News/Q&A Show: July 24, 2020

Hey folks,

In this episode of our Law of Self Defense News/Q&A Show, for Friday, July 24, 2020 we ha a bunch of great questions we answered, including:

  • “Can I use deadly force to defend against a laser beam attack to my eyes?”
  • “Can your competitive shooting background be ‘used against you in court.’ ”
  • “Implications for self-defense of carrying concealed on posted premises.”
  • “Clarification of sequence in which the burdens of proof are determined and met. Pre-trial hearing? Vary by state? When does burden shift?”
  • “I have USCCA Elite legal protection, should I also have some other company’s coverage, would they each tell me to use other, or work cooperatively?”

We’ll also took live questions during the show, as time permits.

Enjoy the show!

LEVEL 1 Core Class: Saturday 25, 2020

Also, if any of you reading this members-only content haven’t yet taken our LEVEL 1 Core Class, which we only teach a couple of times a year now, you can take that class in a live online format this Saturday, July 25, 2020.  For more information on that, point your browser to:

Enjoy the show!


You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict!

Stay safe!


Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program


(Transcript to follow, initially posted in computer-generated form, will be cleaned up as time permits.)

200724 QA

Fri, 7/24 2:27PM • 53:06


self defense, folks, unlawful activity, question, deadly force, law, trial, state, ccw, member, serious bodily injury, legal, defense, burden, engaged, force, limit, evidence, case, cover


Andrew Branca

The law of self defense content you’re 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. Come on in folks, come on in. Come on in. Welcome to the law self defense news and q&a show for July 24 2020. If you’re participating live by Facebook please I asked you to leave a comment in the comment section with your city and state. Also if you could hit that Like thumbs up button and that share arrow about the comments. That’s always greatly appreciated. Thank you very much for all your help in getting that done. For those who may not know I am attorney Andrew Branca for law self defense. Thank you. This is Our weekly news and q&a show this is the one of our shows that we do make freely accessible to the world. So you do not need to be a law of self defense member to access this content. Most of our other video blog posting, and audio is limited to members only. But in our news and q&a show where we take questions give answers on Self Defense Law. That’s what we do here at law, self defense. Anybody can participate and we do leave these videos up on Facebook, and also publicly accessible to everyone on our blog posts. Over at law, self defense calm, the audio version our podcast is is however limited to members only. So come on in folks, we have a ton of great questions to cover today. A little bit of housekeeping before I start. First, our sponsor CCW safe providers of legal service memberships that many people mistakenly call self defense insurance in effect, they promised to pay their members legal expenses of the members involved in the use of force event. And those expenses start big and get bigger folks, they can easily go into the hundreds of thousands of dollars. So it can be good to have a partner behind you with the financial resources to fight the kind of legal fight. You want to be able to fight to maximize your prospects of winning not just the physical fight, but also the legal fight that follows. Now there are a number of companies that offer this kind of service. I’ve looked at all of them as you might imagine, I’ve determined that for me, the best fit is CCW safe. I’m a member my wife Emily is a member. whether or not they’re the best fit for you is something only you can design but I do urge you to take a look at what they have to offer at law of self defense comm slash CCW safe. And if you do decide to become a member, you can get 10% off your membership at that URL. Law of self defense comm slash CCW safe if you use the discount code LSD 10 when you sign up, and we’ll be diving into these, one of the questions we got this week was about these kinds of legal service memberships legal practice. Action Plans. So we’ll be touching back on the subject of CCW safe in just a moment. I also want to mention because Time’s running out, there’s only hours left to sign up for tomorrow’s law, self defense level one class taught live by me much as you’re observing me live. Now, if you are observing me live, this is our full day level one class, world’s best course of instruction on Self Defense Law anywhere, including law schools, if I do say so myself. And

