News/Q&A Show: Oct. 22, 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 22, 2020 we touched on a broad range of questions submitted for the show, as well as questions submitted live, including:

• What if I’m Unusually Susceptible to Dying from Blow to the Head?
• Can I Shoot 6 Shots Very Quickly at Aggressor, or Is That Excessive?
• The Legal Defense of Duress: How Does It Work?
• How Does Self-Defense Immunity Work?
• How Does Self-Defense Apply to Unintentionally Shooting Innocent Bystanders?
• What About 3rd Degree Murder Charge Dropped Against Chauvin?
• How Does It Complicate Self-Defense if Armed Contrary to Work Rule?

Enjoy the show!

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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.

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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

 

Welcome, everybody to the Law of Self Defense show for October 22, 2020. This is our weekly news and q&a show it airs every Thursday at 4pm. Eastern Time, roughly Sorry, I was a couple minutes late today, I had a bunch of meetings that ran a little bit long. But we are here. Hopefully everybody can hear us. Okay. This is the only show we do every week that is open access, you don’t need to be a Law of Self Defense member to participate in is free. So come on in. Of course, we do this to grow the Law of Self Defense community, most of our weekly content is limited to Law of Self Defense members. If you’re watching this live only if you’re watching it live, folks, but if you’re watching it live, and you’d like to put in the comments, your city and state that helps provide me with some useful geographic context. And if you’re watching on Facebook, if you could please click that share button. That’s helpful. Also that like thumbs up that helps encourage Facebook to spread word of our show more broadly. And that’s also always appreciated for those who may be new to the Law of Self Defense. I am attorney Andrew Branca. I’m an attorney who specializes in use of force law meaning defense of self, defensive family, defense of others, defensive property use of force law exclusively, I don’t have a generalized criminal defense practice. I don’t do DWI, I don’t do shoplifting, just use the force cases. And that’s been the case for nearly 30 years now. So quite some time.

In these weekly news and q&a shows what we do is we cover some typically events in the news that have occurred from any use of force context. And perhaps more importantly, we also answer your questions. Now we typically have questions sent in ahead of time, either from our own Law of Self Defense members, or from the general public, anybody can send in questions for our consideration via email to show at Law of Self Defense calm. If you don’t get a chance to get it in for this week. You can get it in for next week. Also, you can ask questions live. And here’s the lovely Emily with my coffee. Thank you so much, honey. lifesaver. There we go. Sorry. Huh. had a long night last night. little tired today. But we’ll get at it. Now I’ve got my coffee. It should be all good. So you can also ask questions in the comments. If you’re a Law of Self Defense member, you may be enjoying the show in the Law of Self Defense membership dashboard. I see that’s working today. Comments are coming in those questions, those live questions in those comments, there will be prioritized. Next, we’ll do any live questions that come in over Facebook as time allows. I do encourage you to mark your calendars because we do this show weekly, every Thursday 4pm. Again, Mark your calendars you never have to miss it live. If you can’t catch it live, we do leave the recorded replay available on the Law of Self Defense blog, again, open access as well as on Facebook, and typically on the Law of Self Defense YouTube channel as well. Let’s see what we have to dive into today.

Today’s show will be question heavy. I don’t have I don’t think any particular news events that we haven’t already covered in the blog earlier this week to address here today. So we’ll be doing mostly questions that have been sent to them beforehand, and any that might be asked during the show itself.

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.

What else I should also mention, for those of you who are not Law of Self Defense members, we do content, usually video blog post and audio content on our members only podcast just about every day of the week, most of the time other than the show that content is restricted to our members. To give you a sense of the kind of content we covered this week, we did a blog post by which I mean text, video and podcast about a case in which a person who acted in nominal self defense against the deadly force attack was the nine the privilege of arguing self defense as a legal justification at trial, because at the time they were engaged in a marijuana purchase. Now in most states, being engaged in a non violent criminal activity does not automatically strip you have the privilege of self defense, but then a few states, one of which is Georgia, which was the jurisdiction in this event. In a few states, self defense is made conditional on not being engaged in any unlawful activity, even simply buying marijuana. So this was an illustration of that minority of states where the defender otherwise acting in perfectly lawful self defense because they were engaged in a marijuana purchase was not allowed to argue self defense at trial to justify their use of deadly defensive force got convicted, off to prison they go. Another story we did was on a road rage event.

This was in Kentucky if I recall correctly, there was a minor traffic accident that pushed a car into the median of the highway. That car that had been pushed into the median had apparently been driving rather recklessly According to witnesses, when he ended up in the media and he got out of his car, got into his trunk retrieved a rifle and walked over to the car that he thought had offended him, pointed the rifle inside the car. The guy in the car had a gun to he in a tourist pistol. He had the one that works. And he fired four rounds killed the rifleman. Clearly now the twist here is that the rifle actually was not capable of inflicting death or serious bodily injury because it was not only unloaded, but it also had a trigger lock on it. Does that matter for the pistol shooters claim of self defense? It doesn’t matter. For the reasons we talked about. In this case here. What’s required under the law for justified use of force and self defense is that you’re responding to the reasonable appearance of a threat. It doesn’t have to be an actual threat. mistakes and self defense are permissible so long as they are reasonable mistakes.

