News/Q&A Show: Sept. 3, 2020

Welcome to this episode of our ONLY open-access content, our weekly News/Q&A Show. You’ll find video and a transcript of today’s show below.

Today’s News/Q&A Show is sponsored by CCW Safe!

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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.

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NOTE: Here’s the news article I started today’s show about:  “‘He picked the wrong guy’: Arvada man confronts would-be carjacker outside King Soopers”

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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Okay, folks, so we’re talking about all these politically motivated prosecutions, the cost of prosecution and that brings me to the point where I’d like to mention something else we can offer from Law of Self Defense to touch on both those points. And that is our Platinum Protection Program.

So, the Law of Self Defense Platinum Protection Program combines two of our most popular programs into one. The first thing it does is it guarantees my availability to be on your legal defense. The truth is, folks, that given my time commitments, most of the cases that come into my office that request a legal consultation, we have to say no to. I just I don’t have the time. Frankly, from my perspective, these consultations are among the least productive uses of my time. We almost cannot afford to do them for clients.

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Unless that person who calls is a member of our Platinum Protection Program. If they are, we drop everything to work on their case immediately. And immediately is important folks, it’s almost like treating cancer, the sooner you can get in and engage the prosecution with your narrative of defense, self-defense justification, the more likely it is that you’ll be taken off that track to trial. Once the prosecutor’s got a year, two years, three years invested in your prosecution, it’s very difficult to get those charges dismissed at that point.

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TRANSCRIPT

The law of self defense content you’re about to enjoy is presented for general educational purposes only. It does not constitute legal advice. If you are in need of legal advice, consult competent legal counsel in the relevant jurisdiction.

Come on in everybody. If you could please in the comment window, you could leave your city and state that’s always helpful. If you could click that share arrow at the top of your on Facebook, whatever the equivalent is on YouTube, that would be greatly appreciated. Also, of course, if you could hit that Like thumbs up button, I’d also appreciate that Welcome to the law of self defense news and q&a show for this September 3 2020.

This is the one show of the week that we do. That’s public access, folks that you do not need to be a law of self defense member To participate in so all of you who are not yet long self defense members, shame on you, first of all, but in any case, welcome to the show. And of course, we offer the show on the open access basis to give the general public public an opportunity to get a sense for what law of self defense is who we are who I am.

And I am of course attorney Branca. Thank you very much. We always have the best fans here at law, self defense. And, of course, what we do is we’re a law practice that focuses exclusively on use of force law, meaning defense of yourself defense of others defense of property. We don’t do anything else. We don’t have generalized criminal defense practice. We don’t do DWI, or shoplifting or anything except use of force cases. And a large part of what we do is educational consultancy type work, including these kinds of shows. Now before we dive into the substance of today’s show, and we have a ton of stuff to cover, as you might imagine, given everything that’s happened in the last week, in the world of use of force,

I do feel obliged to mention our sponsor, which is CCW, safer provider of legal service memberships. When many people mistakenly call self defense insurance in effect, what they do is promise to pay their members legal expenses if their member is involved in a use of force event. And those legal expenses get big and start big and get bigger fast, folks. Most of the cases I consult on I’m pleased to say we get the charges dismissed, that’s still cost those clients 30 to $50,000 for that when getting the charges dismissed. If you go to trial, you’re easily looking at six figures. For a murder trial. pre trial expense is very commonly 100 or $200,000. So if you don’t have that kind of money stuffed in a mattress, it could be helpful to have a financial partner standing behind you to provide the resources you need to fight that legal battle the way you’d like to fight it and That’s as if your life depended on it folks because it really does life as you know, it depends on it. CCW safe, of course is one of several companies that offer this kind of service. As you might imagine, I’ve looked at all of them. I found that for me CCW safe is the best fit. I’m personally a member, my wife Emily is personally a member, whether they are the best fit for you or something only you can decide, but I do encourage you to take a look at what they have to offer and law of self defense comm slash CCW safe. And if you do decide to become a member at that URL, you can use the discount code LST 10 for 10% off your law of self defense membership.

Okay, folks, so a few things I wanted to cover. One is just a news report that came over my Facebook feed today that illustrated, I think a common error in thinking for many people. It involved a use of force defensive event here in the greater Denver area. I believe it was in Aurora or Arvada Just outside of Central Denver involves a man in a pickup truck. Who is the subject of a carjacking somebody stepped up, put a gun in his face and give me your truck and the truck driver apparently, instead of handing over his keys through his key some distance while the car Drakkar was picking up the keys, the truck driver pulled out his own gun is licensed concealed carry pistol.

And when the carjacker looked up, he was looking into the truck owners gun, decided he didn’t want to get into a gunfight that day after all, and the carjacker turned and ran away. So no shots were fired by either party, nobody was shot. And I saw some commentary on Facebook along the lines of well, it’s just basically it’s stupid to use deadly force in defense of mere property and Strictly speaking, it’s unlawful

in 49 states including Colorado to use deadly force in defense of property. And certainly I would absolutely agree that if you can consistent with safety, not be obliged to use or even threatened force against another person deadly or non deadly, you’re invariably in a better place for not having gotten into the fight. So if consistent with safety, you can not get into a fight. That’s a great way for people like us to win a fight. But I think where many people get confused is they conflate situations that are on the one hand, perhaps, arguably purely defensive property situations on one end of the spectrum and purely defensive person’s situation on the other end of the spectrum, and they fail to properly understand the middle ground between those two.

My opinion they’re simply a threat to property and there’s no threat to innocent persons. I’m strongly disinclined to get engaged in that confrontation in any way, whatever, use any degree of force, whatever. That said, of course, you are permitted under Colorado law, the law of all 50 states to use at least non deadly force in defense of property. I just think it’s rarely prudent to use even non deadly force in defensive mirror personal property. And if I could escalate, you don’t want to be in an escalated fight. The fights you don’t have to get engaged in our wins for law abiding people like us. So I have a very strong bias to not getting into physical confrontations over mere personal property.

