Law of Self Defense Show: Jan. 9, 2019
Welcome to the Law of Self Defense Show for January 9, 2019. I’m Attorney Andrew Branca for Law of Self Defense.
First, our disclaimer: This show is provided for general educational and entertainment purposes only, and does not constitute legal advice. If you are in need of legal advice you must retain competent legal counsel in the relevant jurisdiction.
Today’s show will address the legal privilege to defend against a reasonably perceived apparent threat even if that perception is mistaken, Indiana’s efforts to adopt self-defense immunity and how such immunity works in practice, a question about the recent instance of six armed citizens confronting a pair of nail gun thieves in Washington state, a second question about whether there is a legal duty to provide aid in the aftermath of a self-defense event, and finally our 50% off sale this week on our Law of Self Defense LEVEL 1 state-specific course for four selected states.
OK, let’s get to work.
This segment is sponsored by our self-defense “insurance” partner, CCW Safe, my personal choice for myself and my family. Should you decide that CCW Safe is the best choice for you and your family you can use discount code LOSD for 10% off your membership. For more information, point your browser to lawofselfdefense.com/ccwsafe.
Privilege to Defend Against Reasonably Apparent Threat
The law of self-defense allows us to defend against unlawful threats of harm to ourselves or other innocent persons.
But what if we turn out to be mistaken about the nature of the threat? What if we overestimate the threat, or are in error about the unlawfulness of the threat?
What if the object pointed at us later turns out to have been a toy gun rather than an actual gun? What if that "active shooter" we engage turns out to be another armed citizen like ourselves who is simply trying to stop the actual active shooter?
The good news is that a misperception of a threat does not destroy our legal claim of justification for our use of force in engaging, so long as that misperception is a reasonable misperception.
The law does not require us to make perfect decisions in self-defense, it merely requires us to make reasonable decisions.
The law does not require that the threat also be actual so long as an apparent threat is reasonably perceived as a threat,
I’ve already mentioned the potential tragic scenario—which actually happens more often than any of us would like—of one good guy engaging another good guy when both are attempting to engage and stop an active shooter.
Another real-world example of this principle in application is the case of former Dallas police officer Amber Guyger shooting and killing Botham Jean in his apartment, after apparently mistakenly believing that she had entered her own apartment in the same complex and encountered a non-compliant home invader.
In the Guyger case the legal outcome hinges entirely on whether Guyger’s perception that she was in her own apartment and encountering a home invader, although clearly mistaken, was a reasonable mistake. If so, the law demands that she not be held liable for her reasonable use of defensive force, despite her being mistaken.
Note that it is irrelevant to the legal analysis that Botham Jean was entirely innocent of any misconduct whatever, much less any aggression that would warrant getting shot and killed. What matters is not the actual reality of the circumstances, but Guyger’s reasonable perception of the circumstances.
A recent story out of Brazil and reported by the New York Post also illustrates this principle. A man in Rio De Janeiro threatened a woman with a gun and demanded her cell phone. In a classic example of poor victim selection it turns out that the woman is a professional UFC fighter, and she promptly beats the man to the point where he’s begging for mercy, after which she holds him for arrest by responding officers.
For discussion purposes let’s characterize the beating as sufficiently severe as to constitute serious bodily injury—that is, it falls within the bucket of a deadly defensive force, rather than mere non-deadly defensive force. The law permits the use of deadly defensive force, of course, if one is faced with an imminent deadly force threat, and certainly a gun-armed robber would qualify as such.
It turned out afterwards, however, that the man’s “gun” was simply a cardboard cut-out of a gun (I guess this guy never watched Woody Allen’s “soap gun” scene in the movie “Take the Money and Run). As a result, there was in fact no deadly force threat against the woman.
Now, this happened in Brazil, and I certainly don’t claim to know anything about Brazilian self-defense law, but for purposes of this discussion let’s imagine that these events had occurred in the United States. Would the fact that the apparent “gun” was merely cardboard undermine this woman’s use-of-force justification in beating the man? Would she lose her claim of justified use of deadly defensive force because she was not actually facing a deadly force threat?
