News/Q&A Show: Feb. 4, 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 4, 2021 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:

NEWS

Q&A

  • Am I required to show my concealed carry permit to officer if in a traffic stop?
  • How can members better access LOSD content to be well-informed on high-profile use-of-force cases?
  • How does the legal doctrine of “overt act” apply to use-of-force requirements?
  • Are there any gotchas with dealing with the laws in Arizona?
  • What if I use an unusual firearm or other weapon in self-defense?
  • Comment on DC authorities not charging in Ashley Babbitt shooting?
  • Why wasn’t man who tried to shoot Rittenhouse with pistol charged?
  • Repercussions for prosecutors who charge in clear cases of self-defense?

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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

Hey everybody, welcome, welcome. Come on in. Come on in. Welcome to the Law of Self Defense News/Q&A. Show for February 4 2021. February 2021 already, can hardly believe it.

For those who may not know I am Attorney Andrew Branca for Law of Self Defense. Thank you very much. This is our weekly News/Q&A Show in which we cover use of force news events, things that have been in the news in the last week that caught my eye, as well as answer your questions, both questions that have been sent in to us ahead of time for our consideration, as well as questions you can ask if you’re in the live audience.

We do air this show live on Facebook, the Law of Self Defense Facebook page, as well as to our Law of Self Defense Members. And then we make the recorded playback of each week’s show generally available on the Law of Self Defense Blog, as well as Facebook and of course, other social media platforms.

This is the only open access content we produce every week, we do produce content for our members just about every day of the week, but that’s of course limited to Law of Self Defense Members. And we’ll mention more about that a bit later.

We, if you put your questions in the comments throughout the show, I can’t do the show and read the comments simultaneously, but before we sign off, and we do try to keep the show to less than an hour, definitely less than an hour, I will scroll through the comments for any questions and the view might have submitted and do my very best to answer them again, this is for those of you watching this live. If you’re watching a replay I’m sorry, we don’t answer the questions from the replay. But if you drop your questions in the comments, I may not get to them immediately, but I will get to them sometime before the end of the program guaranteed.

So come on in and Make yourselves comfortable.

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, let’s jump into now the substance of today’s show.

NEWS

First, we’ll start with a number of news items that have come across my desk in the last week use of force related news items, obviously, and then we’ll jump into questions you may have.

Minnesota and Hawaii legislatures advancing stand-your-ground bills.

Now I spent the last couple of weeks mentioning that there are a couple of states who are among the minority of states that are still duty to retreat states.  So most states in the US are stand your ground states they do not impose a legal duty to retreat before you can otherwise lawfully defend yourself against a deadly force attack. There are a handful of states, the most recent to shift from duty to retreat to stand your ground was Ohio, the 37th state to become stand your ground, in the last 20 to 25 years has been a whole bunch of states that have shifted from duty to retreat to stand your ground. There’s been none, none zero, that have gone the other way. So the trend is so far one way arrow and has been for a long time. J

ust in the last few weeks Ohio adopted stand your ground language, it doesn’t become effective until April 4. So if you’re in Ohio, it’s still a duty to retreat state until April 4. But on April 4, Ohio becomes the 37th stand you ground state.

There is legislation working through the pipeline in Arkansas to become a stand your ground state. I did see this week that apparently it failed to clear some kind of legislative committee. But apparently that’s not necessarily a death sentence for the legislation. Apparently there’re alternative ways of moving it forward. I don’t claim to be an expert on Arkansas legislative procedure. So I’ll defer on that to others.

But even if it doesn’t work this year, sometimes the stand your ground efforts do take a number of years to get through. That was certainly the case for Ohio. This was not the first year Ohio tried for stand your ground. It was defeated in previous efforts until it ultimately succeeded this year. So perhaps Arkansas will follow the same approach.

More relevant for this week’s purposes. I’ve come across two more states to more of the small minority of 13 duty to retreat states that have stand your ground legislation in progress. And those are Minnesota and Hawaii. And, frankly, it’s I’m rather shocked to see stand your ground legislation move forward in those. Also, I believe I saw stand your ground legislation in North Dakota. I might have mentioned that last week. But it’s not surprising. We would kind of expect given the social culture that North Dakota would want to be stand your ground.

Minnesota and Hawaii less so, they’re much bluer states. Hawaii, very much a gun control blue state. But they do have stand your ground legislation moving forward.

Tthe Minnesota legislation, and I’ll link the proposed bills in the text version of today’s content. So if you go over to the law self defense comm blog later this evening after we’ve had the show transcribed. You can read these bills yourself. But the Minnesota bill is particularly good, very well drafted very clear.

The current Minnesota deadly force self defense statute is only about 50 words long. It’s one of the shortest deadly force self defense statutes in the United States. But the proposed replacement is a lot longer. It’s about 1500 words long, it completely deletes the 50 word existing language in Minnesota deadly for self defense, and it replaces it with a much more robust, clear, well drafted deadly force and self defense statutory language, and it includes stand your ground and it includes a legal presumption of a reasonable fear of imminent deadly force harm when facing an intruder in your home.

And it includes provisions for immunity from prosecution for a lawful use of force and self defense. Just criminal immunity, not civil self defense immunity, unfortunately. So even if this bill passes, Minnesota doesn’t currently have civil self defense immunity, so it still won’t That’ll still be a shortcoming. But really a pretty well drafted, put together. Bill favorable for self defense in Minnesota. So hopefully that will have good fortune.

In Hawaii there are two bills being proposed for standard grant two competing bills. I mean, it’s good that they’re being proposed. One of them, HB 534, unfortunately, is horribly drafted. You know, it just reminds us that when we think about how these laws are passed through legislators, not all our representatives are geniuses, folks, and whoever drafted one of these to Hawaii stand your ground bills really did a very bad job.

But the competing bill, HB 711, is fairly good has stand your ground provisions, as well as immunity provisions, both criminal and civil self defense immunity.

