Self-defense, or not? Who decides?

My post yesterday about the Federal lawsuit brought by one Kayla Giles against USCCA resulted in a fair-sized tsunami of feedback, both positive and negative.  In that lawsuit, Giles claims that USCCA is failing to meet their “self-defense insurance” obligations towards her as a Platinum member.

By the way, if you missed that LIVE post yesterday, you can find the replay, as well as the full-text version, on our blog here

All that feedback, both positive and negative, is great because it gives me the opportunity to talk and write more about self-defense law, and all of you who know me know that I like to talk and write about self-defense law a great deal.  So that’s what I’ll do in today’s show.

In particular, in today’s LIVE show we talk about how a claim of self-defense is evaluated on its merits.  That is, some claims of self-defense are at least arguably of merit, while others are patently ridiculous, and the two claims ought not to be treated the same.  So, what mechanism do we use to differentiate between claims of self-defense that have enough merit to be hashed out in court, and those that ought never make it into court in the first place?

OK, let’s dive into the substance of today’s show.

Kayla Giles shot and killed her estranged husband in a Walmart parking lot during a custody swap of their children.  She has been charged with second-degree murder, and has raised the legal defense of self-defense. She is suing USCCA on the grounds that they have failed to meet their obligations to her, as a Platinum member of the organization, to pay her legal defenses in this self-defense case.

Perhaps the most common category of feedback I’ve received on this matter has to do with the particular alleged facts of the Giles case, in particular the circumstantial evidence surrounding the shooting of her husband.  Much of that circumstantial evidence is arguably inconsistent with self-defense.  In light of that evidence, might it not be appropriate for USCCA to decline to cover Giles legal expenses?

Here’s an example of what I mean, left as an comment to yesterday’s post (linked above):

I know I should distrust media, and I was not there in the Walmart parking lot when Giles shot her estranged husband. I don’t know all the contractual language in the USCCA insurance, but let me be the devil’s advocate. The deceased filed for sole custody claiming Giles was abusive. Media claims there were three instances where Giles was the aggressor against the deceased. So 12 days before the shooting, she buys a handgun and make the first payment for the platinum self defense insurance. Maybe the Walmart video will reveal the contrary, but on the surface it sounds fishy. Doesn’t some evidence have to be present to be able to argue self defense at trial, not just a empty claim? Otherwise it looks like a simple murder conviction. I must be missing something. So if you want to take someone’s life, you buy a gun, insurance, shoot, claim self defense, and get half a million dollars to play with? The more money, the more justice you can buy?

—Guilty as Charged (commenter chose to remain anonymous)

That’s a really excellent series of question, so I’m particularly pleased that it was addressed to Law of Self Defense, where I can provide a really excellent series of answers.

First, let me start at the end and address this question:  “The more money, the more justice you can buy?”  I’m going to sidestep the term “justice,” as I expect different people will have different definitions of what they consider “justice,” and instead suggest that the relevant term is “resources.” 

And, yes, absolutely, the more money you can bring to the legal fight, means the more resources you can bring to that fight—including lawyers, experts, consultants, support staff, independent forensics, aggressive jury selection, and much, much more—and the more resources you can bring to the fight the better your chances of winning that fight, all other factors being equal.  Just like in any other battle.

We might wish we lived in a world in which resources were not a factor in winning, but that’s not the world we live in.  Importantly, the prosecution has essentially unlimited resources they can bring to the legal battle, for all practical purposes from the view of the defendant.  Is it “justice” if the defendant is limited to only whatever resources they happen to have in their pockets when they’re arrested?  Is it “justice” if the defendant is limited to only whatever resources are in their bank account on that particular day?  What they can borrow from friends or family?

Or does it look more like “justice” if the state and the defendant have something resembling comparable resources to bring to the fight?  If the defendant has a “self-defense insurance” provider backing their legal defense costs with resources must greater than the defendant is likely to have themselves?

I’d argue that this rough comparability is where we want to be, as general public policy with an interest in “justice”—and most especially if we’re actually the defendant.

Second, let’s keep in mind that the factual claims stated are just that, claims.  They have not been subject to any adversarial process, nor assessed for credibility by a jury.  The victim in this case claimed in divorce proceedings that Giles was abusive. 

Does that mean the claim is true? I’m sure we’re all aware that false claims are made in courts all the time, and particularly in emotionally-laden proceedings like a divorce. Also, what’s “abusive” mean in this context? Physically abusive? Emotionally abusive? Denied sexual relations abusive?

It’s also not unusual for abuse in a relationship to go both ways.  Perhaps even if it’s true that Giles was abusive to the victim, maybe it’s also true that the victim was abusive to Giles.  Until we hear the arguments from both sides, can we know?

