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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 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:

Posted by Andrew Branca on May 01, 2015 54 Comments
There appears to be much rending of garments and gnashing of teeth over the claim that Freddie Gray's arrest itself was unlawful, thus tainting every aspect of subsequent police conduct, thus murder!11!11! The thinking, as near as I can understand it, is as follows:

(1) Freddie Gray did no more than merely make eye contact with police officers, and then flee. (At this point the police did not know that Gray possessed a knife, whether legal or not.)

(2) On this basis the police initiated a pursuit and stop of Gray.

(2) This police conduct fails to meet the standard of probable cause necessary for an arrest to be Constitutiona, making the arrest unlawful

(4) Even if Gray's knife is indeed unlawful it must be suppressed as evidence because it is the fruit of the tainted tree of the unlawful arrest, as the police did not know of the knife when they initiated their interaction with Gray.

(5) ????

(6) The police in custody of Gray murdered him.

Sadly, this conception of the events in this case and the conclusion drawn merely reflects a rather profound ignorance of what the Constitution permits in terms of police interaction with the public.

Posted by Andrew Branca on April 30, 2015 71 Comments
One of the most remarkable aspects of the death of Freddie Gray is how little is publicly known about the physiological cause of death, and the lack of evidence behind all the speculation. The autopsy will not be released, according to police, but will be handed over to state prosecutors. There is a report in The Washington Post that Gray tried to injure himself in the police van, but that is far from certain at this point. This naturally complicates reasoned analysis of the events, and provides fertile ground for false, politically-motivated narratives that lead to violence, rioting, looting and arson. Let's take a step back, examine the claims and narratives that have been promulgated to date, and consider whether there exists even a hypothetical scenario in which the death of Freddie Gray is the result of events not involving police malice.

Assumed for Purposes of Discussion: Gray’s Arrest Was Lawful

There is no dispute that Freddie Gray was arrested on the street by the Baltimore police department. Some claim that the arrest was committed without adequate probable cause. This is, of course, possible. Given Gray’s extensive criminal record, familiarity to local law enforcement, objectively suspicious behavior—-flight upon spotting the patrol officers—-and a police claim that he was in possession of an illegal (in Maryland), spring-assisted opening knife, it’s at least equally possible that the police had probable cause.

Posted by Andrew Branca on April 15, 2015 7 Comments
As I continue my homeward travels from the NRA Annual Meeting--yesterday was seven hours of riding in hard rain from wester North Carolina to northern Virginia, and I'm still drying out--here's another post looking back at the Annual Firearms Law Seminar. A particularly interesting Seminar talk was entitled "Gun Rights Restoration: The Nuts & Bolts and Present Day Military Issues," presented by Attorney Derek A. DeBrosse, who specializes in this area. We all agree, of course, that to the extent it's feasible to do so society should deny bad people access to firearms. (As a practical matter, of course, the feasibility of enforcing such constraints is zero, at least against any bad actor who seriously wishes to obtain possession of a gun, but that's fodder for another day.) In the United States there are certain classes of individuals who the law requires be stripped of their gun rights for some period of time, and sometimes for the remainder of their lives.

Posted by Andrew Branca on April 14, 2015 11 Comments
As I type this roughly 79,000 people are still happily recovering from their participation in the NRA Annual Meeting held this past weekend in Nashville, TN—your humble scribe among them. The massive scope of the event—three days of legal seminars, classroom instruction, political speeches, country music concert, and 9 acres (not a typo) of exhibits displaying an incredibly variety of firearms and related stuff and activities—is is obviously too great to cover in a single blog post. Accordingly, I’ll share my own view of the NRAAM 2015 through a series of relatively brief posts, focused largely within my particular area of expertise—the day-long Firearms Law Seminar held on Friday, April 10. (Full disclosure, I was a speaker at last year’s seminar, but merely an attendee at this one.) For those not familiar, the National Firearms Law Seminar is billed as providing “a unique opportunity for attorneys who represent firearms owners and firearms-related businesses to meet and discuss legal issues relevant to this expanding area of the law.” And I must say, they delivered, through a dozen talks on a variety of firearms-law related issues delivered by incredibly well-informed, experienced, and enjoyable speakers. I’ll do this first post on the talk given by Attorney Stephen Halbrook, who has for decades been a leading legal figure in gun rights legal actions, and is perhaps most commonly known for his ground-breaking book “That Every Man Be Armed: The Evolution of a Constitutional Right.”