So hopefully, those will have good fortune as well. And the pool of states that are not stand your ground that our duty to retreat, retreat States continues to diminish, evermore and evermore shrinking in number. And that’s a good thing as far as I’m concerned. I think stand your ground is good public policy from this small town lawyers perspective.

That said, as often I caution, all of you, if you’re facing a threat, and you have the option, with complete safety of not getting into that fight, you’re a fool if you don’t take advantage of that option. So please don’t get into fights you don’t need to get into including fights from which you have a genuinely safe avenue of retreat. So for all of you, I would encourage you to conduct yourselves as if you were in a duty to retreat state. That’s the safest position legally, it’s also the safest position. Tactically.

Of course, if you are compelled to fight and there is no safe alternative, well, then you have to be prepared to fight 150%. Naturally.

Expanding the scope of circumstances that allow for deadly defensive force.

Another trend I saw over the last week, it’s a continuing trend is kind of a expansion of the scope of threats against which deadly defensive force would be illegal option. Or another way to put this is a kind of ratcheting down of the threshold that has to be met before deadly defensive force would be justified.

So we always have the traditional threshold for deadly defensive force. And that is if you’re using it to prevent a deadly force attack, meaning a force capable, readily capable of causing death or serious bodily injury. So if that threshold has been met, if that’s the condition that you’re facing, there’s a deadly force threat. assuming of course, the other conditions of self defense have been met, then you’re privileged to use deadly force and self defense, it’s a pretty high standard, not an unreasonable standard, right deadly defensive force to stop a deadly force threat, proportional response kind of makes intuitive sense. Who could be against that?

But of course, the threshold doesn’t have to be that high. I mean, we could set, society, meaning society could set, the threshold to be lower than facing a deadly force threat. I mean, the most probably commonly known example of this is in the state of Texas, Texas allows for the use of deadly defensive force in defense of mere personal property, if all the conditions are met for that statute, and if you’re interested in Texas Penal Code 9.42.

That’s the state, an example of a state, in which they’ve set the threshold for deadly defensive force to be justified, much lower than the defender was facing a deadly force threat to his person or, or the life of some other innocent party.

But there are other states that take different approaches to lowering that threshold. Or, to put it another way, expanding the scope of circumstances in which deadly defensive force would be justified. Often these expansions are location specific, and they often have to do with defense of highly defensible property, as opposed to personal property, personal property being, you know, a laptop, a wallet, and unoccupied vehicle. Those are things that might be covered by that Texas statute, but which the other 49 states say mere personal property cannot be defended with deadly force period, blanket prohibition.

But besides personal property, we also have this category of highly defensible property which generally includes things like your dwelling your home, including temporary homes, like a hotel room or an RV that you’re actually living Enter even tent that you’re camping in. So you’re dwelling often, but not always a place of business often, but not always an occupied vehicle. an unoccupied vehicle is personal property, but an occupied vehicle may be highly defensible property.

And often what states will do is they’ll say, well in the context of this highly defensible property, like your home, if you’re defending yourself against a intruder, a genuine intruder, which usually means someone who’s unlawfully and forcibly entered the property, or is attempting to enter the property. If you’re dealing with a genuine forcible unlawful intruder, you may be privileged to use deadly defensive force without having to be facing a deadly force threat, it’s common.

For one thing, many states will presume that you’re facing a deadly force threat. Under those circumstances, a legal presumption is created that you have a reasonable fear of an imminent deadly force attack from that person. So they’re not really changing the legal threshold that’s required or doing away with the legal threshold that’s required. The requirement is still that you’re facing a deadly force threat, but they’re legally presuming that to be the case. If you’re facing in genuine intruder into highly defensible property.

There are other states that actually lower the threshold below a deadly force threat. In the context of highly defensible property. Famously, Colorado has a make my day law that essentially says if you’re dealing with an unlawful intruder into your home, and they threaten you with any degree of force, it doesn’t have to be deadly force, any degree of force, your privilege to use deadly defensive force against that person.

So there Colorado has actually lowered the threshold that has to be met from a deadly force threat to any degree of threat, not if you’re out on the street being frightened. But if you’re dealing with an intruder in your home, that’s Colorado’s make my day long, and many states will expand this to do include things like not just your dwelling but also your occupied vehicle.

Now, another example of this kind of expansion is is taking place now in Florida with legislation proposed by the governor of Florida Governor DeSantis. Florida, like many states has this traditional threshold of deadly defensive force is permitted. If you’re facing a deadly force threat, they also have kind of a parallel path to deadly defensive force, and that is, if you’re defending yourself against a forcible felony. And for our purposes, we can kind of think of forcible felony as a legal bucket that includes a whole bunch of different offenses, all felonies, of course, and generally ones that involve force. And it’s essentially being presumed there that if you’re facing a forcible felony, it’s implicit. It’s baked into the cake of a forcible felony, that you’re facing at least an implicit threat of death or serious bodily harm.

But it doesn’t have to be that way. I mean, once you’ve created this bucket of forcible felony, and you include the traditional felonies that do have baked into the cake, and eminent threat of deadly force harm, so armed robbery, rape, kidnapping, these are typically enumerated forcible felonies, but often the forcible felony statute will say or any other felony that involves a threat of force to the defender. And that threat of force may be have to be required to be a deadly force threat, or forcible felony could be involved as a felony involving any degree of threat doesn’t have to be deadly force.

So if your deadly defensive force statute says you can use deadly defensive force to stop a deadly force threat or a forcible felony, and the forcible felony portion, doesn’t require that the threat be deadly, well, then they effectively lowered the threshold of threat that you must be facing in order to be justified to use deadly defensive force.

Well, Governor DeSantis has done is he’s expanding or proposing to expand Florida’s definition of forcible felony, to lower the threshold of threat you need to be facing to really just any degree of threat, as many states do in the context of highly defensible property. He’s doing it and he’s proposing it in the context of a riot.