And then today’s blog post that went out this morning was on an event that happened I believe it was in Israel a few years ago, but it was brought to our attention by one of our members who asked questions about it. It was a case in which a passenger in a car or driver of a car rather, was attacked by another driver. The other driver got a large club out of his trunk attacked the victim. The victim had a pistol in his car came out of his own car with the pistol shot the club wielder once, almost certainly lawful self defense shut him a second time. pretty sketchy. shot him a third time when there clearly was no longer a threat. And we explore a number of different legal defenses that Our Platinum member asked whether or not any of those would apply. And we stepped through them in our analysis in that blog post that went out earlier this morning. One of those defenses, interestingly enough, was the defense of duress, which does not come up often in use of force cases. But I thought it’s sufficiently interesting that we dug through it in today’s podcast.

So if any of those topics are interesting to you, well, the way to get access to those is to be a Law of Self Defense member. The good news is that Law of Self Defense membership is extremely inexpensive. It’s only about 30 cents 33 cents a day, it’s less than $10 a month to be a member of Law of Self Defense get access to all that content. And again, we do a blog post like that pretty much every workday.

Two-Week Law of Self Defense Trial Membership: Just 99 cents!

Even better, you can try out Law of Self Defense membership for just 99 cents that covers you for two weeks gives you full access just like any other member. And if you decide within that two weeks, it’s not for you, you can cancel it will give you back 200% of your money. So it’s a negative risk proposition. And if you decide to stay a member, again, it’s only about 33 cents a day, folks to be a member of Law of Self Defense.

So if that’s of interest to you, I would encourage you to click the image or link below, and for 99 cents, give us a shot.

http://lawofselfdefense.com/trial

The one other thing I’ll mention is we often in our legal analysis will talk about the five elements of self defense. The reason we do that is because American self defense law is based on five legal elements. The good news is there’s only five there’s not 500, there’s not 50. And in further good news, these five elements, this framework applies in all 50 states common to all 50 states. So once you understand how this five elements legal framework for self defense law works, you can be confident that it applies in your state no matter what state that might be. And if you don’t understand these five elements, you can’t possibly understand anything about how self-defense law is applied to real people in real use of force cases.

The good news is, we’re more than happy to share these five elements with you no cost whatsoever, but I’ll tell you what they are right now they are innocence, imminence, proportionality, avoidance and reasonableness.

FREE: Five Elements of Self-Defense Infographic

And I would urge you to download our five elements of self defense infographic, it lists those five elements provides a brief description of each, and it cost you nothing. It’s just a PDF download, and you can get that by clicking the image or link below:

http://lawofselfdefense.com/elements

Again, if you don’t understand these five elements, you simply don’t actually understand self-defense law at all.

All right, I think with all that out of the way, I’ll begin to jump through the questions that have come in since the last show last week. Most of these are from our Platinum level members. So Law of Self Defense Platinum level members, get a members-only Q&A Form on their membership dashboard. Those are the highest priority questions we get will always answer 100% of those often on the show. But if a member asks to have their question answered privately, we do that as well. That’s one of the benefits of Platinum level membership.

What if I’m Unusually Susceptible to Dying from Blow to the Head?

This first question comes in from Geary in North Carolina. And he says, having had brain surgery and head injuries, my doctor says another injury to the head may have serious effects. If a person wants to fight him, and I tell them I do not want to fight and then I have had serious injuries to the head. And that aggressor takes a swing at me with this constitute deadly force deadly force may not occur, I guess it means death may not occur, but serious bodily injury may occur. In North Carolina, he says a person has a right to prevent serious bodily injury and or death. And it ends there.

But I guess essentially his question is, if I’m unusually susceptible to suffer death, or serious bodily harm from a blow to the head, even when such a blow would not represent a deadly force threat to a typical healthy person without my physical liabilities. If I were unusually susceptible to suffering deadly force harm from such a blow, would that constitute a deadly force attack against which I would be privileged to use deadly defensive force?

So Gary, the answer to that is that the legal analysis is always the same in terms of when are you privileged to use deadly defensive force the answer is going to be your privilege to use deadly defensive force when you’re defending as an innocent party against an unlawful imminent threat of deadly force harm.

Now, deadly force harm includes not just force readily capable of causing death, but also force readily capable of causing serious bodily injury so you don’t have to be facing literal death before you can use it. deadly defensive force you have to be facing death or serious bodily injury. Certainly severe head trauma would constitute serious bodily injury.

And if you are unusually susceptible to serious head trauma, and this could be because of as in your case, brain surgery and head injuries, it could be because the victim of the attack is on blood thinners, it could be for any variety of reasons. If the nature of the attack, in your circumstances based on your physical infirmities is one that is likely to cause death, or serious bodily injury to you, it constitutes a deadly force attack, even if that identical attack inflicted on a healthy person would not be likely to inflict death or serious bodily injury.

So normally, a thrown punch is deemed by the courts to be non deadly force absent some aggravating factors. But if you’re unusually susceptible to death, or serious bodily injury from that thrown punch, that thrown punch becomes a deadly force attack for you. Excuse me.

Now, Geary mentions in this hypothetical, a person wants to fight and I tell them I don’t want to fight and then I have serious head injuries, or have had serious head injuries. You don’t have to tell them anything. I mean, it doesn’t hurt to tell them, you might want to tell them. But it’s not necessary. They don’t need to know that their use of force threatens you with death or serious bodily injury, they might believe it’s just a purely non deadly force punch that they’re throwing at you. What matters is not what’s in their head, what matters is what you know, to be the case, excuse me.

