News/Q&A Show: Jan. 7, 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 December 17, 2020 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:

NEWS

• Is a car driven by a non-compliant drunk driver a deadly force threat?
• Georgia seeking to change citizens-arrest law–because McMichaels’ chasing Ahmaud Arbery was lawful?
• Georgia, Kentucky, other states seeking to join those that ban no-knock warrants
• McMichaels’ attorneys using pre-trial hearings to define the legal “battle space” for the trial
• Rittenhouse cut-off from internet sales of merch to fund legal defense
• Rittenhouse receives late additional charge of curfew violation:  implications for murder trial?
• San Francisco prosecutors ask court to stop new DA from prohibiting them from doing their jobs

Q&A

• Was shooting death of Ashli Babbitt by Capital police a murder, or justified?
• Is self-defense lost if carry gun into a “no guns” posted store?
• What’s “forcible felony” mean in the context of justifying deadly defensive force?
• What should I say to 911 to best preserve my legal defenses?
• Thoughts on ACLDN as “self-defense insurance”?
• Do the 5 Elements of Self-Defense Law apply to the police?

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

Welcome, everybody. Welcome. Come on in and make yourselves comfortable. Welcome to the Law of Self Defense News/Q&A Show, the first of the new year, January 7, 2021. I am of course, Attorney Andrew Branca. Thank you very much, very, very kind of all of you.

For those who may be new to the shows, we do them live just about every Thursday 4pm, we did take a break over the holidays. But now we’re back on schedule for 2021. So every Thursday we do these open access free Law of Self Defense News/Q&A Show, it’s the only content we produce each week that is open access. Most of our content is limited to our Law of Self Defense Members, except for this show.

And of course, we use this as an opportunity to expose more of you to what we do at Law of Self Defense, which is provide plain English analysis of use of force events from a legal perspective based on actual law. The Law of Self Defense legal practice does nothing but use of force cases, meaning self-defense, defense of others in defense of property, we don’t have a generalized criminal defense practice, we don’t do DWI, shoplifting, anything like that. Only use of force law and we’ve had that focus for getting darn close to 30 years now. So this is our open access show, I do encourage you to mark your calendar, so you never miss it. We do it live both on Facebook, as well as for our members at the Law of Self Defense membership dashboard for those members.

And we do make replays recorded replays of this available on Facebook, our Facebook page on our YouTube page and of course, again, on the Law of Self Defense Blog.

Now this is only a small fraction of the tremendous amount of content that we produce. Every week. Again, most of that is for our members, but to give you a taste of the kinds of topics we covered just in the past week just since Monday, this past Monday we had an analysis of the Tamir Rice case, what I say here is the Tamir Rice fraud. This is the fraud that the police were not legally justified in shooting Tamir Rice. You may be familiar, he was a 12-year-old, 12 year old shocking I know, in Cleveland, Ohio, who was shot by police. We explained in this blog post why that shooting was completely legally justified under the actual circumstances of that case. By the way, if you didn’t know 12-year-old Tamir Rice stood almost six feet tall and weighed 200 pounds, just as one material fact in that case that’s rarely shared by the media.

http://lawofselfdefense.com/blog

Then the following day, we shared some great news, and that is that Ohio has become the nation’s 37th stand your ground state, they’ve been making this effort for a number of years without success. But this week on Monday, the governor finally signed the standard ground legislation into law the legislature had successfully passed, stand your ground before but it had always been vetoed by the governor. Now it is law in Ohio. Even better, it’s the hard variety of standard ground rather than the soft variety. If you’re not familiar with that distinction, well, then I would suggest you become a Law of Self Defense Member so you know what these things mean. They can be pretty important.

http://lawofselfdefense.com/blog

As some bonus content following up on that. We decided to provide a list to our members of the remaining 13 duty to retreat states. Some of these are states you would expect like Massachusetts and New York, others are states that you might find surprising like North Dakota and Arkansas, although I will say that Arkansas has been making the same kind of effort as Ohio the last several years to get standard ground passed are doing it again this year. So hopefully, Arkansas will be the next stand your ground state.

http://lawofselfdefense.com/blog

And then just today just a few minutes ago, this was scheduled for yesterday but we had a water pipe break at Law of Self Defense HQ, no not like the Georgia election water pipe break, this was a real water pipe break. Not too bad. I do a little plumbing myself, had it fixed in an hour ,but it did soak all of our camping gear. So that cleanup took more time than I would have liked.

So we didn’t get this post out yesterday. But we did get it out this morning to all our members and it’s another one of these Police shoot black man because they’re racist hoaxes. This time the case of Jacob Blake, the lie being that Jacob Blake was simply there to break up a fight between two women and was completely unarmed when shot by police. In fact, Jacob Blake was violating restraining order being at that scene because he had the victim the victim who called the police in this instance as well committed sexual assault. He had a felony warrant out for his arrest on that and other charges. He was attempting to steal this woman’s car, he violently resisted arrest. tasers were ineffective. And he clearly unemployed unambiguously, was armed with a knife. No question about that. But if you listen to social media, you’d never know that in fact, just yesterday, the Washington Post’s posted a tweet saying that they were shocked. Apparently that charges were not going to be brought against these officers because Jacob Blake was unarmed when they shot them.

http://lawofselfdefense.com/blog

So let’s get back to today. So that’s the kind of stuff we do just about everyday at Law of Self Defense for our members, if you think you might be interested in that kind of content. The good news is, it’s really cheap. In fact, to try it out, it’s really, really cheap. That is you can get a Law of Self Defense trial membership for only 99 cents for two weeks, folks, and there’s a 200% money back guarantee on that. So if you’d like to try us out two weeks, 99 cents, negative risk proposition.

