Hey folks,
In today’s News/Q&A Show we’ll be discussing the case of the father charged for shooting a male he found in his 14-year-old daughter’s bedroom, the implications of district attorneys dropping charges against arrested rioters, looters, and arsonists, similarly the implications of increasingly rigid constraints on the use of force by police officers and their protections from harassing law suits, and more.
We’ll also be answer a number of interesting questions that have been sent into us, including:
- How own’s disabilities, either permanent or temporary, might impact one’s self-defense narrative
- How hearsay works to exclude evidence from trial and some of the more notable exceptions to the hearsay rule
- Whether obtaining self-defense insurance can be used against you in court
- Whether a home invader should be warned before engaging with deadly force
Enjoy the show! (If interested, a transcript of the show is available below the video.)
TRANSCRIPT
The Law of Self Defense content you were about to enjoy is presented for general educational purposes only. It does not constitute legal advice. If you are in need of legal advice, consult competent legal counsel in the relevant jurisdiction.
Hey folks, come on in. Come on in. Make yourselves comfortable. I am Attorney Andrew Branca for Law of Self Defense. Thank you very much. It’s always greatly appreciated.
Hey, welcome to the Law of Self Defense News/Q&A Show for July 16th, 2020. Yes, I know today is July 17. We are a day delayed in this episode of the News/Q&A Show. I apologize for that. We have a number of news stories to share with you today as well as questions that have been selected from all of those sent into us here at Law of Self Defense HQ that I think you’ll find interesting. And of course, if you’d like to put questions into the comments as well, that would be appreciated.
For those of you who are Law of Self Defense Members, it looks like we do have the streaming working correctly over at the members dashboard if you’d like to take a look at that. There’s also commenting ability there, the chat’s working. If you see a chat message from someone who doesn’t have a name, that’s me, apparently, that part’s not working. It’s not attaching my name to my comments, but it seems to be working for everybody else and we do prioritize the members questions first. So if you are a member, you want to try to make sure that any questions you ask are addressed, comments you made are addressed. That would be the place to do it. prioritized over the Facebook content.
As you know, we did the News/Q&A Show generally every Thursday ,again sorry about the day delay today. We have changed the time at which we’re doing our live shows, we’re going to be doing this show Thursday 4pm Eastern time instead of the 2pm. And this News/Q&A Show will remain publicly accessible. You don’t need to be a Law of Self Defense member to participate in the News/Q&A Shows. We’ll leave it up openly accessible on our blog and on our Facebook channel as well. However long we stay on Facebook.
Our other shows, however, our Cases of the Week show on Tuesdays also at 4pm. Eastern time moving forward, and our After Action Analysis Shows on Wednesdays 4pm, Eastern time moving forward, are only going to be provided to Law of Self Defense Members through our Membership dashboard, and as a replay video and blog post and podcast available on our site but only to our Members. So those will be Members-only.
And if you’re not a member, folks, I really have to ask why because it’s not very inexpensive, especially to try it out. You can try it out for just 99 cents for two weeks, if within that two weeks you decide it’s not for you, no questions asked, we’ll refund not just 100% of your money but 200% of your money. It’s hard to imagine why you wouldn’t try it out for 99 cents for two weeks, you get immediate access to all the same content as any other standard member. Now, after the two-week trial, it does go to the normal cost, which is still very low, only about 33 cents a day, $10 a month. Obviously, if you don’t feel the content we provide is worth 33 cents a day you shouldn’t become a member but I would hope that most of you would agree that it is, especially the content you won’t be able to get moving forward unless you’re a Member, like our Cases of the Week and our After Action Analysis Shows. You can learn more about our 99-cent, 200% money back guarantee, two-week membership trial by clicking the image or link below:
http://lawofselfdefense.com/trial
Before we jump into the substance of today’s show, I do of course want to mention our sponsor CCW Safe. They are providers of legal service memberships, what many people mistakenly call self-defense insurance. In effect, they promise to pay their members legal expenses and other associated expenses. members involved in the use of force event. There are a number of companies that offer this kind of service. I’ve looked at all of them as you might imagine, and to my mind, CCW Safe was the best fit for me. I’m personally a member, my wife Emily is personally a member.
Whether they’re the best fit for you with 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, you can save 10% off your membership with the discount code LOSD10 at that URL, http://lawofselfdefense.com/ccwsafe.
Okay, so let’s take a look at the first of today’s news stories.
So, an angry father, this is from the Law Enforcement Today website, angry father arrested after finding man–this is a 20-year-old man by the way–in his 14 year old daughter’s bedroom, knocking his teeth out and choking him.
And the 20-year-old looks a little worse for wear, and it could have been much worse, of course, and the headline really buries the lead. It wouldn’t be it would be hard to be unsympathetic with a father finding a 20 year old and his 14 year old daughter’s bedroom. The beating you would think would be the least the father would be inclined to do.
And so you wonder well, why is the father being criminally charged? He wasn’t just arrested. He’s been charged with a felony, a very serious felony, as we will go into, for beating up this 20 year old in his daughter’s bedroom.
Well, that’s not the real reason, folks that he’s in trouble. The real reason the father’s in trouble is he went well beyond simply beating this 20-year-old up. From the actual news story:
Hell hath no fury like an angry dad when someone does mess With a teenage daughter according to Fox five Atlanta, such as the case for Cujo County, Georgia man who’s under arrest for aggravated assault, that would be the father. He’s under arrest for aggravated assault. Our guess is this for this father, it’s probably worth it.
