News/Q&A Show: Jan. 21, 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 January 21, 2020 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:

NEWS

• ‘Stand your ground’ bill clears Senate [Arkansas]
• New DA Jason Williams to review homicide in 2013 ‘stand your ground’ case
• Georgia citizen’s arrest law on chopping block
• Kyle Rittenhouse under new bond restrictions after allegedly displayed racist signs in Wisconsin bar: prosecutors

Q&A

• Am I & My Lawyer Required to Talk with Police or Prosecutor?
• Why Doesn’t Every Blog Post Cover Every Possible Legal Issue?
• How to Convince Relative to Not Carry Gun Illegally?
• Does Open Carry Endanger Claim of Self-Defense?
• Will Arkansas Stand-Your-Ground be Soft or Hard?
• What Stand-Your-Ground States Are Effectively Still Duty-to-Retreat States?
• What if Ahmaud Arbery Reasonably Perceived the McMichaels as Unlawful Armed Aggressors?
• Can Racist Social Media and Text Messages Be Admitted as Evidence of Racism?

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

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

CCW Safe:  Our Sponsor

Now before we jump into the substance of today’s content, I do, of course, need to mention today’s sponsor, CCW Safe, a provider of legal service memberships, what many people mistakenly call self-defense insurance. They in effect promise to pay their member’s legal expenses if their member is involved in a use of force event.

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

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

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

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

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

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

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

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

http://lawofselfdefense.com/ccwsafe

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

Enjoy the show!

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

Come on in everybody. Come on in. Welcome to the Law of Self Defense Q&A Show for January 21 2021. Come on in. If you’re watching this live on social media, Facebook, elsewhere, please feel free to comment your city and state that helps provide me with some geographic context. If you could like and share, or whatever is appropriate on the particular social media platform you happen to be using, please feel free to do that as well. That helps us grow the Law of Self Defense community. We all know that this subject matter is not beloved by social media. So we have to try to fool them into making our content more widely known.

For those who don’t know I am attorney Andrew Branca for Law of Self Defense defense.  Thank you very much, as always very pleased to be here.

This weekly News/Q&A Show is the only piece of content we produce at Law of Self Defense that’s freely available, open access to everyone, you don’t need to be a Law of Self Defense Member to access this content. Most of our content is members only, but every Thursday at 4pm Eastern time we do our Law of Self Defense News/Q&A Show live. We do it live on Facebook Live, and on our membership page. Afterwards, we do keep a recorded replay of this show available. So if you can’t make the live show, you can catch the recorded replay on both Facebook and the Law of Self Defense blog.

And starting this year, we’re also making this one show, not our other members-only content, which is available in its own members-only podcast form. But we’re making this one show available also as an open access podcast on Spotify, and Pandora, and on Apple Podcasts.

So if you use any of those platforms for podcasting, and you’d like to be able to access this once a week open access live News/Q&A Show as a podcast.  Of course, our Law of Self Defense Members will continue receiving this in their members-only podcast along with all the other content that we do.

So, of course, as the show suggests, it’s the News/Q&A Show. So we cover use of force news events, and then questions that have been sent in to us. Those questions could be sent in beforehand. Our members, our Platinum members have a platinum-specific Q&A form they can use to submit questions. Anyone else can submit questions to us simply by emailing them to show@lawofselfdefense.com.

And before we sign off today. I’ll also scroll through the comments. So any questions that are submitted live, time permitting, we do try to keep the show to no more than an hour. I’ll address questions that were submitted in the content.

So feel free if you have questions, drop them in the comments at any time, I won’t have a chance to take a look and see what those questions may be until near the end of the show. But I will scroll through the questions for that purpose.

Now for those of you who may be wondering whether or not you want to stay for the entire show, let me give you an overview of what I know we’ll be covering in terms of news events.

We’ll be taking a look at the Arkansas stand your ground bill that’s working its way through the legislature.

We’ll be examining case in which yet another prosecutor, a newly elected prosecutor has decided for apparently political reasons to reopen a shooting. That was for all practical purposes closed years ago.

We’ll take a look at Georgia’s citizens arrest law and the efforts being made in that state to do away with that citizens arrest law.

And we’ll take a look at Kyle Rittenhouse being subject to new bond restrictions after allegedly displaying racist hand signs and I think you’ll be interested to see what that claimed racist hand sign happens to be.

So those are the news topics we’ll be covering in more detail in terms of questions that have been sent in ahead of time. So these are the questions I know we’ll cover before we get to whatever live questions the live audience might have submitted.

We had one of our Platinum members asked once you’re arrested, do you and your lawyer have to meet with law enforcement and prosecutors to answer questions.

We had another Platinum member asked. Well, they have a family member who’s been carrying concealed unlawfully without the required permit. What can they tell their family member to convince them It’s a bad idea.

Also how might open carry increase legal risks in a self defense case scenario.

So those are questions we’ll definitely answer plus whatever live questions all of you submit during the course of the show.

CCW Safe:  Our Sponsor

Now before we jump into the substance of today’s content, I do, of course, need to mention today’s sponsor, CCW Safe, a provider of legal service memberships, what many people mistakenly call self-defense insurance. CCW Safe in effect promises to pay their member’s legal expenses if their member is involved in a use of force event.

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

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

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

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 of 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 for criminal legal defense, 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.  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, with that out of the way, let’s jump into our news items that we want to cover with all of you today.