But that’s not what this case was. Folks, this was not merely a threat to personal property case. This was not a truck owner who saw his truck being stolen from some distance and chose to go get engaged. This was a carjacking this was a felon putting a gun in the truck owners face and saying give me your vehicle. That’s not just a threat to property folks, that’s an armed robbery and armed robbery is a threat to persons. Now it’s a mix of threat to persons and threat to property. But when you have that mix, it’s the threat the person’s that’s dominant in the legal analysis. Who cares about the property if there’s a threat to persons you have to solve the threat to persons situation first. So this truck owner was entirely privileged to protect his life independent of any considerations of defensive property. He’s looking down the muzzle of a gun. That’s a deadly force imminent deadly force threat to an innocent person.

Now in this circumstance, even the truck owner once he had his gun out, did not engage the other party he probably lawfully could have no shots were fired, nobody was shot. So really all the truck driver did here was present his gun in a defensive manner in case he needed to use it. In other words, in case the car jacker looked up, decided he did want to get into a gunfight that day, then the truck driver would have been defending not his truck but himself. So that’s a classic self defense analysis folks, deadly force self defense analysis.

Now, are there things that the truck owner might have done that would have been clearly unlawful? sure the carjackers running away obviously no longer a threat, and the truck owner had shot him as he was fleeing clearly and unlawful use of force. If there was never a deadly force threat against the truck owner say the carjacker didn’t have a weapon was just demanding the truck are trying to sneak into the truck or something along those lines without a threat to persons Then deadly defensive force may not have been justified. But that’s not what’s happening here, folks. So we have to keep in mind that when we have an armed robbery, it’s not merely a property crime, it’s a threat the person’s crime, and it needs to be evaluated accordingly.

And by the way, folks, I’ve said I have a strong disinclination to use any degree of force and defensive property. But the law permits it so long as you don’t use excessive force don’t use deadly force in defense of property. And I would certainly understand in many circumstances if someone did feel compelled to use some degree of non deadly force in defensive property like this truck, it’s not hard to imagine in this COVID era, that that truck owner a lot of guys I know of pickup trucks, most of them have it because they like pickup trucks, but a lot of people have them because they need them to work to make a living to pay the mortgage to put food on the table. And sure, he’s almost certainly got insurance in the truck but a lot of times insurance can’t replace the truck. A lot. times people are upside down on the loan, or a lot of times people got the truck in better economic times when they were fully employed, hadn’t maxed out their credit cards could qualify for the loan. And they can’t qualify for that loan. Now, after six months of COVID, after working maybe 25% of full time after maxing out their credit cards to put food on the table for their children, they’re not going to get that loan again. They can’t afford to lose that truck.

Now, that’s not an excuse to shoot someone over the mirror property of the truck. But it it is circumstances that I could understand would incentivize someone to not give up that truck without resistance. They need it.

Like, by the way, if that person takes your truck, what else do they get? They don’t just get your truck right they get your address on the registration or the insurance paperwork. They get your garage door opener, your keys they get maybe even your cell phone if your cell phone was charging up the car and there you are standing on the side of the road is this person drives away not just with your truck, but with your address. access to your Home. Who else is in your home, who’s going to get there first, not you standing on the side of the road. In fact, if your car if your phones in the vehicle, you can’t even call home to warn them. If you got a wife, if you got kids there in that house, you want that armed felon get into your house before you do. So even if it is just taking the truck and you think you believe consistent with safety, you could just give the truck up maybe that’s not actually without danger to innocent persons.

So it’s important to think these situations through folks, both when you’re kind of evaluating a new story after the fact is kind of a mental use of force law, dry firing exercise, what would I do in those circumstances. And really important to do it before you ever find yourself in those circumstances because you won’t have the mental bandwidth staring down the gun to do this kind of thoughtful consideration this kind of legal analysis in the moment you need to have largely made these decisions to the greatest extent possible beforehand. And then adjust them accordingly for the specific facts and circumstances as you encounter them.

For folks who might be interested in looking at the new story, I’ll include a link to the new story. In the text version of today’s show, by the way, when we do these new news, q&a shows, folks, they’re they’re rather casual compared to our normal content that we do for our members, which is very carefully researched and detailed and written up these shows, largely me talking and then we we send the audio file off to an automatic computer operated service that generates a, you know, medium quality transcript of the show. So that’s what you’ll get as the text version of the show over at law, self defense comm slash blog, if you’re interested.

I do want to mention that of course for our members. We do, as I said, a lot more detailed, more research, more rigorous, professional, high quality content production. And many of you may be thinking Well, I’d like to See that unfortunately, that content is limited to our members. The good news is membership is really inexpensive. In fact, you can get a trial membership for two weeks or just 99 cents, folks 99 cents less than $1. If in that two weeks you decide you don’t like the membership, just call us we’ll cancel, it will not only refund your 99 cents, we’ll refund 200% of your money, which admittedly is only an extra 99 cents. But still, we didn’t ask you for much upfront either. So it’s a negative risk opportunity folks to try it out. You can learn more about that at law, self defense comm slash trial.

And as soon as you sign up, you get access not just to the future content that we deliver to our members, but all the existing content in on our website, the video, podcast text content that we make available to our members. So I urge you to try it out law of self defense comm slash trial for that 99 cent two week membership opportunity. Okay, folks, so let’s take look now at the questions that have come in for the last week. As you might imagine, a lot of them involve the Kyle Rittenhouse situation. Those of you who are lost self defense members have seen a bunch of our very detailed legal analysis of that case.

