News/Q&A Show: Feb. 25, 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 25, 2021 we touched on a broad range of news and questions submitted for the show, as well as questions submitted live, including:

NEWS

• NY Grand jury to consider self defense in Lysander homicide; killer ‘ghost gun’ details revealed
• NY Man shoots, kills, neighbor’s dog
• IL Man who killed in self-defense pleads guilty to gun possession
• Review looks at states’ rates of gun deaths; most of Arkansas’ neighbors saw rise after Stand-Your-Ground passage

Q&A

• Is there a “duty of care” to an attacker you’ve injured in self-defense?
• What are the risks to possessing an OC spray that looks like a gun?
• How can NY state ban programs like CCW Safe, USCCA?
• Can the “necessity defense” justify otherwise unlawful possession of a gun?

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 video playback recordings are available on each of those platforms as well as on our YouTube channel.

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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

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 LLC ©  2021
All rights reserved.
May not be reproduced in any form.

TRANSCRIPT

Welcome, everybody, to the Law of Self Defense News/Q&A Show for Thursday, February 25, 2021. Hard to believe it’s this late in February, our last show of the month. Come on in, folks Make yourselves comfortable.

As many of you may know by now this is the one piece of public access open access content we produce each week is this weekly Thursday Law of Self Defense News/Q&A Show. By the way, for those of you who may be new, I am attorney Andrew Branca for Law of Self Defense, the host of your show, and the attorney at Law of Self Defense LLC.

So this is our one weekly show that’s open access, most of the content we produce each week is for our members only Law of Self Defense is largely a membership program. But we do make this one Thursday Law of Self Defense News/Q&A Show generally available to help the world learn of us and what we do.

And what we do at Law of Self Defense is we do use of force law period. We don’t have a generalized criminal defense practice. We don’t take clients directly all our clients or other lawyers, we’re essentially a legal consultancy that other lawyers who have clients charged in use of force cases. And what we provide is our expertise, analysis consultancy, to those other cases. And all we do is use a force law by which I mean use of force in defense of yourself in defense of others. In Defense of property, we don’t do DWI, we don’t do shoplifting. We don’t do anything except use force law. That’s our focused area of expertise.

And that’s what we try to bring to all of you in this Thursday show, by the way new for this year 2021. This weekly Law of Self Defense News/Q&A Show is also available as an open access podcast. This is separate from our normal members only podcast, which is obviously available only to our members. But the Law of Self Defense News/Q&A Show podcast is available to anybody. And you can find it on all the major podcast platforms, including Spotify, Pandora, Apple podcast, I heart, I think I may have a little graphic here, I can share with you with some of those links. And indeed I do. So you can find us on all the major podcast platforms that you might think of. And if you have trouble finding us in any of them, just click the image or link below and it will have links:

http://lawofselfdefense.com/freepodcast

Sometimes their search engines aren’t very good, but it will have links to each of those platforms where you can find our podcast. So with that out of the way, let’s start with the show proper.

By the way, in the show, as the name might suggest the Law of Self Defense News/Q&A Show. In the first half of the show, we cover some use of force items that I saw on the news that I thought would be interesting to share with all of you explain in plain English, some of the legal dynamics in those use of force cases, things to watch out for to learn from the second half of the show, we do Q&A, meaning you folks ask questions, and I provide answers. Now some questions are sent in to us ahead of time and any of you has the liberty to do that. Whether you’re a law self defense member or not, you can send your questions to show@lawofselfdefense.com, and we’ll take them under consideration for inclusion in a future show.

If you are a Platinum Law of Self Defense Member you, of course, you have your own Platinum Q&A form for submitting questions directly to me where you are guaranteed to get those answered either privately or publicly in the show, whatever you might prefer.

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.

 

LEVEL 1 Core Class & State Supplement: ONLY $150!

THIS WEEK ONLY, you can save 75%, a full $450, of our best-selling combination of courses, in either online streamed or DVD form–our LEVEL 1 Core Class plus the State-specific Supplement Class of your choice.

This is a world-class education in self-defense law, all translated into plain English.

After taking these courses you will know more about self-defense law then virtually any lawyer or law enforcement officer you meet, period.

