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Law of Self Defense: When the prosecutor doesn’t know the law

Law of Self Defense: When the prosecutor doesn’t know the law

A Cautionary Tale: Michigan prosecutor doesn’t know that MI has “Stand-Your-Ground” law

This week’s case is not so much a case as it is a cautionary tale about the risks of relying upon the purported use-of-force law expertise of others based solely on their job title, and dangers of not you yourself being educated on that law.

I warn students in every class that certain job titles, like lawyer, cop, or firearms instructor, do not guarantee that a person in those fields knows a darned thing about use-of-force law.

Are You Sure That Lawyer Knows Self-Defense Law?

We lawyers, for example, are not taught use-of-force law to any real depth in law school—typically just a few minutes in first-year criminal law. And any lawyer who is not a criminal defense attorney has no professional need to understand it.

Even criminal defense lawyers who have a lot of experience arguing self-defense cases will mostly have experience arguing “bad guy” cases rather than “good guy” cases. These cases look very different. Absent exceptional circumstances most criminal defense lawyers will have only a handful of “good guy” self-defense cases in a multi-decade career.

By the way, this caution applies no just to lawyers generally, but even to prosecutors, criminal defense attorneys, and criminal trial judges. There was an appellate court decision out of Alaska just a year ago, Rossiter v. Alaska, where a murder conviction was overturned specifically because the appellate court found that none of the purported legal experts at trial—not the prosecutor, not the client’s defense counsel, not the trial judge—understood Alaska use-of-force law.

Are You Sure that Cop Knows Self-Defense Law?

Cops, as another example, are actually taught more use-of-force law in the police academy than most lawyers are taught in law school. But this doesn’t guarantee expertise either. Much of what they’re taught is not designed to protect the officer from prosecution. Rather, it’s intended to protect his department from being sued for the officer’s actions.

Remember, it’s the department that has the deep pockets, and while the officer has qualified immunity for acts in the performance of his duties, his department is always potentially liable to Federal §1983 suits.

Also, cops swim in different use-of-force waters than us non-cops. We are, for example, never permitted to start a fight. Cops, on the other hand, are routinely called upon to “lay hands” on a person first, such as when making an arrest.

Are You Sure That Firearms Instructor Knows Self-Defense Law?

Firearms instructors are also too often wrong about use-of-force law. It’s not because they can’t be well informed—they certain can if they make a diligent effort, as the graduates of our own Law of Self Defense Instructor Program can attest. It’s just that most of them have not had the means or opportunity to learn this stuff at a deep level.

As a result, too many instructors end up—in good faith—repeating mistaken information that they themselves were taught by their own instructors, who in turn received this misinformation from prior instructors, and so forth.

Again, a person in any of these groups might have a robust knowledge of self-defense law, if they’ve made a diligent effort to educate themselves rather than simply re-tell nonsense they’ve previously been taught themselves, but you must not assume that they know, based on their job title.

Michigan Prosecutor Doesn’t Know MI is “Stand-Your-Ground”

There’s an excellent example of this, out of Michigan this week, in a news article about a defensive shooting. The journalist got extensive quotes from an actual Benzie County prosecutor named Sara Swanson. In part, Prosecutor Swanson is quoted as saying:

“Michigan does not have a ‘Stand Your Ground’ law like, say Florida has …”

In fact Michigan adopted a “Stand-Your-Ground” law almost identical to Florida’s in 2006, only a year after Florida’s “Stand-Your-Ground” law was passed in 2005. You’d think a Michigan prosecutor in 2018 would know the state had a “Stand-Your-Ground” statute for the past 12 years, but apparently you’d be wrong.

Now, I don’t think much of journalists, especially when they cover shooting events, so it’s possible the journalist was wearing her “opposite cloak” that day and the prosecutor said the reverse of what was quoted. But I’ve seen exactly this kind of ignorance of use-of-force law by purported legal experts who ought to know better too many times to believe this simply couldn’t have happened.

Know the Law So You’re Hard to Convict

Educate yourselves! Ignorance of the law is no excuse. Assume that the so-called “legal experts” around you actually know use-of-force law at your own risk.

As we say at Law of Self Defense: You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.

