News/Q&A Show: Feb. 11, 2021

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 February 11, 2021 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:

NEWS

Q&A

  • Would Law of Self Defense defend a NAZI in a use-of-force case?
  • Where do retired law enforcement stand under current HR-218?
  • How would officer know Rayshaad Brooks had only a TASER and not a gun?

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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!

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

IMPORTANT:  We encourage civil and reasoned debate among Members in the comments.  That said, comments reflect the legal opinions of those who authored them only, and no comment should be assumed to reflect the legal opinion of, or be assumed to be shared by, Attorney Andrew F. Branca, except those authored by Attorney Branca.  Law of Self Defense LLC does not systemically moderate comments for legal correctness, and we suggest that all comments be viewed with an appropriately critical eye and a grain of salt.

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

Law of Self Defense © 2021

All rights reserved.

TRANSCRIPT

Welcome, everybody. Welcome to the Law of Self Defense News/Q&A Show for Thursday, February 11 2021. Can’t believe we’re already here. I am, of course attorney Andrew Branca for Law of Self Defense.

At Law of Self Defense , of course, we do plain English legal analysis of use of force events in the news as well as court cases. And our mission here is to help make all of you be able to make better informed, more confident, more decisive decisions in defense of yourself, your family, and your property.

Part of how we do that is through this weekly Law of Self Defense News/Q&A Show. This is the one piece of content we produce all week that’s free and open access, available to everyone.

We do produce content just about every day of the week, but that’s largely for our Law of Self Defense Members. We’ll talk more about that in a moment.

But if you’re watching this, either live on Facebook, or on our Law of Self Defense Members page, or watching or listening to this as a recorded replay, this is our one piece of content we produce each week that’s freely available to everybody. All we ask is, not payment, but if you like what you hear and see, if you appreciate the value of this content, if you could let one or two other people know to tune in, that would always be greatly appreciated.

And the great news is that effective for 2021 we now also make this weekly News/Q&A Show available as a podcast. The podcast is on all the major podcast forums, including Spotify, Pandora, Apple podcasts, iHeart, just about any one you can imagine that you think of would be the way to go. Now sometimes when you use the search functions in those podcast platforms, we may not come up. We’ve seen that happen, we’ve heard from a few people.

But if you point your browser to http://lawofselfdefense.com/freepodcast, you’ll find us immediately we have links to our podcast for all the major services that it’s on.  And again, if you like it, feel free to point friends and family there as well. That’s the best thing you can do to help us expand the Law of Self Defense community.

http://lawofselfdefense.com/freepodcast

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.

Okay, folks, so what we do in this News/Q&A Show, if the title didn’t give it away, is first we’ll cover some events in the news, use of force events that have caught my eye that I thought worthy of discussion. We don’t tackle these as in anything like the depth that we do for our content for our members, obviously. But we’ll touch upon them quickly to give you a sense for what the legal issues might be in these kinds of cases.

And then after the News segment, we’ll dive into questions, we’ll answer questions that have been sent in ahead of time to us, as well as questions that are submitted live during the show. So, if you’re watching this live streamed on Facebook or in the membership dashboard, feel free to post any questions you have in those comments. We can’t promise to answer them all. But we’ll certainly take a look at them before we close out the show. And we do close out the show at about the one hour hour mark folks, we try to be respectful of your time as well as my time of course.

And as it happens this week, we only had a couple questions sent in ahead of time. So we have a large window for answering questions you submit during the live show. So I encourage you to do that. I will scroll through the comments, the live comments before the end of the show and answer your questions as best I can. And the questions don’t have to be related to what we covered during the show folks. It can be on any use of force, issue, content, legal doctrine, whatever you’d care to ask about. I’ll do my very best to answer for all of you. So with that out of the way. Again, feel free to drop your questions into the comments as we go along and I’ll look at them near the close of the show.

NEWS

So let’s dive into the news items.

Florida Woman Released On Bond After Mistakenly Shooting SWAT Officer

The first news item I wanted to cover today was a story out of Florida, Florida woman released on bond after mistakenly shooting SWAT officers.

So this is a unfortunately, rather common event, especially involving no knock warrants, although here the police say they not only not they announced themselves with megaphones, electronic microphones and loudspeakers.

But in any case, the general scenario here is a Florida woman and her boyfriend. They hear glass breaking, it’s early in the morning. at their home, they hear glass breaking their sleeping bed, they arm themselves. They believe there’s a burglary taking place or a home invasion taking place. They arm themselves they fire at the apparent intruder. And of course it turns out the intruders are SWAT executing a felony warrant for drug dealing.

The woman’s rounds do hit one of the SWAT officers but in his armor, so he doesn’t suffer serious injury thankfully, but the woman and the boyfriend are both charged with attempted murder and held on half a million dollars bail.

Now, on just those facts alone, folks that the applicable use of force legal principles here are pretty straightforward. You’re allowed to defend yourself against the reasonably apparent threat. The threat doesn’t need to be real or actual. It needs to be reasonably apparent meaning reasonably perceived.

So it’s not hard to imagine a scenario in which someone awaken from a deep sleep at the sound of breaking glass might assume they were facing a burglar or home invasion, engage that apparent intruder with fire, and then only discover after the fact that the people breaking in are law enforcement, who presumably would be executing some kind of lawful warrant that uses defensive force.

If the defender genuinely believed and that belief was objectively unreasonable, that defensive use of force would be lawful self-defense. Now, was there actually a burglary or a home invasion, unlawful home invasion?