‘Stand your ground’ bill clears Senate [Arkansas]

The first is the Arkansas standard ground bill. It successfully cleared the State Senate in Arkansas, 27 to 7 was the vote so not even close overwhelmingly in favor of standard ground. This would make Arkansas and many people I’m sure are shocked that Arkansas is not already a stand you ground state but Arkansas was still among the minority of standard ground states. Once Arkansas becomes standard ground presuming it does, it will be the 48th [CORRECTION] 38th standard ground state in the country. So standard grounds not rare and unusual folks, it’s the norm in the United States, after Arkansas that will only be about 12 states, exactly 12 states, that impose a legal duty to retreat before an otherwise lawful defender can defend themselves against attack.

And it’s important to keep in mind what standard ground actually is. Those of you who are long-time members of the Law of Self Defense community will know that when we talk about a claim of self defense as a legal defense, there are up to five elements of a claim of self defense, they are cumulative, they must all be present for your claim of self defense to be valid. Those elements are Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.

Obviously, we don’t have time in the context of today’s show to go through all of those in detail. We do have an entirely free infographic I do encourage you to download that provides a brief explanation of each of these five elements. Because if you do, if you do not understand these five elements, folks, you can’t possibly understand how self defense law works, or doesn’t work. These are the fundamental building blocks of any claim of self defense, no matter what state you’re in, and the infographics entirely free, folks, it doesn’t cost a penny, it’s just a PDF download. And you can get that by clicking the image or link below:

http://lawofselfdefense.com/elements

Again, it’s free. So when I talk about the elements self defense, if you don’t know what I’m talking about, you need this infographic at the very least.

So what stand your ground does is it takes those five elements of self defense and it removes one of them, it removes the element of Avoidance, the otherwise existing generalized legal duty to retreat, if safely possible, before you can lawfully defend yourself, defend your family, defend your family against unlawful attack.

Stand your ground is not some weird alternative way of justifying your use of force. It’s not a license to murder, as antagonists of standard ground say, it’s simply straight up self defense, except without the element of Avoidance, all the other elements are still required.

You still have to have been the innocent victim of an attack, the attack has to be imminent, you have to use no more force than necessary, which is proportionality, your conduct your perceptions, your decisions, actions have to be those of a reasonable person.

If you meet those four elements, then the states that are standing around don’t reserve the right to put you in prison for the rest of your life just because the clever prosecutor convinced the jury that maybe he would have had a safe avenue of retreat, if he tried. They [the stand-your-ground states] say if you meet those four elements, that’s good enough for us.

The duty to retreat states do reserve the right to put you in prison for the rest of your life, even if every other aspect of your claim of self defense is 100%. rock solid, if they can convince the jury that you could have retreated instead you go to prison for the rest of your life.

So good news is in the last 20 to 25 years, there’s been a bunch of states that have moved from the duty to retreat side to the standard ground side, which is favorable. Not one state has ever gone the other way, folks, in in the last couple decades, 20 to 25 years, every state’s that’s moved, changed its position, has changed from duty to retreat to stand your ground.

Assuming Arkansas moves ahead with stand your ground, it would be the 48th [CORRECTION] 38th state standard ground state in the country. And it certainly all the news coverage I see indicates that will, again, a pass.  The state Senate 27 to 7, it appears it’s going to pass the state House by similar margins. And the governor’s Republican therefore it’s likely, not guaranteed, but likely to sign the bill.

And then Arkansas will be standard ground joining the large majority of other American states.

And I’ll mention of course that the attacks on stand your ground by the folks who don’t like it, they’re very reminiscent to my ear, and I’m old folks, I’m 56. I’ve been around a long time, I was around when there were very few states with concealed carry permits. And the arguments against concealed carry permits were much the same as the arguments I’m hearing against NGO ground. It’s all the usual stuff, blood will run in the streets, people will kill each other over shopping cart accidents, all that kind of nonsense. The country will become the Wild West. None of that happened when concealed carry was passed. None of that happens anywhere that stand  ground has passed.

One argument you’ll hear all the time is, well, where they passed a standard ground homicides have increased.

Well, first of all, I don’t believe this statistic because I don’t believe, most of the people talking about stand your ground can’t define for me what it is. So I don’t think they actually know what they’re talking about.

But even if it’s true that homicides increased, my response to that is, well, you say that like it’s a bad thing?

Not all homicides are bad folks. At least they’re not all illegal. There are legal homicides and illegal homicides. If the number of illegal homicides goes up, that’s bad, but they’re not claiming that, they’re merely claiming homicides go up.

If an intended rape victim kills her rapist rather than gets raped, guess what, folks? That’s an extra homicide. But it’s a legal homicide.

If a homeowner facing a home invasion by armed intruders kills those home invaders, guess what, that’s more homicides, homicides went up. But they’re not illegal homicides. It’s a homeowner who’s defended his home against armed intruders.

So just because homicides may have increased, and again, I don’t know whether that’s a true statistic or not, but even if it’s true, that doesn’t mean it’s a bad thing. That may mean a lot of innocent law abiding people were in a position where they could lawfully save their lives from deadly force attack.

Okay, so that’s Arkansas and their stand your ground efforts, hopefully those will reach fruition.

New DA Jason Williams to review homicide in 2013 ‘stand your ground’ case

The other news item another news item I wanted to touch upon was there’s I’m seeing this as a pattern across the country. A new district attorney gets elected in the district, often campaigning, so this is political, explicitly political, campaigning on the promise to reopen some high profile homicide case that occurred in the jurisdiction years earlier.

And this happened with the Michael Brown case, in Ferguson, Michael Brown, the hands up don’t shoot hoax case, where he was shot by Officer Darren Wilson, perfectly lawful shoot. The Grand Jury refused to indict, Barack Obama and Eric Holder’s Department of Justice refused to bring any kind of civil rights charges. There was no one who was able to find anything unlawful about that shooting.

