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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 June 24, 2014 28 Comments
It was with considerable astonishment that I read the following headline in an ABC news post:

Marissa Alexander, who fired warning shot at husband attacking her, likely won't see prison after Florida changes 'Stand Your Ground' law

One wonders if they had to work extra hard to get four errors into a single headline, or if it's just a talent.  I guess we'll never know, because no authorship is associated with the piece.  If I'd written this post, I'd want to be anonymous, too.  Let's take a look at the errors one at a time.

Alexander "Fired Warning Shot"

The article states:

Posted by Andrew Branca on June 20, 2014 5 Comments
Well, it's about time. Today, Florida's Governor Rick Scott finally signed the "Warning Shot" bill (HB-89) that had been passed by the state House and Senate and sent to his desk way back in early April (h/t Miguel, over at Gun Free Zone). I won't go into all the ways that this bill is NOT a "warning shot" bill, because I've already done so, here:  Florida “Warning Shot” Bill Passes Senate, Heads to Governor’s Desk. One thing that might not be clear from that earlier post is that this bill does not so much create a new statute (although it does create a small one), rather it primarily serves to amend a wide variety of Florida's existing self-defense statutes, including (note that all indented sections of this post are copied directly from the statute, hence the odd phrasing):

Amending s. 775.087 "10-20-Life," Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence, prohibiting the court from imposing certain mandatory minimum sentences if the court makes specified written findings;

Amending s. 776.012 Use of force in defense of person, applying provisions relating to the use of force in defense of persons to the threatened use of force; providing that a person who lawfully uses or threatens to use nondeadly force does not have a duty to retreat; providing that a person who lawfully uses or threatens to use deadly force does not have a duty to retreat if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be;

Amending s. 776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm, applying presumption relating to the use of deadly force to the threatened use of deadly force in the defense of a residence and similar circumstances; applying provisions relating to such use of force to the threatened use of force; removing provisions relating to one's duty to retreat before using force;

Posted by Andrew Branca on June 16, 2014 64 Comments
[Edit: The title of this post was edited to better reflect the Court's ruling.] This morning the US Supreme Court released it's ruling in Abramski v. United States--the firearm "straw purchase" gun case--in which it affirmed Abramski's convictions.  (The full-length opinion is embedded at the bottom of this post.) In reaching it's decision the majority--led by Kagan, and including Ginsburg, Breyer, Sotomayor and the necessary swing-vote, Kennedy--the Court took a very broad interpretation of the government's statutes, regulations, and even mere practice in narrowing the scope of lawful 3rd-party purchases of firearms, arriving at their conclusion less by looking at the actual statutes and regulations and more by looking at their perception of the "context" and intended "purpose" of those statutes and regulations.

Facts

The defendant in this case, Abramski, arranged to purchase a Glock 19 for his uncle, Alvarez.  Abramski had previously been a law enforcement officer, and it is common practice for law enforcement officers to be able to purchase firearms at a discount to the price generally available to the public. Although Abramski had been fired from his LEO job two years prior, he retained his police officer identification, and intended to use that ID to purchase the pistol for his uncle at a favorable price. The Uncle wrote Abramski a check for $400 with "Glock 19" written in the memo field. Two day later Abramski appeared at an FFL (a Federal Firearms Licensee, through which most gun sales are required to occur) and purchased the gun.  In the process of doing so he completed the Federally required Form 4473.  Form 4473 asks for particular personal information, and also asks the buyer to reply to a series of interrogatories. Among the questions asked was 11.a, which asks whether the purchaser is the "actual buyer" of the firearm.  Abramski answered in the affirmative--absent which the sale would not have been processed by the FFL.  He also signed an acknowledgement that a false answer to 11.a constituted a felony. Abramski's purchase cleared the NICS (National Instant Criminal Background Check System) and the FFL sold him the Glock. Abramski then deposited the check from his uncle, transferred the gun to his uncle (lawfully, using an FFL in his uncle's state, which differed from his own), and received a receipt in return.

Posted by Andrew Branca on June 11, 2014 22 Comments
Marissa Alexander was back in court today for a pre-trial hearing on whether she will be granted yet another shot at self-defense immunity under Florida statute FL 776.032: Immunity from criminal prosecution and civil action for justifiable use of force.   In what has become an all too familiar pattern in this case, however, Duval County Circuit Court Judge James Daniel decided to punt the decision further down the calendar.  Whether to allow a self-defense immunity hearing is now delayed until August 1.