Well, I don’t know if it’s worth it. Because he’s charged with a pretty serious felony.
Most dads can probably relate to what Hector Casillas did when he found a 20 year old. I’m not even going to attempt to pronounce that first name Humphreys in his 14-year-old daughter’s room in the early morning of July 4. I presume by early morning, they mean something like oh, dark 30, according to investigators. What happened then? Well, so angry was the father that he severely beat and choked Humphreys, including knocking out some teeth.
Again, hard to be unsympathetic to the Father. Police said had the father stop there, they might not have charged him. The Father, however, had other ideas and of course, this is where things go completely sideways. .
After the father beat him up a bit knocked out a few of his teeth. The father asked his wife to go get his gun at that point. The 20-year-old jumped out of the window where the father met him continuing to use him as a punching bag, then threatening his life. And finally, here we go, folks firing shots as the 20 year old ran for his life.
Folks, once the 20-year-old’s running for his life, you can’t use deadly force against them. If you do you end up charged with something like this. Under Georgia law statute § 16-5-21. Aggravated Assault.
A person commits the offense of aggravated assault when he or she assault with a deadly weapon or with any object, device or instrument which when used offensively against the person is likely to or actually does result in serious bodily injury.
So the father, firing the shots at the fleeing 20 year old, certainly committed the underlying act that would constitute this crime unless he has some legal justification.
But I don’t see any legal justification. We’re not allowed to shoot people just because they deserve it. That’s not what the law permits. We’re not allowed to shoot people just because we might have been permitted to do it just a few moments ago.
The real issue of course here is that the threat here was as is often the case generally the case the threat, let’s presume It was a threat to the daughter was transient. Whether or not a threat is imminent is a matter of timing. Imminence is like a window, it opens and closes. You can’t use force until the window of imminence is opened, until there’s actually an imminent threat. But once the threat’s been neutralized, by whatever means, because of your use of force or because the other person ran away, once they’re no longer a threat once that window of imminence is closed. The privilege to use force especially deadly force, against that person has ended. It’s over.
Now as a thought experiment, you might consider what how things might have been different if the father had discovered the 20-year-old in his daughter’s bedroom, while he was already armed, instead of having to tell his wife to go get his gun for him, I think his father had already been armed he might have had the inclination to use deadly force against this 20-year-old in his daughter’s bedroom before the window of imminence had closed.
Remember what’s required is a reasonably perceived deadly force threat, a reasonable perception that his 14-year-old daughter’s being raped by a 20-year-old intruder, even if mistaken, as long as it’s a reasonable perception under the circumstances, would justify the use of deadly defensive force against that apparent 20-year-old rapist. But once you have to have your wife, get your gun, bring it to you, you got to chase the person to fire shots as they’re running away, the window of imminence has then closed folks, and that’s why the father is finds himself charged with this offense.
And it is a very serious offense folks. aggravated assault under Georgia law is good for up to 20 years in prison, two decades. So, if convicted, he could be in prison until his 14 year old daughter’s 34.
Now, you hope that won’t be the case a judge has the discretion to sentenced to a lower period of time. There are some mandatory minimums under George’s aggravated assault law, but I don’t believe they apply to the facts of this case. But the decision on how long he’s going to go to prison if convicted is not up to the father isn’t it’s not up to his daughter, not up to their family. Now it’s up to some stranger, a judge over whom they have no control on that judge’s sentencing and it’s very difficult to appeal to judges sentencing folks, especially if it’s within some pre-established guidelines. So that’s that story.
Let’s see if we have any questions. Yeah, so one issue that comes up of course, is we often talk about use of force in defense of highly defensible property your home always qualifies as highly defensible property.
Many states including Georgia, create a legal presumption that you have a reasonable fear of a deadly force attack an imminent deadly force attack from someone who’s forcibly and unlawfully entered your home.
The question is whether on these facts, the 20-year-old, in fact, forcibly and unlawfully entered the home. I mean, he entered contrary to the parents wishes, we have to assume contrary to the father’s wishes, but I doubt he broke something to get in at least that’s not been reported. What seems to be reported is that the 14 -year-old daughter had a romantic interest in this 20 year old and let him into the home, whether that counts as an unlawful entry. I would doubt it. Certainly, if I were the prosecution, and I was trying to argue against the legal presumption. I’d say. It wasn’t unlawful he was invited in, like a vampire is invited in, they’re allowed to come in and it seems unlikely he broke anything to get in. In which case it’s not a forcible entry either.
So the legal presumption would not, would apply. I would think on the facts of this case, however, disgusting. We may think the 20 year old’s behavior and as a father of three daughters myself, I certainly get it.
So we’ll have to see if there’s any criminal charge against the 20-year-old at all, actually, under Georgia law. I’m no expert on statutory rape law. You’d think this would be an example of where that would apply. But I have to be honest, I didn’t bother looking before I started today’s show, because our expertise here is use of force law, and not rape law.
Alright, let’s go on to the second story. And if I haven’t hit your comment yet, folks, I’ll always flip through them before the end of the show. Let’s go on to the next story.