And you can do it THIS WEEK ONLY while saving hundreds of dollars!

Just click the image or link below to learn more:

http://lawofselfdefense.com/showsale

All right, with that out of the way, let’s jump into our news items.

 

NY Grand jury to consider self defense in Lysander homicide; killer ‘ghost gun’ details revealed

The first of these news items comes out of New York. And the story is that of a grand jury, which is considering so there was the use of force event in New York in the Syracuse, New York area, a man shot his neighbor. The shooting looks like a legitimate case of self defense and it appears that the man has not yet been charged within the use of force charge for that shooting. So, so far at least it looks like a good shoot in self defense.

Unfortunately, the shooting was committed with a so called ghost gun. Those of you most of you in this audience are probably familiar with the concept of a Gun, it’s a gun that’s not serialized produced by a manufacturer as a gun. Instead, it’s sold as kind of a kit, typically an unfinished frame, often called an 80% frame. Other parts are involved in fully assembling the kit, once you finish, the fabrication to the frame often involves drilling out some holes and some other important functional parts of the frame.

So you’re allowed to make your own guns in your home. There’s no law against that. Or at least there’s no federal law against that. And there’s no requirement that the weapon be serialized. So some people buy these ghost guns sometimes just as a hobby type of thing, just see what it’s like to make their own and in their state, and may be perfectly lawful to do so.

This gentleman bought a ghost gun kit, along with all the parts. And unfortunately for him, he lives in the state of New York now I lived much of my younger life in the state of New York. And as many of you will know, the gun laws in New York are fascist, there’s no other way to describe it. Likely, this person may have found it very difficult to legally purchase a gun in New York, although I would expect that to have been better in the Syracuse area than in the lower parts of the state.

But nevertheless, he had this ghost gun which he’d put together, and he’d used to shoot his neighbor in what appears to be lawful self defense. Unfortunately, New York State has laws against ghost guns, you’re allowed, apparently to have the ghost gun and all the related parts, but you’re not allowed to assemble it into an actual functional firearm. Without having the arduous New York State permits required for legal ownership of a firearm, he did not have the permit. So while it appears, he’s going to walk on the use of force event, that simply wasn’t criminal conduct. So there’s no criminal liability. He’s looking at 15 years in prison folks, for having possession of the gun, he used to lawfully defend himself.

So I don’t have an answer to this legal conundrum other than to say, if you live in New York, and don’t want to be subject to these kinds of laws, we’ll don’t live in New York, it’s one of the reasons I left the state of New York.

But in any case, it’s a reminder to all of us that your use of force itself could be perfectly lawful and legitimate, carry no criminal repercussions at all. But the circumstances around the use of force such as possession of a weapon you’re not lawfully permitted to possess, or alternatively, having possession of a weapon on property that’s posted against guns, so you’re not supposed to be there with that otherwise lawfully possessed weapon can raise legal liabilities for you completely independent of the use of force event itself, and result in a substantial period of time in prison.

Again, this fellow who looks like he lawfully defended himself, in other words, he would have been killed or maimed, but for having that gun. That’s what makes his use of force lawful, and then appears it was lawful, despite the fact that he would have been killed or maimed but for having that gun for having the gun. He’s looking at 15 years in prison on a weapons charge, even though there’s no apparently the liability for the use of force itself.

NY Man shoots, kills, neighbor’s dog

So the next news story also happens to be out of New York, the Hyde Park area of New York. This involves a man who shot a neighbor’s dog down the man is claiming that, hey, I encountered the dog out in the street The dog was threatening. I was in fear for my life, essentially, at the hands of this dog. And so I shot the dog to defend myself.

Now when you read the family’s description of the dog, it doesn’t sound like a dog that would be all that terrifying. The family that owned the dog describes it as being an 11 year old mother with seven teeth that couldn’t walk well. So as is common in use of force cases, we have a disparity in the two competing narratives, right? The narrative of guilt, which is how the family is describing their helpless dog, there could not have been a necessity to shoot their dog.

And the narrative of innocence by the shooter saying, Hey, I was acting perfectly lawfully when I was threatened with serious bodily injury by this dog. And that’s why I shot it to defend myself.