Further, regardless of whatever prior abuse might have existed, is it impossible that the victim here presented, in that moment in the Walmart parking lot, an imminent deadly force threat to Giles?  Literally impossible?  Was the victim immune from emotion, especially the emotions of a parent of children in a custody battle during a divorce?  Was the victim incapable of causing harm to another?  Of course not.

Bottom line, until the contesting narratives are each made in full, preferably in an adversarial process in which each narrative is challenged, we don’t have any realistic way of assessing the relative credibility of either narrative.

Certainly, we’ve learned from media coverage of such cases as the George Zimmerman trial, the Baltimore “Freddie Gray” trials, and the Ferguson “Hands-up, Don’t shoot” hoax that relying on whatever the media chooses to report about any use-of-force event is fraught with peril.

Now, let’s consider self-defense claims generally, in terms of differentiating between claims of self-defense that are at least somewhat credible as opposed to those that are not credible at all, or even worse claims that are completely ridiculous. After we ought to have a mechanism for differentiating between completely ridiculous claims of self-defense and arguably credible claims of self-defense, right?

Right. And therefore it’s a good thing that the criminal justice system actually has precisely such a system already in place.

OK, now let’s dive into how the criminal justice system distinguishes between completely ridiculous claims of self-defense, which ought to be discarded from serious consideration early and often, from more credible claims of self-defense, where a defendant ought to be entitled to present their argument to a jury.

It may be useful to think of self-defense claims as falling into one of three “buckets” along a continuum, with two very small “buckets” on each end, and one very large “bucket” in the middle.

On the extreme right side of the continuum we have “air-tight self-defense” cases.  This might be where you’re awakened during the night while sleeping in bed at home, you go take a look to see what’s going on, only to find a machete-wielding stranger rushing at you across your living room.  You shoot that attacking stranger in the chest, and he falls at your feet, machete still gripped in his hand. 

There’s literally no interpretation of those facts that is inconsistent with self-defense.  This, in a legal environment in which a prosecutor is obliged not merely to disprove self-defense, but to disprove self-defense beyond any reasonable doubt.  On these facts, no reasonable jury could ever conclude that self-defense has been disproven beyond a reasonable doubt.

These “air-tight cases of self-defense” don’t then to progress through the criminal justice pipeline for the obvious reason that they’re simply impossible for the state to win, and are therefore never pursued for prosecution.

On the extreme left side of the continuum we have the “clearly not self-defense” cases.  These are cases in which there is literally evidence in support of any one of the required elements of a self-defense claim.  Imagine the same scenario just described, except the machete-wielding attacker wins the fight, is arrested, and charged.  There is no interpretation of the facts described that would support a claim of self-defense by a machete-wielding man who breaks into a stranger’s home in the middle of the night and attacks the homeowner in his living room.

This bucket of purported cases of self-defense are actually the most common form of self-defense claims.  The simple truth is that most cases of self-defense in the criminal justice system are simply nonsense claims, made by bad guys who have unlawfully used force against another person, and are now desperately seeking to escape righteous criminal liability for their unlawful use of force. 

So, what happens when a nonsense claim of self-defense is made by a defendant?  Does it automatically make it all the way to a jury, no matter what?

No, it does not.  And here’s where it’s important to understand the burdens of proof.  That’s not a typo, I mean that to be plural, burdens of proof with an s.  Because there’s not just one burden of proof, there are two:  the burden of production, and the burden of persuasion.

Let’s tackle the burden of production first.

Before any legal argument can be made to a jury, before it can actually get into the courtroom, the person proposing that legal argument first has to meet what’s called their “burden of production” on that legal argument.

We’ve all heard of cases in which some evidence was excluded from a trial.  Perhaps the warrant used to collect that evidence was defective in some way.  Perhaps the judge decided that the evidence was too prejudicial.  Whatever the reason, the evidence was excluded.  Well, if the evidence is excluded, the jury never sees it. If the jury never sees it, it can’t play a role in the jury’s decision-making in arriving at a verdict. 

Exactly the same principle applies to legal arguments.  Your attorney is not allowed to make in court any legal argument that pops into his head. Any legal argument your lawyer wants to make has to have some evidentiary foundation—there must be some evidence in support of that argument.

If there’s literally zero evidence in support of a legal argument, that legal argument cannot be made to the jury.  Why not? Well, think about what the jury’s role is—to evaluate the credibility of evidence and determine whether an argument has been proven to the required legal standard.  If there’s literally zero evidence in support of a legal argument, then there’s nothing for the jury to consider, and from a strictly technical perspective the argument simply can’t be proven.