we only teach it a couple times a years, folks. So if you miss this one tomorrow, Saturday, July 25, you’ll have to wait months before you have an opportunity to take part in this class. Again, I know a bunch of you in the comments have previously attended either our live or live online version of this level one class, I generally find people have nice things to say about it once they’ve attended, so if you’d like to leave some nice comments in the comments, as social proof for those who may be little iffy on whether they’d like to join the class. That would always be appreciated. The class is not expensive, folks, it’s about 150 bucks for a full day’s instruction on Self Defense Law explained in plain English to make you hard to convict as well as hard to kill. That’s about $20 an hour for the full day of the class. If you called me up on the phone to ask me questions of the kind more than 100 questions we answer in the course of the class, then the billable rate would be more like $600 an hour, folks. So that’s one way to think of it. You’re saving 97% by participating in the level one class again, that’s tomorrow. I’m recording this on Friday, July 24. So you have a few more hours at midnight tonight. We shut down the registration, and it’s all locked in. So something to keep in mind there. Also, I should mention, our newest course has just been released. we finalized it earlier this week. It’s our new course on lawful defense against rioters, looters and arsonists. It’s normally going to be priced 9995 but for this launch week only, it’s only 5495. You can learn more about that course at law of self defense comm slash RL a, that’s the acronym for writers, looters and arsonist law self defense comm slash rla. Or if you’d like to save yourself 5495, you can get the course for free if you’re a loss self defense member. So if you’re one of our members, this is simply going to be found in your members area your members dashboard as an entirely free course for the law of self defense membership. If you’re not certain whether you’d like to be a member, well then I encourage you to try it out. You can get a two week trial membership for just 99 cents with a 200% money back guarantee. Folks, if you decide in the unlikely event that you decide you don’t like it. After that it’s still inexpensive. It’s only about 33 cents a day to be a law self defense member less than $10 a month and just by getting this new course for free, you’re getting even at the launch price. You’re getting five and a half a month’s worth of value in terms of not having to pay the 5495 for that course. So something to keep in mind that’s at law self defense comm slash trial for that two week 99 cent trial membership, what have you got to lose folks? Nothing. In fact, you have 200% money back to game. So I encourage you to consider that. Alright, with all that out of the way, let’s dive into our actual substance of today’s show. Generally share with you in the show, it’s our least structured show, we’ll cover some interesting use of force offense that might be in the news, as well as answer questions. Now, a bunch of questions were emailed in this week. We have excellent questions to cover. And those questions, I’ll give you a heads up if anyone’s deciding, trying to decide if they want to participate. Let’s see I have them all written down here someplace. Yes. So one of the questions is can I use deadly force to defend against a laser attack to my eyes can My competitive shooting background be used against me in court implications for self defense if I’m carrying concealed on posted premises. We have a question asking for clarification on how the burdens of proof for self defense are met when they’re meant what the timing is, when is the burden shift from the defense to the state? And we got a question about whether or not it would be prudent to have legal service membership not just from one company, but from two companies kind of double coverage. So those are all the questions we’ll be covering today. Folks, if in the future you’d like to send questions in to us, you can always email those to show at law of self defense calm and we’ll take them under advisement. If you are a law of self defense, platinum or gold member, you can send us your questions through our membership dashboard. Those get prioritized, obviously, folks. In fact, if you’d like those questions answered privately, I’ll answer those questions privately. Just let us know when you leave the question in the q&a forum available in your member dashboard. So let’s dive into the first question which is from Troy FPS Can I use deadly force to defend against a laser beam attack to my eyes? Really the fundamental question is, is a laser deadly force if it’s being used in effect, the blind someone?

Excuse me. And as you might imagine, this question is being prompted by new stories like this free federal officers blinded by riders lasers may never recover their eyesight. So obviously not a good thing to be having happen. So the question arises is well, his use of a laser in this manner to blind someone caused permanent damage to their eyes does that qualify as deadly force? What is deadly force force that’s capable of causing either death or serious bodily injury? I miss wrote this a little bit though. I’d corrected that, but its force capable of causing death or serious bodily injury. Well, a laser beam to the eyes probably won’t kill you at least lasers of the kind we’re talking about, but can they cause serious bodily injury? And the answer is, well, of course, yes, if they’re causing possible permanent blindness. There’s a correct definition the slide so serious bodily injury sometimes called grave bodily injury, serious physical injury, every state has a three word phrase for this concept, something more than modest injury, not quite death, but they put these serious degrees of injury in the same bucket as death as in the bucket of deadly force. So what do we mean by serious bodily injury or grave bodily injury or grave bodily harm? Well, here’s one definition from Indiana. It’s fairly representative. serious bodily injury means bodily injury that creates a substantial risk of death, or that causes and for our purposes here at subparagraph, four permanent or protracted loss or impairment Have the function of a bodily member organ if you’ve been permanently blinded or you suffered blindness for a protracted period of time, or to an extensive degree, so it’s a substantial impairment of your vision that qualifies as serious bodily injury under Indiana law, which means it’s in the deadly force bucket, which means per the element of proportionality. for self defense, it is of a sufficient degree deadly force degrade to justify a use of deadly defensive force, assuming of course the other elements of self defense have been met. here’s just another definition of great bodily harm. This is from New Mexico jury instruction 14 dash 131. Great bodily harm means an injury to a person which creates a high probability of death, or results in serious disfigurement, or results in loss of any member or organ of the body or results in permanent or prolonged impairment of the use of any member organ of the body. blindness definitely qualifies as serious bodily injury, great bodily harm and therefore falls into the deadly force bucket. Now, of course, we do have some practical concerns considerations, if we’re planning to argue a justification defense, because we’ve say shot, someone killed them, because they were directing a laser beam into our eyes, threatening imminent blindness. And that is, these things tend to happen in these chaotic mob events. So you likely First of all, don’t know who’s doing it. There may be lots of people with lots of laser beams, who’s the person shining in your eyes? To the extent that you can’t distinguish, you might argue, well, I can’t tell exactly who it is, but it’s a collective effort. They’re all responsible for causing the harm to me and others. I’m going to defend myself against the ones I am able to reach with deadly defensive force. Not an unreasonable argument to make when you’re facing a deadly force threat as blindness is, but the other problem is Say you’ve shot someone now and the crowd breaks up and it’s chaos. And of course, when they’re recovered, they don’t have a laser in their hands anymore. Maybe there are no lasers around, maybe they’ve all been scavenged up. So the evidence, you’d want to support your reasonable perception of a deadly force that may be lacking and good guy in cases of self defense, they don’t get tend to get into trouble when there’s too much evidence. In the case, folks, more evidence is generally good for good guy in cases of self defense, they tend to get into trouble when there’s too little evidence like I’m just describing and the claim of justification begins to look ambiguous, unfounded, maybe fabricated. So the real solution, of course, for this kind of scenario is the same as for every self defense scenario, if you have the option to not be there, then don’t be there. That’s the best way to win a fight. Don’t be there. If, on the other hand, you’re in law enforcement and it’s your duty to be present and you’re subject to this kind of attack. I would certainly defend the US use of deadly defensive force to prevent being blinded by the laser beam of an aggressor. No question about it. And I think these officers would be perfectly justified in doing so themselves. Okay, the next question we got was from Scott a, he’s a platinum member, thank you very much for the support, Scott. For those who don’t know, platinum is our highest level of membership. And