And we can make this offer because virtually nobody who signs up as a member ever leaves, thank you, for your support all of you members, you can try that out at Law of Self Defense comm slash trial, 99 cents to try it out. Even at the normal price, it’s only about a quarter a day, to be a member of Law of Self Defense. And if you decide you don’t like it in any time, you can always cancel. That’s the end of your commitment. So if this is content in which you’re interested, I would encourage you to give that a shot by clicking the image or link below:

http://lawofselfdefense.com/trial

So what we’ll do in today’s show is the first part will cover some news items that have been in the news, there hasn’t been that much news, at least in terms of the normal rate of news the last couple weeks, because of the holidays in the media, like everybody else are home for the holidays. And when they’re home. For some reason, there’s no news, which makes one wonder if the media is really reporting news or creating news much of the time. But in any case, there hadn’t been that much to talk about. But nevertheless, what little has been happening has accumulated over the last couple of weeks so we can share those news events with you now, in today’s show.

And then we’ll dive into the questions that have been sent in to us, by our Law of Self Defense Members, and by non-members who emailed them in and time permitting, we can answer your questions, live during the show here today.

I’ve made a commitment this year to keep these shows to no more than an hour, folks. So when we get close to that hour, we will be signing off. The hour-plus shows are just too much.

But having said all that, before we get to the substance I do have to mention of course, our sponsor, which is CCW Safe.

CCW Safe:  Our Sponsor

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

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

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

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

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

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

News

Okay, folks, let’s dive into some of these news items. Now, I’ll just touch on these briefly, I have half a dozen or so but I only want to spend a minute or two on each one. And just to kind of these were just new stories that were of interest to me, not necessarily major events, one involved and all these new stories, by the way will be hyperlinked in the text version of today’s show, which you’ll be able to find at the Law of Self Defense Blog.

And we’ll leave that open access for all of you who may not be members.

Is a car driven by a non-compliant drunk driver a deadly force threat?

So, the first news item that caught my eye over the last couple of weeks was a mother seeking charges against police officers who shot her son now they shot her son during a traffic stop which he fled. They killed him. And their justification is what we shot him because he presented as a deadly force threat to us and the public in general.

Did he have a weapon? Well, he didn’t have a gun or a knife that he threatened them with. But he had the car. And they had reason to believe that he was drunk as a skunk. That’s why they pulled him over in the first place. And in fact, after the fact autopsy would show he had a blood alcohol level of 0.138.

In most states, folks, driving while intoxicated, or driving while impaired requires merely 0.08 blood alcohol level.  So he’s approaching double the limit for driving while intoxicated. point one three at a pretty high intoxication level.

So, the question then is, well, if someone if someone were using a car, maliciously, intentionally as a weapon to run people over, we’d certainly call that deadly force right? Now, arguably, as a drunk driver, he’s he his goal is not to run people over and kill them. But nevertheless, does he not present an imminent deadly force threat to the public by driving around in a car at 0.138, especially when he’s non responsive, non-compliant with being pulled over with his behavior being stopped. So they pulled them over, and then he fled the scene at speed. That’s what resulted in the shooting.

So, it’s always comes back to the same principles, folks, those same five elements of a claim of self-defense, innocence, imminence, proportionality, avoidance and reasonableness. I don’t want to dive into them overly deeply right now. But if any of you are new to the show are not familiar with those concepts, I urge you to download our free infographic. These are the five elements that are the building blocks of any justified use of force claim, folks, if you don’t understand these five elements, and they apply in all 50 states, if you don’t understand these five elements, you can’t possibly understand Self Defense Law. So we make this infographic available for free, it provides a brief description of each of those five elements. So you have at least that fundamental working knowledge. Again, it’s free doesn’t cost a penny, it’s a PDF download. And you can get that by clicking on the image or link below:

http://lawofselfdefense.com/elements

But these apply to every use of force scenario, under American use of force law, no matter what state you’re in, and then applies to this scenario, too. And the fundamental question is, well, did the police who used this force against this young man, this highly intoxicated driver, did they have a reasonable perception that he presented an unlawful eminent deadly force threat to themselves or to others?

If the answer to that is yes, they had that reasonable perception, then their use of deadly defensive force, as in the form of self-defense and defensive others would be legally justified. And it’s not hard to see an argument here were someone driving around at speed, as you know, fleeing from lawful stopping arrest, with a blood alcohol level of point 138 would present to the officers and the public, an imminent deadly force threatened even if that wasn’t his particular intent, even if his intent was only to escape. The danger of death or serious bodily injury, nevertheless, is there.

Georgia seeking to change citizens-arrest law–because McMichaels’ chasing Ahmaud Arbery was lawful?

Another interesting case that caught my eye the headline has to do with no-knock warrants. So Georgia apparently is considering doing away with no-knock warrants another a number of other states have already done this. Florida has done this, three or four other states. And those of you who have been for a while members of the Law of Self Defense Community, will know that I’m no fan of no-knock warrants, I think they have a genuine legitimate purpose in a very narrow scope of cases. But they’re used much more broadly than that scope. And I think the juice is not worth the squeeze. I think the negatives vastly outweigh the positives for almost all no-knock warrants.