No, but that doesn’t matter. What matters is, did the defender reasonably perceive they were defending against an unlawful use of force? Now the difficulty, of course, is that the law enforcement is going to say, presumably, truthfully, that they announced themselves that they not they said they were police as in this case, they said they were executing a warrant using megaphones and loudspeakers so that the people in the building, according to law enforcement could not reasonably have perceived their entry as an unlawful burglary or home invasion, but knew that it was a lawful entry by law enforcement executing a warrant.

So you can see how those two different narratives would play out. But the bottom line is a defender who had a genuine subjective good faith belief that they were defending against an unlawful entry. So long as that belief was also objectively reasonable, can shoot at people who are actually the police but reasonably perceived as being burglars are home invaders, and that’s a lawful use of force. It doesn’t mean it’s a good thing. There’s lots of lawful uses of forces that are what we technically call awful, but lawful. But it does mean that use of force would be legally justified.

Here’s the difficulty, folks in almost all these cases that I come across. Now, there are genuine cases where the police go to the wrong address, or there’s some other mistake, and they’re breaking in the police are breaking in believing they’re lawfully executing a warrant, but in fact, are breaking into the wrong house and the residents of the home have no reason to believe there would be law enforcement kicking in their door, much more likely, if they’re normal, law abiding citizens to believe they’re being subject to a burglary or home invasion. And they defend themselves accordingly that that happens.

But it’s not very common, folks, in most of these cases, where the homeowner suddenly claims, Oh, my gosh, I did not know you were police officers, officers, I had no idea. In most of these cases, it turns out that the homeowners were in fact, drug dealers.

And in fact, this particular house in Florida, was full of weed, I mean, massive quantities of weed more than enough to establish a presumption of intent to distribute, the police did not have the wrong address. The warrant was not without factual and legal basis, it was a good warrant being appropriately executed. Now, I’m not a fan of no-knock warrants, although of course, the police say this was not no knock, in general, because I think it leads to these kinds of mistakes.

But this was not in fact, a mistake. This was a properly executed warrant. And it just occurs to me folks that, listen. I don’t have a problem with drugs personally. But the law says they’re illegal in most places, and certainly in these kinds of quantities. And if you’re engaged in unlawful drug dealing from your home, it ought not be a surprise when the police show up with a warrant and kick the door in. You’re not in the same position as a normal law-abiding homeowner who finds the door being kicked in. You have a reasonable expectation that the police may show up with a warrant to search your premises and arrest you.

So I don’t think that this, hey, I had a genuine subjective, if mistaken, but reasonable belief that I was defending against a burglar or home invader, which, by the way are heightened risks for drug dealers, of course. But I find it very difficult for that narrative to fly. When the person being shot out turns out to be a police officer when the drug dealer knows they’re also at heightened risk of facing a lawful forcible entry by law enforcement executing a warrant.

By the way, folks, when I talk about all these news stories that caught my eye, including this one, we also include as part of each week’s News/Q&A Show a text form of the show, a brief summary of the show, followed by a transcript, a written transcript of the show, and then that transcript and as well as in the summary, we include links to the news media for all these stories. So you can click through and read the original news stories for yourself. Obviously, we just cover them in summary fashion here.

GA Attorney General Refuses to take over Rayshard Brooks Case

A second news stories that came to me, came to my eye and made me chuckle as I just chuckled again. Now we’re calling it is headlined the Georgia Attorney General refuses to take over the Rayshaad Brooks case.

Now Rashard Brooks was the drunk passed out in a drive thru suspect who violently resisted lawful arrest. This being in Georgia, of course, he fought off the police officers, he stripped one of the officers of his taser. And while he was in flight from arrest and being pursued by the other officer, he pointed the taser back at the pursuing officer. And that officer then shot and killed him.

Folks, tThis is a lawful use of deadly defensive force by that pursuing officer every day of the week and twice on Sunday. a taser obviously is intended to immobilize the target, an armed officer pursuing a non-compliant fleeing criminal suspect, who intentionally debilitates that officer, is committing an attack of deadly force proportions, making someone incapable of defending themselves, in effect, paralyzing them assuming the taser works correctly, which they don’t always do.

But you have to presume that’s going to be the case. Immobilizing incapacitating that armed officer pursuing the suspect is a deadly level use of force, meaning of course, force readily capable of causing death or serious bodily injury.

But of course, the officer who shot ratio books was white and ratio Brooks was black. So this became immediately one of these racially energized cases.

And as it happened at the time, despite this being about as crystal clear a lawful shooting as possible. The relevant district attorney in Fulton County, Georgia where this occurred, he was in a tough race for reelection. He was facing possible criminal prosecution himself for misconduct. And he decided to grab onto this case bring murder charges against this officer, largely for what appeared to me to be politically motivated purposes. In the hope, I guess, that this would salvage his reelection campaign to continue to be district attorney for Fulton County.

And his stated premise was that hey, the suspect the victim of the shooting Brooks, when he pointed that TASER at the pursuing officer, that was only a non-deadly threat of force, TASERS are only non-deadly force. He made this argument in the context of this case against this officer despite the fact that he had only recently charged other officers with deadly force crimes for the misuse of a TASER. So in that context, when he wanted to the taser was deadly force when he was prosecuting a police officer in this context when he wanted to the taser was non deadly force when he was prosecuting an officer. It’s obviously logically incoherent and purely done for political purposes.