The bottom line is, as far as I can tell, based on the evidence available, that was about as clear cut case of self defense, both confrontations the parking lot confrontation, and the street confrontation as possibly could be imagined. So I think the charges brought against Rittenhouse are ridiculous. Not just the charges based on intentional use of force, but the majority of the charges are actually based on recklessness. And that’s really egregious. Those charges have no basis in fact that I can see it all. For reasons I’ve already discussed with the members and I’ll follow up and more research on that over the coming week.

But a few questions have come up that I hadn’t covered in the membership content that I’ll address here. One is I keep seeing these references and so media to written house having acted as a vigilante. First of all, he didn’t act as a vigilante. The only use of force he ever engaged in was force while he was being pursued by deadly force aggressors, pedophiles and felons. In any case, guess what, folks? There is no crime of vigilante under Wisconsin law. You can search every Wisconsin statute you want you won’t find the word vigilante you can search all Wisconsin case law court decisions, you won’t find the word vigilante there is no crime of being a vigilante under Wisconsin law.

You have to have actually done something that would be unlawful or threatened something that would be unlawful under a different statute, reckless endangerment, intentional homicide, whatever the case might be, each of which has very specific elements that have to be proven beyond a reasonable doubt and overcome all relevant legal defenses, including the legal defense of self defense, which must be disproven beyond a reasonable doubt but mirror Being quote unquote, a vigilante, whatever that’s supposed to mean in the minds of the people who are writing those things. It’s not a criminal offense for which Kyle Rittenhouse can be prosecuted or convicted or sent to prison. So forget all the vigilante talk, it’s nonsensical.

Some information came out in the news today people are sending it to me like crazy. It’s about the George Floyd case. And that appears to be a photograph of a PowerPoint slide. That’s part of a training class for Minneapolis police officers. And it has includes a photograph of what appears to be the training method, the trained method for restraining a suspect who may be undergoing excited delirium. Excited delirium is I won’t go into detail here, but it’s basically often happens with emotionally disturbed people, usually in combination with some kind of acute toxicity based on some kind of illegal drug that they’re overdosing on and it can result in that person’s death simply from their over exertion physical exertion.

So common restraint technique is to pile on a lot of cops three, four cops to restrain the suspect the victim of excited delirium from over exerting themselves from over exerting their large muscle groups, you’re just trying to physically keep them from moving. That’s apparently what was being demonstrated in this photograph in the PowerPoint slide. And one of the trainers in the image has their knee on the quote unquote, suspects neck in the training manual. And this is being shared this photograph to say, hey, if this is what the Minneapolis police were trained to do, you know, they’re not expert doctors. They’re police officers. They’re going to do what they were trained to do, and that can’t be criminal. And of course, it wouldn’t be criminal.

The only thing I’ll say about this image is I guess it’s nice to have a photograph of a PowerPoint slide. But for those of you who’ve been following our coverage of this case, we we obtained the Minneapolis Less police training manual within days of George Floyd’s death and right in that manual, it describes the use of the knee as a particularly on the neck specifically as an approved restraint mechanism, restraint method. Now, they’ve since deleted that from their online Minneapolis police training manual policies manual. Presumably they did that when they revoked the policy. So if you go to the Minneapolis police department, use the Force policy guidelines. Now that’s no longer there.

 I can assure you and you’ll find it in our writing and videos and podcasts in the days after George Floyd’s death. It was there at the time, and it was how these officers were trained, which makes it all the more ridiculous that they’re being charged with crimes as serious as murder for following their own dependent departments approved and mandated techniques for restraint in the circumstances in which they’re using them in the best interest of the suspect because they have reason Believe the suspects experiencing excited delirium, and unbeknownst to them, the suspect has also just taken a fatal dose of fentanyl, as well as all the other drug addiction, lifelong drug addiction, cardiovascular disease, comorbidities that George Floyd had the whole situations absolutely insane.

And all we can hope is that ultimately as it works its way through the court system. These cops get the get a fair opportunity to argue their side of this narrative which is entirely consistent with a lawful use of force and a suspect to effectively committed suicide. George Floyd may as well have taken a fatal dose of cyanide just before he was restrained by those officers who would have been just as dead as taking a fatal three times fatal dose of fentanyl.

Okay back to the Rittenhouse case. So we had a question come in from our membership could the district attorney act that the argue that the act of carrying a dangerous weapon illegal was a reckless act by Rittenhouse and endangered the victims created the predicate for these charges based on recklessness that have bought been brought against Rittenhouse. And people need to understand something about the recklessness that’s required for a criminal charge. There has to be some kind of conduct that’s proximate to the danger that’s being created.

So recklessness really defined is someone who engages in inherently in conduct that’s inherently dangerous to others, typically requires a danger, deadly force, Danger, danger of death, or serious bodily injury. And being aware of that danger, they disregard the danger and engage in the conduct anyway.

So the classic example would be a drunk driver, someone who’s driving drunk. They don’t have any intent to hurt anybody. They just want to get home without getting arrested, probably. But by driving drunk, they’re engaging in conduct that creates an inherent danger to others and they disregard that danger. So if they do run somebody over even though they never had the intent to do that deliberately. They’re recklessness they’re creating the danger and disregarding the danger makes that a felony crime, reckless endangerment, reckless homicide in this particular case. But they don’t create that degree of recklessness unless it’s proximate to the dangerous situation. So you can argue, well, they they bought a 12 pack of beer and brought it home. And then later they drove a car. That recklessness, the buying of the beer is not the creation of the reckless danger to others. It’s the consumption of the beer and then immediately driving while still intoxicated, that creates that recklessness. Here. It’s not that Kyle had the gun.

