Welcome to this episode of our ONLY open-access content, our weekly News/Q&A Show. A transcript of the show is available below my signature, for those who prefer to read rather than view. Also, Law of Self Defense Members can access the show in audio form in the members-only Law of Self Defense Podcast.
Be sure to mark your calendar to never miss a News/Q&A Show–they air LIVE every Thursday, at 4pM ET of the Law of Self Defense Members Dashboard, our Facebook page, and our Youtube channel, and playback recordings are available on each of those platforms.
A transcript of the show is available below my signature, for those who prefer to read rather than view. Also, Law of Self Defense Members can access the show in audio form in the members-only Law of Self Defense Podcast.
CCW Safe: Our Sponsor
Now before we jump into the substance of today’s show, I do, of course, need to mention today’s sponsor, CCW Safe, a provider of legal service memberships, what many people mistakenly call self-defense insurance. They in effect promise to pay their member’s legal expenses if their member is involved in a use of force event.
And those expenses start big and get bigger, fast, folks. For example, aggravated assault, where you were threatened, you displayed your gun, you didn’t fire a shot didn’t hurt anybody. You’re looking at a retainer to your lead counsel in the order of $30,000 to $50,000. And that’s for pre-trial work, folks, that’s not for going to trial. If it’s a murder, case, manslaughter or murder, you’re easily looking at $100,000 or $200,000 pre-trial expense, and just multiply that for the trial.
So, if you don’t have that kind of money stuffed in your mattress, it can be useful to have a financial partner standing behind you to make sure you have the resources you need to fight the legal battle, the way you want it fought—as if your life depended on it. Because, really, it does. And that’s what CCW Safe offers to do.
There are several companies out there that offer similar services. I’ve looked at all of them, as you might imagine, and I found that CCW Safe is the best fit for me personally. I’m personally a member of CCW Safe, my wife Emily is personally a member of CCW Safe.
Whether they’re the best fit for you is something only you can decide. But I do encourage you to take a look at what they have to offer by clicking the image or link below:
In today’s News/Q&A Show for November 5, 2020 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:
- Does LOSD Plan Any Courses or Instruction on LEOSA?
- Consequences of Being With Friend Who Won’t Take Safe Avenue of Retreat?
- Why Do We Even Need Stand-Your-Ground?
- Which of the Five Elements Are Most Often A Problem for Defender?
- Constitutional Right to a Speedy Trial: How’s It Work?
- Coyote Attack While Walking Dog: Shoot or No Shoot?
Enjoy the show!
Two-Week Law of Self Defense Trial Membership: Just 99 cents!
If you enjoy this kind of content and would like to get more, I’ve got great news—you can try out Law of Self Defense Membership for two weeks for a mere 99 cents—even better, in the unlikely event you decide it’s not for you during those two weeks, let us know and we’ll refund not just 100% of your money, but 200% of your money. That’s a negative risk offer, folks.
Really, it’s hard to imagine why you anyone wouldn’t try out Law of Self Defense Membership for 99 cents for two weeks.
Now, after the two-week trial, membership does go to the normal cost, which is still a very low, ~33 cents a day, less than $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.
Plus, as a Law of Self Defense Member not only do you get access to our great Law of Self Defense content, you also get commenting member’s only chat and commenting privileges at the Law of Self Defense web site, so you can continue to participate and learn past the end of any LIVE show.
You can learn more about our 99-cent, 200% money back guarantee, two-week membership trial by clicking the image or link below:
NEW & FREE: Law of Self Defense Mini-Course
The other big piece of content we put out. So far this week is something brand new from us. It’s a free mini course on Self Defense Law. Many of you watching this show have taken our full day Law of Self Defense advanced course seven hours of instruction. We’ve taught it personally, hundreds of times all over the country. More commonly, these days, we teach it once or twice a year as a webinar, we just had a webinar advanced course a month or so ago. That’s a full day course, seven hours and it’s a fire hose of information. It’s obviously a big commitment of everybody. And of course, it costs money to attend that course, what we’ve done is we’ve created a very concise, abridged version of that course, a four module mini course on many of the most important topics covered in that full day course, each module is about, I think they average 10 to 15 minutes in length. So it’s something just under an hour’s worth of content. But it touches on the peaks of information, the mountain tops of information you need to know obviously, we can’t go into the same depth in an hour that we can in seven hours. But it provides you with the most important pieces of information you need to know.
And then it offers you the opportunity to dive deeper at considerable savings if you’d like to dive deeper with our more advanced courses, but the mini course itself is absolutely free. You can take advantage of that by clicking the image or link below:
OK, folks, until next time …
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict!
Attorney Andrew F. Branca
Law of Self Defense LLC
Hey welcome, folks. Welcome to the Law of Self Defense Show for today. That is Thursday, November 5, 2020. I am Attorney Andrew Branca. Thank you very much.
I always appreciate that again, all of that applause and attention. Thank you very, very much. Come on in folks, come on in. We’re going to get started in just a moment, just waiting for a few minutes. Just a couple moments, I should say for more people to filter into the live show.
If you are a Law of Self Defense Member, I would encourage you to watch the show on the membership dashboard over at http://lawofselfdefense.com/ because your comments and questions there will get first priority. Otherwise, you can watch live on Facebook, the Law of Self Defense Facebook page, we’ll get your questions as best we can. If you are watching live on Facebook, if you could please hit that share arrow hit that like button thumbs up, that’s always greatly appreciated, helps us grow the Law of Self Defense community.
This is the only non-member content we produce every week. Open Access, you don’t need to be a member to access our weekly News/Q&A Show. This is our effort to produce some content to help grow the Law of Self Defense community. So if you think this is worthwhile and interesting, valuable information that I would ask you to show your appreciation, not necessarily by spending any money, but just let other people know what you think of the show and give them an opportunity to get the same benefits as well.
Today is Thursday, November 5 2020. For people who can’t get here on time, for whatever reason, scheduling conflicts to watch the live show, which we do every Thursday 4pm Eastern time. We do a recorded replay of the show up as well both at the Law of Self Defense Blog, at http://lawofselfdefense.com/blog, simple enough, or on our Facebook and YouTube pages as well.