the Platinum protection program that we offer at law of self defense is the only way to guarantee that I’m available for your legal defense. Should you find yourself involved in the use of force event and it’s at no cost? My services are at no cost beyond your what you’ve been paying to be a platinum Protection Plan member. If you’d like to learn more about that, and I believe we have a 99 cent trial for that as well, folks to get the guy who’s arguably the Self Defense Law expert in the country guaranteed on your legal team if you need me. You can learn more about that law of self defense comm slash platinum. But in any case, Scott a asked 10 year competitive shooting background be used against you in court. And of course this came up because of news around officer Tony McBride. She’s a LAPD police officer. Also apparently a very active competitive shooter. There’s a photo of her in her competitive shooting attire. There’s some videos of her out there. Several by Taryn tactical showing her shooting in a competitive type of setting she appears to shoot very, very quickly, as you might expect from a high level competitor. And last April 22, she was involved in in the course of her duties as a police officer in shooting a blade wielding aggressor in the Los Angeles streets. She shot and killed that aggressor. His name was Hernandez. Not much was made of this at the time it happened April 22 of this year, but a lot of it’s being made of now because of all the heat around purported police excessive use of force, most of which is utter nonsense. But nevertheless The world seems to be going crazy about these issues at the moment. So suddenly, she’s in the headlines again, over the shooting. Now in yesterday’s after action analysis show, we took the rather extensive videos we have from her body camera and from witnesses of the actual shooting. We did the detailed legal analysis of that that is available, I’m afraid only to law self defense members. Again, folks, you can try out membership for just 99 cents get access to that show that after action analysis show if you’d like so we did a very detailed breakdown. And you can get that trial access at law self defense comm slash trial. But we did a very detailed breakdown of her use of force. But one of the things that’s come up now of course, is the man shot Hernandez. He’s deceased. His family would like to collect a lot of money from the Los Angeles Police Department in government. So they’ve retained to the attorney who’s suing everybody, the officer, the department, the government for what will certainly be millions of dollars in a 19 hour section 19 Three case in federal court. And of course, he has to develop a narrative of guilt of misconduct, hopefully something that would put pressure on the people who will make the decision on whether or not to settle the suit for millions of dollars. So he won’t even have to go to court to become wealthy off of this. That’s how it’s generally done. They try to create as much political pressure on the politicians who make the settlement decision. Obviously, the offer officer herself has no call and what’s being settled or for how much and as part of his development of this pressure narrative, this propaganda campaign around this use of force event, he’s making a big story around her competitive shooting background, suggesting in fact explicitly calling her a gunslinger suggesting her competitive shooting does not reflect on what we should expect from Los Angeles police officers. It’s all a bunch of nonsense, but nevertheless, it’s in a lot of headlines right now. And of course, it’s a key part of their propaganda campaign to try to pressure millions of dollars out of the government. So the question arises, well, can you do this? Can you use someone’s competitive shooting background against them in court? And the answer folks is always yes to this question. I don’t care what it is we’re talking about. If the question is can x be used against me in court, you must assume the answer is yes. Now, it’s possible your defense lawyer might successfully argued to the judge that a certain piece of evidence should be excluded because it’s prejudicial or otherwise irrelevant, or whatever the case may be. But you can’t count on that. And you can’t know ahead of time, you can’t know until the case the arguments made to that particular trial judge and they’ve made a decision. So you always have to assume the worst case scenario. The worst case scenario is that it will be admissible, especially by used against you in court. We simply mean can a prosecutor talk about it in front of the jury in an effort to make me look bad? The answer is almost always. Yes, folks. Regardless of how silly or nonsensical it may appear to be the prosecutor is in it to win a plaintiff’s attorney is in To win, they will use every lever at their disposal to try to win that case, including things like if you’re a competitive shooter. Now I will know it, I don’t think it’s going to have very much effect. The manner in which she shot Hernandez in the course of her duties was a very deliberate reasoned,