Most of them are used in drug cases to try to keep the suspects from flushing drugs down the toilet, for example. I’m not big fan of the war on drugs either. I think that juice isn’t worth the squeeze either. But that’s a separate issue, obviously.

But the kind of cases I imagine where it would be justified, where there would be exigent circumstances justifying a no-knock entry might be a kidnapping case, for example, where you don’t want to give the kidnapper notice that you’re there to kick in the door because then they’ll kill the kidnap victim, right? Or at least that would be the concern.

That’s rare, where no knock warrants are most known that warrants are not used in that kind of what I would argue would be a legitimate scenario. So, a lot of people are fed up with these no knock warrants. Sometimes police go to the wrong home, a gunfight ensues with perfectly law abiding people for no good reason. So, I can certainly see the public policy arguments against no knock warrants.

I do have to say that I find it unfortunate that most of these prohibitions of no knock warrants don’t have that exception for things like kidnap cases, that that would be a much more well thought out, limitation on no knock warrants than the kind of general bands that I tend to see. But nevertheless, can’t expect too much from the legislature.

But what caught my eye really about this Georgia no-knock warrant article was not so much the no-knock warrant part, but as an additional component to this legislation they’re also looking to make a drastic change to Georgia citizen’s arrest law.

And their argument is, hey, our citizens arrest law is overly broad. It was drafted in the mid-1800s, a different era before there were professional police departments in most places where the citizens were expected to be the law enforcement in their community. They needed that power of arrest, and the law gives them a very broad power of arrest, just basically a reasonable suspicion that a felony may have been committed or a crime was committed in their presence is sufficient for them to make a lawful arrest of another citizen.

And that law is no longer appropriate in modern times. And I would suggest, that’s a pretty good position. I think I would be inclined to make that argument myself. But what’s interesting about that argument is that the people making it feel it needs to be made. And I think one of the reasons they feel it needs to be made after all, the mid-1800s was a long time ago, folks, it was over 150 years ago. And they’re only talking about changing Georgiaa citizen’s arrest law, only now constraining it now.

Well, the reason they are, of course, is because of the Ahmaud Arbery case, and the McMichaels and Roddy Bryan, who pursued Ahmaud Arbury after they saw him or were alerted to him, apparently committing a felony burglary of a residence and then fleeing the scene. They pursued him, they were armed. They got out of their truck, Arbery ran at them, fought Travis McMichael for a shotgun, got killed in the process.

And now the McMichaels are being charged, not with murder, no one seems willing to argue that they intentionally wanted to murder Ahmaud Arberu, but with felony murder predicated on unlawful imprisonment.

And of course, the defense is going to be “Hey, we were doing a lawful citizen’s arrest.” And if you look at Georgia citizen’s arrest law, because it is so broad, there’s a very good argument to be made that they were making a lawful citizen’s arrest.

Now we might all agree that it was a bad idea, stupid thing to do, which shouldn’t be allowed the law should be different. All that. But that’s not what matters on the merits of this particular case. Because for the McMichaels, like any of us if we were defendants in a criminal trial are entitled to be judged by the laws as they existed at the time we engaged in the conduct for which we’re being prosecuted. And it’s probably the case that the McMichaels were well within the legal boundaries of Georgia citizen’s arrest law.

And I think people looking at this case, are increasingly aware, regardless of which side they’re on, but especially if they’re on the pro-prosecution side, or looking at this case, saying, “Wow, we have we’re really vulnerable on this. Maybe there’s nothing we can do about that. But we better changes Georgia citizen’s rights law for the future.”

In other words, their efforts to change it suggests to me that they recognize that it’s broad enough that it may well legitimize the McMichaels conduct in this case, and frankly, lead to an acquittal at trial, which obviously from their neck perspective is undesirable, but nevertheless on the legal merits, it’s very robust argument from my perspective.

Georgia, Kentucky, other states seeking to join those that ban no-knock warrants

I’ll mention also that Kentucky is also considering getting rid of no knock warrants to get back to the no knock warrant. topic, largely because of the Brianna Taylor case. Brianna Taylor, of course, was visiting with her appears to be drug dealing boyfriend when the police made a, you know, they had a no knock warrant, but they did in fact knock, there are witnesses from adjoining residences who heard them announced themselves.

But in any case, they were fired upon by the drug dealing boyfriend inside the apartment, they returned fire, one of those rounds struck and killed Brianna Taylor. So now there’s that’s driving an impetus for Kentucky to do away with no knock warrants as well. I mean, on the merits, I don’t see what difference it would have made because the police did in fact, announce themselves in this instance. But nevertheless, there we go. And again, I’m not a particular fan of no-knock warrants. So I don’t have much trouble with that.

McMichaels’ attorneys using pre-trial hearings to define the legal “battle space” for the trial

Another news story touched upon the Marbury case, again, and that is the McMichaels. Lawyers are asking the judge, they’re not a trial. yet. These are all pre-trial proceedings. They’re asking the trial judge before the trial starts to prohibit the prosecution from referring to Ahmaud Arbery as a victim, in this case, now, it’s an understandable request from the defense because of course, their position is that their clients were the victims, their clients were the victim of Ahmaud Arbery’s attack. And by calling Ahmaud Arbery, the victim, they allow the prosecution, or the judge allows the prosecution to call him the victim, it’s profoundly, it’s as if the court is undercutting their defense itself, which seems inappropriate.

