Image 01 Image 03
Sign In or RegisterLogout

Author: Andrew Branca

Profile photo

Andrew Branca

Andrew F. Branca is in his third decade of practicing law in the Commonwealth of Massachusetts. He wrote the first edition of the "Law of Self Defense" in 1997, and is currently in the process of completing the fully revised and updated second edition, which you can preorder now at lawofselfdefense.com. He began his competitive shooting activities as a youth in smallbore rifle, and today is a Life Member of the National Rifle Association (NRA) and a Life Member and Master-class competitor in multiple classifications in the International Defensive Pistol Association (IDPA). Andrew has for many years been an NRA-certified firearms instructor in pistol, rifle, and personal protection, and has previously served as an Adjunct Instructor on the Law of Self Defense at the SigSauer Academy in Epping, NH. He holds or has held concealed carry permits for Massachusetts, Connecticut, Rhode Island, New Hampshire, Maine, Pennsylvania, Florida, Utah, Virginia, and other states.

Posted by Andrew Branca on May 18, 2016 21 Comments
The defense in the “Freddie Gray” trial of Officer Edward Nero rested today, the trial’s fifth day. Closing arguments are anticipated tomorrow, and trial Judge Barry Williams has announced that he expects to return a verdict on Monday, May 23. There hasn’t been much substantive reporting on the defense’s case the last two days, and of course there aren’t cameras in Maryland courtrooms, but the following is based on live-“tweeting” of the trial by the Baltimore Sun.

Trial Day #4

The defense primarily brought as witnesses police officers who either were somehow involved or a witness to Gray’s arrest and transport, who trained Officer Nero, or who otherwise are experts on police procedure.

Posted by Andrew Branca on May 17, 2016 39 Comments
First, my apologies for not getting this post up last night--I'm in the process of riding the motorcycle to the NRA Annual Meeting in Louisville, and various delays just pushed last night's arrival to too late an hour. Yesterday the State presented the remainder of its case against Officer Edward Nero, and rested. The prosecution's case turns out to be just as weak and ridiculous as every reasonable person has long since perceived.  In essence, the prosecution's theory of criminal liability for Nero rests on the fact that when his superior officer, Lieutenant Brian Rice, radioed for assistance in chasing down a fleeing Freddie Gray, Nero complied with that request without first making an independent evaluation of whether reasonable suspicion existed for the stop or probable cause for the arrest. Of course, such automatic good faith compliance with fellow officers in a pursuit and arrest is precisely what police are trained and expected to do.  If the officer requesting assistance is later unable to articulate reasonable suspicion or probable cause, that's on the initiating officers, not on those who come to that officer's assistance in good faith.  The notion that the assisting officers should face years in prison for such good faith conduct is utter madness.

Posted by Andrew Branca on May 13, 2016 49 Comments
Yesterday saw the start of the latest trial related to the arrest and transport of Freddie Gray on April 12, 2015.  Gray would die a week after his arrest, and his death was promptly used as a justification for days of violent rioting, looting, and arson in Baltimore. This time the defendant is Baltimore Police Officer Edward Nero, one of a total of six officers against whom criminal charges were brought following Gray's death. [caption id="attachment_171309" align="alignnone" width="600"]Officer Edward Nero Officer Edward Nero[/caption] The prosecution is being led by Chief Deputy State's Attorney Michael Schatzow, an attorney with relatively little criminal law experience.  Schatzow previously led the failed prosecution of Officer William Porter in the first “Freddie Gray” trial earlier this year. (Porter’s trial ended in a hung jury, and prosecutors have announced they intend to re-try him.) Nero is being represented by defense attorney Marc Zayon.

Posted by Andrew Branca on May 10, 2016 18 Comments
I know many of you have been wondering where the heck I've run off to from the pages of Legal Insurrection, so I want to immediately dispel the most common rumor:  No, Professor Jacobson and I have not broken up. :-) More seriously, the reason for my absence has been that I've been hard at work finishing the thoroughly updated newest edition of my book, "The Law of Self Defense, 3rd Edition," which I'm proud to announce published last week.  Further, I learned this morning that we've already achieved the number one position in Criminal Law new releases at Amazon.com, at that we're #6 in the Criminal Law category overall. And today we also became #1 in the Hunting & Shooting category at Amazon.