So, how does this play out in the criminal justice process, from a practical perspective? 

If a defendant has been charged with some use-of-force offense (assault, battery, manslaughter, murder, etc.) and wishes to justify their use of force as lawful self-defense, they typically are required to provide notice to the court—and, more relevant, to the prosecution—that they intend to argue self-defense as their legal defense.

This gives the prosecution the opportunity to challenge the right of the defense to argue self-defense, by arguing that the defense has failed to meet their burden of production on the legal argument of self-defense.  That is, the state can argue that the defendant has failed to produce any evidence in support of self-defense (meaning, of course, each of the required elements of a claim of self-defense). 

If it’s true that there is zero evidence in support of a required element of self-defense, then there’s no evidence for the jury to consider, and therefore there’s no way a rational jury could ever conclude the defendant acted in self-defense.

This is where nonsense claims of self-defense get blown up—before the trial even begins.  The defendant proposes to raise the legal defense of self-defense, the prosecution demands that they show greater than zero evidence in support of each of the required elements of self-defense, the defense is unable to meet this requirement, and the trial judge denies the defense the right to argue self-defense in front of the jury.

Let’s put all that in the context of Gayla Kiles shooting and killing her husband.

It’s not hard to imagine a hypothetical fact pattern in which Kiles might have shot and killed her estranged husband and there would be zero evidence in support of self-defense.  Say, for example, she’d broken into his home in the middle of the night, bringing a gun with her, snuck into his bedroom, and shot him in the back of the head as he slept. 

There’s literally no interpretation of those facts that could support a claim by Kiles, in that hypothetical, that she shot her husband in self-defense.  Under those hypothetical circumstances, if Kiles tried to claim self-defense the prosecution would demand that she first meet her burden of production on that defense. When she failed to do so, the trial judge would deny her the right to argue self-defense as a legal defense to the jury.

That, folks, is how a nonsense claim of self-defense gets rejected outright by the criminal justice system.

The reality of Kiles shooting and killing her estranged husband is not, however, that clear-cut.  It is, rather, far more ambiguous.  And that gets us to the really broad bucket in the middle of the continuum, what I refer to as the “bucket of ambiguity.” 

Now we’re neither on the right end of the continuum, where the use of force was obviously self-defense, and we’re not on the left end of the continuum, where the use of force was obviously not self-defense.  We’re in the middle, where the simple truth is that it could go either way.

In a moment I’ll focus us back in on the key question to be answered in this analysis, which is whether Giles has met the legal threshold for her shooting of her husband to qualify as a self-defense case for which USCCA might be obliged to compensate her legal expenses.

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OK, now let’s refocus on the key question to be answered in this analysis, particularly in the context of whether Giles has met her burden of production on self-defense, and thus met the threshold for this being considered a legitimate self-defense case regardless of the circumstantial evidence to the contrary.

The relevant question here, at this stage of the legal proceedings, is not whether we think it’s more likely than not that Kiles killed her husband in self-defense, on the one hand, or maliciously orchestrated a situation in which she could kill her husband and try to make it appear as self-defense. 

That will most definitely be the key question at trial, where each of those narratives will be argued by the defense and the prosecution, respectively, and ultimate the jury will have to make the call.

It is not, however, the question to be answered pre-trial.  The only relevant question to be answered in this context pre-trial is this:  Is there more than zero evidence in support of Kiles claim of self-defense?  To put it another way, is there any interpretation of the facts that could be consistent with Kiles shooting of her husband being self-defense?

The answer is obviously, yes.  You may believe that it’s unlikely that Kiles shooting of her husband was self-defense.  But no reasonable person could say it’s impossible, even accepting the worst interpretation of the known facts against her. 

It could be true that Kiles had a reasonable perception of a deadly force threat from her estranged husband, even if she had only recently purchased her handgun, and even if she had only recently become a USCCA member, and even if her husband had previously accused her of domestic violence. 

All of that could be true—and Kiles estranged husband could still have attempted to force his way into her vehicle, creating a legal presumption that he intended to cause her (and the children in the vehicle with her) deadly force harm. 

Now, you may believe that this narrative is not credible, indeed you may believe it’s laughable.

But once there is more than zero evidence in support of that claim of self-defense, it’s no longer up to you, or me, or the prosecution, or even the trial judge, to deny the defendant the right to make that legal argument of self-defense in front of a jury.

Once there is evidence in support of a legal argument, it is the sole province of the jury to determine whether they consider that evidence to be credible or not credible, and by extension to determine whether self-defense has been disproven beyond a reasonable doubt by the prosecution.

