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Author: Andrew Branca

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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.

Joseph Walker, the New Jersey police officer who shot and killed Joseph Harvey Jr. in a Maryland road-rage incident, took the stand this past Friday to testify in his own defense over a 90 minute period, reports The Baltimore Sun.  Walker is charged with first degree murder in the case, and if convicted faces life in prison.

I just came across some brief TV news coverage with additional details on the case of 80-year-old CA native Tom Greer pursuing and shooting in the back 28-year-old Andrea Miller. We covered the case the other day, Pro-Tip: Shooting Fleeing Women in the Back is NOT Self-Defense. Miller and 26-year-old Gus Adams had invaded Greer's home and began to ransack the residence. When confronted by Greer, they attacked him, breaking his collar bone. Long Beach Police Chief Jim McDonnell reports in a television interview (video embedded after break) that at that point Adams went to try to break into Greer's safe, while Miller continued to assault Greer. They both Miller and Adams believed Greer to no longer be a threat and left him alone to continue to ransack his home.

[Clarification (7/26/14): I've just been informed by a knowledgeable person on the Zimmerman side of this case that what was submitted to the 5th DCA this past Friday is the official notice of appeal.  The actual appeal has not yet been submitted.] As anticipated by, well, everybody, George Zimmerman's civil lawyer, James Beasley Jr., has filed an appeal with Florida's Fifth District Court of Appeals (5th DCA) of the dismissal by June Debra Nelson of Zimmerman's defamation suit against NBC broadcasting.  This is per reports by Orlando's WKMG and the Orlando Sentinel. We previously covered Judge Nelson's dismissal of the suit here at Legal Insurrection, Zimmerman Libel Suit Against NBC Thrown Out, including the full text of her order. [caption id="attachment_93224" align="alignnone" width="450"]Judge Debra Nelson Judge Debra Nelson[/caption]

One of the conditions of using deadly force in self-defense is that one be facing an imminent threat of death or grave bodily harm. That definition of imminence is well captured by Black’s Law Dictionary:
Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law . . . Such an appearance of threatened and impending injury as would put a reasonable and prudent person to his instant defense.
In other words, the threat is about to happen right now.

This afternoon saw testimony from two additional Dearborn Heights law enforcement officers,  Tim Zawacki and Mark Parrinello. Highlights of this afternoon's events included a request by the Prosecution for sanctions against the defense for a mention earlier this morning of general crime in the Wafer neighborhood.  A pretrial ruling excludes such generalized mention of neighborhood crime unless a foundation can be established of Wafer's personal knowledge of specific crime events (e.g., the defense's proposed "neighborhood crime map" that was excluded by the Judge Hathaway). Also important was the testimony by Officer Parrinello that the peephole in the front door was functional.  A key difficulty for the defense is the question of why Wafer opened the front door.  It was this act that made him vulnerable to potential attack, which is presumably his reason for having discharged the shotgun.  Had he simply stayed behind his locked door, no deadly force would have been required.  One possible explanation would have been that the peephole in his front door was disabled, and therefore he could ascertain the situation outside his front door only by opening it.  That argument's power is now greatly diminished if not eliminated. Similarly, just before the lunch break 911 dispatcher Valentine Pepper testified that Wafer told him over the phone that he fired the shotgun by accident. (This part of the 911 call was not recorded, however, because it occurred when 911 called back Wafer.)

This afternoon I was helpfully directed to a live video stream of the Wafer trial, suggesting the streaming of the trial is not explicitly prohibited, as I had been led to believe Unfortunately the feed was of such low quality it was effectively useless. It seems even the provider recognized this, because after about an hour in the afternoon they cut off the feed entirely. We'll see what happens tomorrow, I guess. In summary of the afternoon, the state brought two witnesses:  Carmen Beasley, the woman whose husband's parked car was struck by Renisha McBride in front of Beasley's home several hours before McBride was shot by Wafer.  It was Beasley who first called 911, and who first communicated with the dazed and injured McBride.  This accident took place about a mile from Wafer's home, the site of the shooting. Also appearing was Dearborn police officer Ruben Gonzalez, who was among the first responders on the scene. Gonzalez interacted directly with Wafer, and helped to secure the crime scene. The defense claims that Wafer reasonably used deadly force in the belief that someone was attempting to violently enter his home. The state argues that Wafer unreasonably created the circumstances in which an innocent person was killed.