So if you’re defending yourself against rioters, and this is defined in the proposed legislation is, you know, X number of people, the state of emergency has been declared and so forth. But if you’re in a writing situation, and you’re threatened with any degree of force, that would then qualify, it doesn’t have to be deadly force any degree of force that would then qualify as a forcible felony, it would be put in the forcible felony bucket, which means it would meet the threshold to privilege you to use deadly defensive force. Absent that kind of legislation, you would have to meet the traditional standard for facing a deadly force threat before you’d be privileged to use deadly defensive force.

But in the right situation under this proposed legislation, you would need to wait until The threat against you rose to a deadly force level the fact that it was any degree of threat in the context of a riot would be sufficient to privilege you to use deadly defensive force. So be interesting to see how that moves forward in the Florida Legislature would certainly I expect have the especially given how many guns are in Florida have the effect of ratcheting down the exuberance of the many riots we’ve seen ravaging the country over the last few years.

Remember, folks, the US Constitution, protects the right of the people to peaceably assemble and protest doesn’t give anybody the right to riot, to threaten violence, to commit arson, to destroy property, to loot, buildings, premises, businesses, set police cars on fire, none of that is constitutionally protected behavior.

Prosecutors falsely accuse Kyle Rittenhouse of hiding location of safe house.

Okay, another news item. This one gave me a chuckle really and that it really is another example of the prosecution in the Kyle Rittenhouse case, going to warp nine and doing everything they can in a very petty kind of way, just to make Rittenhouse as life as uncomfortable as possible. And for no really good reason.

We talked about an instance a week or two ago in which Rittenhouse had been lawfully present at a bar with his mother having a beer perfectly lawful in that jurisdiction. And the prosecution used that as an excuse to go back to court and basically accused Rittenhouse of being a white supremacist because at one point he gave the okay sign with his hand. Folks, in the last two weeks I’ve seen the Biden President Biden’s new press secretary use the okay sign at the podium in the White House press room. Does that mean she’s a white supremacist? I mean, it’s the whole concept is ridiculous, of course.

But it’s just a part of the prosecution’s attempt because the rock there is no racial dynamic and the Rittenhouse case everyone involved in the case was white. There’s no evidence of Rittenhouse having any history of racism or white supremacist leanings or anything along those lines. Except for what the prosecution is attempting to fabricate but obviously it’s favorable to the prosecution, if they can make Rittenhouse appear to be a white supremacist and they’re doing that in these propagandistic kinds of ways.

But the newest attack they’re making and Rittenhouse is they’re saying he violated his bail conditions by leaving the address at which he told the court he was residing, going to a different address without informing the court and they’re alleging this is an attempt of Kyle to hide himself from the court so he would not be available to the court when the court wanted him.

And of course, the whole purpose of bail is to let you out of jail on the condition that you will come back to court when the court wants you. So anything you do that makes it look like you’re hiding from the court is bad, and should be a basis for revocation of bail.

But of course, that’s not really what happened here. What happened is that the prosecution is saying, Hey, we went to Kyle’s apartment. Turns out he don’t live there anymore. That’s the address he gave the court therefore he’s in violation of bail, his bail should be revoked or substantially increased, or whatever the case might be.

Here’s what actually happened. What actually happened is Rittenhouse has been receiving death threats at his home address. So he sought for purposes to safety to move to a safe house, the location of which would not be publicly known. His current home address is publicly known because it’s part of the court documents, public records. And, and there’s in Wisconsin, there’s a very strong public records presumption in the law. And so this was released to the public written has his home address.

Now he’s getting death threats. Obviously he doesn’t want to stay there and get shot in the face. Remember, folks, even after George Zimmerman was acquitted, there were people trying to kill him. There was an assassination attempt made upon george Zimmerman, that person has been convicted of that unlawful use of force and is in prison for I believe, a 20 year sentence at this point. But nevertheless, the effort was made and it’s only luck that Zimmerman didn’t catch that bullet in the head. It hit the frame of the car door in which Zimmerman was sitting when the shot was fired at him. And of course, Rittenhouse doesn’t want to get shot in the head either.

So what Rittenhouse did was not hide from the court. He, his lawyers contacted the prosecutors explained the situation and said, Listen, we need to move Rittenhouse to a location not known to the public. We want to give you that address. We don’t want to hide it from you or from the court. But we’d like you to agree to keep that new address non-public because if you make it public, well obviously we’re right back into the threatening situation we were in in the first place. So the only reason we’re moving him is because of the exigent circumstances, the life threatening circumstances, but that only works, if you’ll agree to keep the new address non public, you’ll have it, the court will have it. We just don’t want you to release it to the public.

And the prosecutors response was Nope. Move if you want. Give us the address, and we’re gonna make it public. That’s it. Well, of course, this was not Kyle Rittenhouse trying to hide from anybody, any of the authorities, not the prosecution, not the court. He was more than happy to give them his address. He just doesn’t want to die.

So this is the lanes that the prosecution is going to just make Rittenhouse his life as uncomfortable and dangerous as possible. And now essentially fabricating a narrative that Rittenhouse was attempting to hide from the authority. It’s simply not the case.

Oklahoma woman steals NAZI flag, gets shot, sues for a mere $75,000.

Another news story that came across the transom was just one of these, you know, how stupid can people be, except I haven’t even dumber, arguably dumber story after this one.

This case took place in Oklahoma, and involved a woman who was at a party. So presumably alcohol was involved, not surprisingly, and the woman was at the party, she lives across the street and on the house across the street was a Nazi flag. So here is a guy across the street who apparently had Nazi sympathies and want the whole world to know. I mean, why I don’t know.

But in any case, apparently, others at the party dared the woman to run across the street and steal this flag. Obviously, that’s a crime. You’re not privileged to steal someone’s flag. Just because it’s a Nazi flag. You’re allowed to fly a Nazi flag, I guess, if you don’t live in an HSA. It’s a First Amendment privilege. Nobody much likes Nazis. But the first Amendment’s not intended to protect speech we’d like you would need a First Amendment for that. It’s intended to protect speech that’s offensive. I would suggest flying a Nazi flag is probably pretty darn offensive. But it is protected First Amendment speech.