Posted by Andrew Branca on April 08, 2015 138 Comments
Last weekend a cop shot of a fleeing unarmed black man in Charleston, SC.   Not all the facts are in, but the video (apparently captured by a cell phone) is damning; it shows the cop firing at the fleeing black man several times, finally bringing him to the ground.  There seems little indication that the fleeing man represented an imminent threat to anyone, much less the police officer. It also appears that the cop planted his Taser beside the man's body.
ABC Breaking US News | US News Videos The NY Times reports:
A white police officer in North Charleston, S.C., was charged with murder on Tuesday after a video surfaced showing him shooting in the back and killing an apparently unarmed black man while the man ran away. The officer, Michael T. Slager, 33, said he had feared for his life because the man had taken his stun gun in a scuffle after a traffic stop on Saturday. A video, however, shows the officer firing eight times as the man, Walter L. Scott, 50, fled. The North Charleston mayor announced the state charges at a news conference Tuesday evening.
Here's the full video:

Posted by Andrew Branca on April 05, 2015 18 Comments
It was Tennyson who wrote that “In the Spring a young man's fancy lightly turns to thoughts of love.” For many of us men who left “young” in the rearview mirror some years back, however, in the spring our fancy turns to something else entirely: the National Rifle Association’s Annual Meeting, this year being held in Nashville TN.  Professor Jacobson has kindly offered this blog as a forum from which I can share the legal and political observations from that event.

The NRA Annual Meeting: It's big. Really, really big.

I’m somewhat embarrassed to say that I only first attended the NRA Annual Meeting (or NRAAM) last year, when it was held in Indianapolis, although I’ve been a life member and certified firearms instructor of the NRA for more than two decades. Indeed, it would never have occurred to me to go even last year, except I was extended a gracious invitation to speak at the Firearms Law Seminar held as part of the event (you can view my talk here, I mostly talked about Stand-Your-Ground and my then-recent victory in the UC Berkeley School of Law “Stand-Your-Ground” debate). Perhaps the best known facet of the NRAAM is the enormous exhibit hall in which over 500 members of the gun industry present their wares. And I do mean enormous, there are over 8 acres of guns and related sundries. One can literally spend days wandering the hall and still come across unexpected discoveries

Posted by Andrew Branca on April 03, 2015 34 Comments
Members of the Legal Insurrection community will be familiar with the travails of Pennsylvania nurse and single-mom of two Shaneen Allen under the heel of New Jersey's unconscionable anti-Second Amendment laws, as we covered the matter here in some detail, including PA Nurse Arrested on Gun Charges Given Reprieve (9/24/14) and The Memo that let Shaneen Allen — and Chris Christie’s political future — off the hook (9/29/14). In brief, Ms. Allen was in possession of a PA-issued concealed carry permit and a handgun when she drove across the Delaware and into New Jersey.  Pulled over for a routine traffic stop, Allen volunteered to the officer that she was in possession of the handgun.  She mistakenly believed that her PA concealed carry permit, like her PA driver's license, was legally valid in both states. The New Jersey authorities quickly disabused her of that notion, charged her with illegal possession of a handgun, threatened the mother of two small children with a multiple-year mandatory jail sentence, and refused to allow her to enter a diversion program for non-violent first-time offenders (the same program into which football star and wife knock-out puncher Ray Rice would be readily admitted without hesitation just months later).