Of course I’m not there, answering questions. Those are just the recordings. So if you want your questions answered, either ask them live, email them to us for our consideration to firstname.lastname@example.org.
Or if you’re a platinum level member of Law of Self Defense, you have your Platinum level membership form on your membership dashboard to submit us questions. Those are the only questions we guarantee answering including privately if that’s your preference, just let us know when you complete the form.
Okay, folks, it looks like we got a good group of people coming in. I’ll go ahead and get some housekeeping out of the way before we jump into the substantive news and questions. And of course, I couldn’t find my reading glasses before the show but let me see if I can get word to contribute by making the text big enough for these increasingly aging eyes to read it Here we go. So the first mention I will make is of our sponsor.
Today’s Sponsor: CCW Safe
So before we jump into things, of course, I feel obliged to mention our sponsor, our sponsor is CCW Safe. They are providers of legal service memberships. So many people mistakenly call self-defense insurance in effect, they promise to pay their members legal expenses if the members involved in the use of force event. And those expenses start big and get bigger, fast, folks.
Imagine a scenario in which you feel threatened, you present your gun to deter what you believe to be an attack upon you. The bad guy runs away, no shots are fired, nobody’s injured. But now you find yourself charged with aggravated assault with a firearm good for 10 to 20 years felony time in most states. If you need to retain an attorney for such a charge, and you do, you’ll find that your retainer to that attorneys on the order of 30 to $50,000. It’s a lot of money, folks. And that’s not for trial. That’s for pre-trial, expensive trials.
On top of that, if you have had to use your gun and you ended up killing your attacker, you’re looking at a killing charge like manslaughter or murder. It’s very easy to go through $100,000 or $200,000 pre-trial. And again, the trial costs it’s just on top of that.
So unless you have that kind of money stuffed in the mattress just in case you have to defend yourself it can be helpful to have a financial partner standing behind you to provide the kind of resources you need to fight that legal battle the way you want it fought as if your life depended on it because for all practical purposes, your life depends on it folks winning that legal battle.
CCW Safe is one of the organizations that offers this kind of service. There are others out in the marketplace. I’ve looked at all them as you might imagine and found that CCW Safe is the best fit for me personally, I’m a member of CCW Safe my wife Emily is a member CCW Safe, whether they’re the best fit for you is something only you can decide. But I do encourage you to take a look at what they have to offer by clicking the image or link below:
And if you do decide to become a member, you can save 10% off your membership with them. At that URL http://lawofselfdefense.com/ccwsafe using the discount code LOSD10. That’s LOSD for Law of Self Defense and the number 10, when you sign up as a CCW Safe member.
THIS WEEK! SALE 60% OFF: “Lawful Defense Against Rioters, Looters & Arsonists” Course!
Another thing I wanted to mention to all of you is a special Election Day Sale that we had put together. But the election seems not to be over. So we’re continuing this promotion, probably not past this week. But these are hectic times. And, of course, we didn’t have an opportunity to mention it in our last News/Q&A Show. And I know for many of you that’s the only part of our content you get, because you’re not yet members of Law of Self Defense, shame on you.
But the special is on our most popular course of 2020, which is our course on “Lawful Defense Against Rioters, Looters and Arsonists.” You can get 60% off that course, This week only, the best-selling course 2020 “Lawful Defense Against Rioters, Looters and Arsonists” discounted 60% by clicking the image or link below:
TRIAL MEMBERSHIP: Just 99 cents!
And if you’re not yet a Law of Self Defense Member, meaning this is the only content you’re getting from us every week, I have to ask you, why not? It’s dirt cheap. It’s only about 33 cents a day under $10 a month is a normal cost for standard Law of Self Defense Membership. And you can try it out for two weeks for just 99 cents.
And even better than that if you decide you don’t like it in those two weeks, and you cancel, just ask us for your money back. In fact, we’ll give you 200% of your money back. So it’s a negative risk proposition folks.
So I do encourage you to give it a shot at by clicking the image or link below:
And the final thing is we do have something absolutely free.
NEW & FREE: Law of Self Defense Mini-Course
The other big piece of content we put out so far this week is something brand new from us. It’s a free mini course on Self Defense Law.
Many of you watching this show have taken our full day Law of Self Defense advanced course seven hours of instruction. We’ve taught it personally, hundreds of times all over the country. More commonly, these days, we teach it once or twice a year as a webinar, we just had a webinar advanced course a month or so ago. That’s a full day course, seven hours and it’s a fire hose of information. It’s obviously a big commitment of everybody. And of course, it costs money to attend that course.
What we’ve done is we’ve created a very concise, abridged version of that course, a four module mini course on many of the most important topics covered in that full day course, each module is about, I think they average 10 to 15 minutes in length.
So it’s something just under an hour’s worth of content. But it touches on the peaks of information, the mountain tops of information you need to know obviously, we can’t go into the same depth in an hour that we can in seven hours. But it provides you with the most important pieces of information you need to know.
And then it offers you the opportunity to dive deeper at considerable savings if you’d like to dive deeper with our more advanced courses, but the mini course itself is absolutely free. You can take advantage of that by clicking the image or link below:
It costs absolutely nothing folks.
Okay, folks, let’s dive into the News/Q&A, which is of course our real purpose for being here today. Give me just a moment again to supersize my text since I was not able to find my old man reading glasses, and here we go. So a couple things in the news one, and of course a lot of the news has been buried by all the election stuff, folks, which of course has not yet been a settled issue, I suppose. But here we’re going to focus not on politics but on Self Defense Law.
So one piece of news that I think many people might have missed is about Kyle Rittenhouse. So this past Friday, October I guess it was October 31, Halloween, appropriately enough, there was an extradition hearing for Kyle Rittenhouse.
So of course Kyle was involved in his self-defense shooting in Kenosha, Wisconsin, where he shot three people in self-defense by all apparent appearances, perfectly lawful self-defense, has been charged with a wide variety of crimes in Wisconsin, including several degrees of killing crimes.