I would say compared to her competitive rate of fire, it was downright slow fire. It was at least half second splits between pairs of shots, long pauses between each pair of shots that she we evaluated the situation. When you see her she’s competitively she’s shooting, I don’t know, fifth of the second quarter of a second splits between her shots very, very quick transitions from one target to another. That’s not at all what took place when she was approached by the aggressor Hernandez with his razor blade in his hand. So I think she’ll be fine. Or at least this argument in particular won’t have much merit. Again, we discussed all this in detail in yesterday’s after action analysis. From July 23 2020, you can find them at the law of self defense Comm. blog at law self defense calm. But that’s the answer to this particular question. Am I competitive shooting be used against me in court? The answer’s yes. Yes, you have to assume that could be the case. Now, that could also be true of if you’ve taken self defense training, if you’ve taken gun classes. If you’ve taken a law of self defense class, might a prosecutor try to talk about those things in court? In an effort to make you look bad? Well, he can try. The real question is not whether or not he can make the effort might be permitted to do it. The real question is, one how damaging is it likely to be in court and to what’s the alternative is the alternative to not get trained in self defense to not learn how to shoot a gun proficiently to not know what the legal rules are? I would suggest that’s not the prudent course of action. The prudent course of action is to learn all these things, constrain your use of force within those boundaries and then folks, you are Hard to convict and that’s where you want to be. Okay, the next question comes in from Steve B. He asks what are the implications for self defense of carrying concealed on posted premises we mean here premises like that have a sign on the door saying no guns permitted. For example. We had a case of this just recently, actually in another use of forces that we covered in our blogging and video show production, the shooting outside the Buffalo, Wild Wings, restaurant use restaurant in the loosest possible sense. If you’ve ever eaten there, you know what I mean? But there was a couple having a meal inside they came out of the restaurant and the woman’s estranged or ex husband was there with a gun and he killed both of them and then he himself was killed by a good Samaritan. That Good Samaritan killed him with his concealed carry pistol and he had been in the Buffalo Wild Wings. And every Buffalo Wild Wings I’ve ever seen has been posted no firearms. allowed so this good samaritan was actually not permitted to have the gun in the premises in terms of the the policies of the property owner. Now, in some states, there can be postings that actually make the carrying of the weapon on the property contrary to the posting a criminal act, Texas has their 36 signs, for example, in most states, it’s not actually a crime to do this, but it could be a civil trespass. If you’re on someone else’s property, you only have licensed to be there if you meet their conditions, their rules, their policies. So if you violate those policies, strictly speaking, you’re trespassing. You’re not present with privilege. Now normally, what happens if they discovered that you’re breaking the rules as they simply asked you to leave it’s no big deal. But nevertheless, you’re doing something that is at least a civil sense is unlawful, right? They could take legal action against you, if you insistent on attempting to carrying a gun on their property, and it could potentially in some states actually be criminal. Conduct to carry a gun on appropriately posted no gun properties. So what’s the implication if you’re engaged in some kind of unlawful activity of this kind, and then you’re involved in a use of force event, you use force against another person, you want to justify that use of force of self defense, what happens to your self defense claim? If it can be argued that well, you were engaged in unlawful activity? The good news is that generally speaking, self defense is not the core of self defense. The privilege to use force against an unlawful attack against you is normally not conditioned on not being engaged in criminal activity, generally speaking, it is of course content contingent and not being engaged in activity, that’s the activity of an aggressor, or a forcible felon, or someone who’s provoking a confrontation. So, if it’s a physically violent unlawful activity, well then you’ll lose Self Defense because you lose the element

of innocence. You are the initial aggressor in that confrontation. But there’s all kinds of criminal activity that cannot be characterized as forceful or the use of force or the threat of force. So for example, if we think of a hypothetical street corner drug dealer who’s selling vials of crack to his clients, he’s clearly engaged in unlawful activity, but it’s not violent or forceful, unlawful activity. That guy if someone comes to rob him, commits an armed robbery on the street corner crack dealer, threatens them with deadly force, that street corner crack dealer can use force and self defense and justify it itself defense in almost every state. So the mere fact that he’s engaged in some generic unlawful activity does not lose him self defense, and we have a good example of how this works. From this Florida statute here, this is Florida’s central self defense statute. This is the second paragraph of it involves deadly for self defense, and I’ll just Really quickly a person is justified in using or threatening to use deadly force if he reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or to prevent a forcible felony. That’s the justification and it doesn’t say anything about not being engaged in unlawful activity. Where being engaged in unlawful activity can trip you up in the context of self defense, however, is that there are often special provisions of self defense that are made conditional on not being engaged in unlawful activity. So if you’re engaged in unlawful activity, you don’t lose the privilege of self defense itself. But you could lose some of these special provisions for self defense. What am I mean by special provisions? I mean things like stand your ground for example, stand your ground is about 36 states are effectively stand your ground states they don’t impose a legal duty to retreat before you can use force to defend yourself even if retreated. safely possible. About half of those standard ground states are standard ground by statute. And the other half are standard ground by case law court law decisions. Now, the ones that are standard ground by statute, it’s inherent to the process of creating statutory law, that there is debate. There’s contesting signs, there are compromises that are made. And it’s very common in the statutory standard ground states that there are conditions that must be met before you qualify for standard ground. So the default position is actually that you do have a duty to retreat unless you meet the conditions of standard ground, and then you’re relieved of that duty to retreat. So let’s take a look at Florida’s Stand Your Ground law.