Of course, in normal practice, if you read an appellate court decision about any use of force event, they do refer to the person against whom the force was used as the victim. But those are always by definition cases in which the defendant got convicted at trial. So, he argued self-defense and got convicted, so he lost, and now he’s appealing his conviction. And once you’re convicted, you’re no longer presumed innocent, you’re presumed guilty.

But at the trial level, it would seem reasonable to make the argument that, hey, until they’ve been adjudicated guilty, they’re presumed innocent. And as long as they’re presumed innocent, we don’t know who was the victim? That’s the open question. That’s why we’re having the trial. And the reason I bring this up is not just for that point for that particular case. But to remind everybody that this pre-trial stuff sounds like it would be boring and administrative.

But folks, this is where the legal battlefield is being defined what you’re allowed to say, what you’re not allowed to say. What evidence is admissible. What evidence is not what experts will come in what experts won’t? What pre-existing knowledge will be admissible and what pre-existing knowledge won’t be admissible. what’s relevant than not relevant will the character of the person who attacked you, their criminal record, will that be admitted before the jury.

Because remember, whatever is not admitted, the jury never sees or hears. And if they don’t see it or hear it, it cannot inform their decision making and coming to a verdict. So, this is where the playing field, this is where the battlefield is being defined. It’s in these-pre-trial hearings. So they’re not only important in some senses, they’re everything. I mean, because they decide what you’re able to do.

It’s like defining your army before you go into battle. You want your army to have particular characteristics, numbers, weapons capabilities, and so forth. And that’s what’s being decided in these boring administrative pretrial hearings, everything. And if you gave me control over the pre-trial hearing process, I’d win every case, because I’d make sure to define the battlefield in the way most favorable to me.

Now, of course, in the American legal system, we have an adversarial process, we have the prosecution demanding things favorable to it and objecting to things favorable to the defense. The defense is doing the reverse and the judge is making those judgment calls, obviously, about those demands and objections, hopefully, within the what’s normally a fairly well-defined framework of what’s allowed for evidentiary purposes and so forth.

Rittenhouse cut-off from internet sales of merch to fund legal defense

So, another interesting story involved Kyle Rittenhouse. Of course, Kyle Rittenhouse was another Kenosha case. He had defended himself against a mob attack in Kenosha, three particular individuals attempted to apparently or actually kill him. He successfully defended himself against us attacks. Now he’s charged with various degrees of murder and other use of force felony offenses for that defensive conduct. And he’s going off to trial.

Now we mentioned early on trials are expensive, especially if you’ve killed someone a killing case. easily spend hundreds of thousands of dollars and one of the things the Rittenhouse family has sought to do as anybody might seek to do if suddenly they find themselves facing hundreds of 1000s of dollars of legal expenses, which if they fail at raising it grossly increases the chances they’ll spend the rest of their life in a cave cage. They sought to raise funds in innovative ways in this particular way, by selling merchandise on the internet, free Kyle t shirts, free Kyle hats, that kind of stuff. I mean, I don’t expect you to raise a ton of money that way. But you do what you can when you’re in difficult circumstances.

Well, the online stores that were carrying this product, so people could go online and buy it decided to stop selling that stuff, they decided they don’t want to carry it. It’s too controversial a case.

The reason I mentioned this, folks, is to remind you all again, of what the costs of these cases can be like, very, very expensive. And also the increasing social narrative dynamics component of many of these cases. Where much a society that controls things like your ability to raise funds, whether by selling merchandise on the internet, setting up a GoFundMe, anything like that anything having to do with social media, or internet action.

If some portion of the propaganda machine that rises up in many of these cases, can make you look so toxic that nobody wants to touch you, you’ll be cut off from all those sources of raising money.

Now, in Kyle’s case, I don’t think this will particularly harm him. I believe they’ve raised a couple million dollars for his defense, which is pretty darn good. It’s probably enough. Maybe not, I don’t know, I can tell you the George Zimmerman trial billed out at close to 2 million by itself. And I don’t think this will be any less involved than that probably more involved, then that case, given how much more aggressive these prosecutions have become, even then the Zimmerman case which was already outrageously aggressive on its own merits.

But just keep in mind, folks that there you may be thinking there are avenues of that might be available to you to raise money for these legal defenses. It’s quite possible those avenues of raising money will be cut off from you, they won’t be available to you, because you’ve made to appear toxic.

Another reason folks to consider something like CCW safe, where you don’t need to worry, if you’re a member about whether you’ll have the resources you need to wage that legal battle the way you want it raise because let’s face it, like any other battle, the more resources you bring in, the better your chances are all other things being equal, the fewer resources you can bring in, folks, a 300,000 $400,000 legal defense is so overwhelmingly vastly superior to a 30,000 or $40,000. Legal Defense, it’s almost hard to describe the difference. You want those resources. So again, I would encourage you to at least take a look at what they have to offer. And their coverage is without limit folks. There’s no 150,200 $50,000 limit which would that would never cover the Kyle Rittenhouse case never wouldn’t be a 10th of it. So make sure you take a look at what they have to offer. I urge you to do by clicking the image or link below:

http://lawofselfdefense.com/ccwsafe

And again if you did decide to become a member you can get 10% off with that discount code LOSD10.

