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Author: Andrew Branca

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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 December 09, 2015 36 Comments
The defense has opened with a bang in the "Freddie Gray" trial of Police Officer William Porter, bringing to the stand as their first witness noted forensic pathologist Dr. Vincent Di Maio, who is testifying that Gray's death should have been ruled an accident, not a homicide. As reported by Kalani Gordon at the Baltimore Sun:
Dr. Vincent Di Maio, a forensic pathologist and former chief medical examiner in San Antonio, said Gray's injury was "so violent, it's so high-energy," that it would have immediately caused Gray to lose control of his body and his diaphragm, which is critical for breathing and speaking. "This has all the appearances of a single catastrophic injury," he said. Gray could not have suffered his severe spinal cord, then, at the fourth stop of the van in which he was injured, when Porter found him on the floor of the van and Gray allegedly asked for help, said he couldn't breathe and said he needed a medic. The injury had essentially "cut off the head from the body" in a neurological sense, Di Maio testified. He said Gray's spinal cord was 80 percent crushed.

Posted by Andrew Branca on December 08, 2015 46 Comments
UPDATE (2:17pm): The prosecution has rested its case, Judge Williams denied a defense request to dismiss the charges, and the court has recessed for the day. The defense will begin presenting its case to the jury tomorrow.  None of today's testimony for the State was particularly notable. The legal arguments remain clear, and the State's case about weak as their refusal to release evidence to the public had suggested. As reported by the Baltimore Sun the State's position is:
Chief Deputy State's Attorney Michael Schatzow said Porter showed a "callous indifference for life" when he deviated from department policies. Defense attorneys have said other police officers routinely break such policies, but Schatzow said those officers should not be considered "reasonable."
I've noted frequently in covering the Freddie Gray maelstrom that I'd yet to see any evidence that any of the officers had committed an actual act that could be the basis for the most serious of the charges brought agains them--including, in the case of van driver Officer Goodson, second-degree murder.  And now it seems we know why:  the State hasn't any. Also as reported by the Baltimore Sun, the defense position is:
Gary Proctor, one of Porter's defense attorneys, said prosecutors had not proved that Porter's failure to seatbelt or seek immediate medical attention for Gray rose to a "gross, wanton, deliberate" act necessary to prove involuntary manslaughter.
I look forward to the defense's presentation of its case beginning tomorrow.

Posted by Andrew Branca on December 07, 2015 44 Comments
Cross-examination of Medical Examiner Carol Allan, continuing from last Friday, was the highlight of this fourth day of the trial of Baltimore Police Officer William Porter over the in-custody death of Freddie Gray. The officer is charged with involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment. Prosecutors based these charges on their claim that Porter was negligent for not seat belting Gray into the police van following his arrest, a task the Baltimore Police Department did not officially require for all of it's 160 year history until a few days before Gray's injury. They also claim that Porter was negligent because of his alleged failure to seek medical care for Gray when the arrestee asked for help. The defense argues that mere police regulations are not properly the foundation for felony criminal charges, and that Porter in fact showed concern for Gray's welfare but did not perceive Gray to be seriously injured until later in the van's travels to the police station, at which time Porter did request medical assistance.

Posted by Andrew Branca on December 04, 2015 16 Comments
Today is day three (excluding two days of jury selection) of the trial of Baltimore Police Officer William Porter, charged with involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment following the in-custody injury and later death of community drug dealer Freddie Gray. As part of the day's proceedings the jury heard a video recorded statement given by Officer Porter to investigators only 5 days after Gray's injury. Unfortunately, given the primitive nature of Baltimore's judicial system that actual recorded statement is not accessible to the public for independent assessment.  We must therefore rely on "journalism" to inform us. The Baltimore Sun reports today that:
Baltimore Police Officer William G. Porter told investigators that he saw no reason to call a medic for Freddie Gray, but was poised to take him to a hospital for treatment. ... Porter said he knew Gray from prior interactions and that he had a reputation for being difficult to arrest. He said Gray seemed lethargic, but responded to questions and did not articulate a specific medical problem. "I said, 'What's your deal, what's wrong with you. .. He doesn't say anything, just 'help,'" Porter told the investigators. Later, he said, "He doesn't ask to go to the hospital ... I offer, he says yes."
Yesterday, according to CNN, Police Instructor Alice Carson Johnson had testified that "If you recognize someone needs medical assistance, always call 911 or EMS.  A police officer is provided with the ability through appropriate training to make a determination if someone is in a medical emergency." Upon cross-examination, however, she conceded that someone like Freddie Gray who is verbally complaining that they could not breath, and who was therefore necessarily speaking, most certainly must also be breathing.