Ignorance of the Law is No Excuse

Remember, folks, if you find yourself in criminal court and fighting against life in prison, ignorance of the law will be no excuse, and telling the judge and jury, “But my [firearms instructor / cop neighbor / real estate lawyer friend] told me it was lawful!” will carry no weight if what they told you is wrong.

You owe it to yourself and your family to learn this stuff yourself. And the good news is that it’s really not very complicated. There are only five elements of a claim of self-defense, just like there’s only four rules of gun safety.  You just the foundation of knowledge necessary to understand how those elements are applied under the actual laws of your jurisdiction.

Free Informational Resources from Law of Self Defense

The good news is that we offer several excellent, and free, ways to educate yourself on the actual law of self-defense.

One way, of course, is to catch our regular weekly “Law of Self Defense” posts right here at Legal Insurrection.

Another is to catch our free weekly “Law of Self Defense Show.”

Yet a third is to follow our self-defense law blog posts on our Law of Self Defense Patreon page where we make our regular blog posts freely available.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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Comments

Great analysis, as always, Andrew.

Quick question — do you have any plans to make “The Law of Self-Defense” available for purchase on the book section of the Google Play store? Just curious. I purchase most of my e-books through Google, as I like their e-book reader and I find their account management and sharing features for family members to be well-organized.

I’m also trying not to support the Amazon juggernaut, given that company’s treatment of Legal Insurrection.

    In years past we had the electronic version of the book available on other venues besides Amazon–Apple and Nook, I think–but at the time Amazon offered some “features” that were only available if Amazon was used as the exclusive platform for the book–and we weren’t moving much volume on Apple and Nook, anyway,

    We can look into Google as an e-book host, I suppose, but we’d need to have reason to expect a meaningful volume of sales to be worth the effort of producing yet another electronic version of the book.

    –Andrew

I would add a double warning re firearms instructors. A quick trip over to ThisAintHell’s Stolen Valor page turns up several “Navy Seals” who never served, but offered self-defense courses.

OTOH, even the magnificent Larry Correia can be wrong once in a blue moon.

Trust but verify. If you are responsible enough to own a firearm, you are responsible enough to do your own research.

I’m going to make a wild guess: the Michigan prosecutor has heard 13 years’ worth of media propaganda about the Florida ‘Stand Your Ground’ law and, though he knows Michigan has a Stand Your Ground law, he genuinely believes it’s nothing like that barbarous law they have in Florida. He never bothered to read it for himself, so he didn’t know the laws are practically identical.

Or perhaps he really is ignorant Michigan has any such law at all. Who’s to really say.

Thank you make my point so clear here.

The biggest problems that weapon carriers face are both a lack of training in the use of their chosen weapon and also a lack of accurate information on the legalities of using a weapon in self defense. It is so much easier to know the law and to use it to your advantage BEFORE you commit an act which you have to legally justify.

Let’s take a look at LEOs. A LEO walks into a convenience store and and finds a man point a pistol at the clekr’s face from a distance of 12″. He can legally shoot that man in the back. It would be lawful defense of another person in almost all states and would certainly be lawful for a LEO in all states. And, 8 out of 10 police officers are prepared to do just that. Instead, he yells something along the lines of “Police. Drop the gun”. There are two reasons for this. The first is to get the gunman to turn the pistol away from the clerk so that a reflex with not cause the man to trigger the weapon, if shot, injuring or killing the clerk. The second reason is because the gunman not only refused to obey the lawful order of a police officer, BUT turn his weapon in the direction of that officer. This insures a justifiable shooting. Now, if the gunman does drop the gun, that is a bonis for the LEO, as he does not have to fill out all of that annoying use of force paperwork and testify at shooting boards and before the Grand Jury.

Learn the law. Know the law. Use the law. Or end up sitting in multiple courts of law fighting criminal and civil cases.

    Minor nit: It bothers me to see so many different police commands when faced with an armed (or sometimes completely unarmed) perp. “Police, freeze!” has always been my favorite because of its simplicity. Three syllables identifies the officer and commands the perp to hold still. Move and they get shot. As simple as that.

