News/Q&A Show: Oct. 15, 2020

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:

http://lawofselfdefense.com/ccwsafe

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

In today’s News/Q&A Show for October 15, 2020 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:

• Kyle Rittenhouse to Face No Gun Charges in Illinois
• Mutual Self-Defense or Mutual Combat?
• Rittenhouse Shots Were in Defensive Response to Shots Fired by Others
• Death by Beating is No Less Deadly Force Than is Death by Shooting
• CCW Safe Blog Post on Defense Against Forcible Felony
• What Can Oral Arguments To Supreme Court Tell Us about changing landscape of the self-defense law?
• BONUS! Step-by-Step Analysis of Denver Shooting Photos

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:

http://lawofselfdefense.com/trial

Learn How to Defend Your Home Tactically & Lawfully, and Save a Bundle

Except, before you go, we are running an exceptional offer for the Law of Self Defense community this week, in cooperation with our frequent partners, ConcealedCarry.com.  Essentially, we’re offering a combination of two courses—Concealed Carry’s excellent “Complete Home Defense” course on the tactics of home defense, and our own Law of Self Defense “Defense of Property” course on the legal rules of engagement for home defense.

And we’re offering the combination of these two outstanding courses for LESS than either of them normally costs ALONE.

I don’t want to take your time now to step through each of these excellent courses, but if home defense is something that’s important to you—and I know it is—I urge you to learn more by clicking on the image or link below:

http://lawofselfdefense.com/home

And learn how to defend your home both tactically and legally, while saving a bundle.

OK, folks, until next time …

Remember

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

Know the law so you’re hard to convict!

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

TRANSCRIPT

Thanks for tuning in, folks. I’m Attorney Andrew Branca for Law of Self Defense, and today’s show is the Law of Self Defense News/Q&A Show. See if I can get anybody in the comments to admit that they’ve joined the show for the second attempt of the day.

We should also be streaming on the Law of Self Defense Membership site. It looks like we are. And it looks like I might have messed up the chat settings on the membership site. Sorry about that, folks. We’re working with imperfect IT today.

Hey, Ken. Hey, John from Fort Lauderdale. Thanks, folks.

If you’re in Facebook and watching this live, if you could please leave a comment with your city and state that always just confirms that I’ve got a good connection and gives me some geographic context for our discussion. This is the hour-late Law of Self Defense News/Q&A Show for October 15, 2020.

We tried it at four o’clock, you might have noticed also that I’m not wearing my normal lawyer attire. And the background will reveal that I’m not in the normal Law of Self Defense HQ. We are on the road, we are using an imperfect version of our studio setup, questionable internet, and all that. But I thought I’d make our best effort to put on today’s show, regardless. We tried at the normal time, 4pm Eastern time.

By the way, folks, if you don’t know you can catch the show live every week. The Law of Self Defense News/Q&A Show at 4pm Eastern time here on Facebook, on YouTube. Also, for Law of Self Defense members on their membership dashboard.

This is the only content we produce each week that’s open access, meaning you don’t have to be a Law of Self Defense Member. So if you’d like to get a good idea of what we do and how we do it, this weekly News/Q&A Show would be the one to go to. Because we do it every week, Thursday 4pm Eastern time, I encourage you to bookmark it in your calendar so you don’t ever have to miss an episode.

Okay, folks, so I think we have enough to get started on some substance. As always, of course, however, I do have to give a shout out to today’s sponsor, and that is CCW Safe

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:

http://lawofselfdefense.com/ccwsafe

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

We also of course have our own Law of Self Defense Membership, which is how you get access to all our weekly content that’s not the weekly News/Q&A Show, most of our content is members-only content

To give you a sense of the kind of content we’ve delivered to our members. In the last week we had a an all this content is in video form, much as you’re watching it now, audio form through the Law of Self Defense members-only podcast and as text blog posts on our members-only blog where we have the additional benefit of being able to provide downloadable content, affidavits, motions, and court links to court decisions, and so forth.

So our members get that multi-modal delivery of all this content.

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:

http://lawofselfdefense.com/trial

Learn How to Defend Your Home Tactically & Lawfully, and Save a Bundle

Except, before you go, we are running an exceptional offer for the Law of Self Defense community this week, in cooperation with our frequent partners, ConcealedCarry.com.  Essentially, we’re offering a combination of two courses—Concealed Carry’s excellent “Complete Home Defense” course on the tactics of home defense, and our own Law of Self Defense “Defense of Property” course on the legal rules of engagement for home defense.

And we’re offering the combination of these two outstanding courses for LESS than either of them normally costs ALONE.

I don’t want to take your time now to step through each of these excellent courses, but if home defense is something that’s important to you—and I know it is—I urge you to learn more by clicking on the image or link below:

http://lawofselfdefense.com/home

And learn how to defend your home both tactically and legally, while saving a bundle.

Just about a week ago, we did a blog post video podcast on the McCloskey case, and noted a number of key areas that most people are getting wrong and understanding the charges that are brought against them a classic ease, why they’re being brought, what the political and legal implications are, and so forth. So we went into depth on that.

IMAGE MCLOSKEY POST

We also did a blog post on the shooting right in my home neighborhood of Denver, by Matt Dolloff of Lee Keltner. There we see the sad aftermath there. And we point out a couple of legal reasoning errors, traps that people are falling into, particularly the notion that pepper spray is always merely non deadly force. That’s not the case. That’s a mistake. And that matters, who actually used force first. That can matter in the use of force legal analysis, but it’s not necessarily at all decisive in determining whether or not that use of force was lawful or not. So we explored all those issues in detail there.