The Issues Prompting Judge Daniel's Delay on Self-Defense Immunity Decision

As reported at First Coast News and other news media, Judge Daniel appears to be struggling with two issues in particular. The first is whether a defendant should ever be permitted to have multiple self-defense immunity hearings.  The concern here is that defendants will simply seek successive self-defense immunity hearings every time an earlier one goes against them, resulting in long delays in trial. On this point the defense, in the person of high-profile litigator Faith Gay, is arguing that they have new evidence--notably, the changed testimony of one of the minor children at which Alexander fired her bullet, who they say is now prepared to testify that their father charged Alexander and thus justified her use of deadly force in self-defense.  Of course, this new evidence, even if true, does nothing to change the fact that Alexander had achieved a position of safety, armed herself with a firearm, and returned to the conflict, behavior utterly inconsistent with any reasonable claim of self-defense.

Posted by Andrew Branca on June 09, 2014 2 Comments
Jacksonville news broadcaster news4jax is reporting that a September re-trial date has been set for Michael Dunn, with jury selection to begin September 22. This past February Dunn was convicted of three counts of attempted murder for shooting at an SUV carrying Jordan Davis and three companions, all black teens.  Dunn himself is a middle-aged white male. The three convictions were for firing shots at the three surviving teens as they fled.  Davis was killed by the first three rounds fired, but the jury hung on the associated charge of first degree murder. Immediately upon the jury returning this finding Florida Attorney General Angela Corey announced that she should would be re-trying Dunn on the murder charge.  The date for that re-trial was initially set for early May, but as mentioned above has now been moved to late September.

Posted by Andrew Branca on June 06, 2014 22 Comments
Well, I've finally gotten around to launching the Law of Self Defense weekly video/podcasts, and Professor Jacobson was kind enough to let me make a post about it here. This first episode I knew I'd be struggling with IT issues--and, indeed, I am--so I kept the subject matter relatively simple. This first ~23 minute post is on a pet peeve of mine, which is Stand-Your-Ground, and the many ways in which people misunderstand, misapply, and miscommunicate this relatively straightforward legal concept. Hence: "Stand-Your-Ground: What It Is, What It Isn't, and Why It's Important." I prepared both a videocast--which functions like a slide presentation, with my dulcet tones stepping the viewer through the slides--as well as a audio-only podcast--which is essentially just the audio track of the videocast. There's nothing in the slides that I don't cover verbally, but I know some folks respond better to visual information content, so there it is. The videocast is hosted on Youtube, as that seemed the most straightforward approach: The podcast will eventually be available on iTunes (and, in fact, it's kind of halfway on there, but I'm still struggling with getting that quite right). Hopefully, by next week everyone will be able to simply subscribe to the Law of Self Defense podcasts on iTunes in the normal fashion. In the meantime, for those interested in an audio-only version without having to wait for me to sort out iTunes, at present you can listen to that via this method: http://lawofselfdefense.libsyn.com/rss

Posted by Andrew Branca on June 02, 2014 37 Comments
Well, the National Rifle Association has finally decided to release a statement about what I call the "open carry IN YOUR FACE!" (henceforth "OCIYF!") crowd in Texas, and the implications for reasonable gun owners and concealed carriers. The money shot?
Let's not mince words, not only is [the open carry of long guns in public] rare, it's downright weird and certainly not a practical way to go normally about your business while being prepared to defend yourself. To those who are not acquainted with the dubious practice of using public displays of firearms as a means to draw attention to oneself or one's cause, it can be downright scary. It makes folks who might normally be perfectly open-minded about firearms feel uncomfortable and question the motives of pro-gun advocates.
Beyond weird, the NRA notes that these OCIYF!" activities are actually HARMING the interests of gun owners and those of us private citizens who carry firearms for person protection:
As a result of these hijinx, two popular fast food outlets have recently requested patrons to keep guns off the premises (more information can be found here and here). In other words, the freedom and goodwill these businesses had previously extended to gun owners has been curtailed because of the actions of an attention-hungry few who thought only of themselves and not of those who might be affected by their behavior. To state the obvious, that's counterproductive for the gun owning community.
Bottom line, anyone who carries a firearm for the primary purpose of "LOOK AT MEEEEE!," ought to seriously consider whether they've achieved the maturity necessary to responsibly carry a firearm in public. Or as the NRA puts it:

Posted by Andrew Branca on May 16, 2014 21 Comments
Well, three hours of a pre-trial hearing on whether Marissa Alexander should be permitted yet another pre-trial self-defense immunity hearing wrapped up this morning. Rather than bury the lede, here’s the bottom line. No decision. Daniel says no ruling today Daniel tells both sides Instead, Judge James Daniel elected to schedule still another pre-trial hearing on whether Marissa Alexander should be permitted yet another pre-trial self-defense immunity hearing, this one being scheduled for June 10, at 10:00AM. Daniel’s apparent uncertainty about how he would rule was apparently all but palpable in the court room. Daniel seems very uncertain On the plus side, Judge Daniel did suggest that at the June 10 meeting to decide whether to have a second self-defense immunity hearing, if the decision was in the affirmative the would likely hold that self-defense immunity hearing that same day.