    The variations of “Police, drop the gun!” or “Police, show me your hands!” both require the perp to *move* which is very dangerous because any action can be misinterpreted. Same with “Down on the ground” or “Put your hands in the air” because if you have two officers each shouting one of those, the poor perp is in a no-win situation.

      randian in reply to georgfelis. | August 22, 2018 at 8:36 pm

      “Same with “Down on the ground” or “Put your hands in the air” because if you have two officers each shouting one of those, the poor perp is in a no-win situation.”

      Since they’re most likely yelling those commands, you’d have to yell back “Which is it?”, the yelling in itself possibly being interpreted by the cops as an aggressive action that gets you shot.

        DaveGinOly in reply to randian. | August 22, 2018 at 10:34 pm

        Conflicting commands leading to being shot – I’m convinced this has happened.

        Also, cops need to be taught that immediately after a use of lethal force, the defender may have audio exclusion and tunnel vision. He may neither hear nor see the police giving him commands. Unless the person with a gun is actually threatening someone with it, the police should err on the side of the citizen’s safety, not their own. Their job is not to go home safely after their shifts, it’s to protect every member of the communities they serve. They are paid to protect us, not to occasionally shoot one of us by accident.

          Yeah. He could also be drunk or on drugs or insane, al of which would cloud his rational perception. So, when you encounter a person threatening another with a firearm and he does not respond to your commands to cease and decease just go ahead and wait until he shoots another person or YOU.

          Also, if he does not see or hear his attacker’s friends and relatives coming up behind him to shoot him or dice him into little pieces, then he really has not done himself any favors.

          Then there is the problem of what happens if this person is reacting so badly that he shoots some 10 Year old who walked out of her house to see what was going on.

          No, people do NOT get a pass for being stupid. If you are not trained to use a firearms properly, in self defense, and this included being able to function in critical ways AFTER you shoot someone, then you should not be carrying a firearm to begin with.

      Not to derail this thread, but, police training standards have gone down considerably over the last 25 years. But, then, so have all other training standards.

      40 years ago, a movement was under way to standardize police communications, from radio traffic to commands in high stress situations. Radio ten-codes were spreading across the country. Older phrases such as “Stop or I’ll shoot,” were being replaced with things like “Police. Freeze” In the first case, threatening to shoot someone usually only tended to make them attempt to run faster, especially if the LEO did not identify himself. A the phrase “Don’t move” can be misheard, in a high stress situation, as an order TO move. So, such commands were scripted. But, cops, like everyone else, wanted to be cool. And media cops used cool dialogue. So, first individuals began using their own commands. Then departments refused to leave their ham radio codes or went over to clear speech [that was a disaster, I’ll tell ya about it sometime]. And, as training standards sagged, this trend was allowed to continue. So, for the last 20 years we have had a real communications problem, on the street. Departments, which have lost cases because of claims of unclear communication, have intensified standard communication techniques and stock phrases. One of these standard communication techniques is that only one person on scene issues commands to a suspect. And, this is usually the first officer in contact with the suspect. Everyone else keeps their mouths shut, except for warnings to other officers.

        GWB in reply to Mac45. | August 24, 2018 at 11:37 am

        My only concern with “Freeze!” would be people whose first language is not American English. Which is more understandable to them in a high-stress situation?

        But, you’re right about clear communication.
        When dealing with close air support, they had trouble with pilots hearing the wrong thing – being told to NOT drop, they instead heard a command to release ordinance. So, our communications were clarified to only three things you said: Cleared Hot, Continue Dry, and Abort (3x). Specifically because there is no way those commands can be confused with each other, even if the radio cut out for some portion of the statement.

I have four generations of ancestors buried in Benzie County. Always one of the less populated counties in the state, which may explain this. Or not. Haven’t been back though for maybe 30 years now, since that last grandparent died. Need to take my kid there some day just to show them the family plot.

Massad Ayoob instructs to first say, “Don’t move!” That could be followed by “If you move I will shoot you.” Now police could add first “Police” to all of this… but stay simple. Next point is demand “drop the …”

From there it is a matter of slowly getting the perp on the ground while being sure there are no out-riders.

