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Does Reversal of Siwatu-Salama Brandishing Conviction Expand Self-Defense?

Does Reversal of Siwatu-Salama Brandishing Conviction Expand Self-Defense?

Impact of MI Court of Appeals decision is wildly exaggerated by the gun community.

I’m seeing a lot of excitement in the gun community about the decision this week out of the Michigan court of appeals, People v. Siwatu-Salama. The drama around the decision represents some significant expansion of self-defense rights.

The decision does nothing of the sort. It is no reason to get excited o. If anything, it does far more to create ambiguity around self-defense than it does to create certainty. To the extent it encourages the defensive display of firearms, it also substantially raises the legal risks for well-intentioned defenders.

This Michigan court of appeals decision involves the usual kind of people one finds in most appellate court decisions. Let’s be kind and call them people with severely limited decision-making skills.  The factual recitations by the parties involved and the witnesses are mostly incoherent.

Those of you who read the original appellate decision (and as always, I do urge you to read the actual case, which you can find here: People v. Siwatu-Salama, 2019 Mich. App. LEXIS 4820 (MI Ct. App. 2019) may be inclined to think that such a case isn’t relevant to you because you’re not like these people.

It’s worth keeping in mind that the law created to deal with the stupid conduct of people like this is precisely the same law that authorities will apply to people like you and me. As such, it’s essential to understand what these laws are and how officials will use them.

There is also a pretty good serving of social justice warrior politics in this case. The media routinely characterizes the defendant as “an environmental and racial justice advocate,” facts that are irrelevant to the merits of this criminal case. Nevertheless, this has birthed a media campaign in the defendant’s favor that bears similarities to the purported “domestic violence victim” media campaign waged for the benefit of Marissa Alexander.

There’s even some “gun owner wrongly prosecuted” narrative peddled by the mainstream media. This narrative conveniently manages to negatively portray the NRA for apparently “failing to support” a law-abiding gun owner. (I rather expect that if the “law-abiding gun owner” had been a male who brandished a gun at his spouse, the coverage would have been slightly different.)

In summary, two women got into a street fight. This escalated into the use of a car as a battering ram against other vehicles (in one claim, as a weapon against a bystander). The brandishing of a gun in a setting with small children around, all for no good reason.

The woman who brandished the gun was charged assault with a deadly weapon, a felony. Since that weapon was a gun, officials also charged her with possessing a firearm while committing a felony. At trial, this woman raised the legal defense of self-defense as a justification for her brandishing of the gun.

The judge instructed the jury on the legal defense of self-defense in the context of deadly defensive force, and the jury then convicted the defendant. This guilty verdict shows the jury did not believe the defendant’s claim of being the victim of a deadly force attack. Had they found the defendant’s claim, they would have acquitted.

The defendant then appealed her conviction. In effect, the appellant is arguing that her brandishing of a gun did not necessarily constitute deadly defensive force. Because she merely brandished and did not fire the gun, the brandishing could have been reasonably interpreted by the jury as a mere non-deadly defensive force.

If so, the jury might have acquitted her based on non-deadly self-defense, if the judge gave them the non-deadly self-defense jury instruction. The trial judge’s failure to provide that jury instruction, the appellant argued, therefore constitutes reversible error.

To the good fortune of the appellant, this Michigan court of appeals agreed with her argument.

Was This a Dramatic Expansion of Self-Defense Rights? No.

Is this a dramatic expansion of self-defense rights?

No, it’s nothing of the sort. It involves among the most routine of legal issues, and one that results in reversed convictions all the time.

The fundamental legal issue, in this case, isn’t self-defense at all. Instead, it is this: If there is an ambiguous factual matter in a case, who decides that factual matter? The judge? Or the jury?

The rule in American courts has always been that it is the jury that decides matters of fact, and that the judge’s role is limited to deciding issues of law. (In a bench trial, of course, the judge plays both roles, as in that case there is no jury.)