First of all, we don’t know that it was unlawful. But even if it was unlawful, merely being an unlawful possession of a gun does not create an imminent danger to others. You need to do more than that the mere possession isn’t that And if anybody, particularly law enforcement officers out there or prosecutors or criminal defense attorneys knows of cases in which someone was arrested merely for unlawful possession of a gun not wielding it in any dangerous manner, but they were merely found to have the gun on their person and they had possession unlawfully that they were charged with recklessness. I’d like that brought to my attention, because I’ve simply never seen that happen. So no, I don’t believe that. Even if Kyle were, were to turn out illegally in possession of that long gun, that that alone could be the basis for recklessness. Now, if if he had done a mag dump, if he was running around with the shoelace is untied and had tripped while carrying the gun. I mean, you could argue that there was a proximate cause to creating a reckless situation but not merely being in possession by itself.

By the way the gun charged has been brought against them is at worst, a misdemeanor. So it wouldn’t even be a predicate for say a felony murder charge. For example.

Another question is, if Kyle were to plead guilty to the weapons charge, would that be admissible at trial? You have to assume everything’s admissible at trial, there’d be no particular reason why a pleading to a related charge would not be admissible at trial. Just assume that the prosecution is going to talk about it at trial regardless.

 Let’s see what else we have here. We had an unrelated question. Well, maybe it is related in some way to Rittenhouse came in from one of our Platinum members. By the way, if you are a platinum member, we encourage you to send your inquiries to us using the Platinum member q&a forum. At the law self defense website, your questions do get prioritized that way. And if you’d like a private response to your questions, we’ll provide that as well.

This question came in from Platinum member Dave M. He says I’ve heard you say that if someone is acquitted in criminal court and a self defense claim they can’t be sued in civil court for the outcome of the incident. Is this the case in Wisconsin If not, it seems like Kyle Rittenhouse has a very long road ahead of him. Well, first of all, I’ve never said that because that’s not true. You can be acquitted in criminal court still be completely subject to a suit and civil court judgment against you in civil court. That after all, is what happened in the oj case, for those of you of a certain age old enough to remember that oj was acquitted in Criminal Court of the killing of his estranged wife or ex wife.

But he was found civilly liable in civil court without any difficulty at all. One of the reasons for that is the very different standards for finding someone guilty of a crime on the one hand and finding someone civilly liable on the other. To find someone guilty of a crime, you have to prove them guilty beyond a reasonable doubt. On a scale of zero to 100. We can imagine that being some very high value 85 9095 it’s a very high threshold of proof. So the jury might think he probably did it, he very likely did it and still have to acquit him if they don’t believe that guilt was actually proven by that very high standard of beyond reason. Double Down. But in civil court, the civil jury only has to be convinced by a preponderance of the evidence. So majority of the evidence 51% on that scale of zero to 100 is enough to find against someone in civil court.

So a defendant in a criminal trial may be acquitted because he was not proven guilty by whatever 90% of the evidence, whatever you want to think of as being beyond a reasonable doubt. But the civil courts don’t have to reach 90% 51% enough. So that much lower threshold could be realized in civil court, even where the higher threshold wasn’t being realized in criminal court. Now, what can happen in many states that have self defense immunity laws, those that immunity can apply, if granted can apply in both the criminal and civil court context. Now, they’re typically the burden Not always, but typically, the burden is on the defense at a pre trial hearing, to convince the hearing judge that their use of force for self defense and to do so, by a majority of the evidence 51% of the evidence, and if they do that they can be granted immunity against both civil prosecution and civil suit. Now, again, depending on the state, some states have both immunity for criminal purposes. immunity for several purposes, some states have one or the other, not both. So it really depends on what state you’re in. But if a state has civil immunity for both, it’s one hearing that would cover both criminal liability as well as civil liability.

Let’s see. Another Platinum member question. Oh, just actually, more of a kudos to law, self defense. So this is from Anthony s. Thank you very much. He’s a platinum member. He describes how he was in a recent event that turned confrontational, and he tells me that but for the education and insight he’s acquired from law, self defense, he might have been likely to have gone to the gun in that confrontation. Looking back, in hindsight, he can see it probably would not have been appropriate or prudent to do that. But he knows that because he’s had the education and insight he’s gathered from law, self defense, he was able to make more confident, better informed, more lawful decision making in that confrontation avoided having to get into a fight in the first place, knew why he was avoiding getting into that fight, and what the risks were physical and legal if he did not afford managed to avoid the fight. So for all practical purposes, he won that fight by not getting into it, he did it in a well informed, legally sound way. And so congratulations to Anthony, and thanks for letting me know about the event. And thanks for the credit to law, self defense for helping put you in that position to make those better decisions.

We have another question from a platinum member of Florida Ray. Let’s see what it is here. He mentions that he’s heard that they’re holding off extradition from Illinois to Wisconsin. As you may know, Kyle had returned home after the use of force event in Kenosha, Wisconsin home being a town just over the border 15 or 20 minutes away where he actually resides with his parents. He is of course, legally a child 17 years old, and he was arrested in Illinois. Now Wisconsin, for some reason chose to refer to him in in a criminal complaint, in a warrant as a fugitive from justice. He was really nothing of the sort. Obviously, he had identified himself to police at the scene. He wasn’t in flight from being held accountable for his use of force. He didn’t flee for purposes of avoiding identification or legal liability. He simply went home. Once home when he realized the authorities wanted to arrest him, he turned himself in for arrest. He was arrested in Illinois now he could be subject to extradition to Wisconsin. But frankly, I think the authorities all recognize there’s no need to do that. It’s not like Illinois, not going to Give him up. If he decides he doesn’t want to go to Wisconsin, the Wisconsin legal system knows that they can get hold of him anytime they want to. So with any luck, he won’t be subject to extradition. He’ll just show up voluntarily in Wisconsin when it’s required.