And that is what we call the burden of persuasion, the second of the burdens of proof.  That is, whose job is it to persuade the jury of the truth or untruth of that evidence or legal argument that’s met its burden of production and has now been presented to jury in court?

With respect to the legal defense of self-defense, once a defendant has met their burden of production on self-defense, and gotten the self-defense argument into court in the first place, the burden of persuading the jury that the claim of self-defense is untrue now shifts to the prosecution.

In this particular case, once Kiles has met her burden of production, and there’s any possible interpretation of the facts that could be consistent with self-defense, the burden of persuasion now shifts to the prosecution to disprove her claim of self-defense beyond a reasonable doubt.

Once Kiles has met her burden of production she is not obliged to also prove that she definitely killed her husband in self-defense. She’s not even obliged to prove that she probably killed her husband in self-defense. She’s not even obliged to prove she likely killed her husband in self-defense.  All she’s obliged to do is ensure that the jury has a reasonable doubt about whether she killed her husband in self-defense. 

Unless the state can disprove self-defense beyond that reasonable doubt, the jury will be instructed that they are to acquit Giles of second-degree murder and all lesser-included use-of-force charges that may apply.

So, let’s review in a nutshell, in the context of Kiles shooting of her husband, and in the context of USCCA’s obligation to compensate her for her legal defenses:

If there’s no interpretation of the facts that is consistent with self-defense, then Giles fails to meet her burden of production on self-defense, and self-defense is denied as a legal defense even before Kiles gets to trial.  In that event, it would be perfectly reasonable for USCCA to decline to pay for Kiles’ legal expenses, because as a strictly technical legal matter her shooting of her husband could not have been self-defense.

On the other hand, if there’s ANY interpretation of the facts that is consistent with self-defense, then Kiles has met her burden of production on self-defense, self-defense is permitted as a legal defense, and will be argued to the jury.  This is true even if any of us might feel that the evidence in support of self-defense is weak or strongly contested.  If the evidence exists, it becomes the sole role of the jury to determine the credibility of that evidence, and by extension to determine if the legal defense of self-defense has been disproven by the prosecution beyond a reasonable doubt.

Again, once the burden of production has been met, self-defense is a viable legal defense in the criminal proceeding, and the only entity that gets to reject self-defense as a legal defense is the jury. Not the prosecution. Not the judge.  Not USCCA. Not you. Not me. 

Only. The. Jury.

From my perspective, the ideal “self-defense insurance” program would follow this framework precisely.  Specifically, if a member fails to meet their burden of production on self-defense, the provider is relieved of their obligation to pay for the member’s legal expenses.  On the other hand, if the member meets their burden of production on self-defense, meaning self-defense is now a viable legal defense in their trial, then the provider should be bound to meet their obligation to pay for the member’s legal expenses.

There is, of course, no ideal “self-defense insurance” program, as all of them have strengths and weaknesses. Indeed, all of them are free to require additional conditions and exxclusions for coverage beyond what I’ve described above, as part of their contractual agreement with their members, and to a greater or lesser extent they mostly do.

A “self-defense insurance” provider could do all I described, but also impose an exclusion that they are not obliged to cover cases in which the member was intoxicated at the time they acted in self-defense.

Totally legitimate, assuming the member knows that’s an exclusion going into the deal.

Alternatively, the provider could impose a condition that their coverage applies only if the member uses a firearm as their defensive tool, rather than a knife or a club or a car or an anvil or whatever, making the program gun-specific.

Again, totally legitimate, assuming the member knows that’s a condition going into the deal.

The provider could even impose an exclusion such that their benefits are not triggered if the use-of-force was the result of a domestic relations confrontation.  This particular exclusion would, for example, relieve a “self-defense insurance” provider from covering Kiles under the facts of this case.

Again, totally legitimate. Assuming the member knows that’s an exclusion going into the deal.

What one needs to be cautious about in considering any “self-defense insurance” program is not whether they will be denied benefits if their use-of-force could not have been self-defense from a technical legal perspective—that goes without saying. 

Nor should one be concerned that they might be denied benefits if their use-of-force fails to meet one of the conditions, or triggers one of the exclusions, of the program they chose. That’s on the member—if you don’t agree with the conditions or exclusions of a given program, don’t sign up for that program—it’s a poor fit for you.  Once you sign up, however, you’re as bound by those conditions and exclusions as the program is by their obligations to you should you be in compliance with those conditions and exclusions.

Where anybody enrolled in or considering a “self-defense insurance” program SHOULD be concerned is where such a provider decides, without prior notice to the member, that they will condition providing benefits on their own determination of whether they find the member’s claim of self-defense to be credible.

