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Fleeing scene and not calling police “made robust claim of self-defense very difficult”

Fleeing scene and not calling police “made robust claim of self-defense very difficult”

Andrew Branca discusses Loud Music Murder Trial on Teri O’Brien Show

Sunday night I was a guest on the Teri O’Brien radio show to talk about the Michael Dunn “loud music” murder trial.

If you missed the live broadcast, or even if you merely must have more of my dulcet tones, here you go:

–Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.


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Have not ‘Googled’ this guy but, I’ll bet he was an asshat as a kid and grew only to be a bigger one.

So … since a gun cannot be fired without some preparation (picking it up, at minimum), it seems that any shooting is premeditated, except those which are accidental (either of the “I didn’t know it was loaded” school, or the “honest, I thought it was a deer” school), or those in which the shooter is unconscious (as in, sleepwalking).

    Surely it’s not that difficult to envision the difference vis-a-vis the potential for premeditation between, say, simply picking a pistol off a table and firing one-handed across that table, versus having to lean across a car seat to open a glove box, lean across the car a second time to retrieve the holstered pistol, remove the holster from the pistol, cycling the action to chamber a round, re-gripping the pistol with two hands, turning now in the opposite direction, and aiming and firing over one’s left shoulder.

    –Andrew, @LawSelfDefense

      tom swift in reply to Andrew Branca. | February 17, 2014 at 11:29 am

      Obviously there are differences. But they’re trivial. Less than a second for one, maybe three seconds for the other. Five if you’re slow. It’s still not clear what this could make “premeditate” mean. In English it’s not too mysterious. Take time to cogitate, balance options, consider costs vs. benefits, make plans, no matter how rudimentry. But you’ll never do that in five seconds.

      something I haven’t heard from pundits: 1)I think the prosecutors charged him with 1st degree because then he wouldn’t be eligible for bail and he is a licensed pilot with his own plane. But the down side was that they had to give him 12 jurors, every other criminal charge in FL, other than a capital case is 6 jurors. They figured they had him on the attempted charges which they knew would bury him in some horror hotel of a prison in FL, but they needed to keep him in custody.
      2) My thought is that they’ll work out a plea with his next lawyer, probably the public defender, for a concurrent sentence or if Dunn refuses they go with 2nd, so they can go with 6 jurors. More time isn’t going to matter to Dunn (rhymes with Gunn), but he might want to go with another trial just to relieve the boredom of prison life. Maybe even represent himself, like Colin Ferguson.

    Bruce Hayden in reply to tom swift. | February 17, 2014 at 11:09 am

    Bothers me too. I would think that facing a self-defense situation, you would go somewhat into semi-automatic mode, where you need to accomplish these steps: A, B, C, and D, before you can respond. It shouldn’t have taken that long to accomplish them.

    The other aspect of this though is that it would seem to argue in favor of having one bullet in the chamber in the case of most semi-automatics, since racking the slide to load the firearm would seemingly be considered premeditation. Maybe that is the way that you should carry a handgun for self-defense, but not all such guns have good safeties.

      tom swift in reply to Bruce Hayden. | February 17, 2014 at 11:39 am

      If this strange redefinition of the English word “premeditate” comes to dominate in court, it might cause a renaissance in revolver sales. All rounds are chambered, so there’s far less possibility of being hit with premeditation.

      It may also lead to more shootings, since once you start the self-defense scenario, you run a risk by pausing (to, as the police who interviewed Dunn very sensibly put it, “reassess the situation”) as that may be interpreted as premeditation. This strikes me as perversion, a major step backward. We don’t want people – even attackers – being shot just because it will make other people – defenders – look better in court.

      Dicking around with definitions merely to increase charges is a logical minefield.

        steveo1 in reply to tom swift. | February 18, 2014 at 8:55 am

        I believe charging him with 1st degree was to deny him bond. 2nd degree the judge would have to consider bond, just like they did with George Zimmerman. All Dunn would have had to do was fly his plane out 12 miles, stay under the radar until the Gulf Stream between FL and Cuba then go up high enough to jump out with parachute and life raft, gone forever and since he is a software developer, he could probably get a job in Cuba because the international language of computers is English. You’ve got about 400 miles to Cuba from his home at 200 knots about 2 hr flight. Nobody would know where he went.

          That’s an interesting though, steveo1.

          Although, as someone who has jumped out of perfectly good airplanes a half-dozen time, I’d suggest it can be rather more difficult (in terms of sheer terror) than your casual reference suggests. 🙂 Certainly, it never got easier for me to hurl myself out that door, hence my only doing so the six times.

          –Andrew, @LawSelfDefense

Dulcet tones?

Andrew, I always imagined your voice sounded like an AK-47.


Still, even though I still don’t agree with 1st Degree, I agree with Andrew that retrial is likely. It is political, and Corey has let down the Black community already by failing to get a conviction with her office’s prosecution of Zimmerman. I think that she has a decent chance, at least of 2nd Degree, second time around, and making things worse, the defense is unlikely to have the money to defend (his attorney commented that you can’t expect a $300k defense with less than 1/10 that much money, and that <$30k is long gone).