And he happened to live conditions on the border, Wisconsin he happened to live just over the border in Illinois. He tried to turn himself into police the night of the shooting, but they were busy handling all the riots and looting and arson that was taking place. So ultimately he ended up going home to Illinois about 15 miles over the border and where ultimately, he was arrested there for the charges that were brought against him in Wisconsin.
And now he’s of course being held in custody in Illinois. Wisconsin wants to try him on these criminal charges they brought against them. So he needs to be extradited from one jurisdiction to the other jurisdiction from Illinois to Wisconsin, if that’s going to happen.
And his legal team, including john Pierce, decided to challenge this extradition challenges process. And they made their argument to the court in Illinois on that issue on Friday. And I’m sorry to say that unfortunately, they, the court ruled against the Rittenhouse legal team. on that issue, the court said Wisconsin could have him.
The legal team pretty much instantly announced that they were going to appeal that decision. And I guess there was a presumption on many people’s part that Kyle would stay in Illinois while that appeal was taking place. That did not happen. The denial, or rather, the affirmation of the extradition request from Wisconsin was given effect pretty much immediately. So on Monday, Kyle was handed over at the border to Wisconsin authorities and he’s now in prison in Wisconsin, no possibility of bail.
So he’ll stay there pending his trial, presumably unless there’s some change in his bail status. Now, we should all be aware upfront that the difficulty of challenging and extradition requests from of one state to another state is absolutely tremendous. Because the threshold the legal threshold that has to be met, in order for extradition to be granted is barely more than zero, even when a state demanding extradition of a criminal suspect even when they’ve failed to articulate probable cause for a mere arrest of that suspect. extradition requests are still honored.
This is an argument not really between the defendant and the requesting state. It’s an argument between the requesting state and the state that has the defendant in custody. It’s not really in any state’s interest to deny extradition except in the most egregious of circumstances and the way the legal standard has been set over the years, and the legal standard, frankly, it barely exists at all.
So it certainly no knock on the Rittenhouse legal team that the extradition request by Wisconsin was honored. I would have been shocked if the reverse had happened. So not a surprise. Wisconsin wanted Rittenhouse, Wisconsin has Rittenhouse and we should assume the trial of Kyle Rittenhouse is going to proceed as scheduled by the authorities.
What else do we have in the news? There really wasn’t much going on. Again, everything was pretty much washed out by the election proceedings, the ongoing election proceedings.
By the way, I see Gary True in the comments here on Facebook. Hey, Gary. Gary’s a Law of Self Defense Member and attorney. I believe an attorney, Gary, I’m correct about that, right? I’m not making a mistake. One of the many attorneys who’ve been through the Law of Self Defense process, he left some recent comments on our one of our blog posts that were very informative.
And folks, that’s another advantage of being a Law of Self Defense Member that I probably should mention more. Because it really is a key part of the added value is what you’re getting is not just the insight, the expertise of Attorney Andrew Branca, you’re getting the insight of expertise of a lot of world-class, self-defense instructors, virtually all of those who are in the Law of Self Defense community, have been through our Law of Self Defense Instructor Program, which is a law school-level course of instruction on use of force law.
Yeah, Gary mentions he is an attorney. I was 99%, sure. Sorry about that, Gary.
But also a lot of attorneys who are in the Law of Self Defense Community, and frankly, folks, those attorneys bring things to the table that I don’t. And that’s because I don’t take clients directly. My work is really as a legal consultant bringing my very narrow, but I like to think deep, area of expertise to bear on individual cases at the request of the lead counsel in those cases.
But those lead counsel, they are the process experts for sure, in how to execute on these trials. They’re doing everything that’s procedural. They’re going to court, they’re making the arguments. They’ve done it many, many times before, particularly within the context of that particular jurisdiction, those judges those procedures, nobody’s going to know more about that stuff than they do folks.
So they bring an incredible value to the table that would not exist, but for their very generous contributions to our community, at Law of Self Defense, and they do it for free folks, and it’s just it’s fantastic insight and information. I’m not aware of any other source, we can get it in that kind of aggregated way.
So thank you to all the attorneys, all the firearms instructors, all the law enforcement, folks in the Law of Self Defense community who bring their particular expertise and insight to the table to complement my own humble offerings.
Gary says he learned a lot more about self-defense law in our Instructor Program than in law school. Yeah. Well, we learned a lot more about self defense while building that Law of Self Defense Instructor Program than I was taught in law school for sure. I mean, I went through law school quite a few years ago now. If we spent five or 10 minutes on Self Defense Law in first year criminal law that was about it.
Art Joslin, who is often here on for our live show? I’m not sure if he’s here today. He went through our Law of Self Defense Instructor Program as basically a firearm self-defense instructor. And after that experience, decided he was sufficiently motivated., he and I sat over dinner about it. I think it was a at SHOT Show or one of the NRA annual meetings. And he told me, he’d made the decision to actually go to law school, after having been through the Instructor Program course. And I believe he’s either complete or in his last year of law school now ,already doing legal work for, I believe, a prosecutor’s office in some capacity.
And, man, it’s just it’s fantastic to see people pursue those dreams. Not a spring chicken, Art. He’s probably about my age, but fantastic to see him pursuing that interest, that dream of actually going to law school, becoming an attorney. It’s fantastic.
All right, so let’s me dive into the actual questions that were sent in for this week. We generally start with our Platinum member questions first. That’s one of the benefits people get from being a Platinum level member.
Does LOSD Plan Any Courses or Instruction on LEOSA?
But we do have one question, I kind of want to check off the list right away. And that is someone asked whether or not we at loss of defense plan to do any kind of supplement material or course material focus specifically on LEOSA. LEOSA is an acronym, an acronym for Law Enforcement Officer Safety Act.
This is a federal law that’s intended, generally speaking to allow active and retired law enforcement officers who meet a certain set of conditions and pass a shooting test and so forth. To be able to conceal carry, regardless of what state they happen to be in, even the severe gun control states like New Jersey, Massachusetts, New York, California.
