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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 17, 2014 26 Comments
News station KPAX in Missoula MT reports that the jury today continues its deliberations on the fate of Markus Kaarma, the man being tried for murder for having shot and killed German college student Diren Dede the night of April 27, 2014. The state argues that Kaarma and his common law wife Janelle Pflager (who has not been charged) deliberately left their garage door open to entice Dede to enter, as well as leaving in the garage a purse containing documented items that could later be identified as having been stolen from Kaarma. At closing the prosecution appeared to concede that the investigation into the shooting was substantively flawed.  Their narrative of guilt also incorporated the approach of describing the 18-year-old Dede as an "unarmed child" who did not "deserve to die" for his effort to burglarize Kaarma.  As put by Missoula County Deputy Attorney Karla Painter:
Even if there was a subpar investigation, that does not give the defendant free range to execute an unarmed child.  Was [Dede] considering taking something that didn't belong to him? Probably. Did he deserve to die for his transgressions? No. Diren was violently and senselessly executed. Please tell the defendant that while we live in a state with a strong gun culture, it is not one of lawlessness, or vigilante justice. Please tell the defendant and Mr. and Mrs. Dede that Diren's life meant more than a couple of cans of beer.

Posted by Andrew Branca on December 16, 2014 23 Comments
News station KPRC in Houston is reporting through its Click2Houston web site that a Grand Jury is continuing to consider whether to indict in a local case of a off-duty Houston Police Department (HPD) officer Juventino Castro shooting and killing an unarmed black man, 26-year-old Jordan Baker. The Grand Jury began meeting last week, and Castro testified before them on December 11, but they have not as yet come to a decision. Baker was killed by Castro in front of a strip mall where a string of robberies had been reported.  Castro was off-duty and working the strip mall as a security guard at the time.  It has been reported that Castro believed Baker to be a robbery suspect. Baker's family say he was approached by Castro as Baker was riding a bike to the store, and that Baker was killed merely for "being black and wearing a hoodie."

Posted by Andrew Branca on December 10, 2014 90 Comments
The murder trial is underway of a Montana homeowner Markus Kaarma, accused of "baiting" an intruder into his garage and then shotgunning him to death has been proceeding in Missoula this past week, as reported by the Missoulian newspaper and other sources.  The defendant is arguing that the shooting was lawful self-defense. The essential facts are that a group of thieves--sometimes characterized as college students--have been raiding neighborhood garages and stealing from them, a practice referred to as "garage hopping."  Kaarma had been robbed in this fashion several times already, including one instance in which his cell phone was stolen resulting in him having an actual phone conversation with the thieves who answered when he called his own number. The prosecution argues that Kaarma and his common law wife, frustrated with the continued thefts and the inability of the police to do much about them, "baited" the garage with a purse, leaving the door slightly open.  This apparently attracted 17-year-old German exchange student Diren Dede to sneak into the garage.  Alerted to the intrusion, Kaarma approached the open garage door from the outside and fired several shotgun blasts into the garage, killing Dede.

Posted by Andrew Branca on December 03, 2014 17 Comments
Bill O'Reilly focused on the ongoing Ferguson Grand Jury kerfuffle in his opening segment last night, revealing in stark detail the contrast between the reasoned perspective of those accepting the facts and evidence presented to the Grand Jury as well as their decision and the inanity of the reason-free "Hands Up, Don't Shoot" crowd. First up was a audio recording of former NBA player Charles Barkley speaking on a radio program (2:05):
We have to be really careful with the cops, man, because if it wasn't for the cops, we'd be living in the wild-wild west in our neighborhoods.  I think we can't pick out certain incidents that don't go our way and act like the cops are all bad.  I hate when we do that. Think about it, you know how bad some of these neighborhoods would be if it wasn't for the cops?
Then was then contrasted with the ramblings of Louis Farrakhan, leader of the National of Islam (2:35):
As long as they kill us and go to Wendy's and have a burger, and go to sleep, they gonna keep killing us.  But when we die and they die [applause] they soon we are going to sit at a table, and talk about it. We're tired. We want some of this earth, or we'll tear the God-damned country up.