Actually, two stories. I’m not going to go deep into the facts of these are simply kind of societal observations about how things are changing in terms of law and order in this country, and indicators. I Think that things are going to get a lot worse before they get any better, folks. So you better prepare yourselves because as near as I can tell, society’s adopting policies that are not only not disincentivizing violence, particularly violence against authorities, but they’re actually incentivizing violence in some cases by the leniency of conduct.
So, here’s a new story out of the New York Post. Some police officers and others I think we’re in some kind of unity March racial unity march across the Brooklyn Bridge when they were attacked by some young black men who apparently don’t agree with the Unity March message. One of them attacked the police officers physically, including the most senior police officer in the NYPD. Here’s some of that news story here.
The Bronx man who allegedly punched NYPD chief Terrence Monahan and two other officers during protests in the Brooklyn Bridge has been relieved. without bail.
This is an assault on a police officer released without bail and there doesn’t seem to be any real question about the assault was caught on camera. Many of you may know that New York State recently in the last few months adopted a new bail law, which greatly restricted the conditions under which bail could be required before a suspect had to be released back out into the wild that appears to have been applied in this case.
Quran Campbell 25 is accused of stalking the highest ranking uniformed cop several times in the face, as Monahan tried to arrest him.
So he’s not only of course fighting beating the officer he’s resisting arrest forcibly resisting arrest.
After Campbell had allegedly punched another NYPD officer and a police lieutenant near the Manhattan approach to the Brooklyn Bridge. Campbell was arraigned on assault charges in Manhattan in criminal court and was granted supervised release.
That’s a term of art there, folks, that means there is no supervision of the release. It means if they asked him to come back to an office, he’s supposed to do that. Some kind of parole officer type of position, but it’s not like anyone’s following him around, or that he is being supervised in any particular manner that would prevent him from committing violence against another person.
So here’s a suspect who on video assaulted several police officers who were attempting to make lawful arrest of him and he’s back out on the street. He’s out on the street before their bruises have healed folks. So that’s one indicator of how things are going in terms of law and order in society.
Here’s another one.
The DA’s office drops charges on 59 rioters in Portland including suspected felony arsonists.
The point about these stories, of course, is that when people commit acts of violence, especially serious felonies, like arson, and there is no not even not a long term punishment, not even short term punishment, not even barely an inconvenience, there’s no effective disincentive for them to commit further acts of violence, further acts of arson.
If they’re willing to attack pPolice officers, I can assure you they’re willing to attack you. The world’s going to become a more violent place before becomes a less violent place, folks. Now, of course, we teach self-defense law here at Law of Self Defense, we don’t teach fighting tactics, physical self-defense. You need to know those things, folks, because the as our good friends at the American Warrior Society tell us, the fight is coming. You have to presume the fight is coming, folks.
And while you’re getting your butt beat in the parking lot is no time to learn how to defend yourself or what the rules of engagement are for defensive use of force, either ,it’s too late by then. So you have to step up to the plate, meet your obligations, fundamental adult obligation to be able to defend yourself and your family from criminal predation. And you need to do it now, folks, you can’t wait until you’re in the fight. It’s too late by then.
Speaking of which, a great opportunity to learn actual self-defense law, in fact, at an expert level, in a one day single class, coming up just a week from tomorrow.
That’s our Law of Self Defense LEVEL 1 Live Online Class, Saturday, July 25. We go through an entire day about six to seven hours of instruction on actual Self Defense Law, over eight different learning modules. We, in fact, I’ll speak to a little bit of them give you a quick overview those eight modules over the course of the one-ay class include.
Learning block one why and how the legal system prosecutes self-ddefense cases. So you know how the process works, how decisions are made because if you don’t understand that you can understand how your own decisions influence the likely legal outcome in your case.
Learning block two covers the five elements of self-defense: innocence, eminence, proportionality avoidance and reasonableness.
Learning block three covers defense of others and defense of property, including both highly defensible property and personal property.
Learning block four covers consciousness of guilt and self-defense immunity.
Learning block five interacting with the police in the aftermath of the use of force event.
Learning block six, crafting a personalized legally sound self-defense strategy.
Learning block seven asks you the introspective question, was it worth it?
And learning block eight is basically an open Q&A session where we make sure that everyone who’s come to the class has had every question answered.
It’s a firehose of information, folks, to my knowledge, there’s no better course of instruction on the actual law of self-defense, than this class, our LEVEL 1 Live Online Class.
It’s taught live by me, but it is online. So it’s streamed to you, but it is live, plenty of opportunity for Q&A. So if that’s of interest, we do have a few seats left available. We only teach this class two more times this year, folks, and they’re filling fast. And when the seats are gone, the seats are gone.
Can you wait till 2021 to learn what the rules of engagement are? In case you find yourself in one of these fights? When the downside of making a mistake is perhaps hundreds of thousands of dollars in legal fees, and maybe a decade or two in prison?
I think we all know the answer is that you can’t afford to take that risk. You have to learn this stuff. Now you have to have it in your possession when the fight comes to you because we don’t get to choose the time place and manner of the attack folks, the bad guy gets to do that. You can learn more about our Law of Self Defense LEVEL 1 Live Online Class on Saturday, July 25 by clicking the image or link below:
http://lawofselfdefense.com/liveonline
Okay, that’s what I wanted to cover in terms of new stories. Let’s get to our questions, now. The first question I’ll pull it up here that we’ve chosen for today’s show.
