Saturday Snippet: Self-defense and the law, part 1

The outcome of the Kenosha riots has illustrated, yet again, our need to understand the law as it relates to self-defense, and the necessity to stay within legal boundaries whenever possible.  Failure to do so can (and usually will) lead to us being portrayed as the "bad guy" and prosecuted as the perpetrator, rather than treated as the victim of crime.

Sadly, this becomes much more difficult when the prosecuting authorities may have ulterior motives and private agendas.  They may try to twist even legitimate self-defense into a crime, for ideological and political reasons.  I've written three times about that in recent weeks, in these articles:

Self-defense under a justice system that's no longer on your side

No, I wasn't being alarmist - rather, I wasn't alarmist enough

The Kenosha, WI riots and shootings: initial lessons learned

There are two outstanding authors in the field of self-defense whose books should be on your shelf (or your e-book reader) if you have any intention or desire to defend yourself, your loved ones or your property, if necessary.  I'll cover both books in two Saturday Snippets, of which this is the first.  Part Two will follow next weekend.

The first author is Massad Ayoob, nationally known instructor in firearms and self-defense.  His book "Deadly Force: Understanding Your Right to Self Defense" is indispensable.

It's basically a completely re-worked and updated edition of his 1980 book, "In The Gravest Extreme", which (although dated in legal and technological terms) remains excellent, and offers valuable advice.

I have both books in my library.  Next weekend I'll offer a snippet from "Deadly Force".  (I should add that I've taken three courses from Mas - basic, intermediate and advanced - and enjoyed every one.  He's a great instructor.)

The second author is Andrew Branca, a lawyer who specializes in self-defense.  He's also nationally known, and author of another indispensable book on the subject, "The Law of Self Defense: The Indispensable Guide to the Armed Citizen".  (Massad Ayoob wrote the foreword to the book.)

This is one book you should have on your shelves in a paper edition, over and above any e-book version you may prefer.  Why?  Because if you're ever facing potential prosecution in the aftermath of a self-defense incident, you (or your spouse) need(s) to hand it to your defense lawyer first thing, with instructions to read it and follow its advice.  Do not give him/her any discretion in that matter!  That's how good, and how important, this book is.

Here's a lengthy excerpt from the Introduction to Branca's book.

This criminal justice system views self-defense like a simple light switch: either on or off. Either your actions fall within the law and you have zero criminal liability . . . or it falls outside the law and you are totally liable. There is no middle ground.

If you pass the criminal justice “machine’s” examination, you go free. If not . . . well, you’re probably going to miss some time at work. Maybe your kid’s wedding. Maybe everything. Welcome to the end of your life as you know it. Best, then, to stay well within lawful boundaries. But what are those boundaries? How do you get the support you need to ensure your legal “survival”? Where can you go to get help both before and after a self-defense encounter?

The first step is knowledge and you’ve come to the right place. I wrote the first edition of this book in 1998 because there was no good guide available to non-attorneys. In fact, there wasn’t a good guide available even for attorneys. I had to conduct a great deal of primary research to produce that first edition, and again in 2013 to produce the second edition, and now this volume.

I am sure many of you have heard stories where people defend themselves and have few difficulties afterwards, legal or otherwise. There was that old lady who shot the late-night intruder, or the young woman who killed the rapist dragging her from her car. These might lead you to think, “What do I have to worry about? As far as I can tell, when good people use guns for protection, they’re not even arrested. Isn’t a good shoot a good shoot? I’m fine.”

When good people use guns to defend themselves in the right way and face no legal consequences no one is happier than me. In truth, though, those people avoided a grueling legal fate because someone chose not to prosecute . . . not because they couldn’t have done so. Indeed, in many such cases a trained eye can see where their actions were not lawful self-defense at all. Fortunately for these well intentioned but mistaken defenders, the authorities didn’t choose to prosecute.

But authorities usually do bring serious charges against the well intentioned, but dangerously mistaken, “defender.” Our office gets calls from folks like this all the time. Without exception they are genuinely shocked that they are in trouble. I can practically predict the call. At some point they’ll say, “I can’t believe I was arrested for self-defense!”