But in any case, that prosecutor lost his race for reelection. Good news. There’s now a new district attorney in Fulton County, named Fanny Willis. And she, folks, doesn’t want anything to do with prosecuting this officer. But at the same time, she apparently doesn’t simply want to drop the charges either. I’m guessing again, for political reasons. She doesn’t reasonably enough want Al Sharpton and Benjamin Crump and mobs of angry, violent people rampaging through her district and calling her a racist, because she dropped the charges against this officer.

So instead, she’s trying to shovel the case over to the Georgia State Attorney General now, it’s not a bad idea. It worked in the George Floyd case. In the George Floyd case, the local prosecutors didn’t want to take the case. And so it was handed over to Keith Ellison, a very progressive left state attorney of Minnesota, and he gleefully took the case and of course, is prosecuting the four officers involved in the George Lloyd case with charges as serious as murder.

So reasonably enough, I guess this Fanny Willis prosecutor said, Hey, if it worked in the George Floyd case, maybe I can get rid of this political and legal hot potato by shoveling it off to the Georgia Attorney General.

But folks it didn’t work. The Georgia Attorney General is no sucker. And he apparently said not just no thanks to this political and legal hot potato of a BS prosecution of this officer but hell No, thanks. Now we’ve covered this Rashard Brooks case in excruciating detail since its inception, including detailed legal analysis of the tremendous amount of video that’s available in the case.

That’s all available for our Law of Self Defense Members, of course, and we’ll continue to cover the case as new developments occur as this new story did. I will note, of course, that whatever happens in the case, whatever the legal outcome, the officer involved has already, of course, lost his job. and by extension, his career, despite the fact that any reasonable analysis of this case in court

All the video captured clearly shows this was a perfectly lawful use of defensive force by the officer. So sometimes folks for purely political reasons, even if the use of force was lawful, the process itself becomes the penalty, the punishment, again for purely political reasons.

Kyle Rittenhouse has fired controversial civil lawyer John Pierce

Another story I wanted to touch upon was that of Kyle Rittenhouse firing now this isn’t the headline. I don’t know if this is literally true or if it was mutually agreed to. But the headline says Kyle Rittenhouse is fired controversial civil lawyer john Pierce. So, John Pierce is a well-known attorney a rather high profile.

He appears now to be completely removed from the Rittenhouse case, John’s admittedly a bit of a controversial figure. There are various claims of well, lots I’ll just call it baggage lots of baggage around John Pierce. Now I’ve spoken to John personally about the Rittenhouse case while he was still involved. He was initially involved in both the criminal and civil context I spoke with him about various aspects of the criminal facets of the Rittenhouse case.

Since then, he had stepped down john had stepped down from involvement in the criminal side of things and focused on the civil and now it appears that he stepped down even from the civil side of things or according to the headline was fired from the civil side of things. I don’t know whether that characterization is true or not. Again, who knows.

But I will note that although the Rittenhouse family does appear to have separated from John Pierce, they do have a new, less high-profile but still prominent lawyer associated with their defense of Kyle and that’s attorney Robert Barnes.

Now, I don’t know attorney Barnes personally, I really only know about him when I’ve seen from his many Twitter posts, tweets, I guess, and a number of his internet appearances on various podcasts and such. And he strikes me, also like John Pierce, he strikes me as a very intelligent and capable attorney himself and hopefully without the excess of baggage.

Now I can’t say with any degree of certainty that getting rid of Attorney Pierce was a good thing, I don’t know, that’s for the Rittenhouse family to decide. I can certainly see arguments on both sides of that issue. Who knows, I guess.

But I certainly expect that adding Attorney Robert Barnes to the case is very much a good thing. And if you’re on Twitter, and you’re not familiar with Attorney Barnes I he’s on there, he’s rather prominent. I’m sure if you just search for Robert Barnes, he’ll pop right up. He’s also in a number of YouTube videos as podcast guests, very well spoken very bright, very knowledgeable about the law. So worth knowing about Attorney Robert Barnes.

Hopefully it’ll have a beneficial effect on this case. And his position on the Rittenhouse case is that the Rittenhouse shootings were lawful self-defense period every day of the week, twice on Sunday. And that’s certainly my position on the case as well, having viewed all the available evidence and legal arguments possible in the written house case.

Man shot dead in Nashville while ‘making prank robbery video for YouTube’

Another news story I want to touch upon was this shooting in Nashville. The news headline is man shot dead in Nashville while making prank robbery video for YouTube. I’m sure you’ve all heard about this case. Unfortunately, I haven’t seen any video of it. I’m not sure if video is actually available. But in any case, the basic facts are that apparently Timothy “Darwin Effect” Wilkes approached a group of people carrying a butcher’s knife and told them he was robbing them. And one of the victims of the apparent robbery pulled out his lawfully carried pistol and shot Wilks dead.

Now, of course, the Wilkes camp is saying hey, well, it’s wasn’t really robbing anybody. It was a prank for YouTube.

Oh, my first question is, was it really? Was it really a prank? Or is just calling it a prank? Just a way to, you know, escape? I guess Wilks himself has no legal liability. But if others were involved, and I believe they were, there would have been somebody filming him for this purported YouTube video, for example. Maybe they’re just trying to avoid criminal liability. Maybe there were actually accessories to a robbery, right? Just a straight up knife robbery, and now they’re trying to claim it was a prank.

Good luck with that.