All that happened here is that the trial judge took it upon himself to make a finding of fact. Specifically, threatening with a gun can only be interpreted as deadly force, and can never be construed as a non-deadly force. Having made that decision, the judge instructed only on deadly force self-defense, and not on non-deadly force self-defense.

All the court of appeals is ruling they believe threatening with a gun could potentially be either deadly defensive force or non-deadly defensive force. It depends on the circumstances.

As such, whether a particular instance of threatening with a gun constituted deadly or non-deadly force is a factual matter that falls within the discretion of the jury. Therefore the jury should have received both the jury instruction on deadly defensive force and the jury instruction on the non-deadly defensive force. They should have decided for themselves which of the two applied in the case of Siwatu-Salama threatening with her gun.

By instructing the jury on the only deadly defensive force, the trial judge forcefully invaded the legal territory of the jury. It is this treading upon the jury’s prerogative that is the reversible error.

It’s essential to understand what the court of appeals decision is not saying.

The court of appeals is not saying that Siwatu-Salama’s threatening with a gun was either deadly force or non-deadly force. They are not making that call. They are merely saying it should have been up to the jury to make that call in this particular case. Whatever the jury’s decision, the court of appeals would have been okay with that decision.

The court of appeals is not saying that it’s automatically OK—an “expansion of self-defense rights”—to threaten someone with a gun if another threatens you with mere non-deadly force. They said there might be circumstances in which threatening with a gun would be justified and other circumstances in which it would not be justified. It’s up to the jury at the trial to make that call. Whatever way a jury decides—and that could be for the defender or against the defender, either way—the court of appeals would be okay with that decision.

So this is not a case about “expanding self-defense rights.” It is a case that asserts once again when there is a factual ambiguity in a case, it is the job of the jury, not the judge, to make the call on that genuine ambiguity.

If Anything, Rule Creates Ambiguity

I mentioned earlier that this decision does far more to create ambiguity around self-defense than it does to create certainty, so let me expand on that now.

Imagine, if you will, that the rule was that defensive threatening with a gun could only be lawful if you were facing an imminent deadly force threat. Threatening against a less than impending deadly force threat, against a merely non-deadly force threat, could never be lawful under this rule.

Reasonable people could agree or disagree about whether that was the right rule to have in place. What that rule does have going for it, however, is its clarity. It’s a pretty bright-line test. Was there a deadly force threat? Then threatening with a gun was lawful self-defense. Was there only a non-deadly force threat? Then threatening with a gun was not legitimate self-defense. Easy-peasy.

Now let’s imagine a broader rule, much as stated by the Michigan court of appeals in this decision. If you’re facing an imminent deadly force threat, threatening with a gun is lawful self-defense.

And if you’re facing a mere non-deadly force threat? Is threatening with a gun, under those circumstances, lawful self-defense, or is it a felony suitable for ten years in prison?

The answer from the Michigan court of appeals? “Who knows? Not our problem. You’ll have to make your decision RIGHT NOW, while you’re facing a threat. Then hope a randomly selected jury agrees with that decision a year or two later.”

That is literally what the Michigan court of appeals ruled in this decision. When faced with a non-deadly force threat, maybe a display of a gun is lawful. Perhaps it’s not. We’re not making that call. It’s up to the jury to make that call.

By the way, that’s the standard rule across the United States. This Michigan court of appeals isn’t laying down some significant change in self-defense law. It’s pointing out the trial judge misapplied the existing law in this case by reversing the conviction to allow for a new trial in which the law would presumably be applied correctly. That is, the jury would be allowed to make the call.

It’s also worth noting that from a tactical perspective this vague rule that the jury makes the call is not at all helpful. It means that whether or not the display of your gun is lawful or criminal isn’t knowable at the moment you’re facing a threat. When that moment happens is all that matters. It’s not knowable until a randomly selected jury makes the call a year or two later.

And what if two different juries in two separate cases with virtually identical facts come to different conclusions? That’s just too bad for the defendant they decided against, and a lucky win for the defendant they chose. Neither jury is controlling on the other. Opposite conclusions are perfectly fine under this rule.