sorry, I’m gonna skip this slide in the interest of time, go to the standard groundless. So here’s the relevant portion of the statutory language. That is the standard you’re Ground language. A person who uses or threatens to use deadly force in accordance with the subsection meaning consistent with self defense does not have a duty to retreat and has the right to stand his or her ground. If and that’s where the conditions come in, folks, if the person who’s using or threatening the deadly force is not engaged in criminal activity is and isn’t a place where he or she has a right to be. So under Florida law, if you’re engaged in some unlawful activity, that wouldn’t be enough by itself to strip you of self defense, you’re not committing an armed robbery for example. You’re a street corner drug dealer. You don’t lose the privilege of self defense but you would lose the privilege of stand your ground because stand your ground is explicitly conditioned on not being engaged in criminal activity. Here we have similar language from Alabama I just picked it more or less at random. Their standard ground language very similar language a person is justified under The Self Defense Law in Alabama and using physical force including deadly physical force and who is not engaged in an unlawful activity and is in any place where they have a right to be has no duty to retreat and has the right to stand his or her ground. So these are very common conditions. not engaged in unlawful activity in a place you have a right to be common conditions for statutory stand your ground, you see them all over the place. Here’s a this is Pennsylvania Sorry, I forgot to label the slide with the state but this is Pennsylvania Stand Your Ground law. Pennsylvania adds even more conditions. It’s one of the most common one of the most complicated standard ground provisions there is. So it shares the two common provisions we already discussed that they’re not engaged in criminal activity. Also that they’re in a place they have a right to be but it adds an additional conditions. It adds in the condition that you can’t have been in possession illegally of a firearm. That’s a condition you don’t find explosive. stated in any other state standard ground law, but you do in Pennsylvania, also, they require as the other states do that you’re in a place you have a right to be that it’s immediately necessary to defend against a deadly force attack. That’s just self defense, and that the person against whom you’re defending yourself displays or has either a firearm or record replica firearm or some other weapon. So if they don’t display or have a firearm replica or other weapon, you don’t qualify for standard ground under Pennsylvania law. It’s really an outlier in terms of America’s Stand Your Ground law. There are other let me go back. Let’s see. There are a couple of other things I wanted to mention. Other areas of the law that are often conditional and not being engaged in unlawful activity, self defense immunity. So we’re, we’re states have in those states that have self defense immunity provisions, so you can seek immunity from prosecute Or from civil suit. If you can convince a pre trial hearing judge that your use of force with self defense. Often that immunity is made conditional on not having been engaged in unlawful activity in defense of highly defensible property situations defensive your home places business car, many states have create a legal presumption that if you’re defending yourself against an intruder, a forcible, unlawful intruder into that highly defensible property, they create a legal presumption that you had a reasonable fear of eminent deadly force harm from that intruder. Basically, that gives you everything you need to justify a deadly defensive use of force. But almost invariably, that legal presumption is on you not being engaged in unlawful activity not using the highly defensible property for the purpose of unlawful activity. So if you’re selling drugs out of your car, that car would normally qualify as highly defensible property, let’s assume in the hypothetical state and if you were attacked and defended yourself attacked by somebody attempting to forcibly unlawfully enter your vehicle normally would qualify for that legal presumption of a reasonable fear of imminent deadly force harm. But if you were selling drugs out of the cart, you don’t you trigger one of the exclusions, you don’t qualify for that legal presumption. Same if you were using your home, to sell stolen property or any other unlawful act, you could commit, you haven’t lost your right to defend yourself and justify that use of defensive force as self defense. But you do lose that special provision of the legal presumption that your defense was a reasonable defense. Okay, next question. How are we doing for time? Okay.

Lead Jay asks clarification of the sequence in which the burden of proof are determined and met. Does it happen to the pre trial hearing? does it vary by state? When does the burden shift? So it’s good question a little bit nuts and bolts, but that’s fine. That’s why I’m here. So the burdens of proof that’s plural because there’s actually two burdens of proof one is the burden of persuasion. This is what happens in the trial whose job is it to prove or disprove a claim made in that trial, we’ll limit ourselves to a criminal trial. And in a criminal trial involving self defense, the state has the burden of persuasion persuading the jury that the defendant has committed the crime beyond a reasonable doubt. So the burden on the criminal charge is on the state to prove every element of that criminal charge beyond a reasonable doubt. In terms of self defense, once self defense is successfully introduced to the trial, successfully raised in the trial as a legal defense, then the burden on self defense is also on the state but now they have to disprove self defense beyond a reasonable doubt this is true in every state. So once the criminal charge is in court and the legal defense has been raised in court, the burden of persuasion on both is on the state to prove the crime beyond a reasonable doubt and today disprove self defense beyond a reasonable doubt. But here’s the catch. The catch is self defense is not automatically gotten into the trial. And that’s the second of the two burdens of proof. Besides the burden of persuasion we just discussed, there’s also the burden of production. And the burden of production has to do with who has to produce sufficient evidence to be allowed to make a legal argument in court in the first place. before you’re allowed to make a legal argument. And that includes the legal argument of self defense, there must be more than zero evidence in support of each of the elements of self defense up to five elements. Hopefully, you’re mostly familiar with those now. In essence, eminence proportionality avoidance and reasonableness may be fewer if one or more of the elements is legally waived. But whichever elements are not waived, are required the cumulative they must all be present. And if there’s literally zero evidence on one of them, well then your conduct can’t have been lawful self defense from its strictly technical perspective. Have a can have been self defense, there’s no point to letting you argue self defense in front of the jury. So you have to meet your burden of production, your burden of producing some minimal amount of evidence in support of each of the required elements of self defense, before self defense gets into the courtroom. And of course, if it doesn’t get into the courtroom, then there’s nothing that the prosecution has to disprove in terms of a claim of self defense because the jury won’t ever hear it. So two burdens of proof burden of production producing that initial evidence to get self defense into court in the first place. And once it’s in and that burden, the burnin production is on the defense to make sure that evidence is in the record, otherwise, they won’t be allowed to argue self defense. And once that burden of production is met, then the burden shifts to the prosecution to disprove self defense beyond a reasonable doubt. Now, when does all this happen? Well, it’s a little it can be varied. It depends on the circumstances. So certainly the discussion has to happen before the jury is actually instructed is A jury going to get a self defense jury instruction or not. If you haven’t met the burden of production by then by the end of the trial, just before jury instructions, well, then the jury is likely not to get a self defense jury instructions, which means they can’t equip you on the basis of self defense, which is not a great place to be in. Because if you’re claiming self defense, you’ve already necessarily admitted it was you who used the force, that’s the basis of the criminal charge, right? When you’re claiming self defense, you’re not saying that wasn’t me? I didn’t do it. I have an alibi. You’re saying it was me. I did it. I shot that guy. But I did it in lawful self defense. If you deny the underlying conduct, you can’t claim self defense, at least not coherently. It’s not coherent to say, Hey, I didn’t shoot that guy. Someone else wants to done it. But if you don’t buy that, I did it in self defense. That is not a compelling defense folks.