If you know that punch is likely to cause you death and serious bodily injury, it doesn’t matter whether they know that or not. That’s not what’s important. What’s important is what the threat actually is not whether or not they know it to be the case. So what they know about it, is simply irrelevant. And of course, you’re not required to wait until you’re actually struck because the law of self defense, not just in North Carolina, but everywhere.

As you note as Geary notes gives you a right to prevent serious bodily injury or death, that’s really the element of imminence. You’re allowed to defend yourself, not just against an attack that’s actually in progress blows or raining down upon you. You’re allowed to defend yourself against an attack that’s immediately about to happen. So Strictly speaking, you don’t have to have suffered a scratch before you’re allowed to use force and perhaps even deadly force, depending on the circumstances in self defense. You’re allowed again to defend yourself against the imminent attack that you’re facing.

All right, well, Geary actually sent him the next question too, but before we jump into his next question, I see some questions are coming in. Hey, Will Parker. Will Parker just commented on Facebook. He’s a self-defense firearms instructor up in Montana. He’s almost in Canada, but not quite. Kalispell, Montana. Very good instructor, very good shooter graduate of our Law of Self Defense instructor program. If you’re up in that neck of the woods, or if you find that we’ll Parker’s teaching in your area as a travel instructor, I strongly encourage you to take a look at what we’ll has to offer. He does great work has hosted me many times up at his facility. I see questions are coming in on Facebook. I will wait to answer those until we get through our Platinum member questions. I expect we will have time to address most or all of the Facebook questions, so please don’t hesitate to put them in the comments. I’ll get to them as best I can. But closer to the second half of the show.

Can I Shoot 6 Shots Very Quickly at Aggressor, or Is That Excessive?

So Geary, second question here. Again, Geary from North Carolina, a law of self defense Platinum level member writes, quote, Can I shoot a person with three to six rounds fast? On the initial attack? I shoot fast and do not double tap and then assess the situation. The shots are fast and consecutive. How do you determine excessive force in this situation? I don’t know of any cases that have determined the speed of making multiple shots, close quote.

It’s a great question, Gary. And the answer is really, whether or not the number of shots fired, were reasonable under the circumstances or constitute excessive force is always going to be a judgment call that’s ultimately made by other people. Of course, you have your own assessment of whether or not that force was reasonable.

And strictly speaking what the law says you’re allowed to continue using force as long as you continue to face an imminent threat. If it requires three shots to neutralize that threat. You can fire three shots if it requires six You can fire six, if it requires nine, you can fire nine. In theory, if it requires 100, you can fire 100. So as long as there’s an imminent threat, you’re allowed to continue to use defensive force.

The problem is, of course is the more shots that are fired, the less it looks reasonable. Remember the people who are judging your conduct. Ultimately, jurors are not going to know anything about guns or split times on shots or how ineffective pistol rounds are and stopping someone are how terminal ballistics can vary between a normal sized person and a very obese person, for example, that may be attacking you, there’s a lot of variables here. And the more ambiguous the situation gets, including things like a high number of shots fired, the less it looks like self defense.

And by the way, the prosecutor isn’t going to know any of these things, either. But he does know that we’re accustomed from TV in the movies to see someone shot once or twice, and they completely fall over get blown through a window, whatever the case might be. So when he sees someone shot six times, it begins to look less like self defense to him, perhaps in good faith, he actually even believes that. And that’s the narrative, he’s going to try to sell the jury.

So it’s better for the defender, if they can neutralize the threat with the fewest number of necessary rounds. The fewer rounds you fire, the better the self defense narrative is going to look.

Now, keep in mind, I do Self Defense Law, okay, not tactics. But nevertheless, I will be the first to tell you that winning the fight is the priority. You have to do what you need to do to survive the fight otherwise, everything else becomes less pressing. If it takes six rounds to survive the fight well, then that’s what you have to do. The answer is not fire five rounds and die in the fight. The answer is to use as many rounds as you need to.

Having said that, to the extent you can keep the round count down, it’s better for your narrative. So what are ways you can do that? Well, frankly, the biggest one is shot placement, are you actually proficient with that firearm, if you miss a lot, or you get a lot of ancillary hits on a attacker, you’re going to end up firing a lot more shots, and that weakens the strength of your self defense narrative, having fired those many shots. If you can get 1, 2, 3 shots center mass that effectively neutralize the target. Well aimed well placed effective hits, even a rifle, sorry, even a pistol can do an effective job. If the shots are placed Well, they tend to be ineffective when the shot placement is more digital rifles in that context tend to be much more effective.

So if you can keep the count down, better for yourself defense narrative, the law allows you to fire as many shots as necessary. But the more shots you fire, the harder it is that it was in fact necessary. And again, the people evaluating this don’t know anything about guns or tactics or terminal ballistics or anything.

Now I will say this, unless the round count is really egregious, unless it’s 10 1215 rounds. And I know some of you are thinking, well, the police sometimes do that, and blah, blah, blah, it’s okay for them. Forget it, folks, unless you’re a police officer acting in the capacity of a police officer does those examples don’t apply to you, no matter how much we might wish they would. So forget it, just set that aside.