So how is either of those two defendants to know who wins in that jury decision? Answer: They can’t know.

Now, many of you may be thinking, “But Andrew, isn’t it better to at least have a chance that a defensive display will be treated like a non-deadly defensive force?”

Maybe. But let’s think it through. You can’t know how that defensive display is going to be treated a year or two later by a randomly selected jury. No rational person can take the chance and roll the dice on a 10-year felony.

Since there’s a chance the display could be treated as deadly force, and we have no control over that decision by the jury, the prudent defender must assume the worst. This means their defensive display will ultimately be deemed as a deadly defensive force. Thus they better be able to justify the use of deadly defensive force.

Well, if that’s the prudent assumption, the only wise conduct is never to make a defensive display of a gun unless the conditions for deadly defensive force exist. This is just the first, stricter rule I described at the start.

Frankly, to my mind, neither of those rules is optimal.

The stricter rule that a defensive display of a gun is only lawful if a deadly threat is imminent is too strict. Defenders ought to have the discretion to display their gun at some point earlier than they would have the privilege to fire the gun. I say this only because we know in many cases a display of the gun is sufficient to end the threatened attack upon the defender.

At the same time, the broader rule isn’t practically helpful, at least not for any prudent defender. There’s no way to know if the jury will treat the defensive display of the gun as a deadly or non-deadly defensive force. The broader rule will only give the option to roll the dice on a 10-year-felony. And that’s nothing to write home about.

I’ve long advocated a better rule for defensive display, one that is less limiting for the defender than the stricter rule. This provides more clarity and certainty for the defender than the broader rule. Those of you who have taken my LEVEL 1 Class have heard me discuss this third path.

This third approach involves situations where the threat may not yet be an imminent deadly force threat. It has evidence from which a defender can reasonably infer that the threat will inevitably become an imminent deadly force threat unless an intervention occurs to prevent it. A defensive display of a gun would be precisely the needed intervention to stop that escalation.

This third approach not only provides greater clarity and certainty to the defender, but it’s also actually better for the attacker.   How so? Because it gives the attacker adequate warning that ceasing their escalation to a deadly force threat will likely help them avoid multiple gunshot wounds.

So it wins, win!

There’s nothing at all particularly notable about this People v. Siwatu-Salama decision. There is no excellent expansion in self-defense rights here. It does nothing to add clarity to making legally-sound self-defense decisions in the tactical context. If anything, it makes that job harder.

Defensive Display Also Escalates Legal Risk

There’s another complicating factor concerning encouraging the defensive display of a gun not touched upon in reports. This has to do with the criminal liability created by the defensive display of a gun. In contrast to the much lesser liability created if the gun is not displayed.

Because the appellate decision that triggered this post came out of Michigan, I’ll use Michigan law to illustrate this point.

The moment the defender displays that gun they’ve opened themselves up to a charge of aggravated assault. Under Michigan law that would fall under either §750.84. Assault with intent to do great bodily harm less than murder or potentially under § 750.83. Assault with intent to commit murder.

If the defender can effectively defend themselves without display of a gun, restricting themselves to non-deadly defensive force, they are subject to a charge of simple assault. Under Michigan law that would fall under § 750.81. Assault or assault and battery.

Whether one is charged for simple assault under §750.81 on the one hand or aggravated assault under §750.83 or §750.84 on the other has important implications for the defense.

For one thing, the possible penalties for simple assault versus aggravated assault are wildly different. Under §750.81, the simple assault statute, the defender is at worst facing a misdemeanor conviction and 93 days in jail.

In contrast, under §750.84 the defender looks at a felony conviction for up to 10 years in prison. Under §750.83 the defender looks at a felony conviction good for life in prison.

Those, folks, are serious stakes. And the entire difference is not the nature of the threat being faced. It’s the same in both cases: a threat that’s not yet an imminent deadly force threat, but rather the defender’s response to that threat. It also includes whether the defender limited themselves to non-deadly defensive force or if they made a defensive display of their gun. That opens the door to being charged with aggravated assault.