But there was just this past year, there was a newly elected prosecutor in Ferguson, and he ran on reopening that case, the Michael Brown case, and sure enough, he got elected. Sure enough, he reopened the case. And a few weeks later, he re closed the case.  Because the evidence didn’t change, folks, and the law didn’t change. There was nothing unlawful about what Officer Darren Wilson did. Michael Brown made that happen.

Well, now we have a newly elected district attorney in New Orleans, Orleans Parish in particular. And he ran for that position as district attorney promising to reopen a homicide case, a high profile homicide case that occurred there in 2013.

It involved a homeowner, Merritt Landry, who was in his home, heard a noise out in his driveway and I don’t know if you’ve never been to New Orleans is a lot of small houses that have these little tiny driveways right in front of the front door, and the entire small lot, usually these are tiny little lots. This one was in particular, is fenced in. So right up from the sidewalk in, it’s a fenced in space.

And there’s obviously a lot of crime, a lot of property crime, a lot of personal crime. In New Orleans, it’s one of the most violent cities in the country. So homeowners do this to delineate their property line. So you don’t, you can’t accidentally come across someone’s property. You have to climb the fence to get in.

And that’s what Merritt Landry’s property was like he heard a noise out in his driveway at night. It’s dark. He opens up his front door to see what’s going on. He sees someone approaching him in the darkness. Now behind Merritt Landry. It’s not just him. He’s in his doorway. So this person coming at him gets past him, he’s in Merritt Landry’s house. Behind Merritt Landry is his wife, are his children. Merritt Landry perceives something in this other person’s hand, the other person does not respond to commands to stop, and Merritt Landry fires a single shot, and he ends up shooting 14 year old marshall Coulter in the head, as Coulter was approaching him within his locked yard.

Keep in mind, and certainly folks, this would be within the curtilage of the home. In other words, the area immediately around the home, that’s part of the normal day to day use of the home, it’s treated the same as inside the four walls of the house.

Now of course, this created a tummult because Merritt Landry is white, Marshall Coulter was black and 14 years old. But the circumstances didn’t look particularly good for prosecution. And then video emerged of Marshall Coulter being videotaped breaking into other homes. So, and even his friends and family were interviewed and gave statements to the effect that well, this is what 14 year old Marshall Coulter does. This is his profession. He’s a burglar, a theft, a thief of property. So no one was shocked that he had been engaged in this activity.

So that was all resolved without a prosecution of Merritt Landry. This all happened in 2013, folks, so we’re talking seven years ago now, eight years ago now in 2021.

And this newly elected prosecutor has decided that he’s going to reopen that case.

Now. I expect this to go much the same as with the reopening of the Michael Brown case, I expect they’ll open up the case. Look at the facts, look at the evidence, look at the law and determine that, well, there’s nothing to be done here. In any case, the promise to reopen the case achieved, its intended end, right, it got this guy elected to the DA’s position. So it served its purpose. I expect he’ll drop it.

But we don’t know whether he’ll drop it and Merritt Landry, the homeowner, doesn’t know he’ll drop it. So this is really terrorizing to the defenders. In these cases, it’s as if the case will never go away, even when the authorities have determined that the use of force was lawful, not criminal. You never know if five years from now, 10 years from now, 15, 20 years from now, because if you’ve killed someone in self defense, and they want to characterize it as a murder, there’s no statute of limitations on murder, folks. They can come back anytime.

So do you have to live the rest of your life wondering if some newly elected politically motivated prosecutor is going to reopen your case? It’s terrorizing.

And by the way, folks, just another argument for self defense immunity provisions. Which many states have but not all do. At least with self defense immunity provisions you have the opportunity to go to court get the issue of whether or not the use of force was lawful adjudicated in a relatively inexpensive and timely fashion in the hearing before a judge and get granted that immunity if the judge determines, usually by a preponderance of the evidence, that your use of force was lawful, and in most relatively clean cases and self defense, that should not be hard to get to.

And once you’re immunized, well, then you don’t have to worry about it anymore, then you’re free and clear of any criminal liability. But if your jurisdiction does not have self defense immunity laws, folks, it could be years decades later that they come back to try to get you for a homicide committed in what has all that time been deemed to be lawful self defense.

Georgia citizen’s arrest law on chopping block

In other news items. Georgia citizens arrest law on the chopping block, I’ve mentioned this before, but it’s it continues to be in the news and it seems to be gaining traction. This, of course, is all about the Ahmaud Arbery case, and I think it indicates a real weakness in the prosecution of this case. The whole fact pattern of the Mr. Arbery case, of course, is Ahmad Arbery was killed in a confrontation with two men, the McMichaels Travis and Greg McMichaels, while they were being followed by a neighbor of the McMichaels, Roddy Williams, who made the infamous cell phone video recording of the final stages of this confrontation.

The McMmichaels had observed, there’s video recording of Ahmaud Arbery unlawfully entering a home. Arbery, of course, had been previously arrested for theft crimes. Not sure if that was known to the McMichaels or not, it might have been because one of the McMichaels was a former law enforcement officer who worked for the prosecutor’s office and had some interaction, had some familiarity with our Arbery’s criminal history.

But in any case, the McMichaels pursued Arbery, stopped their truck in the street. Travis McMichael got out of his truck with a shotgun, Arbery charged Travis McMichael, fought him for the shotgun and got killed for his efforts.

