Image 01 Image 03
Sign In or RegisterLogout

Author: Andrew Branca

Profile photo

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 31, 2013 21 Comments
Federal District Court Judge William M. Skretny has found that most provisions of NY's SAFE Act--passed only one month after the Sandy Hook elementary school shooting--do not infringe the Second Amendment. He did, however, find that the provision that limits magazine capacity to only seven rounds was unconstitutional under the Second Amendment. This seemingly small win for gun owners is actually very important. Almost no semi-automatic pistols have 7-round magazines available.  Because semi-automatic pistols are the overwhelming preference for civilian self-defense--as well as for police and military use--the 7-round limit would have effectively banned the large majority of semi-automatic pistols on the market.  (Technically, one could use a large capacity magazine and only load it to 7-rounds; if, that is, one were willing to risk a felony conviction based on a police officer's honest ability to accurately count to seven. Not me, thanks.) Ironically, one of the few semi-automatic pistols for which 7-round magazines are readily available is the model 1911, which most folks not familiar with guns will know as the Colt .45 pistol of WWII fame.  Thus, this relatively lethal handgun firing the potent .45 ACP cartridge would have been granted preference over many handguns of lesser lethality. Thus the tossing of the 7-round limit saves for law-abiding citizens the vast majority of contemporary handguns for their self-defense use. Unfortunately, the remainder of the SAFE Acts egregious restrictions on the 2nd Amendment rights of law-abiding citizens were allowed to stand, including severe restrictions on so-called "assault weapons," mandatory registration which can only serve the purpose of future confiscation  of firearms possessed by law-abiding citizens (because criminals do not register their guns or otherwise obey gun laws), and so forth. The full-length judicial opinion from Judge Skretny is available below. Happy New Year! --Andrew, @LawSelfDefense

Posted by Andrew Branca on December 29, 2013 71 Comments
On December 18 a pre-trial hearing was held in the shooting case of Renisha McBride in Detroit. The purpose of the hearing was to determine whether the second degree murder charge against the defendant, Theodore Wafer, ought to be dismissed or whether there existed sufficient grounds to bind Wafer over for trial. The judge ruled the matter was to go to trial. Legal Insurrection previously posted on the Wafer/McBride case here: Analysis: Self-Defense Claim May be Legally Weak in Michigan Porch Shooting. As the title of the piece suggests, the evidence as then available seemed inadequate to support much of a claim of self-defense. In the course of the pre-trial hearing, however, the defense team called to the stand a crime scene reconstruction and firearms expert witness, David Balash. In the course of his testimony under defense questioning facts began to emerge that seem likely to form the structure of the team’s legal defense. Some of the forensic evidence remains in dispute, but for the purposes of this discussion I’ll make several likely presumptions. One of these is that Wafer was standing inside his home, looking through the closed (and perhaps locked) screen door, and McBride was on the other side of the door standing on the rather small front porch, so within two to three feet of the screen door. Finally, that the shotgun round that struck and killed McBride was fired through the screening of the door. When police arrived on the scene in response to Wafer’s 911 call, they found the screen, and its associated frame, had been knocked lose from the screen door proper, and noted the hole in the screen through which the fatal shot had likely been fired. Prior to taking crime scene photos, they replaced the screen in its proper position in the door, the position in which they assumed the screen was placed when pierced by the shot.

Posted by Andrew Branca on December 06, 2013 9 Comments
“Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench” (2013) is the most recent of Dr. John Lott Jr.’s excellent books applying economics to better understand the societal dynamics around controversial issues. Gun owners will be most familiar with his past work on the defensive uses of force by lawfully armed citizens (“More Guns, Less Crime”). In “Dumbing Down the Courts” Dr. Lott examines how political forces are increasingly driving the federal courts to be staffed by judges (and justices) who are less intellectually capable than their predecessors. In short, his hypothesis — supported by data on more than 1,500 federal court nominees — is that the smarter, more respected (by their legal peers), and more academically talented a candidate for a federal court, the longer the confirmation process and the less likely confirmation will be successful. Indeed, this reality has become so widely accepted on an anecdotal level that many of the most promising candidates for federal judgeships simply decline to accept even consideration for such an appointment. Dr. Lott uses rigorously analyzed data to move this discussion beyond mere anecdote.

Growing Stakes, Increased Left-Wing Radicalization

Being nominated and confirmed to a federal judicial appointment was not always the arduous process it is today, nor was it always geared towards rejection of the most talented candidates.

