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Law of Self Defense: Black Murder Defendant Saved by “Stand-Your-Ground”

Law of Self Defense: Black Murder Defendant Saved by “Stand-Your-Ground”

Trial illustrates difference between “hard” and “soft” Stand-Your-Ground states

An acquittal in a murder case out of Louisiana provides a real-time illustration of the difference between the application of what I refer to as “hard” Stand-Your-Ground provisions versus “soft” Stand-Your-Ground provisions. (Details here are as reported by The Advocate and other news sources.)

The facts of the case involve a bare-handed attack by a large aggressor against a smaller defender, one Jacob Westbrook, who was armed with a knife. Westbrook, who testified at trial that he had never been in a fight before, stabbed the aggressor once in the chest after, he says, the larger and stronger aggressor punched him in the head. It is noteworthy that the aggressor was a guest, perhaps little wanted, in Westbrook’s home at the time of the conflict.

Tactical Lesson: Knife Deadly In Even Untrained Hands

One tactical lesson emerges from the trial re: how dangerous edged weapons are even absent meaningful training or experience on the part of the person wielding the weapon.

Testimony at trial would be that Westbrook had little or no fighting experience generally, and no known expertise in the use of a knife for social purposes.

Despite this lack of training or expertise, that single knife thrust was sufficient to penetrate the upper chest, lung, and heart. The victim of the stab wound died shortly afterward. Lesson: Knives are dangerous, folks, even in the hands of the untrained.

Key Issue at Trial: Element of Avoidance

The witness testimony, including defendant Westbrook, was inconsistent on many issues relevant to self-defense. The prosecution sought to exploit each of these inconsistencies to attack Westbrook’s claim of self-defense.

One of the key issues centered on the element of avoidance. Avoidance, generally speaking, has to do with whether a defender has a legal duty to retreat before using force (usually limited to deadly force) in self-defense if a completely safe avenue of retreat is available. There are about 13 states that impose such a legal duty to retreat, and these can be referred to as the “duty to retreat” states.

The large majority of states, more than three-fourths, are in effect “Stand-Your-Ground” (SYG) states in that they do not impose a legal duty to retreat before using force in self-defense, even if a safe avenue of retreat is possible. In all “SYG” states this freedom of a duty to retreat is contingent on the person claiming self-defense not being the aggressor in the fight. In many “SYG” states there are additional conditions such as the purported defender not being engaged in unlawful activity and being in a place they have a right to be.

“Hard” versus “Soft” Stand-Your-Ground

There is, however, another less explicitly recognized variance in “SYG” provisions. One the one hand, a state’s “SYG” law might completely take the issue of retreat off the table as a target of attack by prosecutors on a claim of self-defense. On the other, it might alternatively allow prosecutors to target a failure to retreat on the basis of such a failure being unreasonable (rather than on the basis of the failure being the violation of a legal duty to retreat).

These two different approaches can be termed “hard” SYG where the issue of retreat has been taken completely off the table, and “soft” SYG where the issue of retreat can still be argued in the context of the element of reasonableness.

Only a minority of “SYG” states qualify as “hard” SYG jurisdiction in which the issue of retreat is taken completely off the table (assuming that the conditions of SYG have otherwise been met). In these states, you can generally find this “hard” prohibition on considering the issue of retreat or avoidance as an element of self-defense written explicitly into the state’s self-defense statutory language.

A good example of such a statutory prohibition on considering retreat can be found in Texas law. One provision of Texas Penal Code §9.31. “Self-Defense” provides in relevant part that:

(f) [I]n determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

That “finder of fact” is normally the jury, but may alternatively be a judge in a bench trial. In any case, whether jury or judge, they are statutorily prohibited from considering whether a defendant claiming self-defense could have safely retreated in their evaluation of whether that defender’s conduct was reasonable.

The large majority of “SYG” states, however, do not have such an explicit prohibition on considering the reasonableness of a failure to retreat. Indeed, the case law from this majority of SYG states rather consistently holds that even where they do not impose a legal duty to retreat when safely possible they will still require a defender to have acted reasonably, and that a failure to retreat can be considered by the jury in deciding whether the defender’s conduct was reasonable. If that use-of-force was unreasonable, it fails the element of reasonableness for a valid justification of self-defense, and the use-of-force is unlawful.

