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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 May 18, 2015 34 Comments
Anybody remember VonDerrit Myers? That's him, on the right side of the picture above. Heck, I couldn't quite place the name, and I actually posted about his untimely demise at the hands of law enforcement way back in October 2014, shortly after the Mike Brown kerfuffle in the same St. Louis area. (See: St. Louis Shooting Victim Vonderrit Myers Tests Positive for Gunshot Residue.) VonDerrit was one of those "cops shoot unarmed black child" stories that that had cities on edge. Then his mom had to concede that her son was armed, "but only with a sandwich." It didn't take long for the lab results to come back, however, and confirm that if VonDerrit's mom was correct, then her son's sandwiches were made of fired gunpowder--because that's what they found all over his deceased hands. The police forensics report would also supplement the gun powder residue (GPR) results with three recovered 9mm bullets fired from the S&W handgun found in the deceased VonDerrit's possession. Of course the police all along had reported that they fired on VonDerrit only after he had fired his own gun at them. Fortunately, the police were more timely and accurate in their fire, and so the loss was not as great as it might otherwise have been.

Posted by Andrew Branca on May 18, 2015 32 Comments
As some of you may be aware, Attorney Alan Gura has been waging a legal battle against the District of Columbia (as well as other jurisdictions) based upon their unconstitutional infringement of the Second Amendment generally, and DC residents concealed carry rights in particular. Having already won a court decision compelling the District--and in particular, its Police Chief Cathy Lanier (pictured above)--to issue concealed carry permits to lawful, qualified residents, Gura naturally ran into the usual anti-gun rearguard position: "Sure, we'll issue permits--on terms of our own choosing. Terms that nobody except our rich friends and political comrades will ever be deemed to have satisfied." And those terms invariably require that the applicant have some special and unusual reason to be granted a concealed carry permit.  This is the kind of restriction still being employed in liberal states like New Jersey and New York, and which was being employed in California until the recent Peruta decision by the 9th Circuit. Gura responded to Lanier's demand that applications show some special reason--above and beyond simply being law-abiding Americans with civil rights--by filing a motion for an injunction with the US District Court for DC, to prohibit Lanier from imposing those special conditions. Today that Court handed down its decision on the requested motion--and Gura was the big winner, again:

Posted by Andrew Branca on May 18, 2015 93 Comments
UPDATE (5/18/15, 19:43EST): This post has been updated with additional information about Apperson's mental health (or lack thereof) as reported today by WKMG Orlando television. This WKMG report is based upon their obtaining a copy of the police report of officers who spoke with Apperson immediately after he tried to shoot George Zimmerman in the head.  The police report specifically notes:
During the investigation, I learned that Apperson has exhibited unusual behavior in which he had recently been admitted to a mental institution. It appears that Apperson has a fixation on Zimmerman and has displayed some signs of paranoia, anxiety, and bipolar disorder.
(emphasis added) Here's a video of the WKMG on-air report earlier today:
A report by WESH Orlando and other news sources states that Matthew Apperson, the man arrested last Friday for firing a .357 Magnum bullet at George Zimmerman's head a week ago, was bonded out of jail over the weekend.  Bond was reportedly set at $35,000. Apperson was formally charged this past Saturday with aggravated assault with a deadly weapon, aggravated battery with a deadly weapon and firing a deadly missile into an occupied conveyance, police said.  He is scheduled to be arraigned on the charges on June 23. As conditions of bail Apperson was ordered to turn in his firearms to police, which he reportedly did on Sunday, and to stay away from George Zimmerman. Contributing to Apperson's arrest were police observations of his "unusual behavior" and apparent "fixation" with Zimmerman immediately following the shooting.  The police report also notes Apperson as saying "I hope I got him [Zimmerman] this time."

