Kyle’s Law: How To Stop Abusive Politically-Motivated Prosecutions In Self-Defense Cases

Kyle’s Law: How To Stop Abusive Politically-Motivated Prosecutions In Self-Defense Cases

We’ve seen this happen in the George Zimmerman trial in Florida a decade ago, in the Kyle Rittenhouse trial just completed in Kenosha WI, and in plenty of cases in between.

These are cases where there is little or no evidence inconsistent with self-defense, such that there can be no good-faith reason for a prosecutor to drag that defender to trial.  The only motivation of the prosecutor is personal aggrandizement and political capital.

The real problem here is that these trials are a win-win for these rogue, politically motivated prosecutors.  If the trial ends in a conviction, they won the legal case.

Even if the trial ends in an acquittal, however, as the George Zimmerman and Kyle Rittenhouse trials did, the prosecutor still wins, in the form of political capital and esteem from their own social and political community.  They at least “fought the good fight” as their team sees it.

With a win either way there exists zero disincentives for prosecutors to bring felony charges even in self-defense cases where the evidence and law overwhelmingly favor the defendant and an actual conviction is all but impossible.

The consequences for the clearly innocent defender, however, are catastrophic no matter how strong his case of self-defense. For the lawful defender who finds himself the target of a rogue, politically motivated prosecutor, it’s a lose-lose.

Sure, the defender with the evidence and law on his side will probably win an acquittal–but at what cost?  Especially with the mainstream media having demonized the defender for a year or more prior to the trial–as a murderer, a racist, a white supremacist.

An acquittal after the trial does not make up for the loss of job, marriage, home, business, reputation, educational opportunities, and emotional stability. Indeed, many such acquitted defenders find it largely impossible to ever live a normal life again.

It’s time to change this equation.  It’s time to compel prosecutors to have skin in the game, to have something to lose if they bring a laughably weak, yet horribly destructive, felony prosecution in a case of self-defense.  And it’s time to provide a path for the wrongfully prosecuted defender to get compensation for his monetary, reputational, and emotional damages.

Kyle’s Law is my proposal to accomplish exactly that.   This statutory proposal targets laughably weak prosecutions of self-defense cases, prosecutions so weak they can only be politically motivated, and without any real prospect of conviction.

What do I mean by “laughably weak” in a more objective sense?  Well, at trial a prosecutor knows he will bear the burden to disprove self-defense beyond any reasonable doubt.  Let’s imagine that means he must disprove self-defense by 90% of the evidence.  If the defendant is acquitted, that means the prosecutor fell short of that 90% threshold.

If they fall short of that threshold by a small amount, say 75%, that still looks like a reasonable self-defense prosecution to my lawyer’s eye.  Fair enough.

But what if the prosecutor at trial can’t even disprove self-defense by a mere 50%?  Not even by that mere majority of the evidence?  That’s not a little bit short of beyond a reasonable doubt, that’s enormously short.  To my eye that looks like a self-defense prosecution brought in the full knowledge that it lacks anything close to the legal merit needed for a conviction–in other words, like a prosecution brought for political purposes despite its obvious lack of legal merit.

What I propose is that in every self-defense case the jury instruction on self-defense includes a special question to the jury–if you the jury are acquitting this defendant on the grounds of self-defense, do you also find that the prosecution failed to disprove self-defense by a majority of the evidence?

If the jury agrees the prosecution failed to meet even this very low threshold, the defendant is immediately entitled to compensation for any losses resulting from this unfounded prosecution.

And that compensation shall be made both by the state generally and by the prosecutor personally.

First, the state generally:  A self-defense defendant who qualifies under Kyle’s Law would be entitled to monetary compensation from the state for legal expenses, lost wages, and all other economic costs associated with the unjust prosecution. (Washington state already has a statute that does precisely this, §9A.16.110, but it is the only state that does. This needs to expand to every state.)

Second, the prosecutor personally: A self-defense defendant who qualifies under Kyle’s Law would be entitled to monetary compensation from the prosecutor personally for mental distress, emotional pain & suffering, lost economic/ business/educational opportunities, reputational damage, and so forth, plus any legal costs incurred to secure this compensation—and that means the suffering of both the defendant himself AND his immediate family. (No state currently has such a provision of law.)

Further, if the State seeks to reimburse the prosecutor for this damage award, that reimbursement also becomes the property of the self-defense defendant.

Only by holding the state generally and the prosecutor personally both responsible for such cases of unjust prosecution of self-defense cases can we keep these victims of violent attack from also becoming victims of an assaultive justice system.

At present, we are simply trying to raise awareness and build a community around this Kyle’s Law project—we are not seeking any funds or financing in any form from anyone, at least not yet.

If you’d like to join the still informal Kyle’s Law community, without any cost or obligation at all, and simply for the purposes of being kept informed of our progress as we develop this legislative concept, I encourage you to visit lawofselfdefense.com/kyleslaw.