Rittenhouse receives late additional charge of curfew violation:  implications for murder trial?

Okay, another Kyle Rittenhouse issue. And frankly, I think this is probably favorable to Kyle Rittenhouse. Although it may not seem so at first, the prosecutors have decided to add an additional charge to the pile of charges they’ve already brought against them, including murder. And you think well How could that possibly be good? Who wants more charges?

Well, the charge they’re bringing against them is violation of the curfew that was in place at the time these events occurred. Are you surprised there was a curfew? Because it certainly didn’t seem like it right. There was scores and scores of people all over the place during the town. So certainly there was no curfew being enforced. But nevertheless, technically there was a curfew in place that everybody was ignoring. Especially the violent protesters.

And they’ve decided to charge Rittenhouse with this now. It’s not much of a charge. In fact, it’s not even a criminal offense. It’s a civil offense. So at worst, he’d face a fine like a like a jaywalking ticket. So, you know, he could take that hit and it’s really nothing It doesn’t influence your life at all.

But the fact that they’ve decided to bring it makes me wonder if they’ve realized that the charges they’ve actually brought against him, given the evidence that’s available, especially all that video, that those charges are so unlikely to result in the conviction, that there’ll be so unlikely to be able to disprove self-defense beyond a reasonable doubt for each of those three engagements Kyle made against his attackers that they don’t want find themselves in a George Zimmerman situation where the prosecutors walk away with nothing, no conviction on any charge nothing.

So I think it makes me wonder if they’ve tossed in this additional curfew charge, just in case, as seems likely, they won’t get convictions on any of the really heavy felony charges or even a misdemeanor criminal charge, they’ll at least have something that they can walk out of the courtroom with and say, well, we held them accountable. We got them convicted of a civil offense, that’s $100 fine. But at least they wouldn’t walk away completely empty handed.

San Francisco prosecutors ask court to stop new DA from prohibiting them from doing their jobs

Another interesting story here was the I believe it’s the San Francisco district attorney, as many of these George Soros funded district attorneys tend to do has basically announced that as a whole slew of violent and property crimes that he’s simply not going to prosecute. So you walk into a store, you steal a couple $100 worth of stuff, you walk out, it’s not gonna prosecute you for that drug offenses, certain violent offenses, just not gonna prosecute. So a free for all for all those criminals.

And so he’s the head prosecutor, he gets elected, all the other prosecutors in the office get get hired, or bureaucrats or civil servants basically. And they’ve actually gone to court and filed a motion filed a request for a judge to order him to not do this.

Now, they’re not doing this out of the goodness of their hearts, folks, they’re not doing this because they care about the normal people living in San Francisco, these are, after all, just other San Francisco prosecutors, they’re doing this because under California law, they may be personally liable if they don’t pursue some of these actions.

So, for example, one of the things the prosecutor won’t go after is the California three strike type provision. So he’s ordered his prosecutors not to make strike arguments in court. And his prosecutors are saying, Listen, I’m legally bound to make those arguments if the facts support it if the person actually does have prior strikes. And by the way, if you get three strikes, it could be life in prison. So it’s a big deal for the defendant.

And the prosecutors are saying, Hey, I’m liable if I don’t pursue those strike arguments. So please, judge, order the prosecutor to not order us to not do that. But they’re again, they’re not doing it out of the goodness of their heart. They’re doing it because they’re afraid of personal repercussions.

Folks, that’s the way is the system supposed to work when we have these runaway nut job prosecutors who simply don’t want to do their jobs. The way to build a system is not to hope that you get well-intentioned good-hearted people who want to do the right thing. That’s good if it happens, but you can’t count on that.

The way to build the system is sSo if they don’t do the right thing, there are personal repercussions for them. People will ultimately do what’s in their own self-interest.  Right now, without any personal repercussions it’s in these prosecutors, the Soros-funded prosecutors, it’s in their interest, their political interest to do exactly what they’re doing. These criminals are their constituents. So they’re doing favors for their constituents as any politician would do.

Unless there are costs for them built into the system we’re only going to see more of this, folks, they’re giving away other people’s money basically, to their constituents. And the cost is going to be more violent crime, more property crime, more law-abiding citizens finding themselves compelled to use force, under circumstances that may be on the legal margins, and then finding themselves prosecuted and maybe sentenced to prison for the rest of their lives of their convicted.

Okay, so that is all the news items I wanted to touch upon. Let’s turn now to the questions that have come in which give me just a moment, it looks like I managed to close my little word document, but I’ll pull it right up. And of course, folks, as time permits, I’ll answer questions that are submitted live during the show. So, I don’t have time to look at the comments while I’m talking about everything else. But I will look at the comments before we sign off and pick out some questions to answer as time allows. So I’ll scroll through, so feel free to drop those in the comments.

Q&A

Was shooting death of Ashli Babbitt by Capital police a murder, or justified?

So we did get a great question here from Tony L. he emailed it in, he wanted me to comment on this shooting that occurred just yesterday in the Capitol. Ashley Babbitt, a 14-year veteran, I believe of the Air Force was shot and killed by Capitol Hill police yesterday. I do plan to comment on that. But this show is I don’t have I don’t have time in this News/Q&A Show to do that detail.

So those of you who are Law of Self Defense Members should expect a blog post on that probably tomorrow. I’m gathering up some more of the videos that are available of the event and I’ll do my usual kind of five elements of self defense analysis of that use of force event, the shooting of Ashley Babbitt.