Jury selection begins today in the murder trial of Detroit homeowner Theodore Wafer, as reported in the Detroit Free Press. Wafer shot and killed Renisha McBride, a 19-year-old black woman, on his front porch. Wafer is claiming self-defense. The most recent news in the Wafer case was the June 27 denial by trial judge Dana Margaret Hathaway of defense requests to have McBride's cell phone texts and a map illustrating local crime incidents admitted into evidence (Judge Bars Cellphone Texts, Crime Map From Evidence in Renisha McBride Case). The cell phone texts suggested that McBride, the victim in the shooting, might have been engaged in the dealing of marijuana the night she was shot.  Such evidence could potentially be relevant in this self-defense case if it suggested a potential for violence on the part of McBride, but the judge ruled that it failed to do so. The judge also denied a motion by the defense to admit into evidence a "crime map' of Wafer's neighborhood. Based upon police reports of local crime, it illustrated the local crime incidents with large markers over a broad area around Wafer's home.

Marissa Alexander has been denied a second shot at a self-defense immunity hearing (often incorrectly referred to as a "Stand-Your-Ground' hearing), reports by First Coast News. Under Florida's self-defense immunity statute (FL 776.032 Immunity from criminal prosecution and civil action for justifiable use of force) a person claiming self-defense can seek immunity from criminal prosecution and civil suit.  To do so they generally request a hearing in court in which they present their evidence in support of self-defense. If the hearing judge determines that there is a preponderance of the evidence in support of self-defense, immunity is granted.  Given that a preponderance of the evidence is a vastly greater level of proof than the reasonable doubt required to sustain a claim of self-defense at trial, this approach only makes common sense. Alexander sought and received a self-defense immunity hearing prior to her first trial (since reversed, and she now awaits retrial). Following that hearing, her motion for self-defense immunity was denied--no surprise, as there is scant evidence in support of her claim of self-defense (and that's being exceedingly generous). When Alexander sought a second self-defense immunity hearing leading up to her re-trial, it raised a novel question under Florida law whether a second such hearing was legally required upon demand or even permitted (see Marissa Alexander’s Desperate Efforts for Self-Defense Immunity Hearing Delayed Again and Will Marissa Alexander get second shot at Self-Defense Immunity?). This past Friday the electronic court records of the case were changed to indicate that Alexander's current motion for a self-defense immunity hearing was denied, and the actual order denying the request for a second self-defense immunity hearing was released this morning.  It's embedded below, but here are the highlights:

It is axiomatic that the freedom of speech provisions of the 1st Amendment of the US Constitution are specifically intended to protect unpopular and/or offensive speech. After all, speech that is neither unpopular nor offensive is, obviously, not in need of any particular protections.  It is equally indisputable that of all the various forms of speech possible, it is political and religious speech that lies at the heart of 1st Amendment protections.

Meet Todd Kincannon, that &$(#*&%! Lawyer from South Carolina

In the context of the Conservative polito-sphere one of the greatest founts of offensive conservative political and religious speech is South Carolina lawyer (and former head of the SC Republican Party) Todd Kincannon, particularly through the vehicle of his Twitter account, @Todd__Kincannon (note that there are two underscores). Despite Todd’s in-your-face, abrasive political and religious speech—or, as seems more likely, precisely because of it—the @Todd__Kincannon Twitter account has acquired in excess of 50,000 followers. To put this figure in some context, this very highly successful and well-respected legal blog on which I am writing this post has just over 14,000 followers of its @LegInsurrection Twitter account. My own @LawSelfDefense Twitter account has only about 4,000 followers.

Kincannon Reports SC Officials Are Threatening His Law License Over Speech

Todd is now reporting that the South Carolina governmental authorities responsible for governing the professional conduct and ethics of attorneys have decided that Todd’s conservative political and religious advocacy on Twitter, and elsewhere, is too offensive to be permitted, and needs to be gagged. Specifically, Todd has written that the South Carolina Commission on Lawyer Conduct and the South Carolina Office of Disciplinary Counsel have informed him that his political and religious commentary is “unethical” to a degree sufficient to warrant legal sanction to the point of disbarment. (The South Carolina Judicial Department definitions of lawyer misconduct can be found here: Rule 8.4: Misconduct.) More specifically, Todd writes that these governmental agencies have threatened him with disbarment should he proceed with his planned publication of a book advocating conservative political and religious beliefs. This past June they also informed Todd that following a two-year investigation based on a small number of complaints—none alleging anything other than offensive political and religious speech—they were electing to continue rather than cease the investigation because of comments Todd had made on his @Todd__Kincannon Twitter account regarding a left-wing political activist. As a result, Todd felt compelled to cease his Twitter communications effective June 22, and he has been silent in that forum since then. In short, these South Carolina government officials are purportedly seeking to strip Todd of his professional license to practice law based solely upon his Constitutionally protected exercise of his right to freedom of political and religious speech.