And unfortunately, it appears to be the practice of many of these states that although they’re supposed to permit these qualified, active and retired law enforcement officers from carrying in their states, they still managed to make it extremely difficult, legally risky, risky, possibly very costly, if they’re, in fact discovered to be in concealed possession of a gun in those jurisdictions, without a license from those jurisdictions, even though this LEOSA federal act should cover them and privilege them to carry concealed in those states.
So that question is, is Law of Self Defense planning to do any kind of coursework any kind of instructional work on LEOSA? And the answer is no, not because I don’t think it’s worthy of it, but because it falls outside our wheelhouse.
What we do here, folks is use of force law, we don’t do gun law, we don’t do weapons law, we don’t do permitting law. We don’t do Second Amendment law, not that there’s anything wrong with those areas of the law. But it’s not where we’ve chosen to focus our expertise.
There are other places you can go to get that kind of level of expertise. NRA may be helpful, Second Amendment foundation may be helpful. I’m not sure if Armed Citizen Legal Defense Network does that kind of work. They’re certainly have the expertise. I mean, they’re thick with law enforcement officers active and retired, I guess, mostly retired on their board. But certainly, they would have far more expertise on LEOSA than anything I could bring to the table.
So when you come to Law of Self Defense, folks, what we’re going to be able to offer you is some degree of expertise on use of force law. When can you or can’t you use force in defense of yourself, in defense of others, in defense of family.
But not weapons law. It’s simply because it’s too too complex, too varied across the states to subject to subjective decision making by authorities, and so forth.
Consequences of Being With Friend Who Won’t Take Safe Avenue of Retreat?
Okay, so with that out of the way, let’s go to our first Platinum member question, who chose not to identify himself, but he’s from California. And he asks a hypothetical, he says, I’m with a friend, a wife, a girlfriend, etc. Hopefully not at the same time anonymous, that would be awkward. Well, it’s California, so maybe it won’t be awkward. I don’t know. But in any case, he’s out with a friend. We encounter aggression. I see retreat as an option, but my friend does not want to retreat. If I stay, it could turn out bad. And if I retreat, I effectively abandon my friend. What’s the best course of action there?
Well, of course, I can’t tell you what the best course of action is, but I can discuss the legal issues around that dilemma.
The first thing is you’re in California. So California is a stand your ground state. There’s no legal duty to retreat in California. If you look for the California stand your ground statute, you won’t find it because it doesn’t exist, because there’s more than one way for something to be law. One way is statutory, the legislature passes a statute.
That’s not what happened to California, California has been a standard ground state since the late 1800s, at least, because of case law Court made law, the courts have simply always recognized that there’s no legal duty to retreat in California before you can otherwise lawfully defend yourself from an act of aggression. And it’s still found rather prominently in California’s ridiculously long jury instruction on self defense. That’s CALCRIM 505 I think if you point your browser to http://lawofselfdefense.com/505, that jury instruction will pull up. It covers lots of issues around use of force and self-defense. One of those is whether or not there’s a duty to retreat, and the jury in California is explicitly told that not only is the defendant not required to retreat, he may, if necessary for her safety, pursue his aggressor. So it’s a pretty aggressive standard for self defense law.
Now, are there circumstances even in standard ground states where retreat might be arguably required? Sure. Even in standard ground states, even in hard standard ground states where that have very firm stand your ground laws if for example, the prosecutor could successfully argue that you might have been the initial aggressor in a confrontation? Well, then you’ve lost self-defense because you’ve lost the element of innocence, unless you regain self-defense by, for example, withdrawal and communication.
So if you can be made to look as if you were the initial aggressor, or heaven forbid, you were actually the initial aggressor, you’ve In fact, taken upon yourself a legal duty to retreat before you can lawfully use force and self-defense as a consequence of your act or purported act of initial aggression. And that’s true, even if you’re otherwise in a stand your ground state.
But for purposes here, that’s not part of the high hypothetical being an initial aggressor. We’re presuming not. So normally in California, there’d be no legal duty to retreat anyway. Now, could a prosecutor in California still argue that? Sure, there’s no legal duty to retreat, but you know, a reasonable person would have, or the possibility of safe retreat existed, which suggests that the threat you were defending against was not in fact, eminent.
Yeah, they can make those arguments, even though there’s no legal duty to retreat, they can still argue that a reasonable person would have retreated under the circumstances, your failure to do that was unreasonable. Therefore, the jury ought to deny yourself defense.
So folks, if, regardless of what state you’re in, if you have a safe avenue of retreat, and you can take advantage of that, rather than being in a position where you have to use force, especially deadly force against another person, you’re crazy if you don’t take advantage of that opportunity, because of the viability of these arguments, even in stand-your-ground states.
So here, the real question is, you’re with someone else? Let’s pretend there is a legal duty to retreat in the hypothetical jurisdiction where this is taking place, you see a safe avenue of retreat, but the person you’re with does not. What can you do there? What are the implications there?
Well, you’re generally not required to leave another person behind. But that argument gets rather attenuated, depending on the nature of the relationship with the other person, you wouldn’t, for example, be required certainly to leave a child behind child can’t really make their own independent decisions anyway, a spouse wouldn’t be expected to leave a spouse behind.
A girlfriend, maybe, a friend, a stranger, there’s a safe avenue of retreat, and you get into a deadly force confrontation in a jurisdiction that has a duty to retreat, when you could have safely retreated, it’s not going to be a very compelling argument that ,Well, I was with my buddy, and he didn’t want to leave.
No, folks, you’re responsible for your own conduct under your own circumstances. And there’s a safe avenue of retreating the legal duty to retreat and you don’t take advantage of that before you use especially deadly force and self-defense, you better be prepared for the prosecutor to come at you hard on that issue, because that deadly force didn’t have to happen.
By the way, why isn’t your buddy defending themselves? If he thinks it’s necessary to be in that fight? Why are you their armed saviour under that circumstance? If they want to stay and get in a fight, why isn’t that on them?
If you in fact have a safe avenue retreat and they could retreat? Why are you making your life dependent on their arguably poor judgment? I don’t think that’s a prudent thing to do.