Absolutely not, so long as she reasonably believed in good faith that the threat of the apparent gun as a genuine threat.
I am obliged to note that there is some indication in the article that it’s possible the female defender suspected that the gun might not have been real, which would seem to undermine the reasonableness of her response. I would counter that in the balance between the mere suspicion that a gun might not be real on the one hand and the declaration by a self-proclaimed armed robber that he was prepared to imminently shoot her, the female defender emerges the victor in that narrative.
This segment is sponsored by the American Warrior Society. AWS is run by Mike Seeklander and Rich Brown, and teaches a holistic approach to self-defense, including not just the physical means of self-defense but also related subjects like physical fitness, nutrition, home security, and more. I’ve personally been taught by AWS and am an AWS member, and can attest to the quality of their instruction and content. If you’re interested in self-defense instruction I urge you to take a look at American Warrior Society, at lawofselfdefense.com/americanwarriorsociety.
Indiana Legislature to Consider Civil Self-Defense Immunity
Yesterday the Indiana legislature filed a self-defense immunity bill, HB 1284. This proposed bill would allow for civil immunity against a lawsuit for a defensive use-of-force. It’s filing also provides us with an opportunity to touch once again upon self-defense immunity generally and the approach taken here by HB 1284 specifically.
Self-defense immunity is a great legal doctrine—more important, in my opinion, even than stand-your-ground—primarily because it provides a defender with an opportunity to compel an evaluation of the lawfulness, or not, of their use of force prior to going to trial. It thus provides an opportunity to avoid trial altogether, and importantly it is an opportunity within the control of the defender.
The traditional means by which a defender might avoid a trial are beyond that defender’s control. Instead, those methods are based on decisions made by people other than the defender. For example, the police may decide not to arrest or charge, prosecutors might decide to not indict or prosecute, the a judge may decide charges are excessive as a matter of law. But the defender can’t compel any of those people to make those decisions—his fate is in other people’s control.
Under self-defense immunity, however, the defender has the right to compel a pre-trial hearing, in effect a mini-trial conducted prior to the trial itself, to determine if his use of force that is the basis of the criminal charge against them falls within the bounds of legal justification. If it does the defender qualifies for immunity from civil suit and/or criminal prosecution, depending on the specific state and the scope of its self-defense immunity statute. The legal procedures of such hearings vary a bit from state to state, so we’ll cover Indiana’s proposed procedure, as well as how it compares to some other states, below.
Importantly, the Indiana bill addresses immunity from civil suit only, and it does not address immunity from criminal prosecution. Thus this is strictly a civil immunity, and not a criminal immunity, provision.
Also importantly, the Indiana bill sets forth the actual legal procedure to be followed by the hearing court. Many self-defense immunity statutes simply say something to the effect of “if the use of force was lawful, immunity attaches” but don’t explain how to determine whether the use of force was lawful. Who bears the burden of proof, for example, and to what standard of evidence? Often the legislature doesn’t say, leaving it to the courts to work out, a process that can take many years and that often ends up with a confusion of approaches.
Florida, for example, took this approach, and it led to many years of court struggles with how to apply the Sunshine State’s self-defense immunity law, with various Florida trial and appellate courts devising inconsistent procedures. It was only recently that the Florida legislature stepped in and provided some much-needed clarity to the state’s self-defense immunity procedure.
This Indiana bill provides that once a person raises a claim of immunity from civil suit the court that would have heard the lawsuit is now required to conduct a pre-trial hearing of the type just described.
Interestingly, the bill holds that the burden of proof on whether the use of force by the defender was lawful falls on the plaintiff (the person suing the defender), and further that the plaintiff must disprove the lawfulness of that use of force by “clear and convincing evidence.” This is actually a higher standard of proof required in the pre-trial hearing than the plaintiff would be required to meet at trial, where the plaintiff would only be required to disprove justification by a preponderance of the evidence!