In any case, especially when a death resulted, by the way even if it was a prank now is it manslaughter? Is it involuntary manslaughter, because they’re prank created a a reasonable likelihood that death or serious bodily injury was going to occur, and they totally disregarded that risk and committing their prank. Pretty good definition of involuntary manslaughter folks, which is good for 10 or 20 years in prison. By itself, so maybe they’re calling it a prank to avoid criminal liability.

But even then even as a prank, there’s still potentially very serious criminal liability in the form of manslaughter in this case.

But regardless of whether or not it was a prank or a genuine knife robbery, it doesn’t matter for purposes of use of force analysis in terms of whether the victim shooting welts, acted lawfully. The victim of the prank is allowed to defend against the reasonably apparent threat, as we already talked about in the context of the home invasion, it doesn’t matter if the threat is real, it doesn’t matter if the gun you’re being threatened with is actually a plastic toy.

So long as it’s a realistic looking gun, it doesn’t matter if the knife you’re being threatened with is a plastic toy, so long as it’s a realistic looking knife. It doesn’t matter if what appears to be pistol concealed in a pocket and pointed at you while the robber is being committed, is just the robbers index finger and he’s pretending to have a gun. So long as you have a reasonable perception of a deadly force threat. Well, you’re allowed to defend yourself in accordance with that reasonable perception.

You may be mistaken, may turn out not to be a real gun when you thought it was a real gun. Doesn’t matter. We’re not required to make perfect decisions in self-defense, we’re required to make reasonable decisions in self-defense, and making a mistake, a literal mistake, in self defense is okay, so long as it’s a reasonable mistake under the circumstances.

And certainly a prank knife robbery, well, this is the outcome that we would expect, right in a armed America, which, of course is the kind of America we should all want more American citizens who are law abiding or armed to defend themselves and their family from criminal predation.

By the way, folks, this is also true of these many other videos we’ve seen on YouTube where someone’s walking through a tunnel or an alley, and a guy in a clown outfit with a machete or chainsaw or whatever he’s wielding steps out of the darkness to frighten them as a prank, folks, that’s a really good way in America to get yourself lawfully shot dead. So please, don’t do that. Unless that’s your goal, I guess to get lawfully shot dead for video. Different people have different aspirations, I suppose.

Police Captain Who Testified at Rodney King Trial to Testify in George Floyd Case

And now I think let’s see. The last news item I wanted to touch upon was also I thought rather interesting, and it involves the George Floyd case.

George Floyd, of course, being the gentleman who was being subject to lawful arrest, he was thrown down on the ground, being held by several police officers on the ground, one of them had his knee on Floyd’s neck, Floyd would end up dying in custody while being held to the ground.

The common perception is that the officer who had his knee and his neck deliberately intentionally murdered Floyd by using his knee to apply sufficient pressure to prevent Floyd from being able to breathe, and that the other officers were in effect accessories to this murder.

Left out of that narrative, whenever you see it in the media is that the medical examiner, his report made clear that Floyd had also had three times fatal fentanyl levels in his blood. And Floyd had a history of ingesting drugs when he was facing the prospect of arrest.

So it would appear that what actually happened here is that George Ford realized he was going to be subject to arrest apparently the police were called on him because he just tried to pass a bad bill at a check or money I forget now which, but bad payment at a convenience store convenience store owner called the police police showed up, went to make a lawful arrest of Floyd.

And it appears based on the evidence that Floyd ingested a bundle of fentanyl, and that it was not the police officers physical contact with him that killed them. But it was three times fatal ingestion of fentanyl that killed him. That’s what I expect the defense narrative to be in this case.

But in any event, of course, the case does involve claims of killing use of force by the police officers.

I’ll mention as an aside that, by the way, the techniques being used by the police officers were approved explicitly in the Minnesota Police Department use of force manual and they were trained to use those specific techniques. Even the knee on the neck technique was approved and trained by these officers department.

So in any case, the use of force questions are going to come up and of course, you can’t expect a jury to know much about use of force juries and normal people. So they wouldn’t be expected to be experts on use of force.

That’s what we would call exceptional knowledge, not conventional or normal knowledge. And because it’s exceptional knowledge, knowledge that would normally only be acquired through exceptional training or experience, and jurors won’t have that experience. The courts likely to allow an expert witness to appear to testify about that area of expertise use of force expertise.

And one of the officers charged, Officer Lane, has apparently, his attorney has, notified the court that they intend to use a particular use of force expert, a Greg Meyer.

Greg Meyer is a retired LAPD captain and a court expert witness for use of force purposes. And what’s interesting about Meyer Of course, well not of course, if you don’t know, but he happens to have also been the use of force expert witness in the Rodney King trial.

Now, many of you may be too young to remember the Rodney King trial but Rodney King was a suspect who led police on a high-speed chase through LA. They finally caught up with him, he was non-compliant with arrest, forcibly non-compliant. The police use nightsticks to compel his compliance with the arrest. Their beating of King with the nightsticks was videoed and of course the video became worldwide very quickly and widely perceived as an unlawful excessive use of force by police in making that arrest.

Now, King was not killed in the course of this arrest. But nevertheless, it was the video was portrayed as an example of unquestioned police brutality and the police were criminally charged for this use of force brought to trial. Greg Meyer was a use of force expert at their trial, he characterized their use of force as reasonable use of force as per their training and experience as police officers, given the totality of circumstances of the event including King’s non-forcible non-compliance with arrest.