So certainly before the jury instructions when that last hearing is happening between the state and the defense and the judge about what the instructions are going to be that the jury will receive you have met your burden of production by then. In an ideal world, all this conversation would happen before the trial at a pre trial hearing, and everybody would agree on what the arguments are going to be in the trial. trials are not supposed to be places where surprises happen, folks in a perfect trial. Everybody knows the evidence. Everybody knows what legal arguments are going to be made. It’s not an issue of surprise evidence or surprise arguments. We don’t want people being ambushed. That’s not how the process is supposed to work. The process is supposed to be that everyone agrees what the playing field looks like before the trial starts. What is the evidence that’s admissible? What are the legal arguments that are admissible? So you better have met your burden of production by them? And then the only question is, well, who’s going to be better at meeting their burdens of persuasion inside the courtroom? That’s the only thing that’s supposed to be settled inside the courtroom. There are not supposed to be surprises. They’re almost always are but in an ideal trial, there wouldn’t be any surprises. So the ideal way you’d like to do this is in many states, by the way, the defense is required to give notice pre trial, sometimes a certain number of days before the trial starts to the state that they’re intend to claim self defense so that the state has an opportunity to prepare their counter argument to that claim of self defense. So normally, what happens is under state has brought a criminal charge, say a murder charge. The defense announces pre trial, Your Honor, we’ll be raising the legal defense of self defense justification defense of self defense. And then that state might object and say no, no, that you can’t do that you haven’t met your burden production. There’s zero evidence on this particular element to self defense and you’d better be able to produce that evidence meet your burden of production. Sometimes what happens is the judge is told by the defense, Your Honor, we don’t have that evidence yet, because the evidence is going to be in the form of my client’s testimony and the witness stand. He’s going to testify about With self defense, and that’s generally sufficient to meet the burden of production. So we don’t have that evidence yet, because my client hasn’t testified yet, but we will have it before we get to the end of the trial, we will have it before the jury needs to be instructed. And that can be how it goes. But sometimes what happens is the defense legitimately intended to put your witness on the stand their client on the stand. And then halfway through the trial, they’re like, oh, man, we can’t do that. That would be bad. So they decide midway to not have their client testify. Well, they’re allowed to do that. But if the only way to meet their burden of production on the legal defense of self defense was there client’s testimony and now their clients not testifying, they might have been able to argue self defense, the whole trial, but at the end of the trial, because they failed to meet their burden of production, the jury will not get that self defense jury instruction, they will not get that self defense verdict form. And that becomes impossible from a strictly technical perspective for them to acquit the defendant on the basis of self defense without the instructor So that can happen to. Okay, let’s go on to the next question. Tim B asks, I have uscc A elite legal protection. Should I also have some other companies covered? Would they each tell me to use the other or would they work cooperatively? Well, unfortunately, I can’t answer that question because I don’t know what they will do. I know that CCW, safe, competing company to uscca says explicitly on their website, they intend to work cooperatively if there’s more than one form of coverage. You know, you’d like to believe people are going to do what they say they’re going to do. But I certainly would have no control over that. If you could, I guess, find yourself in a situation. It’s not uncommon, when there are double coverage insurance policies that each insurance company will point the finger at the other and say, No, you got to go to that guy first for your money, and only later Can you come to us. So I can’t really answer this question of whether That would happen, I’d like to think not. But in preparing to answer this question, I did take an opportunity to review some of the coverage policies of both uscca and CCW, safe. And it just reminded me of a couple things I feel like I ought to bring to your attention. And that is, folks, make sure you know what you’re buying, and make sure it’s fit for actual purpose. Now, I said it at the start of the show, I’ll say it again. We’re sponsored by CCW, safe a competitor to uscca full disclosure, no surprises there. But I’d like to share with you some information that’s straight from the US CCA website and explain to you why, in my opinion, their policy, even this elite policy, which is their highest level of policy,