Posted by Andrew Branca on May 08, 2016 57 Comments
The second of the Freddie Gray trials is scheduled to being this Wednesday, May 11, this time of Police Officer Edward Nero, one of the three officers involved in Freddie Gray's initial stop and arrest.  Nero was charged with second-degree assault, two counts of misconduct in office, and reckless endangerment. Nero is being tried on charges of second-degree assault, two counts of misconduct in office and reckless endangerment. All the parties involved remain under a gag order imposed by trial Judge Barry Williams (transparency, much?). Nevertheless, news reports are indicating that the prosecution has essentially conceded that they're simply making up the legal theory under which they are bringing Nero's prosecution. The Baltimore Sun uses the phrase "novel legal theory" to describe the State Attorney Marilyn Mosby's prosecution of Nero, which is simply a more polite way of saying "they're making up the law as they go along."

Posted by Andrew Branca on April 08, 2016 19 Comments
The Washington Post reports on a new study that suggests racial bias motivates police to fatally shoot black suspects at a disproportionally high rate.  That study, entitled “Fatal Shootings By US Police Officers in 2015: A Bird’s Eye View,” is published in the once well-respected scientific journal Nature. The first alarm bells went off for me when I noted the source of the "data" used for this "study":  journalists from the Washington Post itself, as well as the left-wing UK newspaper, The Guardian.  As we've seen in the past, "data" collected by journalists is rarely worth the paper it's printed on, not surprising given their generally utter lack of expertise in the subject being covered.

Posted by Andrew Branca on April 04, 2016 56 Comments
Having succeeded in getting court permission to compel Officer Edward Porter to testify, under limited immunity, against other officers in the "Freddie Gray" trials, Baltimore prosecutors have now filed a motion to similarly compel Officer Garrett Miller [Featured Image, left] to testify in next month's trial of Officer Edward Nero [Featured Image, right], reports the Baltimore Sun. The prosecution's motion is embedded below. Porter was the first of the officers involved in Gray's arrest and transport to stand trial, with a hung jury as the result. Porter is scheduled to be retried later this year in state court, and may also be subject to Federal prosecution. Despite this, Maryland's highest court has ordered that Porter can be compelled to testify against other officers under the protection of limited immunity, and that doing so does not violate Porter's 5th Amendment right against self-incrimination.

Posted by Andrew Branca on March 16, 2016 33 Comments
The Maryland court system has re-scheduled the trials of the six officers charged in the death of Freddie Gray, reports ABC News. These trials had been delayed while the state's highest court decided whether one of the officers, William Porter, could be compelled to testify against the others, despite the fact that he was to be retried after his first trial resulted in a hung jury.  Last week that court ruled that Porter could be so compelled, allowing the remaining trials to move forward. The trial dates for each officer, and the charges against them, are as follows (in chronological order):

Officer Edward Nero:  May 10

Officer Nero was primarily involved as one of the arresting officers, and is charged with assault and reckless endangerment. [caption id="attachment_164896" align="alignnone" width="500"]Officer Edward Nero Officer Edward Nero[/caption]

Posted by Andrew Branca on March 08, 2016 91 Comments
In a single-page per curiam decision, the Maryland Court of Appeals (the state’s highest court) ruled today that Baltimore Police Officer William Porter can be compelled to testify in the trials of Caesar Goodson and Alicia White, the two officers who like Porter were most closely involved in Gray’s transportation, according to reporting by CBS News and other sources.  (That order is embedded at the bottom of this post.) It was in the course of this transportation that Gray would suffer the traumatic neck injury that is believed to have ultimately taken his life. In a second order the court reversed the trial court’s early decision that Porter could not be compelled to testify against the three officers most closely associated with Gray’s arrest (but not his transport): Officers Garrett Miller, Edward Nero, and Lt. Brian Rice. The Court provided no rationale for the rulings, noting merely that the decision was made “For reasons to be stated in an opinion later to be filed …”