Now, there’s a lot here that’s wrong with the story. There are certainly circumstances in which shooting a dog to protect yourself would be lawful. And when you read the facts of the story, it seems unlikely to be the case here.

So we don’t really know what the circumstances were, the family says the dog was essentially helpless, there couldn’t have been a reason to shoot it. The guy who shot The dog says while I was in fear of harm at the hands of this dangerous dog, so that’s why I shot and killed the dog.

What I wanted to touch upon here was certain aspects of this kind of case shooting a dog in quote unquote self defense case, that’s different than shooting a person in self defense. For one thing, this is not a technical self defense case. Technically, self defense justification cases, the justification of self defense involves the use of force against another person in self defense. So when you read your state’s self defense statutes, or if you’re in one of the handful of states that doesn’t have a self defense statute, but it’s case law, all the references are to when it’s lawful to use force against another person to defend yourself against some imminent unlawful harm. It’s not when you’re allowed to use force to protect yourself against some non human harm, like a dog, or other animal, wild animal, for example. Now there is a legal justification available as a defense a legal defense against a criminal charge for wrongfully shooting a dog.

Obviously, shooting a dog is normally unlawful conduct. Shooting a wild animal, at least outside of the appropriate hunting season is normally unlawful conduct. So it’s normally criminal with criminal sanctions, unless you have a legal justification for shooting that animal. And the legal justification for shooting an animal again outside of the normal hunting season. But to protect yourself would not be the justification of self defense, but the justification of necessity or sometimes referred to as the justification of lesser harms, the justification of lesser evil.

The different states use different names, but the underlying concept is the same everywhere. And the idea is that, alright, you committed an act that’s normally unlawful. That’s a relatively small harm, but nevertheless unlawful. And your justification is necessity. In other words, yes, I committed that small harm. Normally unlawful normally carries criminal sanction. But I committed that small harm, in order to avoid or prevent a much greater harm. And under the doctrine of necessity, that commission of that small harm is justified, because you avoided a greater harm as a result.

And the classic example, is somebody who sees a small child strapped in a car seat in a closed, locked car on a hot day all by themselves, and it’s hot enough that it’s clear, this child will die in this car, if the child’s not rescued from the vehicle. So you break the glass of the vehicle so you can unlock the car, get the child out of the car, save the child’s life now is breaking the glass of the vehicle and unlawful act? Well, yes, of course, it’s destruction to someone else’s property. You’re not normally allowed to do that. But your legal defense would be sure I committed that small wrong breaking the glass but I did it to prevent a much greater harm, which would be the death of the child.

Now there are conditions to the doctrine of necessity one of them is that you can’t have been the person who created the necessity. So if you happen to see a child and you happen to see an unmarked car and you threw the child in the car and locked it, so the child was then locked in. While you should still break the glass to get the child out of the car, but you won’t be able to justify it under the necessity defense because you created the necessity. And that would be an exclusion from the necessity defense.

In the context of an animal attack. Normally it’s unlawful to shoot a dog in the street. But if the dog is, the dog is presenting themselves as apparently able and intending to cause you serious bodily injury or from shooting a dog really any injury, then you would argue the doctrine of necessity. Sure, normally, shooting a dog is unlawful, carries criminal sanction. But I did it to avoid a much greater harm, which is my being maimed or killed by this vicious dog when attacked me.

Of course, when pictures of the dog are shown in court to better be a dog that looks capable of killing or maiming a human being, if it’s a little Chihuahua, that’s not going to look like much of a necessity defense, because it’s going to look like your claim of the greater necessity to be avoided as either a fabrication or so unreasonable, that it’s simply can’t support the justification defense, that might be the problem for this gentleman here, right? If there’s testimony that this dog was 11 years old with seven teeth and couldn’t walk well, and the jury buys that characterization of the dog, then it doesn’t look like much of a necessity defense, because it doesn’t look like there could have been a necessity to defend oneself against serious harm from this animal.

So that’s one issue when you’re defending yourself against an animal attack. It’s not the legal justification of self defense, as we normally think about it, which is limited to defense against persons, it would be something akin to the necessity doctrine, doctrine of lesser evils justification.