it’s just really not fit for its claimed purpose. So the first thing we have to look at is this is from the US CCA and I put the link there folks so you can check it yourself. uscca Ember It’s on their website. And one of the things they say is that well, first of all, they only cover deadly force self defense events. They don’t cover non deadly self defense events. They define an act of self defense as something involving a firearm or other weapon, and against an imminent threat of death or serious bodily harm. So all they cover are deadly force self defense narrows, and I don’t have a problem with that, folks, they state it very explicitly in their plan, it’s totally fine for them to want to limit the scope of their exposure to the most serious cases. And frankly, you probably don’t need self defense insurance, for lack of a better term. If we’re only talking about any non deadly force event. So makes perfect sense. No problem with it. I get it. They only cover deadly force cases of self defense. But here’s the problem. If that’s all you cover, and that’s fine. Well, then you need to make sure you’re providing enough coverage. So They limit their exposure on what they’ll pay for coverage of a deadly force self defense event to what they call their criminal defense occurrence limit. And again, there’s nothing wrong with setting this kind of limit folks. And they’re very explicit about what the limit is I’ll share that information with you in a moment. They tell you it’s a very for different levels of membership. It’s a very specific dollar amount, they have a very nice chart, great, no problem set a limit. It’s not unreasonable for them to do that by any means. But the limit they set is ridiculously low, folks for considering we’re talking exclusively deadly for self defense events. Meaning you may have killed somebody, right, you may have killed somebody in self defense, and now you’re charged with murder or manslaughter. I had to blow up this last couple of slides because otherwise they wouldn’t have been readable. So it’ll cover my face here but the elite level of membership for us CCA, that’s their highest level of membership $564 a year, although I think it’s actually priced monthly, but the total four years $564 their criminal defense occurrence limit. This is a case in which you might have killed somebody is $250,000. Folks, then they have this money they offer for other things, incidental expense, cost of bail, but they tell you explicitly all that comes out of the $250,000. So if they have met their obligation for the $50,000 bail, then you only have $200,000 left for your defense folks. And in any case, even 250 is not enough. If you’ve been charged with murder or manslaughter. As many of you may know, uscca is currently being sued in federal court by one of their members because uscca decided they didn’t want to keep paying the members benefits. That members is still pre trial still hasn’t gone the trial or at least hadn’t gone to trial when the when the lawsuit was filed when uscca decided to stop paying her benefits. And when she filed her lawsuit, she was already $150,000 into the case in terms of legal expenses. And she hadn’t she was still months from going to trial. That’s how much money you can spend pre trial. I recently consulted on the case earlier this year a young woman had killed somebody in self defense. She’d been charged for that killing. I was brought in just before the trial was about to begin. Thankfully, we got the charges dismissed. That’s an entirely different story. But she was already into her legal defense expense for $130,000 and hadn’t yet gone to trial. $250,000 is not a lot of money, folks, especially when it’s getting reduced by these other Monetary Funds. These are this is not extra money. This is coming out of the 250. Also, what happens if you go to trial, and you get a hung jury, which is a win from the defense perspective, at least you’re not convicted, but now the prosecution Besides, they’re going to try you again. How much of this 250 is left for a retrial? I’ll tell you not very much, if any, it’s likely been fully exhausted if you’ve gone through a murder trial, so there’s nothing left. What if you’re convicted, but you have good reason to believe that you were convicted because of legal errors at trial, reversible errors of trial and you want to appeal your conviction. There’s no coverage for that. Or if there is it again has to come out of the same one bucket of money. It’s just not enough. Now, again, full disclosure, CCW safe is a sponsor of law, self defense, as I mentioned, but there’s a reason we picked them over others folks.