One could, of course, go through life willfully ignorant of the law and hope for the best. You could cross your fingers that everyone will see your actions for what they were, even if you failed to jump through all the right hoops. After all, you’re one of the good guys, right? Surely they’ll know that.

And you might, indeed, get lucky. But you are putting your future in other people’s hands. If there is ever a conflict between their interests and yours, they get to choose who wins. Don't be surprised when their choice favors their agenda over yours.

To make matters worse, none of the people who will be in control of your fate will understand what it was like at that desperate moment. Adrenaline was surging through your bloodstream. Your hands were cold and clammy. Your vision was tunneling. Your hearing was shutting down, and you terrifyingly realized that these might be your last moments. In contrast, those judging you will enjoy the perfect safety of a prosecutor’s office or a courtroom with armed bailiffs at each door.

So far as the police and prosecutors are concerned, you’re just another mug shot and case file, not all that different from the rapist they arrested yesterday or the burglar they’ll get tomorrow. Both who, by the way, will proclaim their innocence just as loudly as you. Based on their professional experience, your story is just like all the other self-defense claims. Hollow lies made by career criminals to try to escape justice.

Given that you’ve always thought of yourself as one of the “good guys” it can come as a shock to find yourself disarmed, handcuffed, and dumped in the back of a cruiser. Your new title is now “suspect.” Congratulations. That guy you stopped when he tried to take your life? In the eyes of the law he’s the “victim”.

The officers responding to the scene are not there to be your friend and provide solace after a harrowing experience. They are there to determine if what happened was a crime, and find the bad guy. Unless you live in a very small town, or are prone to get into trouble, these officers will be strangers. To them, you’re just another face among the often unpleasant, and sometimes murderous people they are obliged to deal with every day.

In many jurisdictions, just firing a shot automatically wins you handcuffs and a free ride to the police station for booking. This doesn’t make the police good guys or bad. They’re just people doing their jobs.

The people tasked with prosecuting you also don’t know you. Your file is just one of many hundreds that come across their desk. They will not consider what is in your best interest. They will prosecute you if they think your case is vulnerable. Period. That’s their job.

The judge knows nothing of you personally either. If the prosecution successfully indicts (and, as the author Tom Wolfe so famously put it, a decent prosecutor can get a ham sandwich indicted), then expect to go to trial, spend several hundred thousand dollars in the process, and burn through months to years of your life. All the while with a possible murder conviction hanging over your head and your entire future in doubt.

And then there’s the jury. The jurors will know less about your case, even at the trial’s conclusion, than nearly everybody else involved. The process carefully controls what facts are presented to them. There is a great deal of information known to you, and to the lawyers, and the judge, and the general public for that matter, that the jury will never hear before they render a verdict.

Even if the jury of your peers was given all the evidence favorable to you, that doesn’t mean they’ll see it that way. If you ever have the misfortune to be present during a jury selection process, you’ll get a keen sense that some of your purported “peers” don’t have the collective IQ of a household thermometer. They also are shockingly susceptible to a prosecutor’s tale of wrongdoing. You do not want to place your life in the hands of such people if you can avoid it.

Now, all those treacherous legal waters I just described still assume that everyone is fair and impartial. That is not always the case. A “good bust” can get a cop a promotion; a large investigation can make a detective the Chief. Prosecutors routinely use their position to advance to political office, and those that are elected are politicians already. What better way is there to get favorable press coverage, and lots of it, than to take a big case involving violence? So what if the evidence is a bit wishy-washy around the edges? Even the judge, accustomed to dealing only with local matters, may enjoy that sweet, sweet, 15-minutes of national attention more than you find comfortable.

And it could get even worse than just unfair. Much worse. What if your case raises these people’s political returns beyond anything they could have imagined? What if it provides them with a once-in-a-lifetime opportunity for career advancement? What if, for example, your attacker was someone of a different race than your own? The entire criminal justice process could become racially energized, to the considerable detriment of your due process rights. Indeed, this seems to be the norm now when a defender is of one race and an attacker of another.