And by the way, folks, you can always send questions in to us at the email address show@lawofselfdefense.com. We can’t guarantee to do every question that’s sent in to us, but we will take them under advisement.
If you are a Gold- or Platinum-level Member of Law of Self Defense, you do have your own premium Q&A form on your membership dashboard, we would encourage you to use that form to send us your questions, because we will prioritize them. That’s the way the membership levels work.
Also if you use that form, and you’d prefer a private response, you can ask for that as well. And your question won’t be discussed publicly ,not that we ever identify the person who sent in the question anyway, except by first name and last initial.
But this question comes in from Dan M. Let me pull it up here. Dan asks, I have a question for you on the continuing relevance of something that [a well-respected self-defense instructor wrote in a book]—so Dan names the instructor and the book, and I know the instructor very well, have for decades, I’ve read the book many times. I don’t remember this being in the book. I’m not saying it’s not in there. But I didn’t want to identify the instructor and the book without checking to make sure the instructor actually said what’s attributed to him here. I’m not suggesting Dan’s making anything up I just in the interest of fairness, I thought it best to just block out the instructor’s name.
But the point is, he says the instructor recommended that a home defender never issue a challenge to a home invader, but simply shoot first even if that means shooting said invader in the back. He continues: His argument was that people who commit home invasions knowing that people are inside the home are generally hardened felons who a have something more than mere robbery in mind and B will not stop drop their firearm just because you asked them to, but will immediately turn and shoot the home defender Do you consider that device still relevant and sound in the context of modern law.
Well, remember, folks, if you’re dealing with a forcible, unlawful intruder in your home, that’s a very difficult situation for you to screw up. Unless you do something like fire shots at them as they’re running down the street away from you, like the father did in the original story.
In many states, there’s actually a legal presumption that you have a reasonable fear of imminent deadly force harm when you’re dealing with a forcible, unlawful intruder in your home. And that gives you most of the elements four of the five elements you need for self-defense, it gives you every element really except for innocence. And innocence is kind of baked into the cake if you’re dealing with an intruder who’s forcibly and unlawfully entered your home. So it’s a very sound legal position.
It’s also always true that we don’t want to be shooting people we don’t have to shoot, if we can avoid shooting them consistent with our safety. So for me, the preferred model here would be Hey, if there’s an intruder in your home, and you’re in a position of safety, you’re behind hard cover. There’s nothing for them to see if you accept the muzzle of your firearm and you’re aiming eye, you may feel that you have the luxury to be patient, command that home intruder to drop their weapon, whatever the case might be, to flee your home.
If they flee your home, folks, that’s a win, you won that fight. The mission is to survive, right? You’ve survived if they fled. Your mission is not to play cop and be making arrests. Okay? Your mission is for you and your family to survive. So they run away, you’ve won that fight, you’ve won that mission.
So it’s hard to make a blanket statement. I’d like to think that if people could do what they need to do to defend themselves or family inside of their home, from a position of cover where they didn’t need to shoot that they’d be better off doing that.
Almost anytime you can avoid having to shoot and kill someone folks, you’re going to be better off .The legal liability you face is enormously lesson, let’s face it, you didn’t have to kill somebody.
One of the reasons these legal presumptions of a reasonable fear of imminent deadly force harm requires as conditions typically both a unlawful presence and a forcible entry is there’s always the concern about the innocent intruder, someone who is there unlawfully, but thinks they’re there lawfully. They’re in the wrong place by mistake. They’re visiting a friend’s house and your homes all look the same, and they walked into the wrong one, because you left your doors unlocked. So don’t leave your doors unlocked, folks. There’s always the possibility of an innocent intruder, you certainly wouldn’t want to shoot an innocent intruder if you didn’t have to.
And again, a key part of this, that’s why many of these laws require not just unlawful presence, but a forcible entry. Because there may be an innocent explanation for why someone’s in your home. There’s not an innocent explanation for why they broke something to get into your home. So if they had to break something that’s decisive.
If you’re going to find someone your home, it helps if you can have compelled them to break something. Keep the doors locked, keep your windows locked, because that removes any ambiguity about what’s going on. I certainly could never advocate any advice that says you know, where all the variables cannot be defined ahead of time, always shoot someone in this situation. That’s a very difficult statement to make. Again, certainly if you’re in your home dealing with a genuine intruder–not someone you have some prior existing relationship with–some stranger, unlawfully in your home, that’s a very difficult situation for you to mess up as long as they’re not obviously no longer a threat when you use deadly force against them.
Okay, so let’s look at the next question. This comes in from John V. Hey, Andrew. My question is once you commit to self-defense insurance, or he’s also talking about Law of Self Defense, our Platinum Protection Program membership, and God forbid you get into a deadly physical force incident, could a district attorney use your membership against you? For example, claiming that you knew that you were going to do this and that’s why you bought them insurance.
So can self-defense insurance, your possession, you’re owning, your enrollment in self-defense insurance be used against you in court?
Folks, if you’re asking can X be used against me in court? The answer always has to be assumed to be yes. Prosecutors can use almost anything against you in court, if by what we mean by used against you in court is to use that to try to make you look bad in front of a jury.
Yes, there are limits on what a prosecutor can do. But they’re very broad limits. And you don’t really know where those limits are going to be drawn ahead of time. Because the limits are drawn on a largely ad hoc basis by whoever the trial judge is, what he’s going to be prepared to let the prosecutor get away with, in arguing his narrative of guilt to a jury.
