Image 01 Image 03
Sign In or RegisterLogout

Author: Andrew Branca

Profile photo

Andrew Branca

Andrew F. Branca is in his third decade of practicing law in the Commonwealth of Massachusetts. He wrote the first edition of the "Law of Self Defense" in 1997, and is currently in the process of completing the fully revised and updated second edition, which you can preorder now at lawofselfdefense.com. He began his competitive shooting activities as a youth in smallbore rifle, and today is a Life Member of the National Rifle Association (NRA) and a Life Member and Master-class competitor in multiple classifications in the International Defensive Pistol Association (IDPA). Andrew has for many years been an NRA-certified firearms instructor in pistol, rifle, and personal protection, and has previously served as an Adjunct Instructor on the Law of Self Defense at the SigSauer Academy in Epping, NH. He holds or has held concealed carry permits for Massachusetts, Connecticut, Rhode Island, New Hampshire, Maine, Pennsylvania, Florida, Utah, Virginia, and other states.

Posted by Andrew Branca on February 17, 2015 60 Comments
Wayne Davis, the jury foreman in the Michael Dunn re-trial that found Dunn guilty of the first-degree murder of Jordan Davis, was interviewed for the first time this past week by News4Jax. Remember Dunn? He's the one charged with 1st degree murder for the shooting death of 17-year-old Jordan Davis. The State believed Dunn shot Jordan out of anger over Jordan’s loud music, whereas Dunn claimed he shot in lawful self-defense. The State's argument won out, raising questions about lawful self-defense vs. premeditation standards in modern criminal law. You can read a transcript, and watch a video of the interview (also embedded at the bottom of this post), here. What particularly caught my eye from this interview was the considerable weight the jurors placed on the many physical steps Michael Dunn took in retrieving, preparing, and brandishing his handgun, and how the jury concluded as a result that Dunn acted with premeditation.  This finding of premeditation was necessary in order for the jury to unanimously find Dunn guilty of first-degree murder, as opposed to second-degree murder or manslaughter. As Wayne Davis, jury foreman, put it in the interview:

Posted by Andrew Branca on February 16, 2015 28 Comments
On Wednesday, February 11, the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) suffered a humiliating federal court defeat that struck at the very core of its power.  In response, it took the DOJ and the BATFE only two days to petulantly strike back at gun owners in the form of a late Friday order intended to ban a major type of ammunition for the single most commonly purchased rifle. (The BATFE's "framework notice" released Friday evening is embedded at the bottom of this post.) Last week's federal court summary judgment against the government in Mance v. Holder struck down a key provision of the Gun Control Act of 1968 (GCA) requiring all interstate handgun transfers to pass between FFLs in each state was struck down as an unconstitutional infringement of the 2nd Amendment under both strict and intermediate scrutiny, as well as on 5th Amendment Due Process grounds. (We covered that decision in detail right here at Legal Insurrection: Federal Court: Handgun Transfer Ban Unconstitutional, and the PDF of that court order can be found at that link.) Never before had the Gun Control Act of 1968 been so grievously wounded, and the BATFE's authority so profoundly shaken, and lawful American gun owners were appropriately ecstatic. Like any wounded beast, of course, the BATFE faced an existential imperative to reassert their authority, and late Friday afternoon (in a move that's long ago become standard operating procedure for the Obama administration) they did so with a vengeance.

Posted by Andrew Branca on February 15, 2015 32 Comments
It has long been standard prosecutorial practice in Massachusetts to put any use of deadly force in claimed self-defense in front of a jury.  The attitude of prosecutors is that it might have been lawful self-defense, but it might not have been, so they're going to make you prove it to a jury before they'll cut you loose. Of course, with a trial defense of a murder (or similar) charge easily running into tens or even hundreds of thousands of dollars, this policy has the effect of "making the process the punishment."  Even if acquitted, one's life is largely destroyed economically, and likely emotionally. Even here in the Commonwealth, however, there is the occasional act of self-defense that is so obviously justified that the authorities are simply unwilling to present it to a jury as legitimate grounds for long-term incarceration. Once such case occurred last week in Springfield MA, a town I personally would never visit unless armed, hence my very rare visits--and then only to go to the Smith & Wesson facility still located there.   Indeed, it was such an open-and-shut case of lawful self-defense, even by Massachusetts standards, that the police announced within hours that they did not intend to bring charges against the defender.