Also, folks, there’s a lot of news here, you may have heard that a one or more GoFundMe type arrangements that had been set up for Kyle to cover his what will surely be enormous legal expenses in the case have been shut down by the organizations that host those functions, GoFundMe and similar types of organizations. This happens frequently in these politically charged cases. They don’t want to be associated with the with the people in Kyle written houses position or being demonized by certain political side of the country. So they simply pull the plug on his ability to use their platforms to raise money for his legal defense. I believe his attorneys Linwood JOHN Pearce and others have set up an independent means of providing money to Kyle Rittenhouse. If you’re interested in doing that for his legal defense, folks, this should be a lesson to all of you if any of you are involved in a similar situation where you defend yourself against a violent, deadly force attack, under circumstances that outrage, a political faction of the country, you may find yourself unable to raise funds through these normal mechanisms that other people might use. They discovered they had cancer or loss of job, whatever the case may be, you’ll be denied access to these kinds of platforms purely for political purposes, for reasons having nothing to do with the legal merits of your case, or your use of force.

So do yourselves a favor, just assume these things will not be available to you because history tells us that in fact, they will be all the more reason to make sure that you have some other means of bringing the resources to bear that you need for the legal fight. Again, as I mentioned at the start, one of our sponsors here at law, self defense is CCW, safe there they are organization that I’ve chosen personally to make sure I have those resources, you might also consider our own loss of defense Platinum Protection Program. This is in fact, the only way to that’s not the one I wanted. Let me try again.

This is in fact, the only way to guarantee that I would personally be available to consult on your legal defense. In fact, folks that the way things are going, the only time I have available to work on client matters is for clients who are Platinum Protection Program members, the prospects of being able to retain me on a case if you’re not in this program, are rapidly approaching zero and it’s not a matter of money, folks, it’s just a matter of time. The good news is what would normally be a several thousand dollar consultation if you have me work on your case is free to you as a platinum Protection Program member. So you get my guaranteed consultation. We drop everything else to work on your case. It doesn’t cost you a penny more than the Platinum Protection Program membership.

And by the way, the Platinum Protection Program membership includes all membership access to everything we do here at law, self defense. So if you’re already say a standard member, which only costs less than $10 a month, that applies to your Platinum Protection Program membership, it’s not in addition to. So effectively, if you’re already a low level member, you become a platinum member, you get that credited to your Platinum Protection Program membership. But you might want to think about making sure you have these kinds of resources aligned beforehand, because it can be very difficult to align them afterwards.

And you know, obviously, CCW safe doesn’t cover someone who becomes a member after the use of force event. I can’t consult on your case as a platinum Protection Program member. If you become a member after your use of force event. That’s not how those things work. We cover for people who commit to the program ahead of time. And as we can see now, these GoFundMe type organizations simply have no interest and allowing you to use their platforms as to leverage resources for your Legal Defense, they will cut you off.

By the way, folks, I should also mention a lot of people have asked me encouraged me to provide assistance do a consultation to the Kyle Rittenhouse matter, I have been approached by some attorneys working on that case, who’ve talked with me about consulting on the case, it is a little complicated, folks, because these high profile cases are frankly, cases that bring a lot of attention to our core business here at law, self defense, as you might imagine, and our normal practice when we consult on a case is to not talk about the case. That case disappears from our content production. So if I’m retained to consultant the Kyle Rittenhouse case, which may or may not happen, but if I were my coverage of that case would stop. And frankly, there’s a good argument to be made that I can do a lot better for that case as an outside third party raising general public awareness about the legal issues in the case, from the outside, all of which, of course, the Kyle’s legal team can read, right, they can become a member just like anybody else. So they get the benefit of that legal analysis, albeit at a lesser degree of intensity than I would do if I were doing the case for them on a professional basis. But they get the benefit of much of my thinking without having to retain me. And if they don’t retain me, I’m free to continue commenting on the case.

So I honestly don’t know what would be better for Kyle in the long run, to have me formally consulting on the case, but having to be silent about the case in all public forums, or to be talking about the case in public forums and providing a lot of my legal analysis in a way that frankly, they don’t even have to pay for, other than being a member of loss of the fence. So right now, I haven’t had the made the decision. I haven’t had a formal request to join that legal team. So I’ll continue to be covering the case as I go forward. In the event that suddenly I stopped talking about the Rittenhouse Square You’ll know why. Okay, folks, let’s see. What else do we have here?

Folks, I often get questions about weapons law, on gun law, licensing law, or things about insurance for like firearms instructors, self defense instructors, folks, I just don’t really cover that kind of stuff. So I do use a force law, not weapons law. I don’t know what you need to do in terms of licensing to carry a gun in your jurisdiction. I know what I need to know about gun law for my own personal needs, as someone who carries a gun for personal protection has my entire adult life, but I don’t pretend to cover gun law on a 50 state basis.

And while one of our sponsors for loss of defense is CCW, safe, I am covered by CCW safe myself. That’s a use of force type of coverage. I am still I guess, technically a certified instructor for the NRA. And pistol rifle and personal protection. But I haven’t done instruction as a certified firearms instructor and many, many years don’t cover any kind of coverage for that myself because I don’t do that kind of work any longer. And in the days when I did it, I got my coverage from the NRA. But that was many years ago and I wouldn’t be able to tell you what might be the the best options available to now.

Okay, well, we’re about 45 minutes into today’s show. So let me go through the online comments. Now. I think I covered most of the ones that had been sent in beforehand. Let’s see if there’s any in the membership area. I see a bunch of members in there. If you are a law, self defense member, we always encourage you to enjoy the shows in your membership dashboard because you can chat there just like you can on Facebook and we do prioritize questions that are sent in there beforehand. Not much there. Although I say thanks to our members for making use of that. Let me scroll To the Facebook now and see what kind of questions have come in. Facebook is crowded as usual. I can ask some Facebook if we become a law self defense member, can we go back to the previous episodes? The answer is yes, you can. I think the only exception is I’m not sure of the podcasts are only kind of forward looking. When you join, you get access to our members only podcast. I’m not sure if that provides access to earlier podcasts. But the podcasts are really just audio versions of our videos and text blog posts. And you do for sure have access to those looking backwards.