Listen, if they want to get in the fight, they brought their own gun, well, I guess more power to them, they can take on those legal risks and physical risks of getting in a deadly force confrontation.
I mean, if it’s a child, if it’s a wife, okay? Maybe you feel morally obligated to take on those risks. Maybe if you end up getting convicted for having killed someone and sentenced to prison for the rest of your life, without no possibility of early release, it was worth it because you genuinely believe that otherwise your wife or your child would be dead. Okay, I can see the argument.
But a friend, are you going to jail for the rest of your life without possibility of early release because your friend did not want to retreat safely from a confrontation? I would not be inclined to do that.
Why Do We Even Need Stand-Your-Ground?
By the way, this touches on another issue a rather subtle issues self defense law that was brought up by Will Parker. I saw Will in the comments earlier. I mentioned Will a lot, partly because he’s always here for the show. And commenting, but also because he’s a fantastic self-defense instructor, firearms instructor, great shot in his own right. And a graduate of our Law of Self Defense Instructor Program. He teaches primarily up his home base is up in the Kalispell Montana area, almost Canada, not quite in Canada. He’s hosted me personally many times at his shooting facility there up in Kalispell, beautiful country, by the way.
And a great instructor great all around guy. So he sent a question that was presented to him by someone who was a federal law enforcement officer and one of his classes. And the Federal officer was basically saying, Well, why do we even need stand your ground laws.
Now, keep in mind what stand your ground and try and stand your ground basically says that if you would otherwise have had a legal duty to retreat, before you can use force and self defense, you’re relieved of that legal duty to retreat, understand your ground, assuming you would otherwise qualify for lawful self defense now, state what stand your ground is not is it’s not some weird alternative way of arguing self defense.
There’s five elements to a claim of self defense up to five innocence, eminence, proportionality, avoidance and reasonableness. And by the way, folks, if anyone here today is new enough that they don’t know what those five elements are, please do yourselves a favor, download our free infographic, it doesn’t cost a penny, it provides a brief description of each of those five elements, these five elements are cumulative, they must all be present for your claim self defense to be valid, unless for some legal reason one or more than might be waived. That happens as well. The good news is there aren’t 500 elements of a self defense claim, there’s not 50, there’s really only five.
And if you don’t start with this fundamental framework, foundational understanding of these five elements, you can’t possibly know how or why Self Defense Law is being applied the way it is. So I urge you if when I speak of these five elements, if you’re unfamiliar with that concept, please click the image or link below and download that infographic.
It’s absolutely free, doesn’t cost a penny. I don’t have time, unfortunately, in every show to go through a detailed explanation of the five elements. Although you might take advantage of the free mini course we now have that I mentioned earlier at http://lawofselfdefense.com/freecourse, because we do provide an abbreviated explanation of the five elements there, you might find that helpful.
So back to the question. So why do we even need standard ground? Why do we need to be relieved of a legal duty to retreat, because and we’re talking here in a deadly force type of confrontation.
Because one of the other elements of self defense besides this element of avoidance, which stand your ground would relieve you of, is the element of imminence. In other words, the threat you’re defending yourself against must be either actually occurring or immediately about to be current, occur otherwise unavoidable, it must be an imminent threat. You don’t have to wait to get shot, you don’t have to wait to get stabbed. But you must be defending yourself against the shooting or stabbing or other deadly force threat that’s either in progress. So someone’s firing at you or trying to strike you with a knife or swinging the bat at your head, or they’re immediately about to they’re going for their gun, they’re going for the knife, they’re bringing the bat up to a striking position, that kind of thing.
Well, if you’re if you’re genuinely under imminent threat, isn’t it true that then safe retreat must be impossible under those circumstances? And the answer from a practical real world perspective is, yeah, if you’re genuinely under an imminent threat, safe retreat, probably is almost impossible.
So why do we even have it [stand-your-ground]? Well, we have it because, again, keep in mind, what stand your ground does for you stand your ground, all it does is relieve you of an otherwise existing duty to retreat. It takes that one element of the five element of avoidance off the table and met what many people were seeing happen in prosecutions is we’d have a case.
And remember, none of these elements are absolute right. They’re all on a spectrum a continuum of Do we believe this element is present not present. It’s not a or b. It’s we’re in this continuum. Do we think it’s been disproven beyond a reasonable doubt? Or do we still have a reasonable doubt that it exists, because the burden is on the prosecution to disprove one or more of those five elements beyond a reasonable doubt. So we’re on a continuum.
And there were a lot of cases where it appeared to observers that a defendant was in fact, the non aggressor. He was the innocent party in the confrontation. So he had the element of innocence. He was facing an imminent threat, a threat that appeared about to immediately be about to happen. He used no more force than was appropriate under the circumstances. And his perceptions, his decisions and actions appear to be those of a reasonable person both subjectively and objectively. So we have the elements of innocence, imminence, proportionality and reasonableness.
And they were getting convicted, despite the fact that they had all that on the table in their favor, because the prosecutor was able to convince the jury that they had a safe avenue of retreat that they didn’t take advantage of. And the thinking became in the majority of states that are stand your ground states, because about three-quarters of states, are stand your ground states either by statute, or like California by long standing case law.
The thinking was, Hey, if you’re the innocent party of an imminent unlawful attack ,use no more force than necessary and everything you do is reasonable, we’re not going to put you in prison for the rest of your life because a prosecutor convinced the jury that you might have been able to safely retreat rather than defend yourself.
And of course, in some states, the thinking is, well, no, no true man should have an obligation retreat anyway, if he meets those criteria, innocence, eminence, proportionality, and reasonable. In fact, in some states, Kentucky comes to mind, the stand your ground laws have traditionally been called true man laws, true men would not have a duty to retreat from an act of unlawful aggression.
Now, what happens is, when we look at especially good guy cases of self defense, almost any time there’d be a genuinely imminent threat of deadly harm, safe retreat would be impossible. I think most of us would agree with that.
