I was fortunate recently to be able to take Andrew Branca’s “Law of Self Defense” (LOSD) seminar when he was in Charlotte for the Grass Roots North Carolina annual meeting and dinner.
Branca is a Massachusetts attorney who specializes in self-defense law, has an extensive background in the shooting sports (his IDPA number is 13), and is an NRA-certified instructor. He is author of The Law of Self Defense: The Indispensable Guide for the Armed American (2nd edition, 2013) and runs a companion Law of Self Defense website.
SOLVING PROBLEM TWO: THE LEGAL FIGHT
As the firearm self-defense community matures, there is a lot of “standing on the shoulders of giants” in the presentations I attend. At the Rangemaster Polite Society Tactical Conference in February, Skip Gochenour led a session on “Problem Two: On Trial.” According to Gochenour, Col. Jeff Cooper coined the idea that there are two problems to be solved or fights to be won when a citizen uses lethal force in self-defense. Problem One is the gunfight itself. Problem Two is the legal fight. As Gochenour put it, “If you are totally committed to solving Problem One, be totally committed to solving Problem Two.” (See Cooper’s To Ride, Shoot Straight, and Speak the Truth, where he writes: “Problem One is defending yourself. Problem Two is explaining it to the boys with the bracelets. One is more important than Two, but only until it is solved, at which point Two can become a bloody bore.”)
Branca begins his LOSD seminar by drawing on Cooper as well. He says the armed citizen who uses deadly force needs to survive Fight One, the gunfight, and Fight Two, the legal battle. The best way to win Fight Two is to “don your legal body armor”: know and follow the law.
At the same time, a person can use legitimate force in self-defense and still end up in jail. Although the “moral duty and practical necessity of self-defense is the basis for the law,” as Branca puts it, the resolution of Problem Two is going to be hashed out in an imperfect legal system.
In his Tactical Conference session, Gochenour argued, “Trials are not about the truth” but about “coming to a determination.” (Noting also that “trial” – from English Common Law – is ritualized combat.) Branca agrees. He holds that the administration of justice is based on storytelling. Prosecutors attempt to build narratives of guilt, and so the lawful armed citizen needs to build a counter-narrative of innocence in order to get the case out of the criminal justice pipeline as early as possible (LOSD, pp. 19-29). Failure to do so, according to Branca, is akin to getting a thread from your jacket caught in a farm implement and then soon discovering that your whole arm is in there. Better to get out when you are only caught by a thread.
“Nothing you learn today will enable you to manipulate the law of self-defense in order to commit bad acts and escape punishment.”
But he offers a framework for understanding and following the law of self-defense so as to make solving Problem Two more likely.
FIVE FUNDAMENTAL PRINCIPLES OF LAWFUL SELF DEFENSE
Branca’s presentation of the law of self-defense revolves around five fundamental principles, which are repeated throughout the seminar:
He argues that all five of these must be present for you to win a self-defense case. If even one is missing, “the best your attorney can do is get you a good plea bargain.”
Here I summarize each of the five, but note that each is discussed in a separate chapter of the LOSD book (Chapters 2-6).
Principle 1: Innocence — To justifiably act in self-defense you need to be the innocent party not the aggressor. You can’t engage in provocation or mutual combat. You can’t bait someone so as to create the necessity to act in self-defense (here Branca cites the example of Byron Smith, about whom I have written).
Principle 2: Imminence — Branca uses Black’s Law Dictionary to define imminent danger:
“Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law . . . such an appearance of threatened or impending injury as would put a reasonable and prudent man to his instant defense.”
Practically speaking, a good way to craft a counter-narrative of innocence on this principle (as well as for decision-making in the situation itself) is the “AOJ Triad.” AOJ stands for Ability, Opportunity, and Jeopardy, three criteria that put the legal principle of immediate danger into practical terms.
An attacker must have the ability to inflict death or grave bodily harm (e.g., a weapon, size or strength, special skills), as well as the opportunity (e.g., proximity to you), and must put you in jeopardy as a reasonable threat (e.g., the bank security guard is armed and close to you but does not represent a threat).
Here again we see a standing on the shoulders of giants. Like myself and thousands of others, Branca learned the AOJ Triad from Massad Ayoob, in Branca’s case in a Lethal Force Institute course in the early 1990s.
Principle 3: Proportionality — Deadly force may be used in self-defense as long as it is proportional to the threat. If there is the threat of death or grave bodily harm, deadly force is warranted.
How do you assess whether you are facing a deadly force attack? Guns and knives are usually considered deadly weapons, but Branca lists a number of other “weapons” that are potentially deadly under the right circumstances: a pillow (smothering), sidewalk (smashing), fists (a lethal blow), hands (choking), plastic bags (suffocation), baseball bats (pounding).
In the case of Trayvon Martin, it was Martin’s fists and the sidewalk that posed a threat of death or grave bodily harm to George Zimmerman. So, the key when one is confronting any weapon is to be able to articulate a clear and convincing narrative of innocence based in part on proportionality.
Under this umbrella Branca also noted that you cannot continue to use deadly force once a threat has been neutralized. We have seen this in several high profile cases, including: Oklahoma pharmacist Jerome Ersland who is in jail for murder; Florida gas station shooter Michael Dunn who was found guilty of attempted murder for shooting into a car as it was driving away; and the aforementioned Byron Smith of Minnesota (found guilty of murder) who fired a “finishing shot” into each of his victims after he had disabled them.
Principle 4: Avoidance — The principle that you should avoid using lethal force if at all possible seems simple on the surface, especially tactically. Indeed, I have been trying to find time to write up my analysis of the commonly given advice to be aware and avoid trouble as first principles of personal defense (see, e.g., Michael Bane’s TV show The Best Defense).