Posted by Andrew Branca on May 04, 2014 36 Comments
Well, the media is still suffering from StandYourGroundPhobia., raising it in explanation of two recent killings by homeowners, that of Byron Smith in Minnesota (recently convicted and sentenced to life in prison) and Markus Kaarma in Montana. Naturally, all their scriblings truly reveal is their ongoing ignorance of what Stand-Your-Ground is (and isn't), and their perpetual obfuscation of Stand-Your-Ground with other discrete self-defense law doctrines, such as the Castle Doctrine, presumptions of reasonableness, defense of dwelling, and self-defense immunity (which they also do not understand). Indeed, some of these "journalists" have been reduced to writing euphemistically about the issue, using terms like "Stand-Your-Ground-like," in effect conceding the fuzziness of their understanding.  The latest event to spark media attention just happened in Montana, Man Who Set A Trap To Kill 17-Year-Old Intruder Invokes Stand Your Ground-Like Defense:
Seventeen-year-old Diren Dede lost his life Sunday, while in Missoula, Montana on a high school exchange program from Germany. He was shot dead at the home of Markus Kaarma, after Kaarma set a trap for intruders by intentionally leaving the garage open and placing a purse in clear view. After motion sensors detected someone in the garage, Kaarma shot Dede. And while he has since been charged with first degree murder, he is already invoking a Stand Your Ground-like defense.
KULR-8 Television, Billings, MT The first and most obvious error in attempting to apply Stand-Your-Ground to the Smith and Kaarma cases--indeed to ANY case taking place in or immediately around the defendant's home--is that Stand-Your-Ground is utterly irrelevant in that context.  Every state already has in place, by either statute or case law, the Castle Doctrine.  The Castle Doctrine eliminates any otherwise existing duty to retreat if you are in your home, or its curtilage (some states do suspend the Castle Doctrine if the person being defended against is also a lawfully present in the home). That's ALL the Castle Doctrine does--suspend an otherwise existing duty to retreat.

Posted by Andrew Branca on April 30, 2014 105 Comments
This will be a short post, and is intended to just briefly answer the question I'm often asked as to why I haven't blogged about Byron Smith. I've had the question asked hundreds of times, and I'm going to defer now to a group response, and generate a source to which I can simply direct future inquiries. Byron Smith is the Minnesota man just sentenced to life in prison without possibility of parole for the murders of 18-year-old Haile Kifer and 17-year-old Nick Brady after they broke into his house, as reported today by the Star Tribune. I never covered this case because my interest lies in cases of self-defense.  And this never looked to me like a case of self-defense. Instead, it looked to me from the start as a case of thoroughly premeditated, well-prepared ambush, followed by  unnecessary and excessive deadly force in the form of execution-style pistol rounds to the back of the head. A person fighting intruders in his home has a presumption of reasonable fear of death or great bodily harm--either based on statute or based on common sense.  There's a reason why defensive shootings of home intruders so rarely come to trial--they're simply losers from a prosecutor's point of view. That presumption, however, is subject to being rebutted, in the rare and extraordinary case that such is possible. And in the case of Byron Smith it was not merely possible, but inevitable.  There's a reason the jury deliberated only three hours before convicting him. Smith believed, correctly, that the youths would break into his home.  But instead of calling 911 when it happened, or using force in reasonable defense against a deadly-force threat, or in the defense of home when faced with an unexpected intruder, he instead prepared for their break-in . . . and for their execution. He prepared himself with a comfortable hide position, complete with snacks and water, and a book to read while he waited.  He had tarps prepared, such that when he murdered them the mess might be contained.  He shot them first with a rifle, then finished them with execution-style head shots using a pistol. If any of this sounds like reasonable self-defense or defense of dwelling to any of you, I don't suppose there's anything I could say that would change your mind. But I can assure you that it doesn't sound like reasonable self-defense or defense of dwelling to the law of self-defense. It sounds like deliberate and premeditated murder.
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