Shawn says Indiana’s working to expand the Castle Doctrine to include your personal business. That’s interesting, Shawn, I haven’t seen that. I imagine it’s working its way through the legislature at this point. I would just encourage people to keep in mind that distinction between the Castle Doctrine on the one hand, and special provisions for the protection of highly defensible property on the other because those are two different things properly understood what the Castle Doctrine does for you is, if you would otherwise have had a legal duty to retreat, say your viewer in a public street. Before you can use deadly force and self defense, you’re relieved of that duty to retreat. Before you can use deadly force and self defense if you’re in your castle. And different states define the scope of castle differently, it always includes at least your home might include your place of business might include your motor vehicle, but in all cases, however broad the scope of castle is, it’s limited to relieving you of that legal duty to retreat that otherwise might apply.

Now, if you’re in a standard ground state, you probably don’t need the Castle Doctrine. If you’re in a stand your ground state and you meet the conditions for standard ground and by the way, roughly 36 out of 50 states are effectively stand your ground states. So the large majority about 75% of the states, but if you wouldn’t have had a legal duty To treat before defending yourself out on a public street, well, then you certainly wouldn’t have that duty in your home either. So you don’t really need the extra benefit of Castle Doctrine. Unfortunately, many people apply the term Castle Doctrine too broadly, to include what I call special provisions for the use of force in defense of highly defensible property. And what those special provisions typically do is hopefully all of you are aware that there are up to five elements for any claim of self defense, innocence, eminence, proportionality, avoidance and reasonableness.

If that, if that phrasing is new to you unfamiliar strange, then I urge you to do yourself a huge favor and please download our one page infographic totally free doesn’t cost a penny. The five elements of Self Defense Law infographic it sets out these five elements of self defense the building blocks of any claim of self defense. This framework applies in all 50 states. I don’t care what state you’re from. Innocence eminence proportionality avoids and reasonableness the infographic free download PDF briefly describes each of those five elements. It’s it’s the very basic, most fundamental knowledge, you absolutely must have to have any hope of understanding how self defense law works at all. Obviously, you ought to know more than what’s in the infographic. There’s only so much value we can put into a single page of paper. But if you don’t have this, you haven’t even taken the first step. So you can download this infographic at last self defense comm slash elements free PDF doesn’t cost a penny. If you don’t do anything else from today’s show, folks, please take advantage of that opportunity.

So where was it? Oh, yes. So the special provisions for the use of force in defense of highly defensible property. What those special provisions typically do is they create a legal presumption. they presume that several of those five elements are in place that you had a reasonable fear of an imminent deadly force attack and effect they give you most of what you need to justify the use. If deadly defensive force which is awesome. Now they do have conditions and those conditions are often that’s to trigger that legal presumption you need to be defending yourself in your highly defensible property, which like the Castle Doctrine typically includes your home, often place of business often occupied motor vehicle against a forcible and unlawful intruder.

But it’s different than what Castle Doctrine is what Castle Doctrine is, in similar circumstances is that relieves you of an otherwise existing duty to retreat. What these special provisions do in the similar circumstances, is presume that you had a reasonable fear of eminent deadly force harm when defending against an intruder into that highly defensible property. These are two different things. So I imagine what Indiana’s probably doing is it has those presumptions of a reasonable fear of imminent deadly force harm, it’s applied that presumption, in the context of an intruder into your home and now they’re trying to expand it to also cover an intruder into your place of business. I haven’t looked, I’ll try to make an effort to look for next week to make sure that’s what’s happening. But that would be my expectation that’s normally when these changes are trying to be put through the legislature, those are normally the changes they are trying to make to the highly presumption of reasonableness. Let’s see what else we have in the Facebook comment.

Mike asks with regard to defensive properties or a great deal of difference between theft by burglary of an empty house and being accosted in a parking lot over your vehicle? Well, the key thing to think about conceptually is is there only a threat to property, mere personal property, or is there a threat to persons involved. If there’s both if it’s a mix, then it’s the threat the persons that dominates that legal analysis. If there’s a burglary if an empty home Well, I mean, presumably you’re not present either or at least you’re not in the home. If you’re outside home. I guess we should presume it’s your home. If you’re outside the home and you have reason to know there’s nobody else in the home it’s merely a threat to personal property.

I mean, do you want to get in a deadly force fight over that? Or do you want to call the cops be good witness wait for a bunch of policemen with body armor, shotguns, dogs helicopters, to show up. I’m strongly disinclined to get personally to get into a deadly force fight over personal property. And when I know that there’s no i when i can know for certainty that there’s no risk to persons. burglary can be a little complicated. I’ve got a wife and four kids and it’s likely one or more of them are in the home. So

the the prospect of there being a burglary of my home, and I could be certain there’s nobody in the house is pretty minimal unless all those people happen to be in the vehicle with me. In which case, listen, there’s nothing in my house other than human beings that I’m willing to die for. There’s really nothing I’m willing to kill for. So I’d be strongly inclined to stay outside the home

but If you’re in a confrontation over your vehicle, a carjacking like in the news story I talked about at the start of the show where someone puts a gun in your face. That’s not purely a defensive property scenario. That’s a defensive person scenario. There’s an eminent deadly force threat to you to your person, there’s a gun in your face. That’s a self defense scenario. It’s not just a defensive property scenario.

Now, again, if you can escape a defense, a defense of person’s scenario without having to fight consistent with safety, that’s the smart play. You don’t want to be using force that you don’t need to use, but you need to make that call. Only you were looking down the muzzle of that gun only you were seeing that person’s demeanor, and you have to make the decision of whether or not you’re willing to make that bet. Are you willing to bet your life on the decision making the judgment the interests of a felony armed robber?

I can’t make that decision for you. I can tell you what the legal boundaries are. The legal boundaries are if you’re threatened within imminent threat of deadly force and you’re otherwise the innocent party and there’s your face in the muzzle of a gun, there’s really no opportunity to retreat even in the Duterte retreat state.