Unless the round count is egregious people do not tend to get into trouble. Because they, for example, fired four shots, five shots, even six shots very quickly, two tenths of a second split times. And the prosecution goes, Well, I’ll tell you what, you fired six rounds and a second and a half. And I will give you the first five, the first five totally privileged lawful self defense. But that sixth round, that’s the one you’re going to prison for the rest of your life on.

That’s not how the scenarios tend to play out. Where people tend to get in trouble in terms of too many rounds. excessive force, unreasonable force in terms of round count, is not so much the number of rounds itself, but the manner the cadence in which they’re fired. People tend to get into trouble when they fire a series of rounds, one initial burst of fire, and then there’s a pause in the action. Often it’s several seconds, 3, 4, 5, 6 seconds, and then they fire again.

The difficulty there is what’s happened in the pause is in fact, the threat was neutralized, what was an imminent threat that you had fire that is no longer an imminent threat. And during that pause, you should have realized that that was the case that in fact, your initial use of force had been sufficient, you’ve neutralized the threat. But instead you come back and you fire yet another round.

In that circumstance that second round, or rounds depending on the circumstances could well not be privileged, lawful self defense, even when the first burst of fire was and the reason is well because of those Five Elements of self defense, the first rounds were justified because you were when you fired those facing an unlawful imminent threat of deadly force harm. But after that, pause, that harm no longer existed, the threat of harm no longer existed. So when you fired shots after the pause, those shots were not being fired while you were facing an unlawful imminent threat of deadly force harm. Therefore, those shots the second set of shots cannot be justified is lawful self defense.

Does the Platinum Protection Program Provide a Lawyer in My State?

Another question from a platinum member, David M. from Ohio, he really he’s got a question about the Platinum protection program that we have here at lawful self defense. This is a program you can sign up for, it’s the only way to guarantee that I’m available for your legal defense. It also provides you with Platinum level access to all of our content. The truth is folks that I’m extremely busy, work almost seven days a week have really more casework than I care to have to tell you the truth. So that it’s extremely difficult to get me to be available for a case. Most of the time these days, I have to say no, I have to decline to take case work. And that’s unfortunate for the people involved in those cases.

But I simply don’t have the bandwidth. And I can’t simply abandon all my other commitments for, you know, a prospective client I’ve never heard of before who calls my office is in desperate need of help. I have to honor those other commitments. The only exception to that is if you are a platinum Protection Program member, because then you’ve made a commitment to me in turn prior. So then I am in a position where I can drop those other commitments because essentially, you’re you come first in priority. The only way you can guarantee I’m available for your legal defense is to be a platinum Protection Program member.

http://lawoffselfdefense.com/platinum

Now sometimes people like David here, seem to confuse what we offer in the Platinum protection program with what other companies like our sponsor CCW Safe, or USCCA, or Armed Citizen Legal Defense Fund, the so called, you know, mistakenly called self defense insurance programs out there offer, we don’t offer the same thing they offer, they’re different. those organizations will purport to pay your legal defenses generally. So they pay for your lawyer, they pay for experts, they pay for various things at all varies by program, you’ll have to look at those programs for their details. But in essence, their commitment is to pay legal expenses, generally.

Our Platinum Protection Program at Law of Self Defense covers only me, so you don’t have to pay for me under the program. that’s included in the monthly fee you pay to be a platinum Protection Program member. But that’s the only fee it pays is my legal expense. So normally, my current rate for consultation on the case, when I’m available to take a case, which isn’t very often is $10,000. So that’s what’s covered our Platinum Protection Program members when they need my legal consultation for use of force event, they don’t pay anything, it’s completely covered. But if they have other expenses, those are not covered by the Platinum protection program.

And I don’t provide an attorney for anybody. You’re getting my legal services. That’s it. Now I can recommend attorneys that I’ve worked with probably in your jurisdiction, people I know are good. And I’m happy to do that for our Platinum Protection Program members that are involved in the use of force event are having difficulty finding good legal representation. And that attorney becomes lead counsel on your case. And they become my client for my legal consult on your case.

But I don’t provide an attorney in the sense of paying for that attorney for you. That’s your responsibility.

The Legal Defense of Duress

We did have a great question come in from Platinum Protection Program member Tammy. And it involved questions about the legal defense of duress. And she also linked a video with to provide context around her question. But the question was so good. We actually answered it yesterday in a full blown blog post. If you’re interested in checking that out, you will need to be a Law of Self Defense member. But it’s a blog post with this featured Image turning self defense into an unlawful killing, or does the legal defense of duress excuse that use of force?

So, Tammy, if you’re listening and you’re we’re looking to get your question answered here, instead of spending just a minute or two on here, we spent the good I think a good 20 minutes answering your question in yesterday’s blog post and of course it’s a platinum Protection Program member. You have open access to to that blog post. It’s just actually this morning’s blog post not yesterday’s.  I wrote it yesterday but we put a live this morning.

How Does Self-Defense Immunity Work?

We got another question from a platinum protection member in Minnesota. I don’t think he provided his name with question. Which is fine, it’s fine to be anonymous. And he asks explain self defense immunity.

Now self defense immunity is often misunderstood. And that’s largely the result of the grossly imperfect and incorrect way that the media and unfortunately too many people in the legal profession describes self defense immunity and how they conflate it with completely distinct legal doctrines. Like stand your ground for example, and part of this is the fault of the state of Florida.