In other words, that the provider will give the member the promised benefits, but only if it looks like self-defense to provider

I want to make clear that such a condition of discretionary review would be totally appropriate for any “self-defense insurance” provider, so long as prospective members were made aware of this condition going into the deal. 

There’s no reason that a provider can’t impose as a condition of benefits that they are entitled to review the member’s use-of-force and make their own determination of whether, in their judgment and completely independent of what any court might find, that use-of-force qualifies as self-defense.  In this case they would reserve the option to deny benefits at their discretion should they conclude, in their judgment, that the use of force does not look like self-defense to them. 

Under this model, the “self-defense insurance” provider is in effect assuming the role of the judge in deciding whether the member has met their burden of production, and the role of the jury in deciding whether the state has met its burden of persuasion.

Again, totally legitimate. Assuming the member knows that’s an exclusion going into the deal. 

Now, this kind of “we’ll cover you if we feel like it” program is not something I’d feel particularly comfortable recommending to clients and members of the Law of Self Defense community, because of the lack of certainty involved.  What are you really paying for every month, if when you need to access those “self-defense insurance” benefits your provider can deny you at their own discretion, even if a court says your claim of self-defense is viable? 

A strong argument can be made that such discretionary authority on the part of a “self-defense insurance” provider might be acceptable if the provider has an exceptional capability of making such judgments in a credible way. 

Many would argue, for example, that the Armed Citizen Legal Defense Network has precisely such a capability in their truly exceptional Board (consisting of folks like Mas Ayoob, John Farnam, Tom Givens, Dennis Tueller, etc.).  Nevertheless, whether a provider reserves the right to deny benefits at their sole discretion, even if a court finds a claim of self-defense to be viable for trial, is a factor that ought to be given considerable weight in choosing a “self-defense insurance” provider.

To come back to the case of Kayla Giles, if a court concludes that she has failed to meet her burden of production on self-defense—in effect, the there is no view of the facts that could be interpreted as consistent with self-defense—then USCCA ought not be obliged to pay for her legal defense, no matter what other factors might be in play.

If Giles meets her burden of production, but has failed to meet some previously disclosed condition, or has triggered some previously disclosed exclusion, of her membership agreement with USCCA, then USCCA ought not be obliged to pay for her legal defense, no matter what other factors might be in play.

If, however, Giles meets her burden of production, by convincing the trial court that her claim of self-defense is sufficiently viable to be argued before the jury, and she has met all previously disclosed conditions and has not triggered any previously disclosed exceptions to her membership agreement with USCCA, then it would appear that USCCA ought to be obliged to pay for her legal defense—again, no matter what other factors might be in play.

And that obligation ought to apply even it appears likely that Giles may have orchestrated the murder of her husband and attempted to fake the appearance of self-defense.  Why?

Because if she’s met her burden of production, has met the conditions of her membership agreement, has not triggered any exclusions of that agreement, she is entitled to have the jury, and not USCCA, make the determination of whether the state has disproven her claim of self-defense beyond a reasonable doubt.

And all that’s true even if it later turns out that the jury convicts Giles of second-degree murder in the killing of her husband. The whole point of “self-defense insurance” is to provide members with resources to wage their legal fight in the first place. By definition, that means the resources have to be provided before the verdict is in, and therefore before the final outcome can be known. If the promised resources are withheld until after the verdict, and provided only if the verdict is not guilty, such that the defendant lacked those resources for the fight, and that lack of resources might well have directly contributed to the defendant’s conviction.  (That’s why I’ve never recommended “self-defense insurance” programs that are largely or entirely reimbursement-after-the-verdict programs, such as the now-defunct NRA Carry Guard program.)

Does all this mean that in some cases a “self-defense insurance” program will find itself obliged to pay the legal defenses of a member who the program genuinely, and in good faith, believes orchestrated the victim’s murder?

Yes.  If they don’t want to be in that position, all they need to do is inform prospective members ahead of time that they reserve the option to deny benefits at their sole discretion.

Whether such a program would prove a viable business model is another matter entirely.

Law of Self Defense CONSULT Program

And with that, it seems this might be a good idea to mention a rapidly closing opportunity with respect to our Law of Self Defense CONSULT Program.

For those who don’t know, our CONSULT Program is a way for you to guarantee that I’ll be available to work on your self-defense case should you ever find yourself facing a use-of-force criminal charge, and at a small fraction of my normal retainer cost.

Note that the CONSULT Program is NOT a replacement for a “self-defense insurance” program.  The CONSULT Program does NOT cover the entirety of your legal expenses.  It’s simply a way to pre-pay, at a fraction of the cost, the cost of my consulting on your case, and at roughly 1/10th the cost of our usual retainer.