Posted by Andrew Branca on December 02, 2014 13 Comments
The Orlando Sentinel reported recently on an interesting self-defense law matter currently being taken up by the Florida Supreme Court. As seems inevitable, they have of course incorrectly categorized the case as centering on the state's "Stand-Your-Ground" law. In fact, the case centers on Florida's self-defense immunity statute, and not on Stand Your Ground.  (For those interested in understanding how utterly different these are from each other, take a look at my tutorial video: LOSD University Video Tutorial 003 SD Immunity and SD "Insurance".) Florida's self-defense immunity statute is §776.032. Immunity from criminal prosecution and civil action for justifiable use of force.  It provides in relevant part:
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . . As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
Statutes, of course, merely represent the stated intent of the Legislature, which does not bear the burden of actually applying them.  That task falls to the courts.  As if often the case, in the instance of §776.032 the Legislature declined (some would say "failed") to specify the precise procedures that were to be applied in determining whether a particular individual qualified for self-defense immunity.  This naturally led to months of fun for Florida's trial, appellate, and Supreme Court judges. Among the first issues that had to be settled was simply the standard of evidence to be applied to self-defense immunity, in other words how much evidence in support of self-defense was required before immunity could attach to a defendant.

Posted by Andrew Branca on November 30, 2014 55 Comments
One of the most recent of the seemingly never-ending succession of Progressive complaints about the Ferguson Grand Jury is that the Grand Jury's decision not to indict is inherently flawed because they were permitted to consider self-defense. Those professing this argument rely for support on one of their favorite variations of the classic "straw man argument":  they quote an authoritative Conservative figure in purported support of their position. In this case, they are calling upon none other than Supreme Court Justice Antonin Scalia, as in the Think Progress post: Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury. In particular, the Think Progress post states the following:
Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.

Posted by Andrew Branca on November 29, 2014 37 Comments
As a follow-up to our post yesterday, de-bunking Lawrence O'Donnell's claim that a purported error on the part of prosecutors led the Ferguson Grand Jury into error, I thought it might be informative to progress that de-bunking to an even more comprehensive level. As noted yesterday in No, Prosecution did not Mislead #Ferguson Grand Jury into Erroneous Decision, Officer Wilson had several potential legal justifications for his use of deadly force against Michael Brown.  Among these were the justification to use deadly force in making an arrest under MO statute §563.046. Law enforcement officer’s use of force in making an arrest and, alternatively, the justification to use deadly force in self defense under MO statute §563.031. Use of force in defense of persons, the state’s self-defense statute.  Both of these statutes were presented to the Grand Jury. Either one of these statutes alone is more than sufficient to justify Wilson's use of deadly force against Brown.  He did not, however, attempt to avail himself of both statutes. Wilson himself testified for more than four hours to the Grand Jury, in person and without legal counsel present.  during the entirety of that testimony he never--not once--argued that his use of deadly force against Brown was based on an effort to arrest Brown in general, nor based on his arrest powers under §563.046 in particular. To the contrary, Wilson relied explicitly and entirely on his right to use deadly force in self-defense, as allowed for by §563.031.