The bottom line is that we shouldn’t prepare ourselves for what the criminal justice system might do if favorably disposed to us. We owe it to ourselves and our families to prepare for the worst.

I just painted a very scary portrait of the criminal justice system. Indeed, that was my purpose. The good news is that you can do something to greatly minimize your legal risk. Don’t look vulnerable.

If an arrest isn’t worth the paperwork it won’t happen.

Once the investigation is done, if your case looks fruitless, resources will be assigned to more promising targets. After all, many prosecutors have a conviction rate well above 90% because they don’t pursue cases they don’t think they’ll win.

To avoid being picked as a prosecutor’s pet case you want to look as legally invulnerable to successful prosecution as possible. Even one red flag of weakness in your case will attract prosecution like blood in the water will attract a shark.

So how does one avoid the “red flags?” Obey the law and be prepared with a compelling story of innocence. Sounds simple, right? And yet it’s not actually that simple. The challenge is knowing what the laws you need to follow say, and then how to make your story of innocence match those laws.

I’ve designed this book to help you do just that. I start by describing what the criminal justice system looks like to a defendant at each step. I then deeply analyze the five fundamental, and essential, elements of a self-defense claim. As I go along I give lots of examples where people found themselves in trouble with the law and show you what went wrong. I’ll also talk about the differences between self-defense and defending other people or property.

Then I get REALLY practical. I step you through each and every interaction you will have with the police, and give advice about want to say, and not say, to the various types of law enforcement.

Finally, I bring it all together in Chapter 10: Building a Defense Strategy. I help you position yourself so you can effectively and quickly apply what you learned in this book during the stress of the fight. You’ll end the chapter with a personalized strategy that, to the greatest extent possible, improves your odds of winning both physically and legally.

Perhaps just as useful as the text, if not more, I’ve provided a series of tables at the end of the book that help you understand YOUR state’s laws as they relate to the issues discussed. So, after reading this book, you will have a self-defense strategy that is based on the laws in YOUR state, and that maximizes your odds of enjoying both life and liberty.

Of equal importance, though, is what this book will not do. It will not teach you how to hurt or kill someone and then hide behind a false facade of self-defense. If you are looking for a way to “game” the legal system for such purposes please return the book for a refund because you will be sorely disappointed.

This book will also not turn you into a lawyer. After reading it you will almost certainly know far more about self-defense law than most lawyers you run into. Genuine self-defense cases are too far and few between to accumulate real-world experience (although any criminal defense attorney will have lots of experience arguing bad self-defense cases). So this book will give you far more exposure than most lawyers experience over their entire careers.

That said, preparing and presenting an effective legal defense requires a diversity of skills that we won’t even touch on here. The laws governing evidence and criminal procedure alone take intense study and years of practice. Equally important are the particular facts of your case and the personalities of the prosecutor, judge, and jury. All these are part of the legal arts that only a skilled and experienced criminal defense lawyer has mastered. When the time comes to fight the legal battle that you must get exactly such counsel.

. . .

One last note: It should go without saying that nothing in this book constitutes legal advice, but we live in a madly litigious society so I’ll say it anyway: nothing in this book constitutes legal advice. Self-defense claims depend heavily on the facts of a case, and it is impossible for any general guide to replace the counsel a good lawyer can provide. To paraphrase the medical profession, should this be an emergency, hang up and dial a competent lawyer in the relevant jurisdiction. But it may be useful to bring this book with you to his/her office.

That's just the opening to Branca's excellent book.  If you might need to defend yourself, with a firearm or any other tool, you need to read it.  Next week I'll put up an excerpt from Massad Ayoob's "Deadly Force".  You need to read that book, too.

If you're in any doubt about whether you need this information, read the three articles I linked above.  They're straight out of today's headlines and news reports.  If, after reading them, you still think you might not get caught up in such legal machinations . . . then you, my friend, are living in cloud cuckoo land.  It can happen to any of us, without warning, and with no time to avoid the problem.

Peter