    Mac45 in reply to alaskabob. | August 22, 2018 at 10:25 pm

    I’ve never really liked “Don’t move” as a command. It requires that both the person giving the order clearly articulate his words AND that the person hearing the command clearly hear and interpret the words. Personally, I prefer the word “Freeze”. It is a simple single word command which is very hard to misinterpret. It can only be misinterpreted as sneeze, squeeze, seize, breeze or please. None of which are likely to make a person believe that they should turn and face you with a firearm in hand. If a person begins to turn toward you, it can be repeated, often by the words”or I’ll shoot” until such time as you pull the trigger. And, if there are any witnesses, and they testify truthfully, they will state that you ordered the person to freeze several times and he just kept turn toward you to bringing his gun to bear. There is no ambiguity.

I just stumbled across the trial of the Roy Oliver going on right now in Dallas. Any thoughts on it?

Close The Fed | August 22, 2018 at 7:02 pm

Told a client about you today, Andrew. He was asking about self-defense law which wasn’t tangential to our matter, and I told him “it’s complicated” and he should get the real deal from you. Forwarded him an email I received from you today. I’m sure he’ll find your information helpful.

Close The Fed | August 22, 2018 at 7:03 pm

which *WAS tangential to our matter ….

In an interesting twist, the reporter helpfully provided a link in the article to the “Castle Doctrine” of which the prosecutor mentioned. Following the link takes you to the Michigan Legislature Compiled Laws website with indicates the following:

SELF-DEFENSE ACT (EXCERPT)
Act 309 of 2006

780.972 Use of deadly force by individual not engaged in commission of crime; conditions.
Sec. 2.

(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.

(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.

(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.

*SMH*

“…the appellate court found that none of the purported legal experts at trial—not the prosecutor, not the client’s defense counsel, not the trial judge—understood Alaska use-of-force law.”

What does this say about the state of self-defense law in Alaska? And common citizens, with no training in the law, are supposed to apply it (correctly!) while under the stress of a potentially lethal attack, while busy doing something arguably more important than wasting computer time on the law of self-defense – like fighting for one’s life.

Another example of why as a juror I’d be highly unlikely to convict any person who kills another, when the defender had been acting within the law and the attack was of a criminal nature. You just don’t have the luxury of time in these situations. By the time you evaluate the threat, apply the law (as you understand it) to the situation, and react (in a manner you think is appropriate), you could be on your way to being dead. I believe the law-abiding defender has a right to stop a physical attack with lethal force, because waiting long enough to even have enough information to make the correct legal call may be waiting too long. And the defender can’t know beforehand whether he will or will not have that time, while having an absolute right to guarantee his own survival.

    Another Voice in reply to DaveGinOly. | August 23, 2018 at 12:19 pm

    I agree 100%.
    Also in keeping with that time frame of in the moment of encountering police interactions and in the moment of decision making, it is now becoming a mandate that every officer be grounded with psychiatric analytical skills to determine whether they are dealing with a threat that can be attributed to the mental issues of the person who needs to be apprehended. Which in of itself would make it impossible to take immediate action of apprehending or defending without specific information of that person. That immediate moment is the difference of that officer being killed while doing his duty to protect law abiding citizens. It is the duty of those in mental health to assist them.

    Well, you just go right out there and shoot someone, with whom you have a verbal argument, simply because you fear or believe that he may harm you later. That is a good strategy for a society to have. If this was the case, then every verbal argument would end in a shoot out, because neither party could take a chance that he would not be ambushed later by the other and that society would allow this.

Had to look it up and my first impression was correct…..Sara Swanson is a DimocRAT…..

“But my [firearms instructor / cop neighbor / real estate lawyer friend] told me it was lawful!”
I have wondered (after hearing some instructors speak to potential first-time gun buyers in the store) how much of Concealed Carry or Self Defense class instruction is edited to be the safest thing to say from a liability standpoint. Not because it’s the best interpretation of the law or because it will best help the person to defend themselves, but because they’re afraid someone will do something that gets them convicted, then sue the instructor for mis-informing them.

I have heard employees who self-identify as CCL and SD instructors state things like “You should always walk away first.” Which is in direct contradiction of SYG laws. (It was not said as a matter of conflict resolution, but as a way of keeping you from shooting anyone.)

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