[IMAGE OC ALWAYS NONDEADLY]

And then of course, we came back to the case again, the same Dolloff/Keltner case, a day or so later, when we did a blog post on looking at provocation with intent. And how if if provocation with intent occurred here, and there’s some evidence that would allow that inference, although we don’t yet know for sure, of course, that provocation with intense strips, the provoker of any privilege to claim self defense as justification for use of force entirely. So if that can be demonstrated by credible evidence, then somebody is in a great deal of trouble.

[IMAGE PROVOCATION WITH INTENT]

And I also have a whole bunch of still photos of this event, this shooting, one of what you see here on the screen, but the Denver Post has since published a whole series of stills, they appear to be all the still photos, they have their sequentially numbered, they provided the metadata for those. And I’d like to step through the dozen or so that are most relevant in terms of the physical action of this confrontation between Dolloff and Keltner.

We’ll do that in today’s show, before we get to the end. It still doesn’t tell us everything. Still photos have real limitations in terms of providing us with anything like a complete picture. Nevertheless, they are evidence they are informative, we can make some inferences from those still photos.

So we’ll step through them in today’s show and discuss what lessons or inferences we can draw from those still photos, and the ways in which the still photos still leave us with an incomplete understanding of what happened, despite how many of them we have and how timely they are and how clear they are in their own way.

Okay, folks, so by the way, if you are interested in being able to access all that membership content Law of Self Defense Membership is extremely inexpensive. It’s only about 33 cents a day, under normal circumstances, is less than $10 a month for world-class legal insight, education, expertise, provided too many times a week. And of course, the archives go back for many, many weeks, months of access, if not more.

So we’re talking dozens and dozens and dozens of hours of video, podcasts, written text posts on all these high profile use of force cases.

Worst-case, standard membership is under $10 a month, you can try out membership for just 99 cents for two weeks. If you decide it’s not for you, and you’d like to cancel, do that anytime no questions asked. And we’ll refund 200% of your money, which granted is only another 99 cents. But let’s face it, we didn’t ask you to put up very much to give it a try. The point is it’s a negative risk opportunity, folks to try out law of self-defense membership.

And if you decide to stay a member again, it’s only about 33 cents a day. Hopefully this kind of expertise is worth 33 cents a day to you. But again, that’s a call only you can make and of course you’re free to do exactly that.

If you’d like to try out the law of self defense membership trial, you can do that at lawofselfdefense.com/trial:

http://lawofselfdefense.com/trial

Just 99 cents, folks.

All right, let’s jump into the meat of today’s show. So this is our weekly News/Q&A Show. For those who don’t know, I’m Attorney Andrew Branca. I’m an attorney who does nothing but use-of-force law cases has for almost three decades now. Next year will be three decades since I was admitted to the bar. Holy cow.

But all we do is use-of-force cases we don’t have a generalized criminal defense practice, we don’t do DWI, or shoplifting or anything like that only use-of-force.

And we try to share that expertise with all of you, the general public by translating the legal ease of statutes, court decisions, jury instructions into plain English that’s not just understandable, but actionable for you. So all of you can be as well-prepared to win the legal fight as you are prepared, hopefully, to win the physical fight, should you be compelled to use force in defense of yourself, your family, others, or your property.

So that’s our mission. One of the ways we do that is by delivering an enormous amount of content to our Law of Self Defense members. But we also do this one show every week, our Law of Self Defense News/Q&A Show where we answer questions that have been sent in beforehand, we’ll answer questions that are asked during the live show. So if you’re on Facebook, or on the Law of Self Defense Membership dashboard, unfortunately, it looks like I forgot to turn on chat for today’s membership, broadcast a live broadcast. Sorry, folks. The commenting is up on Facebook. So if you want to hop over to Facebook to ask questions live there, that’s certainly no problem.

If you are a Law of Self Defense Platinum level member, you have the option of using the Platinum member-only Q&A Form on your membership dashboard. We always answer those, and we have a couple of those Platinum level member questions that came in this week that will certainly address.

Alternatively, if you’d like to send questions in ahead of a show for our consideration. You can email those to show@lawofselfdefense.com. We can’t promise to answer every question, but we certainly will review them and take them under advisement for a future show. We have a few of those questions that were sent in as well.

But before we dive into the Q&A portion, I always like to cover some of the use of force stuff that’s been in the news. So I’ll talk on a few of those topics.

Kyle Rittenhouse to Face No Gun Charges in Illinois

One is the news that just came out in the last couple days. Kyle Rittenhouse is not going to be charged in Illinois for any gun charges related to his possession of the AR rifle he used to defend himself that night in Wisconsin. There had been some suggestion, usually suggestion that’s of the ill-informed propaganda type nature that Kyle had possessed the rifle in Illinois under circumstances where it was unlawful for him to do so. Illinois, you know, has some very rigorous gun laws, the punishments are severe.

Now, Kyle’s side of the narrative was consistently saying that he had not transported the gun over state lines. That in fact, he was provided with the gun in Wisconsin that never possessed it in Illinois, in which case, of course there couldn’t possibly be and the Illinois gun charges. And the Illinois authorities investigated the matter concluded that in fact, Kyle had been given the gun in Wisconsin, he had not possessed it in Illinois. There’s no evidence of that either the gun or any illegal magazines or anything else that could have been the basis for an Illinois level gun charge. So there will be no Illinois gun charge against Kyle.