But most Self Defense Law is not based on good guy cases of self defense folks, most of it’s based on bad guy case, cases of self defense, and a bad guy cases of self defense. There are vulnerabilities on each of these five elements innocence, eminence proportional proportionality, avoidance and reasonableness.
And, to the extent there’s elements available for a prosecutor to attack, he will attack them. It’s why prosecutors are generally against stand your ground laws, most prosecutors are going to say, hey, look, if I think it was a reasonable case of self defense, I’m not gonna prosecute, if I’m prosecuting, it’s because I don’t think it was a reasonable case of self defense. And I want the chance to prove that criminal guilty, because they could have taken the safe every retreat rather than have killed their victim unnecessarily. That’s how the prosecutors thinking.
So the prosecutor wants every point of potential attack that he can possibly get in his favor. To the extent there can be five points of attack, meaning including the element of avoidance, rather than for excluding the element of avoidance, the prosecutors going to want that. And then a lot of bad guy cases of self defense, marginal cases of self defense, if they’re self defense at all. avoidance becomes a very convenient point of attack for prosecutors, because it’s often a fact narrative in which there was in fact, the safe avenue of retreat.
There was a an escalating argument, it wasn’t simply someone stepping out of a doorway pointing a gun, saying, Give me your wallet, it was two generally guys going mano a mano, until things escalated to a deadly force level. And the prosecutor when he’s thinking about how to attack a claim of self defense or an anticipated claim of self defense, he’s going to first target the most convenient, most vulnerable element he can find. And if he can find that element of avoidance, he will attack it.
Unfortunately, when that same technique is brought against what people perceive to be a good guy case of self defense, and it may be brought effectively against a good guy case of self defense, then to observers, it looks like, Hey, this is being abused, this option of letting the prosecutor attack, the element of avoidance is being abused, to put what ought to be a lawful case of self defense to put that person into prison for the rest of their lives with no possibility of early release.
And it’s when the legislators and the public feels that way about that element of avoidance that we see stand your ground be perceived favorably be passed into law. So that’s why we have stand your ground because so much of the public, so much of the legislature believes that the this element of avoidance has been abused by prosecutors, in good guy cases of self defense and we’re going to take that option off the table. If a prosecutor believes that not only was there a safe avenue for treat, but in fact the threat was not actually eminent. Well, in a standard ground state, we’re going to compel the prosecutor to disprove eminence beyond a reasonable doubt. And if they can do that they get the conviction but not by going after avoidance not by going after retreat.
Which of the Five Elements Are Most Often A Problem for Defender?
Got a related question here from Jim via email. So really the question in my experience, meaning Andrews experience, which one of the five elements of self defense is the most common one to fail, or to be attacked by the prosecution causing the self defense claim to be invalidated?
Unfortunately, folks, self defense cases are disproven beyond a reasonable doubt all the time and every one of the five elements, it would, and frankly, I would discourage people from thinking to themselves, all right, this is the most likely one I’m likely to trip over, or that’s the most likely one that’s going to be successfully attacked by a prosecutor to disprove my claim of self defense. All these cases of self defense are so fact specific.
And often the facts are ambiguous and subject to interpretation. And it’s eyewitness testimony as opposed to video testimony and so forth. That there’s really there’s no way to predict ahead of time, which of the elements might be the most vulnerable in a particular specific act of self defense. And I can assure you that all of them do pop up as vulnerable to attack by prosecutors and tons and tons of cases. And prosecutors are simply going to pick the one they perceive to be most vulnerable.
I mean, if they all look vulnerable, I guess I’d go after all of them, but they only need to disprove any one of the required elements. If they can disprove any one of the required elements beyond a reasonable doubt. You don’t just end up with a diminished form of self defense. Not really, you end up with no self defense, I mean, no self defense as a legal defense that can get you to an acquittal self defense collapses entirely.
Now, I should mention there is a concept called imperfect self defense. Generally, imperfect self defense applies where your act of self defense was otherwise lawful, but for one element being vulnerable. Usually that element is reasonableness. Your perception of the threat may have been genuine may have been subjectively reasonable, but was not objectively reasonable.
Well, your perception of the threat and the need to use deadly force and self defense was not objectively reasonable, you don’t qualify for the legal defense of self defense, you don’t qualify for an acquittal based on self defense, you might qualify for what’s called imperfect self defense, where it’s not a legal defense that can lead to an acquittal, but it can mitigate what would otherwise have been a murder conviction to a manslaughter conviction.
Which is no walk in the park, folks, especially if you use the gun and plenty states manslaughter with the gun is good for 10 to 20 years in prison. But it’s a lot better than murder conviction. A murder conviction is often life in prison without possibility of early released with manslaughter. You may be sentenced to 10 or 20. And yet has some possibility of early release after a third of that time, three to five years could in theory be out much better than life in prison. So manslaughter sucks unless murder is the next most likely alternative conviction.
That’s what imperfect self defense can do for you. It’s really a mitigation defense, not a perfect defense like self defense that can lead to an acquittal.
Constitutional Right to a Speedy Trial: How’s It Work?
Let’s see, what else do we have? How are we doing for time? Okay. Jim, oh, sends in a question via email. It’s a bit nuts and bolts, so I’m not going to dive into it too deep. Frankly, you could Google this and Wikipedia and get a pretty good understanding of how this concept works. But it’s the the concept Jim’s asking about is the right to a speedy trial.
So there’s a US constitutional right to speedy trial. It’s part of the Sixth Amendment. This the Bill of Rights, same part of the Bill of Rights, that gives us a right to a jury trial, for example. So it’s very important.
Jim asks, How does the right to a speedy trial affect these high profile cases where the defendant is in jail for two or three years before they’re tried? It seems to me this is not very speedy. Fair enough. Could they be released for a certain period of time if they have not been tried? That’s Jim’s question.
And the answer to Jim’s question is, well, yes, they defend it could be released if they’re not tried in a sufficiently long period of time.
Unfortunately, speedy in the context of right to a speedy trial doesn’t have much to do with speedy the way we might use it in normal countries. It really just means not incredibly abusive, long period of time and trial. I mean, a defendant can be held in jail for our prison for four years before trial, sometimes seven, eight years is deemed still not to be a denial of the right to a speedy trial under federal law.
