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Law of Self Defense Tag

Posted by Andrew Branca on February 02, 2014 18 Comments
Readers of Legal Insurrection will have noted our ongoing coverage of the Florida “loud music” trial, in which the defendant Michael Dunn is charged with 1st degree murder in the shooting death of 17-year-old Jordan Davis. The general narrative of events at the scene of the killing is that both men (Davis accompanied by three friends, Dunn by his fiancé) were fueling their cars at a local gas station. Davis’ vehicle was playing music at a sound unpleasant to Dunn—and indeed, forensics photos show a massive set of speakers mounted in the rear of Davis’ SUV—and he asked them to turn the music down. The youths declined, and an escalating and increasingly hostile verbal confrontation began. Here the prosecution and defense narratives differ. The State essentially argues that Dunn was so enraged by the music that he drew his licensed pistol and shot Davis and his friends, Davis mortally. The defense argues that Davis and his friends were making explicit deadly threats against him, and he only shot at them when he reasonably perceived what appeared to be a weapon. (No weapon was actually recovered from the vehicle, although this fact is of course not dispositive in a self-defense case, so long as Dunn’s perception of a weapon was reasonable even if mistaken). [caption id="attachment_77488" align="alignnone" width="450"]Michael Dunn on trial on charges of 1st Degree murder for the shooting death of Jordan Davis Michael Dunn on trial on charges of 1st Degree murder for the shooting death of Jordan Davis[/caption]

Presiding Judge Russell Healey Becomes Center of Focus for Media Coverage of Trial

Much of the news about the trial, however, has had little to do with either the State’s case against Dunn or Dunn’s defense against the charges. Instead, rather unusually, much of the last several week’s attention has focused primarily on the Judge overseeing the case, Judge Russell Healey. One might wonder, then, who is Russell Healey in terms of judicial background, experience, and temperament?

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 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 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 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 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 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 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...

Posted by Andrew Branca on September 26, 2013 43 Comments

In May 2012, Marissa Alexander was convicted of aggravated assault for having fired a gun at her estranged husband and his two children. Under Florida's "10-20-Life" law she received the mandatory 20-year-sentence for having fired a gun in the commission of a felony. We wrote about...

Posted by William A. Jacobson on September 13, 2013 51 Comments

Andrew Branca and I gave a lecture on September 12, 2013, at Cornell Law School in an event sponsored by the Cornell 2nd Amendment Club. The topic was the George Zimmerman shooting of Trayvon Martin and subsequent trial. My segment starts at 2:45 and Andrew Branca's at...

Posted by Andrew Branca on September 08, 2013 54 Comments
This past Sunday, September 1, saw the release of a remarkable bit of security footage from a Marionville, MO liquor store. In it, store clerk (and military veteran) Jon Alexander is behind the counter when he is approached by a would-be robber -- a robber who came very close to winning the Darwin Award.

The Defensive Use of Force, as Captured on Video

The robber had initially set off Alexander’s “alarm” when he had to be told to take his cigarette out of the “no smoking” establishment. The security footage later shows the robber step up to the counter with his right-hand held close to and just behind his hip. He seems to hesitate a moment in bringing the gun up, then raises it towards Alexander. Alexander would later testify that the man demanded, “You need to give me all your money.” [caption id="attachment_64286" align="alignnone" width="500"]Screen Shot 2013-09-08 at 2.46.58 PM Veteran Jon Alexander confronts would-be robber with licensed handgun[/caption] The muzzle may or may not have been raised sufficiently to cover Alexander’s body exposed above the counter, the video angle makes this difficult to determine, but in any case, a round fired at that angle into the counter would almost certainly have ricocheted up to strike Alexander. Alexander extends his left hand and places it above the robber’s gun, in a position to depress it downwards. The robber momentarily lowers the gun back to his side, but maintains his aggressive, forward-leaning stance in Alexander’s face. [caption id="attachment_64287" align="alignnone" width="500"]Screen Shot 2013-09-08 at 2.33.15 PM Veteran Jon Alexander confronts would-be robber with licensed handgun[/caption] The tables turn decisively as Alexander simultaneously reaches behind his right hip and draws his own 9mm pistol from what appears to be a Blackhawk Serpa holster (a common US military issue holster, and an unsurprising choice for a veteran). Alexander directs his muzzle roughly at the robber’s larynx from a distance of only inches, while maintaining his left hand in a position to deflect an attempt by the robber to raise his own handgun. Alexander says he followed this action by informing the robber that “you need to get out of here before I blow your head off.”

Posted by Andrew Branca on August 19, 2013 72 Comments

Via Amanda Turkel at Huffington Post comes news that The Coalition to Stop Gun Violence has released a video "reenactment" of the shooting of Trayvon Martin in order to encourage people to oppose "Stand Your Ground Laws": The Coalition to Stop Gun Violence has released a chilling...

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