In any case, this woman took the dare ran across the street grabbed the Nazi flag was running back to the party. And all this apparently came to the attention of the man who owned the Nazi flag. So he saw his property being stolen, which is of course a crime, a simple property crime, right, the flag is simple property, not highly defensible property.

And his response instead of calling the police to report the theft, was to retrieve what the media reports as an AR rifle, and to shoot this woman multiple times as she ran back across the street to the party. Allegedly, she was shot in the lower abdomen and legs with this AR rifle.

He now has, of course been charged with attempted murder. He’s claiming defense of property, folks, this is not Texas, this is Oklahoma, it probably would not meet the conditions even under Texas law that does have provisions for the use of deadly force in defense of property. But nevertheless, it’s not in Texas, there’s no privilege to use deadly force in defense of mere personal property. There was no privilege for this guy to shoot this woman as she was running away across the street with his Nazi flag. So he’s been charged with attempted murder likely to be convicted. I don’t see a justification defense here at all.

Of course, as dumb as this guy was for shooting the woman running across the street, how dumb was she? I mean, however much you despise someone who would fly a Nazi flag, however crazy you think that person must be, the crazier they are, the more dangerous it is to go steal the stupid flag, right?

So she ended up getting shot, purportedly with an AR. So now she’s, of course civilly suing this guy for money.

Perhaps the most shocking part of this story is how little money she’s suing him for. She’s suing him for $75,000. And frankly, that number amount makes me doubt the severity of her wounds and doubt whether it was an AR rifle, or even if it was an AR type rifle, particularly if it was shooting two to three or 556 rounds. Folks, those your shot with a 556 multiple times in the lower abdomen and legs. You’re going to suffer far more. First of all, survival is doubtful. But even if survival happens, you’ll have suffered far more than $75,000 worth of actual injury, pain and suffering.

So who knows what’s going on with that? If it were me, I’d be suing for millions. Of course the prospect of collecting a judgment from someone flying a Nazi flag on the front of their home in the first place is probably close to zero. So I guess in that respect, it doesn’t really matter how much you’re suing him for. I guess the limit will be whatever you can get out of his homeowner’s policy assuming he has a homeowner’s policy assuming they’re going to cover his deliberate use of force, which if I were the insurer, I would not.

But in any case, folks, whatever you might think of Nazis, the smart move is not to engage them directly or indirectly. Don’t put yourself in a position where you’re likely to get into a fight if you can safely avoid doing that, ever.

Witness to shop-lifting decides to shoot at thieves, hits store employee instead.

Finally, I think this is the last news story I wanted to cover is a I guess Normally we’d call it kind of a Good Samaritan story, but it involves a woman who decided to intervene and stop or attempt to stop a couple of thieves, right? Sounds like a good idea. Apparently, there was a couple of people who were shoplifting in a hardware store in Phoenix, Arizona, they fled the store with their, I guess with their booty are having after having been identified and approached by store employees.

So the shoplifters fled the store, the woman involved here, 45 years old, so really should have had better judgment. But apparently, she was walking her dog outside of the hardware store. And she saw the two shoplifters running out. So really just two people running out. And she came to the conclusion that they were shoplifters. I mean, employees of the store, were apparently yelling after them as they ran. But she came to the conclusion that they were shoplifters, which might have been a reasonable inference under the circumstances.

The two purported shoplifters jumped into a car right in front of her, began to drive away. And as the car was driving away, this woman walking her dog decided, you know what, this would be a good opportunity for me to go to the gun.

So she whipped out her gun and started firing shots at the fleeing vehicle. Now, again, folks, as we’ve talked about, there’s no privilege to use, at least in Arizona, where this occurred, to use deadly force in defense of mere personal property and shoplifters are going to be escaping with mere personal property.

The shop owner will have particular privileges, almost certainly under various shoplifters laws, very common in most states to detain a shoplifter for police, if they catch them stealing in the store. But even they would not have the privilege to use deadly force over a mirror personal property crime. So this woman certainly had no privilege to use deadly force against these shoplifters.

Even worse than all this. She did manage to hit someone with one of her fired rounds, but not one of the shoplifters. She shot one of the hardware store employees in the leg with her pistol, and that employee had to be taken to the hospital of course and treated.

And now she’s facing charges for aggravated assault with a deadly weapon and discharging a weapon within city limits.

Now, I will say, as as crazy as this woman’s conduct was as unnecessary as it was as dangerous as it was. I don’t think that aggravated assault is really the appropriate charge. I think aggravated assault would be the appropriate charge, if she deliberately intended to hurt that hardware store employee to shoot that hardware store employee to cause him serious bodily injury or risk of death by her gunfire.

But I don’t believe for a moment she actually intended to shoot the hardware store employee. I believe that shooting was unintentional, under the circumstances, almost certainly criminally reckless for her to do that. And that’s a crime in and of itself. So I think a more appropriate charge here would be criminal, recklessness, reckless endangerment, whatever form that statute would take under Arizona law.

I certainly don’t think the conduct should be excusable. I think it is criminal. I just don’t think aggravated assault, I think ought to require a degree of intent. That’s not apparent to me here.

And then of course, discharging a weapon within city limits is a no brainer, there’s no legal justification for the discharge. And on the facts of this case, there simply wouldn’t be. Alright, folks.

 

So that’s all the news items I want to cover and every one of those news items, by the way, I’ll add a link to the media story. And if there’s associated content, like a proposed bill to the proposed bill, in the text version of today’s content, so we it takes us an hour or two to get the show transcribed. But once it’s transcribed, you can find it in written form with all the links to all the content over the Law of Self Defense Blog.

QUESTIONS

Am I required to show my concealed carry permit to officer if in a traffic stop?

So with that, set of news items out of the way, let me start with our questions and the first question will be a quick one. And that has to do with a question that came in from one of our Law of Self Defense Platinum members, platinum members, get a Platinum members-only question and answer form on their membership dashboard. Those questions come directly to me we guaranteed to answer them for Platinum members, they get a direct personal response from me private, if they wish, or open for discussion on the show, have they let us know that’s acceptable to them?