So there’s many examples of ridiculous things being argued in front of the jury used against the defendant, for example, in the George Zimmerman case, prosecutor john guy screamed in front of the jury about the fact that arguing that they should find that Zimmerman acted out of malice and shooting Trayvon Martin, how does he know there was malice? Because not only did Zimmerman have a gun for personal protection, he was carrying it with a round in the chamber.
Well, folks, everyone who carries a gun for personal protection, with rare exception carries it with a round in the chamber. That’s the normal accepted way to carry a gun for personal protection. Every Bailiff in that courtroom was carrying a gun with a round in the chamber when john guy was making this argument to the jury, so Ken, was john guy permitted to use against Zimmerman in court. The fact that these around the chamber? Well, yeah, he was he was allowed to talk about it in front of the jury. Did it matter? No, not really.
So the real question is not so much can they make that argument? Can a prosecutor argue, hey, we know this defendant is a killer because he was planning it because he got self-defense insurance is a possible prosecutor could be permitted to make that argument? Yeah, it’s possible.
The real question is, how damaging is it likely to be and how effectively can your defense attorney offset whatever damage might be because, frankly, the fact that you, for example, took a loss of defense course you educated yourself on the law. It’s hard to imagine that a prosecutor who went to law school to get educated in the law, arguing before a judge who went to law school in order to get educated in the law, to a jury who will receive jury instructions. In other words, we’ll get educated in the law. It’s hard to imagine that the fact that you got educated in the law would be an effective argument against you in court doesn’t mean it can’t be made. But I doubt it would be effective. In terms of if you’ve got a CCW Safe or a USCCA policy. I just don’t see it getting much traction, but that doesn’t mean a prosecutor might not be able to talk about it.
The real question then, with respect to our own program, I should mention Platinum Protection Program. It’s really a prepaid legal services program. Basically, it’s retaining a lawyer, so I just don’t see that. It’s so far out of bounds that it’s hard to imagine a prosecutor would be permitted to argue any kind of malice or misconduct on the part of a defendant because he prepared to have legal representation. I just don’t see that being a very credible argument at all.
Incidentally, if you’d like to learn more about our Platinum Protection Program, the only way to guarantee that I’m available to consult on your self-defense case, and save thousands of dollars in the process, just click the image or link below:
http://lawofselfdefense.com/platinum
But in terms of any of these things, and the same, by the way applies to if you get self-defense training, you learn how to shoot a gun, for example, might the prosecutor argue you went to the range and you shot at human-like targets, and that suggests malice on your part, when ultimately you ended up shooting this poor victim and claim self-defense?
Sure, they can make those kinds of arguments just like they can argue about your ”keep honking, I’m reloading” bumper stickers, and all this kind of nonsense. And some of those really can be harmful because they begin to go to state of mind in terms of your motive for engaging in the violent conduct they’re claiming is not self-defense, but rather a criminal charge.
But in terms of training, you always have to ask yourself, well, alright, theoretically, there’s this risk that a prospect could quote-unquote, use this against me in court.
But what’s the alternative? You have to balance the cost-benefit, folks, if the risk that a prosecutor might use against you in court is theoretically real. But what’s the benefit you get from the training and this, the benefits outweigh the risk? I think learning how to use the gun safely and effectively to save your life, the life of your family, outweighs the very theoretical risk that a prosecutor might try to use that against you in court.
I think the same is true of learning where the legal boundaries actually are, where the law of self-defense actually is. Because if you violate the laws, the fact that you were ignorant of them doesn’t help you, folks, it makes your conduct unlawful, just as if you’d cross those legal boundaries deliberately. So I think that the cost of not learning where the legal boundaries are, is vastly greater than any theoretical prospect that a prosecutor might try to use the fact that you educated yourself in that way against you in court. Okay, let’s see.
Next question comes in from Alan. Sorry, Adam L. This came in actually over the American warrior Society Facebook page. Adam says, I had spine surgery a few weeks back and unlimited physically getting into a physical altercation could currently very likely cause serious injury, as well as being unable to physically defend myself to the level I normally could. I’m curious if because of the nature of my physical situation would an otherwise simple non-lethal physical attack be elevated from a legal standpoint, to a more serious situation?
So the answer is, the phrasing is a little odd that Adam’s using, which is not surprising, but I’ll try to clarify how best to think about this.
It’s not so much that the legal standards change, folks, the legal standard’s the same. So ,we assume for discussions sake, that before you’re permitted to use deadly defensive force, you have to be facing a deadly force threat, a threat readily capable of causing you death or serious bodily injury. That legal standard remains the same. So it’s very straightforward. It’s very simple, really.
What’s complicated is the real world, however. What constitutes a threat that could readily cause death or serious bodily injury can change depending on the circumstances.
So someone who’s an 80-year-old victim of a physical assault is obviously at much greater risk of serious injury than would be a healthy, otherwise fit, 20-year-old, who’s the victim of the otherwise identical physical assault.
Somebody who’s on prescribed blood thinners, for example, is at much greater risk of a blow to the head than someone who’s again a healthy, otherwise fit ,20-year-old victim of that exact same punch to the head. So what would not be a deadly force attack on a healthy 20-year-old could very well be a deadly force attack upon that person on the blood thinners.