Perhaps the biggest strength of the CONSULT Program, however, touches upon many of the arguable weaknesses we’ve just discussed in the context of most of the “self-defense insurance” programs, and that is that we impose no circumstantial exclusions on participation in the CONSULT Program.

Had you consumed a few beers when you acted in self-defense?  If so, many “self-defense insurance” providers reserve the right to decline coverage.  The CONSULT Program doesn’t care, you get our services anyway.

Was the use-of-force event the result of a violent domestic relationship?  If so, some “self-defense insurance” providers reserve the right to decline coverage.  The CONSULT Program doesn’t care, you get our services anyway.

Do you live in one of the increasing number of states that have effectively outlawed “self-defense insurance” providers?  As a traditional pre-paid legal services program, without any insurance component whatever, the CONSULT Program isn’t subject to such restrictions, so you get our services anyway.

In other words, even if for some reason your self-defense insurance” provider becomes unwilling or unable to help you in your time of legal distress, the CONSULT Program generally, and I personally, will still be there.

Here’s the important point I wanted to bring to your attention with respect to this week in particular: 

On November 1, the cost of joining the CONSULT Program via a single up-front payment goes up rather substantially, effectively almost doubling.  So, if you were interested in joining on that basis, you’ll absolutely want to take a look at that option within the next few days.  After October 31, that option gets a lot more costly than is currently the case.

Alternatively, we’ve just launched an option to enroll in our CONSULT Program by making modest ongoing payments of less than $20 a month, rather than having to come up with several hundred dollars up-front.  Best of all, you’re fully covered by the $10,000 of legal services offered under the CONSULT Program the moment we receive your first monthly investment of less than $20, and you continue to be covered as long as you choose to stay enrolled. 

This monthly payment option is a bit of an experiment for us, however, and I’m not sure how long we’re going to offer it.  We have no intention of dropping anyone from the program who signs up, but we reserve the right to cease offering this monthly option at our discretion.  So, if you want to lock this opportunity in, now would be the time to do so.

To learn more about the Law of Self Defense CONSULT Program, just point your browser to:

OK, folks, that’s about it for today, I think.

Please remember:  We don’t  yet know all the facts regarding this lawsuit brought by Kayla Giles against USCCA (meaning, parent company Delta Defense), and it’s possible that USCCA has a perfectly valid explanation that completely counters Giles’ claims.

If so, however, USCCA has explicitly declined to provide that explanation—their media spokesperson provided me with a firm “No Comment” when I inquired.  As is, of course, their privilege.

Absent an explanation countering credible allegations that they are improperly declining to meet their contractual obligations to one of their Platinum members charged with second-degree murder, however, I’m obliged to cease recommending to my clients and the Law of Self Defense community generally that USCCA be considered as a viable choice for “self-defense insurance.”

OK, folks, have a great weekend, and don’t forget:

In closing, remember:

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

Know the law so you’re hard to convict.


Attorney Andrew F. Branca
Law of Self Defense LLC

22 thoughts on “Self-defense, or not? Who decides?”

  1. As a customer of USCCA, I will be concerned with the outcome of this suit against USCCA. If it goes against USCCA I will need to be considering other options for the protection of myself and family.

    1. Attorney Andrew Branca

      If you’re waiting for the suit to be settled to decide, you don’t understand the problem.
      The criminal case will be over long before the civil suit ever goes to court. It’s possible the parties might settle, but the terms would be sealed, so that’s not helpful to us.
      Absent a definitive statement from USCCA, all we know now is that one of their Platinum members, claiming self-defense in a murder case, says she’s being denied member benefits as her trial is pending.
      Would you want to be in that position?
      Maybe USCCA has a perfectly valid explanation–but if so, they’re declining to share it with us.
      Hey, it’s a free country, and folks are free to spend their money wherever they like. We’re all adults. I can only encourage people to make a well-informed adult decision. Whatever that decision might be, awesome, it’s their choice.
      Attorney Andrew F. Branca
      Law of Self Defense LLC

    2. Let me amend my previous statement. The outcome of the suit may be along time or may never happen, so I should not be waiting. I should be considering now, how best to protect my family.

      1. Attorney Andrew Branca

        Indeed. And that could well mean staying with USCCA, which would be fine, if it meets your personal needs.
        Of course, only YOU can be the judge of THAT.
        Attorney Andrew F. Branca
        Law of Self Defense LLC

  2. Wow. A great exposition with depth and width. As well, it flows and is easily readable. (Hmmm. Perhaps I should worry–since when could a non-attorney actually grasp lawyer talk?)