Posted by Andrew Branca on February 15, 2015 76 Comments
When a 72-year-old retired school teacher faces a 10 year felony sentence (a likely life sentence) for possession of an unloaded 18th century flintlock pistol, one knows immediately that we can only be talking about a handful of states in which such a travesty can happen.  In this case, not surprisingly, it's the "Garden State" of New Jersey. (h/t Sebastian over at the Shall Not Be Questioned blog.) Gordon Van Gilder, who taught in the New Jersey school system for 34 years, is a collector of 18th century memorabilia.  He acquired a genuine antique flintlock pistol from that era, and had it unloaded and wrapped in a cloth in his glove compartment when he was pulled over for an alleged minor traffic violation.

Posted by Andrew Branca on February 13, 2015 28 Comments
The old quip in self-defense circles is that it is imprudent to bring a knife to a gunfight. This caution must apply only more certainly to the bringing of a rock to a gunfight, a lesson learned the hard way by one Antonio Zambrano-Montes after he was shot and killed this past Tuesday by the Pasco, WA police department, as reported by CNN and other news sources. Police were called after reports that Zambrano-Montes was at an urban intersection hurling rocks at vehicles. When officers responded, they too began to be pelted with stones as large as softballs, with officers being struck multiple times. Police say that they attempted to use various degrees of non-deadly force, including voice commands and a taser, but that these efforts were unsuccessful. Events were escalated to imminent deadly force against the officers by Zambrano-Montes. Video below shows shooting death of Zambrano-Montes.

Posted by Andrew Branca on February 12, 2015 14 Comments
Yesterday a federal district court in the 5th Circuit ordered summary judgment in favor of several plaintiffs who challenged existing restrictions on handgun transfers across state lines; the court found that the federal government’s existing handgun transfer ban was unconstitutional both on its face and applied to the facts of this case, under both strict scrutiny and intermediate scrutiny, and on 5th Amendment Due Process grounds. The order in the case of Mance v. Holder (PDF at bottom of post) is refreshingly clearly written, and I encourage even non-lawyers to “read the whole thing.” ™ In this post I’ll touch upon the high points of the decision, as well as some reasonably likely (and unlikely) practical consequences. First things first: a huge congratulations to Attorney Alan Gura for another tremendous win for the Second Amendment. While the immediate practical effects of this order are likely to be limited, it is yet another ratcheting of the law in the right direction. Everyone remembers, of course, that it was Alan who successfully litigated both of the groundbreaking Second Amendment cases Heller and McDonald before the US Supreme Court.

Posted by Andrew Branca on January 30, 2015 38 Comments
Despite all the hate directed at George Zimmerman for having successfully defended his life against a vicious ambush attack by Trayvon Martin, and numerous encounters with law enforcement both before and after that fateful night, he has yet to be convicted of any crime whatever. That trend continues with the dropping of the latest charges brought against him of aggravated assault.  Prosecutors have now declined to pursue these charges after Zimmerman's ex-girlfriend accuser recanted her testimony, reports the Associated Press (h/t @AaronWorthing). Zimmerman had been arrested and charged last month after his girlfriend was pulled over during a traffic stop, during which stop she told police that days prior Zimmerman had thrown a bottle of wine at her.  We reported on that arrest and surrounding details here:  Deja Vu: George Zimmerman Charged with Aggravated Assault. The Orlando Sentinel has the lastest details:

Posted by Andrew Branca on January 28, 2015 22 Comments
We noted here back in November that 34-year-old Marissa Alexander--facing up to 60 years in prison for firing a bullet past her husband's head and her two step-children--had once again been offered, and this time accepted, a 3-year plea agreement:  UPDATED: “Warning shot” defendant accepts 3-year plea deal. The renewed 3-year plea counted much of Alexander's time already served, resulting in her release from jail yesterday:  Judge: Marissa Alexander released to house arrest. video platformvideo managementvideo solutionsvideo player Alexander's failure to accept a similar agreement in the immediate aftermath of the 2010 shooting led to her conviction and three concurrent 20-year mandatory minimum sentences under Florida's "10-20-Life" law (§775.082 Penalties; applicability of sentencing structures; mandatory minimum sentences for certain reoffenders previously released from prison).  She earned a re-trial after the appellate court correctly found that there was a substantive defect in the trial court's self-defense jury instructions.  In the meantime, the Florida law on "10-20-Life"  had changed to require that sentences be served consecutively, so that Alexander now faced a mandatory minimum of 60 years.