Another thing to think about is under the doctrine of necessity, the lesser evils, you’re committing a small evil to avoid a greater evil. But especially in these dog shooting scenarios, a common charge that arises, and one which has been brought in this case, as well, is not just whatever harm has been committed to the dog, in this case of dog was killed, but the danger that’s created by firing that shot to other people in the vicinity.

Now, this would not arise if you were in the middle of the woods or something, and nobody else was around. But if you’re in a typical suburban Street, there’s other people, there’s other homes, there’s people walking around, for example, you fire shot in that environment, well, there’s no such thing as a miss folks, the bullet keeps going until it hits something. So you fire that shot, you’re creating a danger to everyone else in the vicinity who could potentially be fire struck by that shot.

And of course, it’s a potential danger of death, right? To every individual in that neighborhood. So now you’re trying to raise the necessity defense for having shot this dog fire that round for one thing, the rounds unlikely to stay in the dog. So it’s likely to proceed onwards until it strikes something else capable of stopping it.

But in any case, the normal doctrine of necessity is I committed a small wrong to prevent a larger wrong, so I shot the dog to prevent being maimed or killed by the dog. But what if, in fact, your conduct didn’t just avoid a small harm, it created a much larger harm, it created a harm of death to other people in the vicinity or reckless endangerment. And again, that charge has been brought, in this case very common in animals shooting cases, for charges of reckless endangerment to be brought completely independent of any use of force justification or charge or any doctrine of necessity justification or charge.

Because you can’t really use the doctrine of necessity to justify creating a risk of death to other people. That’s about the highest possible risk there can be. That can’t be the smaller risk in the doctrine of necessity balancing scheme because, well, it’s the big risk by anybody’s standards. So I would not expect a doctrine of necessity to be very effective here.

And folks, shooting dogs should not be your go to strategy for defense against dogs. Dogs don’t respond well to things like OC spray lots of mucous membranes in the face of a dog. You don’t have to kill the dog doesn’t create a reckless endangerment of death to everybody else in the vicinity.

I always urge people if you carry a gun for personal protection, I do I have my entire adult life. You also owe it to yourself to make sure you carry a non deadly means of defending yourself. My preferred method of non deadly self defense is OC spraying coarse quality product OC spray. And it works well against animals as well as against people. Of course it’s not magic doesn’t always work every time nothing does. guns don’t either, by the way, but at least it’s a reasonable fallback for non deadly force self defense.

IL Man who killed in self-defense pleads guilty to gun possession

Here’s another case this one’s out of Illinois, in which a man killed some On claiming self defense, and it looks like a self defense claim may have merit at least he hasn’t yet been charged in the case. But it’s another example of a case in which you can face criminal charges completely independent of the use of force event itself.

And in this case, like the first one, we mentioned, it’s another gun charge. This particular individual was in a dice game, he was winning too much. For the other players of the game, they decided to rob him of their winnings. They threatened him, it appears with deadly force, he pulled out a gun defending himself killed one of his attackers. And it appears there’s at least some prospect this was in lawful use of self defense. As I say, this dice player defender has not yet been charged within the use of force charge.

But what he has done is he’s been compelled to take a plea agreement to a unlawful possession of weapon charged because he’s a convicted felon. So he’s not allowed to be in possession of a gun, yet he had a gun, he couldn’t very well deny having the gun while claiming self defense for using the gun, obviously. So he’s taken a plea on that. And he’s looking at five years in prison, as part of the plea deal just for the weapons charge folks completely independent of the use of force event.

So something to keep in mind, especially for those of you, and I know there are some of you out there who may have a concealed carry permit where you live, where you normally spend your time, may occasionally find yourself traveling through states that do not recognize that permit and have more egregious laws. And you tell yourself, Well, listen, I’d rather have it and not need it than need it and not have it. Just keep in mind, if it turns out you need it, and you use it. In that state where you’re not lawfully permitted to permit possess it, you’re in the same position as this felon in possession, you’re in unlawful possession of that gun. Your use of force itself might have been perfectly lawful self defense, and you’d still be looking at a five or in New York State, as we saw before a 15 year prison sentence, just for possession of the gun. So think to yourself, is it really worth it.