Prosecutors in “soft” SYG states can thus engage in a kind of “back door” attack on a defendant who has failed to take advantage of a safe avenue of retreat. They can’t argue to the jury that the defendant had a legal duty to retreat, because there is no such legal duty in any SYG state (if the required conditions for SYG have been met). They can, however, argue that the failure to retreat was unreasonable, and therefore the claimed defensive use of force does not qualify as self-defense and was instead unlawful.

As one example of a “soft” SYG jurisdiction, we can look to Idaho. There the state Supreme Court recently addressed the issue of whether a claim of self-defense could be attacked on the basis that a failure to retreat was unreasonable, even though Idaho is a “SYG” jurisdiction and imposes no legal duty to retreat. That court concluded that such an attack on a claim of self-defense was permissible:

It is clear from this case law that although a party in Idaho may not have a duty to retreat prior to engaging in force in self-defense, the defendant’s actions in this regard are not completely immune to being assessed against the reasonableness standard. In other words, a party is not required to retreat, but he is required to act reasonably. Indeed, the right of self-defense in Idaho has long been grounded in the concept of the “reasonable” person. … There is nothing in the case law concerning retreat that departs from this standard. To completely shield a defendant’s actions regarding anything having to do with the possibility of retreat abandons this preeminent requirement of reasonableness.”

State v. Iverson, 155 Idaho 766 (ID Supreme Court 2014)

Louisiana: A “Hard” Stand-Your-Ground State

Louisiana, where this Case of the Week took place, is among the minority of “SYG” states that fall into the “hard” SYG category. As with Texas, this explicit prohibition on attacking a failure to retreat on the basis of reasonableness can be found in the relevant statutory language.

Louisiana Revised Statute 14:20 “Justifiable Homicide” provides in relevant part:

D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Just Because It’s Against the Law Doesn’t Mean Prosecution Won’t Try

You may be surprised (or perhaps not) to learn that this explicit statutory prohibition on arguing the reasonableness of a failure to retreat did not prevent the prosecution from trying to do exactly what the statute says they aren’t allowed to do: attack defendant Westbrook’s claim of self-defense on the basis that his failure to avoid the fight was unreasonable.

In fact, the prosecution sought to be able to be able to bake this legal argument into the jury instructions as early as during jury selection for the trial. When the trial judge rejected the prosecutions attempt, the prosecution sought to have the judge’s rejection overturned on appeal. Fortunately for the defense, the state appellate court upheld the trial judge’s rejection. As reported by The Advocate:

In a ruling during the jury selection phase of Westbrook’s trial, 23rd Judicial District Judge Jason Verdigets rejected prosecutors’ attempt to have the post-trial instructions say jurors could consider the possibility of Westbrook’s retreat to see if his use of deadly force was necessary. In an emergency appeal from prosecutors, a state appellate court upheld that ruling.

Race of Defendant Who Was Saved by SYG? Black

Incidentally, it’s worth noting that the racial grievance industrial complex, broadly defined, has been engaged in a massive propaganda campaign to portray “SYG” laws as inherently racist, at least since the 2013 acquittal of George Zimmerman (in a case which, ironically enough, had nothing whatever to do with “Stand-Your-Ground”).

Given that propaganda campaign by the media, as well as and social justice warrior and racial grievance activists against “SYG” it’s perhaps worth noting that the defendant Westbrook whose claim of self-defense was likely saved by Louisiana’s “hard” SYG law is … wait for it … black. (Westbrook himself is quite light-skinned in available photos, but The Advocate article linked here provides photos of his mother and other immediate relatives would appear to leave little question about his race.)

How do you know the media is lying about “SYG”? Easy: they’re using the phrase “SYG.”

Winning Beats Losing, but May Still Be Costly

In closing, I would note that in this Case of the Week the defendant Westbrook was acquitted by the jury of murder (notably on a 10-2 vote, as Louisiana the sole jurisdiction that allows for super-majority, rather than unanimous, jury verdicts in murder cases). Had he been convicted, under Louisiana law Westbrook would likely have been looking at life in prison, at hard labor. His acquittal saved him from that fate.

Nevertheless, Westbrook spent nearly three years in jail awaiting trial, during which time he was reportedly raped at least twice by other inmates. Whether the jail authorities could have prevented these rapes is currently the subject of a Federal lawsuit, but either the could not have or they could have and declined to do so. Neither option holds much promise for anybody held in jail awaiting trial.