Posted by Andrew Branca on May 15, 2015 191 Comments
UPDATE:  This post has been updated with a statement from Attorney Mark NeJame, Matthew Apperson's lawyer. It's a good thing I'm not the kind of guy to say "I told you so." :-) Matthew Apperson, the man who claims he fired a .357 Magnum bullet at George Zimmerman's head in purported self-defense, has been arrested by the Lake Mary Police Department (LMPD) following their investigation of the case. This is according to a press release from the LMPD, embedded below. (Hat tip to commenter "Amy in FL," and tweeter "@AmyA1A.") Zimmerman, you will recall, barely missed being hit by the bullet, and suffered minor injuries from shattered glass when the bullet passed through his car window. According to that LMPD press release:

Posted by Andrew Branca on May 14, 2015 80 Comments

The Daily Mail has dug up some pure gold on Matthew Apperson, the man who two days ago apparently tried to shoot George Zimmerman through the head with a .357 Magnum revolver. (Apperson appears with his wife, Liza, in the photo above.)

(As an aside, thank you, again, UK news media, for doing the reporting that US news media can't be bothered to do.)

I've previously reported on Apperson's multiple arrests, and occasional convictions, for crimes such as DUI and drug possession, but most of those had taken place about 15 years ago.  (See: Zimmerman Shooter Claims Self-Defense.)

What, one wonders, has Apperson been up to more recently?  It turns out, the Daily Mail reports, that "Apperson is also well known to police in several Florida police districts."

Posted by Andrew Branca on May 13, 2015 55 Comments
The Baltimore Sun is reporting that defense counsel for the six officers charged in the death of Freddie Gray anticipate that they will receive formal grand jury indictments within the next two weeks. At present the officers are charged in District Court, which is a lower-level court not suited to the severity of the charges (which include second-degree depraved-heart murder.)  Accordingly, it has always been anticipated that the charges would be moved to the Circuit Court, where jury trials are held, and where a probable cause hearing on those charges is already scheduled for May 27. In the usual course of events an indictment would occur before that probable cause hearing, thus the expectation that the indictments will be handed down within the next two weeks. The Grand Jury will hear evidence presented only by the prosecution, as is normally the case.  Although the defense can challenge the evidence presented by the State, it may not present any evidence of its own.  All parties therefore expect that the Grand Jury will, indeed, indict the officers.

Posted by Andrew Branca on May 13, 2015 18 Comments
OK folks, just a hit-and-run post here on the Zimmerman/Apperson kerfuffle. Commenter "Merrymary" from our previous post on this subject (George Zimmerman Attempted Shooting – New Facts Released) was kind enough to send me the audio of the third-party 911 call made after Matthew Apperson fired a shot at George Zimmerman; she also provided some police documents. (Thanks!) We, in turn, provide them to you. Here's the 911 call, or at least the brief portion released so far by the police:

Posted by Andrew Branca on May 12, 2015 44 Comments
The Orlando Sentinel is reporting that the Lake Mary Police Department has released additional information on the events surrounding Matthew Apperson's firing of a bullet at George Zimmerman's face yesterday.  Here's video of the LMPD press spokeswoman briefing the media: Additional facts now being reported by the Orlando Sentinel include: Police recovered two handguns from Apperson's car, including a Glock 22 (in .40S&W, of course) and a .357 Magnum revolver with one spent case in the cylinder. The police spokeswoman indicated that Apperson had licenses for both guns, a fact which seems odd given Apperson's prior arrests and sometimes convictions on charges ranging from drug possession to reckless driving to DUI to violation of probation (see: Zimmerman Shooter Claims Self-Defense.) Police also recovered a handgun from Zimmerman (also a Glock model unspecified), which Zimmerman's lawyer Don West indicates is habitually carried because of the great number of death threats made against Zimmerman.  Zimmerman is licensed to concealed carry a pistol in the State of Florida.

Posted by Andrew Branca on May 12, 2015 12 Comments
We first wrote about the shooting of Tony Robinson (black) by Police Officer Matt Kenny (white) way back in March of this year. Back then our angle on the story was to shine the light of reality on the increasingly popular meme of "white cop shoots unarmed young black man for no damn good reason" and noting how quickly the narrative was imploding in the case of Robinson. Today the district attorney declined to bring charges against Kenny: For the gritty details, see that prior post Analyzing Wisconsin police shooting of unarmed Black teen.  But for those of you short on time, here's a taste for how the "narrative" began wildly unwinding within a day of the police shooting of Robinson:

Posted by Andrew Branca on May 12, 2015 98 Comments
So this should be interesting: Matthew Apperson, the man who yesterday fired a bullet at George Zimmerman's head and missed, is now claiming through his lawyer, Mark NeJame, that he did so in self-defense in response to Zimmerman brandishing a gun at him. Florida news station WFTV is also reporting that Apperson has a history at least six arrests in Seminole County alone, including twice for DUI in 2000 (once found guilty of DUI, once found guilty of reduced charge of reckless driving-alcohol related), twice for drug possession in 1995 and 1998 (cannabis < 20 grams), once for trespassing, as well as being adjudicated guilty for other charges, such as driving with a revoked license. As might be expected with such a plethora of charges, Apperson is also a multiple probation violator. It will be interesting to see how Apperson will argue self-defense in court without having to testify personally, which would seem necessary absent any witnesses to support his claim that he fired at Zimmerman only when Zimmerman brandished a gun at him. Also interesting will be Apperson's explanation of how he was able to observe Zimmerman's alleged brandishing through the heavily tinted window of Zimmerman's SUV. George Zimmerman SUV bullet hole 5-11-15

Posted by Andrew Branca on May 10, 2015 120 Comments
One of the interesting facets of the charges brought in the Freddie Gray case is that even at the earliest stages it appears that Prosecutor Marilyn Mosby was running an independent investigation in parallel with that of the Baltimore Police Department. Naturally, any investigation has a lead, and so it seems worthwhile to ask who Mosby assigned to that sensitive and responsibility-burdened position for her own investigative team. This is, after all, the man who generated the evidence presumably used by Mosby in bringing her 26 charges--including second-degree depraved-heart murder and manslaughter--against six Baltimore officers associated with the death of street-level drug dealer Freddie Gray. Legal Insurrection, I introduce you to Avon Mackel. Let's roll the video tape from Anderson Cooper on CNN:

Posted by Andrew Branca on May 09, 2015 74 Comments
One week ago yesterday Maryland State Prosecutor Marilyn Mosby brought a plethora of charges--including second-degree depraved-heart murder, manslaughter, and assault--against six Baltimore police officers accused in the death of Freddie Gray. Yesterday, one week to the day after the charges were brought, the defense lawyers collectively filed a motion to dismiss these charges and/or force the recusal of Mosby and her entire office from the case.  We addressed the motion as a news item briefly last night, Freddie Gray case: Defense files motion to remove prosecutor. Now we dig deeper into the motion. The motion, consisting of just over 20 substantive pages and about 80 pages of exhibits, is embedded at the bottom of this post. The substantive pages are well worth reading in their entirety.  Here we'll highlight some of the key points and arguments made, relying as much as possible on selected quotes from the motion itself. Caveat: This is, of course, a defense motion, and thus should be expected to possess all the biases that would naturally be found in such a document from that source. Nevertheless, unless many of the claims are simply factually incorrect, the motion is a devastating critique of Mosby's legal ethics in this case in particular and the practices of her office generally.

Mosby's Public Reading of Charges, and her "Message" to the World

The motion begins by recalling Mosby's public reading of the charges against the officers on May 1, 2015.  Unusually, Mosby didn't simply make a generalized statement to the gathered media, but read the Statement of Probable Cause aloud, word-for-word.

Posted by Andrew Branca on May 08, 2015 53 Comments
CNN reports that attorneys for the six Baltimore police officers charged by Prosecutor Marilyn Mosby in the death of Freddie Gray have filed a lengthy motion in Baltimore City District Court to have Mosby removed from the case--either by her recusal or by court order. The motion--which I have not yet seen, but hope to soon--purportedly sets out at least five conflicts of interest as the basis for recusal, including:
  • Both Mosby and her husband, a Baltimore City Council member, are positioned for personal financial and political gain from the case.
  • Mosby has existing personal relationships with potential witnesses.
  • Mosby's office took the unusual step of establishing it's own investigation run parallel with that of the Baltimore Police Department, and lead by a former officer with a considerably checkered past.
  • The existence of a pending civil suit against Mosby's office (the relevance of this is unclear to me).
  • The Gray family attorney William (Bill) Murphy (in featured image, above), is a close friend, supporter, and indeed a lawyer for Marilyn Mosby; in particular, he has contributed at least $5,000 to Mosby's political campaigns.
More here, from CNN:

Posted by Andrew Branca on May 07, 2015 59 Comments
Legal Insurrection, I'd like to introduce you to Page Croyder. Page, Legal Insurrection. The most interesting thing about Ms. Croyder to my eye is that she's a retired commander and commissioned officer of the U.S. Coast Guard Reserve.  I thank you for your service, ma'am. What brings Ms. Croyder to our attention today, however, is not her military service, but her 21-year career with the Baltimore State's Attorney's Office.  That experience provides here with a rather unique perspective from which to view and evaluate the recent conduct of Maryland State's Attorney Marilyn Mosby in the matter of the death of Freddie Gray. And what Ms. Croyder sees, she does not like. Not. At. All. The Baltimore Sun has published a lengthy op-ed piece by Ms. Croyder in which she expresses her views on the Mosby prosecution of six Baltimore police officers following the death of Freddie Gray, following upon similar sentiments expressed by Ms. Croyder in her personal blog, Baltimore Criminal Justice Blogger:
The Fraternal Office of Police called Mosby’s charges an “egregious rush to judgment.” It smacks more of a calculated push to the spotlight, filing charges after a mere two weeks. She conducted her own “parallel” investigation using her police integrity unit (the only unit for which she fails to list a supervisor on her website.) She received the autopsy report the same day as her press conference announcing the charges. In her haste to step into the national limelight, she circumvented normal charging procedures by grabbing a member of the sheriff’s office to file them for her. Her actions appeared calculated for maximum surprise and effect, and she got it. But she was so hasty she drew up warrants for the wrong people. And her arrest of two of the officers for making an illegal arrest was itself "illegal." Had she taken the time to discuss it with the police department, she'd have avoided an embarrassing and unjust result.
I recommend you "read the whole thing," as the saying goes, at both the Baltimore Sun piece and Ms. Croyder's blog. https://youtu.be/v7B7IVgZdAw To prepare your cognitive palette I'll simply bullet her main points from her op-ed:

Posted by Andrew Branca on May 06, 2015 150 Comments
[NOTE: This post has been updated with a relevant statement released yesterday from Prosecutor Mosby's office, and embedded at the bottom of this post.] As Prosecutor Marilyn Mosby continues her efforts to convict six police officers of serious felonies--including depraved-heart second degree murder and multiple counts of manslaughter--in the death of Freddie Gray continue, those charges are already being subject to challenge, and looking increasingly vulnerable. The Baltimore Sun reports that the defense attorney for Edward Nero, one of the officers charged in the death of Freddie Gray, has filed a motion for an independent inspection of Gray's knife, which formed the basis for the probable cause underpinning Gray's arrest. (h/t commenter MouseTheLuckyDog) The motion is embedded at the bottom of this post.

Arrest Timeline: Charges Against Officer Nero, In Context

It is perhaps worth stepping through the timeline of Officer Nero's participation in the arrest and transport of Freddie Gray, and juxtapose that against the five criminal charges brought against him. (Note: we're recounting the timeline "facts" as reported by the New York Times.)  All events occur on April 12, 2015 8:39:12 AM Officer Nero, Lieutenant Brian Rice, and Officer Miller are on bike patrol in a high-crime/drug area of Baltimore, and spot Freddie Gray--a known convict and career street-level drug dealer--acting suspiciously. This raises the reasonable suspicion needed to justify a "Terry stop," (commonly known as stop-and-frisk), and the officers seek to do so with Freddie Gray. (For more details on a "Terry stop," see Was Freddie Gray’s Arrest Lawful? Almost Certainly.) Gray observes the officers approaching and flees their lawful stop, further establishing reasonable suspicion. The officers pursue. 8:39:52 AM Freddie's flight from the lawful Terry stop lasts only 40 seconds before the officers bring him to a halt. (Humorously, the New York Times describes the end of this flight and pursuit as Gray "surrendering to" the pursuing officers.  I guess the NYT forgot how to spell "captured by.") 8:40 AM The officers prone out Gray and handcuff him, all perfectly lawful and consistent with securing the safety of a Terry stop. Prosecutor Mosby claims that at this point Gray requested an inhaler, and was not provided one.  She does not indicate her evidence for this claim, nor whether the officers or Gray even had an inhaler in their possession that they could have offered Gray, nor whether the officers have a legal duty--or are even medically qualified--to provide medical assistance to a suspect.