Review looks at states’ rates of gun deaths; most of Arkansas’ neighbors saw rise after Stand-Your-Ground passage

And finally, I wanted to touch on another news story that comes back to a point I made last week and the point I made last week and one of our new stories. And that new story was about a couple of states, North Dakota, Arkansas, I think perhaps one other states that are moving to adopt stand your ground laws. Stand Your Ground, meaning of course, that you’re relieved of an otherwise existing duty to retreat before you would be privileged to defend yourself against a life threatening attack.

Most states, 37 states, are standard ground states, it’s the dominant by far position in the US, only a minority states impose a legal duty to retreat before you can defend yourself with deadly defensive force. And increasingly, states are and this has been true for 20 years, there’s been a bunch of states that have moved from the duty to retreat column to the standard ground column. No state has gone the other way, in the last 20 years at least. And there’s that continues to be the pattern.

So there’s a number of states currently, Ohio just became standard ground. Actually, it’s not yet effective. I think it’s not effective until April 6 of this year. But then Ohio will have become a standard ground state. The law was passed and signed by the governor, but it takes a certain amount of time to become effective. Arkansas, North Dakota. One or two other states are in the process of have standard ground bills in the legislature.

And of course, there’s always opponents to stand your ground. And it’s always the same arguments that you hear about, say concealed carry permits, blood will run in the streets, people will kill each other because they bumped her shopping carts in the grocery store and all this kind of nonsense, which never happens, of course.

And one of the things they do is they mislead with disinformation about the consequences of things like passing standard ground. Sometimes they just blatantly lie about what the various crime statistics are as follows. But when they can’t lie about the statistics, they use misinformation and disinformation.

And a common approach here. They bring up every time there’s a new state that’s about to become stand you ground is to say, Wait, wait, wait, look at all the other states that became standard ground States after they became standard ground states. homicides went up. They didn’t go down. homicides went up. And of course, what we’re all supposed to think is that oh my gosh, when you pass danger, ground, lawlessness increases.

The problem with that argument, folks, how they’re deceiving you is that there are homicides, and there are homicides. And not all homicides are unlawful. And not all homicides are social ills. Some homicides are lawful killings in self defense or defense of others.

The intended rape victim who manages to kill her rapist in the act, she’s committed a homicide. Would we prefer that she had been raped The potential homicide victim who kills their attacker, rather than get killed themselves has committed a homicide, lawful self defense, would we have preferred that the victim of the attack have been killed?

So when people talk about how numbers of deaths or gun deaths or homicides have gone up there either so stupid that they ought not be listened to, or they’re deliberately intending to deceive you. So here’s a news report, based on a study, of course, it was produced by the media. So the media is always anti gun, and anti self defense.

But they’re claiming, this is an Arkansas news outlet. They’re claiming the Arkansas legislature should not pass this danger ground bill. Because in other states, the number of people killed in shootings per capita, increased by double digit percentages in the years after lawmakers approved standard ground laws in the States. In other words, hey, they passed stand your ground, those other states, and their homicides went up.

Well, folks, maybe that was a good thing. Maybe the people who were killed and let’s face it, when we’re talking about homicides, it all depends on who is doing the dying. Maybe the people who were killed were the bad actors. Maybe they were the criminal aggressors attempting to murder and maim and rape innocent people, and they were killed by their victims or by people stepping up to defend their victims.

That’s completely different than the homicides that are committed again, of the innocent victims themselves. And why don’t they say that? Why don’t they say murders increased, because of course, by definition, a murder is a homicide that’s unlawful, as opposed to self defense killings, which are homicides that are lawful. They don’t tell you that folks, not by accident, but because they intend to deceive.

 

Okay, folks, so that’s all the news items I wanted to cover today.

Again, I mentioned at the start of today’s show that most of the content that we produce here at law, self defense is members only content. Membership is dirt cheap. And law, self defense is only about a quarter a day to be a member.  You can learn more about that by clicking the image or link below:

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QUESTIONS

Okay, so now let’s jump into our questions. We had a number of excellent questions sent in today. For today’s show, and again, just as a reminder, you can send us questions anytime at show@lawofselfdefense.com, and we’ll certainly consider them for a future News/Q&A Ahow.

