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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 February 01, 2014 11 Comments
The ongoing drama in the Michael Dunn “loud music” murder trial over whether jailhouse phone recordings should be released to the media has taken yet another turn. Yesterday the 1st District Court of Appeals once again felt compelled to step in--now for the third time--to reverse the Healey’s Wednesday ruling tossing the matter to civil court, and to demand an emergency hearing of all parties. (I haven’t yet seen yesterday’s 1st DCA ruling, so I don’t know if it literally says, “Get in our courtroom, NOW!” but I wouldn’t be the least surprised.) In addition, they’ve ordered that Healey’s immediate superior, Chief Judge Donald Mora, appoint yet another judge to hold an evidentiary hearing on whether the State’s estimated cost (~$6,300) for redaction of the recordings is reasonable, taking the matter out of Healey’s hands. (A kind interpretation of this last would be that they recognize Healey will be busy with jury selection for the start of the Dunn trial on Monday.) Some brief history of this discovery drama may provide useful context. Keep in mind, the existence of the phone recordings was known to all parties as long ago as October 2013, and the media has been demanding access to them since that time. [caption id="attachment_77430" align="alignnone" width="450"]Michael Dunn interviewed by police following "loud music" shooting of Jordan Davis Michael Dunn interviewed by police following "loud music" shooting of Jordan Davis[/caption] As we noted in our blog January 8 post on the case:

Posted by Andrew Branca on January 30, 2014 20 Comments
Florida news outlets -- including First Coast News -- are reporting  today that Marissa Alexander has had her re-trial delayed until July 28. The re-trial had been scheduled to being in March.  The delay was the result of a motion by the defense. Given that it seems most unlikely any new evidence or legal arguments will develop in that additional time, the four month delay suggests the defense may attempting to buy time to negotiate a plea agreement.  Should Alexander be retried on the same evidence as was presented at her first trial, a re-conviction seems all but unavoidable. In 2012 Alexander was convicted of three counts of aggravated assault for firing a bullet past the head of her estranged husband and his two minor children.  Under Florida's "10-20-Life" law requiring mandatory minimum sentences for the use of a gun in a crime, she was sentenced to 20 years in prison. An error in the jury instructions on self-defense at her trial won her the re-trial now delayed until July. The case of Marissa Alexander has been covered extensively here at Legal Insurrection, including in these prior posts: Sheriff’s Office Takes the Heat for Marissa Alexander Bail Kerfuffle Marissa Alexander Remains on Bail, Under Tightened Conditions

Posted by Andrew Branca on January 30, 2014 7 Comments

Judge Russell Healey, presiding over the murder trial of Michael Dunn in the shooting death of Jordan Davis, promised the parties a decision Wednesday on releasing to the media the jail house telephone recordings of Dunn. Oddly, this was a decision all sides had thought he'd...

Posted by Andrew Branca on January 29, 2014 23 Comments
Just when we thought the discovery evidence kerfuffle in Florida's "loud music" murder trial couldn't get any crazier, Circuit Judge Russell Healey has introduced another twist that denies the media access to Michael Dunn's jailhouse phone recordings. Dunn is charged with first degree murder in the shooting death of Jordan Davis, and is claiming he acted in lawful self-defense. For more background on the case, see “Loud Music” Murder Trial: Discovery Held Hostage, or Media Being Stingy? It seemed yesterday that the only remaining impasse to the media accessing the 185 hours of phone recordings was their conceding to pay the State ~$6,300 to cover the costs of redacting them, a process the State expects to take as long as 10 weeks. Dunn's trial, however, is scheduled to begin on February 3, only two working days from today. The mathematics of the dilemma was, of course, already known. Yesterday, however, Judge Healey threw another wrench into the works.  (Dunn's legal counsel has repeatedly asked for delays in the start of the trial, and in fact the trial had originally been scheduled to take place last September.) The new issue? Judge Healey essentially shrugged off responsibility for ruling on the issue at all. Instead, he said, whether the recordings should be released was really an administrative matter that ought to be decided by a civil judge. [caption id="attachment_77154" align="alignnone" width="450"]Circuit Judge Russell Healey, presiding over Florida "loud music" murder trial Circuit Judge Russell Healey, presiding over Florida "loud music" murder trial[/caption] The media intervenors, represented by Attorney Jennifer Mansfield, argued that the various orders of the 1st District Court of Appeals, which oversees Healey's court, compelled him to order the release of the recordings. Healey disagreed, arguing that a careful reading of the DCA's orders required merely that he vacate his own previous orders suppressing the recordings, not that he himself order their release. The precise language of the DCA order is worth considering:

Posted by Andrew Branca on January 25, 2014 3 Comments
In the aftermath of Shellie Zimmerman's perjury charges, the Florida Bar opened an investigation into whether George Zimmerman's lawyer Mark O'Mara may have solicited her false testimony. Shellie Zimmerman ultimately accepted a plea offer on the charges, receiving one year probation and no jail time, as reported here at Legal Insurrection: Shellie Zimmerman Plea Deal [caption id="attachment_76902" align="alignnone" width="450"]Shellie Zimmerman, with her then-husband George Zimmerman Shellie Zimmerman, with her then-husband George Zimmerman[/caption] Today, the Florida Bar concluded that there was no credible evidence that O'Mara engaged in any such misconduct. The closing of this investigation follows closely on the heels of O'Mara being named the National Trial Lawyer's Criminal Trial Lawyer of 2013, as previously reported here at Legal Insurrection: Zimmerman Attorney Mark O’Mara Named “National Criminal Trial Lawyer of 2013″ In the interview below, conducted a few days ago, O'Mara talked about how the case has affected his practice, and life:

Posted by Andrew Branca on January 23, 2014 48 Comments

Attorney Mark O'Mara is, of course, the lawyer who last summer successfully represented George Zimmerman against second degree murder charges for the shooting death of Trayvon Martin. Throughout my coverage of the trial here at Legal Insurrection I frequently noted how O'Mara's cool demeanor and outstanding...

Posted by Andrew Branca on January 18, 2014 19 Comments
The Washington Free Beacon did a wonderfully humorous job fisking a post at Gawker regarding Florida's so-called "Warning Shot" law.  I previously have explained and debunked many of the myths about the law, Florida “Warning Shot” Bill Advances. The headline of the WFB piece, written by CJ Ciaramella, captures the gist of the matter succintly:  "Gawker Got Literally Everything Wrong About Florida’s New Warning Shots Bill." In reading the Gawker  article by Adam Weinstein, one can't help but wonder if the piece wasn't the product of a bet challenging Weinstein to achieve utter perfection in getting every facet of the subject matter wrong. From the headline--"The NRA Literally Wrote Florida's New Bill to Legalize Warning Shots"--forward, about the only correct thing contained in the piece is the spelling of individual names.

Posted by Andrew Branca on January 14, 2014 109 Comments
Ever since the phrase "Stand-Your-Ground" caught the eye of journalists everywhere, it seems they simply cannot get enough of it. "Stand-Your-Ground" here, "Stand-Your-Ground" there, "Stand-Your-Ground" everywhere. The latest breakout of "Stand-Your-Ground-Mania" is now emerging around a tragic and apparently completely unnecessary shooting in a Tampa-area theater yesterday, as described in a piece from the Tampa Bay Times:  Stand Your Ground already an issue in theater shooting. I covered this a bit from a legal-tactical perspective over at my blog -- Legally-Sound Self-Defense Strategy Rule #1: KEEP OUT OF TROUBLE IN 1st PLACE -- so in the interests of saving time, I'll just copy over the factual description from that post:
Sadly, yesterday the Christian Science Monitor reports on a story where what started as the most minor of conflicts ended up with 71-year-old Curtis Reeves, a former police officer in the area who had retired 20 years ago as a Captain, shooting and killing 43-year-old Chad Oulson, a fellow movie goer. (Movie theater shooting: Did a retired cop shoot a fellow moviegoer for texting?) Both men, each accompanied by his wife, were attending the movie theater to view the just-released movie “Lone Survivor.” Naturally, before the movie itself began the audience was “treated” to s series of trailers for other upcoming movies. While these trailers were being run, Oulson was texting on his phone. Reeves, sitting behind Oulson and presumably disturbed by this activity, told Oulson to stop texting. Oulson replied that he was checking on the status of his 3-year-old daughter.

Posted by Andrew Branca on January 11, 2014 13 Comments

Based on reporting from the Florida Times-Union, it appears that Circuit Court Judge James Daniel has determined that it was the Jacksonville Sheriff's Office that is responsible for this past week's kerfuffle over the  relaxed enforcement of Marissa Alexander's home detention. In a column updated today journalist...

Posted by Andrew Branca on January 10, 2014 10 Comments

Marissa Alexander will remain free on bail, ruled Circuit Judge James Daniel, albeit under tightens rules of release to account for the fact that "mistakes were made". The State, in the form of Andrea Corey's State Prosecutors office, had filed a motion this past Monday to...

Posted by Andrew Branca on January 09, 2014 13 Comments
Marissa Alexander will learn on Friday if her current bail and home detention will be allowed to continue, or if it will be revoked, sending her back to jail until her re-trial. Alexander is currently on bail following her earlier conviction for aggravated assault with a handgun and the resulting mandatory minimum sentence of 20 years under Florida's "10-20-Life" statute.  Her defense to the charges seems to be largely based on the notion that she "only fired a warning shot," a claim we've previously shown to be disingenuous here: The Myth of Marissa Alexander’s “Warning Shot” As I’ve previously commented, Alexander never struck me as a reasonable candidate for bail, given her previous conduct while on bail (e.g., committing battery against her husband, Rico Gray, while under an order of protection to remain away from him) resulting in that earlier bail being revoked. See my previous commentary on the subject of Alexander’s bail here: Marissa Alexander’s Bail Hearing in “Warning Shot” Case Delayed To Next Week Marissa Alexander Released on Bail Nevertheless, On November 27, 2013, Circuit Judge James Daniel elected to grant Alexander bail again, albeit while noting that “the prior judge appropriately revoked the Defendant’s bond” and that “it is not this court’s customary practice to allow continued pretrial release for defendants who commit a crime while they are out on bond awaiting trial.” As part of that bail arrangement, however, Judge Daniel imposed a number of stringent conditions, including the following:

Posted by Andrew Branca on January 08, 2014 75 Comments
Few among us will soon forget the “eccentric” jurisprudence demonstrated by Judge Debra Nelson during the George Zimmerman trial. I am pleased to discover that, to the good fortune of legal bloggers everywhere, Florida apparently has a surfeit of such judges. You ask for a similarly “eccentric” Florida judge in another Florida self-defense case? I give you Judge Russell Healey in the upcoming Michael Dunn trial. Interestingly, it seems the Sunshine took several swings at the ball before seating Judge Healey to try this case, a pattern also reminiscent of the multiple judges rotated through the early days of the Zimmerman trial. The first judge assigned to the Dunn case, Judge Suzanne Bass, recused herself in May 2013 in response to a defense motion claiming several of her rulings against the defense revealed bias. You can view the defense motion for recusal by clicking here. The second judge assigned, Judge Mallory Cooper, recused herself after only 5 weeks on the case, for reasons not made clear. Judge Healey is thus the third judge—so far—to preside over the Dunn trial. [caption id="attachment_75374" align="alignnone" width="450"]Judge Russell Healey, overseeing trial of Michael Dunn Judge Russell Healey, overseeing trial of Michael Dunn[/caption] Before we get into some of Judge Healey’s more interesting jurisprudence, it may be useful to quickly summarize the case. Michael Dunn is charged with first-degree murder in the death of Jordan Davis, a 17-year-old high school student.

Posted by Andrew Branca on January 07, 2014 14 Comments
US District Court for the Northern District of Illinois yesterday handed down a stinging defeat to the City of Chicago, and it's mayor Rahm Emanuel. Despite clear Constitutional direction derived from D.C. v. Heller, and McDonald v. Chicago, the city of Chicago had insisted it possessed the power of law to deny almost all otherwise lawful purchases and transfers of guns in the city. Federal District Court Judge Edmond E. Chang, however, disagreed:
Three Chicago residents and an association of Illinois firearms dealers brought this suit against the City of Chicago (Mayor Rahm Emanuel is sued in his official capacity, which is the same as suing the City), challenging the constitutionality of City ordinances that ban virtually all sales and transfers of firearms inside the City’s limits.1 R. 80, Second Am. Compl. The ban covers federally licensed firearms dealers; even validly licensed dealers cannot sell firearms in Chicago. The ban covers gifts amongst family members; only through inheritance can someone transfer a firearm to a family member. Chicago does all this in the name of reducing gun violence. That is one of the fundamental duties of government: to protect its citizens. The stark reality facing the City each year is thousands of shooting victims and hundreds of murders committed with a gun. But on the other side of this case is another feature of government: certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm, although that acquisition right is far from absolute: there are many long-standing restrictions on who may acquire firearms (for examples, felons and the mentally ill have long been banned) and there are many restrictions on the sales of arms (forexample, licensing requirements for commercial sales). But Chicago’s ordinance goestoo far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms, and at the same time the evidence does not support that the complete ban sufficiently furthers the purposes that the ordinance tries to serve. For the specific reasons explained later in this opinion, the ordinances are declared unconstitutional.

Posted by Andrew Branca on January 06, 2014 17 Comments

Well, Marissa Alexander simply can't bring her self to abide by the orders of a court, according to a story from First Coast News (FCN), Florida. The last time she was out on bail, and under a restraining order to stay away from her estranged husband,...

Posted by Andrew Branca on January 04, 2014 49 Comments
The evening of February 27, 2008, in the Miami area, Gabriel Mobley and a friend were viciously attacked by two men. Using his licensed concealed carry pistol, Mr. Mobley successfully fought off the attack, killing both of the aggressors. He was charged with two counts of second degree murder - murder which, under Florida law, requires "malice". Mobley exercised his rights under Florida's self-defense immunity state, 776.032 Immunity from criminal prosecution and civil action for justifiable use of force, to avoid going to trial on the basis that it was more likely than not, based on the evidence, that he acted in lawful self-defense. The trial judge, Thomas Rebull, refused to dismiss the charges. He claimed that Mobley's testimony was not credible, and that Mobley's deadly force was "neither reasonable or necessary." Mobley appealed. On Thursday, the Florida appellate court hearing the matter ruled by 2-1 that the evidence supported Mobley's request for self-defense immunity. (The State prosecutors say they intend to appeal that ruling.) The appellate ruling published Thursday in support of Mobley recounted the facts of the case as follows:
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