And this was a question that was our members said was fine for us to discuss on the show, perhaps because we didn’t really have a very definitive answer for them.

The Platinum member’s name is Larry. And he had a series of questions around whether or not he’s required to show his concealed carry permit, to a police officer, if he’s involved in a traffic stop or otherwise approached by the officer is required to show his concealed carry permit. If he doesn’t happen to be armed at the moment. Will the cop see a record on the computer in the patrol car that he has a permit if he runs the person’s license in the car? What if you don’t have an happen to have your permit on you at the moment, so you’re not carrying you don’t have your permit because you’re not carrying? Or you’re required to inform the officer that you possess a permit, even though it’s at home, and you’re not carrying a gun at the moment.

And unfortunately, for Larry, the answer I had to give him was I don’t really know, because what we focus on here at Law of Self Defense is use of force law, meaning, the laws governing the use of force in defense of yourself, in defense of other persons, and in defense of property.

What we don’t cover in any detail is gun law, or weapons law or licensing law. Frankly, it just Self Defense Law, use of force law generally is pretty consistent across the 50. States, it probably varies about 20 to 30%, across the 50 states. But weapons law, gun law varies wildly across the 50 states, even within states, different counties, different areas of state, different cities can have their own gun laws. I think that’s a crazy patchwork way to approach these things. But nevertheless, it happens. In any case, it’s way too very for me to claim no Top of Mind expertise in the weapons laws of all 50 states. So we just don’t do that. I know the gun law I need to know as a typical armed citizen who carries a gun for personal protection in the jurisdictions I go into, but I don’t claim any particular degree of high expertise in gun law or weapons law.

Fortunately, we do have a resource to which we can direct people who are interested in more expertise in those subjects. This does not come from us, but it comes from a company that we do a lot of partnering with, and that company is Concealed Carry Inc, at concealedcarry.com.

We do a lot of work with these folks. We think they do very good work. So we’re proud to work with them. And they have a book they put out every year that’s basically a gun law weapons law book that covers those laws for all 50 states. It’s updated every January. So it’s just been updated. The newest edition is currently available. And I do encourage you for your gun law, weapons law. information needs to at least consider taking advantage of this book. It’s not very expensive. And I believe I might be on some kind of special right now. But in any case, you can learn more about that book, “Legal Boundaries by State,” at http://lawofselfdefense.com/cci.

And that’s where we directed Larry. And that’s where we were direct any of you who come to us with gun law or weapons law specific types of questions.

How can members better access LOSD content to be well-informed on high-profile use-of-force cases?

Okay, so we have another question in here from another Platinum member of lost off the fence, Chris. And he asked, he said he gets into discussions with various people about many of the use of force, for lack of a better word. And this really is the perfect word hoaxes out there. So there’s a lot of claims, especially in the context of law enforcement claims were a force. It’s claimed that force has been used unlawfully. Except when you look at the actual evidence in the actual law, it turns out that use of force was completely lawful.

Most of the high profile Black Lives Matters cases you see covered in the media are cases in which the use of force was completely lawful, and the claims of unlawful use to claims of this systemic racist execution of black suspects by police officers, unaccountable police officers is simply not a thing, folks. I keep asking people to show me the actual case of police officers unlawfully using force against black suspects and not being held legally accountable. And I’ve never been presented with such a case. I mean, not in current history, not in the last 10 years. 15 years.

Now, do law enforcement sometimes use force unlawfully? Yes, of course. Is the person they sometimes use that force unlawfully against a black person? Yes, of course. But where’s that happening where the officers are not being held legally accountable? That I don’t see.

We can’t expect perfect police folks, police are sometimes going to make mistakes. They’re just human beings like the rest of us. All we can ask for is that we reduce that level of poor conduct as much as possible, and hold accountable those who engage in poor contact to a criminal level. And I believe our current system does that to a remarkably effective degree.

But any case, of course, because of the media and the propaganda, social media, there are many people who believe otherwise, I’m just one small town lawyer, I can hardly compete with the social media, and regular media who propagate this propaganda of systemic police racist executions of black suspects. But it’s not uncommon.

I do cover these cases. And of course, I do a lot of video and blog posting and podcasting on these cases. And, I share the actual evidence and actual law, provide my expert, legal opinion on these cases. And hopefully put all of you in a position where you can make genuinely informed opinions have your own about the lawfulness or unlawfulness of these particular cases that are in the media.

And Chris is asking, we know you cover this stuff, Andrew, we know you do it in a great deal of detail based on the actual evidence based on the actual law. But sometimes, it’s hard for us to find it on your website, even those of us who are members, and I take Chris’s criticism to heart, we have literally 10s, if not hundreds of 1,000s of words, we’ve written scores of hours of video on podcasting on these cases, but they’re not in a very searchable format.

We did aggregate all our coverage of the Zimmerman case, everything really that we wrote about that trial, and we watched every minute of that trial in real time. So we covered it in quite some detail. For those of you interested in that you can point your browser to http://lawofselfdefense.com/zimmerman. That’ll bring you to a webpage that aggregates all our coverage of that case.

But we don’t often do that for these other cases. So to address Chris’s concern, for our Law of Self Defense Members, we are working on adding a relatively robust search function to our members content. So you’ll be able to search through the blog post the videos to podcasting.

So if you’re interested in something about the Ahmaud Arbery case, you’ll be able to find it, the George Floyd case, you’ll be able to find that, the Rayshad Brooks case, you’ll be able to find it.

All these cases, by the way, in which I’m sure you’ve heard the media say relentlessly that the police officers use of force in those cases, or in the Arbery case, the neighbor’s use of force in that case, was obviously unlawful.

And I can tell you having looked at the evidence and the law, it’s not at all clear to me at all, that the use of force involved was unlawful. I see very clear narratives of justified use of force in all those cases. So we won’t know of course, until those cases get to trial, but they’re hardly clear cases of systemic racist police execution squads to my eyes.