Posted by Andrew Branca on February 29, 2016 45 Comments
(UPDATED: This post has been updated with the transcript of the oral arguments, at the bottom of this post. h/t Shall Not Be Questioned blog.) In a turn of events sure to shock those who follow the US Supreme Court, Justice Clarence Thomas has broken with his 10-year-long record of declining to engage in oral argument, reports USA Today. Only once in the last 10 years has Justice Thomas made even the slightest remark during oral arguments, and that was merely a one-sentence aside made in jest to Antonin Scalia some three years ago.  Justice Scalia, a close friend of Thomas', passed away two weeks ago. The case which prompted Thomas to substantively engage in oral argument, Voisine v. US, centers on the Second Amendment.  Thomas choosing to break his habitual silence on this Second Amendment case may have been in homage to his friend Scalia, who greatly enjoyed displaying his wit in oral arguments. The recently deceased Scalia was instrumental on crafting pro-Second Amendment decisions by the Supreme Court in recent years, including the acknowledgement of a Constitutional right to keep and bear arms for self-defense in the cases of Heller and McDonald.

Posted by Andrew Branca on February 27, 2016 17 Comments
Yesterday, on the 4th anniversary of the self-defense shooting of Trayvon Martin, we wrote about Florida's just enacted changes to its "10-20-Life" mandatory minimum sentencing law in the context of aggravated assault and self-defense. There is also another substantive change to the state's self-defense law that is advancing through the Florida legislature:  a reduction in the threshold for obtaining criminal and civil self-defense immunity. More specifically, the Florida senate has approved a change to the state's self-defense immunity law that would require state prosecutors to disprove self-defense by clear and convincing evidence in order to deny a defendant immunity from prosecution (and civil suit).

Posted by Andrew Branca on February 26, 2016 10 Comments
Today marks the fourth anniversary of the fateful day on which Trayvon Martin made the imprudent and quickly fatal decision to viciously beat (as testified to by eye witnesses) an armed George Zimmerman. Presumably coincidentally timed with anniversary, Florida has made or is making a couple of substantive changes in its laws covering some key facets of self-defense. The first change actually made this week is that Florida has removed the crime of aggravated assault from among the gun crimes that fall subject to the state's infamous "10-20-Life" mandatory minimum sentencing requirement. We'll cover that change in this post. (We've previously written on proposals for this change, here: Changes Proposed to Florida’s Infamous “10-20-Life” Sentencing Law.) The second change has not yet taken effect, but is advancing through the legislature.  That is the Florida senate approval of a change to the state's self-defense immunity law that would require state prosecutors to disprove self-defense by clear and convincing evidence in order to deny a defendant immunity from prosecution (and civil suit).  We'll cover that prospective change in a subsequent post. For now, let's take a look at the changes to "10-20-Life" signed into law this week.

Posted by Andrew Branca on February 26, 2016 37 Comments
Today the South Florida Times posted on their web site a piece entitled "FILM USES VIRTUAL REALITY TO REENACT TRAYVON’S MURDER." In that piece they describe a piece of fabricated ("virtual reality") cinema that purports to tell the "true story" about the interaction between George Zimmerman and Trayvon Martin that resulted in Martin's death. The article notes that:
The promotional material for One Dark Night indicates, “By anchoring the piece in accurate and unassailable elements, the user becomes transported inside a reliable, albeit virtual, version of the story as an eyewitness. One Dark Night breaks new ground on multiple levels, including through audio carefully cleaned by forensic specialists Sourcesound and Primeau Productions, with the latter asserting that the reconstructed audio indicates George Zimmerman cocked his gun just before he gave chase.”
(emphasis added) Except there's one little problem with that narrative:

Posted by Andrew Branca on February 23, 2016 30 Comments
The Baltimore Sun reports today that city officials will finalize approval of a contract this week to install video cameras inside the Police Department's 23 transport vans, at a cost of $187,000. The impetus for this effort is found in numerous cases of suspects suffering injuries while being transported in the vans. The best known case of this type is, of course, that of Freddie Gray, who suffered a severe spinal injury last April while being transported in a police van. Gray would die some days afterwards. Riots wracked the city following Gray's death, leading to Prosecutor Marilyn Mosby's precipitous criminal charging of six officers involved in Gray's arrest and transport.

