force that raised the level of danger they presented to a deadly force level because of that disparity of numbers, disparity of size, disparity of strength, and so forth. So that’s how that concept applies in use of force law.

Alright, folks, well, we’re a bit over the hour. So I’m running long. So I will begin to wrap this up right now. Again, as always, please I encourage you to join us every

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Alright folks, thank you very much for joining me here again and until next time, please remember:

You carry a gun so hard to kill which is certainly why I carry a gun so I’m hard to kill my family is hard to kill. You also owe it to yourself and your family to make sure you know the law so that you’re hard to convict.

Until next time, stay safe.