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Law of Self Defense Tag

Posted by Andrew Branca on August 28, 2014 22 Comments
It's become so commonplace for "journalists" to be blind to obvious cause-and-effect relationships that fall outside the acceptable Progressive narrative that James Taranto of the Wall Street Journal has long used the tag-line "Fox Butterfield, Is That You?" as he notes these occurrences in his daily (and excellent) "Best of the Web" blog posts. Perhaps the quintessential such observation is "Prison populations continue to increase, even as crime rates decline,"  the implication being that this represents some kind of counter-intuitive conundrum along the lines of:  how can we be locking up more criminals if there are fewer criminals to lock up? It takes an exceptional type of intellectual obtuseness not to recognize the distinct possibility that these two events may be not only correlated but causative--put more criminals in jail, and there are fewer criminals on the street to commit crime.

Self-defense killings rise in New Orleans even as murders fall

Although always humorous, one such observation he noted yesterday particularly caught my eye as it touched upon a subject near and dear to my heart, the use of force in lawful self-defense.  Specifically, the New Orleans newspaper Times-Picayune ran a story entitled "Self-defense killings rise in New Orleans even as murders fall." It is axiomatic that if you raise the price of something, you get less of it. In New Orleans it has become increasingly likely that the price for attempting to unlawfully use deadly force against another person is the lose of the aggressor's own life--a higher cost is hard to imagine. It only makes common sense, then, that higher levels of self-defense, particularly self-defense that results in the death of the attacker, would be accompanied by a decreased incidence of unlawful killings.  For one thing, a deadly force attacker has been killed, thus substantially limiting his ability to contribute to the murder rate in the future. Second, other criminals wishing to stay alive begin to re-direct their criminal activities away from those that might involve themselves being killed. These observations are, of course, nothing new.  Dr. John Lott wrote a seminal text--"More Guns, Less Crime"--on this topic as long ago as 1998 (coincidentally, the same year I published the first edition of "The Law of Self Defense.")  Just a few weeks ago his Crime Prevention Research Center published the most recent of many such reports noting that on a national level between 1999 and 2013 (a 14-year period) murder rates have declined even as the percentage of adult Americans permitted to carry concealed handguns has sky rocketed.  (The entirety of this report is embedded at the bottom of this post.)

Posted by Andrew Branca on July 21, 2014 7 Comments
Marissa Alexander has been denied a second shot at a self-defense immunity hearing (often incorrectly referred to as a "Stand-Your-Ground' hearing), reports by First Coast News. Under Florida's self-defense immunity statute (FL 776.032 Immunity from criminal prosecution and civil action for justifiable use of force) a person claiming self-defense can seek immunity from criminal prosecution and civil suit.  To do so they generally request a hearing in court in which they present their evidence in support of self-defense. If the hearing judge determines that there is a preponderance of the evidence in support of self-defense, immunity is granted.  Given that a preponderance of the evidence is a vastly greater level of proof than the reasonable doubt required to sustain a claim of self-defense at trial, this approach only makes common sense. Alexander sought and received a self-defense immunity hearing prior to her first trial (since reversed, and she now awaits retrial). Following that hearing, her motion for self-defense immunity was denied--no surprise, as there is scant evidence in support of her claim of self-defense (and that's being exceedingly generous). When Alexander sought a second self-defense immunity hearing leading up to her re-trial, it raised a novel question under Florida law whether a second such hearing was legally required upon demand or even permitted (see Marissa Alexander’s Desperate Efforts for Self-Defense Immunity Hearing Delayed Again and Will Marissa Alexander get second shot at Self-Defense Immunity?). This past Friday the electronic court records of the case were changed to indicate that Alexander's current motion for a self-defense immunity hearing was denied, and the actual order denying the request for a second self-defense immunity hearing was released this morning.  It's embedded below, but here are the highlights:

Posted by Andrew Branca on July 13, 2014 45 Comments
The Miami Herald is reporting that the Florida Supreme court has declined to hear state prosecutor's final appeal of self-defense immunity awarded to a black Floridian who shot and killed two Hispanic men in self-defense: "State high court won’t hear appeal in Miami self-defense case" (h/t Miguel over at GunFreeZone.net). This decision by the State's highest court ends prosecutorial efforts to convict and imprison Gabriel Mobley. It also sheds some interesting light on the process for self-defense immunity in Florida. (Many states have self-defense immunity laws, but their procedures for granting immunity vary wildly from state to state.) We previously covered the Mobley case back in January right here at Legal Insurrection, "FL Appellate Court Grants Self Defense Immunity To Black Defender," noting then that:
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”.

Posted by Andrew Branca on July 05, 2014 37 Comments
One of the most common questions I get at Law of Self Defense Seminars is, “How do I pick a good self-defense lawyer if I’ve had to use force in defense of myself (or my family, my home, business, etc.)?” That’s too lengthy a topic for a forum post, but it does touch upon an interesting facet of choosing a lawyer that just came up in a Tennessee Court of Appeals case just this past April:

Just how bad a lawyer can be and still be deemed by the courts to have provided "effective counsel"?