Further, more severe charges are intrinsically more likely to be brought to trial than are less serious charges. In the “great game” that is the criminal justice system, prosecutors are more attracted to bring more serious charges to trial. The more serious offenses are generally a greater danger to the society that hired them to protect it. For the prosecutor, winning cases involving more severe charges creates the perception (mostly correctly) that the prosecutor is more capable and experienced in significant cases. Murder, attempted murder, and aggravated assault cases are the major leagues. Every serious prosecutor wants to be in the major leagues.

This means the simple act of making a defensive display of your gun not only opens the door to a much more serious criminal charge but also brings you the attention of serious prosecutors motivated to bring such charges to trial.

There’s a reason I carry a gun pretty much every day for personal protection. I also make it a point to carry an explicitly non-deadly means of self-defense. In my case usually OC spray.

If given the opportunity, I will deploy that pepper spray first, and limit as much as possible my liability in terms of criminal charges and my attractiveness as a target for prosecution. Only if that doesn’t work (or if the option doesn’t present itself) would I make a defensive display of my gun, and open myself to those more serious criminal charges.

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JackinSilverSpring | August 23, 2019 at 9:31 am

Why didn’t the Appellate Court send this back to the lower court for reconsideration?

I’d like to know exactly what is considered brandishing? And is there an agreed upon definition?

Here in Texas the rule is pretty clear IMO. I don’t recall the exact statute citation but ‘brandishing’ is encompassed within the ‘Deadly Conduct’ statute, which basically means anything from purposely discharging a weapon to pointing an unloaded weapon, as long as the conduct could be ‘ reasonably foreseen to create fear of or actual death or great bodily injury’. No real solid middle ground exists to plant your flag on trying to argue that you drew a weapon to ‘scare off’ a potential threat.

So to way oversimplify this: unholstering a weapon is a bad idea in TX, unless you are facing clear risk of imminent danger of serious injury or death. It is back to simple first day firearms responsibility training from your parents or whomever. Don’t point or aim at anything you don’t want to shoot, Do not draw unless you are willing to aim and fire the weapon.

Personally I like the rule in TX because it is clear and concise.

I don’t believe any of the judges have had a gun aimed at them. I was hijacked one on an airliner and the revolver was aimed at my face. I could see the bullets sticking out of the cylinder. How anyone with sight could not feel threatened with the thought of death at that moment is beyond me. I mentioned the gun was a revolver because you can tell if it is loaded or not. A semi-automatic pistol would be almost impossible to tell and would, therefore, have to be considered loaded. I think the ivory tower of our elite peers needs to be demolished.

ScottTheEngineer | August 23, 2019 at 11:56 am

I read the appeals court decision. I dont see how it wasnt simple self defense. If the defendant was a cop, drew their weapon and fired it would have never gone to trial. The fact that she used her car to try and hit defendants mom who was in the yard, and the car was driven into the yard is proof.
There should be non deadly force acception. Similer to a rattlesnakes rattle. The rattle is a warning before the strike.

    “The fact that she used her car to try and hit defendants mom who was in the yard, and the car was driven into the yard is proof.”

    If the trial judge had believed this “fact” to be true they would have acquitted Siwatu-Salama based on the deadly force self-defense instruction they did receive.

    That the jury instead concluded she was guilty beyond a reasonable doubt tells me that the jury did not believe that either Siwatu-Salama nor anyone she claimed to be protecting was actually being threatened with imminent deadly force.

    The whole point of the ruling is that the jury was only permitted to consider deadly force self-defense, and rejected it, but should also have been given the option of considering non-deadly force self-defense.


    Attorney Andrew F. Branca
    Law of Self Defense LLC

The problem lies with the language of the Michigan statutes on assault. There is no aggravated assault statute, in Michign. The language of the statutes are so poorly worded as to be almost unconstitutionally vague. Most enlightened states differentiate between simple assault and aggravated assault by including the use of a deadly weapon to threaten someone in the aggravated statute. To use Florida statutes, for example, the statute specifically says that threatening a person with a deadly weapon, so as to place them in a state of fear, is an aggravated assault, a felony. If no deadly weapon is used, the crime is simple assault, a misdemeanor.