Meyer also offer testimony about what are commonly called chokeholds.

Now it’s important for our purposes to recognize there’s really two distinct kinds of chokehold there’s a respiratory chokehold and a carotid chokehold and a respiratory chokehold cuts off respiration cuts off air and it involves applying pressure to the front of the throat to the larynx, and the airway. And it’s a high risk technique because it’s very easy to crush or damage the larynx causing permanent injury that results in unless the trachea and tracheotomy can be quickly done, causing the death of the suspect, so respiratory chokeholds are effectively universally prohibited everywhere.

Carotid chokehold, carotid chokes, are very different. They don’t apply pressure to the front of the throat. They involve pressure to the sides of the neck, and typically, the arm is wrapped around the neck in such a way that the hollow of the elbow is over the larynx. So there’s space over the larynx, there’s no effective pressure being applied to the larynx.

But the bicep and the forearm are applying considerable pressure to the sides of the neck, where the carotid arteries are. After a few seconds of effective pressure, blood flow is cut off to the brain, the brain goes to sleep, and then presumably, pressure is immediately released once the suspect has lost consciousness and become limp, and no permanent damage is done in the course of a properly applied chronic choke on a suspect.

And it is in fact an excellent way to compel compliance of a suspect without applying deadly force without applying force, readily capable of causing death or serious bodily injury.

Unfortunately, because of public confusion over these two different techniques, respiratory which does have a high risk of serious bodily injury or even death, and carotid chokes, which do not, the public’s inability to distinguish between these two different things, to call them all “chokeholds,” gives the carotid choke the bad reputation of the respiratory joke.

And therefore a lot of departments under political pressure have banned even the carotid choke which is really just non-deadly force and very effective.

And one of the things Greg Meyer, this use of force expert who testified in the Rodney King trial and I was scheduled to testify in the George Floyd case. One of the things he notes is that there’s a consequence to banning the carotid choke. As he notes and I’m going quote him here

“Police officers and jailers will continue to have violent confrontations with persons who choose to resist and the public will grow tired of making millionaires out of convicted criminals and others who resisted arrest. The public must insist on a reevaluation of police policy policies banning crowded chokes in a more rational policy making process. must adopt a more humane use of force on a scale governed by the severity of injuries that result from any given tactic”

And the point he’s making here is that, hey, if you get rid of the carotid choke, the police still are going to have to use force to compel compliance with arrest, unless you want arrest not to be a thing anymore, even a violent suspect.

But presuming we still want the police to arrest violent suspects, they’re going to have to use force to compel arrest and non-compliant cases. And if you take away the carotid choke, what do you think they’re going to use?

Now maybe they’ll use a taser if they have a TASER. Not all officers do. But listen, folks, I’m a fan of TASERS as an option for non-deadly force. When they work, they’re awesome. But they often don’t work, folks. And they’re not that hard to defeat by a suspect if the suspect knows what he’s doing. And you only get one or two shots out of a TASER. And then it’s done until you go through a relatively complicated reload process.

So TASERS are not, you know, they’re not the stun guns of Star Trek fame. So the TASER may not be available, not all officers have them or it may not be effective.

And then what are the officers going to do? Well, it’s likely that if they can’t use a carotid because it’s been banned, they’ll go to something like a baton, an impact weapon, or perhaps even worse to the gun.

And it’s very common in jurisdictions where the carotid choke has been banned to have a very substantial rise, I’m talking hundreds of fold increases, in injuries to both suspects and to police officers. Because now the use of force being used to compel compliance is an impact use of force, a violent use of force, as opposed to a carotid choke, which may cause a modest bruising of the neck but often not even that, and does not involve physical strikes against a non-compliant suspect, which is, of course, the scenario of the Rodney King case in the first place, the baton strikes against King to compel compliance.

Get a Taste of our Members-Only Content!

Alright, folks, that’s all the News items I had for all of you today.

As I mentioned, this is before we get to the questions, I’m just going to pause to remind all of you this is the only open access content we produce each week, freely available. Most of the content we produce each week is in fact content solely for our Law of Self Defense Members.

And membership is extremely cheap, extremely inexpensive. I’ll get back to that in a moment. But I wanted to give you a taste of the kinds of things that we covered over the course of this past week, since our last News/Q&A Show.

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Last Friday, we did a post on Stand Your Ground, we call it ‘The good, the bad and the ugly.” This was a post that looked at several new Stand Your Ground proposals.

Most states are Stand Your Ground states, folks, about 37 states are standard ground states. It’s not a minority position in America, it’s the norm in America. There’s only about 13 states that impose a legal duty to retreat before you can otherwise lawfully defend yourself.

And that number continues to diminish and diminish, folks. Ohio recently became Stand Your Ground Arkansas has Stand Your Ground bills moving through the legislature likely to pass.

And in this post we talked about two additional duty to retreat states in which Stand Your Ground legislation has been proposed. That’s in Minnesota and Hawaii. The Minnesota Stand Your Ground law was really good. It had not just stand your ground it had a self defense immunity provision. It had a legal presumption of reasonable fear of imminent deadly force harm provision, really well drafted the Minnesota bill is excellent.

One of the Hawaii bills was pretty good, not as good as the Minnesota bill. So the Minnesota bill was the good the Hawaii bill that’s not quite as good was the bad for purposes of our meme, “The Good, the Bad and the Ugly.”

The second Hawaii bill was a disaster. It was just a hot mess. That one is the ugly.