Cracker-American | February 17, 2014 at 11:26 am

It seams like he is being punished for shooting at & missing the 3 other teens, since he was cleared for killing the kid he was clearly aiming at.
Some of the jury surely believed the claim for self defense?
am i right or wrong? cause some other blogs think the mistrial was over degrees of premeditation.
3rd, is all i think they demonstrated, fwiw

    he was cleared for killing the kid he was clearly aiming at

    No so. That would require a “not guilty” on the first charge, which wasn’t what happened. Not so far, anyway.

    What? Since when is a hung jury equal to being cleared of something? I think Corey should retry the murder case, because it seems clear that Dunn murdered the kid. I think that murder 1 is wrong in this case and Corey does the concept of premeditation a disservice by blurring the lines. But if I was the kid’s parent, I wouldn’t feel like my son had justice util Dunn was convicted of his murder. I’d also be tortured by what I could have done differently that would have kept my kid from getting shot, but that’s a twisted road and a conversation for another day.

    We’re all speculating on whether the jury hun on Dunn’s specific intent in the shooting of Davis (so, between the M1-M2-MS) or on a failure of the State to disprove self-defense beyond a reasonable doubt in the shooting of Davis, and we’ll continue to be doing so until we hear from the jurors themselves.

    In my experience, however, when the jury is split on variations of a charge, they tend to compromise after 4 days of deliberations.

    A sustained inability to come to a unanimous decision is far more likely when the disagreement is one of fundamental principle–in this case, some degree of guilt on that charge versus outright acquittal on basis of self-defense–than it is for merely a degree of guilt.

    –Andrew, @LawSelfDefense

      Bruce Hayden in reply to Andrew Branca. | February 17, 2014 at 3:31 pm

      In your interview, you suggest retrial. I think that politically, Corey is likely to oblige – she needs to appease the Black community leaders, which she failed to do with the Zimmerman prosecution (where she couldn’t retry, due to the acquittal). Politics shouldn’t come in, but invariably does in high profile cases, due to the nature of her office.

      Would you expect though that the decision won’t be made until after the jurors are interviewed? That if the jury hung on self-defense, that retrial might be less likely?

      I almost think that it had to have been about self-defense, since otherwise, there shouldn’t have been anything against a 2nd Degree Murder conviction, given the three attempted 2nd Degree convictions on the same facts, on the same shooting. The three attempted 2nd degree convictions seem to be confirmation that the jury found shooting into the auto to be evidence of a depraved mind. The other element of 2nd degree murder is that someone died as a result of the actions of the defendant (the essential requirement of manslaughter). So, you have a death + depraved mind. Why no conviction? (And, ditto for manslaughter, which was a lesser included charge, but which didn’t require the depraved mind element). My guess is that some on the jury couldn’t overcome reasonable doubts about self-defense. I suspect that you agree there, given your comments on the recording.

      2nd go around they can go with 2nd degree and 6 jurors, less chance there will be a gun rights activist on the jury, with 12 jurors,in a notable case, there is always a good chance someone is going to lie during voir dire. plus there is no statute of limitations on murder, so they don’t have to be in a big hurry. but not sure of the rules of re-trial in a murder case whether they still have speedy trial or something like that.

Great interview, Andrew! Thanks for posting this.

    Thanks to the Professor for hosting it!

    By the way, I’ll be on another radio show this afternoon, 3:35PM Boston time.

    This time it will be the Victoria Taft show on KOGO (AM600) in San Diego (, for streaming).

    Hopefully I’ll do a somewhat better job–thought of a couple of things I should have said, or at least said better, on Teri’s show. But I’ll have to be quick, I believe I’ll only have ~10 minutes of air time on this one.

    –Andrew, @LawSelfDefense

Another good interview, Andrew. Loved the way you just brushed off Jesse. Right move when you have limited air time.

After only a cursory review of the case, one thing stood out for me. Dunn resorted to a firearm, and fired on his attackers, allegedly because he was in fear of his life. Let’s grant that, arguendum. But then the attackers fled. He paused in his cadence of firing, then resumed fire on the fleeing attackers. This is when I believe it crossed the line to premeditated murder. “Those bastards are no longer a threat, but I’m going shoot their sorry arses.”

It is always hard to justify shooting a fleeing person in the back.

It’s a good thing he was a lousy shot.

    Actually, as someone who has done a fair bit of competitive shooting, I would suggest that Dunn was a very good shot, indeed. 10 shots, three bursts of fire each very rapid, 9 hits on target, including all of the three shots fired in the last burst at the fleeing SUV.

    Here’s the audio of the gunshots starting at about 00:30:

    Purportedly trained and qualified law enforcement officers rarely demonstrate similar proficiency under such circumstances.

    Granted the ranges were close for the first two bursts of fire, and he would have been working with a single action from the very first round, having cycled the gun to chamber a round in the first place.

    Still, it would seem the Dunn’s deficiencies, while apparently substantive, lie elsewhere than in his management of that Taurus pistol.

    –Andrew, @LawSelfDefense