Now, one of the reasons many people, the anti Kyle narrative people were pushing this whole gun propaganda that Kyle had possessed the gun to legally was because of their success of argument, which was that well, if Kyle had the gun illegally, that’s committing a crime, you can’t claim self defense if you’re committing a crime. Therefore, Kyle can’t claim self defense for shooting the three men who attacked him that night.

That line of reasoning was complete nonsense. There is no general prohibition in Illinois or Wisconsin on claiming self-defense just because you might have been committing some generalized kind of criminal offense. There are, of course, criminal offenses that would make you the aggressor in the fight. And therefore you would lose self-defense because you were the aggressor. But there’s no requirement that you’d be 100%, free of criminal conduct generally, in order to qualify for the privilege of self-defense.

So for example, you could be a street corner drug dealer engaged in the unlawful dealing of drugs, you still have the right to defend yourself against someone attempting to committed an armed robbery. Now if that goes down and the authorities get involved, you may well get charged for the drug dealing, but it does nothing to take away or limit your privilege of self defense justification for using force in defense against an unlawful attack upon you.

So even if Kyle had possessed the gun illegally, he might have been on the hook for some kind of gun charge, but it would have had no effect at all on his privilege of self defense with respect to defending himself against the three men who attacked him that night. So I’ve had to explain this ad nauseum the fact that the gun charges are now off the table, at least in Illinois, hopefully means I won’t have to explain that particular issue again.

I suppose there’s also an argument that there may be some gun charge in Wisconsin at worst, it would be a misdemeanor. I don’t really expect that to go anywhere, probably. But in any case, similarly, that offense if there is any under Wisconsin law would also do nothing to limit or constrain Kyle’s right of claiming self defense under Wisconsin law. So it just doesn’t matter, folks.

Mutual Self-Defense or Mutual Combat?

There was another story sent my way, and I’ll try to link it in the text version of today’s post, if I have the opportunity. It’s not a very important story, but it was just involved a shootout, apparently, in a shopping mall, between two competing groups of young men over an argument over lap, sorry, rap lyrics. I guess the opposing groups are claiming credit for rap lyrics or had some other dispute. And in case it ended up in a gunfight in the mall, somebody an innocent bystander was killed.

Naturally, the prosecutors want to hold somebody accountable. But both of these opposing groups in the confrontation are saying, Well, I was just shooting in self defense and the the nature of the factual evidence is such that they each have a credible argument that they were acting in self defense. In other words, each side may have had a reasonable perception, even if it was the mistaken perception a reasonable perception that they were facing an imminent unlawful threat of death or serious bodily injury that would justify their use of deadly defensive force. And they both could have believed that, again, you don’t have to be right in self defense, you have to be reasonable and self defense.

So each side may have a credible claim to self-defense that they would presented to a jury that a jury might buy, which presents a conundrum for the prosecutor because the prosecutor wants to hold somebody criminally responsible for the death of this innocent bystander, a young woman, if I recall correctly, who’s doing nothing at all wrong, again, just an innocent bystander.

So when a prosecutor is in this position, one of the things they’ll try to do is they can see that they try to attack group A’s use of force Group A is going to raise a self-defense justification. And they tried to attack group B’s use of force. And apparently there’s some ambiguity about whose bullet actually caused the death of the bystander. But if they tried to attack, group B’s use of force as being responsible unlawfully for the killing of the bystander, Group B is also going to raise a legal defense of self defense.

So it’s possible both those claims of self defense could win and then you have nothing.

So when a prosecutor faces that dilemma, well, they know there’s other avenues they can use to attack these claims of self defense. And one of them is to argue mutual combat, that in fact, both sides were not each innocent defenders in this gunfight, even if mistaken, they were not innocent defenders, they each had implicitly agreed to settle their differences with physical combat, to wit, a gunfight.

And when two groups or two people mutually agreed to settle their differences through physical combat, they both become mutual aggressors, they both lose the element of innocence. And if you’ve lost the element of innocence, you’ve lost self-defense.

So what the prosecutor is trying to do in that case is say, kind of invert the defenses. The defenses are, hey, each of us is able to claim self defense. That’s what we’re going argue a trial, we each had a reasonable perception of an unlawful imminent threat of deadly force. Therefore, we were each justified in firing shots to neutralize that reasonably perceived threat.

Prosecutors going say, well, you may have each have a similar state of mind. But if you did, it was an unlawful state of mind. It was a state of mind of malice, it was a state of mind of mutual combat. And rather than raising the legal defense for each of you, it actually strips each of you of that legal defense of self defense.

So the facts of the case aren’t, and the law, the cases and all that interesting or exciting, but it’s just an example of how a prosecutor when they conduct their own legal analysis, looking for the strengths and weaknesses of the defenses, they expect to have to face a trial. This is the kind of step by step analysis they would do to come up with what they think are the the attacks on the defense that are most likely to be effective.

Remember, the prosecution is going to have to disprove self defense beyond a reasonable doubt in this scenario for both parties or whoever they plan to hold accountable, and if they can convince the jury that it was mutual combat, the prospects of self defense being bought by the jury as a legal defense diminishes considerably.

Rittenhouse Shots Were in Defensive Response to Shots Fired by Others

There was some more news in the Rittenhouse case that came up just in the last day or two and that was that there was from the very beginning there was evidence on video and from a reporter who was at the scene within feet of the parking lot of attack on Rittenhouse, who testified or I should say gave statements about this that he observed.