Is there a “duty of care” to an attacker you’ve injured in self-defense?

Martin H, who happens to be from Guam sends us an email. It’s kind of a complicated email asking about the use of pepper spray in self defense, more complicated than we can get into really, comprehensively. That’s the kind of stuff we cover in our level. one full day course, is the use of non deadly force and self defense and the legal parameters around that, in particular, the use of OC spray, which I give some emphasis.

But in closing, Martin Eliseo asks, If there’s any duty of care, if you’ve incapacitated someone, so you’ve used force against someone defensively, let’s presume it was lawful self defense, but now you’ve caused them some incapacity or some injury, do you have a duty of care to provide them so you’ve pepper sprayed them, or you shot them or stabbed them, or whatever the case might be? they’ve suffered injury, because of your use of force, do you have a legal duty of care now, there is such a thing as a legal duty of care, it’s a thing that exists usually in one of two contexts.

So you don’t have a generalized legal duty of care. If you see someone drowning in a pond, you may think the moral right thing to do is to swim out there and rescue them. And perhaps So, but there’s no legal requirement for you to do that. In other words, if you don’t do it, you’re not guilty of any crime. There’s particularly not a legal requirement to do such a thing, if it would create Jeopardy for yourself. And for those who don’t know, rescuing someone who’s drowning, especially if you’re not trained in how to do that is a high risk endeavor. But in any case, you don’t have a generalized legal duty of care, generally, to the public in general.

Where you can have a duty of care is if there’s a special relationship between you and the person needing the care. This can happen if there’s a custodial relationship, say a police officer in custody of a suspect, or a school teacher in local print is custody of children, or a nurse or doctor and custody of a patient. So in certain narrowly defined special types of relationships, there can be a duty of care for one person to provide care to another.

Another scenario in which there can be a duty of care is if you’ve caused the harm, that the other person is suffering. So you didn’t just happen to see someone drowning in a lake, you push them off the boat into the lake, and now they’re drowning, there, you have a duty of care you caused the danger or harm to that person.

So under that standard, it would seem to apply to a self defense scenario, right? If you’ve pepper sprayed someone, you shot someone, do you have that duty of care to them? Do you are you legally obligated criminally, legally obligated to provide them now with first aid or other care or face legal consequences for having failed to do so?

And the answer is probably not, especially if doing so would place you in jeopardy. Now, absent the Jeopardy component, maybe you would have a duty to provide care for harm that you’ve caused. But there’s a balancing here and the balancing is on two levels.

One is are you facing yourself jeopardy in an effort to cause harm so someone’s trying to kill you with a machete? You shoot them with your concealed carry? pistol? They fall down there bleeding? You call 911? Yes, for police and an ambulance. Are you now obligated to also approach them come in contact with them personally First Aid.

Well, the argument I would make is, hey, the only reason I shot them was they were trying to kill me. So that’s a person who was just trying to kill me. I’m disinclined to close proximity and someone who was just trying to kill me. I’m not obligated to provide care if providing that care means that I’m creating potentially life threatening Jeopardy for myself.

And if the counter argument is, Well, yeah, but you know, you’re like the guy who pushed someone into the lake off the boat, you cause the harm?

I would argue, well, no, I didn’t cause the harm, not in any legal sense. The person who caused that harm, legally speaking, was the aggressor, the aggressor compelled me to cause them injury that’s on them, not on me. It was their conduct that was unlawful that led to the injury, my conduct was legally justified as lawful self defense, therefore, it’s their burden to carry.

Now, having said all that, I will tell you that prosecutors love to talk about this in court. If you shot someone in self defense, even if you called for police in an ambulance, which you should do, by the way, because it helps mitigate this argument by a prosecutor this risk is rhetorical risk. Prosecutors love to argue that, hey, this defendant didn’t just shoot that child that the child who was committing an armed robbery view the 16 year old, then he left them there in the street to bleed out and die rather than trying to provide some care and save his life.

That’s the kind of rhetorical emotionally driven argument prosecutors like to use with juries, especially in marginal cases of self defense, where they think the emotional component might push the jury over the edge to convict you of the murder or manslaughter charge you’re facing. And they’ll they’ll make that argument, especially during closing arguments to a jury.