And now those three men, Travis, Greg McMichaels, and Robbie Williams have all been charged with felony murder with different predicates for the felony murder.  I believe for the McMichaels it’s felony murder predicated on aggravated assault, for Roddy Williams it’s felony murder predicated on attempted unlawful imprisonment.

The difficulty for that narrative of guilt is that Georgia has a very expansive citizens arrest law. For citizens arrest to be lawful, they basically have to have probable cause to believe the person they’re seeking to arrest has committed a felony and is in flight from that felony.

And the facts of this case align very well with those conditions for citizens arrest. And the McMichaels have consistently said that all they were seeking to do at that time was to stop Arbery to ask him questions to determine if an arrest was appropriate. Well, if the law would allow for an arrest, it certainly allows for a stop. A stop is a lesser degree of interference with freedom of movement than an actual arrest. And it appears to my reading of Georgia’s citizens arrest statute that it makes the McMichaels’ conduct lawful.

Now, that’s shocking to many. And it’s shocking, in part because that citizen’s arrest statute was first passed into law in 1863, when America was a different society, when there were relatively few formal organized police departments, where the citizenry was expected to be their own law enforcement. And that’s why this very expansive citizens right, citizens arrest law existed.

Obviously, we don’t live in that world anymore, but the statute never kept up.

Now, you can make a perfectly reasonable argument that that’s an inappropriate statute for 2021. I think reasonable people could agree or disagree. But what you can’t argue about is whether or not the statute was the law at the time the McMichaels, pursued Arbery. It was.  And I think when they get the court that’s going to be a pivotal component of their defense.

And I think one of the reasons we’re seeing so much effort now to get rid of Georgia’s expansive citizens arrest laws, because people see how broad it is and how it’s likely to make the McMichaels conduct justifiable under the law.

So all these attacks on this Georgia citizens arrest law by which by the way, I have no personal problem with getting rid of the law. But I think all these attacks are now being prompted largely because they see that a justifies the McMichaels’ conduct in this case, or at least at a very robust argument can be made that it justifies their conduct.

So I think we’ll see more of that. And I think we’ll see the demise of the Georgia citizens arrest law sometime this year. That won’t change things for the McMichaels, of course, they’re entitled to the benefit of the law as it existed at the time they engaged in the conduct for which they’re being prosecuted.

Kyle Rittenhouse under new bond restrictions after allegedly displayed racist signs in Wisconsin bar: prosecutors

Okay, and the last news item I wanted to cover before we get over to questions is the Kyle Rittenhouse. Kyle Rittenhouse, of course famous for the Kenosha shooting. He was attacked by multiple members of Antifa/Black Lives Matters, however they choose to characterize themselves. The typical rioters protesters violent actors in Kenosha, Wisconsin. And Kyle killed two of the three and grievously wounded the third.

He’s now been charged with murder and a bunch of other criminal charges. He’s out on bond. And he was filmed at a bar in Wisconsin drinking.  He’s 18. So he’s under the 21 year age limit for consuming alcohol. This got people in a tussle, apparently, calls were made to the district attorney’s office to get Kyle’s bond repealed.

Unfortunately for them under Wisconsin law, apparently it’s legal for an 18 year old like Kyle to consume alcoholic beverages in a bar if they’re in the company of a parent. And Kyle was in this case [with his mother].

Nevertheless, obviously, there was public pressure by the “get Kyle” contingent out there, put political pressure on the prosecutor, prosecutor drags Kyle back into court. And he did get some additional bond restrictions placed on Kyle, those restrictions are basically you can’t drink alcohol, you can’t go to a bar. And frankly, anytime you go to a judge and ask the judge to put those conditions on bail, the judge will agree because no one has to drink and go to a bar. Right. So they’re easy conditions to impose are not a heavy burden on the person upon which they’re being imposed.

But one of the rationales the prosecutor made for this change in bond restrictions was not just that Kyle was at a bar having a beer with his mom. There was no violence. There was no problem. There was nothing bad happening. But the prosecutor claims that while he was there, Kyle was throwing racist hand signs.

That’s right. Kyle was making racist symbols with his hands. Now, what was this racist hand sign that Kyle was throwing in the bar that got this district attorney all riled up? Well, here’s an image that the district attorney used in court. Inside that red circle is Kyle making the okay sign folks.

Some of you may remember from the Kavanaugh hearings, in which now Supreme Court Justice Kavanaugh was falsely accused of ridiculous sexual improprieties and crimes, a supporter behind him, a former clerk, had made the okay sign behind them. And suddenly the whole world learned that the okay sign is apparently a sign of racism, white supremacy. At least that’s what the prosecutor is arguing is happening here.

Now I expect most or all of you listening to my voice right now have at some point in your life made the okay sign. I certainly have. Does that mean we’re all white supremacists, folks, are we all racist? Or is just nonsense, because the same people making the claim that this is a symbol of white supremacy, will also tell us with a straight face, that this is Jacob Blake, unarmed, without a knife in his hand.

So are these people acting in good faith arguing in good faith making claims in good faith? Or are they just acting, politically willing to burn anybody and anybody, everybody who stands in between them and the political power and authority they want to wield. It’s frankly, it’s contemptible.

But of course, we can understand why they’re doing it right. The problem, of course for the prosecutor is that with many of these types of prosecutions, it involves a black defender or, sorry, a white defender, a white officer and a black suspect or victim. And so there’s kind of an inherent building blocks there to fabricate a claim of racist motivation.

Just based on the circumstances here, of course, everyone Kyle Rittenhouse shot was white just like him there. There was no “black” involved in this interaction. But it would be helpful to the prosecution if he could somehow characterize Kyle as racist or white supremacist. So they’re desperately reaching for anything they think would add that taint to it.