So years ago state the state of Florida, I believe it was 2005 adopted stand your ground so before Florida had was a duty to retreat state you had a legal duty to retreat if safely possible. Before you could use force and self defense. If you did not take advantage of that safe Avenue retreat, you were not privileged to claim self defense to justify your use of force. Florida adopted stand your ground which removed that otherwise existing legal duty to retreat.

Now you could qualify for self defense without having to try to take advantage of a safe Avenue retreat essentially, of those five elements of self defense innocence, eminence, proportionality avoidance and reasonableness. Stand you ground takes the element of avoidance off the table, assuming you meet the conditions to qualify for standard grant under Florida law, the same time that Florida

So one way to think about stand your ground is that it redefines the scope of self defense. So self defense has up to five elements, one of those five elements is the element of avoidance. So for your conduct your use of force to qualify self defense, it has to meet those five conditions, but fails to meet any one of those conditions. Whatever it was, it was not lawful self defense.

What Florida did was stand your ground is remove one of those five conditions. Now there’s only four conditions. That means there’s a broader scope of conduct that can qualify as lawful self defense, then was the case previously, because you have fewer conditions, you need to meet it redefined it broaden the scope of what qualifies as lawful self defense the adoption of standard grant by removing an effect that element avoidance one of the five elements of self defense.

At the same time, the Florida adopted stand your ground, simultaneously but in a completely different statute, it also adopted what’s called self defense immunity.

And self defense immunity has nothing to do with stand your ground completely independent. What self defense immunity says is, it has nothing to do with the definition of self defense what qualifies as self defense, nothing. Remember, stand your ground redefined self defense. Self Defense immunity has nothing to do with the definition of self defense.

Self Defense immunity merely says if your conduct meets the conditions of self defense, however, those conditions may be defined elsewhere because they’re not defined by self defense immunity. They’re defined in other places other statutes. Self Defense immunity says if your conduct your use of force meets the conditions of self defense as they’re defined elsewhere, then you are immune from criminal prosecution immune from civil suit, which of those and whether it’s both of those depends on the state and Florida it’s both.

So under Florida law, if you meet the conditions for self defense as defined under Florida law, you can be immune from criminal prosecution and immune from civil suit. But the definition of self defense could change again in Florida they could remove an element they could get rid of stand your ground and reincorporate avoidance as an element of self defense. So the definition of self defense could change. But that doesn’t change self defense immunity.

Self Defense immunity merely says however, self defense may be defined if you qualify your privilege to be immune from prosecution immune from civil suit. Two different statutes, two completely different legal doctrines.

Unfortunately, because Florida adopted both of them. At the same time, it’s very common to see the media and even legal professionals refer to both of those legal doctrines completely distinct legal doctrines refer to both of them as standard ground. Only one of them stand your ground stand your ground merely relieves you of an otherwise existing duty to retreat. Self Defense immunity has nothing to do with Sandra ground per se.

And by using the same phrase to describe these two completely distinct legal doctrines, as you might imagine, it only causes confusion.

Now, I already kind of described with self defense immunity does if your conduct meets the conditions for self defense, you’re immune from criminal prosecution and civil suit. But there’s a better conceptual way of understanding self defense immunity and that is that how I think of it is really as a much improved, much more efficient, less cost, less time way of establishing self defense as a matter of law and when I say less costly less time consuming, I mean, compared to the normal way of establishing self defense in an absolute way, which is to go to trial and have a jury returned a verdict.

I mentioned at the start, when I talked about CCW, safe, our sponsor that a killing trial and manslaughter or murder trial can easily cost a couple hundred couple hundred thousand dollars before the trial itself. It can take years to get to and through a murder trial, in terms of the pre trial effort, and then the trial itself.

And then at the end, maybe you’re convicted, but maybe you’re acquitted on the basis of self defense. And then we discovered it the cost of hundreds of thousands dollars and years of our life, that in fact, it was self defense all along, just like the defendant claimed. It’s a way to get to a finding of self defense, but it’s a very costly and time consuming way to do it.

What self defense immunity does is provide an alternative path to get to that same conclusion, was it lawful self defense and if it was, your without criminal liability, just as if you’d been acquitted at trial. And the way it does that is when you apply for your lawyer would file a motion for a hearing in front of the usually the trial court judge, when you apply for self defense immunity, you’re doing it pre trial.

Now doesn’t mean it’s free, it’s still cost a few thousand dollars to have a pre trial hearing, maybe several thousands of dollars to have a pre trial hearing, depending on how complex it is and whether you bring expert witnesses in and so forth. But it’s far less than the hundreds of thousands of dollars you can easily spend on a murder trial. And you can have it done in a matter of weeks instead of a matter of years. It all happens pre trial. So it happens before you incur the time and cost of the trial itself.

And typically how it works and the Florida standards a little bit differently different than this. But typically how it works is if the defendant can convince the judge by a preponderance majority of the evidence that his use of force qualifies as self defense, the judge can grant the defendant immunity from prosecution and civil suit. And there’s no need for a trial, we’ve made an absolute determination to self defense pre trial at the cost of a few thousand dollars in a few weeks instead of hundreds of thousands of dollars in years.

Now, strictly speaking in Florida, they’ve changed the legal threshold. Now when you file a motion for self defense immunity in Florida, the burden is on the prosecution to disprove your claim of self defense by clear and convincing evidence. I don’t want to get into the details of all that except that it’s a it’s a more favorable legal standard for the person applying for immunity than if they had to prove self defense by a preponderance of the evidence.