And here’s just some comparisons. So the highest level of CCW safe is their ultimate plan. So I’m comparing it to the highest level of uscc. A their elite plan, the CCW safe plan is 500 bucks a month, instead of 564 bucks a month. All right in the same ballpark, but still, it’s less expensive. Right, it’s not more expensive. How much money is allocated for your criminal defense? There’s no limit folks. How much for incidental expense like expert witnesses? No Limit, folks, how much for bal? Well, it’s not $50,000. It’s a million dollars. And, folks, if you’ve been charged with manslaughter, your bail can easily be hundreds of thousands of dollars. It’s not going to be 50,000. If you’re charged with murder, you might not get bail at all. I mean, if you’re charged with murder, the bail could be a couple million dollars, who knows, but at least a million gets you a lot closer to whatever it is then $50,000 does. So now having said this, have this chart up here. I’m still not telling you that for everybody CCW safe is the better choice because there could be none of these plans are perfect. I think CCW safe has fewer defects for me personally, which is why I chose it but the defects they do have may make it inappropriate for you. For example, CCW safe does not want to cover domestic violence type situations. If that’s a risk factor for you, then CCW safe is probably not the best choice. But I think all I’m trying to do here is I want people to make an informed decision, understand what they’re buying what they’re paying for when they spend these hundreds of dollars a year. And make sure it’s actually fit for purpose because when I look at these limits under the elite membership for uscca, specifically for only deadly force defensive events, which means you might have killed somebody, they are just completely inadequate. And by the way, this 499 a year for CCW, safe again, if you use the discount code, LSD 10, you can save 10% off even that 499 which makes it about 100 bucks cheaper than the highest level uscca plan with much broader coverage folks, vastly greater coverage. Okay, let’s see. I think At the end for today’s show, we’re getting close to an hour. I will take a moment to scroll through the comments. So see if I can answer any questions there as time permits. In the meantime, I’m going to leave up this little notice remember tomorrow, folks tomorrow. Tomorrow, we’ll be wrapping up getting close to the end of the course in 24 hours is our law, self defense level one class live online. Lila, teach a couple of these a year, it’ll be months before we teach another one. This is the world class education and Self Defense Law in a tactical practical form, so that it’s actionable for you so you can be both harder to kill and harder to convict. It’s tomorrow 9am eastern time is when it starts. Sorry, 9am Mountain Time is when it starts. It’s about a seven hour class, how long it runs exactly depends. It’s live and I answer questions. So a lot of it depends on how many questions there are. There’s plenty of opportunity for q&a using the webinar platform. So if it’s at all of interest folks now would be today is when you have to sign up law self defense comm slash live online taking place tomorrow, Saturday, July 25 2020. Okay, now let me scroll through the questions here First I will do the questions we prioritize always the questions from our membership who are if your last self defense member, I do encourage you to watch the show. Through your membership dashboard. We have a a members only video feed there with chat so we can get to your questions in a prioritized manner. Let’s see.

Scott, he says he’s done the level one DVD set. We also offer this course as a DVD and recorded online streamed course, folks. He’s looking forward to the live online tomorrow. Somebody says They signed up. They didn’t get any information. We’ve been emailing on information all week, folks in terms of signing into the webinar. So if you haven’t gotten it please message send an email to support at law self defense calm. Maybe there was a typo in your email when you registered. We’ll get that fixed right away support at law self

Okay, let me take a look at the Facebook comments. See,

Dave Rosenfeld says keep advertising and folks are going to walk away. So walk away, Dave. Okay. Let’s see.

Yeah, Mike mentions with the laser beam attacker ballistic glasses you can wear that protect against later. I would certainly think so. And I would certainly expect they will rapidly become standard equipment for any officers, local or federal, who are expected to have to engage with violent protesters.

Let’s see. Next time, can I include Illinois in the discussion? Well, there’s 50 states, and I can’t include 50 states in every class. So in every one of these shows, our level one class, by the way, is that we do make it state specific for every class, every state, represented by a student in the class. For these shows, folks, we just pick and choose bits and pieces of law from different states for illustrative purposes. It’s impossible for us to be state specific in a generalized show that’s going out to people from all 50 states. So yeah, Joseph c says CCW safe is not available in Washington. Yeah. Nothing is Available in Washington in terms of these legal service memberships that promise to pay your legal, your legal expenses, if you’re in events, they call it murder insurance, Washington, a couple of other states have made it illegal. Not much to be done about that. You can still enroll in our own law self defense Platinum protection program if you wish. And but of course, that covers only my legal expenses. It doesn’t cover your legal expenses generally. So it’s usually something we described as being complimentary to a CCW safe kind of plan. Not a replacement for that kind of plan. But if the if the plan itself is not available at all, maybe all the more important to make sure that at least my legal expenses are covered. And again, you can learn more about that program at law self defense comm slash plan Platinum Okay, folks, that’s about it again, folks, this is our news and q&a show. We do this every week. Today, Friday, we had a little bit of a glitch this week. Normally we do these every Thursday on 4pm. Eastern time we do it as a Facebook Live and as a live transmission for our members at law self defense comm at the member dashboard, and we will also leave a recording of this as a replay on Facebook at our membership site. It takes us a couple hours to do the post production work on the recorded replay version, but we will have it up later today. In the meantime, just want to remind all of you be carried again so you’re hard to kill. That’s certainly why I carry a gun. Please you owe it to yourself and your family to also make sure you know the law so that you’re hard to convict. Okay, folks, I’m attorney Andrew Branca for law self defense. Stay safe.

1 thought on “News/Q&A Show: July 24, 2020”

  1. Using deadly force in self defense during the commission of a felony. Here is Missouri the statute bars you from claiming self defense if you are attempting to commit, committing, or attempting to escape after committing a felony. The jury instruction instructs the jury that is must be a felony other than the felony charged. I don’t know what the case law, if any, is on the subject. But the kicker is, self defense is not a defense to second degree felony murder. The Mo Supreme Court just recently upheld a second degree felony murder conviction in a case where the jury found the homicide to be justified self defense. The defendant was not charged with or convicted of the underlying felony either, he simply admitted the underlying felony during his testimony. The jury instruction charged 1st degree murder, second degree conventional murder, and second degree felony murder and a self defense instruction was given and the instruction explained that self defense was not a defense to the second degree felony murder charge. The jury found the homicide was justified self defense and the defendant was guilty of second degree felony murder. Some of these prosecutors are pretty sharp when it comes to finding a way to put you away.

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