We all have a Constitutional right to legal representation, and further we have the right that such representation be “effective.” If a lawyer is bad enough, a guilty verdict may be overturned on the basis of “ineffective assistance of counsel.” Many people, however, don’t really understand just how bad a lawyer can be, and still be deemed to have been “effective.” In the recently decided case of Hines v. State, 2014 Tenn. Crim. App. LEXIS 376 (TN Ct. App. 2014) we see that the answer is apparently, pretty darn bad.

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 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 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.

Posted by William A. Jacobson on April 29, 2014 40 Comments
Andrew Branca wrote the other day about his bet with CNN Legal Analyst Sunny Hostin, recorded on air at the Berkeley Law School Stand Your Ground debate, CNN analyst welches on bet after Andrew Branca wins “Stand-Your-Ground” Debate. The bet was over whether George Zimmerman was told not to leave his car when he was on the phone with 911 prior to the shooting of Trayvon Martin. When a panelist claimed Zimmerman was told not to leave his car, Branca offered a $100 wager that such an order never took place. CNN Legal Analyst Sunny Hostin took Branca up on the bet. It's on video: Of course, as anyone who followed the trial knows, there was no such instruction not to leave the car. The mention by the 911 operator that "we don't need you to do that" was not an order -- by the 911 operator's own testimony -- and in any event, took place after Zimmerman already had exited the car. See my long ago post, In busting Zimmerman myths, Jonathan Capehart perpetuates the greatest myth of all, in which I presented the transcript and video of trial testimony. According to Branca, Hostin has not paid the wager, even though he sent her the audio of the 911 call and has tweeted demands for payment to her. In his post yesterday, Andrew noted that there was an entry on Hostin's Wikipedia page regarding the Berkeley debate mentioning the wager and failure to pay. 

Posted by Andrew Branca on April 27, 2014 19 Comments
The past several days I've been attending the National Rifle Associations's Annual Meeting in Indianapolis, having been invited to speak at the NRA's 17th Annual Firearms Law Symposium as part of the larger gathering. The Annual Meeting is a massive event, with something on the order of 70,000 people attending, hundreds of exhibiting vendors covering more than 9 acres of exhibit space, and talks by pro-2nd Amendment Senators, Governors, and television/radio personalities. Given that context, my own little talk on Stand-Your-Ground ranks perhaps among the most modest of the Annual Meeting's constituent components. Even taken just within the context of the other Firearms Law Symposium--which included such well-known civil rights scholars as Stephen Halbrook and David Kopel, as well as Indiana Supreme Court Justice Stephen David (whose talk was particularly outstanding)--I was a small fish, indeed. Nevertheless, I've received repeated requests for video of my small talk, and I aim to please. Much of the substantive content of the talk--and, really, I talk substantively only for about 25 minutes--will be familiar to those who have previously seen my Stand-Your-Ground commentary from the pro-SYG victory at the UC Berkeley debate, from my posts here and elsewhere, or from my book and seminars. In the interests of avoiding a straight-forward droning delivery of the law, I've interlaced what humor I could into the talk, and in particular the last four minutes or so consists of the "Downfall" parody that was prepared following CNN legal analyst Sunny Hostin's refusal to honor her "Zimmerman wager" with me following the Berkeley debate, as covered at length here: CNN analyst welches on bet after Andrew Branca wins “Stand-Your-Ground” Debate.

Posted by Andrew Branca on April 26, 2014 76 Comments
This past Tuesday, April 22, I participated in a debate on Stand-Your-Ground hosted by UC Berkeley Law School. As you might expect, hilarity ensued. It turned out there were actually three sides to the debate. The two lawyers on the anti-SYG side of the issue were opposed to the debate proposition that "Florida state law may be flawed, but Stand Your Ground is a fundamentally sound policy that protects the innocent." I, of course, was on the pro-SYG side. My debate partner, a lovely woman and law professor, Andrea Roth, was nominally on my side, but in fact did not take a pro-SYG position. Her position would more accurately be described as "undecided on SYG." The way the debate was structured was we each had a 6 minute slot for opening statements. I spoke first (awesome). You can see my opening statements here (the full-length video of debate is at bottom of post): The way the debate winner was determined was by greatest change in audience opinion. The audience voted prior to the start of the debate, and again at the conclusion. The starting vote had me at 18, the anti-SYG side at 53, and the rest undecided.