So the legal standard hasn’t changed, the legal standard is still you have to have been facing a deadly force threat before you can use deadly defensive force. But what qualifies as a deadly force threat can change depending on your particular circumstances.
The same is true in all other characteristics around the self-defense scenario, so if your attacker’s much larger than you, has an exceptional fighting ability that you don’t have, is more numerous than you, but certainly your physical abilities or disabilities, whether they’re permanent or transitory, so they may be disabilities that you’re going to have the rest of your life and never go away or they might be disabilities that are the consequence of as here a surgery that theoretically, those disabilities may go away You may regain the state of health and fitness that you had before hopefully, right. That’s what we all hope after surgery.
But whatever the impact on you, if it’s made you more vulnerable to injury and or made it more difficult for you to defend yourself ,to the point that what might not have been a deadly force threat under normal circumstances, is now capable of causing you death or serious bodily injury not because the threat has become increased, but because you are in a greater state of vulnerability. Yes, now you’re facing a deadly force threat, a threat readily capable causing death or serious bodily injury. And in that circumstance, you’d be privileged to use deadly defensive force.
Now, does it matter that the person punching you in the head doesn’t know you are on blood thinners? They don’t think they’re causing you a deadly force injury, arguably, they would argue.
No, it doesn’t matter what matters in your decision making your perceptions, decisions, actions and self defense is your reasonable perceptions of events. So it’s what you know that controls, so if you know that punch can kill you because of your unique vulnerability because you’re on these prescribed blood thinners, well, then you know, it’s a deadly force threat. And therefore you can use deadly force to defend yourself, even if the other party had no idea t hey were causing you a deadly force that’s on them.
Okay, and the last question we had for today comes from Scott M. I guess he asked on a previous show, and I didn’t get to it. He’s asking about what are called excited utterances or admission against interest.
These are exceptions to what’s called the hearsay rule, folks. So the hearsay rule, the technical definition of what qualifies is hearsay is an out of court statement offered in court to prove the truth of the statement. And typically, it’s something that most of us would recognize as gossip. Someone is testifying in court about something that somebody else said and that other person’s not in court, to recount that statement themselves. That’s hearsay and hearsay is generally inadmissible as evidence.
And there’s good reasons for that. The normal kind of testimony we want in court is you have a witness who has personal knowledge of some event and are testifying in front of the jury about their personal knowledge of that event. The reason we’d like that kind of evidence is because it gives us an opportunity to question that witness, to cross-examine that witness. It gives an opportunity to impeach that witness, say they have a criminal record or a demonstrable history of lying, or some self-interest or bias or other motive not to tell the truth. It gives the jury an opportunity to hear and see that witness testify in person. That’s why the constitution recognizes our right to face our accuser in court. So the jury can make an assessment of that person’s apparent credibility on the stand and weigh their testimony appropriately.
But if someone comes in, if Tom comes in and testifies, well, my buddy Joe told me X. Well, you don’t want to hear what Joe said from Tom, you want to hear what Joe said from Joe. Because it’s only if Joe’s on the stand that all that applies, that he can be questioned, cross-examined, impeached, his credibility assessed.
You can’t do any of that if someone else is telling you what that other person said. So, we don’t like that kind of gossip testimony and an out of court statement being made in court. For the purposes of the truth of the statement itself. We want the person who made the original statement to come into court and testify.
Now, there’s a general prohibition on hearsay evidence for the reasons I just described, but there are a lot of exceptions to the hearsay rule.
One of the exceptions is what’s called an excited utterance. All these exceptions, by the way, have to do with the concern we have that what’s being counted as hearsay may not be very credible, and there’s no good way to attack the lack of credibility because the real person who said it’s not there.
All these exceptions are circumstances in which that risk of the poor quality of the testimony is mitigated. So it’s less likely that the testimony, the out of court statement, is false.
One of those exceptions is something called the excited utterance. And this happens when there’s some event that would excite someone and they make an exclamation of some kind, they make a statement of some kind, while still in that state of excitement. And it could be, you know, they’re driving a car, they run someone over and they say, “Oh crap, I miss that red light.” Well, that would be an excited utterance that would be an exception to the hearsay rule. And the statement also has to have something to do with the actual event that occurred.
If later there’s a trial and they’re trying to evaluate whether that driver is guilty of some kind of misconduct or knew that there was a red light or whatever the case might be that excited utterance. And presumably the driver’s not willing to testify themselves. They had a passenger, say, that heard them say that, and now they’re trying to bring the passenger into court and have the passenger say, “Well, I heard the driver say, I missed that red light.” Normally that would be hearsay. But if it qualifies as an excited utterance is it’s an exception to the hearsay exclusion and could be admissible in evidence.
The same is true for admissions against interest. Now, this is not normally, say, in a criminal case, it’s not normally the defendant who’s making a statement against their own interest out of court, and we’re trying to get that out of court statement into evidence. Usually, it’s some third party who made it admission against interest, and they’re not they’re not available to testify. If they were available to testify, you’d still be expected to bring them into court to testify about this themselves, so their credibility could be assessed in their impeachment. All that stuff we just talked about.
So to give you a hypothetical example, to make it a bit more concrete, imagine we had a defendant in a criminal case, they’re already a felon, they previously been convicted of a felony, so it’s unlawful for them to be in possession of a gun.