There are circumstances that justify the use of defensive force even if that means dying in the effort, and so there must be circumstances that justify even the risk of being raped in prison. It ought, however, to be a pretty darned short list of circumstances.

As always, I urge you to make sure the stakes are worth the risks.

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

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I’d rather be on trial than dead

I have a great deal of problem with this verdict. Granted I did not witness the trial and am unable to evaluate the credibility of the witnesses and their testimony, however, I have seen NO reporting which paints a strong case that deadly force was justified based upon the circumstances and the threat level posed by the deceased. Here are a couple of media reports concerning the reported circumstances surrounding this case.

As to whether Westbrook had any responsibility to retreat, he would not have any such responsibility. Therefor, he could have used force to defend himself from attack, if he was not the aggressor. However, Louisiana, as with most jurisdictions, requires that deadly force can only be used if it NECESSARY to stop an attack which is likely to result in DEATH or GREAT BODILY HARM. I have found no evidence to suggest that any attack by Todd would have resulted in death or great bodily harm. If these conditions were not met, then the use of deadly force, even in self defense, would not be legal. It does not seem that the prosecution stressed this, though.

As to knives being dangerous: DUUUHHH. Why this was so deadly was because it was a stabbing thrust which penetrated more than 3.5″ into the torso. This is usually enough to penetrate large, blood bearing organs and/or major blood vessels. A slash is usually far less lethal. Knives are nothing to fool around with.

    Valerie in reply to Mac45. | February 22, 2019 at 10:10 pm

    I see your point, but I think the outcome would have been different if the knife-holder had been a 30-year-old man instead of a 16-year-old boy. The jury may have recognized that the kid did not have the sense to judge clearly whether deadly force was necessary, or even whether he was using deadly force.

      Mac45 in reply to Valerie. | February 23, 2019 at 11:55 am

      Neither one of the participants showed good sense. However, that does not mean that the defendant did not violate the law. He should have been held accountable. Two of the jurors reportedly voted for conviction for manslaughter. This would have been appropriate, and as the young man had been in jail for 3 years, awaiting trial, he could have been sentenced to time served with or without a parole period. This person, reportedly, had significant behavioral issues, before he killed the other man. I doubt that those have miraculously vanished. Justice is not served by exonerating him.

        Tom Servo in reply to Mac45. | February 23, 2019 at 4:30 pm

        This case may suggest that the “hard” stand your ground laws, such as Texas and Louisiana have, are a mistake and the “soft” stand your ground lies are better suited to deal with hard situations like this one.

        Personally, if I was on the jury I think I would have supported a charge of manslaughter.

    DaveGinOly in reply to Mac45. | February 22, 2019 at 10:53 pm

    Eighty percent of people shot with handguns survive. So is it reasonable to say that because being shot at with a handgun is not “likely” to result in death means that the use of lethal force in one’s defense against an attacker armed with a handgun isn’t authorized by law?

    Any force, if properly and/or repeatedly applied, can be lethal. The problem is that by the time you recognize that the attack is potentially lethal it may be too late. (If an attacker is unarmed, his intent to beat you to death may not be evident until you are sinking into unconsciousness.)

    A smaller attacker facing a larger and stronger attacker can very easily be rendered unconscious and then pummeled and kicked until dead. Just as the knife can be deadly even when wielded by a person with no training, so too can hands and feet be deadly even when the person using his hands and feet as weapons has little or no training, but has the intent, strength, and ferocity necessary to kill you.

    Every person has more than the right to self-defense. Because you cannot know the outcome of an attack in which you do not use lethal force to defend yourself (nobody is prescient or omniscient), you must have doubt about your ability to survive. You have a right to assure your survival.

    Vote to acquit all persons who use deadly force against violent criminal assaults, so long as their actions are otherwise lawful (they were not the instigators, were peaceably going about their business, had a right to be where they were, etc.).

      Not this old saw, again. Actually, very few people, who are shot in the torso with a handgun, survive, without significant medical treatment. And, all handgun wounds to the torso produce great bodily harm. That is why firearms, including handguns, are legally recognized as DEADLY weapons. Using your penchant for statistics, the percentage of attacks, using fists and feet, which produce death or great bodily harm are so minuscule as to be statistically zero.