And it was caught on camera. what appeared to be gunshots muzzle flashes in the moments before Rittenhouse engaged his first attacker, the man chasing him across the parking lot the apparently convicted pedophile chasing him across the parking lot. And these gunshots not fired by Kyle fired by somebody else.

But the nature of the gunshots in the direction of the gunshots may well have created in Kyle’s mind a reasonable perception of a deadly force threaten imminent deadly force, and unlawful imminent deadly force threat against the which he would be privileged to defend himself a deadly force justifying his shooting of the man chasing him across the parking lot.

Of course he did ultimately turn and shoot that man and kill him. We think there’s still ambiguity about whether or not the bullet that killed the parking lot pursuer actually came from Kyle’s gun. I’m not sure if that’s been settled yet. But for our purposes, let’s assume it was Kyle. Certainly Kyle was shooting at him and there’s no question about it. So for our purposes, let’s assume that it was one of Kyle’s rounds that actually caused the death.

For that death to be lawful self defense, Kyle would have had to have had a reasonable perception of an imminent deadly force threat and those shots fired immediately prior would have been circumstances that could well lead to a reasonable perception of an imminent deadly force threat.

And now the person who actually fired those shots has been charged by police, which makes the factual claim all that more credible, and therefore, very much buttresses Kyle’s claim of having that reasonable perception of an imminent deadly force. But at the time, he fired the first shots that he fired at the parking lot pursuer.

And it was, of course, everything else kind of naturally flows from that, if that was a lawful use of force. Then when Kyle was pursued after that, while he only used force lawfully the attacks later in the street against him, where he fired more shots, killed, the second person, seriously wounded a third person also increasingly look like lawful self defense is, of course, most of us in the law, self defense community, perceived from the very beginning. But all of this is emerging evidence that’s favorable to Kyle that strengthens his narrative of innocence.

And by the way, folks, this is how these cakes are typically baked. And what I mean by that, is, in my experience, we have a case that’s at all resembles lawful self defense, it’s very common to get a burst of facts, quote, unquote, facts claimed facts and narrative at the very beginning. That’s often large parts of it, especially the narrative of guilt, the narrative of malice, the narrative of negligence is often based on lies false hoods, some, some are just misunderstanding, some are malicious falsehood created for monetary or political or propaganda advantage.

And so often the worst view we have these cases is the view that emerges over the first 24, 48, 72 hours. And that’s the worst-case narrative.

And then as more evidence emerges over successive days and weeks and sometimes months, almost invariably that newly emerging evidence is favorable to the narrative of innocence is favorable to self-defense.

We certainly saw that in the George Zimmerman case, we saw that in the Darren Wilson, Officer Darren Wilson shooting of Michael Brown case, we see that most of these really all these cases, virtually all of them, the worst case is the lies were told up front.

Remember, you’ll remember Brianna Taylor, we were told was shot sleeping in her bed. Well, of course, we now know that’s not at all true. In fact, she was standing next to the person who was shooting police, which is how she got struck by the police returned fire.

And I expect that pattern to hold true in the Kyle Rittenhouse case, I think every bit of new evidence facts that gets released over time that gets brought to our attention that’s gets buttressed by other supporting consistent evidence whether circumstantial or direct evidence is going to be I would expect evidence that’s increasingly favorable to Kyle Rittenhouse. So that would be my expectation.

I could be wrong. Sometimes there are exceptions to that kind of rule of thumb. But that is certainly the norm in my experience.

Death by Beating is No Less Deadly Force Than is Death by Shooting

Something else that came up so I saw somebody on Facebook and I’m not going to post up an image of their Facebook comments because it’s not my purpose here to embarrass them personally. But somebody made a comment that you know if that if the shooter in Denver, Dollof sho Lee Keltner, if the shooter had instead of using a gun had used a stick or club to beat Keltner to death, he [the shooter, Dolloff] wouldn’t be facing charges today.

The idea being that there’s some meaningful distinction between shooting someone to death and of course, Dolloff shot Cutler in the head with a single shot killed him instantly. Keltner was almost certainly dead before he hit the ground. [The suggestion t]hat there’s some substantial difference morally or legally or any other way between shooting someone to death and beating someone to death with a club.

Folks, there’s not. If you’re using deadly force, it’s deadly force period, the law doesn’t really distinguish between the law doesn’t really recognize different degrees of deadly force. If you’re shooting someone in the head, shooting someone to death or beating them to death, or choking them to death or drowning them to death or burning them to death, you see the common pattern, right? It’s death. If you’re using force readily capable of causing death or serious bodily injury, you’re using deadly force period. They’re all substantively the same. There’s no real distinction between them.

That’s not true of non-deadly force. If you’re if we’re talking in the context of non-deadly force, there are degrees a continuum of degrees of non deadly force. So a finger poke to the chest is the letter a lesser degree of non-deadly force than a punch to the face or then OC spray to the face, for example. So within the non-deadly force bucket, you have to be careful to maintain proportionality within that bucket.

Once you find yourself in the deadly force bucket, however, effectively all deadly force is equal to all other deadly force. So no, you’re not facing less legal liability if you beat someone to death with a club, relative to whether you shoot them with a gun.

Now, where there can be differences in the means of deadly force is not so much in the self defense claim or the criminal responsibility area of the law, but rather in the sentencing area of the law, because a lot of states have sentencing enhancements for the use of firearms, against someone unlawfully. So you have the sentence for whatever the underlying crime was. It’s called manslaughter. And then there may be a sentencing enhancement if you committed the manslaughter with a gun or with a semi automatic gun or whatever the state has for a sentencing enhancement. And sometimes the sentencing enhancement can carry more time than the underlying criminal offense.