All the conditions for the use of deadly defensive force have been met under that circumstance, whether or not to make use of that legal opportunity to use deadly force where you might believe there’s a an opportunity consistent with safety not to have to do that as a judgment call you have to make under those circumstance.

What about the five elements in regard to the written house case? Yeah, I covered those in extensive detail. I did an hour and a half long show. 8000 9000 word blog post on applying the five elements of self defense to both fights both confrontations that Kyle Rittenhouse was in both the parking lot fight initially and the fight in the street that happened afterwards. And I can’t repeat that hour and a half analysis here except in summary, my conclusion is I Rittenhouse in both bytes was entirely justified in his use of deadly defensive force.

If you’d like to see that analysis, you can see it for 99 cents folks get that trial membership at law self defense comm slash trial for 99 cents. You know for all I know you’ll sign up for 99 cents read that hour and a half blog post video podcast and then quit and make me give you 200% of your 99 cents back. That’s up to you. I don’t expect that to happen. We have very very few people ever leave a loss of defense membership. But you can take advantage of that opportunity see that analysis for a mere 99 cents with a 200% Money Back Guarantee by taking advantage of that two week trial membership law of self defense comm slash trial and and view or listen to or read that hour and a half legal analysis of Rittenhouse at your convenience

Let’s see.

Lori asks if we sign up for your Platinum Protection Program membership. Should we drop CCW safe, you should not drop CCW safe. These are two very different things, CCW safe promises to pay your legal expenses generally. My planet protection program covers only me folks, the cost of me guarantees my availability at no cost for Platinum Protection Program members, what CCW safe promises to do is completely different. They promise to cover your legal expenses, generally.

Now, none of these programs whether it’s CCW safe, uscca, arm citizen Legal Defense Network, whatever you may think of any of them, none of them are perfect. None of them cover every possible scenario. They all have exceptions conditions. That’s why we don’t recommend one over others. I encourage you to take a look at what CCW safe has to offer for example, because I like them. I think they do have a really good offering But they may not be a good fit for you or they may not be available in your state. If you’re in one of the states that’s banned those kinds of programs, you’d still be eligible, however, to be a member of the Platinum protection program for law of self defense.

Let’s see.

Yeah, so Steve mentioned that Castle Doctrine in Tennessee has that legal presumption when dealing with a forcible, unlawful intruder that you had a reasonable fear of deadly force arm etc, etc.

I would, I would suggest that we avoid using the phrase Castle Doctrine for that legal presumption because Castle Doctrine traditionally means only being relieved of an otherwise existing duty to retreat. It means that in all 50 states, that legal presumption provision is not the same in all 50 states. It’s different in all 50 states and you know, if you’re in One state in one jurisdiction and only talking to people from that same state. And you’re using terms of art, like Castle Doctrine or affirmative defense, that have one meaning in that state and you’re limiting your conversation to that state, then nobody gets confused. That’s totally fine.

But the moment you start talking with people from other states, where they define Castle Doctrine differently, they define legal presumptions of reasonableness differently. They define affirmative defense differently than everyone’s using the same phrase, but it means completely different things in different states, and that creates incredible confusion.

So I suggest we only use these terms in a way that applies the same no matter where you are. Use Castle Doctrine to mean only being relieved of an otherwise existing duty to retreat when you’re in your castle has that meaning everywhere. Legal presumptions of reasonableness should be referred to as legal presumptions of reasonableness and then everywhere you encounter that phrase, it means the same thing. affirmative defense, you should just avoid using entirely it’s become so confused and defined so differently in the different states. 100 years ago, it had one meaning and all 50 states, that was all good. Today, it simply doesn’t. There’s at least three or four different definitions of affirmative defense now across the 50 states, and that just causes tremendous confusion when people try to use it outside the context of any single jurisdiction.

Laurie asks on Facebook. What about curtilage this is in the context of either Castle Doctrine or presumptions of reasonableness, I presume curtilage refers to that area around your home. That’s part of the normal day to day use of your home typically includes a front porch or back porch, front yard backyard.

Once you’ve you’re far enough away from your home that you’ve lost the right of exclusion. So other people are free to be there, you’re in a public street, you’re definitely outside your curtilage. The trouble with curtilage is nobody really knows for the most part where it actually ends. It’s very subjective. And it has different meanings, different scope, depending on the legal context. So it’s actually most commonly used in search and seizure law. So when did the cops need a warrant to seize a piece of property? Well, when it’s in your curtilage, outside your curtilage, you put your garbage cans out on the street to be picked up, they don’t need a warrant to go through your garbage cans out on the street. When the garbage cans are next to your house, they they probably do need a warrant to go through garbage when it’s next to your house. Somewhere in between being next to your house and being out on the street, it’s exited your curtilage. But no one really knows there’s no bright line that tells us what curtilage is.

So it’s very dangerous, obviously, then for use of force law purposes to rely on a very vague subjective concept like curtilage and hope you’re still within your curtilage. Now the benefit curtilage gives you in the use of force law context is in the context of the Castle Doctrine. For example, if you’re inside your home, you’re relieved of a legal duty to retreat. Well, that relief also happens if you’re within the curtilage of your home. So if the court were to decide, yes, you’re on your front porch, we’re going to count that as curtilage. You’re also relieved of a legal duty to retreat on your front porch, just as if you were inside your house.

The trouble is, we often don’t know where that line is going to be. We don’t know if the front porch will count or the front yard will count or how far out in the front yard will count. So it’s very risky to rely on that in terms of legal presumptions of reasonableness that you have presumed to have a reasonable fear of imminent deadly force harm. You really only get that normally those presumptions are triggered by someone forcibly unlawfully entering your home, which means you really have to be inside the home. So curtilage doesn’t typically apply in that context. Or it would be irrelevant because the trigger is them forcibly unlawfully entering or being in the effort, the attempt to enter so curtilage becomes irrelevant in that context.