      Now, our society, in recognition of the fact that physical altercations do occur, between people, has established a use of force hierarchy for lawful self defense. This hierarchy essential breaks down instrumentality into two catagories; deadly [those which are likely to cause death or great bodiily harm with a contact limited to 3 or less impacts] and non-deadly [those which are not likely to cause death or great bodily harm unless vigorously applied for several contacts or over a prolonged period of time]. And, a reasonable person, raised in our society, should know that force from a deadly weapon can not be legally applied except against deadly force, as legally defined. In other words, except in cases of extreme disproportionate force or prolonged attack, it is not legal to shoot or stab a man who punches you.

      What you want to do is to allow the use of any and all force to thwart a physical attack. A man pushes you in a grocery store, you want to be free to shoot him. A man grabs your arm, you want to be able to shoot him. See the problem here? If it is legal to meet every level of force with deadly force, then there is no room for error. A man turns into you, not knowing that you are behind him, and you shove him back, would subject you to legal execution, under your position.

      There is a very good reason why our society has established a hierarchy of legal fore for self defense.

        DJ9 in reply to Mac45. | February 24, 2019 at 6:44 pm

        “Using your penchant for statistics, the percentage of attacks, using fists and feet, which produce death or great bodily harm are so minuscule as to be statistically zero.”

        100 percent of the homicides committed in 2008 in one particular state, were committed with knives and hands/feet/fists. Based on those stats, blades and appendages sure seem fairly dangerous.

    SDN in reply to Mac45. | February 23, 2019 at 9:04 am

    ” I have found no evidence to suggest that any attack by Todd would have resulted in death or great bodily harm.”

    Which indicates that you’re sorely deficient in imagination or experience in getting your ass beat, one of the two. This is not the movies, where Our Hero uses getting punched as a warm up routine.

    More people die from beatings than “assault rifles.”

      Mac45 in reply to SDN. | February 23, 2019 at 12:33 pm

      Actually, I have much more real world experience with physical violence, both as an observer and as a participant, than I like. I can reliably tell you that unarmed physical violence very, very, very rarely results in death and rarely in great bodily harm. The reason for that is because the human body is designed to absorb a great deal of physical punishment and continue operating. That is why the human race developed weapons.

      In this case, if it is accurate that Todd did punch Westbrook, before Westbrook stabbed him [there is some controversy surrounding that], there is absolutely no evidence that Todd would have continued the attack. And, as Westbrook was not incapacitated, and certainly not killed, by the punch, it can hardly be described as “deadly force”. Also, given the reported postures of the two men, it is possible that Todd threw the punch, in self defense, as he perceived Westbrook to an imminent, deadly threat.

      The whole point here, is that there is NO reasonable evidence that Todd would have used force to criminally attack Westbrook to the point where it was reasonable to assume that death or great bodily harm would ensue, IF deadly force were not used to stop the attack. If Westbrook had stepped back and brandished the knife, defensively, and Todd advanced in an aggressive manner, then a reasonable assumption can be made that Todd would likely severely injure or kill Westbrook. However, what we have is the immediate use of deadly force following a single non-deadly force assault. This would not be lawful, under the circumstances.

A larger, stronger adversary punched him in the head. That’s potentially lethal and the next one may be. If not, there’s great bodily harm.

    Almost any strike is potentially lethal. However, in this case, the punch was neither lethal not did it cause great bodily harm. And, we will never know if there would have been a second punch thrown, let alone if it would have proven to be fatal or caused great bodily harm, as Westbrook utilized a deadly weapon immediately, to stop any potential continuation of the attack.

In all “SYG” states this freedom of a duty to retreat is contingent on the person claiming self-defense not being the aggressor in the fight.

“(F)reedom of a duty” should be “freedom from a duty.”

This sentence could also use some help:

Whether the jail authorities could have prevented these rapes is currently the subject of a Federal lawsuit, but either the could not have or could have and declined to do so.

Early reporting characterized Westbrooke as unambiguously the aggressor, not picking up the knife in respose to a threat but to initiate violence, jabbing it towards the older white kid before the white kid did anything.

Hard to see how “stand your ground” could protect the aggressor. It doesn’t eliminate the innocence requirement does it?

The Advocate story also reports a Westbrook Tweet from a week before the stabbing saying he wanted to attack a random person and spill blood:

Hard to see how stand your ground became the issue here. Westbrook sounds like a psycho-killer.