So it can matter a lot whether or not you use the gun in the punishment stage of the criminal proceedings, the sentencing stage, but in the guilt stage, it doesn’t really matter how you kill them, folks, if you killed them, you better be able to justify the use of deadly defensive force. Or you have 100% criminal liability for an unlawful killing and that’s not a good place to be.

CCW Safe Blog Post on Defense AGainst Forcible Felony

Anthony C. is one of our Platinum members have used our law self defense Platinum member Q&A Form to send in a question about a blog post that had been done by CCW Safe.

As I mentioned at the beginning, CCW Safe is a partner, a sponsor of Law of Self Defense. I like the organization. I’m personally a member. Especially their national trial counsel, Don West, who was one of George Zimmerman’s attorneys at his trial, along with Mark O’Mara. I think the world of Don West, I think he’s a fantastic criminal defense attorney. I think anybody who has Don West on their side in the criminal defense proceeding is very many steps above where they would otherwise be.

CCW Safe also does a regular series of blog posts. And they had done one very recently, just this past week on the subject of justifying your use a deadly defensive force based on the hypothetical notion that you were defending against a forcible felony.

So the core privilege to use deadly defensive force is based on the notion that you were defending yourself against in imminent unlawful threat of deadly force against you. So you’re being threatened with deadly force, you can use deadly force and self defense.

There are a number of states that say that in their self defense law, but they then also add o deadly defensive force is lawful if used to defend yourself against a deadly force attack or to defend yourself against a forcible felony. And then generally they have an enumerated list of the four forcible felonies to have in mind. Sometimes it’s a long list sometimes it’s a short list. It typically includes things like kidnapping, rape, Aggravated Assault, Aggravated battery, things along those lines.

And the reason these forcible felonies are included as part of a foundational justification for the use of deadly defensive forces generally, because forcible felonies it’s in their nature a key characteristic that the involve inherent baked into the cake of a forcible felony is an imminent threat of death or serious bodily injury.

Someone’s raping you or kidnapping you or committing an aggravated assault or battery, well, that’s an assault or battery that threatens death or serious bodily injury. So it’s all kind of baked into the cake.

What’s not included as a justification for these deadly defensive force is a non-forcible felony, because there’s lots of felonies that are not forcible. You write a bad check over a certain dollar amount, it’s a felony. But no one would say that writing a bad check over a certain dollar amount entitles another person to use deadly defensive force against you. We might want to live in a society where that was permitted. But in fact, that’s not permitted, because writing a bad check is not a forcible felony.

So the blog post was basically discussing all these notions and concepts. And of course, it raises questions, really about the idea that well, what if you were theoretically facing a threat of a forcible felony, but did not believe that, in fact, you were facing an imminent threat of death or serious bodily injury? What should you do there? What would the law allow you to do there?

Well, in theory, it’s possible that could happen, it’s possible that someone could be committing an armed robbery of you, a robbery enforced by threat of death or serious bodily injury, but you don’t actually believe that you’re facing an imminent threat of death or serious bodily injury.

Now, they’re committing the crime, they’re committing the felony that qualifies as a forcible felony. And on that basis, the law says you’d be justified in using deadly defensive force. But should you use that deadly defensive force if you genuinely don’t believe that you’re actually facing imminent threat of death or serious bodily injury?

Well, you know, in some of these cases, the law would allow you to do that, use that deadly defensive force. I would strongly suggest that that’s not the decision you want to make. I would strongly suggest that if you’re using deadly defensive force against another human being that [doing so] is a last resort position [where] you really have no alternative.

Because as we often say, here, the moment you get involved in a confrontation, and especially a deadly force confrontation, let’s assume you actually kill the person. Well, now you’ve just incurred some risks you weren’t incurring a moment before among them are, well, maybe you don’t win the fight, right? Maybe they do kill you. So that’s not a good place to be.

Or maybe you win the fight, you end up killing them. And now you have to, you’re being compelled by a prosecutor to make your deadly force justification claim in front of a jury, with the prospect that if you’re unsuccessful, and folks, it’s never 100% lock, there’s always at least a 10% chance that the jury is going to find you guilty. That’s just the noise in the system. So if a prosecutor compels you to make that justification in front of a jury, and there’s a 10% chance of getting convicted, and conviction carries life in prison without possibility of early release, and you weren’t in fact, facing an imminent threat of death or serious bodily injury, is that outcome worth it?

Is the risk of that outcome worth it? Even if the law would say, Well, you know, you’ve got a good legal defense there 90% chance of making it sell not to a jury. But 10% chance to go into prison for the rest of your life and having killed someone who arguably didn’t have to be killed. That’s not a position I would be and I would encourage all my students and clients to not place themselves in that position.

In terms of Anthony’s question about two CCW safe blog post, I did read the blog post, it’s quite lengthy, it’s, you know, several hundred words. I would be happy to dive in detail on a specific question about a specific facet of the blog post, but I can’t dissect several hundred words of blog post on the show.

So really, you’d need to tell me if there was some particular statement or claim or suggestion in the blog post you found disturbing. If you could point it out to me, I’d be happy to address it. I read it I didn’t find happened to notice anything that was very disturbing. I think most of the CCW Safe stuff they do in the blog post is really good, very solid. I believe the author of this particular post was Steve Moses and Steve does great work from what I’ve seen consistently. So I would be surprised if he said something zany. But if you wanted to, you know, make your question more specific. Send it in again in that same Platinum member Q&A form and we’ll come back to it again next week.