In addition, if the hearing court finds that the defender (the defendant) qualifies for immunity, the plaintiff who brought the suit must compensate the defendant for their reasonable attorneys fees and legal costs. This falls short of many other states provisions which also require compensation for lost wages and other financial costs incurred by the defendant.
Interestingly, in a wonderful provision unique to the Sunshine State, Florida takes its award provision even a step further by requiring that half of this award of costs be paid for directly by the plaintiff’s attorney personally. It also strips the plaintiff, if they are in custody, of such privileges as PX access and visitation privileges (including conjugal visits). Both these provisions serve to strongly discourage the bringing of frivolous suits in self-defense cases.
It’s also noteworthy that this civil immunity provision does not apply to all possible lawful uses of force, even if justified, but only to force used in defense of persons—that is, the person claiming immunity was using force to defend either himself or a third person. It would not apply to a defense of property scenario, for example.
SEGMENT 3: Q&A
Send questions for consideration to “email@example.com”
This question is sponsored by Munitions Law Group, a law firm of national scope that specializes in all aspects of gun law, including both corporate-level legal issues such as ATF compliance as well as personal-level issues such as rights restoration. I’ve worked personally with partners Derek DeBrosse and Clay Cheshire, and can attest to the quality of their counsel and representation. If you find yourself in need of gun law legal advice or services I urge you to take a look at Munitions Law Group, and be sure to let them know I sent you.
Question #1. From Mike B.
Six armed citizens confront nail gun thieves, Washington state, surround thieves in their car, thieves strike one of the men as they drive away, men fire shots at the fleeing car.
1. It would appear the customers could be in legal jeopardy since the shoplifters were not threatening anyone and it was not, according to WA law, a "violent crime."
2. Could the driver of the vehicle claim self-defense for hitting the customer with the car since they had six guns leveled on them?
Question #2: Sponsored by ConcealedCarry.com
This question is sponsored by ConcealedCarry.com, with whom I’ve partnered regularly on various projects, including our recent nation-wide Self-Defense Law Quiz initiative that demonstrated that even many experienced concealed carriers know only about half the self-defense law they need to know. ConcealedCarry.com provides self-defense training, as well as news, information through their website and podcast. I’ve personally made use of their instructional content and can attest as to its quality. For more information point your browser to lawofselfdefense.com/concealedcarry.
Question #2. From Carl:
I have been curious about rendering aid after a self-defense encounter involving medical professionals. Are there any different legal ramifications for medical professionals after they have had to defend themselves as opposed to non-medical people? I’m asking because the general advice I have heard is that rendering aid puts you at risk legally. Thank you very much and keep up the great work!
Send questions for consideration to “firstname.lastname@example.org”
SEGMENT 4: OFFERS & WRAP-UP
50% off Law of Self Defense LEVEL 1 State Class for FIVE States
This week we’re holding a 50% off sale on our Law of Self Defense LEVEL 1 State-specific course for these five states:
New Jersey (lawofselfdefense.com/newjerseydvd)
To take advantage of this opportunity, or even just learn more about the Law of Self Defense LEVEL 1 Course for these states, simply click the links above.
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Remember: You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.
Until next week, stay safe!
Attorney Andrew F. Branca
Andrew F. Branca, Esq. is currently in his third decade of practicing law, and is an internationally-recognized expert on the law of self-defense of the United States.
Andrew is a Guest Lecturer at the Federal Bureau of Investigation’s National Academy in Quantico VA, a former Guest Instructor at the Sig Sauer Academy, an NRA Benefactor Member, and an NRA Certified Instructor in multiple disciplines. Andrew is also a host on the Outdoor Channel’s TV show “The Best Defense” and a contributor to the National Review Online.
Andrew has been quoted as a subject-matter expert on use-of-force law by the Wall Street Journal, the Chicago Tribune, the Washington Post, and many other media, including nationally and internationally syndicated broadcast media. Recently, Andrew won the UC Berkeley Law School debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting Law Seminar on self-defense law. Andrew teaches lawyers how to argue self-defense cases through the Continuing Legal Education (CLE) systems in more than 35 states.
In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in many IDPA divisions.