But any case, Chris, we are looking to add that search function to our blog, videos and podcasting, so our members can more efficiently access our content for particular cases that are interested in.

How does the legal doctrine of “overt act” apply to use-of-force requirements?

We got another question here from another Law of Self Defense Member, one who’s very active in our blog post commenting, and that is from Donnie, and he asks about a legal concept called the overt act.

Now, it’s a generalized principle of use of force law that if you’re faced with a threat that’s merely verbal, 100 100% verbal, no physical component at all, or merely verbal threat, cannot qualify as an eminent threat against which you are privileged to use force. So if you’re only facing words, 100% words, that’s not enough to privilege you to use force in self defense.

There needs to be in addition to the words or independent of the words, some overt physical act some physical component to the threat before it can be said that you’re legally facing a threat against which you can lawfully defend yourself with physical force, so you can’t defend yourself against just words, sticks and stones may break my bones, but words will never hurt me. There also has to be this component of an overt act.

And that’s an important concept to keep in mind. I work on cases in which people feel threatened by merely verbal threats and resort to a threat of physical violence in return, they go to their gun, for example. And they find themselves criminally charged because they were not legally justified in threatening force when all they were threatened with was words.

So this concept of the overt act is important to know and important to understand, because it’s one of those key thresholds that must be met before, it can be said that you’re facing an imminent threat. And eminence is one of the required elements of any claim of self defense.

After all, a verbal threat could just be big talk, it could be a speculative threat that may never actually happen. And the courts, the legal system does not want to justify the use of defensive force. That didn’t have to happen because the only threat involved was verbal in nature.

Now, having said an overt act is required, well overt act is a pretty flexible concept. So it’s very conditional on the circumstances, what’s required for something to constitute an overt act sufficient to justify the use of deadly force is very based on the as we would say, totality of the circumstances.

And probably the best way to think about this, conceptually, is imagine that we have a circle of threat possible threat goes from zero to 100%. And understand that a verbal threat alone can never fill that circle that’s presumed the circle has to be filled, before you’d be justified in using force in self defense.

Now, a non verbal, a physical threat could potentially fill 100% of that circle, and meet the condition of eminence justify you to use force and self defense. Someone steps out of a doorway with a raised machete and they’re about to strike you, they don’t have to say a word, there doesn’t have to be any verbal component to the threat. before you’re justified in using self defense, the physical threat alone may be sufficient.

A verbal threat alone can never be sufficient. But a verbal threat combined with a physical threat can be sufficient to fill that circle. What the verbal thread can do, if it can’t completely fill the circle is it can fill much of the circle almost all the circle, such that the overt physical act you need to see can be very minimal.

So someone threatens to shoot you and then reaches further waistband where a gun would be expected to be a weapon would be expected to be. That physical act by itself is relatively modest. If it wasn’t accompanied by the verbal threat, it would mean nothing that could be reaching for a cellphone, right. But the verbal threat of a threat to shoot you almost fills that circle of eminence. And then that relatively modest overt act itself is enough to complete the circle.

So what a verbal threat can do is provide most of what you need for eminence and the remaining physical threat you need to see can be relatively modest, to complete the circle.

This can happen in a home defense situation to yet you’re dealing with an unlawful intruder in your home, you come upon him when his back is to you. You tell him to raise his hands. Under those circumstances, how much of an overt act do you need to see, in order for that eminent threat to be filled and for you to be justified to use force in self defense.

You need to see something, it can’t be nothing. But I would suggest that it needs to be almost infinitesimally small. To my mind, say someone who was facing you hands up. If they shift their weight forward towards me, that’s an overt physical act, it’s just a weight shift.

Normally, it would mean nothing, but in the context of them being an unlawful forcible intruder in my home. That overt act is sufficient to my mind to fill in that circle of eminence, if I’m holding them at gunpoint in my home, telling them not to move, and they begin the process of moving towards me. So you do always require that overt act, the verbal threats, not alone. The circumstances may not be alone, enough alone, unless you have that overt act, but the overt act can be very, very, very small and fulfill that circle of eminence.

Okay, I think those were all the questions I had that came in before the show. So let me flip through the law of self defense membership comments and see what’s been sent in from the members and then I’ll switch the Facebook all in the last few minutes we have before the top of the hour.

Are there any gotchas with dealing with the laws in Arizona?

So on the membership site, Steve, one of our members asks, Are there any gotchas with dealing with the laws in Arizona? hardest stuff stand your ground limitations on stand your ground self defense immunity provisions, Steve Of course, only a tiny fraction of the people enjoying this week’s news and q&a show are in Arizona. And if I began to dive into Arizona specific law would be meaningless to all the people from the other 49 states.

So I can’t make this show that state specific, I will tell you that everything you’re asked me for is covered in our Arizona specific Self Defense Law course, we have a self defense law course for each of the 50 states. They’re not very expensive, it’s a DVD course. Or you can get an online stream. You can learn more about that at http://lawofselfdefense.com/state.

We have all 50 states covered and we cover all 50 states use of force laws in great detail, addressing really every question you asked there. So it’s not a question I can actually answer during the show. But we do have that information readily available for all of you.

What if I use an unusual firearm or other weapon in self-defense?

Let’s see. Oscar asks, How might the defenders use of a short barreled rifle or some some bizarre unconventional weapon impact or claim of self defense? Well, there’s really two possibilities Oscar.

One is that the weapon as unusual as it may be, it’s not unlawful. It’s a perfectly lawful weapon. So it might be a short barreled rifle. But you have all the paperwork or you meet your state’s requirements and federal requirements and all that it’s perfectly lawful in your possession.

In that case, it doesn’t really matter substantively for your claim of self defense, other than the fact that anything that’s unusual about yourself defense provides potential fuel for a prosecutor to argue that your use of force was unreasonable because of its unusual nature. In theory, legal theory, once you’re privileged to use deadly force and self defense, the law doesn’t really care what the precise form of that deadly force is your privilege to use deadly force if you’re not if you are, you are.