They’ve now been charged with some crime in which, let’s imagine, being in possession of a gun is an aggravating factor, and they’re denying that they were in possession of the gun.
But they got possession of the gun from a third party, and that third party was overheard to say, “Well, I knew he was a felon, but I like him, so I gave him a gun anyway.” Well, that’s arguably a crime for the person to give the felon the gun. Let’s pretend it’s a crime for our purposes. That would be a statement against that person’s interest , for confessing to a crime. They’re confessing to something that creates liability for them.
But if they’re not available to testify, because it’s an admission against interest it would be another possible exception to the normal hearsay exclusion, if someone overheard them make that statement. If you can’t find the person who actually made the statement, you might be able to bring in the person who overheard the statement to testify about that statement having been made as evidence that’s relevant to the defendant here having had possession of again.
Another kind of exception to the hearsay rule is something called a dying declaration. So, this is a declaration made by somebody who believes they’re about to die often, of course, they do die, but their death isn’t actually required. It’s if they genuinely believe they’re about to die, because it’s thought that the statements made by someone who thinks they’re about to leave this Earthly realm are unlikely to be self-serving lies, something that they fabricated.
This often comes up when in scenarios where someone’s been mortally wounded intentionally, it’s in effect a murder. But before they actually die, a witness finds them and the dying person says “It was Tom, it was Tom who killed me,” and then they pass away.
That’s an out of court statement, if you’d like to introduce that for the truth of the statement as evidence that Tom was the killer. Well, it was a dying declaration, a declaration made in the belief by the person making the statement that they were about to die. That would be another exception to the hearsay rule. And again, obviously, the dead person is not available to come in and testify about what they said themselves. So, you can have a third party who overheard the statement come in and testify about it when normally a third-party statement would not be admissible.
Okay, I think that’s all the content I had today. Let me know I’m just going to pull up the live online class slides again. So that’s up there. When I’m going through all these I’ll go through the comments now. So let me take a look at our membership comments. Let’s see. Mostly people saying hello.
Yeah, the advisability of shooting, fleeing people in the back. It rarely looks like self-defense when that happens, folks.
Now are there circumstances in which a shot to the back could be lawful, could be legally justified I can think of at least two.
One is if the fight is so dynamic, people are twisting and turning and so forth. Sometimes you bring up your gun, the bad guy sees the gun, he he reflexively twists away from the gun, you wind up shooting him in the back. This happens not infrequently in police shootings, where of course the police are entitled to a degree of aggression that a normal non officer engaged in self-defense would not be privileged. But in that kind of dynamic situation someone might be end up getting shot in the back even if that wasn’t intended. The fact that they happen to have been incidentally hit in the back doesn’t necessarily mean it was an unlawful use of force. If at the moment the decision was made to fire, they were still reasonably perceived as being an imminent deadly force threat to the defender. Because there’s of course a delay, you have to recognize the threat, decide what you want to do about it, present your weapon, press the trigger all that takes time, not a lot of time fractions of a second. But a body can move quite a bit in fractions of a second, in including beginning to turn enough that the rounds actually intended from the front of the body hit the back of the body.
Another circumstance in which shots to the back even shots to the back with no warning might be justified would be in a defensive other situation, or an active shooter situation where you might see a bad guy who’s not threatening you, but he’s threatening some other person with deadly force. And you’ve decided, well, the law allows me to defend others with deadly force if they would have been entitled to do that themselves. So, you’re going to deploy deadly force, and the bad guy is just about to shoot that innocent third person. The only way to stop them is for you to shoot him in the back. That would be a privileged use of deadly defensive force to someone’s back. Because although there’s not an imminent deadly force threat, perhaps, to you in the moment, there is to that other innocent person.
Obviously, we don’t have time to go into all the risks involved with defense of others. We do cover that at length, by the way in our upcoming Law of Self Defense LEVEL 1 Live Online Class on Saturday, July 25.
Okay, that’s all the Law of Self Defense membership comments. Let me go through the Facebook comments here. See if there’s any questions.
Well, folks, if you just if you send me links to other web pages, I can’t during the live show, click through to those links. So, it’s better if you could just give a brief typed comment about what you’re interested in seeing me reply to.
Greg asks, Does a TASER fall into section two with a deadly weapon And if that wanted to inflict more pain without the intent to kill, this law would still apply. Are you? Are you talking about the Georgia aggravated assault statute?
So, whether or not a TASER would qualify as a use of deadly force being forced, capable of causing death or serious bodily injury is a little ambiguous. Probably not causing death very unusual., but what qualifies is grave bodily injury. I mean, there are federal bank robbery cases where they said that the bank robbers use of pepper spray qualified as great bodily injury because of the burning sensation, the interference with normal breathing, it was an impairment of a bodily function, which is one of the classic definitions of serious bodily injury.
Could the pain inflicted by a TASER, the proximate paralysis of the muscles on a local basis if it’s using drive mode, on a generalized basis if it’s working effectively with in dart mode, could you make the argument that a TASER could in some contexts qualify as the use of deadly force?
I think you could make that argument. If you’re using a just to inflict pain on someone, not to neutralize an existing threat. That’s not a great position to be in. So there’s there are a lot of these less than lethal force tools, folks that, like I mentioned, OC, we’re talking about a TASER, batons, that can drift very easily from being a non-deadly force application to a deadly force application.