Posted by Andrew Branca on December 03, 2015 54 Comments
UPDATE: In response to numerous requests, we provide additional information on the demographics of the jury selected for the trial of Officer Porter:

Three white women (all over the age of 50) Three black men (all over the age of 50) Five black women (range of ages) One white man

And thanks to commenter Ragspierre:  Additionally, three white men and one black man were chosen as alternates. As we emerge from day two of the Freddie Gray trial of Police Officer William Porter, we have yet to see a compelling narrative of guilt from the prosecution, particularly on the more serious charges brought against Porter.There is no live remote access to the court room, so the information below is largely obtained from the reporting of the Baltimore Sun newspaper:
Porter's charges stem from his decisions not to seat-belt Gray in the back of the van despite his being handcuffed with shackles on his legs, or failing to provide him medical assistance when he requested it, prosecutors have said. Porter was not the van's driver, but responded to assist other officers with Gray at multiple stops on the van's route.
Porter did not personally assist in Gray's arrest, nor was Porter responsible for the operation of the police van (that duty fell to the driver of that van Officer Goodson). Interestingly, jurors had the opportunity to actually inspect that police van today, when it was towed into the courthouse. Curiously, the Baltimore Sun reports that while the jurors were allowed to closely inspect the van, the vehicle itself was not entered into evidence. For 160 years (not a typo) the Baltimore Police Department left to the discretion of the officers on the scene whether to belt a suspect into a van (whether horse-drawn or motorized).  In fact, while seatbelt use in passenger cars is now de rigueur, there are perfectly valid and rational reasons for not belting in a prisoner in a police van.  In particular, that belting the prisoner in can lead to greater, not lesser, injuries in the event of a crash. (See my earlier post on this issue:  Freddie Gray Case: Autopsy report further undermines prosecution.) Then, a mere week prior to Gray's arrest a new policy was promulgated by the Baltimore Police Department that all prisoners in vans were to be belted in. The prosecution in this trial has argued that Porter was "trained" in this policy, but it appears that "trained" in this context merely means that Porter was sent a single group email, one of scores officers receive from the department each day, and that was in no way particular noteworthy.

Posted by Andrew Branca on December 01, 2015 46 Comments
[Correction: An earlier version of this post characterized the defendant, Officer Porter, as the driver of the police van in which Gray was riding. In fact, the driver of the van was Officer Goodson. Porter's role has been corrected, below.] Yesterday jury selection began in the first of the six expected trials over the in-custody death of Freddie Gray. This first case tries 26-year-old Officer William Porter, who like Gray is black. The trial is being presided over by Judge Barry G. Williams, who is also black. (I mention the races of those involved only because the case has been racially-charged from the first riots.) Unfortunately, Maryland does not allow cameras in the court room, and even reporters who are present are permitted to access electronics (and thus tweet, etc.) only on breaks, so we don't expect there will be much of the blow-by-blow coverage we've done in other high-profile trials. (Reporters in the overflow room also cannot use electronics, but are permitted to enter and exit as they please.) Nevertheless, a few general observations can be made based on yesterday's reporting.

Protestors Chants Heard Clearly in Court Room

A major issue in all these trials has been whether, due to the extensive riots and looting that erupted in Baltimore a week after Gray's death and continuing for many days thereafter, it would be in the interests of justice to change the venue of the trial to a location outside of the city. Defense attorneys for the six police officers to be tried have made repeated motions for a change of venue.