I will caution all of you, however, I will say this much. When you’re doing your own analysis of that event, it’s very important that you focus on the actual relevant law, by which I mean those five elements of self-defense and don’t allow yourself to be pulled off course by personal political feelings.

Most of us have certain political perspectives, I have my own. They’re not secret. They’re pretty widely shared. But I have to strip out my political biases and preconceptions when I’m doing legal analysis of a use of force case, I have to look at just the actual relevant facts and the relevant law.  I plan to do that in the blog post tomorrow. My legal conclusion may not make somebody happy, unfortunately, I expect to lose some members over it, based on what I know now. But as I say, I’ll be looking at more videos, more relevant evidence before I write the blog post tomorrow.

But the way to get into trouble and understanding how self-defense law applies to any particular instance, is to allow yourself to get distracted and misled by biases and preconceptions, you have to stick to the actual law, and the actual facts and not speculate in an evidence-free way, or allow irrelevant facts or knowledge or biases to influence your analysis.

So I caution you all to be careful about that.

Is self-defense lost if carry gun into a “no guns” posted store?

Okay, so we got a question from John, and he’s a student in our Law of Self Defense Instructor Program. Thanks, John. I appreciate that. If any of you would like to learn more about our Instructor Program, you can just point your browser here:  Law of Self Defense Instructor Program.  Yes, that will work. And John’s currently a student in that program.

We put a lot of students through that program. To my knowledge, it is the single most comprehensive in depth, but still plain-English education and self-defense law available anywhere. It’s the equivalent of a law school, semester long class in use of force law, if any law school taught this stuff at that level, which to my knowledge, unfortunately, they don’t like every lawyer should be taking this class at least every lawyer planning to do criminal defense.

But if you’d like to learn more about that, it’s at Law of Self Defense Instructor Program.  Normally quite a few people who are listening in on the live show can comment on this, many of them our instructor program graduates, so they’d like to share their own experience in the comments. That’s fine as well.

But John asks, he says, I’m currently enrolled in your instructor program he lives in, doesn’t matter what state it is, because I can’t really get state-specific heres. But I will be sending John a state-specific reply. So, John, if you’re listening, don’t worry, I’ll contact you directly, just as a courtesy for being a student in the Instructor Program. I’ll send you feedback with specific statutes and relevant law and all that to your question.

But more generically speaking, he lives in a state where the no gun signs do not have the weight of law, criminal law, he’s saying on a private business. So a private business can put no gun signs on its building. And if you ignore that sign, you see it and you say, to heck with that, you go in anyway, it’s not a criminal violation, you have not committed a gun crime for doing that at some states do right. In Texas, they have the 30.06 signs, you violate the sign, you’ve actually committed a crime.

But when you do that, when you violate the terms for entering a private residence or a private commercial building, you are committing a simple trespass. So trespass simply means that, it doesn’t just mean stepping on someone else’s property means stepping on someone else’s property without permission, which also means in violation of the conditions that they’ve informed you of, for stepping on the property. So any private business is privileged to say, hey, you can’t come in here with a gun, it’s their private property, they don’t want you in there with a gun. That’s up to them.

If you step in any way, now, you’re present without their permission in violation of their condition. So technically, you’re committing at least a simple trespass. Now, normally, of course, if you’re carrying concealed, nobody knows it’s not an event, nothing happens. But if they become aware that you have a gun, and they don’t want you there, they can order you out of the store. And if you don’t leave the store, you’re committing a trespass. I mean, technically, you’re already committing the trespass. But normally, if you leave they let it go at that.

But what happens if you’re doing that you’re engaged in that context, you’re committing that simple trespass, and then a robbery occurs and you decide to take your gun out or you’re attacked by some lunatic with a machete, whatever the case may be. You end up being compelled to pull your gun, using your gun in self-defense? What does that do to your legal justification for having used that gun in self-defense?

The answer is, it varies by state. Now in the large majority of states, almost every state with the exception of four or five, your privilege of self-defense is not conditioned on you not being engaged in unlawful activity. Generally, there may be facets of your self-defense claim that are conditioned on not being engaged in unlawful activity generally, like stand your ground.

About half the standard ground states, there’s 37 now that Ohio is joined, about half the 37 stand-your-ground states are stand-your-ground by statute, as opposed to by court decision.  And it’s very common for stand-your-ground statutes to have as a condition of qualifying for stand-your-ground, being relieved of that otherwise existing duty to retreat, that you not be engaged in unlawful activity.

So if you’re engaged in unlawful activity, you’re dealing drugs on a street corner, or arguably, you’re committing simple trespass by carrying your gun into a posted private property, so you’re if you’re engaged in unlawful activity, you may not qualify for stand-your-ground because you violated that condition.

But you still qualify for self-defense generally, you’ve just lost that relief from a duty to retreat, you’ve re-acquired that legal duty to retreat, if safely possible, before you can defend yourself. So normally, you committing the simple trespass wouldn’t have any effect on your substantive right to self-defense.

Having said that, there are a few states that do condition, self-defense itself, and not being engaged in unlawful activity. And in that case, you could be in trouble, the prosecution could argue, hey, you don’t qualify for self-defense because you were committing trespass, that’s unlawful. And therefore, you’ve violated one of the conditions for self-defense.