What Can Oral Arguments To Supreme Court Tell Us?

We got another question from another Platinum member, Dave, David R in Georgia. And he asked about an oral argument being made in front of the Georgia Supreme Court.

And interestingly enough, of course, in this era of COVID, a lot of these oral arguments are being made over zoom or some equivalent webinar type platform, and this one was, so it’s all videotaped. So you can see the attorney making the oral argument and you can see all the justices in the Georgia Supreme Court, in their own little windows on the computer screen. They’re asking questions of the attorney and so forth.

And this case was about a shooting that occurred in a rather tumultuous setting so there’d been some kind of car show involving lots of teenagers from high school. So young men and young women, you know formula for disaster right there. Apparently there may have been gang members present bloods, Crips guns were shown and fists were thrown and shots were fired. And now we have a defendant who’s been convicted of aggravated, forget if it was aggravated assault or aggravated battery, at trial, he’s appealing his trial down to the Georgia Supreme Court. And essentially what the lawyer the appellant lawyer is arguing in front of the Georgia Supreme Court in oral argument is now …

Sorry, let me take a step back.

So at trial, the defendant who’d fired the shot was criminally charged as a result, he wanted the jury given a self defense jury instruction. And they were kind of except that the judge, the trial judge conditioned or appeared to condition it’s, it’s, it appears ambiguous about what the instruction actually said. But it appears the trial judge may have conditioned self defense on mutual combat. In other words, he told the jury, hey, first determine whether or not mutual combat occurred here, which could have it was a large group setting, perhaps mutual combat.

And if you decide it was mutual combat, or if you decided it wasn’t mutual combat, then you can look at self defense. And the appellants argument as well, that jury instruction was incorrect, they should have considered jury instruction on its own merits independent of mutual combat, defendant didn’t get a correct jury instruction that’s almost invariably reversible error entitling the defendant to a new trial.

And that’s true, every defendant is entitled to correct jury instruction. So there’s an error in the jury instruction that’s at all meaningful, that could at all, have resulted in a different verdict, a different outcome and trial had the corrector instruction been given than the defendant ought to be entitled to the new trial with the correct jury instruction. And I say that regardless of what I think are the merits of the underlying case, it doesn’t matter what the merits of your case are, if you get a bad jury instruction, everybody loses every defendant is going to lose if they have bad jury instructions. And that’s not due process, in any way that I understand it.

So, anyway, David R had linked me to the oral argument and he asked, What are let’s see if I can phrase it here. Will this case alter the legal landscape of self defense use of deadly force in response to disparity of force situation? So one of the arguments of the fence was, Hey, I was an out of towner, I was a guest there are a stranger there. And one of the reasons I resorted deadly force was I had been punched, there’s evidence that there were gangs present, evidence that other people had guns present. And there was a huge disparity of numbers. And I reasonably feared a threat of death or serious bodily injury because of that disparity of numbers and these other circumstances. And therefore, I should have gotten a clean self defense jury instruction. I didn’t, that’s reversible error.

So on oral argument, the justices who don’t appear to be buying into this narrative, are saying, But could he have had a reasonable fear of a deadly force attack? I mean, he got punched, but you don’t shoot someone because they punched you. Generally, a punch is considered non deadly force, you can’t respond with deadly defensive force to a non deadly force attack.

And, in theory, these other circumstances that they were outnumbered that other people may have had guns and gangs might have been present. In theory, those other factors could collectively give rise to a reasonable perception of a deadly force threat. But that doesn’t mean they did here. For example, there’s questions about whether–the defendant did not testify at trial, so we don’t know what he actually knew, but that leaves it ambiguous–for example, it’s it seems other people in the crowd had guns, but it’s unclear whether the defendant knew at the time that they had guns, it appears there were gang members present, but it’s unclear that the defendant knew that there were gang members present.

So these other circumstances existed, but if they weren’t known to the defendant at the time, then they couldn’t have influenced the defendants decision making and then they don’t exist for legal purposes in evaluating whether or not the defendants claim to perception of a deadly force threat was a reasonable perception.

So I didn’t have a chance to look at the entire oral argument before the show started. Sorry about that, Dave.

But Dave asks, in the context of all that, will this case alter the legal landscape of self defense use of deadly force in response to disparity for situations, such as in riots or multiple assailant, home invasion situations? And if so, how?

Well, we can’t really answer that question just from oral arguments because oral arguments are not a final adjudication, they’re not a reasoned decision of the court. It’s just a conversation, basically, that precedes a reasoned decision by a court.

And you often can’t tell much from the oral arguments. The real arguments to my mind, frankly, are in the briefs, or in the written documents, the written arguments that are presented to the court, they’re much more detailed. You know, when people speak, sometimes they stutter, they use the wrong words, there’s a very tight time limit, there’s only a 20 minute time limit in front of the Georgia Supreme Court for your oral argument. So you don’t have a lot of time to make your points, you don’t have a lot of time to correct any mistakes that you might have made, and so forth.

And you have plenty of opportunity to do that in the written briefs. So I think the briefs are actually a lot more compelling. But also in the oral argument, you’ll have justices ask questions that might suggest they’re leaning one way or the other, but they may just be asking for purposes of completeness, or to explore hypotheticals or the questions they ask may not in fact be how they actually think about the merits of the case.