And by the way, at some point, Kyle’s going to have a jury the jury will go into deliberations and you think no member of that jury is going to say, but wait a minute, I seem to remember hearing the news. Isn’t this guy, a white supremacist somebody will think Because propaganda works, folks, and it makes these notions whether they are entirely fabricated for political purposes or not, it makes them sticky. And someone will have remember the allegation that Kyle Rittenhouse the false accusation, there’s no evidence to support this, that he’s somehow a white supremacist.

And no one’s going to remember any kind of counter argument to that. It’s, it’s really contemptible.

Law of Self Defense Membership: Just 99 Cents!

Alright folks, next we’re going to jump into our questions for today and the ones that were sent in and any that you have asked live, we’re about halfway through the show. And that’s particularly good timing.

Before we do, I’ll mention again that this is the only open access content we produce each week is this weekly News/Q&A Show we do every Thursday 4pm. Eastern Time, live on Facebook Live for our members in their member dashboard. And then later available as a bonus open access podcast on Spotify, Pandora, and Apple Podcasts.

But we produce a lot of other content every single week, folks, we do produce content almost every day of the week. That content is available only to our members. To give you a sense of the kind of stuff that we covered just this week.

http://lawofselfdefense.com/blog

On Monday, we did a let’s see if I can do a better job of this. On Monday, we did a blog post on a circumstantial evidence a case involving circumstantial evidence in which a man convicted of manslaughter and sentenced to 39 years had his conviction reversed on the grounds that the circumstantial evidence in this case was insufficient to support a guilty verdict. And we talked about how sometimes circumstantial evidence is enough for a guilty verdict. And sometimes it’s not and what the difference is, between those kinds of cases.

http://lawofselfdefense.com/blog

On Tuesday, we did a blog post and all this content folks is available as a written blog post with links to relevant law, cases, statutes, jury instructions, also as video content, if you’re watching this the same way as this show is, and as podcast content, and our members only podcast. But on Tuesday, we did content on when self defense immunity is no shield. I’m a huge fan of self defense immunity laws, I think they’re more important even than standard ground, but they need to be properly designed. And this was a case out of Kansas, in which frankly, it’s self defense immunity law is not properly designed does not in fact, provide any additional protection for lawful defenders than of self defense immunity did not exist at all in Kansas, which is sad. But we explained why that’s the case.

http://lawofselfdefense.com/blog

And just earlier today, we did a blog post on the distinction between use of force criminal charges, verse weapons, criminal charges, how they’re different from each other and don’t necessarily affect each other. You could be engaged in unlawful conduct like illegal possession of a weapon, and still retain your generalized rights to self defense, you don’t lose self defense automatically in most states, just because you also happen to be engaged in some unlawful activity. But there are circumstances in which that unlawful activity can undermine your claim of self defense. Interestingly enough, we also explain how self defense as a legal defense can also be a justification for a gun crime.

So if you’re interested in that kind of content, again, it’s only available to our members because it’s outside this News/Q&A Show format. But the good news is membership is dirt cheap, folks. It only costs about 30 cents a day to be a Law of Self Defense member, about 25 cents a day if you sign up for the year.

And even better, you can try it out for very little cost. We have a trial membership for Law of Self Defense, that is only 99 cents for a two-week trial membership. And if you decide you don’t like it and want your money back, we’ll refund 200% of your money, folks. So two times 99 cents, it’s not a fortune, but let’s face it, you didn’t pay a lot to try it out.

So I’d encourage you to give that a consideration. You can learn more about that by clicking the image or link below:

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You instantly get all the same access that our longest standing member would get to our content, not restricted in any way. So it gives you a good opportunity to get a sense of what we produce on a regular basis outside of this open access News/Q&A Show.

Q&A

Alright, folks, so let’s take a look now at the questions that were sent in.

Am I & My Lawyer Required to Talk with Police or Prosecutor?

Gary, he’s a Platinum Law of Self Defense member. And he, asked once arrested, do you and your attorney have to meet with law enforcement or the prosecutor to answer questions about the crime or to hear what evidence they have against you?

The short answer is no you don’t you don’t have to say a word to prosecutors or law enforcement.

You should definitely not be doing that. At least, once off scene, once you’ve dealt with interacting with law enforcement at the scene, you should definitely not be speaking with detectives, you should not be speaking with prosecutors without your lawyer present.

But even with your lawyer present, you may not want to be speaking to them. Now, this is where you really have to rely on the expertise and competence of your defense counsel to advise you on what to say, if to say anything at all, under what circumstances.

It’s also possible, of course, for your lawyer to meet with, say, prosecutors without you present, This, of course, would have to have your permission. But this would be normal part of the function of a criminal defense attorney, and basically make representations, were prepared to prove this, were prepared to show that, to kind of set out your narrative of self defense, without you saying things, because your lawyer can make these propositions to a prosecutor and it can’t be used as evidence against you in court. Whereas if you were making these statements, it could theoretically be used against you in court if the prosecutor thought it was incriminating.

So you can have your attorney basically set out your proposed narrative of self defense. And if your attorney believes that there’s a possibility of coming to an accommodation other than going to trial, that would be a reasonable thing to do. If your attorney feels strongly about that, then it may be beneficial to have you in the company of your attorney, talk with law enforcement talk with prosecutors present so they can hear it in your voice, the cleaner your narrative of self defense, the more likely that would be beneficial to you.

Of course, if you have a really messed up narrative of self defense, your attorney is going to lock everything down as hard as possible.