But if you use a flame thrower, well, that’s going to raise eyebrows, that’s going to be unusual. And that may be something that a prosecutor might try to argue, I would say beyond the legal boundaries that should be permitted. But anything that’s unusual that they can they feel might be a hook to a conviction, they’ll try to use so best to use ordinary weapons for self defense, and avoid things that are unusual.

Of course, if you’re fighting for your life, you have to use whatever you can. That’s a cast iron pan, use a cast iron pan, if it’s a flame thrower, it’s a flame thrower. You have to live, you have to survive the fight. But to the extent you can do that, using usual rather than unusual defensive tools, you’re better off.

The other possibility is that the weapon you’re using is not just unusual, but under the circumstances. It’s unlawful. It’s a short barreled rifle, and you’re in a jurisdiction where that’s prohibited or federal law prohibits it and you haven’t done the paperwork and pay the tax stamp things along those lines. In other words, mere possession, much less use of the weapon could be unlawful itself.

There are states that either condition special privileges of self defense, like a legal presumption that you had a reasonable fear of an intruder, reasonable deadly fear of an intruder, you could lose often those presumptions are conditioned on not being engaged in unlawful activity. So you would lose that special provision.

Often stand your ground is privileged, is conditioned on not being engaged in unlawful activity. If possession of the weapon is unlawful, you’re engaged in unlawful activity.

In some states, the self defense itself is conditioned on not being engaged in unlawful activity in Georgia, you can’t be engaged in a felony. If possession of the weapon is a felony. Well, then you’ve lost self defense, because self defense is conditioned on not being engaged in a felony.

So if the weapons unlawful, you could open yourself up to seriously undermining either special provisions of self defense or self defense entirely. And of course, you’re also facing the prospect of a weapons charge separate from whatever the use of force might have been. His possession of the weapon is itself unlawful.

Comment on DC authorities not charging in Ashley Babbitt shooting?

James asks, If I have any comment about the apparent decision of DC authorities not to charge Capitol Police Lieutenant who shot and killed Ashley Babbitt. No, I’m not surprised. And frankly, I’m not sure it’s the wrong call. I did an extensive analysis of that shooting for our Law of Self Defense members in a blog post and video and podcasts.

And frankly, there’s a very strong argument to be made that that shooting was legally justified. We may not like it because we don’t like the political circumstances around the shooting. But given the riotous mob nature of the circumstances, Ashley’s conduct in breaching that barrier doorway that the officer was guarding, there’s a very good case to be made that that was a perfectly lawful use of force of deadly defensive force.

And remember, the state would have to disprove that beyond a reasonable doubt. And I doubt they could do that, even if they were so inclined, which admittedly, they’re probably not inclined, right. That’s a political dynamic that’s unfortunate. But just on the legal merits alone, it doesn’t surprise me at all, that the officer was not charged.

Okay, I think that’s all the use of force questions from the membership. Let me flip through now through the Facebook. Do that very quickly, because we’re down to the last few seconds. Let’s see. Yep, Capitol Police shooting. I touched on that.

Why wasn’t man who tried to shoot Rittenhouse with pistol charged?

Why wasn’t the guy who tried to shoot Kyle with the pistol I guess the guy who survived the got shot in the arm by Kyle’s? Why wasn’t ever arrested? folks? I don’t know.

I mean, you know, it’s up to the authority’s discretion who they want to arrest and not arrest even assuming they have probable cause. They could have probable cause to arrest that guy. Certainly, I think there’s probable cause to arrest him for attempted murder. He was clearly attempting to position himself to shoot Kyle with a pistol for no legitimate purpose.

I suppose it’s possible he thought he had legitimate purpose. But that discussion will never happen, because the guy’s never been charged and probably won’t ever be charged. If you don’t want people like that, to be able to do what he did and not be charged, you need to elect different prosecutors. That’s the answer to that question.

Repercussions for prosecutors who charge in clear cases of self-defense?

Let’s see. Lorraine asks other repercussions for prosecutors who bring cases that would otherwise have been easily determined to be lawful self defense. In other words, once you’re exonerated, can you recover your money? You’re found not guilty? Can you recover money from the prosecutor?

The answer is almost universally, no. Prosecutors generally have immunity for virtually everything they do in the course of their normal conduct. It’s only in the most egregious cases, the prosecutors are ever held the council accountable for bringing politically motivated cases.

It does happen maybe once every 20 or 25 years. I see it happen. So not often. And tons and tons of politically motivated prosecutions are brought over that period of time, and the prosecutors are never held accountable. So the safe bet is they’ll never be held accountable.

There is one state that does not hold the prosecutor accountable if they lose the self defense case, but does have a possibility of the defendant who’s acquitted, recovering at least their legal expenses, if not, of course, their reputation. And that’s the state of Washington.

Washington has a provision where if you’re prosecuted for use of force crime, you raise the legal defense of self defense. And you’re acquitted. The jury is given a form on which they’re asked, Did you equip this person on the basis of self defense do a majority of you believe this was lawful self defense?

And if the jury checks that form, that they do agree it with self defense, or at least I believe it’s a majority or supermajority that has to agree, but if they sign that form, then the defendant can seek reimbursement for their legal expenses from the state of Washington, I forget whether that’s from the Prosecutor’s Office of the General Fund or whatever.

That’s the only state that has that kind of provision. It’s kind of a weird twist on self defense immunity. It’s not really immunity, you still have to go through trial. So it’s not as good as immunity. But at least there’s some prospect you can get your money back.

Normally, of course, you’re acquitted. Guess what, folks, you spent a couple 100 grand on your defense to get acquitted. You won, you may be acquitted, but you’re not getting the money back. That money was spent to get you acquitted and it’s gone.

Another reason to consider of course, something like CCW Safe, where those expenses are covered on your behalf. Again, you can learn more about that at http://lawofselfdefense.com/ccwsafe, and at that URL get 10% off your membership with them using the discount code LOSD10.