Posted by Andrew Branca on November 25, 2015 180 Comments
About 13 months ago, on October 20, 2014, Laquan McDonald, a 17-year-old 180-pound black male who was non-compliant with police orders and threatening Chicago police officers with a knife, was shot and killed by officer Jason Van Dyke, a white man. Yesterday Chicago authorities, under orders from a judge, finally released some dash cam footage of the shooting. Concurrent with that impending release, prosecutors arrested Van Dyke and charged him with first degree murder. He is currently being denied bail. Here's the relevant portion of the police dash cam video that captured that shooting:

Posted by Andrew Branca on November 21, 2015 25 Comments
This past Monday we wrote about the start of the re-trial of retired firefighter Raul Rodriguez who was previously convicted of murder and sentenced to 40 years in jail after shooting a neighbor over a dispute about the neighbor's noisy party. Rodriquez had claimed self-defense justification for the killing.  That prior post can be found here: Retrial Begins for Firefighter Who Selfied “Stand-Your-Ground” That re-trial ended yesterday with the jury returning a verdict of guilty of murder after three hours of deliberation, reports the Houston Chronicle. Rodriquez first murder conviction in this case was overturned because of a somewhat subtle error in the jury instructions on self-defense, as covered in some detail in a post last December, New Trial for Man Who Video Recorded Own “Self-Defense” Shooting.   No one knew, of course, whether the mistaken jury instruction had led the first jury astray and resulted in an improper guilty verdict, but a defendant is entitled to correct jury instructions and so a re-trial was ordered on appeal. This second conviction seems completely unrelated to the concerns surrounding the first--an issue of the timing of when Rodriquez may have openly displayed his concealed carry pistol--but instead focuses strictly on the issue of provocation.
"This case is about provocation, pure and simple," prosecutor Kelli Johnson told jurors in closing arguments earlier in the day. "The law doesn't allow you to create a situation and then claim self-defense."

Posted by Andrew Branca on November 20, 2015 9 Comments
NOTE: This post has one correction and one clarification, as noted below. One of Florida's more interesting laws is the so-called "10-20-Life" statute, properly cited as §775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.  In a nutshell, §775.087 provides, among other things, for mandatory minimum sentences for the possession or use of a firearm while committing one of several enumerated violent crimes.  It appears likely now that some substantial changes will be made to §775.087, particularly in the context of self-defense, on the basis of a bill moving through the Florida Senate.  (The PDF of the proposed revised bill, currently named SB 228, is embedded at the bottom of this post.) §775.087 has, of course, long been a target for groups who oppose mandatory minimum sentencing as a matter of policy.  More interestingly, it has also become a target for the self-defense advocacy community, who believe the statute has been used inappropriately against people who were merely acting in self-defense. In effect, the statute lists 18 various crimes, and then establishes mandatory minimum sentences if a person convicted of one of those crimes was either in possession of or discharged a firearm while committing the underlying crime:

§775.087(2)(a)(1): Possession of firearm = 10 year mandatory minimum.

§775.087(2)(a)(2): Discharge of firearm = 20 year mandatory minimum.

§775.087(2)(a)(3): Discharge causing death or great bodily harm = 25 to life mandatory minimum.

Note that each of those mandatory minimum sentences is to run consecutively with (on top of) sentencing for the underlying crime.  Thus it's actually possible to receive a longer sentence for the "10-20-Life" portion of the offense than for the underlying offense itself. CORRECTION: I am advised by Florida public defender (appellate division) Steven Gosney that the §778.087 mandatory minimum "bumps up" the sentence for the underlying criminal charge, it is not in addition to that underlying sentence. So an aggravated assault sentence of 5 years, in which a firearm was discharged, would under §778.087 be increased to a total of 20 years; it would not end up as a combination of 5 years for the underlying charge and an additional 20 years for §778.087.

Posted by Andrew Branca on November 18, 2015 78 Comments
I've previously written here about the Florida movie theater shooting, in which retired police officer Curtis Reeves shot and killed Chad Oulson in claimed self-defense after the two men argued about Oulson's use of his cell phone in a movie theater:

Florida Theater Shooting Induces Another Round of “Stand Your Ground” Mania (1/14/14)

“Popcorn” Shooting Trial Set For March (9/17/14)

Despite that second headline, the trial proper has not yet begun.  Last week, however, defense counsel for Reeves filed a motion seeking self-defense immunity under Florida statute §776.032, "Immunity from criminal prosecution and civil action for justifiable use of force."  That motion is embedded as a PDF at the bottom of this post. Naturally there remain factual disputes between the prosecution and the defense, and the resolution of those factual disputes will likely be dispositive on the self-defense immunity motion. Setting those factual disputes aside for the moment, however, the motion does a very nice job of laying out the relevant law of self-defense immunity.  It also provides a very clear and intuitive model for how such a motion should be structured and argued. (Nice work by defense counselors Escobar, Michaels, and Shah.)

Posted by Andrew Branca on November 17, 2015 17 Comments
A couple of months ago we posted here about the effort of Florida legislator Dennis Braxley to change Florida's self-defense immunity law: Major Change Proposed for Florida Self-defense Immunity Law.   Under the proposed change a person claiming self-defense immunity for their use of force against another could be denied that immunity only if the prosecution could disprove self-defense beyond a reasonable doubt. That effort has now failed, reports the Bradenton Herald. Current Florida law will remain in effect, requiring that a person claiming self-defense immunity bear the burden of proving self-defense by a preponderance of the evidence. That legal standard had been applied by the courts for several years, and then was explicitly affirmed by the Florida Supreme Court in a 5-2 decision this past July. That decision, Bretherick v. State, 170 So. 3d 766 (FL Supreme Court 2015), is embedded below.

Posted by Andrew Branca on November 16, 2015 32 Comments
A re-trial begins this week in Houston for retired firefighter Raul Rodriguez who was previously convicted of murder and sentenced to 40 years in jail, reports the Houston Chronicle.  Rodriquez had unsuccessfully argued self-defense at trial. The notable oddity of this case was the fact that Rodriguez had videotaped himself rather bizarrely confronting loudly partying neighbors. Rodriguez would ultimately shoot and kill one of those neighbors, Kelly Danaher. I first wrote about this case back in December of 2014, after the appellate court ruled that Rodriguez was entitled to a re-trial: "New Trial for Man Who Video Recorded Own 'Self-Defense' Shooting." The grounds for ordering a re-trial was an error in the trial judge's instructions to the jury on Texas self-defense law. As I wrote at the time:
The facts of the case are somewhat ambiguous on detail, but in general they consist of an amalgam of a loud, drunken party, long-simmering neighborhood disputes, and incredibly poor judgment on the part of a retired fire-fighter in electing to exercise his concealed carry license by bringing his pistol to a confrontation. A tragic outcome was entirely predictable.

Posted by Andrew Branca on November 06, 2015 48 Comments
I know I promised that my prior post would be my last on the thoroughly debunked "scientific" paper, "Race,law, and health: Examination of 'Stand Your Ground' and defendant convictions in Florida." The debunking took place in these posts: But then, well, THIS happened: Screen Shot 2015-11-05 at 4.33.05 PM Yep, I found two of the paper's authors in my Twitter timeline:  Melody S. Goodman and Cassandra Arroyo-Johnson, both of the Division of Public Health Sciences, Department of Surgery [!], Washington University School of Medicine.

Posted by Andrew Branca on November 05, 2015 9 Comments
This is my third (and hopefully final actually, one more coming!) post on a recently published social sciences paper: “Race, law, and health: Examination of ‘Stand Your Ground’ (SYG) and defendant convictions in Florida” (Social Science & Medicine, Volume 142, October 2015, pages 194-201; pay-walled ) The paper applied a Public Health Critical Theory Methodology to the question of whether Florida’s SYG law has a quantifiable racial bias. The key finding of the paper is that a“defendant is two times … more likely to be convicted in a case that involves White victims compared to those involving non-White victims” in the context of Florida’s SYG law. In my first post on “Race, law, and health” I debunked the paper’s key finding on the basis that the large majority of the criminal cases in their data set did not involve “Stand-Your-Ground, ” meaning the Florida statute that relieves one of a duty to retreat before acting in self-defense, and that allows a defender to “stand his or her ground.” This “Stand-Your-Ground” can be found at §776.012 and elsewhere in Florida statutes. See: “New ‘Scientific’ Stand-Your-Ground Study Is Ignorant of the Law” In my second post, I remarked on email correspondence I’d received from the journal, Social Science & Medicine, which had published the paper. They forwarded me communication from one of the paper’s authors in which they explain that:

Posted by Andrew Branca on November 04, 2015 26 Comments
Last week here I wrote a post about a “scientific” study of Florida’s Stand-Your-Ground (SYG) law. That paper was published in the Elsevier journal “Social Science & Medicine.” The paper: “Race, law, and health: Examination of ‘Stand Your Ground’ (SYG) and defendant convictions in Florida” (Social Science & Medicine, Volume 142, October 2015, pages 194-201; pay-walled ) My post: “New “Scientific” Stand-Your-Ground Study Is Ignorant of the Law” In that paper the authors applied a Public Health Critical Theory Methodology to the question of whether Florida’s SYG law has a quantifiable racial bias. The key finding of the paper is that a “defendant is two times … more likely to be convicted in a case that involves White victims compared to those involving non-White victims” in the context of Florida’s SYG law. This finding was the result of statistical analysis conducted on a set of 204 purported SYG cases drawn from a total collection of 237 purported SYG cases collected by the Tampa Bay Times, a regional Florida newspaper.

Posted by Andrew Branca on November 02, 2015 24 Comments
I imagine we've all chuckled at the mindlessness which the New York Times provides opportunities to observe the Murray Gell-Mann amnesia effect in action. From my own perspective as an expert in use-of-force law I fail to recall a single instance in which the NYT has so much as approached factual accuracy or displayed contextual understanding in a piece on self-defense laws in general or "stand-your-ground" in particular. This morning's editorial, "More Stand Your Ground Mischief in Florida" is no exception. What has the NYT Editorial Board all in a tizzy this time is a proposed change to Florida's self-defense immunity law. We covered this proposed change in detail previously here at Legal Insurrection: "Major Change Proposed for Florida Self-defense Immunity Law."   In a nutshell, currently a person claiming self-defense immunity has the burden of proving by a preponderance of the evidence that they acted in self-defense.  The proposed modification would instead require that the State bear the burden of disproving self-defense beyond a reasonable doubt in order for self-defense immunity to be denied. Generally, these arguments would be made at a pre-trial hearing, before the trial proper itself.

Posted by Andrew Branca on October 19, 2015 61 Comments
So this happened: A group of five self-described scientists representing prestigious institutions of higher learning, including the Harvard School of Public Health, Washington University School of Medicine, and the Saint Louis University College for Public Health and Social Justice, decided to look for racism in Florida’s “Stand-Your-Ground” laws (hereafter, “SYG”). It will come to the surprise of no one , of course, that the team behind “Race, law, and health: Examination of ‘Stand Your Ground’ and defendant convictions in Florida” found what they were looking for. From their abstract (full abstract at bottom of post):
Our results depict a disturbing message: SYG legislation in Florida has a quantifiable racial bias that reveals a leniency in convictions if the victim is non-White, which provides evidence towards unequal treatment under the law.
Surprise, surprise. Well, maybe not so much of a surprise when you read how they describe their methodology for the paper -- critical race theory (emphasis added):
We frame our study using Public Health Critical Race Theory (PHCRT) Methodology. PHCRT is a conceptual framework that builds upon critical race theory and public health theories and methods to articulate how best to understand and address social and health issues to achieve social justice for marginalized groups.
Like a child who puts on red-tinted glasses and is shocked to discover the whole world is imbued with that color, these “scientists” donned their racist-tinted lab goggles and found the whole world imbued with racism.

Posted by Andrew Branca on October 11, 2015 43 Comments
Two independent reviews of the 2014 shooting of Tamir Rice have concluded that the officers responsible acted appropriately under the circumstances--a conclusion we shared with Legal Insurrection readers four months ago.

The Narrative:

Back in November 2014 Cleveland police officer Timothy Loehmann (who is white) shot and killed Tamir Rice, a black 12-year-old, in a city park. [caption id="attachment_145642" align="alignnone" width="640"]tamir-rice-326e772c09b920c4 Tamir Rice: 12 years old, 5' 7" tall, 195 lbs[/caption] Sounds pretty bad, right?

The Reality:

Loehmann confronted Rice--who stood 5' 7" tall and whose 195 pounds is the weight of an average adult male--because of 911 calls reporting that Rice was walking around the park pointing a gun at pedestrians. When police pulled up to Rice in their patrol vehicle, Rice reached for the gun--later determined to be a non-deadly pellet gun with its orange "non-gun" markings removed--in his waistband.
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