Posted by Andrew Branca on November 28, 2014 62 Comments
There have been many false factual narratives of the Michael Brown killing, such as "hands up, don't shoot." Now there's a new false legal narrative spreading, that a prosecutorial mistake misled the Grand Jury into erroneously failing to indict Police Officer Darren Wilson. The source of the claim appears to be MSNBC's Lawrence O’Donnell. O'Donnell, who was magnificently misleading in the Trayvon Martin case, expounds on this claim in the Ferguson case with absolute moral and intellectual certainty, as he always does. The heart of O'Donnell's claim is that a legal error in presenting the law on use of force in making an arrest early in the Grand Jury proceedings somehow led the Grand Jury astray.  O'Donnell maintains that this error could have led the Grand Jury to think it was okay to shoot Michael Brown in the back as he was running away, even though the corrected law was given to the Grand Jury prior to deliberations. There are at least two major flaws in O'Donnell's argument. First, and most important, even if O'Donnell is correct that prosecutors misstated one justification for Wilson's use of deadly force (arrest powers), these same prosecutors correctly stated an alternative and independent justification for that same use of force (self-defense). Thus, even if Wilson's arrest powers were insufficient justification for his use of deadly force, his right of self-defense was more than sufficient justification for that use of deadly force. And even O'Donnell claims no error in that instruction to the Grand Jury. Second, the justification that O'Donnell claims was read to the jury in error is entirely irrelevant, as it applies only if the suspect is shot while fleeing arrest. Here, Michael Brown suffered not a single gunshot wound to the back, nor did Wilson ever claim to have shot Brown while he was fleeing in order to affect an arrest.  Instead, Wilson claims consistently that he shot Brown in self-defense, and numerous witnesses testified and the forensic evidence supports that Wilson fired only when Brown was actively advancing towards, and not while Brown was fleeing from, Wilson. As a result the legal justification that O'Donnell claims to be in error, that of arrest powers, simply has no application to this case. Now to the video: O’Donnell’s diatribe is an almost perfect example of what is commonly referred to as a “straw man” argument.

Posted by Andrew Branca on November 28, 2014 22 Comments
The official transcript of the Ferguson Grand Jury continues to be fascinating as I chug my way past the 20% reading mark. A portion of the current eye witness testimony before me, that of Interview #4 taken on September 17 , was particularly engaging however. The reason? It shows in visceral detail some of the explicit and coordinated efforts to physically intimidate eye witnesses from speaking with law enforcement, and how genuinely frightened these efforts made those witnesses. I've reproduced the relevant section of Interview #4 below, and the entire length of that interview is embedded at the bottom of this post. (This interview did not take place before the Grand Jury itself, but rather the audio recording of the interview conducted at an earlier date was played for the Grand Jury.) There are three interviewers, whom I have labelled (as best I was able to discern from the transcript) as "Unknown," "Mr.," and "Ms.," at least one of whom is an FBI Special Agent and another of which is an attorney with the prosecutor's office.  (It is possible the "unknown" category should be assigned to some combination of "Mr." and "Ms.")  The witness is labelled as "I4."  All identities and identifying information has been redacted in the official transcript. The interview has been going on for some time when one of the persons leading the questioning interrupts the substantive discussion:

Posted by Andrew Branca on November 26, 2014 41 Comments
This post focuses on the second-half of Police Officer's testimony before the Grand Jury, during which he is responding to direct questions from both the Prosecutors present (Whirley and Alizadeh) as well as from individual Grand Jury members. This portion of the testimony also covers the relevant post-shooting events. The first half of Wilson's testimony before the Grand Jury consisted of his narrative of events, and was covered in yesterday's post here: #Ferguson Grand Jury evidence: Police Officer’s Account of Shooting. It bears mentioning again that Officer Wilson was not compelled to testify before the Grand Jury, but rather volunteered to do so.  He did so knowing he would not be permitted to be accompanied by legal counsel during his testimony. As was done in yesterday's post, below is an abridged version of the testimony, to ease reading through the material. The full-text of the testimony is embedded at the bottom of this post in the form of a PDF of the official Grand Jury transcript. One observation comes immediately to mind as I've had the opportunity to both carefully review Wilson's September 26 testimony before the Grand Jury as well as watch him recount events in his November 25 ABC News interview with George Stephanopoulos, and that is the utter consistently between the two accounts. This stands in sharp contrast to the very often wildly varying testimony of "pro-Brown" witnesses before the Grand Jury.