So we can’t really draw any conclusions about how the judges might rule just from oral arguments we’d like to, but it’s very dangerous to do that. And then the case, the only official, concrete substantive law that results from the decision from the case is their actual decision, which needs to be written by one or more of the justices. So nothing in the oral arguments is itself law.

So the oral argument itself won’t change anything about Georgia law. Now, once they write their decision, and they hand that down, and we can read it, and hopefully, presumably, it will explain the rationale for whatever conclusion they come to. They may say things in that written decision that have an impact on Georgia law in the context of defense against disparity of numbers, or mob events or violence, large group, rioting, looting, arson type of events, but we we just won’t know until they handle the decision down.

So when they do hand that decision down, I’ll probably see it, if I don’t see it. Or if you want to just play it safe, send me a copy of the decision or link me to it. And I’ll be happy to go over it in more detail, especially before our loss of defense members, especially for our Platinum members just like you.

Okay, I think that was all the prepared content I had. So let me go back here. Yeah, unfortunately, the chat is disabled on the membership dashboard. Again, my apologies for that. I’ll slide through the Facebook.

Casual Thursday. Yeah, folks, sorry, I’m traveling, and I did not have my usual shirt and tie. And obviously, I’m not in my office. I’m in a guest room. But it looks like it worked out okay, technology wise, once we restarted an hour late. So that’s all good. At least appears to be working from my end. All right.

Well, I don’t see too many questions here in Facebook. And let’s see, I think we’re streaming live to YouTube as well. Let me take a look very quickly. And while I’m doing that, I’ll just remind all of you we do these Law of Self Defense News/Q&A Shows every Thursday 4pm Eastern time is the normal time when we don’t have technical difficulties.

So I urge you, if you like this kind of content to put it in your calendar, so you don’t have to miss a show. We air it live on the Law of Self Defense Members dashboard. Of course, that’s for our members only. Also in the Law of Self Defense Facebook page, which is http://facebook.com/lawofselfdefense. And on the Law of Self Defense YouTube channel, which is http://youtube.com/lawofselfdefense.

This is the only content we produce every week, that’s open access. You don’t need to be a member to access this content.

Oh, before we go, I do I forgot I had all these still photos from the Denver shooting. So let me finish up these remarks. And then we’ll dive into those. Okay, so our weekly show, be sure to join us next week. Now I do want to step through a bunch of this stuff, these photos that were released by the Denver Post and so I’m going to step through a sequence of these, these are the dozen photos that really capture I think, the gist of the fight and I’ve blown them up so they’re larger than just a corner of the screen. So they’ll obscure my face when I when I put them up, but I’ll just talk over them.

So here’s the first of those.

And it’s a little weird because there’s, about a I’d say there’s four, six photos before this. Maybe more. I think it’s more but there’s and they’re like a couple of frames per second or one frame per second. Something like that rate, but there’s a definite gap between the immediately preceding photo in this photo so we kind of jump to this point in time.

But when we get to this point of time we see the victim here on the left, that’s Lee Keltner. The guy who would be the shooter here on the right, Matt Dolloff. And certainly Kettler here appears to be in an aggressive stance, Dolloff as well, they’re both leaning forward, they both have their feet nice and broad, strong foundation for getting into a fight. Dolloff is reaching out with is mostly with his left hand here, and his right hand is also up. Behind Dolloff’s arm, you can’t see if it’s blocked by his arm. But Lee Keller does have a pistol in the shoulder holster under his left arm. Just inside that vest that’s flapped open there. I don’t believe we can see it in this picture, but it is there.

And some people have suggested that perhaps Dolloff was going for Lee Keltner’s pistol under that shoulder holster. It doesn’t particularly look like it here. But in any case, Dolloff is reaching out with his arms. And Keltner is about to slap Dolloff across the face, we can see his left arm out there and his right hand he’s got a large can of bear spray. Really a supersize can have OC spray. He doesn’t seem to be about imminently about to deploy it here in this image. It’s kind of he’s been holding it in his hand the entire time. So it’s not like he just presented it in this confrontation with Dolloff. It was already present in his hand. It is there but he doesn’t seem to be imminently use it.

Now if we look between Keltner’s legs here we can see kind of a sandbag at the base of a board that’s holding the fence up. I just want to keep that in mind because it kind of locks in Lee Keltner’s position here, because the men do move side to side as we’ll see in a moment, particular Keltner the victim here. The photographer mostly maintains this precise position. So it’s relatively easy to tell how the gentlemen move here.

So if we go on to the very next, we get to this image here.

So here we see, Kepler’s arm has made contact with doll’s face, it’s knocking his glasses, his hat, his mask side. Keller’s, this still doesn’t seem to be raised in the OC spray. Now was this and I would suggest this as a non-deadly use of force by Keltner. This might have been an act of initial aggression.

We don’t know whether or not the slap was justified because one of the shortcomings of still photographs is it doesn’t show actual motion, right? We can’t tell if someone in instant before was moving forwards or backwards and then also doesn’t provide audio. So we don’t know if people were verbalizing threats.

The nature of a physical act can change dramatically if it’s accompanied by say verbal threats, for example, and we don’t get that here at all. But in case here we have Keltner slapping Dolloff, I would argue it’s a non-deadly use of force at this point. A barehanded attack is typically a non deadly use of force.

We can still see that Keltner also still lined up more or less with that sandbag and the fence posts immediately behind them.

So we go to the next photo, and we have the slap to the face finishing, Dolloff, his head is jerking in response, the hat, the glasses, the mask, and kind of counters sweeping through.