Posted by Andrew Branca on March 31, 2015 27 Comments
Is NBC up to its old—and I do mean old—tricks? Way back in the early 1990s the network’s “Dateline NBC” program ran a "news" story claiming that certain General Motors pickup trucks would explode in flames when involved in an accident. They demonstrated this propensity to their viewers by filming a controlled crash involving one of the GM trucks in question. Sure enough: kaboom! and fire! The only problem? The kabooming and fire were helped along by NBC’s surreptitious placement of incendiary devices hidden inside the vehicle. In February of 1993 the show’s hosts, Jane Pauly and Stone Phillips, would be forced to deliver a humiliating three and a half minute on-air apology to GM, as the network agreed to pay GM to settle a suit brought against NBC over the story. (LA Times: “NBC Admits It Rigged Crash, Settles GM Suit). Now claims are being made that NBC is using a similar dirty trick once again to falsely dramatize another explosive "news" story, this time on a different “news” show, the Today Show, and by a different “news" reporter, Jeff Rossen.

Posted by Andrew Branca on March 25, 2015 21 Comments
Much like the South once used local and state laws to undermine the civil rights victories of the 13th, 14th, and 15th Amendments, those seeking to undermine recent 2nd Amendment civil rights victories often do so by creating a web of complex and often unlawful regulations and limitations upon the exercise of those rights. One common ruse in many states is to illegally post signs prohibiting the lawful carry of concealed firearms into a particular location. Texas, for example, allows for the lawful posting of constraints on concealed carry rights through the use of what are referred to as "30.06 signs," but the lawful use of these signs is highly limited. Texas 30.06 sign Sadly, it has become all too common for 30.06 signs to be posted where it is unlawful to do so. Someone who lawfully carries in violation of such an unlawful posting commits no criminal offense, but the posting naturally has a chilling effect on the lawful exercise of 2nd Amendment rights.  Some of the worst of these unlawful posters have been government entities. Unfortunately, to date there has been no effective means of punishing those who unlawfully post such civil rights restrictions.  Government entities have been particularly out of reach, given their presumed sovereign immunity from legal action. It is pleasing, therefore, to see Texas move towards ending such unlawful signage, as reported at the Guns.com blog, and in a manner that gives 2nd Amendment rights real teeth and punishes violators--even governmental violators--in their wallets.

Posted by Andrew Branca on March 10, 2015 36 Comments
Only three weeks after proposing to ban perhaps the most popular ammunition for the most popular rifle in America, the Bureau of Alcohol, Tobacco, Firearms & Explosives (more commonly referred to as the ATF, and that ought to be a convenience store, not a government bureau) has abruptly backed down. Or at least it seems--it's not as if the ATF has a well-established reputation for being above-board in its dealings with law-abiding American gun owners. We covered this story when it first broke last month--see Retribution? ATF Bans Common Rifle Ammo.  Exactly one month ago (less one day) the ATF issued a "framework" document for determining whether to ban the M855 (e.g., "green tip") form of 5.56/.223 ammunition in question, stating their intended rationale for the ban (reclassifying the round as prohibited armor-piercing handgun ammunition) and initiating a 30 day comment period. (The framework in question is embedded in its entirety in that post.) M855 has been among the most popular and least costly (but I repeat myself) ammunition for recreational shooting in AR-pattern rifles for many, many years, so the ban was clearly going to cause tremendous disruption in both the consumer and producer ends of the ammunition market. At the time I was struck by the fact that this  framework proposal was handed down only two days after the ATF was humiliated by the summary judgement awarded against them in Mance v. Holder, which we covered here: Federal Court: Handgun Transfer Ban Unconstitutional.  Such petulance has, of course, become a hallmark of the Obama administration. It also wasn't hard to figure out that this move by the ATF to ban M855 ammo would profoundly energize pro-Second Amendment organizations and individuals--meaning, of course, non-Progressives. As I put it in that prior post:

Posted by Andrew Branca on March 09, 2015 26 Comments
I covered the federal court ruling in Mance v. Holder in some detail last month, and if you haven't yet had an opportunity to get up to speed on that decision it might be useful to take a moment to click over: Federal Court: Handgun Transfer Ban Unconstitutional. (That post includes the full-length ruling.) In brief, in Mance v. Holder US District Court Judge Reed O'Connor found that the federal interstate handgun transfer ban was unconstitutional on its face--specifically, the provision that requires an out-of-state handgun purchaser to transfer the handgun through several FFLs before taking possession. Most interestingly, Judge O'Connor found the requirement to be an unconstitutional infringement of the 2nd Amendment under both strict and intermediate scrutiny, as well as an unconstitutional infringement of the 5th Amendment under strict scrutiny. As observed in our earlier post on the subject:
Based on its conclusion that the federal handgun transfer ban was, both facially and as applied to the facts of this case, unconstitutional under both strict scrutiny and intermediate scrutiny, the Court granted the Plaintiff's motion for Summary Judgment (thus granting them victory without having to go to trial), and enjoined the Defendants (AG Holder and ATF(E) Director Jones) from enforcing those provisions of the federal handgun transfer ban.

Posted by Andrew Branca on March 08, 2015 94 Comments
Stop me if you've heard seen this one before: the now tiresome and wholly predictable cycle of news coverage when a white police officer shoots and kills an unarmed black teenager: Step 1: Build the false narrative. Mainstream media outlets report that a police officer has shot an unarmed black teenager, and provide extensive coverage of the victim's grieving family alongside flattering photographs and background stories of said teenager. The event is followed within hours--hours!--by well-organized protests, family spokespersons, and (naturally) lawyers (these last two typically combined). Step 2: Watch the false narrative implode.  These mainstream media reports are inevitably followed by factually correct and comprehensive reports of the victim's violent and criminal background and actions at the time of the shooting. These facts place responsibility for his death squarely on the victim's own shoulders, and make it clear that the police acted appropriately. Sounds familiar, right? In case you've not yet had enough of that cycle, allow me to introduce you to the late Tony Robinson, the "unarmed black teenager" who was shot and killed by a veteran Wisconsin police officer this past Friday evening (so, not even 48 hours prior to the writing of this post).

Step 1: Build the False Narrative

Let's take a look at  how NBC covered this shooting in a post headlined: Black Teen Tony Robinson Shot Dead by Cop in Madison, Wisconsin, Was Unarmed. First, their lede:

Posted by Andrew Branca on March 05, 2015 32 Comments
Perhaps the single most potent piece of political theatre to emerge from the Ferguson MO shooting of Mike Brown by Police Officer Darren Wilson was the meme of "Hands Up, Don't Shoot." The "Hands Up, Don't Shoot" meme was based on the false claim by Dorian Johnson that Brown had his hands raised in surrender when Wilson shot him.  A handful of other purported witnesses--none of whom were ultimately deemed sufficiently credible to warrant either criminal or civil rights charges against Wilson--soon parroted the claim. Protestors were quick to adopt the meme en masse, gesticulating with their hands above their shoulders while chanting the phrase.  Even US Congressmen speaking in the House chamber prominently mimicked the same motions: congress-members-hands-2 Indeed, there was even an amateurish movie centered on this meme, appropriately titled "The Movie: Hands Up, Don't Shoot."  Here's a taste of the movie's credulous depiction of the hilariously fabricated "witness statements" on which this false meme was based, and the manner in which the meme nevertheless dominated the public consciousness of the shooting:

Posted by Andrew Branca on March 04, 2015 27 Comments
The New York Times reports that the Department of Justice has released an extensive report (embedded below) clearing former Ferguson, Missouri police officer Darren Wilson of civil rights violations in the shooting death of Mike Brown in August 2014. Wilson's shooting of Brown led to weeks of often violent protests, including repeated nights of looting and arson. These protests, largely organized by Al Sharpton and similar racial activists, left portions of Ferguson in ruins. In November 2014 Darren Wilson received a no true bill from the grand jury empaneled to hear criminal charges against him, sparking additional riots. He shortly thereafter resigned from the Ferguson police department, and has stayed out of the news since. We covered the grand jury's findings extensively here at Legal Insurrection, including here: Analysis: #Ferguson Grand Jury: NO Indictment In Michael Brown Shooting In considering civil rights charges against Wilson the Department of Justice ultimately determined that the credible witnesses and forensic evidence overwhelmingly favored Wilson's narrative of lawful self-defense. The witnesses whose testimony favored a narrative of racist misconduct were found to be lies, inconsistent with the forensic evidence, or simply not credible relative to the witnesses favorable to Wilson's narrative. A Department of Justice investigation continues into the Ferguson police department generally, on the basis that the department has engaged in racist activity. The specific examples noted by the New York Times, however, seem only to illustrate mockery of President Obama and his wife, rather than black people generally.
A report from that investigation found a wide pattern of discrimination by the city’s police force, and said that city officials had sent racist emails on their government accounts. One depicted President Obama as a chimpanzee. Another included a photo of topless African women with the caption, “Michelle Obama’s high school reunion.”
One can't help but recall the thousands of Progressive depictions of President George W. Bush as a chimpanzee during his administration.  Not racism, I guess.

Posted by Andrew Branca on March 03, 2015 95 Comments
This "standing headline" is becoming so ubiquitous it ought to be formally recognized as an internet meme. A robbery suspect, identified in the CNN report simply as "Africa" or "Brother Africa" was being arrested by four LAPD officers yesterday in Los Angeles.  He was violently non-compliant, as evidence by the video below and by eye witness testimony.  Witness Yolanda Young told local news reporters from KTLA:
He was down, but then he jumped up, like he was juiced up, and then he started swinging at the police and they were fighting him back.
[NOTE: Video above was replaced on 3/3/315 with a version that was not "fuzzed-out," as was original video.]

Posted by Andrew Branca on February 26, 2015 71 Comments
I suppose it's to be expected that on the third anniversary of Trayvon Martin's terrible, horrible, no good, very bad victim selection day we would get to enjoy a resurgence of the many false narratives surrounding Martin's attack on George Zimmerman, Zimmerman's self-defense, the circus of Sharpton-led protests, the politically-driven prosecution, and the resulting acquittal. Back when this was all going on in real time I had the pleasure of writing several posts that gutted the worst of the memes.  It seems, then, that the most appropriate response to the re-emergence of these lies is to re-post their evidence-and law-based rebuttals. Here I'll just point to the myths I busted at length in my own posts--I'll defer on the other related nonsense, such as the ubiquitous portrayal of the 17-year-old Martin using a picture of him at age 12 (a more age-appropriate "selfie" of Martin is featured above), and the lightening of photos of George Zimmerman to place greater emphasis on the "white" rather than the "Hispanic." I don't have time to cover all of the carefully orchestrated falsehoods perpetrated by those who wished to put an innocent Zimmerman in prison for the rest of his life--there were easily dozens of these lies--but here's an afternoon's worth of enjoyable myth-busting reading.

Posted by Andrew Branca on February 25, 2015 22 Comments
The Press of Atlantic City reports that gun charges brought against a retired NJ school teacher in possession of a flintlock pistol have been dropped. (h/t @LyndaCohen) Cumberland County prosecutor Jennifer Webb-McRae announced that she will use prosecutorial discretion to decline to prosecute Gordon Van Gilder. She offered no further comment on the matter. The charge carried a potential 10-year jail sentence for the 72-year-old collector. We previously wrote about Van Gilder's collision with New Jersey's insane gun laws here: VIDEO: Retired Teacher Faces 10 Years for Flintlock Possession. Van Gilder was represented by well-known gun rights attorney Evan Nappen, who also represented Philadelphia nurse and mother of two small children, Shaneen Allen, who NJ prosecutors attempted to hit with NJ's multi-year mandatory minimum for gun possession.  Allen mistakenly believed that her Pennsylvania concealed carry permit would be valid in NJ, and admitted to possessing a handgun when she was pulled over during a routine traffic stop. It seems any time that the light of day shines on New Jersey's insane, and insanely unconstitutional, gun laws, the pols responsible for enforcing them scatter like roaches. Good for Mr. Van Gilder.  I trust he'll make good on his promise to re-locate outside of New Jersey at the earliest opportunity.
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