So the federal scope of what qualifies as speedy what what prosecutors, the authorities, the state is allowed to get away with in terms of how long they can keep you in jail before your tribe is pretty broad, pretty generous in favor of the in favor of the authorities.
And it’s not just the amount of time that they consider they consider a number of factors. So one is, I will how many months or years have you been in prison? That’s one factor. But it’s not itself decisive. Another question. Factor considered is the reasons for the delay. Why is it taking so long, there may be perfectly good reasons for it to take a long time for a prosecutor to bring a murder suspect to trial.
Some of those may be the defendants fault, by the way, the defendant may be trying to block the trial, for example, filing a variety of motions, abs motion motions, all kinds of stuff, to try to get out of going to trial. And to the extent those actions by the defense delay going to trial. Well, that’s really on the defense, that’s not going to count against the authorities. In some cases, the defendant needs to first request demand, exercise, assert the right to speed to trial, if they don’t do that, if they don’t say hey, I’m tired of waiting, I want my trial today. Well, then they simply haven’t asserted the right to a free speedy trial and the the authorities, failure to give them a speedy trial is not held against the authorities.
Now, often, the defense does not want a speedy trial. That’s another factor. The defense may know that, hey, if we go to a speedy trial, we’re going to get convicted. Right? Most people who are going to trial are probably criminals who are likely to get convicted if they go to trial. Remember, prosecutors get to pick and choose the cases they bring to trial, they’re generally going to want to take the cases that have the greatest likelihood of success.
Now, these politically motivated self defense cases that are brought to trial are an exception, the norm is most of there’s a reason prosecutors have 90% 95% conviction rates of trials. And it’s because they get to choose the easiest cases to win far more cases on their desk than they could ever bring to a prosecution. There’s just no time for all the cases they could bring. So if you have a defendant is actually guilty and likely to be found guilty at trial. Well, they may not want a quick trial.
I mean, just imagine, say a defendant who’s charged with some use of force crime, murder is charged with murder. But he’s charged with murder in the context of a say, a violent community, lots of drug dealing, lots of violence, lots of people are shot.
Well, he may think to himself, you know what, rather than go speedily to trial, having the state present their witnesses who saw me shoot this dude, and get convicted, maybe if I can let things stretch out long enough, those witnesses against me, when lots of people get shot in that community, they’re in the cohort likely to get shot there, let’s pretend young males engaged in drug trafficking don’t tend to live to 70.
Maybe by the time if we delay trial long enough, by the time we get to trial witnesses will have disappeared, be unavailable, be dead. And that would be to the defense’s favor. So lots of factors go into it.
Now there are states. Of course, I mentioned we have a US constitutional right to a speedy trial under the Sixth Amendment. There are also state constitutional. There’s also a US federal statute on speedy trial, too, too technical for us to get into here. But if you Google it, you’ll you’ll come across it. states also have their own conditions for what qualifies as a speedy trial.
They can be more favorable to the defendant than the federal but of course, the Federal is really overwhelmingly generous to the prosecutors as far as I’m concerned. But they can’t be more stringent against the defendant than the US constitutional rights.
So there are states like I hate to get into state specifics, because I know there’s people listening to the show from all 50 states. But there are states that will say, hey, there’s a certain number of days in which a defendant has to be brought to trial on a felony charge if you have to bring them to trial within 100 days, or the case can be dismissed for violation of their state right to a speedy trial. I believe California is one of those states, but not all practice law in California. So don’t hold me to it. I’m going off of memory here. If it’s not 100 days, in another state, it might be six months.
But there’s always lots of conditions and lots of workarounds. So, for example, it might be, hey, if he’s charged with a felony, you have to try them within six months. Unless it’s a murder case, then we’ll give you the prosecution more time to develop your case. Or it might be six months, but we’re not going to hold against you delays because of motions filed by the defense and things along those lines. So a defendant could not have a viable claim for violation of speedy trial rights under the US Federal Constitution, but still have a very viable claim for denial of speedy trial rights under state law.
And of course, most of the cases we talk about use of force events are state law cases, they’re not generally federal law cases in self defense, defense of others defense of property situations are almost invariably state level cases.
Coyote Attack While Walking Dog: Shoot or No Shoot?
Let’s see, what else do we have? Jeff asks, a question that comes up quite a lot. But I’ll address it again. Because? Well, because it comes up a lot. It tells me people are interested, not everybody gets to listen to every show, of course. So just question is, if I’m walking out, I’m out walking my dog and a group of coyotes approach and try to attack Am I able to shoot them to get them to retreat? I live in the city. And the problem with coyotes is getting worse.
So here’s the legal issues we need to think about here. First of all, what’s being protected? Is it you being protected by your shots? Or is it your dog being protected, because those are two completely different legal standards.
One is, you’d be arguing an act of defense of self self defense, defense of persons human life. Certainly human life is more important thing, coyote life. So you’d be arguing the code is we’re threatening me with deadly harm, which certainly a pack of code is could do, right. And therefore I used deadly defensive force in self defense.
But it wouldn’t really fall under Self Defense Law, because you’re not using that force against another human being. So classic Self Defense Law analysis applies where you’re trying to justify your use of defense to force that force against another human, you used force or threatened force against another human, the five elements up to five elements of self defense are what need to be those conditions need to be met, in order for that use of force against another human to be justified.
You don’t need to meet that same legal standard if your use of forces against an animal because self defense laws don’t apply to animals, per se.
What’s really likely to be the relevant legal defense in that kind of case is what we call the necessity defense. In other words, normally discharging a gun in a wild animal, let’s exclude hunting scenarios not applicable here. Especially in a crowded environment, with other humans, a city setting is here.
Normally, you can’t just go shooting the gun off, right? Because it’s dangerous to other people. You’d argue, well, it’s true, that’s harmful, that’s potentially harmful. That’s dangerous. That’s a bad thing to do, normally an unlawful thing to do. But I committed that small harm in order to avoid suffering a much greater harm or to prevent a much greater harm from occurring. In other words, I fired the gun at the coyotes maybe struck and killed a coyote and committed that small harm in order to avoid my own death.