Thanks for your consideration of our Kyle’s Law concept, and I look forward to having you join our modest, but rapidly growing, community focused on the legal defense of self-defense itself.

UPDATE: I’ve learned that Nathan Dahm, a Republican Oklahoma state senator has proposed a “Kyle’s Law” bill, making his announcement a few days after I initially posted my own proposal on November 19, 2021.  Senator Dahm hadn’t reached out to me, and I have no idea whether he came up with his own notion of “Kyle’s Law” independently, or had come across my suggestion and thought it worth running with.  It also appears that whatever he plans to introduce is not yet sufficiently formalized as to be available from the Oklahoma legislative website, but whenever I can obtain a copy of that bill I’ll share it with the greater Law of Self Defense community, as well as my thoughts on it.

UPDATE:  Apparently at least one Democrat politician is in a bit of a twist about “Kyle’s Law,” as I first noted on November 25, 2021:

Kyle’s Law: Democrat Horrified Prosecutors Might Be Held Accountable

Well, this elicited a chuckle when it came across my news feed.  Apparently, the Left is already panicking about my proposed Kyle’s Law, even though “proposed” is a bit extravagant for a single-page notion hosted on the website of a small-town lawyer in Colorado.

You can learn more about and join the rapidly expanding Kyle’s Law community, right here:  Kyle’s Law: Stop Politically-Motivated Prosecutions of Self-Defense.

It seems a New Hampshire state representative is in a bit of a twist over my Kyle’s Law proposal.  Katherine Rogers of Concord represents Merrimack District 28 in the NH House of Representatives—and, yes, she’s a Democrat.

Although she doesn’t credit the Kyle’s Law she’s criticizing to me, the details she discusses are, to my knowledge, found only in my proposal (at least, I’ve seen no other prior to mine).

You can click here to find the full-text of her editorial published in a local New Hampshire newspaper—My Turn: Kyle’s Law is wrong for New Hampshire—I’ll just hit the high points myself here.

Representative Rogers writes:

[S]ome in New Hampshire are pushing to pass “Kyle’s Law.” This wolf in sheep’s clothing is being offered as a way to “prevent politically motivated prosecutions of defendants claiming self-defense in gun-related incidents.”

Good heavens, no!  A wolf in sheep’s clothing!  Good thing I have a gun!

If this proposal were to become law in New Hampshire, it would effectively ensure that anyone claiming self-defense will have a protective barrier around them against anyone questioning whether, in fact, the claim is valid.

Kyle’s Law would not prevent anybody from questioning anyone about any use-of-force event. Indeed, I would encourage prosecutors to investigate any use-of-force event involving deadly force of any type.

All Kyle’s Law says is that before a prosecutor drags a person with an arguable claim of self-defense into a trial where they’ll be required to disprove self-defense beyond any reasonable doubt, they ought first be confident that they can at least show disproof of self-defense by at least a preponderance of the evidence.

Any prosecutor not confident that he has 51% proof in hand has no business dragging someone into a costly and dangerous trial where the standard for guilt is more like 90%. That’s rather the whole point.

“Kyle’s Law” would require the jury instruction on self-defense include a special question to the jury: “If you the jury are acquitting this defendant on the grounds of self-defense, do you also find that the prosecution failed to disprove self-defense by a majority of the evidence?”

She finally got something right!

If the jury answers this in the positive, the defendant is entitled to compensation not only from the state but also from the prosecutor personally. Additionally, the charging police officer will be held accountable as well.

Honest charging officers have nothing to worry about.  The ones lying on criminal complaints that unjustly drag innocent people to trials that can easily cost $100,000s and carry at least a 10% chance of conviction no matter how innocent they may actually be?  Well, yeah—but shouldn’t charging officers who swear false complaints with such outcomes be made to feel worried?

This is wrong for New Hampshire and throws the idea of law and order on its head. Here are reasons why “Kyle’s Law” should be rejected.

OK, great, let’s hear this genius’ opposing argument!

One — What qualifies any jury to make a judgment on the performance of the prosecutor and whether it is a politically motivated case? How does this get decided?

Apparently Karen—sorry, Katherine!—is struggling cognitively with these pretty simple concepts. As she already noted, the special jury form proposed doesn’t ask the jury to determine whether a prosecution was “politically motivated.”

It merely asks whether a prosecutor who has been telling a court through an entire trial that he can reasonably expect to prove the self-defense defendant guilty beyond a reasonable doubt failed to even show proof by a mere preponderance of the evidence.

As to who decides whether one side in a trial has met a burden of proof by a preponderance of the evidence—that’s the job of the jury in every civil case in America, an assessment that civil juries are expected to carry out, and do carry out, many thousands of times a day all across America.

She continues:

A prosecutor is acting in good faith, within the scope of the authority they possess, based on evidence, case law and precedence.

As Judge Bruce Schroeder shouted at Prosecutor T. Claire Binger in the Kyle Rittenhouse trial:  “I DON’T BELIEVE YOU!”  If people really believed that prosecutors were acting in good faith, we wouldn’t see this tremendous energy and support behind Kyle’s Law.