Let’s see what else we have here. So that’s the best way to think about self defense immunity as a more efficient, more timely, less costly way of determining self defense as an alternative to the tremendous costs and time of going to trial itself by being able to seek self defense immunity in a pre trial hearing.

Okay, folks, so those were all the questions I had sent in from Platinum members this week. Let me start going through questions that have come in while we’ve been on the show live. First, of course, I’ll go through the comments on our last self defense members dashboard. They get priority.

How Does Self-Defense Apply to Unintentionally Shooting Innocent Bystanders?

Alex asks, Can you talk about how self defense applies to potential injuries to innocent third parties? I love Brianna Taylor. Had she been innocent? Well, for our purposes, let’s assume she was entirely innocent. And the innocent bystander a attacks b b tries to defend unintentionally shoot see how his be treated by the law. So you’re attacked by some guy. Let’s say he’s wielding a machete. He’s coming right at us. 10 feet away, not a complicated tactical or legal analysis there. You draw your pistol, you shoot that guy or at least you shoot at that guy.

Let’s imagine you do in fact hit him and neutralize a threat but one of your rounds, misses or over penetrates and continues downrange strikes an entirely innocent bystander, someone you didn’t even know was there has nothing to do with the attack upon you. Certainly bears no fault in the attack upon you again, an entirely innocent bystander. What is your legal liability there?

Well, assuming that your uses defensive force was reasonable and non reckless, what applies there is a doctrine called transferred intent as long as your intent in firing the shot at your genuine attacker was a good intent. In other words, your use of that force was lawful self defense. That good intent follows the bullet and transfer transfers to that innocent bystanders. So if you had no criminal liability for firing the round, At the attacker, you don’t have any criminal liability, really, it would also apply to civil liability for the round that hits the innocent bystander, it’s just bad luck. It’s essentially a form of accident.

Now, that good transferred intent doctrine would not apply if your use of force in self defense was in some way reckless, negligent. Say, for example, the guys coming at you with the machete and in fear you cover your eyes with one hand and just do a magazine dump with the other hand? Well, I think most of us would agree that that’s not a non reckless way. That’s not a responsible way of firing a gun and self defense. If your conduct if your use of force was reckless in nature, then you don’t get the benefit of transporting 10. Or to put it another way, your intent was not a good intent. It was not an innocent intent. It was not a responsible intent. It was a reckless intent.

And if you kill someone recklessly, that’s just involuntary manslaughter. So you’d be on the hook for involuntary manslaughter. You didn’t intend to kill the innocent bystander. You had no murderous intent towards them. But your conduct was inherently reckless. You disregarded the risk of death that you were creating towards innocent people. And the death actually resulted. That’s the classic definition of involuntary manslaughter. It’s much akin to a drunk driver who drives over a pedestrian in the crosswalk because they’re intoxicated. They didn’t mean to kill the pedestrian, that wasn’t their intent or purpose. But by driving intoxicated, they created a high risk of death to an innocent person. That’s the definition of recklessness. They disregarded that risk, a death resulted. It’s involuntary manslaughter.

So in the Brianna Taylor case, we have the cops serving the warrant, the warrant was good. They didn’t have to knock. But witnesses say they did knock kick the door down. The boyfriend in the house as he thought they were home invaders. Let’s assume that’s true. So the cops kicked the door down, he doesn’t know they’re cops, he thinks are home invaders, he shoots at the cops. Arguably, he’s acting perfectly lawfully defending his home against what he reasonably perceives, we’ll assume for our purposes of discussion. We’re home invaders, the cops get fired on. Well, they’re allowed to defend themselves, so they return fire at the boyfriend. That’s also a lawful use of force.

So we have a situation where we’re about to have an awful outcome, but in fact, nothing criminal has happened. The boyfriend firing his shot was lawful. We’re assuming the cops returning fire. Also lawful. Breanna Taylor gets struck by one of the officers rounds multiple times, I guess. But in any case, it’s it’s she’s mortally wounded and she dies. So long as that officers firing of the rounds was non reckless, in other words, resembles an attempt to neutralize the attack upon them. There’s no criminal liability there. The officer didn’t do anything criminal. It’s just a terrible accident a tragedy of innocent bystander in this case, Brianna Taylor, ended up dead as a result of this gunfight, but no criminal liability attaches.

Now the one officer who was charged in that case was charged specifically on the grounds that his firing arounds was reckless. He fired some rounds that went into some other apartment. Now, I don’t know whether they were reckless or not, because I haven’t seen the evidence. But that’s the argument that’s being made. And of course, we already know based on our discussion so far, it’s a reasonable argument. If his use of defensive force was reckless, say he closed his eyes and did a magazine dump. Now, he didn’t actually hit anybody, but it’s the charges reckless endangerment, I guess. If it was reckless, then it can’t be justified as a lawful use of force because it’s wasn’t reasonable. And reasonableness is of course one of the elements of self defense.

Let’s see.

Oh, the question of self defense immunity. It turns out came from Pete see he’s one of our Platinum members. He commented here.

What About 3^rd Degree Murder Charge Dropped Against Chauvin?