    1. Attorney Andrew Branca

      Ha, well it’s our mission to translate all the legalese into plain English.
      I’ll confess we don’t always hit the mark, but we try.
      It’s hard for an actual attorney to speak plain English, we’ve spent our whole careers being ordered to do the opposite. 🙂
      Attorney Andrew F. Branca
      Law of Self Defense LLC

  3. It bothers me deeply that the outcome of any trial, whether it involves self defense or not, may very well depend on whether or not you could hire a good lawyer, vs. merely accepting the services of a public defender. Sadly, there’s no generic “help me in a legal situation” insurance, to cover the myriad of ways you might get in trouble with the law.

    Indeed, this is one of the more hideous problems with the way Red Flag laws are implemented in some States — some States have ruled that you don’t even get the privilege of having a public defender if the State takes your guns away under a Red Law complaint. (You’re still welcome to have representation — you just have to pay for it out of your pocket.)

    I have often wondered what can be done to fix this issue, and while self defense insurance can be helpful, I can’t help but think that this is merely a band-aid to the existing problem. I suspect that eliminating plea bargaining should also be considered. (Plea bargaining, for all practical purposes, has pretty much neutralized trial by jury.) Beyond that, though, I have no easy answers.

  4. Andrew
    After reading the story about USSCA and your blog I have a question. I have taken your level one course and several others including the self defense insurance course. I wonder if USCCA has paid her legal fees up to the point where she has failed to meet her burden of production and the defense of self defense has been ruled out.
    It would seem to me that at that point USSCA would no longer be responsable for her legal fees
    Jim Oakley

    1. Attorney Andrew Branca

      As I discussed in my pair of posts on this topic, there are a variety of ways that USCCA could be properly relieved of their obligation to pay Kiles’ legal costs in this case.
      Absent any evidence that any such relieving conditions have occurred, all we have is the Federal lawsuit alleging that USCCA’s denial of coverage is a contractual breach of their obligations to Kiles.
      If some triggering event that relieves USCCA of their obligation to cover Kiles’ legal expenses has occurred, it would be helpful to USCCA’s reputation, and my ability to continue recommending them, if they let us know.
      They’re going to have to respond to the Federal complaint at some point, after all, unless they just change course and decide to pay Kiles’ expenses, after all–in which case I have to wonder if one must file a Federal lawsuit in order to get one’s USCCA benefits.
      Attorney Andrew F. Branca
      Law of Self Defense LLC

    1. Attorney Andrew Branca

      Yes, the demand for the LOSD coffee mugs is very high!
      Here’s the deal: We ordered a bunch of them, waited a few weeks for them to arrive, and upon arrival we saw that they’d been manufactured in China.
      Which I suppose I should have assumed would be the case, but I wasn’t much interested in China-made mugs when I could instead buy US-made mugs (albeit at a substantially higher cost).
      So, we sent all the China-made mugs back, and started the ordering, proof sample, etc. process for US-made mugs.
      Now we’re just waiting for the US-made mugs to arrive.
      As soon as they do, I’ll let everyone know they become available. 🙂
      Attorney Andrew F. Branca
      Law of Self Defense LLC

  5. Andrew,
    The last 2 sessions on the blog have been outstanding. Thank you for the in-depth, balanced, analysis of a real-world legal situation that anyone of us that has engaged a self-defense “insurance” provider could find ourselves in. I’ve been a member of USCCA for over 5 years, and until now have not had any reason(s) to consider other providers. Full disclosure, I also am a member of ACLDN, principally for the purpose of having access to their subject matter experts — as you point out in your post, if ever needed. But now I have some new things to consider. I find myself reflecting on your tag line, “you carry a gun so you’re hard to kill, know the law so you’re hard to convict”…now I need to add “know your coverage, so you know you’re covered.” Thanks for continuing to educate me on the complexities of understanding the law of self defense.

    Alan H.
    Raleigh, NC

    1. Attorney Andrew Branca

      That’s all very kind of you, Alan, and thanks.
      FYI, as you can probably tell we’re trying out some new technology for our blog videos, part of which involves LIVE broadcasting them on Facebook, and then placing recordings of those here on the blog.
      For those of you who are blog members, I want you to be aware that it is our intention that the primary storage of these blog videos will be here, on the Law of Self Defense blog. We intend to only have the videos upon on Facebook on an occasional, and transitory basis, for the sole purpose of helping to expand the Law of Self Defense Community.
      After a video has been up on Facebook a day or two it will be deleted from that platform, but retained here for all of you who are members.
      Attorney Andrew F. Branca
      Law of Self Defense LLC

  6. So let’s say she had bruises at the scene but the parking lot video shows her standing over the victim putting a round into his head. She therefore has some evidence that she was attacked but there is incontrovertible evidence she actually executed the victim. I can see my coverage going out the window as soon as the video is discovered, Are you saying that the USCCA policy wold still be expected to be in force because the is physical evidence that he was the aggressor? And would it not be prudent for there to be no comment to the press to protect themselves from being accused of prejudicing the case by releasing that information to the public?