That’s a reasonable necessity defense argument, your life,human life is worth more than a coyote life. I think most people would agree on that. But that’s if you’re defending yourself against like a coyote attack.
If you’re defending your dog against the coyote the attack, it’s a completely different metric. Because now what you’re defending against the what you’re balancing against the coyote life is not your life, not as human life but a dog’s life. And I know everyone who owns pets, especially dogs feels like the pets are as much a part of the family is the humans are in the family.
But the law doesn’t place the value of a pet life and a dog life and human life on the same plane. They’re not the same things, folks.
Plus, if you’re in a city, as this hypothetical presumes there’s other people around there in the street, they’re in their homes, they’re in their cars. And when you fire a shot in those circumstances, none of us would ever go to arrange and see people downrange of our shooting position between us and the berm and feel it would be safe to fire rounds anywhere in their general direction. I think we could all agree on that. But that’s what you’re doing, in a city environment, when you discharge that gun because everyone’s downrange. There’s always people downrange between you and whatever might be the berm in the city of building a vehicle, whatever the case might be.
So you fire a gun in a city, you’re always creating a danger to others. And now you have to justify having created that danger to human life. Well, if the alternative is the balancing factor against that risk to human life. If that you’ve created his defense of your own life, I think you have a reasonable argument. Because it’s human life against human life. That’s what would happen if you were the victim of an armed robbery in a city and you end up shooting your robber. When you discharge that gun. Sure, you were also creating risk to other innocent people around who knows of the round might miss or over penetrated or whatever the case might be. But the balance against that was your own life, you were facing an imminent threat of deadly harm yourself.
But if the balance is not your own life, but your dog’s life, and you’re creating a danger to other human life, there’s no balance there. I mean, that’s going to be classic reckless endangerment. That’s if you don’t injure anybody, or reckless endangerment with a firearm can easily be a felony, or heaven forbid you do injure somebody. Now, if you kill them, I mean, that’s a classic definition of involuntary manslaughter.
So you’ve created a risk, an unjustified risk, because you were not in danger. At this point in our analysis, you’ve created an unjustified risk to other people. And in fact, they suffered the consequences of that you ignored that risk, and they suffer the consequence. That’s no different than driving drunk folks, for purposes of banned slaughter law.
So and by the way, this happens with increasing frequency, I guess I should say, because people have concealed carry permits, they carry their gun, they walk their dog, the dog gets attacked by a coyote or by a stray dog or a feral dog or a wild dog. And they want to be able to defend their dog and they go to the gun and they get charged with reckless endangerment for discharging that gun.
I’ve seen it happen when the when the person walking the dog was an off duty police officer. So you’re facing a very real rescue, the law does not want you sending bullets around your neighborhood, in defense of your dog. Now, if you were walking down the street with your say, your child, and they coyote or a feral dog or a stray dog was going to attack your child.
So I don’t want to name a breed of dog because I’ll get too many too much hate mail. But you understand the point then you’re defending human life against the balance of the danger to either the dog or to other innocent bystanders. But then at the balance is human life to human life, not dog life to human life. So in the absence of a deadly force threat to persons, if you pull your gun and discharge it to protect your dog from some other animal threat, in a city environment, especially Be prepared to be charged with reckless endangerment, folks,.
There’s other options too, right? There’s things like OC spray, which is not magic, but tends to work better the more mucous membranes your target has, and dogs have a lot of mucous membranes, coyotes have a lot of mucous membranes on the front of their faces. Now, if it’s going to be a pack, you might want a lot of OC spray.
Also mentioned just as an aside, I don’t know how many of you have ever. I mean, it wouldn’t be a common experience, of course, but I would expect an attacking dog to be rather difficult target to hit with a handgun. If they were a fact, in fact, in the attack, and if they’re not in the attack, if they just look sketchy, then your justification for shooting at them is really untenable. But if it’s that they’re actually in the attack even a single dog. It’s not easy to hit, they’re low, they’re faster moving quickly, a lot easier to miss than to hit, I would think. And if it’s a pack of coyotes, are you going to settle that with a handgun? If they’re actually in attack? I don’t know. Very, very difficult position. If I walked my dog outside, and I was in risk of are genuinely concerned about coyote attacks, I’d have one of those giant jars, bottles of OC spray with me and I would use it liberally.
And by the way, you can use that much more quickly, much sooner in any kind of apparent, threatening situation with dogs, then you’d be able to use a gun for sure.
Oh, three minutes left. So let me see, three minutes left. I didn’t get to all the questions for this week.
Yeah, so Oscar here is from Texas. He knows that Rick Perry once shot a Cody that attacked his dog. You know, folks, you can go through life hoping that the authorities will give you the benefit of the doubt and choose to use their discretion in your favor in these situations like they might be prone to do if the person who fired the shot was the governor of their state. Or you can go through life and plan to have to be prepared for what the authorities can do. If they are not favorably disposed.
I don’t know if I’m still on folks, it looks like both Facebook and the Law of Self Defense Members area has decided to collapse the live stream. Oh, maybe I’m back on the membership area.
But in any case, we’re at the top of the hour. So I would just close out by noting, Perry. Listen, if you’re the governor of Texas, maybe you get breaks that you wouldn’t get if you engaged in the same conduct say in Austin, or some other state.
Yeah. Okay. So it looks like I’m back in the membership area, it looks like Facebook just closed me out. But as I say, we’re at the top of the hour, it’s time to close up anyway. I’m sorry, folks. We didn’t get to all the questions. I hope I got to on the Platinum questions.
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Before I close out just reminder if you carry a gun so hard to kill, and that’s certainly why I carry a gun so I’m hard to kill my family is hard to kill.
Well then you also owe it to yourself and your family to make sure you know the law so that you’re hard to convict I folks
I’m Attorney Andrew Branca for Law of Self Defense, until next time, stay safe