Posted by Andrew Branca on January 25, 2015 106 Comments
Thanks to a tip from commenter Gremlin1974 right here on Legal Insurrection I was directed to this relatively high-quality body camera footage of a police officer engaging a suspect with gunfire, following the suspect pointing a pistol at the officer. Further details of the event were reported by local news station Fox 23 and by Chuck Ross at the Daily Caller. The shooting took place on January 16, 2015 in Muskogee, OK. The ex-girlfriend of 21-year-old Terence Walker, black, was getting married, an event to which he took umbrage. His solution was to threaten to shoot her on her wedding day, including such details as noting that he had a particular bullet selected just for her. When the bride approached her pastor in tears and shared these threats, he immediately called 911, saying of Walker: "He’s here with a gun,” Jones said of Walker on the 911 call. “I need a police officer because I got to stop this. I got a whole bunch of people here, and I don’t need nobody hurt." Police Officer Chansey McMillin, white, was dispatched to the scene. The body camera released begins as his vehicle is pulling into the church parking lot, captures the shooting itself, and continues for several more minutes until the crime scene has been secured and McMillin is on his way to the police station for debriefing.

Posted by Andrew Branca on January 22, 2015 53 Comments
The Bridgeton NJ police department has released dash camera video of the shooting of violent felon Jerame Reid by two of its police officers during a traffic stop, reports NBC 4 news in New York.  Both Reid and the officer who first shot him, Behame Days, are black.  Days' partner, Officer Roger Worley, who is white, also shot Reid after the gunfire began. The South Jersey Times reports that last summer Officer Days was involved in the arrest of Reid for heroin and cocaine possession, and resisting arrest. The same source reports that Reid has previously served thirteen years in prison for shooting at New Jersey State Police Officers. Given Day's previous experience in arresting a non-compliant Reid it seems quite possible that he would have been aware of Reid's history of shooting at police, knowledge which would naturally have contributed to his reasonable fear of death or grave bodily harm at the hands of the once again non-compliant suspect. The video begins with the suspect vehicle, in which Reid was the passenger, making a rolling left turn through a stop sign (0:06) while directly in front of the patrol car occupied by officers Worley (driving) and Days.  This immediately initiated the traffic stop (0:22), which begins amiably enough with a typical verbal exchange (0:36), but degenerates into Days drawing his service weapon within 22 seconds of his first words with the suspects (0:58).

Posted by Andrew Branca on January 21, 2015 34 Comments
The Department of Justice is preparing to drop the pretense that it has any expectation of bringing Federal civil rights charges against Darren Wilson, the Ferguson, MO police officer who successfully defended himself against Michael Brown after Brown attempted to beat Officer Wilson into submission and seize the officer's sidearm. The New York Times reports in part that:
The Justice Department has begun work on a legal memo recommending no civil rights charges against a white police officer in Ferguson, Mo., who killed an unarmed black teenager in August, law enforcement officials said. That would close the politically charged case in the shooting death of 18-year-old Michael Brown. The investigation by the F.B.I., which is complete, found no evidence to support civil rights charges against the officer, Darren Wilson, the officials said.
Let no one allege that the U.S. Attorney General Eric Holder didn't allocate sufficient resources to uncovering any possible trace of misconduct by Wilson. The Times report notes:
Federal investigators interviewed more than 200 people and analyzed cellphone audio and video, the law enforcement officials said. Officer Wilson’s gun, clothing and other evidence were analyzed at the F.B.I.’s laboratory in Quantico, Va. Though the local authorities and Mr. Brown’s family conducted autopsies, Mr. Holder ordered a separate autopsy, which was conducted by pathologists from the Armed Forces Medical Examiner’s office at Dover Air Force Base in Delaware, the officials said.
Despite these resources, the DOJ was unable to find any evidence whatsoever to suggest that Darren Wilson violated anyone's civil rights:

Posted by Andrew Branca on January 10, 2015 72 Comments
Well, look who's back in the news with girlfriend trouble, as reported by the Orlando Sentinel. And, consistent with similar past events, that girlfriend trouble has lead directly to jail, do not pass "GO," do not collect $200. George Zimmerman's girlfriend, pulled over yesterday by police for a routine traffic stop, volunteered to them that he had thrown a wine bottle at her the prior Monday while she was visiting Zimmerman's Lake Mary residence.  Nobody called the police at that time, nor at any time prior to the girlfriend being pulled over by police last night.

Posted by Andrew Branca on January 07, 2015 21 Comments
Two Bridgeton NJ police officers shot and killed 36-year-old Jerame Reid during a traffic stop last night, reports NBC 10 News our of Philadelphia (see embedded video, below).  The officers, Braheme Days and Roger Worley, are on paid leave as the killing remains under investigation.  Prosecutors have released little information, but a gun was recovered at the scene.  An autopsy is scheduled for today, although there seems little question as to the cause of death. The witness circus, so familiar from the Michael Brown shooting, seems to have already begun.  It remains to be seen whether the witnesses in this instance have any greater credibility than those in Ferguson who claimed that Brown was shot in the back while fleeing, that Brown was shot while on his knees, that Brown had never advanced on Officer Darren Wilson, and other such creativities.