Also, if there are possible political dynamics, to your case of self defense, such that the prosecution might be motivated to take you to trial, despite the legal merits, your one race, the person you shot in self defense is of another race prosecutor doesn’t really care what the merits of the case are, and doesn’t really care if he gets a conviction, just wants the theater of taking you to trial for political advantage, then your defense counsel is going to lock down your narrative as tight as possible.

Now, keep in mind, if you’re in a self defense immunity state, and you want to seek self defense immunity, you have to make a motion for a self defense immunity hearing. And at that motion, you have to make the initial presentation of evidence in support of self defense, you have to convince the hearing Judge of your narrative of self defense, and then the prosecution has an opportunity to attack that narrative of self defense. But the idea is if you can convince the hearing judge usually by preponderance of the evidence that your use of force was lawful self defense, the judge can, if he agrees, grant you immunity from prosecution and or civil suit, depending on the state.

But if you get immunized against prosecution, that’s it. That’s the end of the proceeding. And you don’t have to worry about spending a few $100,000 in trial court with always the risk that you might get convicted, no matter how innocent you are. In cases I work on, we always tell the client, so we have to put you in front of a jury, there’s a 10% chance you get convicted, and you could be the most innocent client we’ve ever had. That’s just part of the noise in the system.

So if you have the option to seek self defense immunity, you can avoid those risks and costs. If your lawyer thinks it’s a good idea.

It’s not always prudent, however, because when you seek self defense immunity, you are basically disclosing your defense strategy for the prosecutor, before the trial, before you have to, before the prosecution has rested during the trial.

And that could lead the prosecution to kind of refine and refocus their strategy for getting you convicted. So there are risks involved both ways.

But the short answer is you don’t have to say anything. But it may be or may not be beneficial for you to speak with law enforcement or prosecutors, depending on the overall nature of the case. And of course, follow your defense attorney’s professional opinion.

Why Doesn’t Every Blog Post Cover Every Possible Legal Issue?

I did get a question here. I just want to touch on briefly from another Platinum member. He’s asking about one of our members only content pieces recently. And he said, Well, you address these issues in that content. But there’s these other issues, legal issues that you could have talked about that you didn’t talk about. Why didn’t you talk about those other legal issues?

And the answer folks is in any content we produce, we have to have some constraints around the content, or every case would be a 500 page blog post. And we just don’t have time to do that.

So any case that comes across our desk, whether it’s a court decision or a news event, and we do our legal analysis on it, we try to hit the handful of most interesting, most compelling legal issues in that case.

If you want comprehensive coverage of every possible legal issue, well then you need to engage at a deeper level. You need to make sure you read our book (“The Law of Self Defense, 3^rd Edition”), make sure you take our courses, make sure you’re a long enough Law of Self Defense Member that you access a broad enough scope of our content that with time, eventually you’ll see every prospective use of force law issue covered one way or another.

How to Convince Relative to Not Carry Gun Illegally?

All right, we got a email question in from Tim. He says he’s a concealed carrier with a permit. But he’s got a family member who’s been carrying concealed without a permit. So carrying unlawfully, and in some states, folks, this is a big deal in some states. It’s not like a $50 ticket. If you’re caught with a gun, it can be years and years in prison. I don’t recall what state Tim is in. But it doesn’t really matter for our purposes.

He says his family didn’t just go and get a permit. Because of COVID things are shut down there. The process in his state for getting a permit is basically on hold. So they’re not practically available. So apparently, the position of the family member is, listen, I’d get a permit if I could now. I mean, obviously, they should have before, right, folks, but, he says hey, I’d get a permit now, but I can’t, the process is basically frozen. And I’d rather take the risks of getting caught illegally with the gun than needing the gun to defend myself defend my family and not having it having left at home.

So Tim is asking, Well, listen, this is strikes me as extremely high risk legally speaking, what can I say to him to persuade him of the extraordinary risk he’s running?

Now, folks, I’ll tell you upfront, first of all, what we do here at Law of Self Defense is use of force law, not gun law. So I’m not going to get into the details of permits. I can tell you, I’ve had a concealed carry permit my entire adult life, I’ve carried a gun for personal protection my entire adult life. I know about gun law what I need to know as any similarly situated gun owner who carries a gun for personal protection, but I don’t claim any particular expertise in gun law.

Also, I don’t tell people what to do. Okay, unless you’re one of my kids, I don’t tell you what to do. I only advise people on the legal risks of the decisions, the legal implications of the decisions, the options available to them.

So with his family member, that family member, Tim’s family member perceived the options as being stay within the law, and don’t carry a gun on my person, And hope I won’t need it, or carry the gun unlawfully and run the legal risk that I’ll be caught carrying a gun unlawfully, and then the legal repercussions can be serious.

Unfortunately, I can’t tell Tim’s family member what to do. Those are really the two options. Those are the two scenarios and which risk any of us is willing to accept as the greater one to be concerned about is going to be an individual decision for us.

I certainly as an officer of the court, I can’t advise anyone to break the law. But the legal implications, if you’re caught with the gun without the required permit, there are going to be legal implications with that.

Now, I will say in my experience, if you’re a normal law abiding person, and you carry concealed prudently, there’s no reason anybody should ever know you have that gun. I’ve carried a gun all my life for many years, 25 years, it was a five-inch 1911. And I’ve never been made with my gun. So it just doesn’t need to happen.  And if nobody knows, there’s theoretically no problem.

On the other hand, if you need the gun, and you don’t have it, well, that’s a problem too.