We provided a plain English legal analysis of those Stand Your Ground bills, why they’re good, their strengths, and where they’re not so good, their weaknesses.

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We also did an analysis just this past week, just a couple days ago, on the snow shovel murder suicide that occurred in Pennsylvania just outside I believe it was Scranton this past week, or I guess it occurred on February 1. I’m sure you’ve all seen the horrible, absolutely horrific video of that.

So we did a legal analysis of that event. Not really at the event itself, folks, because there’s no complicated legal issues in that event. It’s clearly just a cold-blooded murder followed, according to news reports, by the suicide of the shooter.

But what we did was we explored some alternative scenarios What if that event had gone differently?

What if, for example, the two neighbors had Not just been engaged in an “F you, F you” exchange. But what if the two neighbors who ended up killed, what if they had not just exchanged insults with the man who would be the shooter, but what if they’d actually attacked him with their snow shovels?

Would he have been justified in pulling his gun and shooting them? All other facts being the same? Now, of course, I’m not talking about the execution shots late in the video, I’m talking about just the initial fire, would he have been privileged to use his gun in lawful, deadly force self-defense against an attack by them, a hypothetical attack, of course, by them wielding their snow shovels.

We also explored a different alternative hypothetical, which is, well, what if, when that shooter began to fire at the two victims in this case, instead of standing there, like, you know, like steel match targets in front of a D class shooter just waiting to get hit? What if instead of just standing there, what if the moment they saw his gun, the moment he fired that first round?

Because they had plenty of time, folks, it took another six rounds before he hit either of them. But what if they immediately drew their own imaginary, notional, concealed carry pistols and shot back? So he pulls his gun, he fires that first shot, and they immediately pull their own guns and fire back at him.

Lawful self-defense? Well, maybe. But maybe not. Believe it or not the analysis and the answer might really surprise you, that could actually not be lawful self-defense, despite the fact that they’re returning fire at someone shooting at them.

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Just yesterday, we did a post on battered woman syndrome, there was an interesting case out of Maryland, Maryland Supreme Court, although Maryland calls their Supreme Court, the Court of Appeals for historical reasons, New York State does the same thing. But it’s the highest level court in Maryland, what most states would call their state Supreme Court.

And they had a case involving battered woman syndrome. And battered woman syndrome is a way to get into evidence in front of the jury facts that would normally be irrelevant in the case.

So imagine a scenario in which a woman she’s a longtime victim of abuse. And finally she kills her abuser, but she kills the abuser. under circumstances that don’t fit the traditional five element framework of self defense. classic example is wild, the abuser sleeping in his bed, the woman pours gasoline all over the bed, sets them on fire.

So that’s not self defense folks, in the technical framework, because obviously at that moment, while he was asleep, he was not presenting an eminent deadly force threat. Maybe he was earlier, maybe he would be later. But he was not at the time the woman herself used deadly force against him, setting him on fire.

So normally, that scenario would not fit self defense. But especially in the 1970s and 80s, there was increasing sympathy for women in these kinds of abuse cases. And the idea was to create maybe some kind of safe harbor for them, given the exceptional nature of the long term abuse to which they’d been subject.

And so it became common, I believe every state now has adopted some kind of battered woman syndrome statute that allows him to evidence facts about the pattern of abuse.

Now, prior abuse and other circumstances, other events unrelated to the killing of the abuser, a week before a month before a year before. Normally, that would not be relevant if the woman’s trying to justify the killing of self defense, because self defense would require that whatever threat she was concerned about would be an imminent threat, not something that happened yesterday or a week ago or a year ago. So evidence about past abuse would not normally be relevant evidence.

But what battered spouse syndrome statutes allow for is specifically the admission of that normally irrelevant abuse evidence in the context of this long term pattern of abuse.

And what that can lead to is it could lead to an actual acquittal, it could lead to a jury concluding that hey, this doesn’t, not the burning bed, but imagine a more a more marginal case of deadly force killing of an abuser might lead a jury to conclude, hey, this would not have looked like a reasonable killing to us normally. But now we can see that it was reasonable to this defendant given the pattern of abuse, that could be the perfect self defense or a perfect self defense leading to an acquittal.

Or it might at least lead the jury to conclude that look, this this woman had a genuine subjective belief in the need to kill and self defense that believes was objectively unreasonable, so it can’t qualify as perfect self defense. But we’ll treat it as what’s called imperfect self defense. imperfect self defense is where the killer had a genuine subjective good faith belief in the need to kill. But that belief was objectively unreasonable. It can’t lead to an acquittal, it doesn’t relieve the killer entirely of criminal liability. But what it can do, when in perfect self defense can do is mitigate what would have been a murder conviction to a manslaughter conviction.

Now, a manslaughter conviction sounds like no walk in the park. But it’s a lot better than a murder conviction to murder convictions. Typically life in prison without possibility of early release, manslaughter might be 10 years, maybe 20 years with possibility of parole, and a third of that time, so three years, five years, six years, maybe you’re out of prison, you can live your life again. So a manslaughter conviction and sentence really sucks, unless the alternative is a murder, conviction and sentence.

So that’s what a battered spouse syndrome evidence might do for a defendant. Now, of course, we explore this court decision in great detail, we link to the actual court decision, which is quite lengthy and detailed, we always do encourage you to read the actual court decisions, because that’s the best way to learn the law of folks the best way to learn the law. This is how lawyers learn the actual law, don’t rely just on statute statutes, the plain English reading of a statute can be extremely misleading.