Posted by Andrew Branca on May 05, 2015 218 Comments
Last Friday, while Prosecutor Mosby was announcing her poorly supported tsunami of charges against the six police officers involved in arresting and transporting the ill-fated Freddie Gray, Mosby also remarked that Gray's knife--claimed by police to be the probable cause for his arrest--was in fact lawful under Maryland law. As reported by the New York Times:

Ms. Mosby faulted the police conduct at every turn. The officers who arrested him “failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed,” she said, describing the arrest as illegal. Officers accused him of possession of a switchblade, but Ms. Mosby said, “The knife was not a switchblade and is lawful under Maryland law.

This rather perfunctory statement certainly raised my eyebrows, for several reasons.

Whether Knife Was Actually Unlawful Is Irrelevant to Probable Cause

First, whether the knife was actually lawful under Maryland law is largely irrelevant for purposes of probable cause. Probable cause is based on whether a reasonable police officer under the circumstances would have genuinely believed the knife to have been unlawful.  If so, the fact that the knife might later be determined to be lawful would certainly be cause to discontinue efforts to prosecute, but it wouldn't retroactively make the officer's conduct in making the initial arrest unlawful. When making an assessment of probable cause for an arrest, the officer is not tasked with making an absolute determination of whether the conduct in question is unlawful.  After all, that can ultimately only be done by a jury, necessarily a decision that occurs many steps downstream from the street arrest.

Posted by Andrew Branca on May 02, 2015 142 Comments
A new talking point claiming that Freddie Gray's original arrest was unlawful has arisen, propelled by the claim yesterday by Prosecutor Mosby that the knife seized from Gray by police was legal to possess in Maryland. As reported by the New York Times:

Ms. Mosby faulted the police conduct at every turn. The officers who arrested him “failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed,” she said, describing the arrest as illegal. Officers accused him of possession of a switchblade, but Ms. Mosby said, “The knife was not a switchblade and is lawful under Maryland law.

These statements are remarkably insensible coming from someone who has attained the position of state prosecutor.

Mosby Issue #1: Spring-Assisted Knives Almost Certainly ARE Illegal Under MD Law

First, it raises a question of whether Mosby is simply facially incorrect in claiming that Gray's knife is legal.  It has been described in news reports as "spring-assisted." If that description is explicitly false and there was no spring assist mechanism, then it is likely that Gray's knife was not unlawful.

Posted by Andrew Branca on May 01, 2015 183 Comments
The announcement today by Maryland state's attorney for Baltimore, Marilyn J. Mosby of numerous charges brought against the six officers purportedly involved in the death of Freddie Gray is rich in political theater and shockingly lacking in evidence of criminal malfeasance. The full press conference video is at our prior post. A solid foundation for this having been a partisan political, rather than reasoned legal, decision is laid out succinctly by the counsel for the Baltimore City Fraternal Order of Police who noted:

While I have the utmost respect for you and your office, I have very deep concerns about the many conflicts of interest presented by your office conducting an investigation in this case . . . . These conflicts include your personal and professional relationship with Gray family attorney, William Murphy and the lead prosecutor’s connections with members of the local media. . . . Most importantly, it is clear that your husband's political future will be directly impacted, for better or worse, by the outcome of your investigation. . . . In order to avoid any appearance of impropriety or a violation of the Professional Rules of Professional Responsibility, I ask that you appoint a Special Prosecutor to determine whether or not any charges should be filed.

Gray family lawyer William Murphy is reported by the Baltimore Sun newspaper to have contributed $5,000 to Prosecutor Mosby's political campaign. Prosecutor Mosby's husband, a city council member, has been prominently present at the riots, and commenting on them in a manner suggesting that the acts of violence are understandable:
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