Again, we can still see the post behind Keltner, the sandbag, but he’s clearly now his body position is a little bit further back than it was before. Maybe not enough to be a deliberate motion. Maybe it’s just a consequence of the twisting of his body as he’s throwing that slap to Donald’s face, but he’s already begun to move back and I think was we’ll see, it appears that he continues to step backwards.

So here he’s clearly kind of leaning back his arm is carried through maybe still just the function of him twisting his body in the course of the slap. But he’s certainly not advancing. He’s not getting closer to Dolloff at this point.

Then we have the next frame.

And again he’s even further back now the slap is fully complete.

Here he has the bear spray raised up a little bit but it doesn’t appear to me like he’s about to use the bear spray. It appears more how you would move your arm just to keep yourself balanced after slapping somebody. But of course we don’t know for certain because we can’t mind read minds.

The next frame here Dolloff’s his head is recovered from the slap.

He’s got his hands up. Keltner the victim with the bear spray is even further apart seems clearly to be creating distance here. One thing we don’t know is we don’t know if Keltner knows at this point that Dolloff has a gun, but he’s going to discover pretty quickly here.

Dolloff begins moving his hands towards the gun, which appears to be an ambidextrous in the waistband (AIWB) holster, Keltner is still clearly moving back again, we can’t hear what the men are saying, right?

We don’t know if Dolloff is saying, You MFer I’m gonna shoot you in the face right now. In which case, that would obviously be an escalation to deadly force.

Dolloff here does not appear to be facing a deadly force threat from Keltner, who if anything is backing off. And the other hand, maybe Keltner is saying, Oh, yeah, you have a gun, I’m gonna pepper spray you in the face, take your gun and kill you with it. Well, that would be important information to know.

Now obviously, I’m just making that up. But the fact is either one of those exchanges could easily have happened and would change completely the dynamics, the legal analysis of this confrontation, we just don’t know if any of that happened.

Now, of course, we’re not going to learn any of this from Keltner, Keltner’s dead. But are we going to hear it from Dolloff when Dolloff ultimately testifies or his lawyer shares a narrative of the case?

We get to the next frame and Dolloff’s hand is out of sight now but presumably reaching for or on the grip of pistol.

Keltner, still appears the it’s hard to tell from the snapshot. But he’s still further back from the post than he was, when he threw the slap, that’s for sure. I suggest given the sequence of the images that his weight is moving backwards, it’s not moving forwards.

We get to the next frame.

And Dolloff now has got both hands in a position to get a two-handed grip on the pistol as he presents it. Anyone who knows much about presenting a gun from this position, an observer would, I mean, certainly to my eye, Dolloff now looks like a man going for a gun. There’s not much question about it in my mind. Keltner still has that bear spray down on the side. So and that’s been consistent throughout, he’s still further back from where he was when he had initially slapped dolloff. So it doesn’t appear to me to be in a mode of aggression, certainly not deadly force aggression.                      We look at the next frame.

The presentation of the pistol is in progress. Keltner now is as both feet next to each other. He’s not advancing or retreating. But he’s clearly further away than he was at the beginning of the confrontation.

We have Dolloff, getting the gun out of the holster.

Now, of course, Keltner is observing this. Maybe he perceives a deadly force threat as he sees the gun coming out.

And then in the next frame, the next moment, we have simultaneously Keltner spraying Dolloff with bear spray, and Dolloff shooting Keltner in with that single shot. This would be of course the fatal shot right there. Keltner would be struck in the face and killed instantly.

So what’s happening here? This is of course, the question. Is Dolloff shooting Keltner in defense against the bear spray? Doesn’t look like it to me. Because the immediately preceding image I mean, clearly for several frames we saw Dolloff already committed to presenting the gun. What’s the deadly force threat here? I don’t see it. I mean, if there’s some weird verbalization by Keltner, hey, I’m going to pepper spray, take your gun and kill you with it, maybe I mean, that could be a deadly force, right? OC if used offensively could be a deadly force threat, especially if there’s additional evidence, circumstances from which to infer deadly force threat.

But absent that kind of weird verbalization, certainly from the conduct alone, I don’t see a deadly force threat to Dolloff at this point in time. And here, there’s no pepper spray [yet, but] the guns already coming out at this point.

So when we get to the very next frame, where Keltner is spraying pepper, it appears to me he’s spraying in response to the presentation of the gun, trying to impair Dolloff’s ability to unlawfully shoot him, which would be a lawful use of the pepper spray, you’re clearly allowed to use pepper spray to prevent yourself from being unlawfully shot.

So that’s where I currently come down and what I think is the most likely narrative closest to truth. In this case, I’m still open to my mind being changed as more evidence emerges, but right now that’s how it looks to me.

Okay, folks, I’ll take one last look at Facebook. And it doesn’t look like there’s questions in there. And I don’t know how to check YouTube and turns out so with that, we’re right at the top of the hour as well. So I’ll go ahead and sign off.

Remember, please join us every Thursday 4pm Eastern time live. If you like this kind of content and would like to try out law of self defense membership. You can do that for just 99 cents.

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Okay, folks, so with that said, I will get ready to sign off just remember as always, folks, if you carry a gun, so that you’re hard to kill, and that is why I carry a gun for sure I have my entire adult life so I’m hard to kill so my family’s hard to kill folks and I urge you also to make sure that you know the law so that you’re hard to convict as well.

Okay, I’m Attorney Andrew Branca for Law of Self Defense. Until next time, stay safe.