Using a baton to strike someone in the thigh is almost certainly a non-deadly force use of that impact weapon, take the same baton and swinging at their head. Now we’re talking about a deadly force use of exactly the same impact weapon. So, you have to be very careful about using those less lethal tools because it can be ambiguous into which of the buckets non deadly force of deadly force they fall into. Let’s
Oh, it appears that the 20-year-old in the first story has been arrested and charged with child molestation, so good. Let’s see.
Skip asks about self-defense for senior citizens. I think we already covered that when I covered atoms question. It’s the same thing. The underlying fundamental legal question for purposes of analysis is, is the threat you’re facing, reasonably perceived as one that can readily cause you, given your circumstances, your abilities, your disabilities, your impairments, your illnesses, your whatever you can cause you death or serious bodily injury if it can, it is a deadly force attack upon you even have a might not qualify as a deadly force attack upon a healthy 20-year-old.
But that’s not the to say that just because you’re old, everything’s automatically a deadly force attack. It’s not like you hit 65 years of age and everything changes, legally speaking. You have to do the fundamental analysis, is it an attack of a nature that can readily cause death or serious bodily injury, given the circumstances, my characteristics, my specialized knowledge and training, if I have any, and so forth, that analysis doesn’t change, just the underlying facts that get pumped into that analysis change.
Now, there are some states, Florida is one, that have a little wrinkle here because they sometimes they change the category of a crime from a misdemeanor to a felony depending on the age of the victim. So, for example, a simple assault. Simple assault, normally a misdemeanor, not a felony, less than a year in jail punishment, unless the victim of that simple assault is, I’m going make the age up because I don’t remember what it is, but say 65 years of age, then it becomes a felony.
And then it’s a forcible felony, and Florida explicitly allows for deadly force self-defense to stop a forcible felony.
So there the law explicitly has an explicit statutory provision that this simple assault against a 20-year-old cannot be lawfully defended against with deadly force. But if instead of a 20-year-old, it’s against, again I’m making the guess it’s 65 years of age, then it becomes a forcible felony against which deadly defensive force is lawful.
So depending on what state you’re in and may have a similar provision, but as a general basis of legal analysis, what matters is what’s the nature of the attack upon you, given your characteristics.
John asks, I know you can never know how much a criminal defense will cost All you know is going to be super expensive. John: I have the Platinum package USCCA in most cases is that enough?
John, I don’t know if you’re aware but a platinum member of USCCA is currently suing USCCA in federal court because they’ve decided not to pay her benefits. Now, USCCA may have a perfectly legitimate explanation for why they’re not paying that Platinum members benefits. I’ve asked them what their reason is, and they’ve declined to tell me. So I don’t know.
Under those circumstances, I used to routinely recommend USCCA as one of these self-defense insurance providers for people to consider. But I can’t do that anymore when they refuse to pay a platinum member’s benefits and they won’t tell anybody why.
I mean, if they’re only going to pay benefits if they feel like it, or they have some secret reason they don’t want to, that’s not somebody I would want to be relying on for the financial resources I need to fight that legal battle.
If you’d like to read more about that federal lawsuit against USCCA by their Platinum member you can find stuff I’ve written on up before at http://lawofselfdefense.com/uscca
And again, I think there’s, you know, they may have a good reason, I don’t know. But until they explain their good reason, I simply can’t recommend them.
Let’s see.
Yeah, folks. So I mean, in terms of all these days releasing suspected arsonists and people assaulting police officers being released for no bail. I don’t focus on the politics of it. This is not a political show. Obviously, I have my own political opinions, but that’s not what we’re here to talk about. I only mentioned them because they are drivers. I think, of a society that’s going to become more violent. So, you need all the more to be prepared to defend yourself and your family from any reasonably perceived expectation of increasing violence.
Wayland Chang, for those who don’t know, Wayland’s, a public defender in California, he’s a graduate of our Law of Self Defense LEVEL 1 Course when I taught up in Sacramento a year or two ago. He writes here, admissibility of hearsay is usually almost a law school course in itself.
Yes, it’s extremely complicated. Rules of evidence in general are extremely complicated. That’s why we don’t focus on them much. They can, frankly, make or break a case all by themselves, but they’re so technical that it’s very difficult to talk about in the context of a non-professional legal audience. etc.
John Watson tells us, Yes, in Florida 65 is the age where it goes from misdemeanor to a felony for a simple assault or simple battery. I think that’s right. But again, I didn’t check the statute myself on that before the show started.
Alright, folks, so I’ll Just remind all of you, a couple of our more popular shows our Cases of the Week Show, which we normally do on Tuesdays, now at 4pm Eastern, and our After Action Analysis Shows which we do on Wednesdays now at 4pm Eastern will no longer be on Facebook.
So if you want to participate in those shows, you’ll have to do it through the Law of Self Defense Member dashboard, which you can only have access to if you’re a Law of Self Defense Member.
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Okay, folks, so with that out of the way, I am going to go ahead and get ready to sign off. I hope everybody has a great weekend.
As always, folks, before I go, let me remind all of you if you carry a gun, so you’re hard to kill, that’s certainly why I carry a gun, so I’m hard to kill ,my family’s hard to kill, I also urge you to make sure you also know the law so that you’re hard to convict.
Alright folks, I’m attorney Andrew Branca for Law of Self Defense. Until next time, stay safe.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC