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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 September 15, 2015 42 Comments
Florida State Representative Dennis Braxley, often referred to as the father of the state's Stand-Your-Ground law, filed a bill HB 169 that would profoundly alter the effects of Florida's self-defense immunity law, reports the Orlando Sentinel. (The bill is embedded at the bottom of this post.) As this is only proposed legislation at this point I would normally let it go given my workload, but I'm already seeing so much misinformation about this bill being spread thick over the internet that I feel obliged to set a reality stake in place.

First, "Stand-Your-Ground" ≠ Self-Defense Immunity

Before we even begin, please note that "Stand-Your-Ground" and self-defense immunity are two entirely different legal concepts, and conflating the two merely demonstrates an ignorance of the law.  "Stand-Your-Ground" has to do with whether a defender has a legal duty to retreat before using force in self-defense, period. Self-defense immunity has to do with whether a defendant can qualify as immune from prosecution, regardless of whether retreat is an issue in the case. Two. Different. Legal. Concepts. That out of the way, let's proceed.

Posted by Andrew Branca on September 10, 2015 77 Comments
Just minutes ago Baltimore Circuit Court Judge Barry Williams denied the defense motion brought on behalf of the six police officers charged int the death of Freddie Gray to have their trials held outside the city of Baltimore, reports CBS Baltimore and other news sources. https://twitter.com/Morgan_SGJCDNR/status/641995846716928000 The officers' lawyers had argued that it would be impossible to select an unbiased jury in the city, because jurors would be very much aware that anything but a guilty verdict could lead to a resurgence of the riots and looting that occurred last April following Gray's serious injury while in police custody.

Posted by Andrew Branca on September 03, 2015 60 Comments
Yesterday Judge Barry Williams made several important rulings on the Freddie Gray case, in which six Baltimore police officers have been charged with various felonies in the death of the arrested drug suspect, reports the Baltimore Sun. Key among these are that each of the officers will receive a separate trial, and that Prosecutor Marilyn Mosby will not be forced to recuse herself from the proceedings. Left unanswered until a successive hearing next week is whether the trials will be held in Baltimore, where the alleged crimes occurred, or outside the city where defense lawyers argue a less tainted jury pool is available. These rulings strike me as being consistent with reasonable due process as well as political decision-making. The six officers charged were each involved in some, but not all, of the activities around Gray's arrest and later apparent injury while being transported in the police vehicle. This is reflected in the differing charges against each of them. As a result, the evidence relevant and admissible in one officer's prosecution might well not be either in another officer's prosecution. Expecting a jury to keep all this straight in a simultaneous trial of six defendants would be unrealistic, to say the least. Indeed, I very much expect the press and the general public will find doing so all but impossible. (I anticipate we'll be seeing a lot of bad legal analysis as a result.) To refresh our recollection, here's a table listing the six defendants, the charges against them, and their defense counsel. This might well prove a handy reference moving forward:

Posted by Andrew Branca on July 29, 2015 304 Comments
On July 19, just 10 days ago, UC police officer Ray Tensing shot and killed motorist Sam DuBose in the course of a traffic stop, according to reports by CNN and others. Today, prosecutor Joe Deters announced that Officer Tensing had been indicted for murder in the killing. The silver lining for bloggers everywhere is that much of the event was captured by Officer Tensing's body-cam. You can watch the full video here, but I have relevant portions reproduced in slow-motion and relevant screen captures below, as well. Officer Tensing claims that he shot DuBose because the driver began dragging the officer with his car. Certainly, dragging someone with your car is conduct likely to cause death or grave bodily harm, and thus warrants the use of deadly force in self-defense.

Posted by Andrew Branca on July 24, 2015 180 Comments
So there's another notable arrest in the news, that of black woman Sandra Bland by white Texas patrol officer, and thus we have yet another "teachable moment" in non-compliance to lawful police orders. (Note that I address here only Bland's arrest--I've no particular insight into her death three days later while in custody.  Also, I limit my points to the issue of legality, as opposed to procedure or policy.) Thanks to the officer's dash-cam, almost all of the interaction between him and Bland is captured on video.  If you haven't seen it, here it is: Now that is a free lesson in how not to act during a traffic stop if you don't want to get yourself arrested. As usual, there's a considerable amount of outrage being expressed by people who possess a very limited practical and theoretical understanding of the laws and dynamics governing arrest.

Posted by Andrew Branca on July 15, 2015 42 Comments
Dr. John R. Lott Jr., who runs the Crime Prevention Research Center (CPRC), today released yet another of the Center's outstanding reports, entitled: "Concealed Carry Permit Holders Across the US". (The full report is embedded at the bottom of this post.) The report's biggest takeaway was the continued acceleration of concealed carry licensing across the country. Those familiar with Dr. Lott's seminal book "More Guns Less Crime" will not be surprised to learn that murder rates in the United States continue to plummet even as concealed carry continues to skyrocket: murder rates v. CC The report revealed a change in demographics behind this ongoing acceleration of concealed carry licensing.

Posted by Andrew Branca on July 14, 2015 18 Comments
It’s hard to believe, but this week marks the two-year anniversary of the acquittal of George Zimmerman, on trial for second degree murder and other charges in the killing of Trayvon Martin. You can read more about it at Unexpected thanks to Legal Insurrection on 2nd Anniversary of Zimmerman Acquittal. It is timely, then, that just last week the Florida Supreme Court handed down a major decision on the state's self-defense immunity law, § 776.032 Immunity from criminal prosecution and civil action for justifiable use of force, in the case of Bretherick v. State, 2015 Fla. LEXIS 1470 (FL Supreme Court 2015). Florida's self-defense immunity statute was passed by the legislature and signed by the Governor without containing any indication as to how it should be implemented by the courts; before Bretherick, it was not clear which party was meant to bear the burden of proof with regards to requests for self-defense immunity. Now, because of this ruling, we know that it is the defendant who bears the burden of proof (by a preponderance of the evidence) at the pretrial evidentiary hearing. Indeed, Bretherick is not the first time the Florida Supreme Court has had to tackle self-defense immunity procedures, with their last major effort taking place five years ago in the decision of Dennis v. State, 51 So.3d 456 (FL Supreme Court 2010).

Posted by Andrew Branca on June 24, 2015 111 Comments
The Baltimore Sun newspaper has obtained a copy of the autopsy of Freddie Gray, they report, at a time when Prosecutor Marilyn Mosby is still refusing to provide that report and other purported evidence to the defense lawyers of six Baltimore police officers charged in the death of Freddie Gray.  The deadline for defense counsel to receive the report is Friday. The Sun did not release the report itself, but merely reported on its "take home" finding that Freddie Gray's neck injury was caused by a "high energy" impact to his head.  As the paper reported:
The state medical examiner's office concluded that Gray's death could not be ruled an accident, and was instead a homicide, because officers failed to follow safety procedures "through acts of omission." Though Gray was loaded into the van on his belly, the medical examiner surmised that he may have gotten to his feet and was thrown into the wall during an abrupt change in direction. He was not belted in, but his wrists and ankles were shackled, putting him "at risk for an unsupported fall during acceleration or deceleration of the van." The medical examiner compared Gray's injury to those seen in shallow-water diving incidents.
(emphasis added)

Posted by Andrew Branca on June 24, 2015 12 Comments
We last saw Attorney Alan Gura just last week, when we covered his oral arguments in front of the 9th Circuit en banc on the matter of "good cause" concealed carry requirements in California (see Full 9th Circuit hears “Good Cause” 2A Ruling and Analysis: Government’s laughable arguments in 9th Circuit 2nd Amendment case, both of which include video of the arguments as well as a rough transcript). Today, we catch up with Gura again as he enjoys a favorable Second Amendment decision from the United States Court of Appeals for the District of Columbia in the case of Dearth v. Lynch (previously, Dearth v. Holder).  (The full decision is embedded at the bottom of this post) This case has had a long and tortuous history, as noted today on Twitter by Gura himself: Alan Gura Twitter 6-23-15 Of course, the case is far from over.  Indeed, what Gura has just won after fighting for this case now for more than six years is merely the right to take the case to trial. (The original complaint was filed March 27, 2009, and is also embedded below; indeed, it more clearly sets out the basic facts than does today's ruling)

Posted by Andrew Branca on June 23, 2015 58 Comments
A trial date of October 13 has been set for the six officers charged with a plethora of felonies following the death of Freddie Gray while in police custody this past April, reports the Baltimore Sun.  The same report notes that each of the officers has pleaded not guilty, and requested a jury trial. Baltimore City Circuit Judge Barry G. Williams has been assigned to preside over the case.  Warren Alperstein, an attorney representing the city's bar association, characterized Williams as having a reputation for favoring neither the prosecution nor the defense, stating:
He is a no-nonsense, fair and practical judge who will no doubt control that courtroom, neither state- nor defense-oriented . . . He will not be persuaded by media. He will not be influenced by public sentiment. He will rule as the law will require him to do. Period. There will be no outside influences.
That would be refreshing, considering the high-profile basking in the limelight still ongoing by Baltimore State's Attorney Marilyn Mosby, who today is given a fawning profile in Vogue magazine.  The caption to her featured image in the Vogue article (photo taken by no less than Annie Liebowitz) reads "“The unrest had nothing to do with my decision to charge,” says Mosby. “I just followed where the facts led.” These facts would, presumably, be the same facts Mosby continues relentlessly to deny the public.

Posted by Andrew Branca on June 19, 2015 14 Comments
This past Tuesday, the 9th Circuit held oral arguments en banc on two consolidated Second Amendment cases, Peruta v. County of San Diego and Richards v. County of Yolo. For a bit of background on this matter, please refer to yesterday’s post, “Full 9th Circuit hears 'Good Cause' 2A Ruling,” in which we provide this relevant background as well as a discussion of the pro-Second Amendment side of the argument as presented by Attorneys Paul Clement and Alan Gura. In this post we cover the gun control side of the argument as presented by Attorneys Edward Dumont, for the State of California and San Diego County, and John Whitesides, for Yolo County. We also include the three-minute rebuttals each by Clement and Gura, thus completing the entirety of the en banc hearing. Video of the full-length en banc hearing can be viewed in here, if you’ve the inclination. Also, a full-length rough transcript of the hearing is embedded at the bottom of this post.

Posted by Andrew Branca on June 18, 2015 43 Comments
Matthew Apperson, the man who tried to shoot George Zimmerman through the head last month, has been charged today with attempted murder (FS § 782.04), shooting into an occupied vehicle (FS § 790.19), and aggravated assault with a firearm (FS § 784.021), according to CNN. These charges also make Apperson vulnerable to sentencing under Florida's 10-20-Life law (FS § 775.087), with a mandatory minimum of 20 years served consecutively with any other sentences. State Attorney Phil Archer appears confident about the charges filed, but Apperson's attorney, Michael LaFay, continues to argue that his client shot at Zimmerman in self-defense:
"Our law enforcement community and the State Attorney's Office works vigorously to ensure people may travel our busy streets, going about their business, without fear. Every resident and visitor to Seminole County deserves this freedom," said State Attorney Phil Archer. "My reaction to these charges is a pronounced shrug," Apperson's attorney Michael LaFay told CNN. "I've reviewed the charges and they don't change the facts. The prosecutors have put their heads together and tried to contemplate what could be the most serious charges, but that doesn't really change anything. This is a case of self-defense."

Posted by Andrew Branca on June 18, 2015 14 Comments
This past Tuesday, the federal 9th Circuit held oral arguments on a re-hearing en banc on two consolidated gun control cases, Peruta v. County of San Diego and Richards v. County of Yolo. Both Peruta and Richards involve a provision of California gun control law that allows county Sheriffs to deny the issuance of a concealed carry permit unless the applicant can demonstrate “good cause” for the permit—typically a showing of some extraordinary risk of danger to the applicant, rather than a mere generalized interest in self-defense. Most California county Sheriffs define “good cause” broadly, such that a mere generalized interest in self-defense is sufficient to qualify an otherwise qualified applicant for a concealed carry permit. The Sheriffs for the Counties of San Diego and Yolo, however, define “good cause” so narrowly as to effectively preclude nearly all applicants from receiving a concealed carry license. The video of the entirety of the hearing, from gavel to gavel, below.  A rough transcript of the portion of the hearing in which the appellants attorneys, Paul Clement and Alan Gura, argue for their clients’ Second Amendment rights also is embedded below.  Both do an outstanding job, but I expect that won't help much before this Circuit.

Posted by Andrew Branca on June 16, 2015 17 Comments
For anybody who loves their civil rights, the dismantling of unconstitutional gun control schemes across the United States has been a marvel to behold. Today, only a handful of states continue to substantively restrict the ability of law-abiding residents to carry concealed handguns. One of those "states" still aggressively crushing fundamental civil rights is, ironically enough, the nation's capital, the District of Columbia. Pro-gun advocates suffered a modest and rare setback yesterday, according to Hotair.com and other sources, when a federal appeals court re-instated a gun control provision that that is used to effectively deny gun permits to almost all applicants. The District has long operated under some of the most oppressive gun control laws in the country, at one point even requiring the few guns legally owned to be dismantled while within the District. (These rules were upheld in spite of the fact that DC was also one of the "murder capitals" of the country, and practically awash in illegally owned guns used by criminals.) In recent years, however, the District's gun control scheme has come under assault in the form of a pro-2nd Amendment attack led by civil rights attorney Alan Gura. Last July, as part of a suit brought by Gura, Federal Judge Frederick Scullin ordered that the District begin issuing concealed carry permits to qualified persons.

Posted by Andrew Branca on June 13, 2015 37 Comments
Prosecutors in the case of six Baltimore police officers charged in the death of Freddie Gray continue their farcical efforts to deny evidence to the officers' defense counsel, according to a report yesterday in the Baltimore Sun. The deadline for Prosecutor Marilyn Mosby's office to meet its discovery obligations to the defense is Friday, June 26, now less than two weeks away. Granted, it is possible that some discovery is still being gathered.  Other evidence, however, is explicitly available right now, such as Gray's knife, his autopsy results, and surveillance video of the scene. There seems no rational basis for delaying the sharing of such evidence with the defense for another two weeks, except that the sharing will expose that the prosecution utterly lacks the evidence needed to support the charges it has brought against the officers. Indeed, the notion that the State simply lacks the evidence to support its charges is not an unusual one.  The Baltimore Sun just ran a poll asking people that exact question:
Do you believe the Baltimore prosecutors have the evidence to support the harshest charges against the officers who interacted with Freddie Gray?
The results as of the writing of this post? Over 88% responded "No," as shown in the featured image, above. Inspires confidence, no?  No.

Posted by Andrew Branca on June 11, 2015 87 Comments
It appears that black activists in Detroit are so impressed with how Prosecutor Marilyn Mosby is doing in Baltimore that they've adopted the same strategy in Cleveland, based on reports by Cleveland.com. Exactly a week ago we provided an update on the case of Tamir Rice, a black 14-year-old who was shot and killed by Cleveland police officers responding to a man-with-a-gun call:  VIDEO: Shooting of Tamir Rice by Police Goes to Grand Jury." Residents had called 911 because Tamir was walking around a public park with an apparent gun and pointing it at people.  When police responded to the scene, Rice immediately reached for the "gun" in his waistband and was killed by police gun fire. All that happened back in November 2014, and just last week the police finally wrapped up their investigation. The conclusion?  The evidence did not warrant charges against the one officer who actually fired shots, Officer Timothy Loehmann.  Further, if there was not sufficient evidence to charge the Loehman there would certainly not be sufficient evidence to charge to second officer, Frank Garmback, who had merely driven the patrol car. This certainly seems consistent with the actual video evidence available (embedded below the fold), as covered at length in our previous post on the subject but re-embedded here for your convenience:
Indeed, the surveillance video (below the fold, and annotated by the author) clearly shows Rice openly handling an apparent pistol (seemingly spinning it on his finger cowboy-style at the 1:20 mark), placing and removing it from his waistband (e.g., at 2:00 mark), and even apparently pointing the gun-like object at passersby. There are at least 10 occasions captured by the grainy footage of the surveillance video in which Rice is openly displaying the apparent gun in some fashion.  To an actual observer at the scene, the handling of the gun would have been far more apparent. When police pulled up to his location, they say Rice immediately reached for the apparent gun in his waistband (highlighted in the photo below, and seen at the 7:27 mark in the video), and they engaged him with defensive fire.

Posted by Andrew Branca on June 11, 2015 86 Comments
So this happened last night. Sean Hannity had two guests on his show to discuss race relations. Eric Guster, a criminal defense attorney (on the left in the video below), and Pastor Marcus Mosiah Jarvis (next to Guster). Hannity was making the argument that President Obama should refrain from injecting himself into racial incidents because Obama is, according to Hannity, a "three time loser" in such situations. In illustrating this point Hannity mentions the name Trayvon Martin, and that's where the wheels come off. Defense Attorney Guster immediately interrupts Hannity to ask, incredulously, if the show host believes Zimmerman was right in shooting Trayvon. When Hannity responds, "Absolutely," we get a nice pair of flabbergasted head explosions, which Hannity counters actual knowledge of the facts and law of the case. It seems the two guests neglected to avail themselves of the totally free resource: "The Zimmerman Files: Aggregated day-by-day live coverage & analysis", or otherwise inform themselves on the case. The exchange is all in the brief video (1:17) below. (If you're somewhere where video is not immediately an option I've also transcribed the exchange below the fold, but it's faster to watch than to read.)

Posted by Andrew Branca on June 10, 2015 74 Comments
Earlier today Jane Bishkin, the attorney for Eric Casebolt, gave a brief news conference to provide context around the former police officer’s decision to resign yesterday. Here’s the video in its entirety. In the process, Bishkin very cleverly won for Casebolt everything that could be salvaged, sacrificed nothing that had not already been lost, and cut off the oxygen from a potential Ferguson-style race riot in the otherwise quiet and racially integrated Texas community of McKinney.
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