Posted by Andrew Branca on November 28, 2013 12 Comments

Marissa Alexander has been released on bail, according to widespread news reports.  The conditions of her release are stringent, although not overly so for someone who has never been a very appropriate candidate for pre-(re-)-trial release.  Alexander had been previously convicted of aggravated assault with...

Posted by Andrew Branca on November 27, 2013 58 Comments
Earlier this month, a man allegedly shot a woman through the front screen door of his porch when the woman knocked or banged on it after reportedly crashing her car nearby in suburban Detroit, Michigan.  The case has since made news headlines. I've been asked repeatedly to comment on the purported self-defense shooting by Theodore Wafer of Renisha McBride in Michigan, and now that the factual situation appears to have stabilized a bit it seems suitable fare for the Thanksgiving weekend. Most of you will know that I was a vigorous supporter of George Zimmerman's legal claim of self-defense in his shooting of Trayvon Martin. I also consider myself very much a member of the self-defense community, being an NRA instructor in personal protection (and other stuff) for ~20 years, a long-term competitor in the International Defensive Pistol Association (IDPA# 13; to provide context, membership now exceeds 20,000), and someone who arms himself as a routine matter of personal protection. That said, the facts as currently available to me, considered in the context of Michigan self-defense law, suggests that Theodore Wafer is going to have considerable difficulty in successfully advancing a claim that the shooting of Renisha McBride was in lawful self-defense. One caveat: The "facts" on which I rely are derived from the press, so as always should be taken with a grain of salt. I have, where possible, relied upon press sourced in the UK, rather than the widely discredited US press.

Michigan's Law of Self Defense

Theodore Wafer has been charged with second-degree murder, manslaughter, and possession of a firearm used in a felony, for the shooting death of Ranisha McBride. He is claiming self-defense which, if successfully argued, would require an acquittal on all charges.

Posted by Andrew Branca on November 13, 2013 15 Comments
Marissa Alexander's motion for bail was left undecided today, when the Judge responsible for the decision decided to delay further action on the matter until January 15, 2014. Alexander's attorney had made a request for bail in anticipation of her re-trial on charges of aggravated assault, using a firearm, against her estranged husband. https://twitter.com/SeniABC/status/400744956736061440 Alexander was granted a new trial early this year after her conviction for aggravated assault (with a firearm enhancement) was overturned on the grounds that the self-defense jury instructions were defective. Alexander's conviction was based on evidence that in the course of a heated argument with her estranged husband she retrieved a handgun from the garage, returned to the interior of the home, and fired a shot past his head and into the wall behind him (while his two minor children stood by his side). The bullet penetrated through the wall and sped across the next room until embedding itself in the ceiling. Some have sought to characterize the shooting as a mere "warning shot" or the "shooting of a ceiling," a characterization we've previously debunked here:  The Myth of Marissa Alexander’s “Warning Shot”. Alexander always seemed a poor candidate for bail given the prior disrespect she has shown the criminal courts. In addition to the core aggravated assault for which she was charged and convicted, Alexander also allegedly induced her estranged husband to submit false exculpatory testimony on her behalf (testimony he later retracted), repeatedly meeting with him in violation of an order of protection intended to keep her away from him and his children. She later assaulted him a second time, albeit this time without a weapon.

Posted by Andrew Branca on November 09, 2013 21 Comments
A New York City Grand Jury has indicted 11 of the motorcycle gang that participated in the attack upon the Range Rover being driven by Alexian Lien, and also occupied by his wife and child.  (I previously covered this incident over at the my Law of Self Defense blog:  VIDEO: Range Rover Deliberately Runs Over Motorcyclists–Justifiable Self-Defense?) The ~5 minute video embedded below starts about 1 minute before the first serious interaction between Range Rover, driven by Alexian Lien, and the motorcyclists, and ends in the moments before Lien is physically hauled from his vehicle by multiple assailants and badly beaten. If you’re not familiar with it, you might take a moment to view at least the first and last minutes of the video, as those are the portions of relevance to this post:

Posted by Andrew Branca on November 08, 2013 15 Comments
Last evening the Florida House conducted a public hearing, judiciary committee debate, and committee vote on HB-4003, which would have done away with Florida's Stand-Your-Ground law by repealing Florida statute 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm. The outcome was that HB-4003 was soundly defeated in committee, thereby ending the effort to repeal Stand-Your-Ground in this year's legislative session. 776.013 is a multi-part statute that contains not only the primary "Stand-Your-Ground" statute, but also presumptions of reasonable belief of fear of imminent death or grave bodily harm.  Thus, if successful, HB-4003 would not only have repealed "Stand-Your-Ground" but also have made it more difficult for law-abiding armed citizens to defend themselves in home invasion, carjacking, and kidnapping scenarios. HB-4003 was proposed by Rep. Williams, who is not a member of the judiciary committee and therefore not entitled himself to vote on the proposed bill in this setting. [caption id="attachment_70237" align="alignnone" width="407"](Florida House Rep. Alan B. Williams) (Florida House Rep. Alan B. Williams)[/caption] Not surprisingly, the proponents of HB-4003 consisted mostly of a couple of legislators citing bad statistics, isolated anecdotes, and misinformation; the parents of young black children killed in acts of violence, like Trayvon Martin; and a seemingly endless series of high school and college students who were presumably receiving course credit for appearing and pathetically mischaracterizing Stand-Your-Ground.

Posted by Andrew Branca on November 06, 2013 21 Comments
Although it had been widely reported (including right here at Legal Insurrection) that the Sanford, FL police department had banned Neighborhood Watch volunteers from being lawfully armed, Police Chief Cecil Smith now says that this policy was miscommunicated to the public. It remains true that volunteers in a more thoroughly organized form of neighborhood watch--called "Citizens on Patrol"--will be prohibited from being armed.   Readers may recall  "Citizens on Patrol" from early in the Zimmerman trial.  One of the first of the Prosecution's witnesses was Wendy Dorival, a civilian employee of the Sanford PD who acted as their liaison with local neighborhood watch programs.  She testified about her interactions with George Zimmerman in that context, describing him in glowing terms.  Indeed, so impressed was she with Zimmerman that she tried to recruit him for the more substantive "Citizens on Patrol" program.  In that program Zimmerman would have been provided with a patrol car, a uniform of sorts, and generally been as close to being a "real" policeman as he had ever hoped to become. Zimmerman declined the opportunity -- one might speculate because even then the position would have required that Zimmerman disarm himself.   So, if it was always the policy that "Citizens on Patrol" were required to be unarmed, but that the "standard" Neighborhood Watch volunteers could lawfully arm themselves, why the past few days news about these issues? I expect that the only real "miscommunication" from the Sanford Police Department has been in misunderstanding how severely negative the response would be to the notion that Neighborhood Watch volunteers would be required to leave themselves fatally vulnerable to criminal aggressors preying on their neighborhood. For those who are interested, here is Wendy Dorival's testimony from the trial:

Posted by Andrew Branca on October 30, 2013 108 Comments
Reuters reports that Sanford, Florida -- the town where George Zimmerman successfully and lawfully defended his life by shooting and killing a vicious attacker, Trayvon Martin -- has passed new rules for how neighborhood watch volunteers may conduct themselves. In particular, it forbids them from being armed with a firearm, as well as from pursuing a suspicious person. Florida city bans guns for neighborhood watch volunteers:
The Florida city where neighborhood watch leader George Zimmerman shot and killed unarmed black teenager Trayvon Martin is changing the rules on how civilian patrols can operate to help prevent a recurrence and revive the program's reputation. The new rules, to be released at a community meeting on November 5 in Sanford, Florida, will state explicitly that residents acting under the authority of neighborhood watch may not carry a firearm or pursue someone they deem suspicious.
The Reuters piece, published in the Chicago Tribune, notes that the "prosecution accused [Zimmerman] of racially profiling Martin, a high school student visiting from Miami, and then pursuing, confronting and shooting him." Nowhere in the article -- seriously, nowhere -- do they mention the vicious, life-threatening beating that Martin launched against Zimmerman without any just cause (even Martin's girlfriend, who was on the phone with him at the moment of the attack, testified that it was Martin who initiated the physical conflict). Local News 13 further reports:
Sanford's new police chief, Cecil Smith, said the neighborhood watch program as it was operated while Zimmerman was part of it was dysfunctional and had no accountability. "In this program, it is clearly stated that you will not pursue an individual," Smith explained. "In this new program, it clearly indicates that you will not carry a firearm when performing your duties as a neighborhood watch captain or participant."
I expect Sanford FL will encounter one, or both, of the following two realities in short order:

Posted by Andrew Branca on October 29, 2013 32 Comments
This morning Democratic Senator Dick Durbin of Illinois held a US Senate hearing nominally on the subject of Stand Your Ground laws. Here I'll just share an overview of the testimony, along with my own general observations. (More detailed posts will likely follow.) [caption id="attachment_69289" align="alignnone" width="450"]US Senate hearing: "Stand Your Ground: Civil rights and Public Safety Implications of the Expanded Use of Deadly Force" US Senate hearing: "Stand Your Ground: Civil rights and Public Safety Implications of the Expanded Use of Deadly Force"[/caption] My first general observation is that the anti-SYG folks were, as experience would suggest, big on emotion and small on actual facts, law, or data. One of the anti-SYG witnesses, Professor Sullivan from Harvard Law School, did raise some actual data--but when these were utterly destroyed by the later testimony of Dr. John Lott and Elliot Shapiro of CATA, Professor Sullivan was swift to discount the use of data (which he himself had introduced into the testimony) and instead focus on the "real people" behind the data. In sharp contrast, the testimony of the pro-SYG speakers was focused and direct. Second, the anti-SYG folks persistently conflated the legal concept of Stand Your Ground with utterly discrete legal concepts, such as presumptions of reasonableness and civil/criminal immunity.

Posted by Andrew Branca on October 10, 2013 25 Comments

A father in South Carolina who fired his handgun in self-defense--and in the process killing an apparent innocent bystander--has successfully argued that he is not subject to criminal or civil liability under the state's self-defense immunity law. South Carolina's self-defense immunity statute--§16-11-450. Immunity from criminal prosecution...

Posted by Andrew Branca on October 10, 2013 18 Comments
The Orlando Sentinel reports that an ad hoc Florida state Senate panel, drawn together specifically to advocate changes to Florida’s “Stand Your Ground” law, has emerged to announce that there should be changes to Florida’s “Stand Your Ground” law. The key change sought by the panel is to impose limits on the immunity from civil liability for people who lawfully defend themselves against lethal attack.  In other words, civil damage lawsuits even after an acquittal. Ironically, the changes advocated by the “Stand Your Ground” committee do not target Florida’s “Stand Your Ground” statute at all--§776.013(3). Home protection; use of deadly force; presumption of fear of death or great bodily harm—but rather seek to undermine Florida’s self-defense immunity statute—§776.032. Immunity from criminal prosecution and civil action for justifiable use of force. [caption id="attachment_58288" align="alignnone" width="446"](Defense attorney Mark O'Mara during Zimmerman trial) (Defense attorney Mark O'Mara during Zimmerman trial)[/caption] Even a cursory reading of the law reveals that the Stand Your Ground statute has nothing whatever to do with the Self-Defense Immunity statute, other than having been adopted by the same session of the Florida legislature. Indeed, the legislators have simply cloaked their desire to re-impose criminal and civil liability on law-abiding people, who act in genuine self-defense, under the guise of “fighting” Stand Your Ground. In doing so, these feckless legislators  merely reveal the duplicitous nature of their actions. Under current Florida law, an unlawful aggressor who seeks to sue their victims for harm suffered at the hands of the defending victims will be compelled to reimburse the victim if the victim's use of force is judged to have been lawful self-defense.  It is precisely this provision that keeps the lawyers advising the Trayvon Martin family from bringing suit against George Zimmerman.

Posted by Andrew Branca on October 09, 2013 18 Comments

It seems that South Park is going to roll out a parody of the events surrounding George Zimmerman’s self-defense shooting of his assailant Trayvon Martin in an upcoming episode tonight to be entitled “World War Zimmerman.” Details are scarce, but South Park put out this press...

Posted by Andrew Branca on September 27, 2013 69 Comments

Sometimes what comes around, goes around. The Washington Times is reporting that the Florida Commission on Ethics has launched an investigation of controversial State prosecutor Angela Corey over her firing of IT director Ben Kruidbos in the aftermath of the prosecutorial debacle that was the George...

Posted by Andrew Branca on September 27, 2013 36 Comments

Much of the coverage of the Marissa Alexander case (previously touched on Legal Insurrection here and here) laments that Ms. Alexander was sentenced to a statutory mandatory sentence of 20 years in prison for having "merely" fired a "warning shot".   The actual evidence of the...

Accessibility by WAH