The legal principle of avoidance seems simple as well. A person has a duty to retreat prior to using lethal force in self-defense. In plain language, you have to try to avoid the threat first. But this is actually the principle that I have the hardest time getting straight. In fact, different states establish different standards for avoidance, and even within a single state the standard for avoidance varies by place, and in some cases, circumstance.
Branca tries to bring some clarity to the situation by talking about a continuum of avoidance. In some cases, there is a high bar for avoidance. In 17 states (when LOSD was published in 2013), there is a “duty to retreat” prior to using lethal force in self-defense. It is important to note that this duty to retreat applies only if the defender can do so in complete safety, e.g., if you are in your car and can readily drive to safety. There are also a good number of reasons why a person could not retreat in complete safety, such as if the attacker has a firearm or the victim is injured.
From this “duty to retreat” baseline, various laws gradually lower the bar. Even states with a duty to retreat still uphold the Castle Doctrine, a common law principle (that some states have enshrined in black letter law to prevent any misunderstanding) which suspends the duty to retreat in one’s home (“castle”). It is important to note, however, that this does not typically apply to other people who have a right to be in the home also, as is often the case in domestic disputes.
The bar in some cases is lowered further by extending the Castle Doctrine to the property around one’s castle and/or to temporary “castles” (curtilage, cars, RVs, hotel rooms), as well as to one’s business. There is a huge amount of variability here from state to state.
Historically, “True Man” doctrine, and more recently “Stand Your Ground” (SYG) laws, lower the bar of avoidance even further. In states that have adopted these laws, a person has “no duty to retreat” anywhere that person has a legal right to be, provided the person is not engaged in illegal activity and is not the aggressor in a conflict. You can’t be engaged in a drug deal, provoke the other party, shoot the other party, and then claim self-defense on the basis of SYG.
The bottom line is that Castle Doctrine and Stand Your Ground laws both suspend the need for avoidance as part of the overall equation of lawful self-defense. HOWEVER, THEY DO NOT SUSPEND THE OTHER FOUR PRINCIPLES! They are not a “license to kill” and do not allow a person to legally “shoot first and ask questions later.” (More on this separately.)
Branca notes that even in a SYG state, even though retreat is not required, a prosecutor can claim that a reasonable person would have exercised retreat prior to using lethal force in self-defense. That is, not retreating fails the principle of reasonableness (LOSD, p. 123).
Principle 5: Reasonableness — Lawful use of deadly force in self-defense must be “reasonable.” A person must reasonably fear death or grave bodily harm. A person does not have to actually be in danger of death or grave bodily harm. The danger needs to be apparent not actual, though it cannot be purely speculative. For example, if a child points a toy gun at you, you cannot reasonably shoot that child. But if someone robs you at gunpoint with what turns out to be a toy gun, you may be able to shoot that robber.
For Branca, this 5th principle encompasses the other four:
- 1st Principle: Was your belief that you were defending an innocent person a reasonable belief?
- 2nd Principle: Was your view that the danger was imminent a reasonable view?
- 3rd Principle: Was your estimate of the degree of force threatening you, and the degree of force you used in response, reasonable?
- 4th Principle: Was your decision that there was no safe way to retreat a reasonable decision?
If the answer to any of these questions is “no,” your use of deadly force was not lawful.
Of course, this begs the question: what is “reasonable”? Here Branca distinguishes between objective reasonableness and subjective reasonableness.
Objective reasonableness concerns what a reasonable and prudent person, in the same or similar circumstances, knowing what you know, and being in the particular mental state you were in, would do.
Subjective reasonableness means you must genuinely believe yourself to be in fear of death or grave bodily injury and therefore to be using deadly force legitimately. Although at first it would seem that anything objectively reasonable would also be subjectively reasonable, I can think of a couple of cases in which a person’s words and/or actions were not those of a subjectively reasonable person.
The case of Byron Smith in Minnesota is one. The audio recording of his interaction with his victims was damning, clearly suggesting he was subjectively not in fear of death or grave bodily harm when he fired his last shots. And the fact that he did not call the police until the next day was also suggestive of guilt.
The case of Michael Dunn in Florida is another. Having unloaded his handgun’s magazine into another car at a gas station — including many rounds as the car was driving away — Dunn himself left the scene. This could have been judged reasonable if he feared the attackers might return, but instead Dunn drove to his hotel, walked his dog, ate pizza, watched a movie, learned on TV that he had killed Jordan Davis, drove home the next day, and never contacted the police. Although an objectively reasonable person might have been justified in using lethal force in self-defense against Jordan Davis, Michael Dunn’s behavior resembled the actions of a guilty man and spoke loudly to the subjective un-reasonableness of his use of lethal force.
IN THE END
There was much more in Andrew Branca’s Law of Self Defense seminar than just these 5 principles. But this framework was the core of the seminar in my opinion and well worth the 4 hours and $120 I spent on it. In a separate blog post, I will talk more about the vast array of resources Branca makes available to complement his Law of Self Defense seminar.
Far from empowering armed citizens to use lethal force recklessly, the law of self-defense creates a framework that specifies the many, many instances in which lethal force is not justified, and the rare occasions when it is.
Because of this, I highly recommend Andrew Branca’s Law of Self Defense seminar to anyone who keeps a firearm in their home, who carries or is considering carrying a firearm in public, or who is generally interested in what the law of self -defense is in the United States and how it may be applied in various situations (whether you are a gun owner or not). In fact, Branca’s seminar can be taken for Continuing Legal Education [CLE] credit for an additional charge, and although Branca’s persona on Twitter (@LawSelfDefense) is purposely abrasive in countering gun control advocates, his seminar is strictly professional.