However, in Florida, a the self defense statutes equate the threatened use of deadly force, i.e. threatening a person with a gun, to the actual use of deadly fore,shooting at the person. So, even in a self defense situation, a person can not legally threaten another with a deadly weapon, unless the circumstances allow for the actual use of the deadly weapon in self defense.

So if you don’t have pepper spray only deadly force on you, and a situation is escalating, and normal calm deescalation isn’t getting anywhere, it seems to me that there are two choices:

(1) brandish and try to scare some sense into the other person (the very definition of aggravated assault according to Mac45, and you’re very likely to be convicted because things haven’t escalated too far yet)

(2) don’t brandish and when it gets dangerous, shoot to kill. Then after the funeral, make the much easier case than in (1) that this was self defense. And if your defense fails, you are covicted of 2nd-degree murder.

Because the penalty for brandishing a deadly weapon, i.e. aggravated assault, is not much worse than 2nd-degree murder.

I understand why Andrew advises carrying non-lethal force.

    Mac45 in reply to artichoke. | August 23, 2019 at 2:32 pm

    First of all, forget this brandishing nonsense. Except for the few states where there is actually a statute which uses the word, it means nothing. What we are talking about is displaying a deadly weapon in a threatening manner. Now that is a criminal offense in most states, assault [or aggravated assault]. Lawful self defense is a defense to conviction for assault. But, lawful self defense is not uniform across the country. Different states have different standards. And they change from time to time. So, you have to know the statutory and case law which applies in the state where you are going to use defensive force.

    Let me illustrate with Florida law. For decades, it was permissible to use the threat of deadly force, in necessary self defense, without regard for the level of force being defended against. You could point a gun at someone and threaten to shoot them to stop an imminent punch. The self defense statutes were mute on the threatened use of force. so the threatened use of deadly force, in self defense was governed by FSS 790.10. Then 2nd Amendment activists got involved. For some reason they thought that addressing the threatened use of deadly for should be incorporated into the self defense statutes. So, about five years ago, they did just that. However, the wording of the statutes now equates the threatened use of deadly force with the actual use of deadly force, making it unlawful to threaten to use deadly force, unless the actual use of deadly force is authorized. If you are not justified in shooting a person, you are not justified in threatening to shoot him, in Florida.

    So, learn to fight without immediately resorting to a deadly weapon. Otherwise, you can find yourself defending your actions in court.

So, you have to know the statutory and case law which applies in the state where you are going to use defensive force.

Case law in at least one state says that “displaying a deadly weapon in a threatening manner” is not what “brandishing” means (even if sensible English speakers think it does). A weapon need not be shown or displayed to be “brandished.” You can keep it concealed and still be convicted.

No, I don’t understand it either. And even if I was a lawyer, I wouldn’t admit it.

Not sure I’d rely too much from some hick lower court in Michigan.

I find it curious that if you pull a gun and shoot in a situation evolving so quickly that there’s not enough time to re-evaluate the threat before shooting (like M. Drejka) you will be prosecuted for the shooting. But if you pull a gun and have enough time to re-evaluate the threat and decide to NOT shoot, you will be charged with a different felony. The law apparently does not want you to use a gun in self-defense unless you know your attacker needs shooting before you draw your gun, but then won’t allow you to re-evaluate the situation before you shoot. It demands both a flawless, one-time evaluation of an evolving situation along with a comprehensive understanding of the law of self defense and how it applies to your situation (but only for an instant, and not the next), all while you’re engaged in a fight for your life. Seems neither fair nor just to me.

    artichoke in reply to DaveGinOly. | August 24, 2019 at 9:13 am

    What if some legislators were anti-2A but couldn’t get it repealed, so they wanted to make it as risky as possible to gain any benefit from having firearms. I believe they would make laws like this, laws that force anyone with firearms into situations that defy common sense.