Statutes don’t mean what they appear to mean, when you read them. They mean what the courts say they mean how the courts interpret and apply those statutes. And that can be quite different than the plain English meaning of the statute. So the best way to learn the law is not just rely solely on a statute, although of course, you do need to know that. But to also understand how the courts actually interpret and apply that statute. And you can only learn that by reading court decisions.

So folks, that’s all the kind of stuff we covered over the course just of this week, the last five days, six days, seven days since our last News/Q&A show.

If that kind of content is of interest to you, then I would encourage you and that is members only content for us, then I would encourage you to consider becoming a law of self-defense member. It’s almost shockingly inexpensive, as the normal cost is only about 25 or 30 cents a day, less than $10 a month and even better, you can try out loss of defense membership for two weeks for just 99 cents, folks. And if you don’t like it, it doesn’t even cost you that much. In fact, we’ll refund 200% of your money. If you decide you don’t want to stay a member. Of course, we can do that because virtually everybody who becomes a member stays a member at loss of defense, I’m very pleased to say. But if that trial membership for two weeks, and it gives you exactly the same access as any other full paying member for those two weeks, try now for 99 cents.

You can learn more about that at http://lawofselfdefense.com/trial, for that two week law of self defense tryout.

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QUESTIONS

All right, folks. Now I’m going to jump into the questions.

First, I’ll address a quick couple of questions that were sent in ahead of time. We didn’t get many questions in and ahead of time. So that’s well, that happens from time to time the number of questions submitted before the show goes up and down from week to week, but it does allow for broader window for your live questions.

Would Law of Self Defense Consult to a NAZI in a Use-of-Force Case?

Now one of the questions that was emailed to me, I had mentioned in last week’s News/Q&A Show a news story about a woman who was shot by a homeowner after she stole the homeowner’s NAZI sign so the homeowner had a NAZI sign in front of his house.

The woman was at a party across the street on a dare she stole the sign as she was running away with the sign. He shot her with an AR. He’s, of course, criminally charged with attempted murder, she did survive. And she’s now suing him for, in my opinion, way too little money.

And I mentioned when I talked about this last week that hey, nobody thinks much of NAZIs, right, so you can understand the motivation for stealing the flag. Just keep in mind that if you think NAZIs are crazy, well, you’re stealing the flag from a crazy person and him shooting her was nowhere near lawful. It was completely unlawful use of force. But crazy people do crazy things, folks, so maybe don’t do crazy things when you think you’re dealing with a crazy person. And a NAZI in modern America, I would suggest is likely to be a crazy person.

But anyway, Bob J emails me he asks, if the owner of that NAZI flag that was stolen was a Platinum Law of Self Defense Member.

Platinum Members are guaranteed to get my personal legal consultation on their case of their charge and the use of force event. They’re the only people guaranteed I’m way too busy to consult on most of the cases that come into our office. And they get that consultation for free. Instead of having to pay what is currently our minimum retainer is $10,000, they get that consultation for free if they’re involved in the use of force event.

But Bob asked if the person who stole the owner of the Nazi flag so a self-purported NAZI, was a Platinum Member, when I dropped everything and come to his legal aid, even though I had misgivings about his person and his conduct.

And the answer is, of course, absolutely. I don’t care about the person or conduct if I’m helping to represent that person, and an illegal matter. What I care about is the law and the facts. When I provide my legal consultation, I couldn’t care less if you’re conservative or liberal, if you’re straight or gay, if you’re black or white, if you’re a criminal, I don’t care. If you’re a NAZI, I don’t care.

It doesn’t mean I approve or disapprove or whatever of any of that. I mean, obviously, some of that stuff would be hard to approve of. But my approval or disapproval on some kind of personal level is irrelevant to the legal defense.

My job is the hold the state to its obligations to prove guilt beyond the reasonable doubt. If the state can do that off to prison, you go, but I will compel them to do that. That’s my job.

I talk with my Platinum members about the importance of, especially if you carry a gun, so you’re hard to kill, know the law so you’re hard to convict while our Platinum members are guaranteed to have my legal consult on their case. And I’ll do everything in my power to make them hard to convict.

Because that’s the job of the criminal defense is to compel the state to meet that obligation to prove guilt beyond a reasonable doubt. And I don’t really care about anything else having to do with the case, other than the law, the evidence and holding the state to that standard. So, don’t care. Don’t even care if you’re a cat person. It’s all good.

By the way, folks, for those of you who may not be familiar with our Law of Self Defense Platinum program, I would encourage you to take the opportunity to take a look at that. Again, it’s the only way to be guaranteed to have me available, we drop everything to work on cases, for let me fix that. to work on cases for our Platinum members are normal consultation fee, our retainer is completely waived for our Platinum members. Even if you’re convicted at trial, if you appeal, you continue to get our legal consultant, no additional cost. If you’re get a hung jury, and you’re retried a second time you continue to get our legal console and no cost beyond the normal membership cost. So if that’s attractive to you being guaranteed to have us available to be on your case, if you’re charged in the use of force event, then I would encourage you to take a look, just get the information, take a look at http://lawofselfdefense.com/platinum so you can make an informed decision about whether you’d like to join the many, many people who are Platinum Protection Program members at Law of Self Defense.

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Where do retired law enforcement stand under current HR-218?