The best way to offset that is to try to make sure that the person you’ve had to shoot in self defense gets care.

For one thing, you probably want that person to live for a number of reasons. One is, if they die, you’re facing much more serious criminal charges than if they live. If they die, you’re facing much more serious criminal charges, murder or manslaughter charges than if you shot them and they live where you’re probably looking at something at worse, an aggravated battery charge, which can be bad enough, given that you’ve used a gun, but probably is not life in prison without possibility of early release, which is what murder is likely to get you. So you want that person to live.

Plus, if you’ve asked for police and an ambulance, you can at least say hey, or your lawyer can say on your behalf. Look, that person just tried to kill me I wasn’t. I didn’t want to shoot them I had to in order to save my life. I wish it hadn’t happened. But I can’t create life threatening Jeopardy to myself by trying to approach that person. But I did call for an ambulance so they can get professional medical assistance at the first opportunity.

And by the way, folks, when that ambulance shows up, if they know this is a violent crime scene. They don’t approach that suspect until law enforcement tells them the scene has been secured. So if they’re not willing to incur Jeopardy, to provide care, and they’re the pros. I would not encourage you to be taking on that Jeopardy yourself.

What are the risks to possessing an OC spray that looks like a gun?

Dave W. sent a very interesting email. He says he recently purchased a pepper spray device that apparently looks just like a gun. Would it be illegal or unwise to brandish it if a threat seemed eminent but could possibly stop be stopped with non lethal force.

So there’s two separate issues here. One is of course, the appropriate use of defensive force in self defense, pepper spray is appropriate to a non deadly force attack where you’re privileged to only use non deadly force and self defense. A gun would be privileged only against a deadly force attack where you’d be privileged to use deadly force and self defense. Again, that’s all around the element of proportionality and a claim of self defense, the kind of content we cover in our level one core class and in great depth.

My concern here with this scenario is that the pepper spray container apparently looks like a gun. So it’s going to appear as if you’re waving a gun around. And folks that’s really, really dangerous. For one thing, if you’ve been threatened with non deadly force harm, which would privilege you to use pepper spray and self defense, but you come out with something that looks like a gun. And that other person who committed the non deadly force attack against you reasonably perceives it as a gun.

Well, what’s happened in the eyes of the law from his perspective, is you’ve started a second fight he started the first fight the non deadly force fight, and against that fight your privilege to use non deadly force and self defense but then you apparently escalated the non-deadly force fight to a deadly force fight, which is a second fight. Now it’s a new fight because of that escalation. And guess what, folks, he’s legally privileged to defend himself against your deadly force attack.

Now, you know you’re only making a non deadly defensive force response. But if you pull out something that looks like a gun, and he reasonably perceives it as a gun, he’s reasonably allowed to respond to it as if it is a gun. And if he happens to have a gun at his person, and he draws it and shoots you, and then only later discovers it just happened to be an OC container that looked like a gun. Well, that was probably your lawful killing, right there in defense of himself against an apparent deadly force threat.

Also, if you’re waving what appears to be a gun around, well, there’s other people around right maybe someone steps in to be a third party defender of this other guy against what appears to be a deadly force attack.

Maybe a cop turns the corner sees you waving an apparent gun around when there’s no apparent deadly force threat you’re defending yourself against, there’s nobody near you armed with an apparent weapon. Because the actual attack upon you might have been a shove, for example, or thrown punch. And here you have a gun, you’re waving at somebody, that doesn’t look like a good outcome to me.

So I would advise against a co2 sorry, OC container that has a gun like appearance for all those reasons. There’s good quality OC available in a container that looks like an IOC container. And it’s not going to be mistaken for a handgun under normal circumstances. Alright, we’ve got about five minutes left.

How can NY state ban programs like CCW Safe, USCCA?

One last question. John V. One of our Platinum members asks, many of you may know I talked about our sponsor CCW safe. a provider of legal service membership, so many people mistakenly call self defense insurance. In fact, they’ll pop their little graphic back on the screen while I talk about this. So you can take advantage of that offer to get 10% off your membership with them.