All right, folks, that’s all the time we have for today’s news and q&a show. Be sure to join us again next week. We do this every Thursday 4pm. Eastern Time. Send us your questions to show@lawofselfdefense.com.

Of course, if you’re a platinum member, use your membership q&a form that gets prioritized Most important thing you can do for us if you like this content is tell others tell friends and family.

You can find this, this content as an open access podcast, not all our content, just this Thursday News/Q&A Show, on just about any podcast platform you’d care to use. I think I have a little slide on that.

But we’re on Spotify. We’re on Pandora one on Apple podcasts. We’re on all of them all the big ones you could possibly think of find us there just subscribe and you’ll get this content as a podcast every week in addition to the option to watch it as a weekly video and of course as a blog post with all the links to the relative relevant underlying content over at the Law of Self Defense Blog.

All right, folks, that’s all I have for all of you today.

Until next time, remember if you carry a gun so hard to kill, that’s 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 to make sure you know the law so that you’re hard to convict.

Okay, folks, I’m Attorney Andrew Branca for Law of Self Defense. Stay safe.

 

8 thoughts on “News/Q&A Show: Feb. 4, 2021”

  1. “Why wasn’t the man who attempted to shoot Rittenhouse with a pistol charged?” I think the answer to that question is simply because he was a radical leftwing rioter and the state was and is deathly afraid of leftwing radicals. State officals have taken an oath to uphold and defend the constitution and laws of the United States and the constitution and laws of their respective states, but their oath of office does not mean anything to them, they are to damn yellow, to weak, to abide by their oath of office and do their legal and moral duty.

    Why did the arrest Rittenhouse? For the same reasons that I just stated as to why they didn’t arrest the man who attempted to shoot Rittenhouse. Rittenhouse is being offered up as a sacrafice to the left to appease the mob, so the officials in charge won’t have to do their legal and moral duty to enforce the law and protect the state and its law abiding citizens. Here, you can have Rittenhouse, dust please please don’t hurt us.

    1. Yeronimus Pretorius

      I agree, but the most important reason they didn’t charge Grosskreutz with attempted murder is that it would undermine their case against Rittenhouse. It would be hard for a fair and impartial jury to convict someone for shooting a man the prosecution claims was trying to murder him. Not that I expect there will be a fair and impartial jury.

    2. For unrelated reasons (I think it involved a line of thought about election fraud), I’ve been thinking that there are two problems with prosecutorial discretion. For purposes of self defense law, the most obvious problem is that a prosecutor can elect to press charges for cases where it’s clear that the defendant should be let off scot free. Naturally, juries should be a factor in limiting this power, but plea bargaining unfortunately dampens the ability to seek jury trials — and even if someone makes it through the jury trial, they are often on the hook for hundreds of thousands of dollars of legal fees.

      The other side of the coin is when a prosecutor decides not to charge someone. Granted, this is sometimes because there’s only so much time a prosecutor has, and thus, the prosecutor can’t go after every little crime that’s committed. But it also means a prosecutor can refuse to prosecute someone who ought to be prosecuted for something big — in this case, something akin to attempted murder — but won’t, either because he’s a friend with the person who should be charged, or because he’s afraid of the person’s friends.

      I have begun to wonder why one can’t just hire a private prosecutor for those times when a government prosecutor refuses to press charges where charges ought to be pressed. Such a prosecutor will likely need checks and balances to prevent abuses, although I suspect having to pay such a prosecutor out of your own pocket might be one major balance, as well as the prosecutor not having immunity (although there’s a good case to be made that prosecutors and judges shouldn’t have the immunity they have granted themselves anyway).

    3. Gaige Grosskreutz may well have been a prohibited possessor as well. But given the Wisconsin DA’s sympathy towards leftist rioters, it’s not surprising this was not investigated.

  2. I very much need to get this question answered. I live in North Carolina which is an open carry state. I have heard many times that if you reveal a fire alarm it will stop the crime. But on the other hand I have heard you say if you pull a gun or shit wood gun it is aggravated assault with a deadly weapon me and maybe worth 10 years in jail. But if you live in an open carry state and put your coat back to show that you have a firearm how is that any different from just carrying open.

    Especially if this is a one on one and counter and there are no witnesses.

    What would be especially helpful is if you produced a series of scenarios that we can observe and think through in this pre-program are mind so if we’re ever in that situation we know what to do.

    RB

    1. It is all about your intent in displaying the weapon. It is your constitutional right to wear your gun outside your pants for all the honest world to see. The exercise of your constitutional right to bear arms is not considered a threat to the honest citizens of the world who see your gun If you conceal your gun and then intentionally display it to an individual for the purpose of making that individual do or refrain from doing an act, then you are threatening that individual with a use of deadly force. When you already have a present right to immediately kill the individual if he doesn’t do or refrain from doing the act, this is a lawful display of a deadly weapon in a threatening manner for lawful purposes, this display is a constitutional right protected by the first amendment, it is the most effective way of communicating to an individual the fact that you have every intention of shooting him if he doesn’t do or refrain from doing the act. But if you do not already have a present right to immediately kill the individual if he doesn’t do or refrain from doing the act, then this is an unlawful threat to use unlawful deadly force, an aggrivated criminal assault. This is not an expert legal opinion, it is my personal opinion, but my opinion is its a damn good one. Just because Andrew doesn’t answer your question or knock my opinion doesn’t mean he agrees with my opinion. If you have a copy of his book, look at the element of innocence.

    2. I guess I should add that a few states allow the display of a deadly weapon in self defense in situations where you only have a present right to use non-deadly force. I don’t know about North Carolina.

  3. Why won’t you answer any questions asked by people not participating in the live feed?

    I cannot believe you discriminate against the chronologically challenged like this! It’s unfair!

    A real professional would carefully monitor this comment session, keep track of any questions that come up here, and then fire up the time machine, and present them to you before you start the live stream, so you can answer everyone’s questions, not just the ones who show up live!

    ;=)

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