Posted by Andrew Branca on February 19, 2016 22 Comments
Maryland's Court of Appeals (the state's highest-level "supreme court") ruled yesterday that the trials of the Baltimore police officers charged in the Freddie Gray incident will be postponed while they decide whether one of those officers, William Porter, can be compelled to testify against the others. We covered the legal issues in a prior posts: The next officer to be tried was scheduled to be Officer Edward Nero, in whose case jury selection was to have begun this coming Monday. The difficulty in this case, and an area of law without precedent in Maryland, arises because Porter remains vulnerable to criminal prosecution. Porter was the first of the officers to be tried, last fall, but the trial resulted in a hung jury without verdict, and prosecutors immediately stated they would retry the case.

Posted by Andrew Branca on February 05, 2016 37 Comments
This week saw a flurry of motions from both the State prosecutors and defense counsel in preparation for the upcoming "Freddie Gray" trial of Baltimore Police Office Edward Nero, scheduled to begin February 22.  These were primarily in limine motions, which are motions asking the court to exclude particular evidence from the trial, often because the evidence is arguably irrelevant or prejudicial. One of these motions by Nero's defense counsel, Marc Zayon, asks the court to prohibit the State from presenting arguments and evidence about on the issue of the legality of the spring-assisted knife the arresting officers found in Freddie Gray's pocket.  (This motion is embedded at the bottom of this post.) The defense noted that the State had identified an expert witness on knives, presumably for the purpose of testifying on the legality, or lack thereof of Gray's knife.  Their motion seeks to prevent such evidence and argument on this issue at trial. You may recall that in initially bringing charges against the police officers involved in Freddie Gray's arrest and transport, State prosecutors initially argued that the claimed probable cause for that arrest--Gray's possession of a purportedly unlawful "spring-assisted knife" -- did not in fact exist because the knife in Gray's possession was not illegal as a matter of law.

Posted by Andrew Branca on February 04, 2016 35 Comments
In 2013, Maryland enacted its Firearms Safety Act (FSA). With its passage, effectively banning its residents from owning any of the large majority of semi-automatic rifles owned by American citizens (exceptions were made for retired law enforcement officers). The FSA also imposed other restrictions, such as banning certain standard-capacity magazines. Such laws are common in blue states, of course, and when challenged in the Federal courts on the grounds that they violate the Second Amendment they are typically subject only to intermediate (or lesser) scrutiny. Generally speaking, if the State can articulate virtually any purportedly reasonable basis for the gun law, it survives scrutiny. Merely uttering the words "public safety" is usually sufficient for this purpose. Of course, normally laws that arguably infringe an enumerated Constitutional rights are not subject to mere intermediate scrutiny, but rather they are subject to strict scrutiny. To survive strict scrutiny the law must advance not merely any governmental interest, but in particular a compelling governmental interest. It is perhaps arguable that "public safety" would serve to meet this requirement. In addition, however, the law must also be narrowly tailored to actually achieve that interest. It is this second requirement that almost invariably leads to the law in question being found to be unconstitutional. In a nutshell, then, if intermediate scrutiny is applied to almost any law, the law survives. If strict scrutiny is applied to almost any law, the law falls.

Posted by Andrew Branca on January 21, 2016 37 Comments
Judge Barry Williams, the trial judge in the "Freddie Gray" cases, yesterday ruled that Officer William Porter is not required to testify against the three white officers charged in the case: Edward Nero, Garrett Miller, and Brian Rice, reports CNN. Those officers were primarily involved in the initial arrest of Gray, and less so in his transport during which Gray would suffer his traumatic neck injury. Brian Rice Garrett Miller Edward Nero
Accessibility by WAH