But john V. says, Hey, there states like New York that banned self defense insurance. In fact, New York State bans, most forms of CCW safe insurance. I think the only one they allow is one particular offer that CCW safe has for retired law enforcement officers that’s still permitted in New York, but their normal. CCW safe coverage is not permitted in New York, New York doesn’t permit most of these coverages in their state. And john asks, How can they do this? How can they ban this? What’s their justification?

And folks, the only justification is that they can, they can just make it so costly, and be so threatening to the provider of these policies, whether they’re CCW safe, or anybody else, USCCA, Armed Citizen Legal Defense Network, it’s all the same, that it’s not worth the cost of doing business in the state. Remember, the people going after these legal service memberships have infinite amounts of money, for all practical purposes, they have all the power and resources of the state to drive these companies into the ground unless the companies agree to not provide their policies in that state.

So how can they do it? They can do it because they can do it.

Thoughts on Firearms Law Protection?

We had another question from somebody about self defense insurance type policies, they asked about firearms legal protection. This is a to my mind a relatively new entrant. They may have been a while around a while, but I wasn’t familiar with them until they were brought to my attention last week. This commenter on our last news and q&a show top shot asks my opinion on them. I don’t have an opinion yet. I have reached out to FLP and asked a few preliminary questions their vice president of legal operations, Terry Johnson.

He did get back to me and answer those preliminary questions I have, in in a favorable way. So, so far, that’s encouraging. He did invite me to have a longer conversation with him about FLP. And I plan to do that. And once I have a more comprehensive understanding of how they work, I’ll be glad to provide my opinion on whether I think there’s something worth considering by any of you for this kind of, quote, unquote, self defense insurance type coverage. And you can trust I’ll give you my straight up perception on that value proposition regardless of the fact that obviously one of our sponsors is CCW, Safe, one of their competitors in the marketplace.

Alright, folks, just a couple seconds of minutes left. Let me see comments here. questions from our members on our membership dashboard.

Can the “necessity defense” justify otherwise unlawful possession of a gun?

A Steve asks, could the Syracuse shooter this would be the guy who shot his neighbor with the ghost gun and now is looking at 15 years to the ghost gun? Could he have a necessity defense, the necessity defense can work for unlawful gun possession cases, but it only applies during the period in which having the gun was a necessity.

So if imagine, for example, this fight happened and the homeowner the defender, just happened to see a ghost gun laying on the ground, while his neighbor’s charging him with a machete. It’s not his ghost gun. He doesn’t know how it got there. It’s he knows it’s unlawful for him to have it. But he’s facing the necessity of defending himself against a machete attack. So he grabs the gun and picks it up uses it to defend themselves. That transient period of possession for purposes of necessary self defense, could well be justified under the necessity defense.

What can’t be justified is if he had possession of it prior to the necessity, which is what happened here. Of course, he already had possession of the gun. So that necessity defense could apply to the transience period of defending himself against the attack, but not to the possession generally.

 

Leave Leroy asks, and the comments in the college player bathroom beat down, I’m afraid I don’t know what that is. But I will look into it. If you want to send me more details, email me, I’ll look into it in more detail. Now on the Facebook page, etc, etc. in the comments. Lots of names I recognize thanks, folks for always coming. And by the way, folks, if you could do me a favor and just let others know if you let one or if each of you let two people know about this show and about the replay. Open Access replay available at b, that would be greatly appreciated. Hopefully, you can help us grow the Law of Self Defense community.

Alright, folks, there’s a couple other questions here. I can’t answer though, because you wrote them in a particular context. And I’m not seeing them to the end of the show. So somebody asked, Would CCW safe cover this? But that’s my sorry, Mike, I don’t know exactly what you’re referring to. So too late for me to ask the question now. But in the future, when you guys post your questions, make sure you provide enough context. So I know specifically, how to answer it.

All right, folks, I think that’s all I have for this week. We’re right at the top of the hour, maybe a minute over, which is fine. As always, please come back next week. We do this every Thursday at 4pm. Eastern time.

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Alright folks, as always before I let you go I remind all of you if you carry a gun so you’re hard to kill, that’s certainly why I carry a gun so I’m hard to kill, so my wife and family are 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.

Alright folks, I’m Attorney Andrew Branca for Law of Self Defense. Until next time, stay safe.