Let’s see. Someone’s asking me to address anarchy and lawlessness. Those aren’t really use of force concepts. Those are political concepts. Obviously, I have my own political opinions, but most folks come here from the the legal insight and analysis, not for my political opinions.

Let’s see.

Alright, folks, I think I’ve just about covered it all. Let me go through the membership area one more time, just to make sure no one popped in the question there. Folks.

If you’d like to put in a question for a future law of self defense news and q&a show, we’re happy to receive those. Again, if you’re a platinum member, please make use of the Platinum member q&a forum on your membership dashboard that gets your question prioritized.

For everyone else, feel free to email questions to me at? Well, the next best thing is if you’re a law self defense member who’s not platinum, if you ask a question in the comments to one of our blog posts, we typically see those I’ll make a record of it for the next news and q&a show. I typically also answer in the Comments. So if you’ve left a question in the comments, look for an answer there. But if it’s a really good question, I’ll also cover it in the news and q&a show.

And if you’re not a member, well, shame on you. It’s only 99 cents. But you can always email us questions to show at law of self defense calm, and we’ll take them under advisement for inclusion in a future law self defense news and q&a show.

I folks we’re an hour in and out of respect to your time and my time, we try to keep these weekly news and q&a shows to an hour. We do do these every Thursday 2pm Eastern Time. Sorry, 4pm Eastern Time 2pm Colorado Time, My Time 4pm Eastern time. So I encourage you to mark your calendar set up a reminder so you know to come here at that time. We do them on our members dashboard for our law, self defense members, Facebook Live and we try to do YouTube Live although our technology is a little inconsistent there. But on all those platforms law self defense comm blog Facebook and YouTube, you can also watch the replay of these Thursday shows at your convenience. They’re not locked down for any of those formats. So we encourage you to take advantage of that opportunity. That’s only for our Thursday noon q&a shows, all our other content folks is locked down for law self defense members only.

Alright folks, until the next time we meet, I’ll just remind all of you if you carry a gun so that you’re hard to kill, which is why I carry a gun so that I’m hard to kill my family is hard to kill. Well, you also owe it to yourself and your family to make sure that you know the law so that you’re hard to convict in the event you’re compelled to use force in self defense. I folks until next time, I’m attorney Andrew Branca for law of self defense. Stay safe.

 

6 thoughts on “News/Q&A Show: Sept. 3, 2020”

  1. In a lot of states justification is a bar to a civil action for damages. Missouri is one of them. RSMO 563.016 say justification is not a bar to a civil action. But RSMO 563.074 says “notwithstanding the provisions of RSMO 563.016” the fact that you are justified under 563.031 is an absolute bar to civil liability. Now if you are justified in using force in self defense under RSMO 563.026, you are still bubject to civil liability, but since that is an affirmative defense of self defense, nobody ever uses it except in circumstances where the use of force in self defense is not justified under 563.031. Section 563.031 is the old English defense of justified use of force in prevention of crime (the use of force is not a crime at all) and section 563.026 is the old English defense of necissity (the use of defensive force is criminal, but excused on the grounds of necessary self defense). Missouri, by statute, substituted the word justification for excuse in 1825.

  2. guilty as charged

    Question 1: Andrew, in your Level One DVD course, lesson 17 on Part 2 of Reasonableness, you talk about how to get into court the specialized knowledge one had before his or her use of force. You mention the Teuller Drill, your notes taken during the 40 hour course with Mass Ayoob and one’s note in your book, The Law of Self Defense. You mention that specialized knowledge could also include one’s knowledge of his attacker’s characteristics. How to judge imminence, pre attack indicators, bulges in a person’s clothing, anomalies come to mind, and might be of interest to the jury, but after that my mind goes blank. Tactical things to explain why one should leave the scene of a use of force, why on refused to give aid to a downed attacker; the time it takes for an attacker to throw a punch, the inability to stop firing after the attacker turns his back to the defendant. I was wondering if you could be more specific of what specialized knowledge one should document, especially the common, more importante ones that come up at trial. Does one need to keep a diary of the actions of people who may one day attack one, signed by witnesses, or mailed to one’s self.

  3. guilty as charged

    Question 2: I once talked to a policeman who said that if I shot someone who threatened me with a knife, I would be found guilty a murder. In his mind, knives and guns are not proportional, but go into different buckets. How does one explain or educate a jury that all lethal weapons go into the same bucket. Are there prosecutors who would make that argument? I guess I could use your book as evidence of this “specialized knowledge”. I live in an anti-gun state. I even know policemen who think that a citizen should not be allowed to have a gun.

    1. Attorney Andrew Branca

      This is why one cannot assume that the person sharing self-defense law advice has any idea what they’re talking about just because of their job title, and that includes the job title of “policeman.” Use-of-force law does not distinguish between different mechanisms of inflicting deadly force, it only cares if the force involved was deadly or non-deadly in nature. The manner of inflicting deadly force could be a gun, a knife, a club, bare hands, an anvil dropped from a great height, it just doesn’t matter for use-of-force law purposes.

      Were this a concern in a case I was involved with I’d ask the prosecution to stipulate that the knife attack qualified as a deadly force attack, and if they declined I’d motion for the judge to make that finding as a matter of law (either of which would take the issue off the table), and if the judge declined I’d bring in a use-of-force expert witness to testify to the deadly nature of a knife attack.

      –Andrew

      Attorney Andrew F. Branca
      Law of Self Defense LLC

        1. The issue with a knife threat is time and distance (imminence). Too much time or distance and the knife is no threat at all. Arms length standing still is possibly an imminent threat, depending on the circumstances. Ten feet away, standing still, no threat at all until he starts closing the distance, or maybe making verbal threats to use force on the present occasion. My opinion, no charge.

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