So, the first thing you would need to know is are you in one of those handful of states? And again, John, I’ll get back in touch with you personally, to talk about the circumstances in your particular state. So you need to make that determination first.

Then, of course, I have to also say, Listen, I’m an officer of the court, so I can’t encourage anyone to commit even that simple trespass, that’s a decision you need to make for yourself, whether the risks are worth the benefits. Regardless of whether or not you might lose self-defense generally, or not only you can make that call, just, you know, be an adult, if you make the call and it goes bad. Well, you know, don’t do the crime. If you can’t do the time. That’s a decision only you can make.

I got a couple questions here from Scott M. About excited utterances and statements against interest. These are statements you might make at the scene of a crime and how they might be admissible in court as evidence. But Scott emailed me just before today’s show, his daughter got into a little fender bender. So I’m going to delay those questions until next week when he can participate live with the rest of us.

What’s “forcible felony” mean in the context of justifying deadly defensive force?

Got a question from Paul am a platinum member? He asks. So, in most states, you can use deadly defensive force to defend persons or to prevent or stop a forcible felony. And he asks, well, what’s that mean? What’s the forcible felony. So, two triggers for a privilege to use deadly defensive force is a deadly force threat against yourself or another innocent person, or there’s a forcible felony being committed or imminently about to be committed.

So, the first category is pretty straightforward, I guess the second category forcible felony, what’s that mean? That seems like an ambiguous broad statement. Well, some states helpfully have an enumerated list of forcible felony. So the list amount, it’ll be things like, attempted murder, manslaughter, armed robbery, kidnapping. But what they all have in common is that there’s baked into the cake of the criminal offense, a deadly force threatened by deadly force, of course, who mean a force readily capable of causing death or serious bodily injury. These are all crimes that have baked into the cake, a threat against persons.

In fact, many of the states that have helpful enumerated list of forcible felonies, we’ll also have kind of a catch all at the end where they’ll say, and any other crime that carries an inherent risk of death or serious bodily harm to others.

But that’s the key there when we’re talking about forcible felonies. For purposes of privileging the use of deadly defensive force, we’re really saying felonies that involve a threat of deadly harm to persons. That means that there’s a felony that could involve force in a generic sense but does not involve a threat of harm to persons, well, then it’s not going to be the kind of forcible felony that would trigger that privilege for deadly defensive force.

So someone’s breaking into your work truck to steal it, and they’re using a crowbar, right? Well, obviously, they’re forcibly breaking into the vehicle theft of the vehicle, let’s presume for discussion because of the value of the vehicle would qualify as a felony. in some senses, that’s a forcible felony, but it’s not a forcible felony, in the sense necessary to trigger a justification for the use of deadly defensive force because there’s no threat to persons.

We’re presuming the vans unoccupied here. If the van were occupied, that would be different, then you could argue that you’re defending the person inside the van. But you’re not defending the van, right, defending the van is just a defensive property scenario. It’s not a forcible felony, defensive property outside of Texas does not justify the use of deadly defensive force, there would have to be some threat to persons.

So that’s the idea behind forcible felony in the context of justifying the use of deadly defensive force.

What should I say to 911 to best preserve my legal defenses?

Trevor G, also a platinum member. Thank you very much, Trevor, for your support. says I’ve noticed several years very long question let’s see. People, many of my shows, it turns out a defendant was unable to convince jury self-defense because of comments or lack of comments at the scene, made it appear that undermine their claim of self-defense.

Basically, he asks one of them attacked by an unarmed aggressor. And as I attempt to match fist for fist and shelf worship, so he’s using non deadly defensive force against a what’s normally a non-deadly force attack a barehanded attack. But as he’s doing this, he realizes that his attacker is like standing on a ledge, right? And the attacker falls off the ledge, he would die. So imagine it’s a cliff.

Well, what if that happens, what are the attacker falls off the ledge, it was only a non-deadly force attack, he was only using non deadly force and self-defense. But the circumstances were such that the attacker accidentally plummets over the cliff to his death. So now it’s complicated right now we have part of the confrontation, the conflict was self-defense. And part of it was unintentional, right? The responding fist to fist was self-defense, intentional self-defense, the guy going over the cliff and dying was not intentional. That was an accident.

What’s the best way to make a statement to 911 that preserves both defense strategy is the legal defense of self-defense and the legal defense of accident, which is a perfectly legitimate legal defense, just like self-defense, what’s the best way to make a statement to 911 that preserves both of those, and allows my attorney to choose which route to take?

Well, he would take both routes, first of all, Trevor, so he would argue self-defense to justify the fist part and accident to justify the over the cliff part. So he would use a separate justification for each of those stages of the fight.

But to get back to the question, what’s the best way to make a statement to 911 that preserves both you don’t want to do that. You don’t want to be making those kinds of detailed legal strategic statements to 911. They’re too complicated. They’re too technical, they’re too fact specific.

There’s a reason we hire lawyers to make these arguments for us in court, in the aftermath of a life or death, confrontation, or even just a fist fight that ends in someone else’s death, knowing what the consequences may be for you. Now, from a legal perspective, your mind is highly unlikely to be in an appropriate state to be trying to figure out what to say to 911, about those legal strategies in that context.

Many people say don’t say anything to 911. I don’t know how that works. From a practical perspective. I mean, if you’ve called them you have to say something.

So we generally advise people to consider, and this doesn’t work for everybody, it’s not the best strategy for everybody, but to consider what we call the “say little” approach, which is to say a handful of very specific things to 911. And no more than that.