Posted by Andrew Branca on November 25, 2014 91 Comments
As promised, the transcripts of the Ferguson Grand Jury have been released to the public. That's the good news. The bad news is that the transcripts amount to 4,799 pages. That's not a typo: four thousand, seven hundred and ninety-nine pages. So, it's going to take a little time to work through and present in a useful form here. In this post I present the narrative of Police Officer Darren Wilson as he recounts to the Grand Jury his encounter with Mike Brown. I do so in abridged form, meaning that I've stripped out other people's statements to make the narrative more concise and easier to read. All of the text provided is, however, exactly as presented in the official transcript (baring, perhaps, an occasional typo here or there.) To make this more than a mere re-packaging of the official transcript, I suggest it might be a useful exercise as you read through Wilson's narrative to ask yourself whether it meets the required five elements of the law of self-defense. (Strictly speaking, just four of those elements apply, as there is no duty to retreat for a police officer in the performance of his duties.)  These four elements, then, are:
  • Innocence: Wilson must not have been the unlawful physical aggressor.
  • Imminence: Wilson must have been facing a threat that is either about to occur right now, or is in actual progress.
  • Proportionality: To be justified in the use of deadly force in self-defense Wilson must have been facing a threat of death or grave bodily harm.
  • Reasonableness:  Wilson's perceptions, decisions, and actions must have been those of a reasonable and prudent police officer in the same circumstances, with the same capabilities, possessing the same specialized knowledge, and under the same stresses of an existential fight.

Posted by Andrew Branca on November 24, 2014 29 Comments
As has been widely anticipated for weeks, the Ferguson MO Grand Jury has DECLINED to indict Police Officer Darren Wilson in the shooting death of black adult Michael Brown. This result has not been unexpected, as the overwhelming weight of both the eye witness and forensic evidence has been entirely consistent with Officer Wilson's narrative of self-defense, including:
  • Wilson being attacked by Brown and his accomplice Dorian Johnson in his patrol vehicle
  • a struggle over Wilson's service pistol
  • shots fired inside the vehicle (which forensic examination confirmed caused a contact gun shot wound to Brown's right hand)
  • the temporary flight of Brown upon those initial gunshots
  • the return of the 292 pound Brown re-engage the much smaller officer
  • the firing of additional defensive rounds as necessary to halt Brown's violence
In contrast, the narratives put forward that might have favored an indictment were serially changed as each was proven inconsistent with the evidence:
  • Brown was shot in the back (there are no gun shot wounds to Brown's back, and contrary to bulk of eye witness testimony)
  • Brown had his hands raised in surrender (inconsistent with forensics and bulk of eye witness testimony)
  • Brown was on his knees when Wilson simply executed him (inconsistent with forensics and bulk of eye witness testimony)

Posted by Andrew Branca on November 21, 2014 42 Comments
CNN's Anderson Cooper is reporting that police officer Darren Wilson, who shot and killed Michael Brown in Ferguson MO on August 9, is purportedly in the final stages of preparing his resignation from the Ferguson police department. Wilson, who has been in hiding for months following threats of violence against himself and his immediate family, has apparently been negotiating terms of resignation with the police department. One key factor reportedly delaying his resignation prior to this point is that he preferred to wait to resign until after the Grand Jury had completed its deliberations, fearing that his resignation would make him appear guilty in their eyes. Wilson had six years of unblemished service on the Ferguson Police Department before, the evidence overwhelmingly suggests, being viciously attacked by Michael Brown and Brown's accomplice Dorian Johnson. After Brown received a contact gun shot wound to the hand while trying to take Wilson's service pistol, Brown fled a short distance before turning to attack the officer again.  It was during this renewed attack that Wilson was compelled to re-engage Brown with gun fire, ending the attack with a fatal gun shot wound to the head. Officer Wilson has maintained throughout the investigation and Grand Jury proceedings that he has done nothing wrong.  Notably, Wilson voluntarily appeared before the Grand Jury and provided over four hours of personal testimony of the events of his fatal encounter with Brown, without legal counsel present.