Kincannon Breaks Silence With Email to Purchasers of His Book

Todd revealed this current state of affairs in an email released to persons who had pre-ordered copies of his book, in explanation for why they would not be receiving their ordered books in as timely a manner as they had expected.

The Miami Herald is reporting that the Florida Supreme court has declined to hear state prosecutor's final appeal of self-defense immunity awarded to a black Floridian who shot and killed two Hispanic men in self-defense: "State high court won’t hear appeal in Miami self-defense case" (h/t Miguel over at GunFreeZone.net). This decision by the State's highest court ends prosecutorial efforts to convict and imprison Gabriel Mobley. It also sheds some interesting light on the process for self-defense immunity in Florida. (Many states have self-defense immunity laws, but their procedures for granting immunity vary wildly from state to state.) We previously covered the Mobley case back in January right here at Legal Insurrection, "FL Appellate Court Grants Self Defense Immunity To Black Defender," noting then that:
The evening of February 27, 2008, in the Miami area, Gabriel Mobley and a friend were viciously attacked by two men. Using his licensed concealed carry pistol, Mr. Mobley successfully fought off the attack, killing both of the aggressors. He was charged with two counts of second degree murder – murder which, under Florida law, requires “malice”.

One of the most common questions I get at Law of Self Defense Seminars is, “How do I pick a good self-defense lawyer if I’ve had to use force in defense of myself (or my family, my home, business, etc.)?” That’s too lengthy a topic for a forum post, but it does touch upon an interesting facet of choosing a lawyer that just came up in a Tennessee Court of Appeals case just this past April:

Just how bad a lawyer can be and still be deemed by the courts to have provided "effective counsel"?

We all have a Constitutional right to legal representation, and further we have the right that such representation be “effective.” If a lawyer is bad enough, a guilty verdict may be overturned on the basis of “ineffective assistance of counsel.” Many people, however, don’t really understand just how bad a lawyer can be, and still be deemed to have been “effective.” In the recently decided case of Hines v. State, 2014 Tenn. Crim. App. LEXIS 376 (TN Ct. App. 2014) we see that the answer is apparently, pretty darn bad.

How can we miss her, when she won't go away? Judge Debra Nelson, who presided over the murder trial of George Zimmerman, today issued a ruling dismissing his libel suit against NBC (a copy of that ruling can be found at the bottom of this post). Those of us who followed the Zimmerman murder trial closely will recall Judge Nelson as ruling so consistently in favor of the Prosecution, fairly bending over backwards in her deference to prosecution arguments. Judge-Debra-Nelson-trayvon-martin-case In contrast, her rulings in favor of the defense were few and far between.  It was surely a similar perception by the defense that inhibited them from ever seeking self-defense immunity for Zimmerman, as provided for under Florida statute 776.032 "Immunity from criminal prosecution and civil action for justifiable use of force." That the same judge who so consistently ruled against Zimmerman at his murder trial would be the one chosen to also preside over his libel suit against NBC is eye brow raising, to say the least. Zimmerman's libel suit against NBC was based on NBC's admitted doctoring of the audio of his 911 call to police, apparently done with the intent of making Zimmerman appear to be racist. Purported evidence of racism on the part of Zimmerman was, at the time, extremely important to the prosecution of the case, for two reasons.

A couple of days ago I posted up a piece re: Florida's passage of its "warning shot" bill and the prospects for that bill helping the case of Marissa Alexander.

Florida’s just-signed “warning shot” law unlikely to help Marissa Alexander

I neglected, however, to point out one particular facet of Florida's new law that could potentially--not reasonably, but potentially--provide some benefit to Alexander.  So, I'll cover that here. Before I do, however, the enormous volume of misinformation that continues to be promulgated about this case obliges me to first point out all the ways the "warning shot" bill does not help Alexander.

Guilty On Retrial Seems Highly Likely, Despite "Warning Shot" Bill

The "warning shot" bill does not legitimize Alexander's conduct as the deadly force aggressor, and does not turn that conduct into lawful self-defense. Leaving a non-deadly force fight and returning armed is not self-defense, particularly when the person you shoot at is lawfully in their own home (a different argument could be made in the case of an intruder, but not under the facts of this case).  The "warning shot" bill does not modify Florida self-defense law to allow one to act as the deadly force aggressor and justify that conduct as self-defense.