RTS asks implications of the third degree murder charge against show Vaughn being dropped in the Floyd case. So this is News that just came out today. The show Vaughn This is one of the officers in the George George Floyd case. He was the officer kneeling on Floyd’s neck had a number of charges, I believe, basically, first degree murder, felony murder third degree murder, which is, if I recall correctly, I didn’t review this. So if I’m mistaken, I’ll correct it later. I believe it basically it’s involuntary manslaughter, reckless killing.

And a couple of the other cops who have been charged in the case all had a hearing in front of the judge today, where their lawyers were seeking to get all the charges dismissed for lack of probable cause. In the case of the other two cops to get Nothing dismissed. I don’t believe shavon did get one of the charges against him dismissed. And it’s that third degree murder charge, unfortunately.

And the good news is the judge appears to have written a fairly extensive opinion, explaining why he refused to dismiss most of the charges, but did dismiss that one. Unfortunately, I haven’t had a chance to read his decision yet. And I don’t want to comment in detail him on on the decision without having read it. But I will read it today or tomorrow. If I don’t comment on on it by tomorrow, I’ll certainly do something over the weekend and provide a more detailed analysis and a dedicated blog post for our members, just on that decision in the Chauvin case.

Rather than try to address it in just a minute or two in the show today, so sorry, parties, but uh, I’m going to to delay a substantive response to your question until I have an opportunity to give it the attention that it genuinely deserves.

Okay, that looks like all the questions from our members in the last off the fence members dashboard. Again, if you’d like to try out membership, folks, it’s really inexpensive. It’s 99 cents for two weeks. If you decide you don’t like it, in that two week period you cancelled we’ll give you 200% of your money back. It’s a zero risk opportunity. If you do decide to stay a member, it’s still cheap. It’s only about 33 cents a day, less than $10 a month and you get access to all our content hours and hours and hours of law self defense, video, text podcast, Self Defense Law, insight, education expertise that we produce virtually every day of the week. So dozens of hours every month of this kind of content. If you’re interested in that you can try it out by clicking the image or link below:

http://lawofselfdefense.com/trial

Okay, let’s look at the questions now that have come in on Facebook. Lots of good friends on Facebook. Hey Art Joslin, is a graduate also of our Law of Self Defense instructor program. And currently after he had that experience, and we had dinner, art decided to go to law school. So he’s actually currently in law school unless he’s graduated. Sorry, art. I can’t remember now if you actually finished the process already. I lose track of time. But arts, it doesn’t happen with great frequency. But we have a number of members of the law self defense community, who ended up going to law school after experiencing membership.

Sean Sorrentino, another friend of law self defense. Thanks, Shawn. He also mentions the charge being dropped, the third-degree murder charge being dropped against Chauvin. I’ll address that within the next few days, Sean, after I’ve had a chance to read the decision.

How Does It Complicate Self-Defense if Armed Contrary to Work Rule?

Paul brochure asks on Facebook, how’s it complicate self-defense if you are armed in violation of your employer’s directions What if your employer is a government agency? senses folks plotted lots of dangerous places that we had to enumerate but stressed that we were not allowed to carry arms. So what are the implications of carrying arms contrary to your employer’s direction. I don’t want to deal with, you know, government employees specifically because that begins to create some complexity around the issue.

But you’re a normal civilian employee, your boss says you’re not allowed to carry a gun. uncut on company property or while engaged in company services and you do it anyway. What can happen to you legally, if you’re involved in the use of force event, and it’s discovered that you have that gun contrary to your employees instructions? Well, it doesn’t fundamentally harm your core claim of self defense. Not carrying contrary to employee direction is not an element of a self defense claim. And it’s not a violation of the law.

Now, again, it can get a little complex depending on your state. If the property is posted against guns and that has legal criminal effect in your state, then you could arguably be committing a crime while you’re also violating your employees direction, but those are really two different things. One is a workplace instruction does not have criminal legal effect. It’s possible the posting could have criminal legal effect and some states postings do and some states they don’t. Our expertise is not really gun law. So I’ll defer you to whatever your state level expert is on gun law in your jurisdiction. But if you’re carrying contrary simply to employing instructions, it doesn’t lose you self defense at all. really has nothing to do with it.

Of course you could lose your job. In fact, I would expect you to lose your job your your employer sets the terms for employment, you violate the terms you should expect to be terminated. not have a job anymore. Now, if you carrying the gun does have some potential criminal legal effect. In most states, it still won’t undermine your claim of self defense at its core.

Just like I discussed earlier, when I talked about the gentleman who was involved in the use of force event while buying marijuana. Most states don’t care in the context of self defense, if you when you defended yourself, you happen to be engaged in some criminal activity, so long as the criminal activities of a non violent nature that doesn’t make you the aggressor in the fight. For example, if you’re the aggressor in the fight, you lose self defense because you lose the element of innocence. But they don’t care about criminality generally. So if you’re speeding or selling drugs, or that normally does not influence your claim and self defense.

There are a few states one of them is Georgia, if the criminal activity is a felony level, then you lose the privilege of self defense because you’ve lost innocence under Georgia law, because you were engaged in felony conduct at the time, you use force in the case I cite with the marijuana, purchasing marijuana, apparently of any amount in Georgia qualifies as a felony. So if you have to defend yourself while you’re in the progress of purchasing marijuana, you don’t have a privilege of self defense, maybe something to keep in mind.

However, it’s also important to keep in mind that even were being engaged in some unlawful activity might not lose you your core claim of self defense, it could influence the definition of self defense that will be applied to you. So you don’t lose self defense per se, for example.