Posted by Andrew Branca on November 16, 2014 22 Comments
There is much speculation around when the Ferguson Grand Jury is likely to finally release their (widely expected) no true bill (non-indictment) of Police Officer Darren Wilson over the shooting death of Mike Brown. A great many people, myself included, have suggested that the authorities responsible for the release of the Grand Jury's findings would be prudent to wait for colder weather to do so, relying on the conventional wisdom that colder temperatures tend to diminish the frequency and intensity of riots and the other violent behavior (looting, arson) exhibited by the Ferguson protestors. Legal Insurrection commenter Another Ed, however, has moved us past mere conventional wisdom on this subject by kindly linking to a scientific paper that studies precisely the correlation between riots and temperature. That paper, "Ambient Temperature and the Occurrence of Collective Violence: A new Analysis," by JM Carlsmith and CA Anderson of Stanford University, was published in the Journal of Personality and Social Psychology in 1979. It is embedded at the bottom of this post, for those of you who enjoy reading primary research scientific literature. The Carlsmith paper conducted a re-analysis of earlier research, and found that in fact rioting (or, as they more politely refer to it "collective violence," as if it were a workshop of some kind) increases "monotonically" with temperature. The results of their research and analysis?
We conclude that the likelihood of a riot in a given city increases as the maximum ambient daily temperature in that city increases.
They helpfully include a graphical representation of their findings:

Posted by Andrew Branca on November 14, 2014 23 Comments
The New York Times reports today that the Ferguson Grand Jury sitting to determine whether to indict police officer Darren Wilson over the shooting death of Mike Brown heard testimony from Dr. Michael Baden, the pathologist hired by the Brown family to examine the body. Dr. Baden gave a lengthy press interview immediately after conducting his "unofficial" autopsy a week or so after Brown was killed, as shown in the press meeting below.  I've set the video to skip the preliminary 12 minute-long introductory comments of Brown family attorney Benjamin Crump, but feel free to "rewind" if you're into that sort of thing: One of the more remarkable aspects of the events surrounding the shooting of Mike Brown by police officer Darren Wilson in Ferguson Missouri this past August is that Brown was subject to three-count 'em, THREE--autopsies. One was the official autopsy, which we posted about here: Michael Brown Autopsy A Further Blow To #Ferguson Racial Narrative. (A copy of the official autopsy can be found at that post.)

Posted by Andrew Branca on November 13, 2014 11 Comments
NBC affiliate KDSK is reporting that Ferguson Committeewoman Patricia Bynes claims she was targeted for physical intimidation by protestors while attending the protests herself. Bynes specifies "Lost Voices" as the group that sought to intimidate her, one of many protest-related organizations currently in Ferguson. Democrat Committeewoman Bynes (pictured above) is black, as are the leaders of Lost Voices interviewed for the KDSK story. Bynes described being surrounded and intimidated by Lost Voices members, and says they demanded that she stop speaking to the media about their group.
"They wanted me to stop talking to the media about them, and it was basically done to try and bully me. But it didn't work."
It sure didn't: Asked for comment, Lost Voices leader Melissa McKinnies essentially responded, "It wasn't me."
"A lot of other protestors went around her that was not members of the Lost Voices. Then some of the Lost Voices went, you know, over to speak with her."
And I'm stickin' to it:

Posted by Andrew Branca on November 13, 2014 15 Comments
Peruta v. County of San Diego (742 F. 3d 1144) was the 9th Circuit 2-to-1 ruling this past February that found unconstitutional California's "may issue" scheme to restrict the public carry of a firearm to the wealthy and politically influential. (The full-length opinion is embedded at the bottom of this post.) Specifically, the court found that:
San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.
(As an aside, I had the opportunity to meet briefly with Mr. Peruta when I spoke at the NRA's 17th Annual Firearms Law Seminar this past April, and found him quite personable.) One potential consequence of this ruling was that the losing parties could request the case to be reheard by the entire 9th Circuit panel, consisting of 11 judges.  It was generally believed that the larger panel would be much less amenable to the plaintiff's claims than was the two-judge majority in the underlying Peruta decision. (The 9th Circuit as a whole is widely referred to as "the most liberal circuit in the country.") The San Diego County defendants, however, declined to seek an en banc rehearing of the case. In an effort that can only be described as desperate, the state of California and various gun control organizations (including the moribund Brady Campaign) sought to step into the defendants' shoes by obtaining intervenor status; this would have enabled them to request the en banc hearing not sought by the actual defendants. Yesterday, however, the 9th Circuit crushed these hopes by denying them intervenor status.  This decision ends Peruta for purposes of the 9th Circuit, and thus has been perceived by many as being the final decision on the "may issue" matter in the Circuit.
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