The next question we have is really quick. It asks, it’s from Kenji, who’s one of our Platinum members. And he asks with all the changing laws as it relates to carrying a handgun, where do people stand? Who can carry under HR- 218? That’s the federal law that allows for retired law enforcement who meet certain conditions to continue to carry concealed in any of the 50 states.

The quick answer, can and I’m sorry, it’s not more substantive. The quick answer is that we don’t do that at Law of Self Defense. That’s not an area of the law, we cover.

We cover use of force law, when does the law prohibit or allow for the use of force or deadly force in defense of yourself, others, property? That’s what we do.

What we don’t do is weapons law, we don’t do guns law. What licenses Do you require? What are you allowed to carry or not carry? Where are you allowed to carry it? We don’t do any of that. We don’t do weapons law here. We just do use the force law, two different things entirely.

We do have a recommendation for those of you with weapons law or gun law questions. And that’s a book put out by frequent partners of ours, Concealed Carry. They have a book they put out, “Legal Boundaries by State,” has lots of gun laws, covers all 50 states and maybe more.

And it’s updated every January, it was just updated. So the newest addition is currently available. So if you’re interested in gun law, weapons law, Law of Self defense is not the source for that, but I would encourage you to and it’s very inexpensive to at least take this first step take a look at what concealed carry has in their book, by pointing your browser to http://lawofselfdefense.com/CCI.

http://lawofselfdefense.com/CCI

Okay, folks, so well, we ran right up to the top of the hour, faster than I thought but let me take a quick look at see if we have any questions from our members. somebody asks if I still need to reset my clock, maybe I was a minute or two late with the show today.

No member questions. Of course, Platinum members have their own private Q&A form that comes directly to me. So their questions get answered, either publicly if they like, or privately if they prefer, in a very timely fashion by me personally, one of the benefits of having been the having being Platinum members of Law of Self Defense.

All right, let me look through the comments from Facebook. Have I seen the 11-minute video by Lin Wood? I think it was by Lin Wood and others about Kyle Rittenhouse in the Kenosha case.

Yes, I have seen it. I did that. I believe I did a blog post on it for our members. Very good stuff. I thought it was excellent. I really set out the case very well. I expect that to be the defense case at trial.

How would officer know Rayshaad Brooks had only a TASER and not a gun?

Donnie asks, how would the officer know this isn’t a gun in the Brooks case? How would the officer know was a TASER? Pretty easy to switch to a gun? Pretty reasonable to believe it might be a gun?

Yes, I mean, you see an object and the hand being pointed at you as a weapon. There’s no reason for the officer to presume it’s a TASER and not a weapon. It’s being presented as a weapon, it could well be a gun. So again, certainly a point that could be brought up. The officer may not have known that Brooks took the TASER. So he may well have had no reason to believe that what Brooks is pointing was a TASER at all, but simply have had a reasonable perception of a weapon being pointed at him by a fleeing suspect, who just really viciously had fought off himself and the second officer.

 

Okay, folks, I think those are all the questions and we’re right at the top of the hour. So this is a good time for us to wrap up.

Again, we do this News/Q&A Show every Thursday at 4pm Eastern time, we stream it live for our Law of Self Defense Members on their Member dashboard, and also on Facebook Live.

After that we do make a replay of this show available. We keep it on Facebook, we keep it on our member dashboard. It’s also freely accessible open-access content on our Law of Self Defense blog, which you can find simply at http://lawofselfdefense.com/blog, where we also provide a transcript of the show and links to all the news articles and other content that we mentioned in the course of the show.

And of course, as I mentioned earlier, we also have it available now as a stand-alone podcast. This is separate from our members-only podcast which of course continues to be available to our loss of defense members.

But we do make just the News/Q&A Show available as a free open-access podcast on pretty much every major podcast platform including Apple podcasts, Google podcasts, Spotify, iHeart, Pandora, all of them.

Now their search function may not find us so I encourage you to point your browser to http://lawofselfdefense.com/freepodcast, and there you can get the link for any of the major podcast services where to find us.

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Alright folks, that’s all I have for all of you today. I’ll close with my usual caution if you carry against so hard to kill, that’s certainly why I carry a gun, so I’m hard to kill, my family is hard to kill.

Well then you also owe it to yourself and your family to make sure you know the law so that you’re hard to convict.

I’m attorney Andrew Branca with Law of Self Defense. Stay safe.

3 thoughts on “News/Q&A Show: Feb. 11, 2021”

  1. guilty as charged

    Just a comment about the Florida Woman who Mistakenly Shoot a SWAT Officer. Sometimes a group of people will shake down a drug dealer. It happens a lot. Corrupt police officers do it. Other drug sellers do it. Sometime the drug dealers will buy a used police cruiser at a Auction or junkyard that still has everything (emphasis EVERYTHING) still on the cruiser, lights, radios, that was supposed to be removed but never was. They can easily purchase uniforms and gear and shake down a drug point or house. When drug dealers wake up in the middle of the night, they have to figure out very quick what’s going down. The move blue lights outside, the more legit the SWAT action is perceived.

    1. My thoughts exactly. If you don’t want to be perceived as a criminal in the act of committing a felony don’t dress like a criminal and put on a ski mask and make a forcible violent entry by surprise into a man’s castle in the middle of the night.

  2. Yeronimus Pretorius

    I hate those clown prank videos. They’re dangerous, and frighten unsuspecting people just for clicks and views online. How are we supposed to know if the attacker is an actual clown, or just a person dressed as a clown?

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