But if you’re in a stand your ground state, especially the roughly 17 states that are stand your ground by statute, so the legislature passed a statute that says there’s no duty to retreat. Typically, when they do that they impose conditions. On standard ground, you have to meet those conditions to qualify for standard ground. If you don’t meet the conditions. It’s not that you lose self defense per se, but you may lose the benefits of standard ground.

In other words, you you may require that legal duty to retreat that existed before the legislature passed the standard ground statute because you don’t meet the conditions to stand your ground. And a very common condition to stand your ground in the statutory standard ground states is that you not be engaged in unlawful activity. So if you work for somebody, and they post their property that no guns are allowed, and that posting has criminal effect. Now we have two bars to having the gun the workplace directive, which doesn’t have criminal effect.

And the posting, which we’re assuming here does have criminal effect. Well, if it has criminal effect, then you’re committing a crime by having the gun if your state stand your ground. privilege is conditioned on not being engaged in criminal activity and you are you lose stand your ground, it doesn’t mean you lose self defense. But now you’ve required that legal duty to retreat, if safely possible before you can defend yourself. Because you don’t qualify for being relieved of that duty under your state’s Stand Your Ground law.

Dominic says he’s a CCW instructor would like to teach the legal portion on the class myself, What can I do to limit legal liability on my behalf? Like additional education?

I’m sorry, Diamond that’s really beyond the scope of what we do here.

I assume you mean you’re an NRA instructor teaching something like their personal protection course, which I haven’t looked at it in a while. But the last time I looked, it had a legal portion that they say, needs to be taught by a lawyer or a police officer or something similar. Frankly, I think it’s a ridiculous condition. I know plenty of self defense instructors who know far more about Self Defense Law than most lawyers, most lawyers don’t know very much about Self Defense Law at all. You’re not magically gifted with Self Defense Law knowledge, because you went to law school folks, in my three years of law school, we spent maybe three years in self defense law. You can just imagine if someone’s a real estate lawyer, for example, what do they know about self defense law that a firearms instructor couldn’t learn? I mean, it’s ridiculous.

And frankly, the situation is much the same with many police officers. So I think it’s a ridiculous requirement of the NRA, there should be some qualification for teaching the legal portion, but it should be some kind of training with an examination component that everyone should have to pass whether they’re a lawyer or copper or anybody else. Instead, they just presume that someone’s a lawyer or a cop, they must know the Self Defense Law stuff. It’s just not true. So I think it’s a terrible condition. It’s a mistake that the NRA imposes for those courses. But commenting on how you can reduce your liability for that context is really beyond the scope of what we do here at law, self defense.

I can tell you if you really want to know self defense, a lot of very in depth level you might consider our law self defense instructor program. Currently, through this year, it does not license people to teach law Self Defense comp content. We are changing that next year we will begin certifying law self defense instructors next year. But currently our law self defense instructor program is basically designed as what a law school level semester long seminar on self defense law would look like. If any law school taught this stuff at that level, which To my knowledge, none of them do. It’s the most in depth instruction available anywhere, to my knowledge, including law schools, that you can get on Self Defense Law. If that’s of interest to you.

You can point your browser to http://lawofselfdefense.com/instructor to learn more about that.

Alexander says you convinced me to sign up for CCW Safe honestly, folks, I it’s I think it’s head and shoulders above. Head and Shoulders may be too strong a word, it certainly best fits my circumstances. Another organization to consider that has great merit is the Armed Citizen Legal Defense Network. What they offer is different in important ways. So I encourage you look at the details and understand what it is you’re getting.

The other major competitor is USCCA, which I simply can’t currently recommend at all, although I used to, and I used to work with them on their legal advisory board, because USCCA is getting sued in federal court for not covering a member’s legal expenses.

And they won’t explain why. except to say, we have no obligation to pay, which is fine, I guess. But if that’s their position, I certainly can’t recommend other people to sign up for their legal defense Services Program. If they’re only going to cover you if they feel like it. So until they provide a reasonable explanation for why they’re not covering this member’s expenses. I simply can’t recommend uscca currently.

All right, Art, I mentioned art earlier, he’s gone to law school after some experience with law, self defense, particularly our self defense program. He says, in a 15 week criminal law class in law school, he had about 30 minutes of Self Defense Law.

Well, that’s about 27 minutes more than I had back in 1988. So I’m glad to see they’re doing more. But folks, all of you got twice that much exposure in today’s show, as art got in this Criminal Defense Law class. So keep that in mind.

All right, folks, I think those are all the questions and we’re right about at the top of the hour, I like to respect everybody’s time, including, of course my own.

So I just want to remind all of you we do this show live every week, Thursdays 4pm. You don’t need to be a member. It’s our only open access content. You can catch it here on Facebook, on YouTube. And of course, our members of the Law of Self Defense Membership page, I encourage you to mark your calendars, Thursdays 4pm. Eastern time so you never miss a show. If you’d like to send questions in for our consideration, you can email those to show@lawofselfdefense.com.

And I guess besides that, I’ll just remind all of you that if you carry a gun so that you’re hard to kill and that’s certainly that’s why I carry a gun have my entire adult life. If you carry a gun so you are hard to kill you also owe it to yourself to make sure you know the law so that you’re hard to convict.

Alright folks, until next time, I’m Attorney Andrew Branca with Law of Self Defense. Stay safe.