So, of course, in the best of worlds, we’d all be living in constitutional carry states where this was not an issue. I guess one answer for the family member would be we’ll move to one of the, I forget how many there are now it’s something like 13, or 15, or 18, or 20. states are constitutional carry states. Live in one of those and as long as you’re not engaged in a crime or have previously convicted of a felony, carry a gun to your heart’s content.

That’s the way of course the whole country should be. That’s what the right to keep and bear arms shall not be infringed means, obviously. But unfortunately, we have to live in the real world, the real world full of imperfect people who make up rules that we have to abide by or suffer the legal consequences.

So all I can really tell Tim is listen, it sounds to me like your relative understands the two risks involved, get caught with a gun illegally face criminal charges for that get caught without a gun, and he needs it to defend himself and his family bear the consequences of that. And he’s he’s made his decision. And, yeah, he’s an adult, I presume.

Does Open Carry Endanger Claim of Self-Defense?

Okay, we got another question here from Jerry. And then I’ll turn to I think this is the last question I’ve lined up and then I’ll turn to questions that might have been submitted in the comments. Jerry says, He lives while doesn’t matter what state he lives in, he’s got a concealed carry permit. And his state, you can lawfully carry open or concealed with the permit.

And that’s how it is in my home state of Colorado as well. You don’t need a permit to carry openly but you do need a permit to carry concealed, but both open and concealed carry is possible.

And he wonders how does open carry, change or affect things from a self defense law perspective?

So for example, some people say, hey, if you open carry, bad guys can see that you’re armed and prepared to defend yourself. And that would mitigate the risk that violent confrontation will happen around you. Because clearly you’re prepared to defend yourself a deadly force, should the circumstances warranted. So it’s a deterrence to violence.

Other people say, Well, if you’re open, caring, that creates risks, creates where someone might try to take your gun, creates a risk that the armed robbers will shoot you first, right? Because you’re the most immediate threat. And of course, none of us get to choose the time place and manner of attack. That’s up to the bad guy, the bad guy initiates the violence. So by definition, we’re behind the curve. Right? That’s the second argument.

I can tell you my personal position. And this is not Andrew Branca as an attorney. This is not a legal opinion. This is just my personal opinion, as someone who’s carried a gun my entire adult life.

I will never carry open if I have the option to carry concealed. Because I don’t want anyone to know I’m carrying a gun, just for pure social reasons, because some people out in public get alarmed when they see a gun. But especially in the context of bad guys, I don’t want the bad guy to know I have a gun until it has to make loud noises, should circumstances make that a requirement.

I want to look like the least offensive, least threatening person in that environment until I see an opportunity to adequately defend myself and my family. And I don’t see any advantages to carrying openly.

Now if it was not possible for me to carry concealed, if I was someplace where the law made that illegal but open carry was lawful, well, then, of course, I would open carry, I want the gun to be able to defend myself and my family. But if I have the option to carry concealed I personally will never open carry.

Now let’s get back to the legal issue. So what might be some legal complications of open carrying? assuming of course, it’s legal in terms of a weapons possession charge?

Well, one obvious concern is you know, there are lunatics out there who look for confrontations, especially we see them especially during this COVID era, right? They don’t like the way you’re wearing a mask or not wearing a mask or whatever the case might be. They start filming you and shouting, they’re looking to create a confrontation. They see your Trump hat, they don’t like that, whatever, they’re looking to engage you in a confrontation.

If you’re carrying concealed, they don’t know you have a gun. So they can’t make up some false story about what you did with your gun because they don’t know that it exists.

But if you’re open carrying, and they know there’s a gun on your person, you think they would hesitate lunatics like this would hesitate to call the police and say hey, he drew that gun appointed to that me? You trust them not to make a claim like that? Remember, they’re lunatics, by definition, they’re looking for confrontation.

So, I would be strongly disinclined to open carry a gun, in part for the reasons I’ve already discussed, it might make you the first target, but also because it provides a platform for a false narrative that you use that gun inappropriately, perhaps unlawfully.

Now, if you drew that gun and pointed it at someone, without the conditions for that threat of force being met, that’s aggravated assault with a firearm, and in most states, that’s good for 10 years, sometimes 20 years in prison. So it’s a very serious felony charge. I don’t want to give someone else the opportunity to make that charge against me falsely, merely because they happen to observe that I have a gun on my person.

If I’m carrying that gun concealed, I take that opportunity away from them, that gun never gets presented unless there’s a deadly force threat actually occurring. In which case, that’s the appropriate time for the gun to be presented.

Live Questions

Alright, folks, we got a few minutes left, I’m going to turn out to comments that might have come in questions that may have come in in the comments. First, I’ll go through our law, self defense membership form. Usually these folks submit their questions to me separately.

Scott asks a good question, will Arkansas be a soft or hard standard grant? Scott, I do not know the answer to that question, but I’m going to make a note of it, and I’ll dig up the bill that’s in front of the legislature and I’ll have an answer for you next week.

So Chris asks, Are any of the other stand your ground states similar to Virginia in that the threshold for losing innocence is extremely low, making it effectively a duty to retreat state?

They’re not the same, Virginia is rather unique in how low they make the threshold for losing innocence. So in most states, it requires some explicit affirmative conduct on your part, usually to have been the initial aggressor, the first person to threaten or use force.

The way Virginia law phrases this is that you need to have, I believe the phrase they use is “contributed to the fray,” which could be anything. I mean, that could be, you know, getting into an argument about a parking spot. Your expectation is it’s purely a verbal argument, or someone talking loud in a movie theater, or someone cursing at the restaurant table next to you and your family and your kids, and you just ask them, Hey, could you keep it down?