Further, no prosecutor actually acting in good faith would ever be subject to Kyle’s Law—all they have to do is not drag a self-defense defendant into a destructive and dangerous trial unless they start that trial confident that they have at least 51% proof against self-defense.

That’s what we used to call in the old days, “probable cause,” and is what’s required for a mere arrest. Surely the standard for a full-blown trial should be no less.

Adding personal liability to their performance would mean prosecutors won’t proceed in any case against a person who could claim self-defense.

No, Katherine—it means they can proceed against every person claiming self-defense, where the prosecutor has probable cause to begin that trial. If probable cause can be demonstrated, Kyle’s Law is off the table, nothing to fear there. Any prosecutor afraid of Kyle’s Law is afraid only because they are bringing self-defense defendants to trial in the absence of probable cause.

And, yes, those prosecutors should be held accountable—exactly as Kyle’s Law proposes.

This litmus test would be unlike anything else in our criminal justice system and open a wide door for abuse.

Actually, probable cause is a standard threshold in the criminal justice system  Indeed, it’s what’s required even for a mere arrest. Shouldn’t the threshold for compelling a self-defense defendant into a multi-hundred-thousand-dollar trial and the risk of life imprisonment be at least as high as the threshold for a mere arrest?

And the “wide door for abuse” is the privilege currently exercised by politically-motivated prosecutors to expose self-defense defendants to the costs and risks of a trial in the absence of probable cause.

Two — This would only expand the use of the self-defense defense to include almost every case in which someone feels threatened. Self-defense claims will skyrocket as defendants see the legal loophole for getting away with criminal activity.

Amazing.  Katherine wants people to not be able to claim self-defense too much.  Just white people, Katherine?  Or does she want the ability of black victims of criminal predation to have less privilege to defend themselves, too? What about women targeted by rapists, don’t want them to claim self-defense after they win that fight just because they “felt threatened,” do we?

One wonders exactly who Katherine thinks is supposed to feel comfortable claiming self-defense, if not people who used force defensively while they were being threatened.

Three — This effectively legalizes vigilante justice. Law enforcement is not a private right. Our state must offer public safety in the form of state or local police forces.

Well, if Katherine is equating “self-defense” with “vigilantism,” and she wants to do away with “vigilantism,” that means she wants to do away with “self-defense.”

In case you had any doubt about what Democrats would like to do to the legal defense of self-defense.

After all, who needs self-defense when we have the state and local police forces to protect us, right?  Like the state and local police forces protected George Zimmerman from Trayvon Martin’s attack?  Or Kyle Rittenhouse from the attack of a serial child rapist? Or the entire city of Kenosha from a looting, rioting, burning horde?

Or like the state and local police forces protected the 1,300,000 Americans who were victims of violent crime in the United States last year? Oh, wait, those 1,300,000 Americans were actual crime victims, so the state and local police forces apparently are unable to actually prevent violent crime! Who knew! Guess those people should not have a privilege to defend themselves, then, eh Katherine?

While every citizen has the right to self-defense, we do not have the right to put ourselves in positions of danger every chance we get and to invite others to attack us for no reason.

This, of course, is mere emoting.  Nobody actually puts themselves in positions of danger “every chance they get,” and anybody inviting (provoking) an attack is a defendant a prosecutor will have no difficulty convicting on the legal merits.

Four — Combined with “stand your ground” and “concealed carry” laws, “Kyle’s Law” will only add to the idea that we are less a civilized government than a self-policing, ‘shoot em up’ tribal anarchy that lives day to day by the rule of survival of the fittest. We make our society far less safe this way.

I would suggest that the dangers of anarchy aren’t going to be the eventual consequence of Kyle’s Law, but rather that Kyle’s Law is a response to the unjust treatment of lawful defenders compelled to deal with the actual anarchy already being visited upon otherwise safe communities by the political left and their policies.

Isn’t it time to pass reasonable gun violence prevention statutes and stop coming up with dangerous alternatives like “Kyle’s Law?”

Someone should let Katherine know that guns don’t self-animate and commit acts of violence—bad people do that. The bad people that attack the self-defense defenders, too often followed by bad prosecutors who then attack a second time with unjust prosecutions in which the trial process itself is used as a tool of punishment despite the apparent innocence of the defendant.

That’s why Kyle’s Law is so necessary.

Life is not a video game. You only get one life. Our laws should reflect that reality.

Indeed, and that one life should be neither stolen by a criminal predator nor destroyed by an unjust prosecution.

So I guess that finally, Katherine and I can agree on something—I look forward to her future support of Kyle’s Law in New Hampshire, the Live Free or Die state!

Remember, you can learn more about Kyle’s Law and join the rapidly expanding Kyle’s Law community, right here:  Kyle’s Law: Stop Politically-Motivated Prosecutions of Self-Defense.

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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