But covering all that, that we spent an hour of our lives in our full day law, self defense level one class covering just that, interacting with the police in the aftermath of the use of force event. So obviously, we don’t have time for that in the last seven minutes we have in today’s show.

But I would tell you, if you’re trying to figure out some complicated strategy for what to say to 911, you’re on the wrong path. Keep things as simple as possible. Don’t get complicated, you’ll only hurt yourself.

So, I’m an I’m a self proclaimed expert on self-defense law, right? If I’m involved in a use of force event, then results in serious injury or death to another person, I’m not saying anything complicated about legal strategies in my 911 call, to responding officers, or heaven forbid to detectives.

Those statements are going to be made in a legal environment, with legal counsel representing me. All right, so let’s see.

Bill asks about the Capital rioters. He’s a member. I’m looking at the member questions right now law self-defense members.  Bill, I’ll try to address that in tomorrow’s blog post on this issue. If I forget, just put a comment following the blog post, and I’ll be happy to respond.

Well, we get a lot of members on the membership page today. That’s great.

Thoughts on ACLDN as “self-defense insurance”?

Okay,  let’s look at the Facebook comments now. Christopher Williams asks about ACLDN, the Armed Citizen Legal Defense Network. Is that good self defense organization, a good self defense organization?

I think they’re awesome. I love those guys. Marty Hayes, Gilla Hayes. Their board is absolutely fantastic. It’s Massad Ayoob. It’s Dennis Tueller. It’s John Farnam. It’s Tom Givens. It’s just, it’s full of names of that tier. So fantastic board.

They are not backed by a large pool of monetary resources. So, the way they work is they have they set aside a percentage of member annual dues, they collect a pool of money, I have no idea how much money that is. I’d be surprised if it was a few million dollars, but I guess you could call them and ask them.

My concern with ACLDN is not with them personally, or with their character or their motivation. I think they’re awesome people. My concern is if they were to get hit with several high-cost cases in a row, would the resources be there at the end for the next person?  That’s a decision you’d have to make for yourself. I mean, again, these cases can cost hundreds of thousands of dollars.

The other thing is they do make a judgment call on whether or not they want to cover your case. So, you don’t have blanket privilege to access those legal resources. Their board will look at your case and if it looks like self-defense to them, well, then you can access some fraction of the available resources. But if it doesn’t, you get nothing.

Now, I respect their board a lot. I think they’d make a good decision. But they are making that decision. And to my knowledge, CCW Safe, they’re not making a case by case call on whether or not to cover you. So whether that matters to you or not, again, that’s why I say CCW is not perfect for everybody. It’s the best fit for me, whether it’s the best fit for you, you have to make that decision.

But ACLDN is certainly an alternative I would encourage people to take a look at no question about that. Good people. Good program.

Let’s see back up to the top. Hey, Travis, my motorcycle buddy Travis. And Rich.  Nice to see you. Will Parker, of course, Will Parker is a graduate of Law of Self Defense Instructor Program. He’s up in Kalispell, Montana, a beautiful place. Almost Canada, not quite there. Great instructor. He’s hosted me for many classes a great shooter too. So if you’re up in that area of the woods, or can convince him to come to you, I would encourage you to reach out to Will Parker.

Do the 5 Elements of Self-Defense Law apply to the police?

Let’s see. Can I ask you the five elements applied to the police, the five elements of self defense? Those are the five elements, innocence, eminence, proportionality avoidance and reasonableness. I’ll put that free infographic post back up here again:

http://lawofselfdefense.com/elements

The answer is yes, in a self-defense claim the same five elements apply. Now, they may apply in a slightly different tone or flavor. So, for example, the element of innocence basically requires that we were not the initial aggressor in the fight. If you’re the initial aggressor in the fight, the first person to threaten or use force, you lose the element of innocence, you lose self defense.

So, police are often the initial aggressors in a fight in the sense that they’re the first to threaten or use force, in the course of, say, making a lawful arrest of a non-compliant suspect. Right, they’re going to initiate the use of force if the suspect remains non-compliant, in order to compel compliance with a lawful arrest.

Now, they’re still subject to the element of innocence in the sense that an officer is not allowed to initiate any force he wants, he can’t just walk up to somebody in a mall and punch him in the face for no reason. The force has to be lawful, meaning it has to be privileged within the scope of his duties.

But if it is, he still qualifies for innocence, even though he may have initiated the force, whereas that would not be true for me as a non-police officer. So, the elements apply, but they may apply a bit differently than in a police law enforcement context than they would in a non-law enforcement context.

 

Let’s see.  Got about a minute left.

By the way, I caution for those of you in Ohio, the law passed, but it does not go into effect until April 4 of this year. So until then, Ohio is still a standard grounds. Rather, Ohio is still a duty to retreat state until the law goes into effect on April 4.

Alright folks, last few seconds of the show, I will take this opportunity to wrap things up. Let me put the big title up here.

And to remind all of you that if you carry a gun so that you’re hard to kill, which is certainly why I carry a gun so that I’m hard to kill my family is hard to kill.

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

Alright folks, I hope a bunch of you decide to become members.

But in any case, I hope to see a bunch of you again next Thursday, January 14, 4pm Eastern Time for our next Law of Self Defense LIVE News/Q&A Show. I’m attorney Andrew Branca for Law of Self Defense Stay safe