Posted by William A. Jacobson on April 11, 2014 25 Comments
The Coalition to Stop Gun Violence is among the most aggressive groups in seeking to limit, if not eliminate, the 2nd Amendment right to keep and bear Arms. CSGV also attacks so-called Stand Your Ground laws through misleading accounts of what happened in the Trayvon Martin shooting by George Zimmerman.  This CSGV video released about a month after the Not Guilty verdict, received a lot of attention: The video was highly misleading as it related to the actual facts of the case.  One of the harshest critics was Andrew Branca, a contributor at Legal Insurrection and author of The Law of Self Defense. Branca, whose extensive coverage of the Zimmerman trial received national attention, wrote a blistering critique of the video, Deceptive Trayvon Martin Shooting Reenactment Video Released (emphasis added):
The video is highly deceptive, and nothing more than a continuation of the propaganda campaign about the case. Had they felt any affinity for the truth, they might have mentioned Martin’s emerging from the darkness to fell Zimmerman with a blow the neighborhood watch volunteer never saw coming, a blow that hit with such force that it broke Zimmerman’s nose, and which he described to police that same night as feeling as if he had been hit by a brick. Had they felt any affinity for the truth, they might have mentioned Zimmerman’s many and numerous injuries about the head and face, especially those caused by Martin striking Zimmerman’s head on a cement sidewalk, with any single blow capable of being the one that turned Zimmerman into a drooling vegetable or simply taking his life. Had they felt any affinity for the truth, they might have mentioned Martin’s long record of school violence, his engagement in street fighting, his apparent drug use, his apparent gun dealing, and his self-expressed desire to beat his victims until they had suffered “enough”. Had they felt any affinity for the truth, they might have mentioned Zimmerman’s long history of affectionate and communal relationship with black neighbors throughout his life, from his childhood to the present day, or indeed Zimmerman’s own mixed-race background. The Coalition to Stop Gun Violence tried for decades, under various guises and name changes, to seize the guns of law-abiding citizens. They failed. They tried to limit the right of the citizenry to carry arms for personal protection, they failed. By demanding a legal duty to retreat from a felonious attacker they weaken the position of the law-abiding armed citizen who sought no fight and strengthen the hand of the felony criminal who possessed all the power to choose when, where, and how to launch his vicious attack, robbery, or rape of his intended victim.

Posted by William A. Jacobson on April 09, 2014 66 Comments
Andrew Branca was invited by Campbell University Law School to speak on the issue for which he is best known, The Law of Self Defense. Here's part of the press release announcing the visit:
Nationally renowned self-defense expert Andrew Branca will speak at Campbell Law School next Tuesday, April 8 at noon in room 105. Branca, author of “The Law of Self Defense” will speak on how self-defense has become one of the latest hot button issues in gun law politics. He will also address North Carolina’s Castle Doctrine and Stand Your Ground laws.... One of the foremost experts in the United States in self-defense law across all 50 states, Branca’s expertise has been used by the Wall Street Journal, Chicago Tribune, NPR, and numerous other media organizations, as well as many private, state, and federal agencies. A Massachusetts-based attorney, he is an adjunct instructor of the law of self-defense at the Sig Sauer Academy in Epping, New Hampshire. He regularly lectures throughout the country on self-defense and the legal consequences thereafter. “Mr. Branca is one of the leading experts nationally on self-defense and the Second Amendment,” said Campbell Law Associate Professor of Law Greg Wallace. “We are fortunate to have him joining us, and I have no doubt that it will be an engaging experience for all in attendance.”
One self-described "Online tech fixer for progressive causes" tweeted:

Posted by Andrew Branca on February 21, 2014 51 Comments
E.J. Dionne, Jr., in his Washington Post piece entitled "Repeal stand-your-ground laws," presents us with yet another example of the utter inability of too many journalists to grasp the relatively simple and straightforward legal concept commonly referred to as "Stand-Your-Ground." Humorously, the first paragraph of his piece had me utterly convinced that Dionne must certainly be writing about Obamacare, despite the headline:
The law is supposed to solve problems, not create them. Laws should provide as much clarity as possible, not expand the realms of ambiguity and subjectivity. Laws ought to bring about the practical results their promoters claim they'll achieve.
With a lead-in like that, surely he's about to call for the repeal of the Affordable Care Act, right? Just kidding--it is, after all, the Washington Post. Instead, Dionne has decided to call for the repeal of another law about which he patently knows nothing: "Stand-Your-Ground."

Dionne's Imagined Relevance of Stand-Your-Ground to Dunn Trial

How can we identify his ignorance of the law he argues should be repealed, as well as its application (or, more accurately, its lack of application) in the Zimmerman and Dunn trials. Why, he's kind enough to show us, in his own words. First, Dionne writes of the Dunn trial:
Supporters of the law say it was technically not at issue in the case, but this overlooks the obvious role it played in the trial.
And where do we find this "obvious role" for SYG in the Dunn trial? It was mentioned in a single passing sentence--that would be ONE sentence--with no particular emphasis by defense counsel Cory Strolla in his closing argument. One mention over the course of two weeks of jury voir dire opening statements, day after day of trial, and closing arguments. One. Mention.
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