    1. Attorney Andrew Branca

      I’m asking the question: Who decides that self-defense is not a viable legal defense, based on the evidence?
      Does USCCA get to make that call on their own? If so, they should say so up-front.
      If the claim of self-defense is obviously nonsense, the state would be highly motivated to have that legal defense stripped from the defendant as early in the process as possible, as that would effectively win the conviction for them right there–if the defendant’s conceded to the shooting and self-defense has been denied by the court as a legal defense, there’s nothing left but a conviction.
      If the state’s unable to make that argument convincingly to the trial court, such that the trial judge in his informed opinion believes it’s appropriate for a jury to hear the self-defense argument and make the call, then, YES, absolutely, USCCA ought to be obliged to cover the legal expenses for what is IN FACT and IN LAW a self-defense case.
      (Absent, of course, some other condition of coverage having been violated or some other exclusion being triggered.)
      In terms of “no comment,” there’s no law that says a company can’t comment on litigation. If they had a comment that would be helpful to them–say, for example, that Kayla Giles is simply lying about ever having been a USCCA member at all–there’s literally no reason in the world not to say so. Saying so could not possibly hurt them in any litigation over the matter.
      The general rationale behind a “no comment” strategy is the concern that any “comment” would be harmful to one’s position. That rationale doesn’t apply to comments that would be HELPFUL to one’s position, as well as protective of one’s business reputation.
      If there’s a reasonable basis for denying coverage of Kiles’ legal expenses in this matter, there’s absolutely no reason not to share those with the public.
      If, on the other hand, the basis for denying coverage might appear unreasonable or ambiguous or arbitrary or capricious, well then, yes, perhaps better not to put that out there. But if that IS the case, how could I possibly recommend a legal coverage organization that is making coverage decisions on an unreasonable, ambiguous, arbitrary, or capricious manner?
      Whatever the reason, it’s going to have to be made public ANYWAY, because a Federal complaint has been filed and USCCA is going to have to respond to that complaint, or lose the case. The only way to avoid the requirement to respond to the complaint would be to reverse their decision and start covering Kiles’ legal expenses, in which case I have to wonder if the only way to be certain to receive one’s USCCA benefits is to be prepared to sue them in Federal Court.
      Attorney Andrew F. Branca
      Law of Self Defense LLC

  7. I also have USCCA coverage.
    I will just let it lapse when it runs out and will buy coverage from another company.
    I must say that the exclusion by CCA to not cover if your attacker was invited into your house is a deal breaker for me.
    It is possible that a guest of a friend could accompany a friend into my house and then assault me.
    I would then have no coverage if this person who I did not know attempted to kill me.
    Just because I let them in because they accompanied my friend.

    1. Attorney Andrew Branca

      Every one of these providers has their own basket of conditions and exclusions, as well as coverage limits (or not), etc. That’s why I never urge people to choose one over the other–the one that’s the best fit for my circumstances (and that happens to be CCW Safe) might not be the best fit for the next person’s circumstances.
      That said, I absolutely can’t recommend for consideration plans that are unfit for their intended purpose. This has always applied to the (now defunct) NRA Carry Guard program because it was largely a reimbursement-type program.
      Naturally, I also can’t recommend any plan, such as currently USCCA, that is alleged in a Federal court complaint to be wrongfully denying member benefits, and which declines to provide any explanation for why this allegation should not be considered to be 100% true–even though they WILL inevitably have to provide such an explanation in a response to the Federal complaint.
      Maybe USCCA has a perfectly good explanation for why the complaint is false or mischaracterizing the situation, and if so I can’t wait to hear it–indeed, I’ve reached out to them personally to ask what that might be, but got only a “No Comment” in reply.
      Until there’s a response from USCCA that explains how they’ve met all their reasonable obligations to Kiles, all we have to go on is the claim in the complaint that they have not done so–and that’s not good.
      Attorney Andrew F. Branca
      Law of Self Defense LLC


    Is the party “Kiles” or “Giles?”
    There are 25 references to “Kiles” and 25 references to “Giles.”
    There are a couple of other typos in the article as well though I don’t think any have meaningful consequences other than demonstrating no one proofreads any longer.

  9. Pingback: USCCA Sued in Federal Court: Refused to Cover Platinum Member? – Law of Self Defense

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