Posted by Andrew Branca on December 27, 2014 27 Comments
Eugene Volokh has an interesting post over at his Volokh Conspiracy blog about a Washington-state Court of Appeals decision finding that there exists a Constitutional right of self-defense against attacking animals.  That decision, State v. Hull (Wash. Ct. App. Dec. 18, 2014),  is embedded at the bottom of this post. Professor Volokh's post on the matter is, as usual, insightful and worth reading, although it delves into considerable legal minutiae (as it must, given that the decision it discusses is based upon that minutiae).

"Bad Cases Make for Bad Law"

All the legalese aside, the decision could well be an interesting read even to non-lawyers for reasons unmentioned by Professor Volokh, and that is because it illustrates the truth of the adage, "Bad cases make for bad law." It seems inarguable that a person would have the legal right to defend himself against an unprovoked attack, regardless of the form--human aggressor, attacking animal, rampaging zombie, whatever. Yet at the trial the prosecution made precisely the argument that Washington state's self-defense laws applied only to a human attacker, and not to an animal attacker, and that therefore the defendant's request for a self-defense instruction should be denied.  Notably, this was an argument centered on what jury instructions were to be read, so it was made directly to the trial judge as a single individual, and not to the jury generally, so the prosecution needed to convince only one mind to agree.

Posted by Andrew Branca on December 19, 2014 22 Comments
A Texas Court of Appeals has ordered a new trial for a Houston man, Raul Rodriguez, convicted in 2012 of murder for the shooting death of a neighbor, Kelly Danaher, in 2010, on the grounds of defective jury instructions on self-defense, according to reports by ABC news and other news agencies.  (A full-length copy of this order is embedded at the bottom of this post.) The first trial found Rodriguez guilty of murder, and resulted in him being sentenced to 40 years. The facts of the case are somewhat ambiguous on detail, but in general they consist of an amalgam of a loud, drunken party, long-simmering neighborhood disputes, and incredibly poor judgment on the part of a retired fire-fighter in electing to exercise his concealed carry license by bringing his pistol to a confrontation.  A tragic outcome was entirely predictable. A particularly remarkable part of this case is that Rodriguez himself recorded the events of the conflict in an almost 20-minute video.  A portion of the video recorded by Rodriguez is here.  Roughly 15 preceding minutes are missing from this version, but the relevant end-stages of the conflict are captured, and the video ends with the first gun shot.  Reportedly several shots were fired, including one which injured another party goer, in addition to the fatal round that struck Danaher.

Posted by Andrew Branca on December 17, 2014 62 Comments
Markus Kaarma, the Montana man tried for deliberate homicide for shooting and killing a German exchange student whom prosecutors say was "baited" into entering the homeowner's garage has been convicted of that crime, reports WRAL news. The defense narrative of innocence was that Kaarma was in a heightened state of fear, having already been burglarized several times when at home with his common law wife and their 10-month-old child, that the police had been ineffective in dealing with the repeated burglaries, and that he acted in necessary self-defense when he spied the figure of Derin Dede in the darkened garage. In order for the jury to come to their unanimous guilty verdict they would necessarily have concluded that the state had disproved this narrative beyond a reasonable doubt.

Posted by Andrew Branca on December 17, 2014 26 Comments
News station KPAX in Missoula MT reports that the jury today continues its deliberations on the fate of Markus Kaarma, the man being tried for murder for having shot and killed German college student Diren Dede the night of April 27, 2014. The state argues that Kaarma and his common law wife Janelle Pflager (who has not been charged) deliberately left their garage door open to entice Dede to enter, as well as leaving in the garage a purse containing documented items that could later be identified as having been stolen from Kaarma. At closing the prosecution appeared to concede that the investigation into the shooting was substantively flawed.  Their narrative of guilt also incorporated the approach of describing the 18-year-old Dede as an "unarmed child" who did not "deserve to die" for his effort to burglarize Kaarma.  As put by Missoula County Deputy Attorney Karla Painter:
Even if there was a subpar investigation, that does not give the defendant free range to execute an unarmed child.  Was [Dede] considering taking something that didn't belong to him? Probably. Did he deserve to die for his transgressions? No. Diren was violently and senselessly executed. Please tell the defendant that while we live in a state with a strong gun culture, it is not one of lawlessness, or vigilante justice. Please tell the defendant and Mr. and Mrs. Dede that Diren's life meant more than a couple of cans of beer.
Accessibility by WAH