And then that later develops to a physical confrontation. Did you contribute to that affray because, after all, if you’d said nothing, maybe the fight wouldn’t happen. So it’s a very low and extremely subjective threshold, that’s fairly unique to Virginia.

And one of the one of the reasons is a lot of Virginia use of force law is, you know, Virginia is an old state, one of the first states, it’s a Commonwealth state, and it has not done, the same for Massachusetts, it is also a Commonwealth state, by the way, it has not done a good job of codifying its self defense law.

Most Virginia self-defense Law is not in statutory form. So it’s not kind of rigorously defined in one place. It’s in case law, court decisions, which are always vary depending on the specific facts of that particular court case. So they tend to be much more ambiguous, much less clearly defined. And you end up with these kind of very subjective guidelines on things like losing innocence under Virginia law.

In terms of whether or not other states share this characteristic, and it makes it effectively a duty to retreat state, folks, the truth is, from a tactical perspective, every state ought to be considered effectively a duty to reach retreat state, meaning, if you find yourself in a threatening situation, and you genuinely have a safe avenue of retreat that you can take advantage rather than get into the fight, you’re a fool if you don’t do that, you’re a fool if you incur the minimum 10% risk of, you go before jury of getting convicted of a felony and maybe spending the rest of your life in prison, if instead you could have walked away.

So every state, even the 48 [CORRECTION] 38 states that are standard ground states should be treated as duty to retreat states just from a tactical common sense perspective. When the only way standard ground to treat really comes into play, or ought to come into play ought not be in that tactical environment. If you can safely retreat, retreat.  If you ca’t, well, then you can’t.

In the legal fight that follows, then it’s advantageous to you to have stand your ground on your side. But in the tactical sense, you should always pretend whatever jurisdiction you’re in, that it’s a duty to retreat jurisdiction and act accordingly.

Scott asks, in the Ahmaud Arbery case I mentioned the supposedly racist okay signed by Kyle Rittenhouse, being used to characterize him as falsely characterize him as some kind of white supremacist. Scott asks, What about the racist the purported racist texts in the Arbery case?

Yeah, those might well be admissible, because those are much more explicitly racist, they use racist terminology. They’re usually not targeted at some particular individual. So, it’s not like it was a confrontation in a convenience store and they were calling someone the N-word. But nevertheless, it’s terminology that was used and captured in social media. And I would be surprised if it was not admissible in evidence, given the racial disparity between the McMichaels and Arbery.

First of all, folks, what can I say? Don’t be racist. If you’re not a racist, you don’t make remarks like that. If you insist on being a racist, well, don’t be an idiot on top of that, and say racist things in public. I mean, just control yourself.

Alright, let’s take a look now at Facebook. Let’s see for the Facebook comments. I’ll scroll through, we got about two and a half minutes left. And folks while I’m scrolling through if you want to if you like this content, even if you don’t want to be Law of Self Defense Member, totally fine. But at the very least, if you could encourage other people to take advantage of these free open access News/Q&A Shows, either the live show every Thursday, 4pm Eastern time, or the News/Q&A Podcast on Spotify, Pandora, Apple Podcasts, if you tell two people and they get on the podcast, you’ll be doing a huge service both for the law of self defense community and for your friends and family in particular.

Laurie asks, says she wants to ask me a question doesn’t want to post on Facebook. It’s very important. Yeah, you can email it to me at show@lawofselfdefense.com. I’ll look at it. I can’t promise to answer it. We get a lot of questions in here. If you’re a Platinum member of Law of Self Defense you have your own Platinum member Q&A Form, we guarantee answers to every one of those questions privately, if requested.

Boris asks about the Ahmaud Arbery case maybe Ahmaud Arbery, he’s basically saying, didn’t know it was legal for the McMichaels. From Ahmaud Arbery’s perspective, he was being aggressed by two guys armed with guns.Tthat could well be true. But what’s in Ahmaud Arbery’s mind is not what’s controlling in terms of whether the McMichaels use of force was lawful. What counts in terms of whether the McMichaels use of force was lawful is what the law allows them to do and whether that’s consistent with their actual intent.? If that’s true, it doesn’t matter what Ahmaud Arbery was thinking. The solution to that problem is to change the Georgia citizens’ arrest law, so this circumstance is not created.

Jack says open carry is a chick magnet.  Could be, Jack, I already got my chick. So I’ll leave that to your discretion.

And in the Facebook comments, someone it looks like they posted a link to the Arkansas bill. Let’s see if I can open that up real quick and answer that question whether the question is whether or not stand your ground will be hard stand your ground or soft stand your ground

Well, a quick review of that statutes, it looks from just a quick scroll the statute that it will be soft stand your ground.

For those of you who know the distinction between hard and soft, standard ground, you’ll understand what I mean, if you don’t know what that means. Well, it’s an issue we discuss all the time at law self defense in our content. But unfortunately, we’re out of time in today’s News/Q&A Show to cover it in detail.

Wrap-Up

So we are at the end, folks, I’ll remind all of you before we go if you carry a gun so that you’re hard to kill, which is certainly why I carry a gun so I’m hard to kill some of my family is hard to kill. You also owe it to yourself to make sure you know the law so that you’re hard to convict.

Alright folks, thanks for joining us for this week’s Law of Self Defense Q&A Show. Make sure you join us again next Thursday, 4pm Eastern time. Let your friends and family know get us another couple people for the show. It’d be greatly appreciated.

Also available as a podcast on Spotify, Pandora, Apple Podcasts. Just search for “Law of Self Defense” and it’ll pop right up.

Until next time, I’m attorney Andrew Branca, for Law of Self Defense. Stay safe.